                                         No. 04-391

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2006 MT 297

                                                _____________________________________

SVKV, L.L.C., d/b/a BEEHIVE HOMES OF HELENA,

              Plaintiff, Counterdefendant and Respondent,

         v.

TY HARDING, d/b/a HARDING ENTERPRISES,

              Defendant, Counterclaimant and Appellant.

                                                _____________________________________


APPEAL FROM:         District Court of the First Judicial District,
                     In and for the County of Lewis and Clark, Cause No. ADV-2000-514,
                     The Honorable Dorothy McCarter, Presiding Judge.


COUNSEL OF RECORD:

              For Appellant:

                     G. Patrick HagEstad; Milodragovich, Dale, Steinbrenner & Binney, P.C.,
                     Missoula, Montana

              For Respondent:

                     Joe Seifert; Keller, Reynolds, Drake, Johnson & Gillespie, P.C., Helena,
                     Montana

                                                _____________________________________

                                                            Submitted on Briefs: July 19, 2006

                                                                 Decided: November 20, 2006

Filed:

                    ____________________________________________
                                        Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1    Ty Harding, doing business as Harding Enterprises (Harding), appeals from the

order of the First Judicial District Court, Lewis and Clark County, granting summary

judgment to SVKV, L.L.C. (SVKV), doing business as Beehive Homes of Helena, on

Harding’s counterclaims, and from the court’s later order denying Harding’s request for a

hearing on SVKV’s motion. We affirm.

¶2    The issues on appeal are:

¶3    1. Did the District Court abuse its discretion by failing to hold a hearing or obtain

the parties’ express waiver of a hearing before granting SVKV summary judgment on

Harding’s counterclaims?

¶4    2. Did the District Court err in granting summary judgment to SVKV?

¶5    3. Is SVKV entitled to attorney’s fees or costs on appeal?

                                   BACKGROUND

¶6    In October of 1996, Bee Hive Homes of Northern Montana, Inc. (Northern)

entered into a contract, with Ken Vivrette and Damian Flaherty signing it in their

capacity as Northern’s officers. The other party to the 1996 contract was Bee Hive

Development, Inc.

¶7    According to a document of record, Bee Hive Homes Development, Inc., was the

predecessor of both Bee Hive Homes of America, Inc., and Bee Hive Homes, Inc.

Another document states Bee Hive Homes of America, Inc., and Bee Hive Homes, Inc.,

had entered into an agreement pursuant to which the sub-franchisor, Bee Hive Homes,

Inc., could in turn sub-franchise to others, upon written consent from Bee Hive Homes of

America, Inc. The relationship of these three entities is not at issue in this appeal.

                                            2
Therefore, we refer to all of them as Bee Hive.

¶8     The 1996 contract generally stated that Bee Hive would provide certain plans,

specifications, operations and procedural manuals for residential care facilities (homes) in

exchange for Northern’s payments of certain sums. One paragraph of the contract stated

that, as consideration for Bee Hive’s providing certain consulting services—including

assistance in construction-related matters, accounting and payroll procedures, training,

and menus—Northern would pay specified percentages of its homes’ gross rents.

¶9     In late 1996, apparently before or around the same time as the 1996 contract

involving Northern was executed, Tricia and Damian Flaherty and Sue and Ken Vivrette

formed TDSK, L.L.C. (TDSK) to build and operate homes. It is not clear what, if any,

relationship existed between TDSK and Northern. Later—perhaps in March of 1999,

according to Sue Vivrette’s deposition testimony—the Vivrettes bought out the Flahertys

and formed SVKV. The Vivrettes were involved, via one entity or another, in the

construction, development and operation of three homes in Lewis and Clark County.

¶10    In June of 1998, Bee Hive sent a letter to the Vivrettes, addressed to them at Bee

Hive Homes of Helena, in which Bee Hive advised it was “restructuring its operations to

conform to all national and federal franchise law” and recommended the execution of a

franchise agreement with Bee Hive.       The letter also set forth two other options: a

repurchase offer and an “option to reject the repurchase offer . . . . This means that you

will agree to continue under the existing agreement and that you do not elect to sign a

new franchise agreement.” The letter stated that acceptance of either of the last two

options would constitute a release of Bee Hive from any claims and liabilities regarding

the offer and sale of homes. Neither the Vivrettes nor any entity involving the Vivrettes

                                             3
responded to the letter.

¶11    Later, in October of 1998, Bee Hive executed a “sub-franchise agreement” with

Harding, which stated that Bee Hive granted Harding “the exclusive right to build, own,

and operate Bee Hive Homes (under the franchise agreement . . . ) and to sell franchises

on [Bee Hive’s] behalf of Homes using the System under the Names and Marks” within

Montana. Under the 1998 agreement, Harding agreed to pay a franchise fee in the

amount of 50% of the franchise fees payable under “the Franchise Agreement for each

franchise” after the first eight acquired and owned by Harding, as well as “each franchise

sold” by Harding in Montana. In addition, the 1998 agreement stated that Harding agreed

to pay 50% of franchise royalties on the franchises acquired and owned by Harding in

Montana and “each franchise sold” in Montana. After the 1998 agreement was executed

by Bee Hive and Harding, SVKV paid Harding certain amounts for a period of time, but

later reduced—and ultimately stopped—its payments.

¶12    In August of 2000, SVKV filed a complaint against Ty Harding, doing business as

Harding Enterprises, asserting he had demanded money under the 1996 agreement and

had threatened to sue SVKV to collect.          Among other things, SVKV requested a

declaratory judgment that the 1996 contract was void, asserted breach of the 1996

contract, and requested damages and restitution.        At different points during the

underlying action, the District Court dismissed each of SVKV’s claims.

¶13    Harding answered and counterclaimed, affirmatively alleging that he and Harding

Enterprises were actually Harding Enterprises, Inc., and asserting breach of contract,

fraud, and unjust enrichment. SVKV responded to the counterclaims.

¶14    The District Court held a scheduling conference in June of 2002, which counsel

                                            4
for both parties attended telephonically, and later entered a scheduling order stating

       [w]hen any motion has been fully briefed, oral argument if requested by
       any party has been held and the motion is submitted for decision, one of
       the parties must so advise the Court by filing and serving a “Notice of
       Submittal.” Until such notice has been filed and served, the motion
       will not be deemed submitted for decision. Hearing on a motion for
       summary judgment is deemed waived unless a written request for
       hearing is submitted within the time period for filing the briefs on the
       motion.

In September of 2003, after the parties stipulated to continue the trial date, the court

entered another scheduling order containing the same language.

¶15    In October of 2003, SVKV moved for summary judgment on Harding’s

counterclaims, and Harding responded.        On the same day it filed its reply brief in

November of 2003, SVKV filed and served a “Notice of Submittal” stating that

“[p]ursuant to local rule, the undersigned hereby advised [sic] the Court that briefing on

the Plaintiff’s motion for summary judgment . . . has been completed, neither party has

requested oral argument, and the matters may be deemed submitted and ready for

decision.” Harding did not dispute or respond to the Notice.

¶16    In January of 2004, the District Court granted SVKV’s motion for summary

judgment on Harding’s counterclaims, determining there was no evidence of contractual

privity between Harding and SVKV. Approximately four days later, Harding requested a

hearing on SVKV’s motion for summary judgment—asserting, among other things, that

“it would . . . be an abuse of discretion should the Court deny [Harding] a hearing on the

matter ‘unless’ [Harding] ‘specifically’ waived its right to a hearing.”

¶17    The District Court denied the request for a hearing. It referred Harding to the June

24, 2002 and September 26, 2003 scheduling orders that directed the parties, in bold


                                             5
print, to request a hearing by the end of briefing on a motion or the hearing would be

deemed waived. Noting it had ruled two months after briefing was completed and neither

party had requested a hearing, the court stated Harding “apparently expects the Court to

sit on pending summary judgment motions indefinitely until a party decides it wants a

hearing.”

¶18   Harding appeals. We set forth additional facts in the discussion below.

                              STANDARDS OF REVIEW

¶19   We review a district court’s decision to deny a hearing on a summary judgment

motion for an abuse of discretion. Virginia City v. Olsen, 2002 MT 176, ¶ 13, 310 Mont.

527, ¶ 13, 52 P.3d 383, ¶ 13 (citation omitted). A court abuses its discretion when it acts

arbitrarily, without employment of conscientious judgment, or exceeds the bounds of

reason resulting in substantial injustice. Pumphrey v. Empire Lath and Plaster, 2006 MT

99, ¶ 16, 332 Mont. 116, ¶ 16, 135 P.3d 797, ¶ 16 (citation omitted).

