                                      No. 96-494

           W THE SUPREME COURT OF THE STATE OF MONTANA

                                        1997


FLATHEAD COUNTY and THE FLATHEAD CITY-
COUNTY BOARD OF HEALTH,

                Plaintiffs and Respondents,

          v.

ALAN D. ENGEBRETSON,

                Defendant 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 Appellant:

                 Teny Wallace, Missoula, Montana

          For Respondents:

                 Dennis J. Hester, Deputy County Attorney, Kalispell, Montana

                 Allen P. Laming, Conklin, Nybo, LeVeque & Murphy, P.C., Great Falls,
                 Montana



                                                     Submitted on Briefs: March 20, 1997
                                                                Decided: A p r i l 1 5 , 1 9 9 7
Chief Justice J. A. Turnage delivered the Opinion of the Court.

       Pursuant to Section I, Paragraph 3(c) Montana Supreme Court 1995 Internal

Operating Rules, the following decision shall not be cited as precedent and shall be published

by its filing as a public document with the Clerk of the Supreme Court and by a report of its

result to State Reporter and West Publishing Companies.

       Flathead County and the Flathead City-County Board of Health (Plaintiffs) filed a

complaint and injunction against Alan Engebretson for violating zoning (Count I), flood

plain (Count 11), and sewage treatment regulations (Count 111). Engebretson counterclaimed

for malicious prosecution. The Eleventh Judicial District Court, Flathead County, granted

summary judgment to Plaintiffs on Counts 11, 111, and the counterclaim. The court also

ordered Engebretson to remove his trailer from the property and denied his motions for

summary judgment. Engebretson appeals. We affirm.

       We restate the issues raised on appeal as follows:

       1.     Did the District Court properly find that Engebretson built a structure without

a permit on the hundred-year flood plain?

       2.     Did the District Court properly find that Engebretson altered or operated a

sewage system without a permit and constructed and maintained a dwelling attached to an

unpermitted sewage system?

       3.     Did the District Court properly find that Gray was not employed by Flathead

County?
                                     BACKGROUND

       Flathead County adopted flood plain regulations requiring a permit before new

construction, substantial improvements, or alterations to structures are undertaken. The

Flathead City-County Board of Health adopted regulations that apply to sewage treatment

systems in Flathead County, except municipal systems, and require a permit before a person

constructs, alters, repairs, or operates a sewage treatment system. The regulations also make

it unlawful to construct or maintain any dwelling without a sewage treatment system

approved by the City-County Health Department.

       In 1992, Engebretson moved a trailer onto property located in Flathead County,

Montana.    The property, designated as Tract 2AB, is classified as "R-1 Suburban

Residential," which prohibits, without a conditional use permit, the use of temporary

buildings or structures. Tract 2AB is also located on the one-hundred year flood plain of the

Stillwater River.

       Engebretson began constructing a temporary structure around his trailer. Glen Gray,

a sanitarian for the Flathead City-County Board of Health, informed Engebretson that the

continued use of his property violated sewage regulations. Several months later, because

Engebretson had not taken corrective action and the property was still occupied, Gray

informed the Flathead County Attorney, who charged Engebretson with violations of zoning,

flood plain, and sewage treatment regulations. These charges were dropped and replaced by

this complaint and injunction.
       At the commencement of the civil proceedings, Engebretson had not obtained a flood

plain development pennit for the placement of his trailer, or for the completed structure

surrounding it. Nor had he obtained a permit for construction or operation of the sewage

system serving the trailer. During the District Court proceedings, a dispute arose as to

whether Engebretson had removed his trailer kom Tract 2AB, or if it had been disassembled

during construction of the surrounding structure. The issue remains unresolved and is not

before this Court.

        After Plaintiffs filed their complaint, Engebretson counterclaimed for malicious

prosecution. Plaintiffs filed an amended complaint alleging, in addition to the counts

contained in the original complaint, that Engebretson's construction of the temporary

structure around his trailer without a conditional use permit was illegal. Plaintiffs moved for

summary judgment on Counts I1 and 111, and the counterclaim. Engebretson opposed

Plaintiffs' motion for summary judgment on Counts I1 and 111, and the counterclaim. He also

filed a motion for summary judgment on Counts I, 11, 111, and on his counterclaim, which

Plaintiffs opposed.

