                                                No.          89-175

                    IN THE SUPREME COURT O F THE S T A T E O F MONTANA




BRUCE A . YOUNG a n d S H E R I D. YOUNG, h u s b a n d & w i f e ;
LEO H . EVANS a n d LONA LEE: EVANS, h u s b a n d & w i f e ,
RUTH E . PALMER,
                Plaintiffs,
           -VS-


FLATHEAD COUNTY, a body c o r p o r a t e ; FLATHEAD
COUNTY BOARD OF' C O M M I S S I O N E R S , a body p o l i t i c ;
NAKUL S . VERMA, FLATHEAD COUNl'Y ZONING A D M I N I S -
TRATOR,
               D e f e n d a n t s and R e s p o n d e n t s ,
           and
ALBERT SEELF:Y, WEST CENTRAL RESOURCES, I N C                                   .,
                                                                            R. C.
LEF: & A S S O C I A T E S , I N C . , TRI-FORTUNE I N V E S T M E N T S , I N C . ,     -I
EARLY B I R D I N V E S T M E N T S , L T D . , and EARLY B I R D P R O P E R T I F : S ,
INC. ,
                      C r o s s C l a i m a n t s and A p p e l l a n t s ,
           and
HENRY OLDENBURG,           C r o s s c l a i m D e f e n d a n t and I n t e r v e n o r .



A P P E A L FROM:     D i s t r i c t C o u r t of t h e E l e v e n t h J u d i c i a l D i s t r i c t ,
                      I n and f o r t h e C o u n t y o f F l a t h e a d ,
                      The H o n o r a b l e T h o m a s O l . s o n , J u d g e p r e s i d i n g .

C:OIlNSEL O F RECORD :

           For A p p e l l a n t :
                    L a w r e n c e F. D a l y ;         G a r l i n g t o n , Lohn & Robinson,                    Missoula,
                    Montana

           For R e s p o n d e n t :
                     T e d 0. L y m p u s , F l a t h e a d C o u n t y A t t o r n e y ;              Jonathan B.
                     Smith, Deputy, K a l i s p e l l , Montana



                                                         S u b m i t t e d on B r i e f s :          Aug.      17,   1989

                                                              ~ @ b : f d ~ d :F e b r u a r y 6 ,        1990
Filed:

                              @        J*   ----   -~-   -   ---A



                                                         Clerk'.'
                                                                    -."     - - - - - - - - - - - - - - - - ----
                                                                          - -
                                                                           .
Justice William E. Hunt, Sr., delivered the Opinion of the Court.



      This is the second appeal of a case involving a condominium
development on Flathead Lake known as the Caroline Point Estates
& Yacht Club.   The first appeal is reported as Young v. Flathead
County (Mont. 1988), 757 P.2d 772, 45 St.Rep. 1047 (Younq I). In
Younq I, defendant, Flathead County, appealed from a judgment of
the Eleventh Judicial ~istrict  Court, Flathead County, in favor of
defendants-intervenors, Albert Seely, West Central Resources, Inc.,
R. C. Lee & Associates, Inc., Tri-Fortune Investments, Inc., Early
Bird Investments, Ltd. and Early ~ i r d ~roperties, Inc.
 (Developers). We reversed and remanded for further proceedings.
On remand, the District Court denied the Developers1 motion for an
evidentiary hearing and entered judgment in favor of the County.
The Developers appeal. We affirm.
      The following issues are raised on appeal:
      1. Whether, on remand, the District Court erred in refusing
to conduct an evidentiary hearing on the issue of proximate cause.
      2. Whether, on remand, the District Court erred in refusing
to conduct an evidentiary hearing on the issue of justifiable
reliance.
      3. Whether, on remand, the District Court erred in denying
the Developers1 motion to reinstate the original judge following
his withdrawal from the case.
      In Youns I, landowners adjacent to the Caroline Point
condominiums filed a complaint against the County, challenging the
procedures followed in developing the project.      The Developers
intervened in the suit and filed a cross-claim against the County,
alleging that they justifiably relied upon representations made by
the County that the regulations applying to subdivision development
did not apply to the Caroline Point project.        The Developers
further claimed that, after they acted in reliance upon the
representations made by the County, the County arbitrarily and
capriciously prohibited further development, which resulted in
financial damages.
     The ~istrict Court granted summary judgment to the Developers,
holding that they justifiably relied upon the County's
representations and that they were entitled to damages proximately
caused by their reliance. Following a trial, the District Court
awarded damages in excess of $2,000,000. The County appealed.
     On appeal, we overturned the ~istrictCourt's money judgment
in favor of the Developers because 1)          the District Court
erroneously excluded relevant evidence offered by the County on
the issue of proximate cause; 2) the Developers failed to prove
that the County's representations were the sole proximate cause of
their damages; and 3) the District Court erroneously concluded
that the Developers justifiably relied on representations made by
the County that the condominium project was not subject to
subdivision regulations. We reversed and remanded Iffor further
proceedings consistent with this opinion.I1 Youns I, 757 P.2d at
779, 45 St.Rep. at 1055.
     After remittitur, the Developers moved the District Court to
schedule a hearing forthe purpose of receiving additional evidence
on the issues of proximate cause and justifiable reliance. The
County, in turn, moved the court to substitute the presiding judge
under 5 3-1-804(g), MCA, or, in the alternative, to enter judgment
in favor of the County on the Developers' claim for damages.
     By order dated July 13, 1988, Judge Jack L. Green withdrew
from jurisdiction and, on August 8, 1988, Judge Michael H. Keedy
assumed jurisdiction.     The Developers then filed motions for
reinstatement of Judge Green or, in the alternative, for
substitution of Judge Keedy. Judge Keedy denied the motion for
reinstatement but granted the motion for substitution, withdrawing
from the case on December 13, 1988. Judge Thomas A. Olson assumed
jurisdiction the following day.
     On February 13, 1989, a hearing was held on the Developers'
earlier motion for an evidentiary hearing and the County's motion
for entry of judgment in its favor. On March 2, 1989, the District
Court entered judgment for the County, holding that, based upon our
Opinion in Youns I, the County did not proximately cause any
damages to the Developers and that the Developers did not
justifiably rely on the County's opinion regarding whether the
condominium project was a subdivision subject to review. From this
judgment, the Developers appeal.
     The Developers first argue that our decision in Youns I
required the District Court on remand to conduct an evidentiary
hearing to allow the admission of the County's erroneously excluded
evidence as well as any rebuttal thereto by the Developers and
then, after the hearing, to make a new determination of whether
the County proximately caused damages to the Developers. A careful
reading of Youns I, however, demonstrates that our direction to
"remand for further proceedings consistent with this opinion1'did
not require the ~istrictCourt to conduct additional evidentiary
hearings as argued by the Developers.
     In Youns I, we gave two separate and independent grounds for
holding that the District Court erred in finding that the County
had proximately caused the Developers' damages. ~ i r s t , stated
                                                          we
that the Court erroneously excluded evidence offered by the County
that was pertinent to the issue of proximate cause. Had this been
the only reason for our reversal on the proximate cause issue, a
new trial would indeed have been warranted.
     We did not, however, rest our determination of the proximate
cause issue on this one reason alone. We went on to state:
     Further, since other factors--the economy, failure to
     secure additional financing, and especially the inability
     to secure approval of the sewage system--had an impact
     on the resulting damage, Developers cannot claim the
     County's representations alone "proximately caused1'the
     damage. Where more than one possible cause of damage
     appears, the plaintiff must eliminate causes other than
     those for which the defendant is responsible. [Citation
     omitted.] Developers' failure to separate the causes and
     damase bars them from arquins proximate cause is
     satisfied in this case. Numerous interruptions in the
     chain of events occurred that could be considered the
     injury causing damage. (Emphasis added.)
Youns I, 757 P.2d at 777-78, 45 St.Rep. at 1053-54.
     The Developers failed to prove their case on the issue of
proximate cause by failing to eliminate those causes that, through
no fault of the County, may have contributed to their damages.
Unlike the County, which may have been prejudiced by the court's
erroneous exclusion of evidence, the Developers had a full and fair
opportunity to introduce all evidence on its behalf relating to the
issue of proximate cause. The Developerst failure to separate the
causes and damages must be attributed to an inability to prove that
the County was the sole cause of their damages.       Remand for a
further hearing to allow the Developers to attempt to prove what
they could not in the first instance was therefore unnecessary.
First Bank (N.A.)-Billings v. Clark (Mont. 1989), 771 P.2d 84, 92,