¶20   We review a district court’s grant of summary judgment de novo, determining

whether—viewing the evidence in the light most favorable to the nonmoving party and

drawing all reasonable inferences in the nonmoving party’s favor—genuine issues of

material fact exist and whether the moving party is entitled to judgment as a matter of

law. See Rule 56(c), M.R.Civ.P.; Prindel v. Ravalli County, 2006 MT 62, ¶ 19, 331

Mont. 338, ¶ 19, 133 P.3d 165, ¶ 19 (citations omitted).

                                     DISCUSSION

¶21   Before addressing the issues before us on appeal, we note the parties’ briefs

variously refer to the appellant as Mr. Harding, Harding Enterprises, and Harding

Enterprises, Inc.   In this regard, we observe the 1998 agreement names Harding

                                            6
Enterprises, Inc. as “Sub-Franchisor” and is signed, in pertinent part, “Sub-Franchisor:

By Ty Harding, Its Owner”—an unusual designation for a person signing on a

corporation’s behalf. Although Harding alleged a corporate status via its answer and

counterclaims, Harding has never moved to amend the caption under which SVKV filed

its complaint, which is the caption set forth above. However, both parties and the District

Court have used a caption—never formally adopted—naming Ty Harding, doing

business as Harding Enterprises as the defendant and, below a line, naming Harding

Enterprises, Inc., as the counterclaimant against SVKV as counterdefendant. Indeed, the

District Court’s orders at issue in this appeal have different captions.        Moreover,

Harding’s notice of appeal states “Defendant above named”—referring to Ty Harding,

doing business as Harding Enterprises—“appeals . . . in this case.” SVKV has not

questioned the propriety of Harding Enterprises, Inc.’s counterclaims where it has not

been named as a defendant. Nor has either party asked the District Court or this Court to

resolve the apparent confusion.

¶22   Absent any request by the parties to determine the counterclaimant’s or appellant’s

identity, we decline to make such a determination. We use the original caption in this

case because that caption was never properly amended. Further, without resolving the

actual identity of the appellant, we refer to the appellant as “Harding” and “it” and we

refer to Ty Harding as an individual only in association with his deposition testimony.

¶23 1. Did the District Court abuse its discretion by failing to hold a hearing or
obtain the parties’ express waiver of a hearing before granting SVKV summary
judgment on Harding’s counterclaims?

¶24   Harding asserts it was “caught off guard” by the District Court’s order granting

SVKV summary judgment because it expected that, before granting summary judgment,

                                            7
the court would schedule a hearing or obtain the parties’ express waiver of the hearing.

Harding does not dispute that the scheduling orders state without equivocation that the

District Court would determine a party waived the right to a hearing on a summary

judgment motion if the party did not request a hearing before the close of briefing. Nor

does Harding dispute that it failed to respond when SVKV filed and served its Notice that

neither party had requested a hearing before the end of briefing and the matter was

submitted for decision.

¶25    Harding argues that—despite the scheduling orders and its failure to respond to

SVKV’s Notice—this Court’s prior cases require a court to schedule a hearing or obtain

express waivers from the parties before granting summary judgment. On this basis,

Harding contends the District Court abused its discretion by granting summary judgment

without a hearing and denying Harding’s post-judgment motion for a hearing. As the

following somewhat detailed discussion bears out, we conclude Cole v. Flathead County,

236 Mont. 412, 771 P.2d 97 (1989)—one case advanced by Harding—controls here.

¶26    In Cole, the district court granted the defendants’ summary judgment motion,

without a hearing, on grounds that the plaintiffs had not filed a response brief within ten

days, the time limit set forth in Rule 2(a) of the Montana Uniform District Court Rules

(MUDCR). Cole, 236 Mont. at 414, 771 P.2d at 98. In doing so, the district court

apparently relied on Rule 2(b), MUDCR, which states, in part, that “[f]ailure to file briefs

may subject the motion to summary ruling . . . . Failure to file an answer brief by the

adverse party within ten days shall be deemed an admission that the motion is well

taken.” Cole, 236 Mont. at 415, 771 P.2d at 99. On appeal, the issues were whether the

time limit for filing a response brief in Rule 2, MUDCR, applied to summary judgment

                                             8
motions, whether a party is entitled to rely upon the setting of a hearing or oral argument

on a motion for summary judgment, and whether any conflict existed among the

MUDCR, the Montana Rules of Civil Procedure and the district court’s Policies and

Procedures. Cole, 236 Mont. at 413-14, 771 P.2d at 98.

¶27   Addressing the first issue, we noted Rule 56(c), M.R.Civ.P., allows a party to

serve affidavits opposing a summary judgment motion “prior to the day of hearing,” and

a court may consider oral testimony at a summary judgment hearing. Cole, 236 Mont. at

415-16, 771 P.2d at 99. Accordingly, we determined the time limit for briefing set forth

in Rule 2(a), MUDCR, conflicted with Rule 56(c), M.R.Civ.P., which authorizes a court

to grant summary judgment only if, among other things, no genuine issues of material

fact exist—an “inquiry [that] does not admit of decision merely on a technical point, such

as whether briefs have been filed on time.” Pursuant to Rule 2(e), MUDCR—which

provides that in the event of a conflict, the Montana Rules of Civil Procedure control—

we concluded that the 10-day time limit contained in Rule 2(a), MUDCR, did not apply

to summary judgment motions. Cole, 236 Mont. at 416-17, 771 P.2d at 100.

¶28   We next addressed the remaining issues, both of which we characterized as related

to the question of the necessity of a hearing in connection with a summary judgment

motion. Cole, 236 Mont. at 417, 771 P.2d at 100. Noting that either party “could have

applied to the [d]istrict [c]ourt for a hearing,” we opined that the parties “may have been

deterred” in that respect by a provision in the district court’s Policies and Procedures.

Cole, 236 Mont. at 417-18, 771 P.2d at 100. The Policies and Procedures provision

stated that the district court’s “‘practice will be to discourage’” oral arguments and that

the court would require “‘full-fledged compliance’” with Rules 2(c) and (d), MUDCR—

                                            9
by which the court meant a request for oral argument “‘must be couched in specific

terms, to show me that briefs alone are insufficient to advise me fully of your client’s

contentions and all relevant points of law.’” Cole, 236 Mont. at 418, 771 P.2d at 101. In

this regard, we note Rules 2(c) and (d), MUDCR, unchanged since that time, read as

follows:

      (c) Oral argument. The court may order oral argument sua sponte or upon
      application of a party.
      (d) When motion deemed submitted. Unless oral argument is ordered or
      unless the time is enlarged by the court, the motion is deemed submitted at
      the expiration of any of the applicable time limits set forth above without
      supporting briefs having been filed.
             If oral argument is ordered, the motion will be deemed submitted at
      the close of argument unless the court orders additional briefs, in which
      case the motion will be deemed submitted as of the date designated as the
      time for filing the final brief.

¶29   On appeal in Cole, we quoted Dredge Corp. v. Penny, 338 F.2d 456, 461-62 (9th

Cir. 1964)—a case involving a local rule that effectively precluded an adverse party from

requesting a hearing by requiring that such a request be attached to the underlying

motion—for its statement that

      Rule[s] 56(c), 78 and 83, read together, authorize district courts to provide
      by a rule that a party desiring oral argument on a motion for summary
      judgment must apply therefore, in the absence of which oral argument will
      be deemed to have been waived. Such a local rule was involved, and
      upheld, in Bagby v. United States [(8th Cir. 1952), 199 F.2d 233].

Cole, 236 Mont. at 418, 771 P.2d at 101. We also determined that:

      [i]n view of the language of Rule 56(c), and having in mind that the
      granting of such a motion disposes of the action on the merits, with
      prejudice, a district court may not, by rule or otherwise, preclude a party
      from requesting oral argument, nor deny such a request when made by a
      party opposing the motion unless the motion for summary judgment is
      denied.

Cole, 236 Mont. at 418, 771 P.2d at 101. (Emphasis added).

