                                                No.     87-558

                    I N THE SUPREME COURT O F THE S T A T E O F MONTANA

                                                      1988




AMERICAN MEDICAL OXYGEN C O . ,
a M o n t a n a corporation,

                      P l a i n t i f f and A p p e l l a n t ,
          -vs-

MONTANA DEACONESS MEDICAL CENTER,
et al.,
                      D e f e n d a n t s and R e s p o n d e n t s .




A P P E A L FROM:     D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t , ,
                      I n and f o r t h e C o u n t y of C a s c a d e ,
                      T h e H o n o r a b l e T h o m a s M c K i t t r i c k , Judge presiding.

COUNSEL O F RECORD:

          For A p p e l l a n t :

                      P h i l i p P. M c G i m p s e y , B i l l i n g s , M o n t a n a

          For R e s p o n d e n t :

                      U g r i n , A l e x a n d e r , Z a d i c k & Slovak; N e i l E .        Ugrin,
                      G r e a t Falls, Montana




                                                      S u b m i t t e d on B r i e f s :   M a r c h 31,   1988

                                                         Decided:         May 2 6 , 1 9 8 8




                                                      Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.

       Plaintiff American Medical Oxygen Co.        (American)
appeals from an order of the District Court of the Eighth
Judicial District, Cascade County, granting summary judgment
in favor of defendants Montana Deaconess Medical Center
(Deaconess) and Spectrum Medical Supply, Inc. (Spectrum), as
to claims based on Montana antitrust law, and dismissing the
remainder of American's complaint. We affirm.
       American presents only one issue for review by this
Court :
       Did the District Court abuse its discretion by failing
to decide both plaintiff's and defendants' motions to dismiss
when it granted defendants ' motion for summary judgment?
       American is in the business of providing medical oxygen
supplies and home oxygen care.       Spectrum, a wholly-owned
subsidiary of Deaconess is in competition with American,
providing oxygen supply systems to private residences and
other locations.
       On August 8, 1986, American filed a complaint against
Deaconess and Spectrum containing essentially four counts:
       1. tortious interference with an established business
relationship,
       2. violation of state and federal antitrust laws,
       3. unfair use of Deaconess's tax-exempt status under
the Internal Revenue Code, and
       4. violation of the "Anti-kickback Provision" of the
Social Security Act.
The   complaint sought an       injunction against Spectrum
prohibiting it from doing business, as well as economic and
punitive damages.
      On April 6,     1987, Deaconess and Spectrum filed
"Defendants' Motion   to Dismiss, or, Alternatively, For
Summary Judgment" as to Counts Two, Three and Four of the
complaint.     The supporting memorandum cited lack of
jurisdiction over claims brought under federal law, failure
to state a claim upon which relief can be granted and lack of
standing as grounds for dismissal or summary judgment.
      American did not file a brief or memorandum in response
to the motion, but instead filed "Plaintiff's Voluntary
Motion to Dismiss Complaint" on July 9, 1987.      American's
motion sought to have the entire complaint dismissed without
prejudice.
      On September 2, 1987, after hearing oral argument
District Judge Thomas M. McKittrick rendered an order
dismissing Count One of American's complaint and all other
claims based on federal law, and granting summary judgment in
favor of Deaconess and Spectrum on American's state antitrust
claims.
      On appeal, this Court is asked to determine whether the
District Court abused its discretion in proceeding as it did.
The District Court's judgment, when based on substantial
credible evidence, will not be altered unless a clear abuse
of discretion is shown. In re Marriage of Stewart (May 9,
1988), No. 87-519, slip op. at 3-4, citing In re Marriage of
Watson (Mont. 1987), 739 P.2d 951, 954, 44 St.Rep. 1167,
1170.
      American argues in its brief that the judge was in
error when he "failed to decide both the defendants' and
plaintiff's Cross-Motions to Dismiss prior to reaching the
defendants' alternative Motion     for Summary Judgment."
(Emphasis in the original.) American states, without citing
authority, there were in effect three motions before the
District Court and those motions had an order of priority;
i.e., the judge should have decided Deaconess and Spectrum's
motion to dismiss first, American's voluntary motion to
dismiss second and Deaconess and Spectrum's motion for
summary judgment third, the net effect being the dismissal of
the entire complaint without prejudice.     We do not agree.
       The motion filed by Deaconess and Spectrum asserted
that American had failed to state a claim upon which relief
can be granted.      The supporting memorandum detailed the
factual bases for this defense, accompanied by attached
affidavits and other exhibits.    Under the Montana Rules of
Civil Procedure, a motion to dismiss that raises the failure
to state a claim as a defense, and presents factual matters
outside the pleading, "shall be treated as one for summary
judgment and disposed of as provided in Rule 56.       . . ."
                .
M.R.Civ.P. 12 (b)
       American's brief makes much of the assertion that the
caption "Defendants' Motion to Dismiss, or, Alternatively,
For Summary Judgment" means the primary motion made by
Deaconess and Spectrum was one for dismissal, and the request
for summary judgment was secondary. This characterization,
however, is at variance with the application of Rule 12(b).
In Schlegel v. Moorhead (1978), 177 Mont. 456, 582 P.2d 336,
this Court reviewed a district court order granting a motion
with a caption identical to the one at issue here.        The
order, however, was phrased only in terms of granting a
motion to dismiss for failure to state a claim. On review,
rather than simply looking to the title and phrasing of the
motion and order, this Court looked to the record to
determine what effect the motion had on the case.         The
opinion stated, "regardless of how the order was phrased
. ..  the trial court's order constitutes a grant of summary
judgment and shall be given effect as such." Schlegel, 582 P.
2d at 338.   In this case, Rule 12 (b) dictates the motion be
given the effect of requesting summary judgment.
      At the hearing on July 29, therefore, the court was
presented with not three, but two motions. In chronological
order, they were the motion filed by Deaconess and Spectrum,
to be treated as a motion for summary judgment under Rule
12(b), and American's motion to dismiss.
      The court's course in ruling on the summary judgment
motion is supported by applicable law.     As of the hearing
date, American had not responded to the summary judgment
motion.    The court was thus presented with a situation
governed by Rule 56(e), which states,

    When a motion for summary judgment is made and
    supported as provided in this rule, an adverse
    party may not rest upon mere allegations or denials
    of his pleading, but his response, by affidavits or
    as otherwise provided in this rule, must set forth
    specific facts showing that there is a genuine
    issue for trial.     If he does not so respond,
    summary judgment, if appropriate, shall be entered
    against him.
 M.R.Civ.P. 56(e); Payne v. Stratman (Mont. 1987), 747 P.2d
210, 44 St.Rep. 2059, citing Bedford v. Jordan (Mont. 1985),
698 P.2d 854, 42 St.Rep 589. The court could not address the
claims in American's complaint that were based on federal
law, because it was without jurisdiction, and a judgment on
those claims would therefore have been void. In re Marriage
of Kraut (Mont. 1985), 696 P.2d 981, 42 St.Rep. 268.
However, the court had full jurisdiction over the state
antitrust claims under S 30-14-222, MCA, and proceeded to
rule on the motion as it applied to those claims. The court
then turned to American's motion to dismiss its complaint
without prejudice, which it granted as to the claims not
subject to summary judgment.
       Contrary   to   American's    assertions     on   appeal,      the
District Court properly addressed all motions before it at
the   hearing.    We   conclude     that   there   was   no   abuse    of
discretion in this case.
      We affirm the decision of the District Court.



                                       @~-zi&?&~+
                                         Justice
We Concur:
