                              NO.     94-570
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1995


TRY-CITY LUMBER, INC.,
a Montana corporation,
            Plaintiff and Respondent,
     -VS-


NYLE S. ANDERSON, DARWIN HAI\IILTON,
MARY HAMILTON, MEADOW HILLS HOMEOWNERS
ASSOC., MELANIE VESTRE, DAVID KNOLL,
STANLEY W. PINE, and all other persons,
unknown, claiming, or who might claim,
any right, title, estate, or interest
in or lien or encumbrance upon the real
property described in the complaint adverse
to Plaintiffs' ownership or any cloud upon
Plaintiffs' title thereto, whether such
claim or possible claim be present or contingent,
            Defendants and Appellant.


APPEAL FROM:     District Court of the Eleventh Judicial District,
                 In and for the County of Flathead,
                 The Honorable Ted 0. Lympus, Judge presiding.


COUNSEL OF RECORD:
            For Appellants:
                 Patrick M. Springer, Attorney at Law,
                 Kalispell, Montana

            For Respondent:
                 Randall S. Ogle; Ogle & Worm, Kalispell,
                 Montana


                                    Submitted on Briefs:   April 6, 1995
                                                Decided: May 11, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.



     Darwin Hamilton appeals from the grant of summary judgment to

Try-City    Lumber,      Inc.   by     the    Eleventh    Judicial      District    Court,

Flathead County.         We affirm and remand.

     We address the following issues:

     1. Did the District Court err in granting the motion of
     Try-City Lumber, Inc. for summary judgment?

     2.    Is Try-City Lumber,                 Inc.    entitled to Rule 32,
     M.R.App.P., damages?

     Try-City      Lumber,      Inc. (Try-City) filed an action to quiet

title to Lot 45 of Meadow Hills, a residential subdivision located

in Flathead County, Montana.               Meadow Hills originally was developed

by Darwin Hamilton (Hamilton), appellant herein. Although numerous

defendants were named in the action, the                    underlying--and         largely

undisputed--facts        of   record       primarily    involve    Try-City,       Hamilton

and Dean P. Conaway (Conaway).                Taken in the light most favorable

to Hamilton,       the party opposing summary judgment, the facts of

record are as follows.

     Hamilton was an active real estate developer in Flathead

County.     When    financial        and     legal    difficulties      arose,     Hamilton

became associated in business dealings with Conaway.                       Hamilton had

been the owner of a number of residential lots in Meadow Hills,

including Lot 45; Conaway became the successor owner of Lot 45.

     During a construction project on another lot in Meadow Hills,

Conaway failed to pay Try-City, which supplied him with building

materials   for    the    project.          Try-City     brought   an    action     against


                                               2
conaway; conaway was served,           but did not respond or contest the

action.       Try-City obtained a default judgment against Conaway                on
January 24,      1992,    in the amount of $13,283.96, plus interest.

Notice of entry of judgment was duly filed thereafter.                Pursuant to

§ 25-g-301 (2), MCA, Try-City's judgment attached as a judgment lien

against all real property owned by Conaway.              Conaway was the record

owner of Lot 45 on January 24, 1992.

      Try-City initiated proceedings in aid of execution of its

judgment on April 13, 1992.            A       supplemental   proceeding   for   the

purpose of determining assets owned by Conaway                 occurred on April

21,   1992.      Hamilton    was   aware of Try-City's judgment against

Conaway   and attended the proceeding.                Attorney Randall S. Ogle

(Ogle)    appeared on       Try-City's behalf and inquired of              Conaway

regarding his assets; Conaway          acknowledged both his ownership of

Lot 45 and Try-City's judgment against him.                   Brent Hall (Hall),

Try-City's      general     manager,       also    attended    the   supplemental

proceeding.
      Subsequent to the proceedings in aid of execution and on June

30, 1992, Conaway apparently executed a quitclaim deed to Lot 45 in

Hamilton's favor.         Ogle's law office prepared the realty transfer

certificate for the purpose of recording the quitclaim deed from

Conaway to Hamilton; Ogle did not notify Try-City of the existence

of the quitclaim deed to Lot 45.                  Hamilton did not record the

quitclaim deed until April 7, 1993.
      Conaway filed a petition in bankruptcy on July 17, 1992. Try-

City filed a proof of          claim   ,and its claim was classified as a

                                           3
secured claim against Lot 45.           The United States Bankruptcy Court

ultimately released Conaway         from all dischargeable debts; nothing
of record indicates that any lien or claim against Lot 45 was

released.

