                                  No. 14761
                    IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1979


JERRY L. KRUSEMARK, as the successor
in interest of PARK VIEW MEMORIAL GARDENS,
INC., A Montana Corporation, and MEMORIAL
SERVICE, INC., A Montana Corporation,
                          Plaintiffs and Appellants,


MARLENE H. HANSEN, a/k/a MARLENE H. SPAIN,
ALAN R. CAPERS, PARK VIEW MEMORIAL CORPORA-
TION, and FIRST SECURITY BANK OF LIVINGSTON,
Montana,
                          Defendants and Respondents.


Appeal from:       District Court of the Sixth Judicial District,
                   Honorable Nat Allen, Judge presiding.
Counsel of Record:
    For Appellant:
         McKinley Anderson argued and A. Michael Salvagni argued,
          Bozeman, Montana
    For Respondents:
         Crowley, Haughey, Hanson, Toole & Dietrich, Billings,
          Montana
         Jack Ramirez argued, Billings, Montana
         Landoe, Brown, Planalp, Kommers and Lineberger, Bozeman,
          Montana


                                      Submitted:   September 25, 1979
                                        Decided:       2 5 1984
Filed:         2    ?$@
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

     Plaintiff appeals from a Park County District Court
judgment granting summary judgment to the defendant.     Summary
judgment was granted because the plaintiff failed to file an
opposition brief within the time limits provided by the local

court rules of Park County District Court.    The primary issue
in this appeal is whether a trial court can take such action
in light of the specific provisions set forth in the rule governing
summary judgment in this state, Rule 56, M.R.Civ.P.
     Plaintiff commenced this action on February 18, 1977 by
filing a complaint in which he alleged that the defendant had
mishandled certain trust funds established for the benefit of
cemetery lot purchasers and that its fraudulent misrepresentations
had induced the plaintiff to enter a contract for the bid and
purchase of the Park View Memorial Gardens.   The defendant filed
a motion to dismiss and strike the complaint on the grounds that
it was not a short and plain statement of the claim as required
by Rule 8(a), M.R.Civ.P.   The court granted this motion, and
the plaintiff filed an amended complaint.    The defendant's answer
to the amended complaint denied the misapplication of trust
funds, and pleaded the affirmative defenses of laches, the statute
of limitations, and an alleged agreement by the plaintiff to
release his claims against the plaintiff.
     On September 25, 1978, the defendant filed a motion for
summary judgment and a brief in support of the motion.    ~otice

that the hearing was set for 11:OO a.m. on October 12, 1978
was filed on the following day, but the plaintiff received no
actual notice of the hearing until the morning of ~ctober12
when the defendant called plaintiff's counsel to inquire why no
reply brief had been filed.   The court held the hearing as
                               - 2-
 scheduled, but the defendant did not attend.   At the con-
clusion of the hearing, the court issued an order stating
 that the matter would be submitted on briefs and that the
defendant had until October 15, 1978 to file a reply brief.
Copies of the order were mailed to the attorneys for both the
parties.   The plaintiff failed to file a brief in opposition
to the motion and for this failure the trial court invoked
Rule 3 of the local rules for the District Court, and granted

summary judgment to the defendant.    Plaintiff has appealed
the court's judgment.
     Plaintiff contends that he was entitled to a hearing on
defendant's motion and to notice of the time and date of the
hearing.   He also contends that the trial court erred in basing
its order for summary judgment on plaintiff's failure to comply
with the time limits set out in Rule 3 for filing briefs in
opposition to a motion.
     Plaintiff's last contention is dispositive of this appeal.
Rule 3 states in part that a party opposing a motion has ten
days after filing and service of the moving party's brief to
serve and file a reply brief.   A party who fails to file a
reply brief admits that the motion is well taken.   The trial
court granted summary judgment to the defendant because the
plaintiff did not file and serve an opposing brief within the
time limits of Rule 3.    We conclude, however, that Rule 3 does
not apply to motions for summary judgment.
     Each District Court, upon the agreement of a majority of
-its judges, has authority to make rules governing its practice.
However, the District Courts have no authority to enact rules
inconsistent with Montana Rules of Civil Procedure.    If Rule 3

conflicts with this state's rules of procedure, the state rules
will control.   See Rule 83, M.R.Civ.P.   Our conclusion is Rule
3 is inconsistent with Montana rules of procedure governing