                                           10
¶30    Subsequently, the Court stated “[w]e hold, therefore, that unless the right to a

hearing on a Rule 56 motion is specifically waived by all parties (and not waived simply

by the failure to file briefs) either the movant or the adverse parties are entitled to a

hearing under Rule 56 in the ordinary case.” The Court acknowledged that a trial court

might dispense with a hearing if the moving party were “clearly entitled” to judgment as

a matter of law, but determined that situation was not present there. Finally, the Court

observed the district court’s “findings of fact and conclusions of law” did not include a

determination that no genuine issue of material fact existed and, therefore, did not specify

the grounds for granting the motion with sufficient particularity as to apprise the parties

and appellate court of its rationale, as required by Rule 52(a), M.R.Civ.P. Consequently,

the Court reversed the order granting summary judgment and remanded. Cole, 236 Mont.

at 419, 771 P.2d at 101-02.

¶31    In Cole, we distinguished the acceptable trial court practice of requiring parties to

request an oral argument or hearing from a rule deterring or precluding a party from

making such a request—such as the Policies and Procedures provision in Cole and the

“attachment” requirement in Dredge Corp. Our acknowledgment in Cole that either

party could have applied for a hearing, although the parties in that case might have been

deterred by the district court’s Policies and Procedures, was entirely consistent with this

distinction. See Cole, 236 Mont. at 417-18, 771 P.2d at 100. Thus, in Cole, we expressly

approved requirements for parties to request summary judgment hearings, so long as

courts do not preclude or deter such requests.

¶32    Regarding our statement in Cole that a party must have “specifically waived” the

right to a hearing on a summary judgment motion, that statement also includes the

                                            11
parenthetical phrase “and not waived simply by the failure to file briefs.” Cole, 236

Mont. at 419, 771 P.2d at 101. This parenthetical phrase—which has not been carried

forward in the post-Cole cases mentioned below that refer to “specific” or “explicit”

waiver—establishes that, in Cole, we rejected any notion that a party could waive the

right to a hearing by merely failing to file a brief. We did not address in Cole whether

“specific” or “explicit” waiver could occur if a party failed to request a hearing in the

face of a requirement for such a request; however, that interpretation is supported by

Cole’s favorable citation of Dredge Corp. At the very least, the language in Cole

regarding “specific” waiver, as opposed to waiver by failing to file a response brief, in no

way contradicts the earlier—almost immediately preceding—statement that a trial court

may require a party to apply for a summary judgment hearing and, absent such a request,

deem the right to a hearing waived.

¶33    Here, the District Court’s scheduling orders provided that a party could request

oral argument or hearing at any time during briefing on the motion. As discussed above,

that requirement is entirely consistent with—and expressly authorized by—Cole.

Harding has advanced nothing of record suggesting that the District Court precluded or

deterred it from requesting a hearing; indeed, the scheduling orders state in bold print that

parties could submit a written request during briefing. Thus, the District Court’s grant of

summary judgment without a hearing is consistent with Cole.

¶34    Harding also relies on post-Cole cases in support of its position that a hearing was

required in this case. It advances Aetna Life Ins. Co. v. Jordan, 254 Mont. 208, 211, 835

P.2d 770, 772 (1992), for the proposition that a district court may not preclude a party

from requesting oral argument on a summary judgment motion or deny such a request by

                                             12
the party opposing the motion unless the motion for summary judgment is denied. In

addition, Harding relies on Estate of Schwabe v. Custer’s Inn, 2000 MT 325, ¶ 55, 303

Mont. 15, ¶ 55, 15 P.3d 903, ¶ 55, regarding the statement that “[a]s a general rule, an

oral argument is required for summary judgment unless it is specifically waived by all

parties”—a statement we made before declining to address a party’s assertion that it was

entitled to a second summary judgment hearing because that assertion was raised for the

first time on appeal. See Estate of Schwabe, ¶¶ 56-57. In this regard, we note that other

cases include similar “specifically waived” or “explicitly waived” language. See, e.g.,

Virginia City, ¶ 15; Linn v. City County Health Dept., 1999 MT 235, ¶ 8, 296 Mont. 145,

¶ 8, 988 P.2d 302, ¶ 8. Harding also advances Konitz v. Claver, 1998 MT 27, ¶ 31, 287

Mont. 301, ¶ 31, 954 P.2d 1138, ¶ 31, in which we agreed with a contention that parties

are entitled as a matter of right to a hearing on a motion for summary judgment.

¶35    As in Cole, these statements in post-Cole cases establish that a party is entitled to a

summary judgment hearing and a court may not deter or preclude a party from requesting

one. Nothing in our post-Cole cases has altered our statement in Cole that a court may

require parties to request hearings on summary judgment motions. Nor have any of our

post-Cole cases addressed the issue presented here: whether a party who fails to timely

request a hearing on a summary judgment motion—despite a requirement for such a

request—is nevertheless entitled to a hearing, especially after the trial court has ruled on

the motion.

¶36    It is undisputed that Harding did not request a hearing or assert its right to a

hearing until after the District Court entered summary judgment for SVKV—despite

receiving ample notice, via the scheduling orders and SVKV’s Notice, that the District

                                             13
Court would deem the hearing waived and decide the motion without a hearing unless a

party requested one. As noted above, Harding has advanced nothing to suggest the

District Court precluded or deterred it from requesting a hearing on SVKV’s summary

judgment motion or otherwise interfered with its right to a hearing.        Given these

circumstances and our case law, Harding has not established that in granting summary

judgment without a hearing, the District Court acted arbitrarily, without employment of

conscientious judgment, or exceeded the bounds of reason resulting in substantial

injustice. See Pumphrey, ¶ 16.

¶37   We hold the District Court did not abuse its discretion by granting summary

judgment to SVKV on Harding’s counterclaims without first holding a hearing.

¶38   2. Did the District Court err in granting summary judgment?

¶39   Harding asserts entitlement to payments from SVKV based on certain provisions

in the 1996 contract and 1998 agreement. Paragraph 3.3 of the 1996 contract states that

Northern agreed to pay to Bee Hive

      [a]s consideration for the consulting services described in paragraph 2, six
      percent (6%) of the gross rents payable monthly, beginning sixty (60) days
      after issuance of the occupancy permit on the first five (5) Homes, four
      percent (4%) after the sixth Home occupancy permit is issued and ending
      ten (10) years after said date. After ten (10) years, Northern shall pay two
      percent (2%) of the gross rents in perpetuity.

Paragraph 2.1 of the 1998 agreement between Harding and Bee Hive reads as follows:

      Grant of Franchise. Subject to the terms and conditions contained in this
      Agreement, Franchisor [Bee Hive] hereby grants to Sub-Franchisor
      [Harding], and Sub-Franchisor hereby accepts, the exclusive right to build,
      own, and operate Bee Hive Homes (under the franchise agreement . . . ) and
      to sell franchises on Franchisor’s behalf of Homes using the System under
      the Names and Marks within [Montana].



                                          14
Paragraph 3.2 of the 1998 agreement states

      Franchise Fee. Sub-Franchisor hereby promises and agrees to pay to
      Franchisor a franchise fee (the “Franchise Fee”) in the amount of Fifty
      Percent (50%) of: (I) the Franchise Fees payable under the Franchise
      Agreement for each franchise acquired and owned by Sub-Franchisor in the
      Area, provided that no Franchise Fees shall be paid on the first 8 franchises
      acquired and owned by the Sub-Franchisor in the Area and (ii) [sic] the
      Franchise fees payable under the Franchise agreement for each franchise
      sold by Sub-Franchisee [sic] in the Area, such Franchise Fees to be payable
      upon the execution and delivery of the Franchise Agreement.

Paragraph 3.3 of the 1998 agreement states

      Royalty. In addition to the Franchise Fee, Sub-Franchisor promises and
      agrees to pay to Franchisor a royalty (the “Royalty”) in the amount of (I)
      Fifty Percent (50%) of the Franchise Royalties, including interest and
      penalties, payable by Sub-Franchisor on the first 8 (eight) franchises
      acquired and owned by the Sub-Franchisor in the Area; (ii) [sic] Fifty
      Percent (50%) of the Franchise Royalties, including interest and penalties,
      payable by Sub-Franchisor on the 9th and each additional franchise acquired
      and owned by the Sub-Franchisor in the Area and (iii) [sic] Fifty Percent
      (50%) of the Franchise Royalties, including interest and penalties, received
      by Sub-Franchisor from the Franchisee of each franchise sold in the Area.
      The Royalty is due and payable on or before the 15th day of the month
      following the calendar month for which the Franchise Royalties are
      required to be paid by the Franchisee and the Sub-Franchisor under their
      respective Franchise Agreements.

¶40   Harding contends that a genuine issue of material fact exists with respect to

whether the parties to the 1998 agreement—Harding and Bee Hive—intended to assign

Bee Hive’s rights under the 1996 contract, including the right to collect money, to

Harding.   In this regard, Harding correctly notes that nothing in the 1996 contract

prohibits assignments. SVKV responds that the 1998 agreement, by its terms, applies

only to franchises, and Harding has not raised a genuine issue of material fact or a valid

legal argument to refute SVKV’s position that its homes were not franchises. In granting

summary judgment to SVKV, the District Court reasoned that, “[w]hile there may be


                                             15
contractual obligations between SVKV and [Bee Hive], there is simply no evidence of

privity between Harding and SVKV.” On that basis, the trial court determined no

genuine issue of material fact existed, and SVKV was entitled to judgment as a matter of

law.

¶41    Replying to SVKV’s argument that the 1998 agreement does not apply to

franchises, Harding asserts that if parties to a contract have given a contract term a

special meaning, they should be able to advise a court of that special meaning. In this

respect, Harding relies on 360 Ranch Corp. v. R & D Holding (1996), 278 Mont. 487,

491-92, 926 P.2d 260, 262-63, in which we determined an affidavit—and, more

importantly, the language of the agreement at issue—constituted evidence contradicting

the district court’s determination that no genuine issue of material fact existed regarding

the contract parties’ intent. Because 360 Ranch Corp. did not address a special meaning

attributed to a term by contract parties, that case does not support Harding’s position.

¶42    Section 28-3-501, MCA, however, provides that

       [t]he words of a contract are to be understood in their ordinary and popular
       sense rather than according to their strict legal meaning unless used by the
       parties in a technical sense or unless a special meaning is given to them by
       usage, in which case the latter must be followed.

Although not entirely clear, it appears Harding’s argument is that Bee Hive and Harding

gave a special meaning to the term “franchises” in the 1998 agreement. In this regard,

Bee Hive president Twayne Walker’s affidavit speaks to his interpretation of the 1998

agreement as a whole, rather than to any special meaning of the term “franchises.” More

importantly, Ty Harding testified in his deposition that he did not regard the Vivrettes as

franchise holders and that he viewed the 1996 contract between Bee Hive and Northern


                                             16
as an operating agreement rather than a franchise agreement. Based on this testimony,

we conclude Harding has failed to establish a genuine issue of material fact with respect

to whether any special meaning ascribed by the 1998 agreement parties to the term

“franchises” encompasses SVKV’s homes.

¶43    Harding also asserts that the language of the 1998 agreement supports his position

that Bee Hive assigned Harding its rights under the 1996 contract. The interpretation of a

contract is a question of law. When the contract has been reduced to writing, the parties’

intention is to be ascertained, if possible, from the writing alone; thus, if a contract’s

terms are clear and unambiguous, a court must apply the language as written. Wurl v.

Polson School Dist. No. 23, 2006 MT 8, ¶ 16, 330 Mont. 282, ¶ 16, 127 P.3d 436, ¶ 16

(citations omitted). An ambiguity exists where the language of a contract, as a whole, is

reasonably subject to two or more interpretations. When a contract term is ambiguous,

interpretation of the term involves determining a question of fact regarding the parties’

intent. The initial determination of whether an ambiguity exists, however, is a question

of law for a court to determine. Wurl, ¶ 17 (citations omitted).

¶44    First, Harding contends that—because ¶ 2.1 specifically refers to homes using the

Bee Hive system—a reasonable interpretation of the 1998 agreement is that it assigned

Bee Hive’s rights to collect fees from all homes in Montana, including SVKV’s homes.

We disagree. Paragraph 2.1 states that Bee Hive granted to Harding “the exclusive right

to build, own, and operate Bee Hive Homes (under the franchise agreement . . . ) and to

sell franchises on [Bee Hive’s] behalf[.]” Given Ty Harding’s testimony establishing the

1998 agreement parties’ special meaning of the term “franchises” did not encompass

SVKV’s homes, discussed above, it is not reasonable to interpret ¶ 2.1 as applicable to

                                            17
SVKV’s homes. Thus, we conclude ¶ 2.1 does not create an ambiguity with respect to

whether the 1998 agreement authorized Harding to collect fees from SVKV pursuant to

the 1996 contract.

¶45    Next, Harding argues that, by explicitly requiring it to pay Bee Hive 50% of

franchise fees and royalties, ¶¶ 3.2 and 3.3 of the 1998 agreement implicitly authorize

Harding to collect 100% of the franchise fees and royalties. From that premise, Harding

asserts “the only logical interpretation of the [1998 agreement] is that Bee Hive intended

to assign all of its rights and obligations under the [1996] Contract to Harding, including

the right to collect all fees[.]” Harding also advances § 28-3-201, MCA, which states “[a]

contract must receive such an interpretation as will make it lawful, operative, definite,

reasonable, and capable of being carried into effect if it can be done without violating the

intention of the parties.”

¶46    Assuming arguendo that the 1998 agreement implicitly authorizes Harding to

collect franchise fees and royalties in general, the issue here is whether Harding has the

right to collect franchise fees and royalties from SVKV. By their terms, ¶¶ 3.2 and 3.3

apply only to “franchises” and, as addressed above, Ty Harding’s testimony establishes

that the special meaning ascribed by the 1998 agreement parties to the term “franchises”

did not encompass SVKV’s homes.          In addition, we observe the record lacks any

evidence—or, indeed, any argument—that the franchise fees and royalties mentioned in

¶¶ 3.2 and 3.3 of the 1998 agreement are related in any way to ¶ 3.3 of the 1996 contract,

in which Northern agreed to pay Bee Hive percentages of its homes’ gross rents for

“consulting services.” Thus, we conclude ¶¶ 3.2 and 3.3 do not create an ambiguity

regarding whether the 1998 agreement authorizes Harding to collect payments from

                                            18
SVKV pursuant to the 1996 contract. Having concluded that none of the paragraphs

advanced by Harding creates an ambiguity, we further conclude that the 1998 agreement

unambiguously does not apply to SVKV’s homes and, thus, does not constitute an

assignment of any of Bee Hive’s rights under the 1996 contract to Harding.

¶47    Harding argues, however, that despite the inclusion of a merger clause in the 1998

agreement, extrinsic evidence—including Walker’s affidavit and Ty Harding’s deposition

testimony—is admissible to demonstrate Bee Hive’s intent to assign its rights under the

1996 contract. We reiterate that, in interpreting a contract, we first ascertain the parties’

intent from the writing alone, and resort to extrinsic evidence only if the contract is

ambiguous on its face. Stockman Bank of Montana v. Potts, 2002 MT 178, ¶ 21, 311

Mont. 12, ¶ 21, 52 P.3d 920, ¶ 21 (citation omitted). Here, we have concluded—as a

matter of law—that the 1998 agreement unambiguously does not authorize Harding to

collect from SVKV. Thus, no fact question regarding the 1998 agreement parties’ intent

exists, and extrinsic evidence is not admissible.

¶48    Finally, Harding asserts genuine issues of material fact remain regarding its fraud

and unjust enrichment counterclaims.        Harding concedes its fraud counterclaim is

dependent on whether Bee Hive assigned its rights under the 1996 contract. Because we

have determined the 1998 agreement did not apply to SVKV’s homes and no assignment

of Bee Hive’s rights under the 1996 contract occurred, we need not further address

Harding’s fraud counterclaim.

¶49    Harding also contends, however, that its unjust enrichment counterclaim is not

dependent on its contractual privity. Harding did not make this argument in the District

Court, despite SVKV’s clear assertion that Harding’s fraud and unjust enrichment

                                             19
counterclaims were both dependent on Harding’s privity of contract. While this Court

reviews orders granting summary judgment de novo, we also generally do not address

issues raised for the first time on appeal. See, e.g., Andersen v. Monforton, 2005 MT 310,

¶ 30, 329 Mont. 460, ¶ 30, 125 P.3d 614, ¶ 30 (citation omitted). Thus, we decline to

address Harding’s contention further.

¶50    We hold the District Court did not err in granting summary judgment to SVKV on

Harding’s counterclaims.

¶51    3. Is SVKV entitled to attorney’s fees or costs on appeal?