        After the bankruptcy stay was lifted, Try-City proceeded to

foreclose its judgment lien against Lot 45.                The District Court

issued a writ of execution on December 10,                1992,   directing     the

Flathead     County    Sheriff    to   satisfy      Try-City's    judgment     from

Conaway's    assets.     The sheriff issued a notice of sheriff's sale

for Lot 45 the same day;          the sale was scheduled for January 6,

1993.     Notice of the sale was provided to Conaway, Hamilton, and

Hamilton's    counsel.

        The sale occurred as scheduled.            Hall appeared for Try-City

and purchased Lot 45 on its behalf for                   $14,609.58.       Neither

Conaway,     Hamilton,    nor    Hamilton's    counsel    attended the        sale.

Conaway's    one-year right of redemption regarding Lot 45 ran from

the January 6, 1993, date of sale.

        Try-City   subsequently     received     and,   on January 15,        1993,

recorded the sheriff's certificate of sale regarding Lot 45. On

April 7, 1993, Hamilton caused the quitclaim deed to Lot 45, which

apparently was executed in his favor by Conaway on June 30, 1992,

to be recorded.          Try-City      initiated     the quiet     title     action

presently before us on April 21, 1993, to clear the title to Lot

45.
        Conaway did not redeem Lot 45 during his one-year redemption

period.      No one else redeemed the property.             Conaway's right of


                                         4
redemption expired on January 6, 1994.

         In responding to Try-City's quiet title action,                           Hamilton
raised        a    number    of   defenses      and   affirmative    defenses.      Briefly

stated,        the defenses were premised primarily on allegations that

Try-City's judgment against Conaway was extinguished in Conaway's

bankruptcy action; that Try-City is not the owner of Lot 45 because

Conaway had no interest therein at the time of the sheriff's sale;

and that Try-City--by and through its legal counsel--had actual or

constructive knowledge at all pertinent times that                          Conaway had no

right,        title or interest in Lot 45.               Hamilton    also    counterclaimed

against Try-City on essentially the same grounds.

         Try-City subsequently moved for summary judgment, briefed the

motion        and presented extensive materials in                     support     thereof.

Hamilton           responded      to the motion and offered primarily his

affidavit and the affidavit of his counsel.                            Those      affidavits

revolve around Hamilton's two basic contentions, which are:

         1)       Even though title to Lot 45 was in Conaway's name at the

         time       of   Try-City's     judgment,        Hamilton and Conaway         never

         intended Conaway to be the actual owner of the property; their

         intent was to remove ownership of the property from Hamilton's

         name       while he attempted to weather                   financial and legal

         difficulties;         and

         2)       Ogle's    involvement      in the quitclaim deed transaction

         between Hamilton and Conaway in June of 1992 which, according

         to       Hamilton, serves as actual and/or constructive knowledge to

         Try-City,          Ogle's    client,     that    Conaway     had    no   ownership


                                                  5
      interest in Lot 45 at any pertinent time

      The District Court granted Try-City's motion for summary
judgment and quieted title to Lot 45 in Try-City against all named

defendants.     Hamilton appeals.

      Did the District Court err in granting Try-City's motion
      for summary judgment?

      We review a district court's ruling on a motion for summary

judgment de now.     Summary judgment is proper only when no genuine

issue of material fact exists and the moving party is entitled to

judgment as a matter of law.    Rule    56(c), M.R.Civ.P.;   Spain-Morrow

Ranch, Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331-

32.