       The District Court granted Plaintiffs' motion for summa~y
                                                               judgment on Counts I1 and

111, Engebretson's counterclaim, ordered Engebretson to vacate the trailer and surrounding

structure, and denied Engebretson's motion for summary judgment on Counts I, 11,111, and

his counterclaim. Engebretson appealed the order granting Plaintiffs' motion for summary

judgment on Counts I1 and 111, and his counterclaim. Because Count I of Plaintiffs' amended
complaint had not been disposed of, this Court remanded the appeal to allow Engebretson

to obtain Rule 54(b), M.R.Civ.P., certification. The District Court certified that final

judgment on all issues except Count I had been entered. We address the issues certified by

the District Court as final.

                                       DISCUSSION

       Summary judgment is proper when no genuine issues of material fact exist and the

moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. This Court

reviews a district court's grant of summary judgment de novo, applying the same Rule 56(c)

criteria used by a district court. Carelli v. Hall (Mont. 1996), 926 P.2d 756, 759, 53 St.Rep.

1116, 1117. The moving party has the initial burden of establishing the absence of genuine

issues of material fact and entitlement to judgment as a matter of law. Once the moving

party satisfies its initial burden, then the burden shifts to the party opposing summary

judgment to present evidence raising a genuine issue of material fact.   w, P.2d at
                                                                           926

759-60. Mere denial or speculation is insufficient to raise a genuine issue of material fact.

RichlandNat. Bank & Trust v. Swenson (1991), 249 Mont. 410,417, 816 P.2d 1045, 1050.

       1.     Did the District Court properly find that Engebretson built a structure without
a permit on the hundred-year flood plain?

       Engebretson argues that there exists a genuine issue of material fact as to whether his

structure is located on a hundred-year flood plain. In their motion for summary judgment,

Plaintiffs submitted the affidavit of Eric Mulcahy, Flathead County Floodplain Coordinator,

who stated that Tract 2AB is classified as being within the one-hundred year flood plain of

                                              5
the Stillwater River. The District Court also relied on the results of an elevation survey that

establish the elevation of Tract 2AB is within the flood plain at the location of Engebretson's

trailer.

           Engebretson presented no facts to the contrary, other than unsupported allegations that

he believed his trailer was located outside of the flood plain. It is undisputed that

Engebretson placed a trailer on Tract 2AB and built a structure around it without a flood

plain permit. We hold that the District Court did not err when it granted summary judgment

in favor of Plaintiffs on Count I1 and denied Engebretson's motion for summary judgment

on Count 11.

      2.     Did the District Court properly find that Engebretson altered or operated a
sewage system without a permit and constructed and maintained a dwelling attached to an
unpermitted sewage system?

           Engebretson argues that there exists a genuine issue of material fact as to whether he

is operating an unpermitted sewage system. He claims that his father obtained a permit in

1975. Engebretson presented no affidavit from his father concerning the claimed permit.

Nor did he submit a copy of the permit. Gray explained in his deposition that a sewage

pcrmit was not issucd for Tract 2AB in 1975 or any time thereafter. Engebretson's

unsupported assertions are insufficient to raise a genuine issue of material fact.

           Engebretson also argues that because the use of Tract 2AB was continuous, he is

permitted to attach his trailer to a previous sewage system. This argument fails because

Engebretson did not provide evidence that his father obtained a permit for the previous
sewage system. We hold that the District Court properly granted summary judgment to

Plaintiffs and denied Engebretson's motion for summary judgment on Count 111.

      3.      Did the District Court properly find that Gray was not employed by Flathead
County?

       One of the six elements a plaintiff must prove in a malicious prosecution is that the

defendant was 1-esponsiblefor litigating, prosecuting, or continuing the proceeding. Davis

v. Sheriff (1988), 234 Mont. 126, 130, 762 P.2d 221, 224. The District Court found that

Gray was not an employee of Flathead County, and therefore, the County could not be held

responsible for his conduct. Engebretson argues that the court erred when it found that Gray

was an employee of the City-County Board of Health, rather than an employee of Flathead

County, because Gray stated in his deposition, "I'm the sanitarian with the Flathead County

Health Department."

       Gray's statement from his deposition does not create a genuine issue of material fact.

In his deposition, Gray clarified that he worked for the Flathead City-County Health

Department. Because there is nothing to indicate that the County is Gray's employer and is

responsible for his conduct, Engebretson has not established a genuine issue of fact as to

whether Gray was responsible for litigating, prosecuting, or continuing the proceeding

against him. The District Court properly granted summary judgment in favor of Plaintiffs.

We hold that the District Court did not err when it granted summary judgment to Plaintiffs

on Engebretson's malicious prosecution counterclaim and denied summary judgment to

Engebretson on his counterclaim.

                                             7
i        Affirmed.




    We concur:
