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                                                                No. 98-142



                              IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                              1999 MT 15N




                                                       FLATHEAD COUNTY,



                                                       Plaintiff and Respondent,



                                                                      v.



                                                SURE SEAL DUST CONTROL and

                                                     ANTHONY J. SERIO d/b/a

                                                  SURE SEAL DUST CONTROL,



                                                      Defendants and Appellants.




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                             APPEAL FROM: District Court of the Eleventh Judicial District,

                                                 In and for the County of Flathead,

                                       The Honorable Katherine Curtis, Judge presiding.




                                                      COUNSEL OF RECORD:



                                                             For Appellants:



                            Ward E. Taleff and Karl K. Rudbach; Alexander, Baucus, Taleff &

                                                      Paul, Great Falls, Montana



                                                             For Respondent:



                        Dennis E. Hester, Deputy Flathead County Attorney, Kalispell, Montana




                                                Submitted on Briefs: August 6, 1998



                                                      Decided: January 28, 1999

                                                                    Filed:



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                                       __________________________________________

                                                                     Clerk

                          Justice Karla M. Gray delivered the Opinion of the Court.



¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶2. Flathead County filed a complaint against Sure Seal Dust Control and Anthony
Serio, doing business as Sure Seal Dust Control (collectively, Sure Seal), a dust
suppressant business, for dumping or leaving a "solid waste" on its property on five
separate occasions in violation of § 75-10-212, MCA. The Eleventh Judicial District
Court, Flathead County, ultimately granted Flathead County's motion for summary
judgment and imposed a $5,000 civil penalty for each of the five violations. Sure Seal
appeals and we affirm.

¶3. The overall issue on appeal is whether the District Court erred in granting
summary judgment to Flathead County. In resolving that issue, we address the
following restated issues:

¶4. 1. Whether the District Court erred in concluding that no genuine issue of
material fact exists that the residue at issue is a "solid waste" as defined in § 75-10-
203(11), MCA.



¶5. 2. Whether the District Court erred in concluding that no genuine issue of
material fact exists that Sure Seal dumped or left the residue on Flathead County's
Sheepherder Gravel Pit property on three occasions.

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¶6. 3. Whether Flathead County violated Sure Seal's due process rights by revoking
its permit without notice and a hearing.



¶7. 4. Whether the District Court erred by imposing a $5,000 penalty for each of the
five violations.

                                                           BACKGROUND

¶8. At all times pertinent to this case, Sure Seal was a dust suppression business in
Flathead County, Montana. It also contracted with two lumber companies to dispose
of a wood byproduct called veneer dryer precipitator residue (residue). Prior to mid-
1994, Sure Seal operated under a dust abatement permit which allowed it to apply
approved dust abatement on Flathead County roads. One of the materials Sure Seal
used was the residue; its employee, Jesse Serio, applied the residue to gravel roads as
a dust suppressant. In June of 1994, Sure Seal's dust abatement permit expired and
was not renewed. Sure Seal continued to apply the residue on Flathead County roads
and other property without a permit.

¶9. Flathead County subsequently sued Sure Seal, alleging that Sure Seal disposed of
the residue, which constituted a "solid waste" under § 75-10-203(11), MCA, on its
property on five different occasions in violation of § 75-10-212, MCA. Two of the
violations allegedly occurred on county roads; the other three allegedly occurred at
Flathead County's Sheepherder Gravel Pit (the gravel pit). Flathead County sought
the assessment of a $5,000 civil penalty for each violation and requested that Sure
Seal be enjoined from disposing of solid waste in a manner contrary to that
permitted by Title 75, Chapter 10, Part 2, MCA, the Montana Solid Waste
Management Act.

