                                                                                             October 20 2015


                                            DA 15-0017
                                                                                             Case Number: DA 15-0017

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                            2015 MT 301



SCOTT BARDSLEY and DORA CICHANTEK,

               Plaintiffs and Appellants,

         v.

LIZANN PLUGER and EARNEST ANDERSON,

               Defendants and Appellees.


APPEAL FROM:           District Court of the Nineteenth Judicial District,
                       In and For the County of Lincoln, Cause No. DV-12-306
                       Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Scott G. Hilderman, Law Offices of Scott G. Hilderman, P.C.; Kalispell,
                       Montana

                       Gregory G. Schultz, Law Offices of Gregory Schultz, P.C.; Missoula,
                       Montana

                For Appellee:

                       L. Jason Bryan and Samantha P. Travis, Bryan & Travis, PLLP; Kalispell,
                       Montana



                                                    Submitted on Briefs: September 16, 2015
                                                               Decided: October 20, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1    Scott Bardsley and Dora Cichantek (collectively, the Plaintiffs) appeal from two

separate orders issued by the Nineteenth Judicial District Court, Lincoln County. In the

first, dated February 6, 2013, the District Court sua sponte amended an earlier August 21,

2012 order of protection. In the second, the District Court denied the Plaintiffs’ motion

to amend their complaint, granted summary judgment to Lizann Pluger and Earnest

Anderson (collectively, the Defendants), and awarded attorney’s fees to the Defendants.

We vacate the District Court’s February 6, 2013 amended order of protection. We affirm

the District Court’s denial of the motion to amend, grant of summary judgment, and

award of attorney’s fee.

¶2    We address the following issues on appeal:

      1. Whether the District Court abused its discretion by issuing the amended order
      of protection?

      2. Whether the District Court abused its discretion by denying the Plaintiffs’
      motion to amend their complaint?

      3. Whether the District Court erred by granting the Defendants’ motion for
      summary judgment?

      4. Whether the District Court abused its discretion by awarding the Defendants
      attorney’s fees?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    Scott Bardsley (Scott) owns a parcel of residential property (Bardsley property)

located in Troy, Montana and resides there with his domestic partner, Dora Cichantek

(Dora). Earnest Anderson (Earnest) and Lizann Pluger (Lizann), husband and wife,

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reside on the adjacent property (Pluger property). The Pluger property is owned by

Lizann’s uncle, Edwin Pluger (Edwin). Prior to 2011, Scott frequently used Pluger Way,

a private road that traverses the Pluger property, to access his property without objection.

However, beginning in 2011, relations between Scott and Lizann became increasingly

hostile, leading Lizann to seek an order of protection against Scott.

¶4     On August 21, 2012, the District Court granted Lizann’s petition for a permanent

order of protection against Scott. The order restrained Scott from committing acts of

abuse or threats against Lizann, required that he stay at least 1500 feet from Lizann, and

prohibited him from using Pluger Way to reach his residence. Scott did not respond to

Lizann’s petition and the court’s August 21 order is not the subject of this appeal.

Shortly after the court issued its order, Lizann installed a locked gate across the entrance

of Pluger Way.

¶5     On December 13, 2012, Scott and Dora filed a complaint against Earnest and

Lizann alleging that the Bardsley property enjoyed an express easement over the Pluger

property with regard to Pluger Way.          The Plaintiffs sought money damages for

interference with the alleged easement as well as a preliminary injunction to prevent the

Defendants from obstructing Pluger Way.          In support of their claim, the Plaintiffs

attached several documents to their complaint, including the deed to the Pluger property,

which identified Edwin as the sole owner of the property. The Plaintiffs did not name

Edwin in their complaint, however. In response to the complaint, the Defendants argued

that they were merely the occupiers of the Pluger property, not the owners, and the


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Plaintiffs needed to name Edwin, the real party in interest, to obtain the relief they

sought. The Defendants argued further that the public record was clear that the Bardsley

property did not enjoy an express easement over the Pluger property.