¶52    SVKV requests attorney’s fees and costs on appeal.           First, noting Harding’s

counterclaims were based on the 1996 contract, SVKV relies on a provision of that

contract stating that the prevailing party in an action to enforce a provision of the contract

is entitled to costs and attorney’s fees on appeal. SVKV advances no authority, however,

for the proposition that we may require an unsuccessful litigant—as Harding is here on

appeal—to pay costs or attorney’s fees on appeal under a contract provision, after we

have determined that litigant was not in privity to the contract.             Rule 23(a)(4),

M.R.App.P., requires an appellant to support arguments with citations to relevant

authorities. See In re Marriage of Markegard, 2006 MT 111, ¶ 34, 332 Mont. 187, ¶ 34,

136 P.3d 532, ¶ 34 (citation omitted). Rule 23(b), M.R.App.P., requires the same of

respondents. Absent authority, we decline to further address SVKV’s request for costs

and attorney’s fees on appeal based on the contractual provision.

¶53    Regarding costs on appeal, SVKV also relies on § 25-10-104, MCA, which

provides that, except in certain circumstances not applicable here in which this Court has

discretion to award costs, “the successful party shall recover from the other party his

                                             20
costs.” Rule 33(a), M.R.App.P., states costs will be taxed as provided by § 25-10-104,

MCA, and unless otherwise provided by the Court in its decision, costs will automatically

be awarded to the successful party. Thus, under the circumstances in this case, the

successful party need not request costs on appeal. Although Harding addresses SVKV’s

request for attorney’s fees, Harding does not address SVKV’s request for costs on appeal

pursuant to § 25-10-104, MCA. We have determined the District Court did not abuse its

discretion or err in granting summary judgment to SVKV on Harding’s counterclaims

without a hearing. Therefore, SVKV has successfully defended against Harding’s appeal

and is entitled to its costs on appeal pursuant to § 25-10-104, MCA.

¶54   Affirmed.

                                                /S/ KARLA M. GRAY


We Concur:

/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ JIM RICE
/S/ BRIAN MORRIS




                                           21
Justice James C. Nelson, concurring in part and dissenting in part.

¶55    I concur in the Court’s resolution of Issues Two and Three. However, with respect

to Issue One, while I agree with the Court’s ultimate conclusion that Harding waived its

right to a summary judgment hearing, I dissent from the analysis proffered by the Court

in support of this conclusion.

¶56    In a series of cases beginning with Cole v. Flathead County, 236 Mont. 412, 771

P.2d 97 (1989), this Court established unequivocally that (1) in the ordinary case, both

the movant and the adverse party are “entitled” to a hearing on a motion for summary

judgment and, therefore, a district court may not “preclude” a party from requesting oral

argument nor “deny” such a request when made (unless the motion itself is denied), and

(2) this right to a hearing exists unless it is “specifically waived” by all parties. Given

these mandates, the admonition set forth in the District Court’s scheduling orders in the

case at hand—namely, that a “[h]earing on a motion for summary judgment is deemed

waived unless a written request for hearing is submitted within the time period for filing

the briefs on the motion” (bold typeface omitted, emphasis added)—is of dubious

propriety.   Nevertheless, for the reasons set forth below, the court’s admonition is

reconcilable with Cole and its progeny, though such reconciliation requires further

development of Cole’s waiver rule.

¶57    Rather than take on this task, the Court elects instead to completely rewrite Cole

so that it “authorize[s]” the District Court’s scheduling orders. As explained below,

however, we never in Cole—or in any other case, for that matter—“expressly approved”

or “expressly authorized” the trial court practice of requiring parties to an action to

request a summary judgment hearing or risk waiver. This brand new holding has been

                                            22
fabricated out of thin air by a majority of the Court today and grafted onto the Cole

opinion.

¶58    In a similar vein, several of our post-Cole cases contain misstatements of Cole’s

core holdings.   Yet, rather than deal with these inaccuracies forthrightly, the Court

glosses over them with one sentence. Worse still, the Court purports in that one sentence

to equate the misstatements in our post-Cole cases with the actual holdings in Cole, as if

they all “establish” the same proposition.

¶59    Unfortunately, the inevitable result of the Court’s revisionist approach—as

opposed to overruling or clarifying our precedents based on what they actually say—is a

take-your-pick buffet of legal rules, which in turn creates confusion and unpredictability.

It is therefore necessary to provide an independent discussion of Issue One—one which

rests on the actual holdings of Cole and which also clarifies the cases containing

inaccurate restatements of Cole’s holdings.

¶60    In Cole, we addressed two procedural rules relied on by the district court in

granting Flathead County’s motions for summary judgment under M. R. Civ. P. 56(c).

First, Rule 2 of the Montana Uniform District Court Rules (“M. U. D. C. R.”) provided

that “ ‘[f]ailure to file an answer brief by the adverse party within ten days shall be

deemed an admission that the motion is well taken.’ ” Cole, 236 Mont. at 415, 771 P.2d

at 99 (some emphasis omitted) (quoting M. U. D. C. R. 2(b)). Since the Coles had not

filed a responsive brief to the County’s motions within the ten days prescribed by Rule

2(b), the district court deemed this an admission that the motions were well taken and,

accordingly, granted the motions.



                                              23
¶61    On appeal, we observed that by relying on Rule 2(b), the district court had decided

the County’s motions “on a technical point,” which was contrary to the purpose of a

motion under Rule 56—namely, “to dispose promptly of actions in which there is no

genuine issue of fact.” Cole, 236 Mont. at 415, 416, 771 P.2d at 99, 100. Thus, because

“the essential question for the District Court in deciding a motion for summary judgment

either for the plaintiff or for the defendant is whether there exists a genuine issue of

material fact,” Cole, 236 Mont. at 416, 771 P.2d at 100, we held that the portion of Rule 2

which deemed a party’s failure to file an answer brief within ten days as “an admission

that the motion is well taken” did not apply to motions for summary judgment, Cole, 236

Mont. at 417, 771 P.2d at 100.

¶62    The second rule we addressed in Cole was a local rule adopted by the district court

which stated that

       unless I am satisfied that oral argument would be beneficial (in which case
       I may call for it, sua sponte), my practice will be to discourage this
       occasionally wasteful use of the Court’s (and your) time, and to require
       full-fledged compliance with Rule 2(c) and (d), Uniform Rules. By “full-
       fledged,” I mean your application for leave to present oral argument must
       be couched in specific terms, to show me that briefs alone are insufficient
       to advise me fully of your client’s contentions and all relevant points of
       law.

Cole, 236 Mont. at 418, 771 P.2d at 101 (some internal quotation marks omitted).

¶63    Relying on this rule, the district court had denied the Coles’ post-judgment motion

to set aside the order granting summary judgment and their concomitant request for oral

argument. We determined that this was error, reasoning as follows:

       [U]nder Rule 56(c), a hearing is contemplated from which the district court
       will consider not so much legal arguments, but rather whether there exists
       genuine issues of material fact. Moreover, it is permissible under Rule 56


                                            24
       for the District Court to receive affidavits on the day of the hearing and to
       take oral evidence, as has been indicated above.

Cole, 236 Mont. at 418, 771 P.2d at 101.

¶64    Accordingly, based on the language of Rule 56(c) and the fact that the granting of

a motion for summary judgment disposes of the action on the merits with prejudice, we

held that a district court may not, by rule or otherwise, “preclude a party from requesting

oral argument, nor deny such a request when made by a party opposing the motion unless

the motion for summary judgment is denied.” Cole, 236 Mont. at 418, 771 P.2d at 101

(emphases added). In addition, we further held that “unless the right to a hearing on a

Rule 56 motion is specifically waived by all parties (and not waived simply by the failure

to file briefs) either the movant or the adverse parties are entitled to a hearing under Rule

56 in the ordinary case.” Cole, 236 Mont. at 419, 771 P.2d at 101 (emphasis added).

Finally, we made allowance for the unusual case by noting that “[t]here may be an

occasion when under the law and the facts adduced, the movant would be so clearly

entitled as a matter of law to a summary judgment that a district court might by order

dispense with the necessity of a hearing.” Cole, 236 Mont. at 419, 771 P.2d at 101

(emphasis added).

¶65    Thus, we specifically established in Cole that a hearing on a Rule 56 motion is a

matter of right and that inaction by itself (such as failing to file a responsive brief, as was

the case in Cole) does not constitute a waiver of this right. A review of our subsequent

precedents reveals that we have remained faithful to these holdings in a variety of

contexts.