¶10. The District Court permitted Sure Seal's counsel to withdraw and Sure Seal
proceeded pro se. Discovery ensued. Thereafter, Flathead County moved for
summary judgment and Sure Seal filed a brief in opposition to the motion. The
District Court determined that Flathead County established the absence of any
genuine issue of material fact regarding Sure Seal's violations of § 75-10-212, MCA,
noting that Sure Seal had failed to come forward with any admissible evidence

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raising a genuine factual issue. On that basis, the District Court concluded that Sure
Seal violated § 75-10-212, MCA, on five occasions and that Flathead County was
entitled to summary judgment and to the imposition of a $5,000 civil penalty for each
of the violations. Sure Seal appeals.

STANDARD OF REVIEW¶11. Summary judgment is proper when the pleadings, depositions, answers
to interrogatories, admissions, and any affidavits on file show that there is no genuine issue of material fact
and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), M.R.Civ.P. We review a
district court's grant of summary judgment de novo, applying the same Rule 56(c), M.R.Civ.P., criteria used by
that court. Clover Leaf Dairy v. State (1997), 285 Mont. 380, 385, 948 P.2d 1164, 1167 (citation omitted).

¶12. The party moving for summary judgment must show a complete absence of any
genuine issues of fact deemed material in light of the substantive principles which
entitle that party to judgment as a matter of law. Bruner v. Yellowstone County
(1995), 272 Mont. 261, 265, 900 P.2d 901, 904 (citation omitted). Once the moving
party's burden has been met, the burden shifts to the nonmoving party to prove, by
more than mere denial and speculation, that a genuine issue does exist. Bruner, 272
Mont. at 264, 900 P.2d at 903 (citation omitted). We review a district court's
conclusions of law, including those regarding the application of a statute, to
determine whether the court's interpretation of the law is correct. Ash Grove
Cement Co. v. Jefferson County (1997), 283 Mont. 486, 491, 943 P.2d 85, 89 (citation
omitted); Clover Leaf, 285 Mont. at 389, 948 P.2d at 1169 (citation omitted).

DISCUSSION¶13. Before addressing the issues properly before us, we observe that Sure Seal raises the
following three issues on appeal which were not raised in the District Court: 1) that Flathead County violated
Jesse Serio's Fifth Amendment rights when it took his deposition; 2) that Sure Seal is a corporation and
Anthony Serio cannot be held personally liable for the civil penalties; and 3) that Sure Seal is not liable for
the residue allegedly disposed of at the gravel pit because the residue was cleaned up. Conceding that these
issues are raised for the first time on appeal, Sure Seal requests that we apply the common law plain error
doctrine and resolve these newly raised issues. We decline to do so.

¶14. It is well settled that this Court will not consider issues raised for the first time
on appeal. Cenex v. Board of Com'rs for Yellowstone (1997), 283 Mont. 330, 337-38,
941 P.2d 964, 968 (citation omitted). Moreover, while Sure Seal correctly relies on
State v. Sullivan (1996), 280 Mont. 25, 927 P.2d 1033, for the proposition that we may
review issues not raised in the district court under the common law plain error
doctrine, the doctrine is of limited application and is to be used sparingly. Sullivan,
280 Mont. at 31, 927 P.2d at 1037 (citation omitted). Sure Seal also relies on State v.
Finley (1996), 276 Mont. 126, 915 P.2d 208. There, however, we concluded


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that this Court may discretionarily review claimed errors that implicate a criminal
defendant's fundamental constitutional rights, . . . where failing to review the claimed
error at issue may result in a manifest miscarriage of justice, may leave unsettled the
question of the fundamental fairness of the trial or proceedings, or may compromise the
integrity of the judicial process.



Finley, 276 Mont. at 137, 915 P.2d at 215 (emphasis added). As enunciated in Finley, the doctrine clearly is
inapplicable here because the present case does not meet the threshold criterion that the claimed errors
implicate a criminal defendant's fundamental constitutional rights.

¶15. For similar reasons, Sure Seal's reliance on State v. Poncelot (1980), 187 Mont.
528, 610 P.2d 698, for the proposition that we are more inclined to apply the plain
error doctrine where the defendant appeared pro se is misplaced. Poncelot, Sullivan
and Finley were all criminal cases; the present case is not.