¶6     On February 5, 2013, the District Court held a hearing on the Plaintiffs’ request

for a preliminary injunction. While neither Dora nor Lizann attended the hearing, Scott

and Earnest both testified.    Scott conceded that he had mistakenly pled an express

easement over the Pluger property, but contended that his property enjoyed an easement

by prescription or necessity. On February 6, 2013, the District Court issued its order

denying the Plaintiffs’ request for a preliminary injunction.       In the same order, the

District Court sua sponte amended its earlier August 21 order of protection. The court’s

amended order of protection expanded the earlier order in that it prohibits Dora as well as

her family members from using Pluger Way.

¶7     On June 20, 2013, the Defendants moved for summary judgment on the basis that

the Plaintiffs failed to name the actual owner of the Pluger property in their complaint.

The Defendants also sought an award of attorney’s fees. The Plaintiffs never filed a

response to the Defendants’ motion for summary judgment. Instead, on May 28, 2014,

nearly a year and half after filing their complaint, the Plaintiffs filed a motion requesting

leave to amend their complaint. The Plaintiffs’ proposed amended complaint advanced

new legal theories of easement, including prescription and necessity, and named the title

holder of the Pluger property, Edwin, as a defendant. The Defendants objected to the

Plaintiffs’ motion. On October 14, 2014, the District Court issued its order, denying the


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Plaintiffs’ motion to amend, granting summary judgment to the Defendants, and

awarding the Defendants attorney’s fees. The court concluded that, while motions to

amend should generally be freely granted, legal grounds existed to deny the Plaintiffs’

request.

¶8     This appeal followed.

                               STANDARD OF REVIEW

¶9     We will not overturn a district court’s decision to continue, amend, or make

permanent an order of protection absent an abuse of discretion. Lockhead v. Lockhead,

2013 MT 368, ¶ 12, 373 Mont. 120, 314 P.3d 915.

¶10    We generally review a district court’s denial of a motion to amend pleadings to

determine whether the district court abused its discretion. Kershaw v. Mont. Dept. of

Transp., 2011 MT 170, ¶ 11, 361 Mont. 215, 257 P.3d 358. “A district court abuses its

discretion when ‘it acts arbitrarily, without employment of conscientious judgment, or in

excess of the bounds of reason resulting in substantial injustice.’”     Kershaw, ¶ 11

(quoting Bitterroot River Protective Ass’n v. Bitterroot Conservation Dist., 2011 MT 51,

¶ 11, 359 Mont. 393, 251 P.3d 131).

¶11    We review a district court’s grant of summary judgment de novo, applying the

criteria outlined in M. R. Civ. P. 56. Kershaw, ¶ 9. “Summary judgment is appropriate

only when there is no genuine issue of material fact, and the moving party is entitled to

judgment as a matter of law.” Kershaw, ¶ 9 (quoting Town & Country Foods, Inc. v. City

of Bozeman, 2009 MT 72, ¶ 12, 349 Mont. 453, 203 P.3d 1283).


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¶12    A district court’s award of attorney’s fees is a discretionary ruling which we

review to determine whether the court abused its discretion. In re Estate of McDermott,

2002 MT 164, ¶ 31, 310 Mont. 435, 51 P.3d 486.

                                     DISCUSSION

¶13 1. Whether the District Court abused its discretion by issuing the amended order
of protection?

¶14    The Plaintiffs argue that the District Court improperly issued the amended order of

protection to include Dora. They contend that the court issued the permanent order

without offering Dora an opportunity to be heard, and the court’s failure in this regard

amounts to a violation of due process of law.

¶15    We have held that an essential element of due process is the “opportunity to be

heard.” In re Marriage of Fishbaugh, 2002 MT 175, ¶ 15, 310 Mont. 519, 52 P.3d 395.

Although the Plaintiffs characterize their argument on appeal in terms of the opportunity

to be heard generally without reference to any particular statute, the Legislature has

statutorily ensured that a respondent in a civil order of protection action is afforded an

opportunity to be heard. Specifically, § 40-15-202(1), MCA, requires a court to conduct

a show cause hearing before issuing a permanent order of protection wherein the

respondent is permitted to testify and introduce evidence. See Keller v. Trull, 2007 MT

108, ¶ 12, 337 Mont. 188, 158 P.3d 439. It is a manifest abuse of discretion for a court to

issue a permanent order of protection without first conducting the statutorily mandated

hearing. In re Marriage of Coogler, 2004 MT 122, ¶ 24, 321 Mont. 243, 90 P.3d 414.