                                              25
¶66    First, in Aetna Life Ins. Co. v. Jordan, 254 Mont. 208, 210-12, 835 P.2d 770, 772-

73 (1992), we confirmed the holdings of Cole but then determined that the district court

had properly reinstated its order granting summary judgment to Aetna because the

Jordans had “admitted” in their brief in support of their post-judgment motions that there

were “no fact questions” precluding summary judgment. Then, in Konitz v. Claver, 1998

MT 27, 287 Mont. 301, 954 P.2d 1138, we agreed with Claver that, pursuant to Rule 56

and our holding in Cole, “the parties are entitled as a matter of right to a hearing on a

motion for summary judgment,” but we did not agree that the party opposing the motion

is “entitled to testify without prior notice” at that hearing. Konitz, ¶ 31. Rather, we

concluded that a district court’s decision whether to allow the party opposing the motion

to testify is “a discretionary ruling.” Konitz, ¶ 32.

¶67    Next, in Linn v. City County Health Dept., 1999 MT 235, 296 Mont. 145, 988 P.2d

302, we first stated that “[i]n the ordinary case, the parties have a right to a summary

judgment hearing unless the hearing is explicitly waived.” Linn, ¶ 8. We then noted our

allowance in Cole for “the unusual case”—i.e., when under the law and the facts

adduced, the movant is so “ ‘clearly entitled’ ” as a matter of law to a summary judgment

that a district court might, by order, dispense with the necessity of a hearing. Linn, ¶ 8

(quoting Cole, 236 Mont. at 419, 771 P.2d at 101). Examining the facts before us to

determine whether this exception applied, we concluded that the City County Health

Department “was not so clearly entitled to judgment as a matter of law as to make this

case the exception to the general rule that a party is entitled to a hearing before having

her claim dismissed by summary judgment.” Linn, ¶ 10. We therefore reversed the

district court’s grant of summary judgment in the absence of a hearing.

                                              26
¶68   In Estate of Schwabe v. Custer’s Inn, 2000 MT 325, 303 Mont. 15, 15 P.3d 903,

we were presented with the question of whether parties are entitled to a second summary

judgment hearing. The district court had held a hearing on the parties’ cross motions for

summary judgment and thereafter had issued an order denying both motions. Schwabe,

¶ 52. However, four months later, after “new evidence or new materials” had arisen, the

district court revisited its ruling and entered summary judgment in favor of Custer’s Inn.

Schwabe, ¶¶ 52-53.

¶69   Reviewing the district court’s actions, we reaffirmed that

      [a]s a general rule, an oral argument is required for summary judgment
      unless it is specifically waived by all parties. See Cole v. Flathead County
      (1989), 236 Mont. 412, 418-19, 771 P.2d 97, 101; Linn v. City County
      Health Dept., 1999 MT 235, ¶ 8, 296 Mont. 145, ¶ 8, 988 P.2d 302, ¶ 8.
      This Court has stated that a district court may not, by rule or otherwise,
      preclude a party from requesting oral argument, nor deny such a request
      when made by a party opposing the motion. See Aetna Life Ins. Co. v.
      Jordan (1992), 254 Mont. 208, 211, 835 P.2d 770, 772 (quoting Cole, 236
      Mont. at 418, 771 P.2d at 101).

Schwabe, ¶ 55.    However, a summary judgment hearing had, in fact, been held on

Custer’s Inn’s motion. Thus, the issue was whether the district court was required to

afford the Estate a second summary judgment hearing when the court revisited its order

denying that motion. We declined to answer this question, since the Estate had neither

objected to the district court’s entry of judgment without a second hearing (or adequate

notice thereof) nor requested such a hearing.       Schwabe, ¶¶ 56-57.      We therefore

concluded that the district court did not abuse its discretion when it entered summary

judgment in favor of Custer’s Inn. Schwabe, ¶ 58.

¶70   Lastly, in Virginia City v. Olsen, 2002 MT 176, 310 Mont. 527, 52 P.3d 383, our

most recent decision applying Cole, we were presented again with the “clearly entitled”

                                           27
exception previously discussed in Linn. After stating the general principle that “in the

ordinary case the parties have a right to a summary judgment hearing unless the hearing

is explicitly waived,” Virginia City, ¶ 15 (citing Linn, ¶ 8), we reiterated that “ ‘[t]here

may be an occasion when under the law and the facts adduced, the movant would be so

clearly entitled as a matter of law to a summary judgment that a district court might by

order dispense with the necessity of a hearing,’ ” Virginia City, ¶ 16 (alteration in

original) (quoting Cole, 236 Mont. at 419, 771 P.2d at 101).

¶71    We could not, however, ascertain whether this exception applied on the facts of

the case, since the district court had neither entered an order dispensing with the necessity

of a hearing nor specified “with sufficient particularity,” as required by M. R. Civ. P.

52(a), the grounds underlying its grant of summary judgment to Virginia City. Virginia

City, ¶¶ 16-20. Furthermore, the only hearing afforded the parties had taken place before

discovery was conducted or responsive pleadings were filed. Consequently, we saw “no

reason in this case to depart from the general rule that a party opposing a summary

judgment motion is entitled to a hearing in order to establish genuine issues of material

fact pursuant to Rule 56(c), M.R.Civ.P.,” Virginia City, ¶ 23, and we concluded,

accordingly, that Olsen and his co-defendant, Mason, were “entitled to a further

evidentiary hearing prior to entry of a determination of the merits in this case,” Virginia

City, ¶ 24.

¶72    Thus, to summarize, our cases establish that both the movant and the adverse party

are “entitled” to a hearing on a motion for summary judgment, unless that right is

“specifically waived” by all parties, unless the motion is denied, or unless the movant is

so “clearly entitled” to summary judgment under the law and the facts adduced that the

                                             28
court might, by order, dispense with the necessity of a hearing. In addition, the court

must specify with sufficient particularity (pursuant to M. R. Civ. P. 52(a)) the grounds

underlying its ruling.

¶73    Before applying these principles to the case at hand, it is necessary to do what the

Court has not: address our slight—but nevertheless significant—misstatements of Cole’s

waiver rule in Linn and Virginia City. First, we stated in Linn that “[i]n the ordinary case,

the parties have a right to a summary judgment hearing unless the hearing is explicitly

waived.” Linn, ¶ 8 (emphases added). Similarly, in Virginia City we again stated that “in

the ordinary case the parties have a right to a summary judgment hearing unless the

hearing is explicitly waived.” Virginia City, ¶ 15 (emphases added) (citing Linn, ¶ 8).

Yet, our original statement of the waiver rule in Cole was that “unless the right to a

hearing on a Rule 56 motion is specifically waived by all parties (and not waived simply

by the failure to file briefs) either the movant or the adverse parties are entitled to a

hearing under Rule 56 in the ordinary case.” Cole, 236 Mont. at 419, 771 P.2d at 101

(emphases added). In other words, under Cole, it is the right, not the hearing, which must

be waived. Furthermore, and of particular significance in the case at hand, the right must

be waived specifically, not necessarily explicitly.

¶74    The significance of this latter distinction is in the fact that an “explicit” waiver rule

may be interpreted as requiring a narrower or heightened standard. In point of fact,

“specific” and “explicit,” while close in meaning, are not identical in meaning.

“Specific” has been defined as “clearly distinguished, stated or understood,” The New

Lexicon Webster’s Encyclopedic Dictionary of the English Language 954 (deluxe ed.,

Lexicon Publications 1992), while “explicit” has been defined as “clearly and openly

                                              29
stated or defined, not left to be understood,” Webster’s Encyclopedic Dictionary 333; see

also Merriam Webster’s Collegiate Dictionary 409 (10th ed., Merriam-Webster 1997)

(“EXPLICIT implies such verbal plainness and distinctness that there is no need for

inference and no room for difficulty in understanding.”). Certainly, something which is

“left to be understood” may nevertheless become “clearly . . . understood.” Restated,

something may be “clearly . . . understood,” though it was not “openly stated.” Indeed,

“implicit” has been defined as “understood though not stated.” Webster’s Encyclopedic

Dictionary 486. Thus, a specific waiver is not necessarily made explicitly (though

explicit waivers unquestionably are the norm). Rather, there may be narrowly-defined

circumstances in which the party’s waiver is “clearly . . . understood,” though it was not

“openly stated” (the case at hand being one example, as discussed below). Perhaps, then,

the most pertinent definition of “specific” in this context is “free from ambiguity.”