¶16. Sure Seal cites to no authority under which the common law plain error
doctrine would be applicable here. As a result, we decline to address the new issues
Sure Seal raises on appeal.

¶17. 1. Did the District Court err in concluding that no genuine issue of material fact exists that the
residue at issue is a "solid waste" as defined by § 75-10-203(11), MCA?




¶18. The District Court concluded that Flathead County met its burden of
establishing the absence of any genuine issue of material fact regarding Sure Seal's
violation of § 75-10-212, MCA, because the residue dumped or left was a "wood
byproduct" and, therefore, a "solid waste" as defined in § 75-10-203(11)(a), MCA.
The District Court also concluded that Sure Seal failed to come forward with
admissible evidence raising a genuine issue of material fact in that regard. On
appeal, Sure Seal contends that the District Court erred in concluding that no
genuine issue of material fact exists that the residue is a "solid waste" because the
residue is a "marketable byproduct" which is expressly excluded from the definition
of a "solid waste."

¶19. In order for Flathead County to succeed on summary judgment, it was required
to establish the complete absence of any genuine issue of fact deemed material in

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light of the elements needed to establish a violation of § 75-10-212, MCA. See Bruner,
272 Mont. at 265, 900 P.2d at 904 (citation omitted). Section 75-10-212, MCA,
provides in pertinent part:

(1) No person may dispose of solid waste except as permitted under this part.

(2) It shall be unlawful to dump or leave any garbage, dead animal, or other debris or
refuse:

(a) in or upon any highway, road, street, or alley of this state;

(b) in or upon any public property, highway, street, or alley under the control of the state
of Montana or any political subdivision thereof or any officer or agent or department
thereof[.]



The term "solid waste" is defined in § 75-10-203(11)(a), MCA, as "all putrescible and
nonputrescible wastes . . . and wood products or wood byproducts and inert materials."
Flathead County presented evidence establishing that the residue is a "wood byproduct"
and, indeed, Sure Seal does not dispute that the residue is a solid waste pursuant to § 75-
10-203(11)(a), MCA. Thus, Flathead County met its initial burden of establishing that no
genuine issue of material fact existed with regard to the residue being a solid waste.

¶20. The burden then shifted to Sure Seal to come forward with evidence, not mere
denial or speculation, that a genuine issue of fact exists. See Bruner, 272 Mont. at 264,
900 P.2d at 903 (citation omitted). In an attempt to meet this burden, Sure Seal
asserted that the residue was a marketable byproduct excluded from the definition of
solid waste by § 75-10-203(11)(b), MCA, which provides that solid waste "does not
mean municipal sewage, industrial wastewater effluents . . . or marketable
byproducts." It attached certain materials to its brief which were intended to
support the marketable byproduct claim and raise a genuine issue of fact regarding
whether the residue was a solid waste. The District Court determined that the
attached materials were not admissible evidence and, on that basis, concluded that no
genuine issue of material fact existed regarding the residue being a solid waste.

¶21. On appeal, Sure Seal does not contend that the District Court abused its
discretion in determining that the materials submitted in opposition to Flathead

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County's motion for summary judgment were inadmissible or otherwise attempt to
rely on those materials. Instead, it refers for the first time to Jesse Serio's deposition
in attempting to show that Sure Seal had clients purchasing applications of the
residue and, on that basis, to raise a genuine issue of material fact that the residue is
a marketable byproduct under § 75-10-203(11)(b), MCA, rather than a solid waste
under § 75-10-203(11)(a), MCA.

¶22. The problem with this approach is that, while Jesse Serio's deposition was part
of the record in the District Court, Sure Seal did not rely on it as evidence raising a
genuine issue of material fact, notwithstanding the opportunity to do so. Once the
party moving for summary judgment has met its initial burden, the nonmoving
party's response "must set forth specific facts showing that there is a genuine issue
for trial." Rule 56(e), M.R.Civ.P. Sure Seal failed to meet its burden in the District
Court and may not attempt to meet it on appeal by coming forward with evidence
presented for the first time. We hold that the District Court did not err in
determining that no genuine issue existed that the residue was a solid waste under §
75-10-203(11), MCA.