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¶16    In the present case, the District Court did not conduct a hearing pursuant to

§ 40-15-202(1), MCA, before expanding the order of protection to include Dora. While

the Defendants seem to suggest that the February 5, 2013 preliminary injunction hearing

sufficiently afforded Dora an opportunity to be heard, the scope of the preliminary

injunction hearing was strictly limited to determining whether the Plaintiffs could satisfy

the legal standard for an injunction.      The court did not receive or review evidence

concerning Dora’s conduct toward the Defendants. Nor did the court provide any notice

to Dora that she would have to attend the hearing so as to mount a legal defense against

an order of protection. The District Court failed to provide Dora with an opportunity to

be heard.

¶17    We conclude the District Court abused its discretion in issuing the February 6,

2013 amended order of protection. We accordingly vacate the court’s amended order of

protection.1

¶18 2. Whether the District Court abused its discretion by denying the Plaintiffs’
motion to amend their complaint?

¶19    The Plaintiffs argue that the District Court should have granted their motion for

leave to amend their complaint and the court abused its discretion by refusing to do so.

They reason that, although they sought to amend their complaint after the Defendants

moved for summary judgment, the Defendants “were not prejudiced, even remotely, by

the timing” of their motion to amend.



1
 Our decision has no bearing on the earlier August 21, 2012 order of protection. That order was
never appealed and remains in effect.
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¶20    M. R. Civ. P. 15(a) provides that “leave [to amend] shall be freely given when

justice so requires.” However, “this does not mean that a court must automatically grant

a motion to amend.” Kershaw v. Mont. Dept. of Transp., 2011 MT 170, ¶ 25, 361 Mont.

215, 257 P.3d 358. Rather, the decision to deny a motion to amend is within the district

court’s discretion. Kershaw, ¶ 25. A district court is justified in denying a motion to

amend if granting the motion would cause “undue prejudice to the opposing party.”

Lindey’s v. Professional Consultants, 244 Mont. 238, 242, 797 P.2d 920, 923 (1990). In

determining whether an amendment would cause undue prejudice, a court must balance

the prejudice suffered by the opposing party “against the sufficiency of the moving

party’s justification of the delay.” Farmers Coop. Ass’n v. Amsden, LLC, 2007 MT 286,

¶ 14, 339 Mont. 445, 171 P.3d 690. We have previously concluded that “litigants should

be allowed to change legal theories after a motion for summary judgment has been filed

only in extraordinary cases.” Thornton v. Flathead Cty., 2009 MT 367, ¶ 40, 353 Mont.

252, 220 P.3d 395 (quoting Peuse v. Malkuch, 275 Mont. 221, 228, 911 P.2d 1153, 1157

(1996)) (quotation marks and brackets omitted).

¶21    We recognized in Peuse that a party’s prolonged delay in adopting a new legal

theory is prejudicial to the opposing party, particularly when a party waits until after the

opposing party files a motion for summary judgment. Peuse, 275 Mont. at 228, 911 P.2d

at 1157. In Peuse, the defendants sought leave to amend their answer almost two years

after the original pleadings were filed and only after the plaintiff submitted a motion for

summary judgment. Peuse, 275 Mont. at 226, 911 P.2d at 1156. In affirming the district


                                             8
court’s denial of the defendants’ motion, we noted the lengthy delay and explained that if

the district court were to have granted the defendants’ motion, the plaintiff would have

been “prejudiced since his [summary judgment] motion was based on the original

pleadings which remained unchanged for almost two years.” Peuse, 275 Mont. at 227,

911 P.2d at 1157. We concluded that “[l]itigants should be allowed to change legal

theories after a motion for summary judgment has been filed only in extraordinary cases.”

Peuse, 275 Mont. at 228, 911 P.2d at 1157.

