                                                                                              05/30/2017


                                           DA 16-0726
                                                                                          Case Number: DA 16-0726

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 130N



PAT M. GOODOVER, II,

              Plaintiff and Appellant,

         v.

STEPHANIE OBLANDER; SMITH OBLANDER PC,
SMITH OBLANDER & MORA PC,

              Defendants and Appellees.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. ADV-16-279
                        Honorable Gregory G. Pinski, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Pat M. Goodover, II (Self-Represented), Great Falls, Montana

                For Appellees:

                        Steven J. Fitzpatrick, Browning, Kaleczyc, Berry & Hoven, P.C.,
                        Great Falls, Montana



                                                    Submitted on Briefs: May 3, 2017

                                                                Decided: May 30 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), 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     Beginning in 2012, Smith Oblander represented Robert Hopkins in a law suit against

Pat Goodover and Goodover’s Great Falls property management/real estate business. The

suit arose from a home foreclosure proceeding against Hopkins. Hopkins alleged that after

he was evicted from his home, Goodover converted and allowed others to convert Hopkins’

personal property that remained in the home.        The Hopkins’ suit was litigated for

approximately three years before the parties settled in December 2015.

¶3     In March 2016, Goodover initiated this action against Smith Oblander alleging

multiple acts of misconduct in the Hopkins’ litigation, including actual and constructive

fraud, negligent misrepresentation, actual malice, abuse of process, and malicious

prosecution.   Smith Oblander moved to dismiss under M. R. Civ. P. 12(b)(6), and

Goodover objected. On July 11, 2016, after receiving materials outside of the record from

both parties, the Eighth Judicial District Court converted the motion to dismiss to a motion

for summary judgment under M. R. Civ. P. 12(d).              Goodover promptly filed a

M. R. Civ. P. 56(f) motion seeking additional time to respond to the court’s Rule 12(d)

order and attaching his affidavit and several discovery requests. Smith Oblander opposed


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Goodover’s motion arguing, in part, that Goodover failed to establish how the discovery

could preclude summary judgment or was material to the motion for summary judgment.

¶4     While Goodover’s Rule 56 motion was pending, Smith Oblander moved to file the

Hopkins’ settlement agreement under seal with the District Court. Goodover objected but

the court granted Smith Oblander’s motion and the agreement was filed with the court.

After reviewing the legal elements of Goodover’s various claims, the District Court granted

summary judgment in favor of Smith Oblander and denied Goodover’s Rule 56 motion.

Goodover appeals.

¶5     We review a district court’s order granting summary judgment de novo using the

same standards applied by the district court under M. R. Civ. P. 56. Swanson v. Consumer

Direct, 2017 MT 57, ¶ 12, 387 Mont. 37, 391 P.3d 79. We review a district court’s rulings

regarding discovery and the admission of evidence for an abuse of discretion. City of

Missoula v. Mt. Water Co., 2016 MT 183, ¶ 18, 384 Mont. 193, 378 P.3d 1113 (citations

omitted).

¶6     Goodover argues on appeal that the District Court erred in granting summary

judgment and in allowing the Hopkins’ settlement agreement to be filed with the court. He

further claims that the District Court erred in deciding “the facts and circumstances of the

case” and the merits of his claims of actual fraud, negligent misrepresentation, and actual

malice.

¶7     The District Court’s detailed order in this case set forth the necessary elements of

Goodover’s claims for actual and constructive fraud, negligent misrepresentation,

malicious prosecution, and abuse of process. It identified those elements in each claim that

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had not been satisfied and explained why each claim failed. It also noted that actual malice

is not a claim but rather is a standard for punitive damages. The court held that because

Goodover’s substantive claims failed, he was not entitled to damages. The court’s factual

findings are supported by the record and its interpretation and application of relevant rules

and cases is correct. We therefore affirm the District Court’s rulings as to these claims.

¶8     Relying on Miller v. Goetz, 2014 MT 150, ¶ 15, 375 Mont. 281, 327 P.3d 483, the

District Court noted its authority to deny a Rule 56 motion “where the moving party fails

to establish how the proposed discovery could preclude summary judgment.” The court

reviewed Goodover’s five discovery requests and stated that the requests were primarily

“objectionable requests seeking legal conclusions, punitive damage information, and

[Goodover’s] subjective beliefs about the underlying claims.”           The District Court

concluded that the discovery requests were “unlikely to yield the favorable information”

Goodover anticipated and that they had “no bearing on the [c]ourt’s summary judgment

analysis.” The record supports the District Court’s conclusion to deny Goodover’s Rule

56 motion.

¶9     Goodover also asserts on appeal that the District Court was “clearly influenced” by

the terms of the settlement agreement in determining that Goodover had not prevailed in

the Hopkins’ case and therefore his malicious prosecution claim could not stand. He argues

that M. R. Evid. 408 (Rule 408) precludes the admission of compromises and offers to

compromise. Rule 408 states:

              Evidence of (1) furnishing or offering or promising to furnish, or (2)
       accepting or offering or promising to accept, a valuable consideration in
       compromising or attempting to compromise a claim which was disputed as

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       to either validity or amount is not admissible to prove liability for or
       invalidity of the claim or its amount. Evidence of conduct or statements
       made in compromise negotiations is likewise not admissible. This rule does
       not require exclusion of any evidence otherwise discoverable merely because
       it is presented in the course of compromise negotiations. This rule also does
       not require exclusion when the evidence is offered for another purpose, such
       as proving bias or prejudice of a witness, negativing a contention of undue
       delay, or proving an effort to obstruct a criminal investigation or prosecution.

¶10    The plain language of the Rule excludes a settlement agreement from being offered

to prove liability or the validity of a claim but allows a settlement agreement to be offered

for “another purpose.” In this case, the settlement agreement was not offered to prove that

Goodover was liable in the Hopkins’ case; rather, it was offered to establish, under Vehrs

v. Piquette, 210 Mont. 386, 684 P.2d 476 (1984), that Goodover was not the prevailing

party in the Hopkins’ matter. In Vehrs, we clearly stated that “A proceeding that terminates

indecisively because of a settlement . . . agreement does not meet the requirements of a

cause of action for malicious prosecution.” Vehrs, 210 Mont. at 392, 684 P.2d at 479.

Moreover, as argued by Smith Oblander on appeal, the terms of the settlement agreement

supported the conclusions that Smith Oblander had probable cause for bringing the

Hopkins’ case and that it had no improper ulterior motive, i.e., elements of a claim for

malicious prosecution and abuse of process. The District Court correctly interpreted the

applicable rule of evidence and case law and did not abuse its discretion by admitting the

settlement agreement under seal.

¶11    As conceded by Goodover, his M. R. Civ. P. 11(b) claim is not appealable.

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

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the


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Court, the District Court’s findings of fact are not clearly erroneous, its interpretation and

application of the law were correct, and its ruling was not an abuse of discretion.

¶13    Affirmed.


                                                  /S/ MICHAEL E WHEAT



We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ LAURIE McKINNON




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