Merriam Webster’s Collegiate Dictionary 1128. 1

¶75    Given both the distinction between “specific” and “explicit” and the fact that our

use of the latter term in Linn and Virginia City was in the context of reciting established

law, as opposed to engaging in a reasoned narrowing of Cole’s waiver rule, it would be


       1
          Lest the foregoing distinction between “specific” and “explicit” be perceived as
splitting hairs or a “battle of the dictionaries”—indeed, some dictionaries list “explicit” as
one definition of “specific,” see, e.g., Black’s Law Dictionary 1434 (Bryan A. Garner ed.,
8th ed., West 2004); Webster’s New World College Dictionary 1376 (Michael Agnes ed.,
4th ed., Wiley Publishing 2002)—the point to be made here is this: We should not leave
these two terms open to as many interpretations as there are dictionaries and district court
judges in this state. Otherwise, one district court could proceed under a dictionary
definition which equates “specifically” with “explicitly” (in which case a waiver that is
not clearly and openly stated would be insufficient), while another could adopt a
definition under which “specific” encompasses both “explicit” and “implicit” (in which
case a waiver that is understood though not stated would be sufficient in certain
situations), thus leading to inconsistent results based on nothing more than happenstance.
                                             30
inappropriate not to abide by our original “specifically waived” language.            The

“explicitly waived” rule in Linn and Virginia City, therefore, should be overruled. It

should not be characterized as merely the equivalent of “specifically waived,” as the

Court does today (see ¶¶ 34-35). (In this regard, I note that the Court provides no

reasoning or authority whatsoever for the proposition that “specifically” and “explicitly”

mean or “establish” the same thing under our Cole jurisprudence.)

¶76    Turning now to the case at hand, it is undisputed that the District Court granted

SVKV’s motion for summary judgment without holding a hearing on the motion. It also

is undisputed that the District Court’s decision to dispense with a hearing was not based

on or supported by a determination that SVKV was “clearly entitled,” under the law and

facts adduced, to summary judgment. Rather, as explained in the court’s order denying

Harding’s post-judgment motion to reconsider and request for hearing, the court relied on

its two scheduling orders (one issued June 24, 2002, and the other September 26, 2003),

both of which stated as follows: “Hearing on a motion for summary judgment is deemed

waived unless a written request for hearing is submitted within the time period for filing

the briefs on the motion” (bold typeface omitted). Because “[t]he Court received no

request for hearing from either party” during this time frame, it “deemed” the hearing

“waived.”

¶77    Thus, the crux of the issue before us is whether Harding “specifically waived” its

right to a summary judgment hearing by failing to submit a written request for a hearing

within the time period for filing the briefs on SVKV’s motion, as mandated by the

District Court’s scheduling orders. In other words, does Harding’s inaction in the face of

the court’s orders constitute a specific waiver?

                                             31
¶78    It cannot be disputed that under the specific language of Cole, inaction alone does

not constitute a waiver of the right to a hearing on a Rule 56 motion. Indeed, we stated

that this right must be “specifically waived” by all parties, and we identified the mere

“failure to file briefs” as a contrasting example of what does not constitute a specific

waiver (which was apropos, given that the grant of summary judgment in Cole was based

on the Coles’ failure to file a responsive brief within the time period provided by

M. U. D. C. R. 2). Cole, 236 Mont. at 414, 419, 771 P.2d at 98, 101. As the Court

observes at ¶ 32, however, we did not address in Cole the question of whether inaction

constitutes a specific waiver where a party fails to request a hearing in the face of a

requirement that it do so. For the reasons which follow, I conclude that it does.

¶79    The importance of hearings on motions for summary judgment cannot be

overstated. Such hearings provide the parties with an opportunity to speak directly to and

interact with the judge and to answer any questions which have arisen upon the judge’s

review of the briefs. They also enable the parties to present more nuanced versions of

their arguments whereas briefs, by contrast, provide comparatively sterile presentations

of the parties’ respective positions. In addition, because the granting of a motion for

summary judgment “disposes of the action on the merits, with prejudice,” Cole, 236

Mont. at 418, 771 P.2d at 101 (emphasis added), a summary judgment hearing is the non-

movant’s last chance to speak in defense of its case. Thus, as we noted in Cole, it is

permissible under Rule 56 for the district court to receive additional evidence, such as

affidavits and oral evidence, on the day of the hearing. Cole, 236 Mont. at 418, 771 P.2d

at 101. It is for these reasons that summary judgment hearings, as opposed to most other

hearings, are a matter of right.

                                            32
¶80    At the same time, however, our holding in Cole that parties have a “right” to a

summary judgment hearing unless it is “specifically waived” was not intended as a tool

by which a party could preclude a court from ever rendering a decision on a motion for

summary judgment or get a second bite at the apple (by forcing the court, post-judgment,

to revisit an adverse summary judgment ruling). Thus, if a district court were to inquire

of a party directly whether it will be requesting a summary judgment hearing, Cole does

not sanction the party’s postponing its response indefinitely under the assumption that the

court will interpret such silence as a “yes” or in the hopes of obtaining some tactical

advantage. Rather, in such circumstances, the party’s failure to respond in a timely

manner to the court’s inquiry must constitute a specific waiver of its right to a hearing.

¶81    This principle mandates the same conclusion with respect to the District Court’s

scheduling orders.    The court informed the parties that a hearing on a motion for

summary judgment is “deemed waived” unless “a written request for hearing is submitted

within the time period for filing the briefs on the motion.” Instructing a party in this

manner that it must request a hearing within a reasonable time frame is not materially

distinguishable—at least not for purposes of honoring the party’s entitlement to a

hearing—from making a specific inquiry of the party as to whether it would like a

hearing. Failure to respond in either situation constitutes a specific waiver.

¶82    Harding cites Schwabe, ¶ 55, for the proposition that if a district court does not

obtain “express” waivers from both parties, it must schedule a summary judgment

hearing. Based on this premise, Harding informs us that it was “caught off guard” by the

District Court’s ruling on SVKV’s motion without first holding a hearing. Harding

further explains that it “simply expected, in accordance with Rule 56(c) and this Court’s

                                             33
prior rulings, that as a matter of course the hearing would be scheduled” (emphasis

added).

¶83    But for the District Court’s scheduling orders, Harding’s assumption would have

been reasonable. As it is, however, Harding’s being “caught off guard” could only be

due to its failure to read those orders in their entirety. More importantly, our case law

does not support Harding’s position.

¶84    To be sure, we stated in Schwabe that, “[a]s a general rule, an oral argument is

required for summary judgment unless it is specifically waived by all parties.” Schwabe,

¶ 55 (emphases added) (citing Cole, 236 Mont. at 418-19, 771 P.2d at 101; Linn, ¶ 8).

This was not to say, however, that an oral argument must be scheduled unless it is

specifically waived. But, to the extent that the foregoing statement in Schwabe could be

read in this manner, it does not constitute an intentional modification of our holdings in

Cole. Rather, it is an imprecise summation of those holdings, in the same sense that our

restatements of Cole’s waiver rule in Linn and Virginia City (“explicitly waived” in place

of “specifically waived”) were inaccurate recitations of established law.

¶85    Again, we held in Cole that the parties are “entitled” to a hearing under Rule 56 in

the ordinary case and that a district court, therefore, may not preclude a party from

requesting oral argument, nor deny such a request when made (except in the unusual case

or if the motion is denied). Furthermore, the parties remain “entitled” to a hearing until

“the right . . . is specifically waived by all parties.” Cole, 236 Mont. at 418-19, 771 P.2d

at 101. However, simply because a party is “entitled” to a hearing, it does not necessarily

follow that a district court must schedule one “as a matter of course.” Nothing in Cole



                                            34
suggests such a rule, and principles of judicial efficiency and fairness counsel against

interpreting Cole in this manner. 2

¶86    Moreover, there is no requirement in our cases that the party’s waiver be made

“express[ly],” a term that “implies both explicitness and direct and positive utterance,”

Merriam Webster’s Collegiate Dictionary 409. As explained above, a specific waiver is

one which is “free from ambiguity,” Merriam Webster’s Collegiate Dictionary 1128,

which can be achieved, in certain narrowly-defined circumstances, without a “direct and

positive utterance.”