summary judgment.
                                -3-
     Rule 3 allows the adverse party only ten days after service
and filing of the moving party's brief to file a reply brief.
If this rule is applied to a summary judgment motion, it would
require a party to file a brief in opposition to the motion
within ten days after the motion was served and filed.    Under
Rule 3, the failure to file a timely brief is an admission that
the motion is well taken.   Thus, if a party failed to file a
brief within ten days of the time a motion for summary judgment
was served and filed, the court could deny him the opportunity
to file any further materials in opposition to the motion.    Under
these circumstances, Rule 3 would authorize the court to grant
summary judgment even though a hearing may have been scheduled
for a later date.
     This state's procedural rules concerning summary judgment
are contained in Rule 56, M.R.Civ.P., which provides:
     "The motion shall be served at least 10 days
     before the time fixed for the hearing. The
     adverse party prior to the day of the hearing
     may serve opposing affidavits..  . ." Rule 56(c),
     M.R.Civ.P.
Rule 56(c) contemplates that the adverse party can file opposing
materials up to the day of the hearing.    Since Rule 3 would deny
this right to an adverse party who has not filed a timely brief,
it cannot be applied to Rule 56 motions.
     Rule 3 is also inconsistent with the basic function of the
trial court in reviewing motions for summary judgment.    Rule
56 places the burden of proof on the moving party to establish
the absence of any genuine issue of material fact.   Harland v.
Anderson (1976), 169 Mont. 447, 548 P.2d 613.   The court has a
duty under Rule 56 to deny a motion for summary judgment when
there is any doubt whether a factual question exists.    Cheyenne

Western Bank v. Young (1978),      Mont.        , 587 P.2d 401;
See also, Bahm v. Dormanen (1975), 168 Mont. 408, 543 P.2d 379.
Rule 3 undermines the court's function to the extent
that it deflects the court's attention from considering
whether factual disputes exist and directs it solely to the
question of whether a    reply brief has been filed within the
ten day period permitted by Rule 3.
       Although unnecessary to the decision we make here, we
feel constrained to discuss plaintiff's contention that he was
denied a reasonable opportunity to oppose defendant's motion for
summary judgment because he was not given notice of the date and
time for the hearing on the motion.    This contention is patently
specious.
       Although defendant's summary judgment motion did not set
forth a date and time for the hearing on the motion, service of
the motion certainly gave counsel notice of a pending motion.
Plaintiff's counsel not only did not file any material in
opposition to this motion, but he also failed to make any inquiries
concerning the status of the motion.   Approximately two weeks
later, defense counsel called plaintiff's counsel and asked him
why he had not filed a brief in opposition to the motion for
summary judgment.    It was through this conversation that defense
counsel told plaintiff's counsel that the hearing was set for
the same day.   Assuming that plaintiff's counsel was not obligated
to attend the hearing set for that date since he had no notice,
nonetheless he made no attempt to postpone or continue the hearing.
       A hearing of sorts took place, in the absence of plaintiff's
counsel.    A simple telephone call to the court could have
explained the circumstances. Nor can we determine that plaintiff
was at all prejudiced by any kind of hearing that took place that
day.    Within a short interval after the hearing, the trial court
notified plaintiff's counsel that his brief in reply to the
defendant's brief and motion for summary judgment was due on
October 15 and that the motion would be deemed submitted on October
16.    Plaintiff's counsel took no action whatsoever.   He did not
 file a reply brief and he did not bother to contact the trial
 court and opposing counsel to attempt to get some understanding
 of the procedural problems.       Indeed, the trial court did not
 grant summary judgment until November 6, and by this time he
 still had not received any brief from the plaintiff.        Although
 it was in error, it is not surprising that the trial court granted
 summary judgment on the basis of local court Rule 3.        Counsel
 for plaintiff clearly invited this decision.
      Under these circumstances we do not believe that counsel
 for the plaintiff can seriously contend that he was not given
an opportunity to respond to defendant's motion for summary
 judgment.   Indeed, two or three telephone calls would probably
have eliminated the need for the present appeal.
      Defendant admits that some very real procedural problems
exist in this case, but nevertheless it urges this Court to
review the record ourselves and determine whether or not there
exists a question of material fact.       Defendant contends, of
course, that there is no question of material fact and thus that
it is entitled to judgment as a matter of law.       We decline to

undertake this review.       It is not our function to make this
initial determination.
      The order for summary judgment is reversed and this cause
 is remanded to the District Court for further proceedings con-
 sistent with this opinion.


                                                        ce
We Concur:
 ...............................




        Mr. Chief Justice Frank I. Haswell concurs in the result
but not in all that is said in the foregoing opinion.


                                                  Chief Justice         '
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