                            No.    94-357
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1994


COUNTRY ESTATES HOMEOWNERS ASSOCIATION,
a Montana corporation,
          Petitioner and Respondent,
     v.
                                                       DEC   22   t%
GEORGE W. McMILLAN, ELOISE F. McMILLAN,
and VANCE A. McMILLAN,
          Respondents and Appellants.



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 Appellants:
               Richard R. Buley, Tipp & Buley,
               Missoula, Montana
          For Respondent:
               E. Eugene Atherton, Attorney at Law,
               Kalispell, Montana


                            Submitted on Briefs:       December 8, 1994
                                            Decided:   December 22, 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.

       Petitioner   Country      Estates       Homeowners Association filed a

petition for a writ of mandate on June 8, 1993, in the District

Court for the Eleventh Judicial District in Flathead County.                    They

requested that George, Eloise, and Vance McMillan (the McMillans),

be ordered to comply with the restrictive covenants attached to

real property owned by the McMillans, and that the McMillans be

ordered to pay reasonable attorney fees.               On December 1, 1993, the

District    Court   held     a   hearing        to   consider   the   motion.    On

February 14, 1994, the District Court issued its final judgment and

order in which it stated that the matter would be treated as one

for injunctive relief, and in which it enjoined the McMillans from

further violations of the restrictive covenants, and ordered them
to remove the offending structure within 60 days, or complete

construction     within      60 days       and landscape their lot.               On

February 24, 1994, the McMillans filed a motion for a new trial or

to amend the judgment.        The court did not rule on the motion within

45 days,    and as a result,           it was deemed denied,          pursuant to

Rule   59(d),   M.R.Civ.P.       The    McMillans     appeal.    We vacate the

judgment of the District Court and remand for further proceedings.

       The issue on appeal is:

       Did the District Court err when it treated this matter as one

for injunctive relief,       rather than for a writ of mandate, without

prior notice to the respondents?




                                           2
                            FACTUAL    BACKGROUND
     The McMillans own Lot 2 of country Estates Unit No. 1, which

is subject to restrictive          covenants    that   provide,    in part, at
paragraph l(c), that "[al11        construction shall be complete within

one year from the date construction begins."                The covenants also

provide, at paragraph l(d), that "[al 11 lots shall be landscaped to

the paved street."

     On June 8, 1993, Country Estates filed a petition for a writ

of mandate in which they requested that the McMillans be forced to

comply with the restrictive           covenants which attached to their

property, and also requested attorney fees incurred in this matter.
In her affidavit filed in support of the petition, Wendy Madison,

the secretary of Country Estates, alleged that the McMillans have

partially built a structure on their property, but have failed to

complete   it.     Madison alleged that the McMillans have violated

provisions of the restrictive covenants which require that all

construction      be   completed   within      one   year   from   when   it   is

undertaken,      and that all lots be landscaped to the paved street.

In her affidavit, Madison stated that the McMillans' structure has

been incomplete for over ten years, and that they have not

completed any landscaping.

     On December 1,        1993,   the District Court held a hearing

pursuant to Country Estates' petition.           Madison,    and Janice Stout,

a resident of Country Estates, testified.

     Stout testified that the restrictive covenants which attach to
properties in Country Estates were signed on October 18,                   1979,

                                       3
prior to the date the McMillans purchased their property.                  She also

testified      that     the    McMillans        started     construction on   their

residence over four years ago and that neither the house nor the

landscaping had been completed.

       The McMillans presented no                evidence at this hearing,      but

argued that a writ of mandate was not an appropriate remedy, based

on the facts          alleged--particularly the private nature of the

dispute.

       At the conclusion of the hearing, the District Court stated

that although the requirements of the restrictive covenants had not

been   satisfied,      it was concerned about whether a writ of mandate

was the appropriate remedy.           The court invited the parties to file
briefs in connection with that question.

       On February 14, 1994,          the District Court signed its final

judgment in which it ordered that Country Estates' pleadings be

amended to state a claim for injunctive relief.                 The District Court

further ordered that the McMillans were enjoined from further

violations of         the     restrictive       covenants    and were   ordered to

complete construction of, or remove, the offending structure within

60   days,   and landscape their lot on or before July 1, 1994.                The

District Court also awarded attorney fees and costs to Country

Estates.

       On February 24, 1994, the McMillans filed a motion for a new

trial or to amend the judgment.             The motion was not ruled on within

45   days,    and     therefore,    was deemed denied under Rule 59(d),
M.R.Civ.P.

                                            4
                                      DISCUSSION
        Did the District Court err when it treated this matter as one

for injunctive relief, rather than for a writ of mandate, without

prior notice to the respondents?

        The standard of review of discretionary court rulings is

whether the district court abused its discretion.                       Montana Rail Link v.

Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125.

        We have held that "due process requires a reasonable notice as

to give everyone interested their opportunity to be heard."                              Shaw

v. CityofKalispell (1959), 135 Mont. 284, 293, 340 P.2d 523, 528. In

this    case, the McMillans were given notice of a hearing to consider

a petition for a writ of mandate.                   They were not given prior notice

of a claim for injunctive relief.

        "[Lliberal          construction and amendment of pleadings does not

grant        counsel     carte    blanche   to        advance    new   theories     on    an

unsuspecting           opponent."    McJunkin v. Kaujinan and Broad Home Systems, Inc.

(1987),       229 Mont. 432, 437, 748 P.2d 910, 913.                    in    McJunkin, we

cited Brothersv. SurplusTractorPartsCorp.           (19371),   161 Mont. 412, 417, 506

P.2d 1362,          1365,     for the proposition that "I [i]t is generally

accepted that the appellant cannot recover beyond the case stated

by     him     in    his     complaint.     .        This Court believes that fair

notice to the other party remains essential . . .'II                         McJunkin, 74 8

P.2d at 913.         We have also held that "'pleadings will not be deemed
amended to conform to the evidence because of "implied consent"

where the circumstances were such that the other party was not put


                                                5
on notice that a new issue was being raised."'                 In re Custody of C.JK.

(1993), 258 Mont. 525, 528, 855 P.2d 90, 91 (citing GallatinTrustand

SavingsBankv.Darrah     (1968), 152 Mont. 256, 261-62, 448 P.2d 734, 737).

       In this case, an entirely new and dissimilar theory formed the

basis of the District Court's judgment without prior notice to the

McMillans.            We conclude   that the District         court      abused its

discretion     by     treating   petitioner's   claim   as   one   for    injunctive

relief under these circumstances

       The judgment of the District Court is vacated and this matter

is remanded for a hearing after proper notice is given to the

McMillans     regarding the nature of the relief being sought.




                                          /
                                                   J&tice


We concur:




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