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                                                                No. 98-315



                              IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                             1998 MT 284N




                                              CHARLES S. (CHUCK) BRAGG, JR.,

                                         and PATRICIA S. BRAGG, husband and wife,

                                                     Plaintiffs and Respondents,

                                                                      v.

                                           WILLIAM D. McLAUGHLIN and SONJA

                                      INDRELAND McLAUGHLIN, husband and wife,

                                                     Defendants and Appellants.




                               APPEAL FROM: District Court of the Sixth Judicial District,

                                                    In and for the County of Park,

                                        Honorable John R. Christensen, Judge Presiding.


                                                      COUNSEL OF RECORD:

                                                             For Appellants:

                            Sonja Indreland McLaughlin and William D. McLaughlin, Pro Se,


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                                                             Wilsall, Montana

                                                             For Respondents:

                          Joseph T. Swindlehurst, Huppert & Swindlehurst, Livingston, Montana


                                               Submitted on Briefs: October 22, 1998

                                                     Decided: November 24, 1998

                                                                    Filed:

                                      __________________________________________

                                                                     Clerk

Chief Justice J. A. Turnage 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. William D. McLaughlin and Sonja Indreland McLaughlin (hereinafter, the
McLaughlins) appeal from the order of the Sixth Judicial District Court, Park
County, denying their motion to rescind the entry of a judgment awarding punitive
damages to Charles S. Bragg, Jr., and Patricia S. Bragg (hereinafter, the Braggs). We
affirm.

                                                                   ISSUE

¶3. Did the District Court err in denying the McLaughlins' motion to rescind entry of
a judgment awarding punitive damages to the Braggs?

                                                          BACKGROUND



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¶4. The Braggs filed a complaint against the McLaughlins on June 29, 1994, seeking
to quiet title to an easement across property belonging to the McLaughlins, to enjoin
the McLaughlins from further interference with the Braggs' use and enjoyment of
the easement, and for an award of compensatory and punitive damages for
slandering the Braggs' title to the easement and real property. A bench trial was held
and judgment entered in favor of the Braggs. On appeal to this Court, the judgment
below was affirmed in part, reversed in part, and remanded back to the District
Court on August 28, 1997, for reconsideration of an award of punitive damages
pursuant to the provisions of § 27-1-221(7)(b), MCA.

¶5. Upon remand of the case, the District Court ordered a scheduling conference
between the parties on November 13, 1997, so that a date could be set for a further
hearing on the issue of punitive damages. Both parties were notified of the scheduling
conference. The McLaughlins filed their first Motion for Substitution of District
Judge on November 3, 1997. On November 6, 1997, the McLaughlins filed a motion
for withdrawal of the order setting a scheduling conference. The District Court
denied both of these motions by order dated November 14, 1997, and the scheduling
conference went forward as calendared without the McLaughlins in attendance.

¶6. On November 24, 1997, the McLaughlins filed a Reinstatement of Motion for
Substitution of District Judge. This motion was denied by the District Court on
December 1, 1997. The court conducted an evidentiary hearing on the issue of
punitive damages on January 30, 1998. The McLaughlins did not attend this hearing.

¶7. The District Court entered its "Findings of Fact, Conclusions of Law and
Judgment after Remand Pursuant to § 27-1-221, MCA," on February 10, 1998. On
February 19, 1998, the McLaughlins filed their motion to rescind entry of the District
Court judgment awarding punitive damages to the Braggs. Currently pending is the
McLaughlins' third motion for substitution of the district court judge filed on April
23, 1998.

                                                            DISCUSSION

¶8. Did the District Court err in denying the McLaughlins' motion to rescind entry of
a judgment awarding punitive damages to the Braggs?

¶9. Although labeled as a "motion to rescind entry of a document," the McLaughlins


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identified this pleading at the time of filing as a motion to alter or amend judgment
under the authority of Rule 59(g), M.R.Civ.P., and it will be treated as such for
purposes of this appeal. See Carr v. Bett, 1998 MT 266, ¶ 24, ___ P.2d ___, 55 St.Rep.
1098, ¶ 24; M&R Const. Co. v. Shea (1979), 180 Mont. 77, 81, 589 P.2d 138, 140. Our
standard of review of a district court's denial of a motion under Rule 59(g), M.R.Civ.
P., is whether the trial court abused its discretion. Ulrigg v. Jones (1995), 274 Mont.
215, 219, 907 P.2d 937, 940; Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 475,
803 P.2d 601, 603.

¶10. The first argument advanced by the McLaughlins as grounds for striking the
District Court's post-remand judgment awarding $60,000 in punitive damages to the
Braggs is that the evidentiary hearing conducted on January 30, 1998, was
procedurally defective. It is the McLaughlins' contention that although "there are no
rules of civil procedure which particularly apply to litigation sent back to the district
court from the Supreme Court of Montana," our remand to the District Court "for
further proceedings" on the issue of punitive damages mandated that the District
Court proceed under the provisions of either § 27-8-313, MCA (supplemental relief
on judgment for declaratory relief), Rule 59(a), (b), and (e), M.R.Civ.P. (motion for
new trial), or Rule 59(f), M.R.Civ.P. (new trial ordered on initiative of the court).
The McLaughlins further contend that the failure of the District Court to proceed
under any one of these procedural devices in conducting the January 30, 1998
hearing renders the resulting judgment void.