      Hamilton advances two challenges to the District Court's grant

of summary judgment.    In the first, he asserts that the court erred

as a matter of law in concluding that Try-City's judgment lien

remained a valid judgment lien against Lot 45 subsequent to the

conclusion of Conaway's bankruptcy proceeding. Hamilton cites this

Court to 11 U.S.C. § 524(c) (2) (1988), and to In re Mendenhall, 93-

11405-7-JLP, 13 M.B.R. 73, November 25, 1993, on which the District

Court relied.     The extent of his argument in this regard is that

"[iIt is respectfully submitted that Section 524, and Mendenhall is

not applicable to the facts of this case."      He then provides a copy

of those cited materials.

      With regard to this bankruptcy-related argument, we observe

only that it is counsel's function to present and develop legal

arguments on the client's behalf and to apply those legal arguments

and authorities to the facts of record in the case.          Counsel has

                                    6
totally failed to do so here.        We decline to undertake the role of
both advocate and reviewing court.

        Hamilton's second assertion of error is that genuine issues of

material fact exist relating to Try-City's actual or constructive

knowledge of Conaway's alleged lack of ownership or interest in Lot

45.     Here,   he relies on affidavits presented in response to Try-

City's motion for summary judgment, contending that the District

Court ignored his affidavit evidence.

        The record in this case leaves no room for doubt that the

District Court properly determined that no genuine                 issue of
material fact exists in this regard.          Hamilton makes much of his

own, and his counsel's, statements that Ogle--and through him, Try-

City--knew of the quitclaim deed transaction between himself and

Conaway in the summer of 1992.        While it may be true that a factual

dispute exists regarding the extent of Ogle's knowledge at that

time,     such a factual dispute is not "material" in this case.

        "Disputed   facts    are   material   .   .   if   they involve the
elements of the cause of action or defense at issue to an extent

that necessitates resolution of the issue by a trier of fact."

State Med. Oxygen v. American Med. Oxygen (Mont. 19941,            883 P.2d

1241,     1243, 51 St.Rep.   1063, 1064. Here, the record is clear that

Conaway was the record owner of Lot 45 on January 24, 1992, when

Try-City obtained its judgment against him.            Pursuant to § 25-9-

301(2),    MCA, that judgment became a judgment lien against all real

property owned by Conaway at that time.           Matters relating to the

subsequent quitclaim deed from Conaway to Hamilton, including any


                                       7
actual    or     constructive    notice   of    that    transaction   by   Try-City,   have

no bearing whatsoever on and, therefore, are not material to the

validity of Try-City's judgment lien.

         We conclude that the District Court did not err in determining

that no genuine issues of material fact exist and that Try-City is

entitled to judgment as a matter of law.

         Is Try-City entitled to Rule 32, M.R.App.P., damages?

         Try-City requests damages against Hamilton pursuant to Rule

32,   M.R.App.P.          Rule 32 provides that if this Court is satisfied

from the record and the presentation of the appeal that it was

taken without reasonable or substantial grounds,                           we may award
appropriate         damages.

         Sanctions under Rule 32 are seldom requested in Montana, and

even less seldom awarded.                      Counsel understand that we will not

lightly determine that an appeal is so lacking in merit as to meet

the "frivolous" threshold which must be met before we will impose

the Rule 32 sanction.

         Here,      no reasonable or substantial basis existed for the

bringing of this appeal.                  Indeed,      the appeal is without     merit   and

frivolous.          No effort at all, much less a serious one, was made to

present colorable legal arguments in support of an appeal.                             Where

no such arguments can be made, no appeal should be taken.
         We conclude that Try-City is entitled to damages against

Hamilton pursuant to Rule 32, M.R.App.P., for the bringing of a

frivolous appeal.               We further conclude that those damages properly

are the reasonable amount of Try-City's attorney fees in defending
against   this   appeal.

     We affirm the District Court's grant of summary judgment in

favor of Try-City and remand for proceedings to determine the

amount    of Rule 32,      M.R.App.P.,       damages to which Try-City is

entitled in accordance with this opinion.

     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of this Court and by a report of its result to the

West Publishing Company.




We concur:




                                         9
                                          May 11, 1995

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following namedI:


Patrick M. Spririger
Attorney at Law
P.O. Box 1112
Kalispell, MT 5i9903-1112

Randall S. Ogle
Ogle & Worm
P.O. Box 899
Kalispell, MT 59903-0899

                                                     “3 SMITH
                                                     EERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
