                                              No.   82-433

                     I N TIIE SUPREME COURT O THE STATE O M N A A
                                             F           F O T N

                                                    1983




E M DREYER,
 L O                 et al.,
                    Applicants and Appellants,



THE BOARD O F TRUSTEES O F MID-RIVERS
TELEPHONE COOPERATIVE, I N C . , e t a l . ,

                    Respondents.




A p p e a l from:      D i s t r i c t Court o f t h e Seventh J u d i c i a l D i s t r i c t ,
                       I n a n d f o r t h e County o f J-TcCone,
                       The H o n o r a b l e A. B. M a r t i n , J u d g e p r e s i d i n g .


C o u n s e l o f Record:

         For Appellants :

                    Moses Law F i r m ; S t e p h e n Moses, B i l l i n g s , Montana

         For Respondents:

                    Church, H a r r i s , J o h n s o n & W i l l i a m s ; Kenneth I . J a r v i ,
                    G r e a t F a l l s , Montana

                                                                                                      -


                                             S u b m i t t e d on B r i e f s :   January 27,      1983

                                                                 Decided:         May 1 2 , 1 9 8 3



Filed:      MH j-;?jCJ@



                                             Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.


        This is an appeal of a summary judgment in favor of
Board of Trustees of Mid-Rivers Telephone Cooperative, Inc.,
by   the District Court of McCone County.               The applicants
sought an injunction, an award of attorney's fees and costs
of suit.      We affirm.
        This is the second appeal of this case.                 The first
appeal challenged a judgment awarding attorney fees, interest
and costs of suit on a temporary injunction.            Appellants had
obtained a temporary restraining order and an injunction
pendente      lite preventing Mid-Rivers Telephone Cooperative
officers a l Board of Trustees from conducting a special
          rd
meeting       and    election     on   proposed    amendments    to   the
Cooperative's by-laws.          The District Court later treated the
interlocutory injunction as a writ of prohibition and awarded
attorney fees and costs to appellants.
       We vacated the award as premature and remanded the cause
"for further proceedings to determine the ultimate rights of
the parties           the underlying controversy following trial
thereon. l1     Dreyer v. Board of Trustees, etc.         (1981),
Mont   .        ,   630 P.2d    226, 229, 38 St.Rep.    972, 977.     We
noted that the Board of Trustees had not had their day in
court, no       trial had       been   held   finally adjudicating the
parties' ultimate rights, and the applicants had not yet
prevailed i.n any action so as to entitle them to attorney
fees.      We concluded:
       "The case is not rendered moot by the passage of
       time. The issue of whether the Board of Trustees
       is liable for the payment of applicants' attorney
       fees remains for trial on the merits; to equate the
       'likelihood   of   success'    that   justifies   a
       preliminary injunction with      'success' in the
       underlying    litigation     ignores    significant
       procedlural differences between preliminary and
       permanent injunctions; and in the granting of a
     preliminary injunction, the parties generally have
     been denied the benefit of a full opportunity to
     present their cases and a final decision based on
     the actual merits of the controversy."
Dreyer, 630 P.2d at 229, 38 St.Rep. at 976-77.
     Eight days after the cause was remanded for further
proceedings, respondents moved to disqualify the District
Court judge who had conducted the show cause hearing and
awarded attorney fees to appellants.         The case was reassigned
on July 9, 1981.
     The Board of Trustees never held the special meeting
that was      the   subject of    the District Court's         temporary
restraining order       and    injunction   pendente   lite.        At   a
subsequent annual meeting, at which the enjoined procedures
were not used, the Cooperative disposed of the by-law matters
which the special meeting had          originally been called to
consider.       Since   respondents did     not    persist     in   their
challenged conduct, appellants did           not   seek   a permanent
injunction.     The trial court never set the remanded cause for
trial.
     On     September 8,      1981, the District Court         issued a
memorandum stating that the underlying controversy appeared
to be moot.     He proposed that the injunction pendente lite be
dissolved and the action dismissed if no issues remained to
be determined.       Counsel were requested to submit pre-trial
memoranda setting forth any legal or factual issues that
remained for trial.           No memoranda were    submitted and no
further action was taken on the matter that year.
    On May 28, 1982, approximately 11 months after the cause
was remanded, respondents moved for summary judgment on the
ground that there was "no genuine issue as to any material
fact" and that they were entitled to judgment as a matter of
law.      Summary   judgment in favor of the respondents was
granted on August 17, 1982.
       The sole issue on appeal is whether the District Court
erred     in   granting   summary   judgment   and   dismissing   the
remanded action.     We affirm the dismissal.
       Appellants   argue    that   the   District   Court's    order
violates the law of this case as set forth in the earlier
decision.      In that decision, we determined that the case was
not rendered moot by the passage of time and a final decision
based on the actual merits of the controversy should be made.
