                                                                                         February 26 2008



                                         DA 07-0256

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2008 MT 71N



RANDALL A. LAMPHERE,

              Plaintiff and Appellant,

         v.

MONTANA DEPARTMENT OF TRANSPORTATION.

              Defendant and Appellee.



APPEAL FROM:         District Court of the Twentieth Judicial District,
                     In and For the County of Lake, Cause No. DV 06-278,
                     Honorable C.B. McNeil, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Randall A. Lamphere, pro se, Ronan, Montana

              For Appellee:

                     Robert M. Gentry, Special Assistant Attorney General,
                     Missoula, Montana



                                                 Submitted on Briefs: January 23, 2008

                                                             Decided: February 26, 2008


Filed:

                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(d), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court 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    Randall A. Lamphere (“Lamphere”) filed a complaint against the Montana

Department of Transportation (“MDT”) in connection with two contracts he purported to

have entered with the MDT. The MDT moved to dismiss the complaint pursuant to

M. R. Civ. P. 12(b)(6). The District Court granted the motion to dismiss, and found that

the pleading failed to state a claim upon which relief could be granted. We affirm.

¶3    Lamphere’s complaint fails to state a cause of action. In his complaint, Lamphere

did not identify any law violated by the MDT, nor did he cite any law which supported

his claims. Instead, he merely alleged that the MDT “[was] unlawfully proceeding with

the procurement of a bid,” that the MDT acted in bad faith, that the MDT “acted with

deception,” and that the MDT caused him “embarrassment, humiliation, financial loss,

and mental anguish.” None of these allegations add up to a legal cause of action upon

which relief can be granted.

¶4    Lamphere elaborates on these allegations on appeal by raising new issues of law

and allegations of fact for the first time in his appellate brief. However, we review a

district court’s order granting a motion to dismiss pursuant to M. R. Civ. P. 12(b)(6)


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based on the sufficiency of the complaint alone. Cowan v. Cowan, 2004 MT 97, ¶ 11,

321 Mont. 13, ¶ 11, 89 P.3d 6, ¶ 11. The only document relevant to our review on appeal

is the complaint, and any documents i t incorporates by reference.           Cowan, ¶ 11.

Furthermore, it is well-settled that we will not consider issues raised for the first time on

appeal. Jones v. Montana University System, 2007 MT 82, ¶ 23, 337 Mont. 1, ¶ 23, 155

P.3d 1247, ¶ 23.

¶5     It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section 1.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the appeal is without merit because the legal issues are clearly controlled by settled

Montana law which the District Court correctly interpreted. The District Court did not

err in dismissing Lamphere’s complaint pursuant to M. R. Civ. P. 12(b)(6) for failure to

state a claim upon which relief can be granted. We affirm.


                                                  /S/ W. WILLIAM LEAPHART


We concur:

/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS




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