¶23. 2. Did the District Court err in concluding that no genuine issue of material fact exists that Serio
dumped or left the residue on Flathead County's gravel pit property on three occasions?

¶24. The District Court also concluded that no genuine issue of material fact existed
regarding Sure Seal's disposal of the residue on Flathead County's property on five
separate occasions, two involving county roads and three involving the gravel pit.
Sure Seal contends that Flathead County did not establish the absence of any genuine
issue of material fact that it disposed of the residue at the gravel pit on three
occasions.

¶25. At the time of the violations, Sure Seal owned property adjoining Flathead
County's property at the gravel pit. A road ran through Sure Seal's property to
Flathead County's gravel pit property.

¶26. Sure Seal raises a "boundary confusion" issue on appeal regarding whether the
residue was spread on its property or Flathead County's gravel pit property. This
issue was not raised in the District Court and, as discussed above, we will not
consider issues raised for the first time on appeal. See Cenex, 283 Mont. at 337-38,
941 P.2d at 968 (citation omitted). As it did above, Sure Seal again requests that we
apply the common law plain error doctrine to resolve this issue. For the reasons

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previously discussed, we decline to do so.

¶27. Sure Seal also contends that Flathead County did not meet its burden of
showing that no genuine issue of material fact existed that the residue was dumped or
spread on the gravel pit property. We disagree.

¶28. In support of its motion for summary judgment, Flathead County relied on the
affidavits of Vicki Gallo, a Chief Deputy of the Flathead County Clerk and Recorder,
and Marc Pitman, the Flathead County Road Department Superintendent at the
time of the violations, as well as the deposition of Jesse Serio. Vicki Gallo's affidavit
established that Flathead County owned the gravel pit. Marc Pitman's affidavit
established that the residue was dumped in the gravel pit on January 18, and
January 20, 1995, and at some unknown date and time in the winter of 1994-95; it
did not state that Marc Pitman observed Sure Seal dumping the residue.

¶29. Sure Seal contends that Flathead County did not meet its burden because Vicki
Gallo's affidavit did not state where the boundary was between Sure Seal's property
and Flathead County's gavel pit property or if Flathead County owned the road
running through Sure Seal's property. Jesse Serio's deposition confirmed, however,
that he had applied or spread the residue in the gravel pit and that he knew he was
spreading it on Flathead County's property.

¶30. Serio also contends that Flathead County did not meet its burden because Marc
Pitman's affidavit did not indicate whose property the residue was dumped on or
who dumped the residue in the gravel pit. It was not necessary that the affidavit
establish these facts. Marc Pitman's affidavit established that the residue was
dumped in the gravel pit, Vicki Gallo's affidavit established that Flathead County
owned the gravel pit and Jesse Serio's deposition confirmed that he had applied or
spread the residue in the gravel pit and knew he was spreading it on Flathead
County's property at the gravel pit. On this record, Flathead County met its initial
burden of establishing the absence of any genuine issue of material fact that Sure
Seal disposed of the residue at Flathead County's gravel pit property.

¶31. Sure Seal also contended initially that Flathead County failed to show the
absence of any genuine issue of material fact regarding dumping of the residue in the
gravel pit on each of the three particular dates set forth in the amended complaint. In
its reply brief, however, Sure Seal acknowledged that Jesse Serio admitted to

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spreading the residue in the gravel pit on January 20, 1995. As a result, Sure Seal
concedes that no genuine issue of material fact exists regarding the January 20, 1995,
date and we will not address it further.