Respondents argue that appellants' claim for attorney fees is
the only remaining issue; that all the underlying issues are
moot; that appellants no longer seek substantive relief; and
that the requirements of Rule 56 were satisfied when Dreyer
failed to establish a genuine issue of material fact that
would make the controversy justiciable.
       There is no question as to this Court's "power to remand
a case to the District Court with directions that certain
further action be taken by it."            In re Stoian's Estate
(1960), 138 Mont.         384, 390, 357 P.2d    41, 45.        Section
3-2-204 (1), MCA provides:
       "The supreme court may affirm, reverse, or modify
       any judgment or order appealed from and may direct
       the proper judgment or order to be entered or
       direct a new trial or further proceedings to be
       had. "
In remanding Dreyer, we specified the further proceedings to
be had.
       "On remand of the cause after appeal, it is the
       duty of the lower court to comply with the mandate
       of the appellate court and to obey the directions
       therein  . . . the trial court commits error if it
       fails to follow the directions of the appellate
       court."  5B C.J.S. Appeal and Error S1966, p. 577
       (1958).
Our direction to the District Court was to conduct "further
proceedings to determine the ultimate rights of the parties
in   the   underlying       controversy       following      trial    thereon."
Dreyer, 630 P.2d at 229, 38 St.Rep. at 977.                    The language in
the body of the opinion makes it clear that this was an order
to proceed on the merits.
        In vacating the award of attorney fees, we expressly
held that such an award to a party who secures a preliminary
injunction      is     error,        absent        statutory     or     contract
authorization.        We found neither statutory nor contractual
authority for the award to Dreyer.                 Dreyer, 630 P.2d at 228,
38 St.Rep. at 975.          This is the law of the case on the issue
of attorney fees for a preliminary injunction.
     We     expressed      no   opinion       on    the   propriety     of   the
trustees' actions or the issue of whether they should be held
ultimately liable for the payment of applicants' attorney
fees.      We rendered no opinion on the ultimate rights of the
parties, but held that the case was not rendered moot by the
passage of time.       Dreyer, 630 P.2d at 229, 38 St.Rep. at 976.
The parties were           returned to the position they occupied
before the judgment awarding attorney                     fees issued.       The
injunction pendente lite remained in force.                      The District
Court was in a position to conduct a trial and decide whether
to make the temporary injunction permanent in nature.
     Following       the    remand, the        District Court         issued   a
memorandum giving counsel twenty days to submit pre-trial
memoranda if "counsel believed that any legal or factual
           .
issues     remain [edl "     for     trial.         District    Court    Order,
September 8, 1981.          At the request of Dreyer's counsel, the
District Court granted the parties twenty additional days in
which "to submit their memorandums concerning their positions
as to the further progress of this case.''                     District Court
Order, Octoher 2, 1981.            Neither party submitted a memorandum
to the court.        The case lay dormant approximately 8 months.
       On May 28, 1982, respondents moved for summary judgment
on the ground that there was no genuine issue as to any
material fact.       In support of their motion, respondents filed
a memorandum and a statement of material facts.                An affidavit
by     James   J.    Behan,       manager    of    Mid-Rivers     Telephone
Cooperative, Inc., was also filed.                Mr. Behan attested that
the enjoined special meeting had never been held and that the
matters which were to be brought before the Cooperative at
that meeting had either been decided at subsequent meetings
or withdrawn from consideration by the Board of Trustees.
Affidavit of James Behan, June 14, 1982, p. 1-2.                Respondents
asserted that since the underlying issues were moot, it would
be unavailing for the court to issue a writ of mandate or
prohibition.         Mr.       Behan's    affidavit     stating   that   no
controversy continued to exist between the parties supported
this assertion.           No response was made by the applicants.
Accordingly,        the    District       Court    adopted     respondents'
assertion of mootness as an uncontested fact.
       Rule 56(e)     of the Montana Rules of Civil Procedure
provides in part:
       "When a motion for summary judgment is made and
       supported as provided in this rule, an adverse
       party may not rest upon the 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."
       Appellants failed to respond to the court's two requests
for submission of a triable issue, to respondents' motion
asserting that Mid-Rivers was entitled to judgment as a
matter of law on the ground that there was no genuine issue
as to any material fact, or to Mr. Behan's affidavit that no
controversy remained between the parties.                    The appellants
were     required         to    respond      in     a    timely     manner.
     Nearly 14 months after the case was remanded and absent
any assertion to the contrary from appellants, the District
Court found that the underlying    issue was moot.     Summary
judgment in favor of respondents was ordered.     We find no
abuse of discretion by the District Court.
     The judgment of the District Court is affirmed.
                                                       A   /
                                                                 I




We concur:
