                                                                                       June 3 2014


                                          DA 13-0764

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2014 MT 144N



TWAIN NEWMAN AYERS,

              Plaintiff and Appellant,

         v.

CHRISTIAN T. NYGREN,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Sixteenth Judicial District,
                        In and For the County of Custer, Cause No. DV 13-74
                        Honorable Michael B. Hayworth, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Twain Newman Ayers, self-represented, Shelby, Montana

                For Appellee:

                        Michael F. McMahon, Denny K. Palmer, McMahon, Wall & Hubley, PLLC,
                        Helena, Montana



                                                    Submitted on Briefs: May 8, 2014
                                                               Decided: June 3, 2014


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, 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     Twain Newman Ayers appeals from an order of the Sixteenth Judicial District Court,

Custer County, granting summary judgment in favor of Christian T. Nygren. We affirm.

¶3     Ayers was a co-defendant in a civil suit filed in 2011, in which Nygren was the

attorney representing the plaintiff’s insurer. Nygren mistakenly believed Ayers to be the

party insured by his client. Nygren contacted Ayers’s attorney, Paula Saye-Dooper, and

asked her to share her files related to the matter. Believing Nygren had been brought on as

co-counsel, Saye-Dooper did so. When the mistake was later discovered, Nygren was

ordered to pay $11,500 in sanctions, including $3,500 to Ayers for attorney fees and costs,

loss of litigation time, and unnecessary delay.

¶4     Ayers filed a petition for writ of execution in May 2013, in which he claimed he had

not received the $3,500 he was owed by Nygren. Saye-Dooper filed a satisfaction of

judgment and supporting affidavit. In her affidavit, Saye-Dooper said Nygren delivered to

her a personal check for $3,500, which she applied to Ayers’s outstanding bill for legal

services of $3,546.27. The petition for writ of execution was denied. Ayers then filed a

complaint against Nygren, again claiming that he had not received payment. The District

Court granted summary judgment in favor of Nygren.



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¶5     We review an order granting summary judgment de novo, applying the same criteria

as the district court. Pilgeram v. GreenPoint Mortg. Funding, Inc., 2013 MT 354, ¶ 9, 373

Mont. 1, 313 P.3d 839. Summary judgment is appropriate where there are no genuine issues

of material fact and the moving party is entitled to judgment as a matter of law. M. R. Civ.

P. 56(c). The moving party has the initial burden of establishing the absence of any genuine

issue of material fact. Sherrard v. Prewett, 2001 MT 228, ¶ 8, 306 Mont. 511, 36 P.3d 378.

The burden then shifts to the non-moving party to produce “‘substantial and material

evidence raising a genuine issue of material fact.’” Sherrard, ¶ 17 (quoting Montana Metal

Bldgs., Inc. v. Shapiro, 283 Mont. 471, 474, 942 P.2d 694, 696 (1997)).

¶6     Nygren produced a satisfaction of judgment and affidavit filed by Saye-Dooper

showing that he paid the sanctions ordered. He also produced a prior order denying Ayers’s

petition for a writ of execution and finding that the sanctions had already been paid. Nygren

established the absence of any genuine issue of material fact. Sherrard, ¶ 8. The burden

shifted to Ayers to produce evidence that would raise a genuine factual dispute about

whether Nygren paid the sanctions. Sherrard, ¶ 17. Ayers did not produce any such

evidence. Instead, Ayers argued that he had paid Saye-Dooper in full for her services, and

thus she was not entitled to apply the payment received from Nygren to her bill. This does

not raise a question about whether Nygren made the payment. The evidence presented to the

District Court clearly established that he did. Summary judgment was appropriate. M. R.

Civ. P. 56(c).

¶7     On appeal, Ayers argues that his rights to equal protection and due process were

violated. He argues Nygren should be held in contempt of court and claims the District

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Court acted with bias. None of these issues were raised before the District Court. We will

not address issues raised for the first time on appeal. Fletcher v. State, 2013 MT 266, ¶ 6,

372 Mont. 22, 309 P.3d 998.

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for memorandum opinions. The issues in this case

are legal and are controlled by settled Montana law, which the District Court correctly

interpreted.

¶9     Affirmed.

                                                 /S/ MIKE McGRATH

We Concur:

/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT




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