97-161




                                                                         No. 97-161

                                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                         1998 MT 63N



                                                  HOBBLE-DIAMOND CATTLE COMPANY,

                                                                   Plaintiff and Appellant,

                                                                                     v.

                                                    TRIANGLE IRRIGATION COMPANY,

                                                                  Defendant and Respondent.




                  APPEAL FROM:                   District Court of the Sixth Judicial District,
                                                     In and for the County of Sweet Grass,
                                                  The Honorable Joe L. Hegel, Judge presiding.


                                                               COUNSEL OF RECORD:

                                                                             For Appellant:

                                       Jock B. West; West, Patten, Bekkedahl & Green, P.L.L.C.;
                                                           Billings, Montana

                                                                            For Respondent:

                                             Steven T. Potts; Thompson, Jacobson & Potts, P.C.;
                                                            Great Falls, Montana



                                                                           Submitted on Briefs: January 22, 1998
                                                                                           Decided: March 24,
                                                                            1998
                                                                           Filed:


                                                     __________________________________________
                                                                       Clerk


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                         Justice Jim Regnier 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   In 1986, Hobble-Diamond Cattle Company filed a complaint in the
Sixth Judicial District Court, Sweet Grass County, against Triangle Irrigation
Company. Hobble-Diamond brought suit against Triangle seeking recovery
for damages sustained as a result of alleged deficiencies in the design and
installation of a sprinkler system at the Hobble-Diamond Ranch. Triangle
filed a motion for summary judgment, which the District Court granted on
December 16, 1996. On January 6, 1997, Hobble-Diamond filed a motion for
reconsideration of order granting motion for summary judgment. On March
7, 1997, the motion was deemed denied pursuant to Rule 59(g), M.R.Civ.P.,
when the District Court did not rule on the motion. Hobble-Diamond now
appeals from the order granting Triangle summary judgment, as well as from
the denial of its motion for reconsideration. We affirm.

¶3   The issue on appeal is whether the District Court erred in granting
Triangle's motion for summary judgment.
           FACTUAL AND PROCEDURAL BACKGROUND

¶4   In 1983, Hobble-Diamond purchased an agricultural irrigation system
from Triangle for its ranch located near Greycliff, Montana. The system was
installed in the winter of 1983-84. Triangle began installing the system, which
had six pivots. However, installation of the system was ultimately completed
by another company and Triangle was not involved with the system after
December 5, 1983. Sometime after installation, Hobble-Diamond claimed that
there were problems with pivots 3, 4, and 6.

¶5   Hobble-Diamond filed this action against Triangle in 1986, alleging that
the pivots in the irrigation system it purchased from Triangle in 1983 were
defective or improperly installed. Shortly before the scheduled trial in 1989,
Hobble-Diamond sought leave to amend its complaint to add a claim based on
alleged problems with another pivot, pivot 5; the District Court refused to
authorize the amendment.

¶6   A bench trial in July 1989 resulted in a judgment in Triangle's favor.
Hobble-Diamond appealed, raising only the issue of the court's denial of its
motion for leave to amend the complaint. We reversed, holding that the court
had abused its discretion, and remanded for further proceedings.
Hobble-Diamond Cattle Co. v. Triangle Irrigation Co. (1991), 249 Mont. 322,
326, 815 P.2d 1153, 1156. Remittitur issued on September 4, 1991.


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¶7   In May 1994, Triangle moved for dismissal pursuant to Rule 41(b),
M.R.Civ.P., for failure to prosecute. The District Court granted the motion
and, after a motion for reconsideration by Hobble-Diamond, entered its
memorandum and judgment of dismissal. Hobble-Diamond appealed, claiming
that the District Court abused its discretion in dismissing its case. We
reversed, concluding that the District Court abused its discretion in granting
Triangle's motion to dismiss. Hobble-Diamond Cattle Co. v. Triangle
Irrigation Co. (1995), 272 Mont. 37, 43, 899 P.2d 531, 535. Remittitur issued
on August 1, 1995.

¶8   On November 15, 1995, Hobble-Diamond filed a motion to amend the
complaint with respect to pivot 5. In its motion to amend, Hobble-Diamond
made claims with respect to pivot 5 based upon breach of contract, negligence,
and strict product liability. Hobble-Diamond did not file a brief in support of
the motion nor did it request a hearing on its motion.

¶9   After receiving Hobble-Diamond's motion to amend, Triangle served
discovery requests upon Hobble-Diamond on November 20, 1995. Triangle
requested any documents relating to damages arising from the defective pivot
5 and identification of any witnesses with knowledge of pivot 5. Moreover,
Triangle requested an admission from Hobble-Diamond that Triangle did not
"negligently or otherwise improperly design, install, or correct any equipment
which caused any surging problem relating to pivot no. 5, nor did Triangle
Irrigation Co. breach any contract with plaintiff." Hobble-Diamond did not
respond to these discovery requests.