     The Developers next argue that our disposition of Youns I
required the District Court on remand to conduct an evidentiary
hearing on the issue of justifiable reliance.   Once again, we do
not agree that Youns I so directed the District Court.
     In the opinion, we stated:
    The County appropriately points out that Developers were
    relying on an interpretation of law, an opinion, that the
    condominiums would not be subject to subdivision review.
    The County Attorney's office maintained no confidential
    or professional relationship with Developers in this
    case. Therefore, the County's opinion--in light of the
    State's determination that subdivision review would be
    required set out in the letter of December 18, 1980; the
    fact that Developers were represented by their own
    counsel; the existence of the above-mentioned statutes
     and the actual opposition to the lack of subdivision
     review that was expressed by opponents of the project who
     ultimately filed this suit--was unreasonably relied upon
     by Developers.



     Thus, we held as a matter of law that the Developers did not
justifiably rely on the representations made by the County.
Having determined this question as a matter of law, a further
evidentiary hearing on the matter would have been futile.
     Finally, the Developers argue that the District Court erred
in denying their motion to reinstate the original judge following
his withdrawal from the case.     We do not agree.
     Following entry of remittitur, the County moved the District
Court to substitute Judge Green, the original judge, under 5 3-1-
804(g), MCA, or in the alternative, to enter judgment in favor of
the County.    At that time, the substitution statute read as
follows:
     When a new trial is ordered in any case, whether by order
     of the district court or the supreme court, each adverse
     party shall be entitled to one additional motion for
     substitution of Ijudqe in the manner provided herein.
     Such motion must be filed, with the required filing fee,
     within twenty (20) days. after a new trial has- been
     ordered by the district court or after the remittitur has
     been filed with the district court clerk. No riqht of
     further substitution shall arise in cases remanded by the
     supreme court which call for additional hearinss, but not
     a new trial. (Emphasis added.)

Section 3-1-804 (g), MCA (1987) .
     Apparently, the original judge interpreted our disposition in
Younq I as a direction to conduct a new trial and, therefore,
withdrew from the case.   As we noted earlier in this Opinion, our
disposition did not require further evidentiary hearings, nor did
it require a new trial.         Consequently, the original judge's
withdrawal from the case on remand was unnecessary.
     Any error that may have been committed by the original judge's
withdrawal was cured by subsequent amendments to the substitution
statute.   By order dated September 13, 1988,            the statute was
amended as follows:
     When a new trial is ordered by the district court, each
     adverse party shall thereupon be entitled to one motion
     for substitution of judge in the manner provided herein.
     When on appeal the iudwent or order appealed from is
     reversed or modified and the cause is remanded to the
     district court for a new trial, or when a summary
     iudsment or judsment of dismissal is reversed and the
     cause remanded, each adverse party shall thereupon be
     entitled-to one motion for substitution of iudqe in the
     manner provided herein. Such motion must be filed, with
     the required filing fee in civil cases, within twenty
     (20) days after a new trial has been ordered by the
     district court or after the remittitur from the supreme
     court has been filed with the district court. No other
     right of further substitution shall arise in cases
     remanded by the supreme court. In criminal cases, no
     further right of substitution shall arise when the cause
     is remanded for resentencing. (Emphasis added.)

Section 3-1-804(g), MCA.
     The   amended    statute   allows   the   parties     to   move   for
substitution of the presiding judge when this Court reverses and
remands an order of summary judgment.      As the appeal in Youns I
dealt in part with the reversal of a summary judgment order, the
amended statute entitled the County to move for the withdrawal and
substitution of the original judge.      Although the amendments were
made after the withdrawal of the original judge, the order amending
the statute specifically provided that the effective date of the
 rules of substitution would continue to be September 1, 1987,
 thereby making the amendments retroactive to that date. As the
 amendments   cured          any   error   caused   by   the   original   judge's
 withdrawal, the subsequent judge did not err when, in December,
 1988, he denied the Developerst motion for reinstatement of the
 original judge.
       Affirmed   .

 We Concur:           ,
                      '
                       .,f

4fd"     Chief Justice