¶87    Harding also asserts that the District Court’s scheduling orders come within the

meaning of “otherwise” as that term is used in the following passage from Cole: “a

district court may not, by rule or otherwise, preclude a party from requesting oral

argument, nor deny such a request when made by a party opposing the motion unless the

motion for summary judgment is denied.” Cole, 236 Mont. at 418, 771 P.2d at 101

(emphasis added). Based on this language, Harding maintains that the court’s scheduling

orders “limited [its] right to a hearing.” Yet, the court merely informed the parties that a

hearing on a motion for summary judgment would be deemed waived unless a written

request for hearing was submitted within the time period for filing the briefs on the

motion. Certainly, this admonition neither “preclude[s]” a party from requesting oral

argument nor constitutes a preemptive “den[ial]” of such a request.

¶88    In sum, therefore, I conclude that a party’s failure to request a summary judgment

hearing “within the time period for filing the briefs on the motion” constitutes a specific

       2
        Incidentally, the foregoing quotation from Schwabe is an incorrect restatement of
the law set forth in Linn, where we stated that the right to a summary judgment hearing
must be waived, Linn, ¶ 8, not that oral argument must be waived, Schwabe, ¶ 55.
                                            35
waiver of the party’s right to such a hearing where the party has been clearly,

unambiguously, and timely informed of this requirement. Such are the facts of the case

at hand, since Harding was apprised of the District Court’s waiver rule with respect to

motions for summary judgment in the two scheduling orders, both of which were

provided prior to SVKV’s filing its motion for summary judgment.              Accordingly,

Harding specifically waived its right to a hearing by failing to request one in the allotted

time frame.

¶89    As noted at the outset, the Court reaches the same conclusion, but on an entirely

different basis. Specifically, the foundation of the Court’s analysis under Issue One is its

manifestly incorrect statement that Cole “expressly approved” and “expressly authorized”

the trial court practice of requiring parties to request a summary judgment hearing. First,

the Court assumes the very conclusion it seeks to prove, asserting that “[i]n Cole, we

distinguished the acceptable trial court practice of requiring parties to request an oral

argument or hearing from a rule deterring or precluding a party from making such a

request.” ¶ 31 (emphasis added). Of course, the Court can provide no pinpoint citation

to Cole in support of the proposition that the trial court practice of requiring parties to

request an oral argument or hearing is “acceptable,” because we never said this in Cole.

Indeed, had we actually done so, then Issue One could be resolved with a single citation

to that holding and there would be no need for the Court’s 5½ pages of belabored

discussion (see ¶¶ 26-36). (The Court acknowledges as much with its observation in ¶ 32

and again in ¶ 35 that we did not address in Cole or its progeny the waiver issue

presented in the case at hand.)



                                            36
¶90    The Court then goes on to assert more forcefully that “in Cole, we expressly

approved requirements for parties to request summary judgment hearings, so long as

courts do not preclude or deter such requests.” ¶ 31 (emphasis added); see also ¶ 33

(claiming that the requirement in the District Court’s scheduling orders that a party

request a hearing was “expressly authorized” by Cole). Where in Cole did we “expressly

approve[]” or “expressly authorize[]” such requirements? Nowhere, because those were

not the facts with which we were presented. Rather, as the lack of pinpoint citations

following the Court’s assertions reflects, the genesis of this holding is today’s majority

Opinion.

¶91    The same is also true of the Court’s reference in ¶ 35 to “our statement in Cole

that a court may require parties to request hearings on summary judgment motions.” See

also ¶ 32 (also referring to “the . . . statement [in Cole] that a trial court may require a

party to apply for a summary judgment hearing and, absent such a request, deem the right

to a hearing waived”). We never made such a statement in Cole, and it would be

shocking to see one there given that the district court had not imposed such a requirement

and, thus, we were not presented with facts from which to synthesize such a statement.

(Indeed, the district court had a rule discouraging requests for a summary judgment

hearing.)

¶92    It appears that the departure point for the Court’s flight of fancy is our quotation in

Cole of a 1964 decision by the United States Court of Appeals for the Ninth Circuit. See

¶¶ 31, 32 of the Court’s Opinion. Specifically, we noted that in connection with oral

argument on a Rule 56 motion under the federal counterpart, the Ninth Circuit had held

as follows:

                                             37
       Rule[s] 56(c), 78 and 83, read together, authorize district courts to provide
       by a rule that a party desiring oral argument on a motion for summary
       judgment must apply therefore, in the absence of which oral argument will
       be deemed to have been waived. Such a local rule was involved, and
       upheld, in Bagby v. United States [(8th Cir. 1952), 199 F.2d 233].

Cole, 236 Mont. at 418, 771 P.2d at 101 (alterations in original, internal quotation marks

omitted) (quoting Dredge Corporation v. Penny, 338 F.2d 456, 461-62 (9th Cir. 1964)).

¶93    To the extent this passage from Dredge Corporation is actually relevant to the

issue at hand, it is worth noting that Montana’s Rules of Civil Procedure do not include a

version of Fed. R. Civ. P. 78, which the Ninth Circuit cited for the following proposition:

       [F]or the purpose of expediting its business, a district court may make
       provision by rule or order for the submission and determination of motions
       without oral hearing upon brief written statements of reasons in support and
       opposition.

Dredge Corporation, 338 F.2d at 461 (citing Fed. R. Civ. P. 78). Thus, whereas the

foregoing Dredge Corporation holding rested on three rules, one of which authorized

district courts to “make provision by rule or order for the submission and determination

of motions without oral hearing,” our decision in Cole, by contrast, rested on

M. R. Civ. P. 56 alone, which contains no such authorization.

¶94    In any event, in a remarkable embellishment of Cole, the Court submits in ¶ 31

that the foregoing quote from Dredge Corporation constitutes our “express[] approv[al]”

of requirements for parties to request summary judgment hearings. Yet, aside from the

fact, noted above, that such requirements were not even implicated by the facts of Cole,

the Court’s inference is entirely unfounded given the context in which we quoted Dredge

Corporation.

¶95    Immediately preceding the quotation, we stated as follows:


                                            38
      [U]nder Rule 56(c), a hearing is contemplated from which the district court
      will consider not so much legal arguments, but rather whether there exists
      genuine issues of material fact. Moreover, it is permissible under Rule 56
      for the District Court to receive affidavits on the day of the hearing and to
      take oral evidence, as has been indicated above.

Cole, 236 Mont. at 418, 771 P.2d at 101. And immediately after the Dredge Corporation

quotation, we held as follows:

             In view of the language of Rule 56(c), and having in mind that the
      granting of such a motion disposes of the action on the merits, with
      prejudice, a district court may not, by rule or otherwise, preclude a party
      from requesting oral argument, nor deny such a request when made by a
      party opposing the motion unless the motion for summary judgment is
      denied. Even when a party is entitled to oral argument, as a general
      proposition there will be general circumstances when a court may properly
      terminate oral argument or even dispense with it and deem the right
      waived.

              We hold, therefore, that unless the right to a hearing on a Rule 56
      motion is specifically waived by all parties (and not waived simply by the
      failure to file briefs) either the movant or the adverse parties are entitled to
      a hearing under Rule 56 in the ordinary case. There may be an occasion
      when under the law and the facts adduced, the movant would be so clearly
      entitled as a matter of law to a summary judgment that a district court might
      by order dispense with the necessity of a hearing. That, however, is not the
      kind of order presented to us here.

Cole, 236 Mont. at 418-19, 771 P.2d at 101 (citation omitted). Thus, notwithstanding the

language of Dredge Corporation, we adopted the stringent requirement that the right to a

hearing must be “specifically” waived.

¶96   The only other explanation offered by the Court in support of its assertion that we

“expressly approved” or “expressly authorized” a waiver-by-inaction rule in Cole is the

fact that we acknowledged in our discussion that either of the parties could have applied

for a hearing. See ¶ 31 of the Court’s Opinion; Cole, 236 Mont. at 417, 771 P.2d at 100.




                                            39
Yet, just because the parties “could have applied” for a hearing does not establish that we

approved a policy requiring them to do so or risk waiver.

¶97     Simply stated, the Court’s analysis of Issue One rests on a cracked foundation.

We could not possibly have held in Cole that a district court may require parties to

request a summary judgment hearing or risk waiver, since we were not presented with

such facts. Thus, Cole’s purported “express” approval and authorization of the District

Court’s scheduling orders here is nothing but the imaginings of the majority in the case at

hand.

¶98     For these reasons, I dissent from the Court’s flawed and incomplete analysis under

Issue One. However, as explained earlier, I agree with the Court’s ultimate conclusion

that Harding waived its right to a summary judgment hearing by failing to request one in

the face of a clear and unambiguous requirement that it do so within the reasonable time

frame provided by the District Court.



                                                               /S/ JAMES C. NELSON




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