                                       No. 05-570

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2006 MT185N


ALLISON CHAPMAN,

                 Plaintiff and Appellant,

         v.

HERITAGE BANK,

                 Defendant and Respondent.




APPEAL FROM:            The District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. CDV 2005-607,
                        Honorable Thomas M. McKittrick, Presiding Judge.


COUNSEL OF RECORD:

                 For Appellant:

                        Allison Chapman, pro se, Geraldine, Montana

                 For Respondent:

                        Ward E. Taleff, Taleff Law Office, Great Falls, Montana



                                                    Submitted on Briefs: July 12, 2006

                                                            Decided: August 8, 2006

Filed:

                  __________________________________________
                                     Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), 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     Prior to the filing of the Complaint in this case, Allison Chapman

maintained an account with Heritage Bank, a financial institution with its principal

offices in Great Falls. In May of 2005, Chapman, acting pro se, filed suit against

Heritage Bank in the District Court for the Eighth Judicial District, Cascade

County. Her Complaint alleged that Heritage Bank had stolen money from her

account and, in doing so, had committed acts of fraud and intentional infliction of

emotional distress.

¶3     Heritage Bank filed a counterclaim seeking $350.95 for the unpaid balance

of Chapman’s overdraft protection loan, as well as an award of attorney fees and

costs. Additionally, Heritage Bank filed the following: (1) a motion to dismiss for

failure to present a short and plain statement of the claims; (2) a motion to dismiss

for failure to plead fraud with particularity; (3) a motion to strike unfounded

allegations; (4) a motion for judgment on the pleadings; (5) a motion for sanctions

pursuant to Rule 11, M.R.Civ.P.; and (6) a motion for summary judgment on

Chapman’s claims as well as Heritage Bank’s counterclaim.


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¶4     The District Court entered an Order purporting to simultaneously grant

each of these motions except the request for sanctions. Chapman now appeals the

District Court’s decision to grant summary judgment.

¶5     Initially, we note that it is legally impossible to grant summary judgment on

Chapman’s claims while simultaneously dismissing her claims on the grounds

which Heritage Bank asserted. Summary judgment, being an adjudication on the

merits of Chapman’s claims, simply precluded dismissal for shortcomings in the

pleadings. Setting this issue aside, we turn to Chapman’s challenge to the court’s

decision to grant summary judgment.

¶6     It is manifest on the face of the briefs and the record before us that this

appeal is without merit. Accordingly, we conclude that our decision in this case is

appropriately rendered by memorandum opinion pursuant to Section 1, Paragraph

3(d) of our 1996 Internal Operating Rules, as amended in 2003.

¶7     We are consistently willing to make accommodations for pro se litigants by

relaxing the technical requirements which do not impact fundamental bases for

appeal. However, appellants ultimately have the burden of establishing error by a

district court. State v. Bailey, 2004 MT 87, ¶ 26, 320 Mont. 501, ¶ 26, 87 P.3d

1032, ¶ 26. Here, Chapman fails to establish any error because she does not

specify any impropriety in the District Court’s decision.        Instead, Chapman

presents arguments which she did not raise in the proceedings below. It is well

established that this Court does not consider arguments raised for the first time on




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appeal. Andersen v. Monforton, 2005 MT 310, ¶ 30, 329 Mont. 460, ¶ 30, 125

P.3d 614, ¶ 30.

¶8    Accordingly, we affirm the District Court’s Order granting summary

judgment.



                                           /S/ JAMES C. NELSON


We Concur:

/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE




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