¶10 Triangle filed a motion for summary judgment on November 8, 1996.
On December 16, 1996, the District Court entered an order granting Triangle's
motion for summary judgment. The court held that Triangle was entitled to
summary judgment because Hobble-Diamond's claims relating to pivot 5 were
barred by the statute of limitations. Furthermore, the court ruled that, in the
alternative, Triangle was also entitled to summary judgment based upon the
doctrine of estoppel because Hobble-Diamond had adopted a theory of
causation in a related case that was inconsistent with a theory of causation that
would hold Triangle liable for the damages claimed with respect to pivot 5.

¶11 Hobble-Diamond subsequently filed a motion for reconsideration on
January 6, 1997. On March 7, 1997, the motion was deemed denied pursuant
to Rule 59(g), M.R.Civ.P., when the District Court did not rule on the motion.
Hobble-Diamond filed a notice of appeal on March 7, 1997.
                       DISCUSSION

¶12 Did the District Court err in granting Triangle's motion for summary
judgment?

¶13 On appeal, Hobble-Diamond argues that the District Court erred in
granting Triangle's motion for summary judgment because there are genuine
issues of material fact which preclude the granting of summary judgment for
Triangle. Hobble-Diamond also contends that the District Court erred in

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concluding that the statute of limitations barred the amendment of the
complaint to include claims relating to pivot 5.

¶14 At first, we note that the District Court did not grant summary judgment
because Hobble-Diamond's allegations did not raise any genuine issue of
material fact. Instead, the District Court entered summary judgment against
Hobble-Diamond as a matter of law based upon application of the statute of
limitations and estoppel. Our standard of review relating to conclusions of law
is whether the trial judge's interpretation of the law is correct. Carbon County
v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686;
Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d
601, 603.

¶15 Although the District Court granted summary judgment on the bases of
estoppel and statute of limitations, we conclude that another ground raised by
Triangle's summary judgment motion dispositively dictates that it was entitled
to a judgment as a matter of law.

¶16 On November 20, 1995, Triangle served discovery requests upon
Hobble-Diamond. Discovery Request No. 6 stated:
     Please admit that defendant Triangle Irrigation Co. did not
     negligently or otherwise improperly design, install, or correct
     any equipment which caused any surging problem relating to
     pivot no. 5, nor did defendant Triangle Irrigation Co. breach any
     contract with plaintiff.
Hobble-Diamond did not respond to this request.

¶17 Triangle moved for summary judgment, arguing that it was entitled to
summary judgment because Hobble-Diamond had admitted that Triangle was
not liable because it did not answer Discovery Request No. 6. Hobble-Diamond
opposed summary judgment on this ground, claiming that it never
received Triangle's discovery request. In its motion opposing summary
judgment, Hobble-Diamond did not present any evidence that it had not
received Triangle's discovery request. Also, at no time during the proceedings
did Hobble-Diamond attempt to serve a late denial to the request for
admission. However, the District Court did not base its summary judgment
ruling on Hobble-Diamond's failure to answer requests for admissions.

¶18       Rule 36(a), M.R.Civ.P., states in relevant part
          Request for admission. A party may serve upon any other party
          a written request for the admission, for purposes of the pending
          action, only, of the truth of any matters within the scope of Rule
          26(b) set forth in the request that relate to statements or opinions
          of fact or of the application of law to fact . . . .

               Each matter of which an admission is requested shall be
          separately set forth. The matter is admitted unless, within 30
          days after service of the request, or within such shorter or longer
          time as the court may allow, the party to whom the request is

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          directed serves upon the party requesting the admission a
          written answer or objection addressed to the matter, signed by
          the party or by the party's attorney . . . .

Furthermore, Rule 36(b), M.R.Civ.P., provides in part:

          Effect of admission. Any matter admitted under this rule is
          conclusively established unless the court on motion permits
          withdrawal or amendment of the admission.

¶19 Therefore, under Rule 36(a), any request for an admission that remains
unanswered is admitted for all purposes. By failing to answer Triangle's
discovery request, Hobble-Diamond admitted that Triangle did not
"improperly design, install, or correct any equipment which caused any
surging problem relating to pivot no. 5," and that Triangle did not breach any
contract with Hobble-Diamond.

¶20 This Court has previously addressed the issue of the propriety of
summary judgment
where the ground is the failure to respond to requests for admissions.
Summary judgment may be granted based on a fact deemed established by
operation of Rule 36, M.R.Civ.P. See Easton v. Cowie (1991), 247 Mont. 181,
805 P.2d 573; Morast v. Aulbe (1974), 164 Mont. 100, 519 P.2d 157.


¶21 Although in this case the District Court did not grant summary
judgment on the basis of Rule 36, we affirm the granting of summary judgment
on that basis. We affirm a district court's decision which is correct regardless
of the court's reasoning in reaching the decision. Phillips v. City of Billings
(1988), 233 Mont. 249, 252, 758 P.2d 772, 774. Thus, for the reasons stated
above, we affirm the summary judgment for Triangle on Hobble-Diamond's
claim for damages.

¶22       Affirmed.
                                                                       /S/        JIM REGNIER
We Concur:
/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER




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