Chapman v. Heritage Bank , 2006 MT 185N ( 2006 )

No. 05-570
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT185N
ALLISON CHAPMAN,
Plaintiff and Appellant,
v.
HERITAGE BANK,
Defendant and Respondent.
APPEAL FROM: The District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. CDV 2005-607,
Honorable Thomas M. McKittrick, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
Allison Chapman, pro se, Geraldine, Montana
For Respondent:
Ward E. Taleff, Taleff Law Office, Great Falls, Montana
Submitted on Briefs: July 12, 2006
Decided: August 8, 2006
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996
Internal Operating Rules, as amended in 2003, the following memorandum
decision shall not be cited as precedent. It shall be filed as a public document with
the Clerk of the Supreme Court and its case title, Supreme Court 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 Prior to the filing of the Complaint in this case, Allison Chapman
maintained an account with Heritage Bank, a financial institution with its principal
offices in Great Falls. In May of 2005, Chapman, acting pro se, filed suit against
Heritage Bank in the District Court for the Eighth Judicial District, Cascade
County. Her Complaint alleged that Heritage Bank had stolen money from her
account and, in doing so, had committed acts of fraud and intentional infliction of
emotional distress.
¶3 Heritage Bank filed a counterclaim seeking $350.95 for the unpaid balance
of Chapman’s overdraft protection loan, as well as an award of attorney fees and
costs. Additionally, Heritage Bank filed the following: (1) a motion to dismiss for
failure to present a short and plain statement of the claims; (2) a motion to dismiss
for failure to plead fraud with particularity; (3) a motion to strike unfounded
allegations; (4) a motion for judgment on the pleadings; (5) a motion for sanctions
pursuant to Rule 11, M.R.Civ.P.; and (6) a motion for summary judgment on
Chapman’s claims as well as Heritage Bank’s counterclaim.
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¶4 The District Court entered an Order purporting to simultaneously grant
each of these motions except the request for sanctions. Chapman now appeals the
District Court’s decision to grant summary judgment.
¶5 Initially, we note that it is legally impossible to grant summary judgment on
Chapman’s claims while simultaneously dismissing her claims on the grounds
which Heritage Bank asserted. Summary judgment, being an adjudication on the
merits of Chapman’s claims, simply precluded dismissal for shortcomings in the
pleadings. Setting this issue aside, we turn to Chapman’s challenge to the court’s
decision to grant summary judgment.
¶6 It is manifest on the face of the briefs and the record before us that this
appeal is without merit. Accordingly, we conclude that our decision in this case is
appropriately rendered by memorandum opinion pursuant to Section 1, Paragraph
3(d) of our 1996 Internal Operating Rules, as amended in 2003.
¶7 We are consistently willing to make accommodations for pro se litigants by
relaxing the technical requirements which do not impact fundamental bases for
appeal. However, appellants ultimately have the burden of establishing error by a
district court. State v. Bailey, 2004 MT 87, ¶ 26, 320 Mont. 501, ¶ 26, 87 P.3d
1032, ¶ 26. Here, Chapman fails to establish any error because she does not
specify any impropriety in the District Court’s decision. Instead, Chapman
presents arguments which she did not raise in the proceedings below. It is well
established that this Court does not consider arguments raised for the first time on
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appeal. Andersen v. Monforton, 2005 MT 310, ¶ 30, 329 Mont. 460, ¶ 30, 125
P.3d 614, ¶ 30.
¶8 Accordingly, we affirm the District Court’s Order granting summary
judgment.
/S/ JAMES C. NELSON
We Concur:
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE
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