¶11. This argument lacks any legal foundation. Our instructions to the District Court
upon remand of this case were to reconsider the award of punitive damages in light
of the requirements of § 27-1-221(7)(b), MCA, and for further proceedings consistent
with the opinion of this Court. The remand to the District Court was "without
direction or restriction on the method to be utilized by the district court. Where a
case is remanded under such circumstances, it is for the trial court to determine in its
discretion whether the record before it is sufficient . . . or whether additional
evidence should be taken to supplement the record." Lovely and Lauback v.
Burroughs Corp. (1976), 169 Mont. 454, 456, 548 P.2d 610, 612. See also In re
Marriage of Becker (1992), 255 Mont. 357, 362, 842 P.2d 332, 334-35. "On remand,
the trial court may consider or decide any matters left open by the appellate court,
and is free to make any order or direction in further progress of the case, not
inconsistent with the decision of the appellate court, as to any question not presented
or settled by such decision." Zavarelli v. Might (1989), 239 Mont. 120, 125-26, 779

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P.2d 489, 493 (quoting 5 Am.Jur.2d 420, 421, Appeal and Error, § 992 (1962));
Haines Pipeline Const., Inc. v. Montana Power Co. (1994), 265 Mont. 282, 290, 876
P.2d 632, 637.

¶12. Not only was the District Court not required to employ the procedural
mechanisms available under § 27-8-313, MCA, Rule 59(a), (b), and (e), M.R.Civ.P.,
or Rule 59(f), M.R.Civ.P., as the McLaughlins contend, but the use of these
provisions by the District Court would have been inappropriate given the procedural
posture of this case. The purpose of § 27-8-313, MCA, is to enable the district court
to retain jurisdiction to enforce its declaratory judgments at the request of an
aggrieved party. Goodover v. Lindey's, Inc. (1990), 246 Mont. 80, 82, 802 P.2d 1258,
1260. At the time this case was remanded, the Braggs were not seeking enforcement
of their judgment and had not filed a petition seeking such relief. Rather, the District
Court was under a directive from this Court to reconsider whether the facts of the
case supported the award of punitive damages, and if so, to comply with the
requirements of § 27-1-221(7)(b), MCA, by setting forth the reasons justifying such
an award.

¶13. The procedural guidelines outlined in Rule 59(a), (b), (e) and (f), M.R.Civ.P.,
were likewise inapplicable. A motion for new trial can only be made within ten days
of the entry of a judgment. Rule 59(b), M.R.Civ.P. The McLaughlins' contention that
either the Braggs or the District Court had ten days after the filing of the remittitur
from the Clerk of the Supreme Court to initiate a new trial under Rule 59, M.R.Civ.
P., grossly misstates the purpose and scope of Rule 59, M.R.Civ.P., by confusing the
effect of the entry of a judgment with the effect of the issuance of a remittitur.
Remand of a cause of action from this Court is not included among the permissible
grounds for granting a new trial pursuant to the authority of Rule 59, M.R.Civ.P.
Section 25-11-103, MCA. Rather, the District Court's reconsideration of the award of
punitive damages was authorized by our order on remand, and further authorization
under Rule 59, M.R.Civ.P., was not required in order for the District Court to
schedule an evidentiary hearing on that issue.

¶14. The McLaughlins' second argument for striking the District Court's post-
remand judgment is that the District Court lacked personal jurisdiction over them,
because the lower court failed to personally serve them with a show cause order
required under § 27-8-313, MCA. This argument also fails because, as we have
previously discussed, the District Court was under no obligation to issue a show

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cause order under § 27-8-313, MCA, in order to bring the pending issue of punitive
damages to its final resolution at the trial level. Moreover, the McLaughlins' related
contention that the evidentiary hearing was improperly held ex parte, as a result of
the lack of personal service of process is an equally faulty statement of the law for the
same reason.

¶15. The third and final argument presented by the McLaughlins on this appeal is
that the district court judge who entered the judgment was not qualified to
adjudicate this controversy due to the filing of the McLaughlins' motion for
substitution of district court judge under § 3-1-804(1)(g), MCA. Section 3-1-804(1)
(g), MCA, reads in pertinent part:

When a new trial is ordered by the district court, each adverse party shall thereupon be
entitled to one motion for substitution of judge in the manner provided herein. When on
appeal the judgment or order appealed from is reversed or modified and the cause is
remanded to the district court for a new trial, or when a summary judgment or judgment of
dismissal is reversed and the cause remanded, each adverse party shall thereupon be
entitled to one motion for substitution of judge in the manner provided herein. Such
motion must be filed, with the required filing fee in civil cases, within twenty (20) days
after a new trial has been ordered by the district court or after the remittitur from the
Supreme Court has been filed with the district court. No other right of further substitution
shall arise in cases remanded by the supreme court.

(Emphasis added.)

¶16. The Remittitur from the Clerk of the Supreme Court was filed in the District
Court on October 2, 1997. The McLaughlins filed their first motion for substitution
of the district court judge on November 3, 1997--thirty-two days after the remittitur
was filed. The McLaughlins contend that their motion was timely because it was filed
within 20 days of the time set for new trial by the District Court. This contention is
not supported by the record, because, as discussed above, a new trial was never
ordered by the District Court. Where an issue is retried on remand, it is the date of
the filing of the remittitur that controls the timeliness of the motion for substitution
of the district court judge. The McLaughlins' motion was therefore untimely filed
and is void for all purposes under § 3-1-804(e), MCA.

¶17. In conclusion, we hold that the District Court's denial of the McLaughlins'


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motion to rescind entry of the judgment awarding $60,000 in punitive damages to the
Braggs was not an abuse of that court's discretion, and the decision of the lower
court is hereby affirmed.

/S/ J. A. TURNAGE

We concur:

/S/ KARLA M. GRAY

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIM LEAPHART




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