                                           No. 02-221

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2002 MT 210N


PETER E. VAN HAREN,

              Plaintiff,

         v.

CLAY BRESHEARS,

              Third-Party Plaintiff and Appellant,

         v.

CITY OF BILLINGS,

              Third-Party Defendant and Respondent.



APPEAL FROM:          District Court of the Thirteenth Judicial District,
                      In and for the County of Yellowstone,
                      The Honorable G. Todd Baugh, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                      Ingrid Gustafson; Graves, Toennis & Gustafson, Billings, Montana

              For Respondent:

                      Harlan B. Krogh, Gerry Fagan; Moulton, Bellingham, Longo & Mather,
                      Billings, Montana


                                                     Submitted on Briefs: July 11, 2002

                                                                 Decided: September 17, 2002
Filed:


                      __________________________________________
                                        Clerk
Chief Justice Karla M. Gray 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    Clay Breshears filed a third-party complaint against his

employer, the City of Billings, contending the City must indemnify

and defend him in a suit filed against him by former co-worker

Peter Van Haren.          The City moved for judgment on the pleadings

pursuant to Rule 12(c), M.R.Civ.P., and the Thirteenth Judicial

District Court, Yellowstone County, granted the motion.                     Breshears

appeals.     We reverse and remand.

                                     BACKGROUND

¶3    Van Haren sued Breshears, his former City of Billings co-

worker, for committing an “intentional and malicious” act resulting

in injury while the two were at work.                     Breshears subsequently

initiated a third-party claim against the City, asserting that his

alleged conduct was imputable to the City under the doctrine of

respondeat superior.         This case then became a procedural nightmare.

 For purposes of this opinion, we need set forth only the following

additional background.




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¶4   Van Haren sought leave to amend his complaint to add the City

as a defendant.   The District Court denied the motion, determining

as a matter of law that Breshears did not commit the alleged acts

within the scope of his employment.      The City subsequently moved

for judgment on the pleadings pursuant to Rule 12(c), M.R.Civ.P.,

asserting no material issue of fact remained and the court’s

determination on the scope of employment issue entitled the City to

judgment as a matter of law.     Breshears opposed the motion and

argued disputed facts existed which made the scope of employment

issue a matter of fact, not law.     The District Court granted the

City’s motion, finding and concluding that Breshears’ conduct was

not within the course and scope of his employment, was malicious,

and constituted the criminal offense of assault.     Based on these

findings and conclusions, the District Court determined the City

need not indemnify Breshears.   Breshears appeals.
                            DISCUSSION

¶5   The issue on appeal is whether the District Court erred in

granting the City’s motion for judgment on the pleadings pursuant

to Rule 12(c), M.R.Civ.P.

¶6   A district court’s decision on whether to grant a motion for

judgment on the pleadings is a conclusion of law. We review

conclusions of law to determine whether they are correct.        See

Hedges v. Woodhouse, 2000 MT 220, ¶ 8, 301 Mont. 180, ¶ 8, 8 P.3d

109, ¶ 8.

¶7   The law relating to a trial court’s consideration of a motion

for judgment on the pleadings is well-settled in Montana.    “If, on


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a    motion   for   judgment   on   the       pleadings,    matters   outside      the

pleadings are presented to and not excluded by the court, the

motion shall be treated as one for summary judgment and disposed of

as provided in Rule 56 . . . .”               Rule 12(c), M.R.Civ.P.        In other

words, if a trial court considers matters not contained in the

pleadings, it must convert a motion for judgment on the pleadings

to a motion for summary judgment.               See Mathews v. Glacier General

Assur. Co. (1979), 184 Mont. 368, 375-76, 603 P.2d 232, 236-37.                     In

such an event, the court must give all parties a “reasonable

opportunity to present all material made pertinent to such a motion

by Rule 56.”        Rule 12(c), M.R.Civ.P.          Moreover, the language in

Rule 12(c) regarding “conversion” to a Rule 56 motion is identical

to that contained in Rule 12(b), and, as a result, the “conversion”

requirements under both subsections of Rule 12 are the same.                       See

Bretz v. Ayers (1988), 232 Mont. 132, 136, 756 P.2d 1115, 1118.

Consequently, before a trial court can convert a Rule 12(c) motion

to a Rule 56 motion, it must give the parties formal notice of its

intent to do so in order that the parties have the opportunity to

present all pertinent facts and avoid surprise.                    See Hoveland v.

Petaja (1992), 252 Mont. 268, 271, 828 P.2d 392, 393-94.
¶8     In ruling on the City’s motion for judgment on the pleadings

in the present case, the District Court stated it was giving

Breshears “the benefit of any doubt concerning discovery and all

other content of the court file. . . .”                Thus the court clearly

considered     matters   outside    the        pleadings.     In    doing    so,   it

essentially converted the motion to a Rule 56 motion.                 However, the


                                          4
court failed to give notice to the parties that it intended to do

so and, consequently, the court erred.   Indeed, the court stated it

was granting the City’s motion for judgment on the pleadings.   For

the reasons discussed above, this, too, constitutes error and

remand is necessary for the District Court to properly resolve the

City’s motion under either Rule 12(c) or Rule 56, M.R.Civ.P., after

notice and an opportunity for the parties to present all pertinent

materials.

¶9    Reversed and remanded for further proceedings consistent with

this opinion.


                                          /S/ KARLA M. GRAY


We concur:



/S/   PATRICIA COTTER
/S/   TERRY N. TRIEWEILER
/S/   W. WILLIAM LEAPHART
/S/   JIM RICE




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