¶22   There are no extraordinary circumstances in this case that would warrant

permitting the Plaintiffs to change legal theories. The Plaintiffs have not offered any

reasonable justification for the delay. They have not sufficiently explained why they

failed to name Edwin in their original complaint, why they failed to initially plead an

easement by prescription or necessity, or why they failed for nearly a year and half to

seek to amend their complaint and cure these deficiencies. Nor does the record offer any

explanation. The deed to the Pluger property, which the Plaintiffs attached to their

complaint, identified Edwin as the owner of the Pluger property, and the Plaintiffs

acknowledged at the February 5, 2013 preliminary injunction hearing that they had

mistakenly pled an express easement. The Plaintiffs were aware well in advance of the

Defendants’ motion for summary judgment on June 20, 2013, of their complaint’s

inadequacies. Yet, they repeatedly delayed requesting leave to amend, waiting almost a

full year after the Defendants moved for summary judgment, before finally doing so on

May 28, 2014. The Defendants’ showing of prejudice combined with the Plaintiffs’


                                             9
failure to reasonably justify the delay provided an adequate basis for the District Court to

reach its conclusion. We conclude that the District Court did not abuse its discretion by

denying the Plaintiffs’ motion to amend their complaint.

¶23 3. Whether the District Court erred by granting the Defendants’ motion for
summary judgment?

¶24    In light of our decision that the District Court properly denied the Plaintiffs’

motion to amend, this dispute no longer contains a genuine issue of material fact. The

Plaintiffs concede that without amending their complaint they cannot “prevent summary

judgment since, indisputably, [they] had mistakenly pled an express easement which did

not exist” and [w]ithout the basis for a properly-pled easement claim, [they] could not

maintain [a] request for injunctive relief.” The District Court correctly determined that

the Defendants were entitled to summary judgment as a matter of law.

¶25 4. Whether the District Court abused its discretion by awarding the Defendants
attorney’s fees?

¶26    The longstanding rule in Montana, often referred to as the American Rule, is that

“absent statutory or contractual authority, attorney’s fees will not be awarded to the

prevailing party in a lawsuit.” Erker v. Kester, 1999 MT 231, ¶ 43, 296 Mont. 123, 988

P.2d 1221. However, we recognize an equitable exception to the general rule under

which “a district court may award attorney’s fees to make an injured party whole under

its equity powers.” Erker, ¶ 44. The equitable exception is “applicable where the action

into which the prevailing party has been drawn is without merit or frivolous.” Motta v.




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Granite Cty. Comm’rs, 2013 MT 172, ¶ 29, 370 Mont. 469, 304 P.3d 72. A district court

may grant an award of this type on a case-by-case basis. Motta, ¶ 29.

¶27    The Plaintiffs challenge the District Court’s award of attorney’s fee based on the

merits of their proposed amended complaint. They reason that the “proposed amended

complaint cured all procedural and pleading defects but the District Court apparently

closed its eyes to the content of the proposed pleading.”

¶28    However, the Plaintiffs fail to defend the legal theories advanced in their original

complaint. They make no attempt to defend the merits of the original complaint or

otherwise offer a reasonable explanation for why they litigated under meritless legal

theories for almost a year and a half. They concede, as mentioned above, that their

original complaint cannot survive summary judgment, acknowledging the Defendants do

not own the Pluger property, the Bardsley property does not enjoy an express easement

over of the Pluger property, and they mistakenly pled otherwise in their original

complaint. We have explained “[i]t is not this Court’s obligation to locate authorities or

formulate arguments for a party in support of positions taken on appeal.” Cutler v. Jim

Gilman Excavating, Inc., 2003 MT 314, ¶ 22, 318 Mont. 255, 80 P.3d 1203 (citation and

internal quotations omitted).   We conclude that the District Court did not abuse its

discretion by awarding the Defendants attorney’s fees.




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                                      CONCLUSION

¶29    We vacate the District Court’s February 6, 2013 amended order of protection. We

affirm the District Court in all other respects.

¶30    Affirmed in part and vacated in part.


                                                    /S/ LAURIE McKINNON


We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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