¶32. Sure Seal disputes the January 18, 1995, violation contending that, while Jesse
Serio admitted in his deposition to spreading the residue in the gravel pit on either
January 18 or January 19, 1995, he did not specifically mention whether the residue
was spread on Flathead County's property. Jesse Serio subsequently admitted at a
later point in his deposition that he knew the residue was being spread on Flathead
County's property, however. Thus, Sure Seal's contention lacks merit.

¶33. Sure Seal also disputes the violation alleged to have occurred at some unknown
date and time in the winter of 1994-95. It contends that, while Jesse Serio admitted in
his deposition that he spread the residue in the gravel pit "three or four times," he
did not indicate whether he did so during the winter of 1994-95 or at some earlier
time. Again, Sure Seal's contention lacks merit because the questions and answers
prior to Jesse Serio's admission focused on the winter of 1994-95 and Jesse Serio's
statement that he spread the residue in the gravel pit "three or four times" clearly
referred to the winter of 1994-95. On this record, therefore, Flathead County met its
initial burden of establishing the absence of any genuine issue of material fact that
Sure Seal disposed of the residue at the gravel pit property on the three occasions set
forth in the amended complaint.

¶34. The burden then shifted to Sure Seal to prove, by more than mere denial or
speculation, that a genuine issue of material fact existed. See Bruner, 272 Mont. at
264, 900 P.2d at 903 (citation omitted). In other words, Sure Seal was required to
come forward with admissible evidence--such as pleadings, depositions, answers to
interrogatories, admissions on file, or affidavits--raising a genuine issue for trial. See
Rules 56(c) and (e), M.R.Civ.P.

¶35. Sure Seal's brief in opposition to Flathead County's motion for summary
judgment merely asserted that Sure Seal never dumped the residue at the gravel pit.
An argument in a brief is not evidence and Sure Seal did not come forward with any
admissible evidence raising a genuine issue for trial. We conclude, therefore, that the
District Court did not err in determining that no genuine issue of material fact
existed regarding whether Sure Seal dumped or left the residue at the gravel pit on
three occasions.


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¶36. 3. Did Flathead County violate Sure Seal's due process rights by revoking its permit without notice
and a hearing?




¶37. In the District Court, Sure Seal contended, in effect, that Flathead County
violated its right to due process by revoking its dust abatement permit without a
hearing before the Board of Commissioners of Flathead County. The premise
underlying this contention was that Flathead County was required to take any
problems with the application of dust suppression materials to the county
commissioners before Sure Seal's permit could be revoked. The District Court
observed that Sure Seal provided no authority in support of its position and did not
address the issue further.

¶38. On appeal, Sure Seal reasserts the contention raised in the District Court and
cites to cases which purportedly support its due process argument. We decline to
address those authorities or the due process argument.

¶39. Parties must support their positions in the district court in order to obtain a
ruling on the merits. Clearly, it is not the trial court's role to research and develop
those positions for a party. Nor will we substantively address an issue on appeal
which was not properly supported in the trial court.

¶40. 4. Did the District Court err by imposing a $5,000 penalty for each of the five violations?



¶41. In granting summary judgment to Flathead County, the District Court
determined that Flathead County was entitled to the relief requested, namely, the
assessment of a $5,000 civil penalty for each of Sure Seal's five violations of § 75-10-
212, MCA. On appeal, Sure Seal contends that the District Court committed legal
error because $5,000 is the maximum penalty allowed under § 75-10-233, MCA, for
aggregated violations. Alternatively, it argues that the court abused its discretion in
assessing the maximum available penalty for each violation.

¶42. Flathead County's motion for summary judgment specifically addressed the
statutory civil penalty and provided the rationale for assessing the maximum penalty
for each violation. Sure Seal's response did not mention the penalty. Thus, Sure Seal
raises this issue for the first time on appeal and, as set forth above, this Court will not
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consider issues raised for the first time on appeal. See Cenex, 283 Mont. at 337-38,
941 P.2d at 968 (citation omitted). The issue not being properly before us, we decline
to address it further.

¶43. Affirmed.

/S/ KARLA M. GRAY

We concur:



/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ JIM REGNIER




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