 97-634




                                                                          No. 97-634

                                       IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                         1998 MT 81N



                                                               IMPERIAL MEATS, INC.,

                                                            Plaintiff and Appellant,

                                                                                   v.

                                                            MONTANA STATE UNIVERSITY
                                                                 FOOD SERVICES,

                                                           Defendant and Respondent.




                    APPEAL FROM:                   District Court of the Fourth Judicial District,
                                                         In and for the County of Missoula,
                                                   The Honorable John S. Henson, Judge presiding.


                                                                  COUNSEL OF RECORD:

                                                                      For Appellant:

                              Paul Neal Cooley; Skelton & Cooley, Missoula, Montan

                                                                     For Respondent:

                               Leslie C. Taylor, Attorney at Law, Bozeman, Montana

                                                Submitted on Briefs: March 26, 1998
                                                     Decided: April 14, 1998
                                                               Filed:

                                __________________________________________
                                                   Clerk
                         Justice Karla M. Gray delivered the Opinion of the Court.


¶1   Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996
Internal Operating Rules, the following decision shall not be cited as precedent
but shall be filed as a public document with the Clerk of the Supreme Court


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and shall be reported by case title, Supreme Court cause number, and result to
the State Reporter Publishing Company and to West Group in the quarterly
table of noncitable cases issued by this Court.

¶2   Imperial Meats, Inc. (Imperial) appeals from the dismissal by the Fourth
Judicial District Court, Missoula County, of its complaint seeking declaratory,
injunctive, mandamus and damages relief. We affirm.

¶3   Imperial responded to a request for proposal (RFP) to provide food
services from Montana State University Food Services (MSUFS) in 1996. It
was not awarded the contract.   On March 11, 1997, it filed a complaint
alleging that the RFP and process used by MSUFS to award the contract to
others were done in violation of law and regulations. MSUFS moved to
dismiss the complaint on a variety of grounds, including a new statute which
set forth exclusive remedies for a solicitation or award of a contract alleged to
be in violation of state law.

¶4   The District Court dismissed Imperial's complaint on the basis of the
new statute. It observed that, as amended, § 18-4-242(2), MCA (1997), sets
forth the exclusive remedies for an unlawful solicitation or award. Subsection
(2) of the statute requires a party aggrieved by solicitation or award
proceedings to protest no later than 14 days after execution of the contract.
Later portions of the statute set forth additional administrative procedures to
be followed, culminating in a petition for judicial review brought pursuant to
§ 2-4-702, MCA. See § 18-4-242, MCA (1997). The amendments to § 18-4-242, MCA,
were effective on April 30, 1997, and applied retroactively to any
claim or cause of action relating to a solicitation or award unless a complaint
had been filed in district court prior to January 1, 1992. Because Imperial had
not exhausted the remedies set forth in § 18-4-242, MCA (1997), the District
Court concluded that it could not entertain Imperial's complaint and dismissed
it accordingly.

¶5   Imperial moved to amend and the motion was deemed denied when the
District Court did not rule on it within 60 days. Imperial appeals.

¶6   Imperial              contends that the District Court erred in dismissing its
complaint and              correctly states our standard in reviewing a district court's
conclusion of              law as whether the interpretation of the law is correct. See
Carbon County              v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469,
898 P.2d 680,              686 (citation omitted).

¶7   Imperial points out that compliance with the mandate of § 18-4-242(2),
MCA (1997), that it protest to the department within 14 days after execution
of the contract at issue in this case was impossible, since that time had long
since run and, as a result, it is left without a remedy if the District Court's
dismissal is allowed to stand. Imperial then states:
          The Montana Constitution preserves the standards that
     there is a right to a speedy remedy of every injury, that there is
     a right to equal protection of the laws, that there is a right to
     view deliberations of public agencies of State Government, that

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          the State is subject to suit, that there is a right to due process of
          law and that ex post facto laws granting irrevocable special
          privileges or affecting contracts shall be [sic] not be granted by
          the legislature. See Article II, Sections 4, 9, 16, 17, 18 and 31
          of the Constitution of the State of Montana.

Imperial also states generally that the present case does not fall within prior
unspecified cases by this Court determining that the legislature may create a
right and a remedy and may take the right and remedy away retroactively if
they specifically make it clear that is the intention of the new statute. That is
the sum total of Imperial's argument in its opening brief.

¶8   It is beyond cavil that an appellant bears the burden of establishing
error by the District Court. Yet, Imperial presents no legal analysis and cites
to no legal authority under which the District Court's dismissal of its complaint
was in error under any of the constitutional provisions it listed. Rule 23(a)(4),
M.R.App.P., requires an appellant's opening brief to contain "the contentions
of the appellant with respect to the issues presented, and the reasons therefor,
with citations to the authorities . . . relied on." When an appellant's brief does
not comply with this requirement, we do not address the issue. See, e.g.,
Whalen v. Taylor (1996), 278 Mont. 293, 302, 925 P.2d 462, 467; Allmaras
v. Yellowstone Basin Properties (1991), 248 Mont. 477, 483, 812 P.2d 770,
773. On that basis, we decline to address Imperial's argument.

¶9   Interestingly, Imperial's reply brief reveals that it intentionally presented
its "straightforward and simple" argument as it did in the opening brief. It
"opted to present it as such and await the answer brief . . . to determine how
MSU might defend the constitutionality or the unavailability of a remedy."
What Imperial apparently does not comprehend is that there is no initial
burden on the respondent in an appeal to defend anything; it is the appellant
who carries the burden of showing error by the District Court. Our briefing
requirements, and our cases interpreting those requirements, do not allow the
appellant to lie in the weeds until the party which prevailed in the trial court
makes arguments in support of the trial court's decision.

¶10 Imperial having failed to establish any error, we hold that the District
Court did not err in dismissing Imperial's complaint.

¶11       Affirmed.

                                                             /S/       KARLA M. GRAY


We concur:

/S/       J. A. TURNAGE
/S/       TERRY N. TRIEWEILER
/S/       JAMES C. NELSON
/S/       W. WILLIAM LEAPHART



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