                                                                                           April 12 2016


                                           DA 15-0450
                                                                                        Case Number: DA 15-0450

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2016 MT 88N



ROBERTO R. ALVAREZ and JANE D. ALVAREZ,
Individually and as Co-Trustees of The
Alvarez Family Trust,

               Plaintiffs and Appellees,

         v.

SYLIVA D. GESHELL,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Twenty-First Judicial District,
                       In and For the County of Ravalli, Cause No. DV 14-151
                       Honorable James A. Haynes, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Reid J. Perkins, Worden Thane P.C., Missoula, Montana

                For Appellee:

                       Robert T. Bell, Reep, Bell, Laird, Simpson & Jasper, P.C., Missoula,
Montana



                                                   Submitted on Briefs: March 2, 2016

                                                              Decided: April 12, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Sylvia Geshell appeals three orders of the Twenty-First Judicial District Court,

Ravalli County. The orders were issued on December 10, 2014; March 5, 2015; and June

25, 2015. In its December 10, 2014 order, the District Court granted partial summary

judgment to Roberto and Jane Alvarez. The District Court concluded that the Alvarezes

have an easement in a ditch system comprising of two laterals—the Orchard Ditch and

the Horse Pasture Ditch—that convey water across Geshell’s land. In its March 5, 2015

order, the District Court denied Geshell’s motion to alter or amend its December 10, 2014

order and granted the Alvarezes’ motion for attorney fees. On June 25, 2015, the District

Court issued a final judgment, reiterating its grant of summary judgment and attorney

fees, and awarding the Alvarezes $25,173.21 in fees and costs.

¶3     We address whether the District Court erred in granting summary judgment in

favor of the Alvarezes and awarding the Alvarezes attorney fees. We affirm.

¶4     We review summary judgment orders de novo. Bailey v. State Farm Mut. Auto.

Ins. Co., 2013 MT 119, ¶ 18, 370 Mont. 73, 300 P.3d 1149. Summary judgment is

appropriate when the moving party demonstrates an absence of a genuine issue of

material fact and entitlement to judgment as a matter of law. M. R. Civ. P. 56(c)(3). A


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district court’s determination whether legal authority exists for an award of attorney fees

is a conclusion of law, which we review for correctness. Nat’l Cas. Co. v. Am. Bankers

Ins. Co., 2001 MT 28, ¶ 27, 304 Mont. 163, 19 P.3d 223.

¶5     On August 18, 2014, the Alvarezes filed their motion for summary judgment.

Geshell timely filed a response to the motion on August 25, 2014. However, Geshell’s

appeal heavily relies on an affidavit that she filed on March 20, 2015, after the District

Court issued its summary judgment order and its order denying Geshell’s motion to

amend. Geshell’s affidavit was therefore untimely.           See M. R. Civ. P. 56(c)(1)(B)

(providing that a party opposing a motion for summary judgment “must file a response,

and any opposing affidavits, within 21 days after the motion is served or a responsive

pleading is due.”).

¶6     As a general rule, “an issue which is presented for the first time to the Supreme

Court is untimely and cannot be considered on appeal.” Day v. Payne, 280 Mont. 273,

276, 929 P.2d 864, 866 (1996) (quoting Akhtar v. Van de Wetering, 197 Mont. 205, 209,

642 P.2d 149, 152 (1982)). This rule “applies to both substantive and procedural matters

. . . . It is based on the principle that it is fundamentally unfair to fault the trial court for

failing to rule correctly on an issue it was never given the opportunity to consider.” Day,

280 Mont. at 276-77, 929 P.2d at 866 (citation omitted). The District Court never had the

opportunity to review the facts contained in Geshell’s March 20, 2015 affidavit before

granting the Alvarezes’ motion for summary judgment, denying Geshell’s motion to alter

or amend that ruling, and granting the Alvarezes’ motion for attorney fees. We will not




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fault the District Court for Geshell’s failure to make a record before summary judgment

was granted.

¶7    In her reply brief on appeal, Geshell contends that summary judgment was

improper because she raised issues of material fact regarding abandonment of the

Orchard Ditch before the District Court made any of its rulings. Geshell contends that

her testimony and that of her expert demonstrate that the ditch had not been used for at

least ten years, triggering a statutory presumption of abandonment. Geshell raised this

statutory abandonment argument for the first time in her objection to the Alvarezes’

motion for attorney fees. Therefore, the District Court did not have the opportunity to

review it before granting summary judgment. Accordingly, as with Geshell’s untimely

affidavit, we will not fault the District Court for not considering Geshell’s ten-year

abandonment argument.

¶8    Geshell also contends that the Alvarezes’ use of the word “ditch” rather than

“ditches” in their amended complaint renders the District Court’s summary judgment

order invalid because Geshell was not given notice that the easement at issue

encompassed both the Orchard Ditch and the Horse Pasture Ditch. In Montana, “a

complaint must put a defendant on notice of the facts the plaintiff intends to prove.”

Kunst v. Pass, 1998 MT 71, ¶ 35, 288 Mont. 264, 957 P.2d 1 (citing M. R. Civ. P. 8(a)).

However, “[t]his Court liberally construes pleadings,” Kunst, ¶ 36, to ensure they comply

with the substance and purpose of the Montana Rules of Civil Procedure: to “further the

resolution of controversies on their merits,” Yarborough v. Glacier Cnty., 285 Mont. 494,

497, 948 P.2d 1181, 1183 (1997). The record shows that both laterals were in dispute


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throughout the proceedings. For example, the Alvarezes’ brief in support of their motion

for summary judgment states: “The Alvarezes brought this case because Ms. Geshell has

disputed their right to use ditches crossing her property to convey irrigation water to the

Alvarez Property.” (Emphasis added). The Alvarezes point out that Geshell never

complained below that both laterals were under discussion, a contention which Geshell

does not rebut. Geshell was on notice that the Alvarezes were claiming an easement right

to both the Orchard Ditch and the Horse Pasture Ditch. The District Court did not err in

resolving the dispute as to both laterals.

¶9        Finally, Geshell contends that we should reverse the District Court’s decision to

award attorney fees. Pursuant to §§ 70-17-112(2) and (5), MCA: “A person may not

encroach upon or otherwise impair any easement for a canal or ditch . . . . If a legal

action is brought to enforce the provisions of this section, the prevailing party is entitled

to costs and reasonable attorney fees.” The Alvarezes brought a legal action to enforce

their ditch easement right. Under the plain language of the statute, they are entitled to

attorney fees. The District Court correctly concluded that legal authority existed to award

attorney fees. See Nat’l Cas. Co., ¶ 27.

¶10       We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. The District Court’s interpretation and

application of the law were correct, and its findings of fact are not clearly erroneous. We

affirm.


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                          /S/ JAMES JEREMIAH SHEA



We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE




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