Bickenheuser v. Felsman ( 1995 )


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  •                              NO.    93-629
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1995
    
    
    CHARLES M. BICKENHEUSER,
               Plaintiff and Appellant,
         v.
    ANNABETH M. FELSMAN, individually and as an
    employee of the Department of Family Services,          FED !
                                                              L     23 ,1995
                                                                     .
    
         and
    STATE OF MONTANA,
               Defendants and Respondents.
    
    
    
    APPEAL FROM:   District Court of the Fourth Judicial District,
                   In and for the County of Missoula,
                   The Honorable John S. Hensdn, Judge presiding.
    
    
    COUNSEL OF RECORD:
               For Appellant:
                   Charles M. Bickenheuser, Pro Se,
                   Missoula, Montana
               For Respondent:
                   Hon. Joseph P. Mazurek, Attorney General,
                   Kelly M. O'Sullivan, Assistant Attorney General,
                   Agency Legal Services Bureau, Helena, Montana
    
    
                                 Submitted on Briefs:       December 1, 1994
                                                 Decided:   February 23, 1995
    Filed:
    Justice William E. Hunt, Sr., delivered the opinion of the Court.
         Appellant Charles M. Bickenheuser, appearing pro se, appeals
    from an order of the Fourth Judicial District Court, Missoula
    County,    granting   summary    judgment   in   favor   of        respondents
    Annabeth M. Felsman and the State of Montana and striking the
    affidavits in opposition to summary judgment.
         Af firmed .
         Appellant raises the following issues:
         1.    Did the District Court err in granting respondents'
    motion to strike?
         2.    Did the District Court err in granting respondents'
    motion for summary judgment?
         Felsman was employed by the Department of Family Services as
    a child protective services worker. On December 13, 1990, Felsman
    received   a   referral   of    suspected   child   abuse     of    T.B., an
    eight-year-oldboy living with his foster parents, Bickenheuser and
    his wife. On the same day, Felsman began her investigation of the
    alleged abuse.     Felsman interviewed and took photographs of T.B.
    She also interviewed Bickenheuser and his wife, who claimed that
    they no longer wanted T.B., and that they wanted to close their
    foster care license.      Felsman determined that Bickenheuser had
    grabbed T.B. by the jaw with sufficient force to leave marks on the
    child's face. T.B. was subsequently removed from the Bickenheuser
    home.
         Felsman notified Missoula County Detective Hintz of her
    investigation of the alleged abuse.    Detective Hintz conducted a
    criminal   investigation   simultaneously   with   Felsman's   civil
    investigation. Because T.B. had been removed from the Bickenheuser
    home, Felsman closed her civil investigation and reported to the
    Department of Family Services, concluding that the abuse to T.B.
    had been substantiated.
         Detective Hintz interviewed T.B. on December 17, 1990, and
    Bickenheuser on December 18, 1990.      On February 28, 1991, the
    Missoula County Attorney's Office filed misdemeanor assault charges
    against Bickenheuser in justice court alleging that Bickenheuser
    grabbed T.B. 's jaw with sufficient force to leave bruises on either
    side of T.B.'s face.       The charges against Bickenheuser were
    subsequently dismissed for failure to prosecute, and the record was
    expunged on motion of Bickenheuser.
         On November 19, 1992, Bickenheuser filed suit against Felsman
    and the State of Montana, alleging Felsman recommended that he be
    prosecuted for misdemeanor assault because Felsman was concerned
    that she or the Department of Family Services would be sued for
    negligently placing T.B. with the Bickenheusers. Bickenheuser also
    alleged violations of his state and federal constitutional right to
    free speech, due process, and equal protection.
         On January 5, 1993, the District Court dismissed the federal
    consti.tutiona1 claims against Felsman and the State, but denied
    Felsman's motion to dismiss the state constitutional tort claims.
    On June 15, 1993, the District Court granted Felsman's motion for
    summary      judgment   and     struck   two   affidavits   in   opposition.
         Bickenheuser appeals the District Court's order granting
    respondents' motion        to    strike and    their motion      for   summary
    judgment .
                                        ISSUE 1
         Did the District Court err in granting respondents' motion to
    strike?
         A district court's decision whether to consider an affidavit
    in support of, or in opposition to, a motion for summary judgment
    is governed by Rule 56(e), M.R.Civ.P.,which provides in pertinent
    part that :
         [Sl upporting and opposing affidavits shall be made on
         personal knowledge, shall set forth such facts as would
         be admissible in evidence, and shall show affirmatively
         that the affiant is competent to testify to the matters
         stated therein.
    Bickenheuser and his attorney for the misdemeanor assault charge
    filed affidavits in opposition to respondents' motion for summary
    judgment.      The District Court found that the attorney's affidavit
    contained hearsay and inadmissible comments on the evidence.              The
    District      Court   found that    Bickenheuser's affidavit contained
    matters which were irrelevant and outside the personal knowledge of
    the affiant.          As a result, the District Court ordered both
    affidavits stricken.
         A review of the record shows that the attorney's affidavit
    
    consists almost exclusively of hearsay. In paragraphs 1 and 2, the
    affiant offers alleged statements made by Felsman to Detective
    Hintz and County Attorney Deschamps, which were subsequently
    related to the attorney by Hintz and Deschamps, as evidence to
    prove the truth of the assertion that Felsman was concerned that
    she was going to be sued.     These statements are not based on
    personal knowledge, and are hearsay.      Rule 801(c), M.R.Evid.
    Similarly, Bickenheuser's affidavit lacks personal knowledge,
    contains hearsay, and offers statements not related to the issue on
    which summary judgment was granted. We have held that an affidavit
    in support of or in opposition to a motion for summary judgment
    should be   stricken by the district court when the affidavit
    contains statements not based on personal knowledge, and/or not
    related to the issue on which summary judgment is granted.   Eberl
    v. Scofield (lggO), 
    244 Mont. 515
    , 519, 
    798 P.2d 536
    , 538; see also
    Thornton v. Songstad (1994), 
    236 Mont. 390
    , 399, 
    868 P.2d 633
    , 638.
         We conclude that the affidavits do not meet the requirements
    of Rule 56(e), M.R.Civ.P., and fail to properly raise the disputed
    issues of material fact that Bickenheuser claims were central to
    his case. We hold, therefore, that the District Court did not err
    in granting respondents' motion to strike the affidavits of
    Bickenheuser and his attorney.
                                  ISSUE 2
         Did the District Court err in granting respondents' motion for
    summary judgment?
           "Our standard of review on a grant of summary judgment is
    identical to that of a trial court's."        Cooper v. Sisters of
    Charity (1994), 
    265 Mont. 205
    , 207, 
    875 P.2d 352
    , 353.       Summary
    judgment is only proper when there is no genuine issue of material
    fact, and the moving party is entitled to judgment as a matter of
    law.    Rule 56 (c), M.R.Civ.P. Spain-Morrow Ranch, Inc. v. West
                                  ;
    
    (1994), 
    261 Mont. 441
    , 442, 
    872 P.2d 330
    , 332. The burden of proof
    rests with the party seeking summary judgment to provide the court
    with evidence which excludes any real doubt as to the existence of
    a genuine issue of fact.    Berens v. Wilson (1990), 
    246 Mont. 269
    ,
    271, 
    806 P.2d 14
    , 16.     Only after the moving party has met this
    burden of proof does the burden shift to the nonmoving party to
    show that a genuine issue of fact exists.    Morton v. M.W.M., Inc.
    (1994), 
    263 Mont. 245
    , 249, 
    868 P.2d 576
    , 579.     "When raising the
    allegations that disputed issues of fact exist, the nonmoving party
    has an affirmative duty to respond by affidavits or other sworn
    testimony containing material facts that raise genuine issues;
    conclusory or speculative statements will not suffice." Koepplin
    v. Zortman Mining (Mont. 1994), 
    881 P.2d 1306
    , 1309, 51 St. Rep.
    881, 882.
           Bickenheuser filed a tort action against respondents, alleging
    that Felsman recommended prosecuting Bickenheuser because she
    feared Bickenheuser would sue for negligent placement of T.B. Once
    Felsman received the referral of suspected child abuse from T.B.'s
    school, she had a statutory duty under 5 41-3-202(1) and    (3),   MCA,
    to investigate the allegations and advise the county attorney of
    the investigation.       There is nothing in the record to show that
    when Felsman informed Deputy Missoula County Attorney, Anderson of
    her investigation that she made any recommendation as to what his
    charging decision should be. Anderson testified that he would not
    have accepted any such recommendation had she made one.             Anderson
    did not file criminal charges against Bickenheuser.               Misdemeanor
    assault charges were filed against Bickenheuser by County Attorney
    Robert Deschamps. Deschamps testified that his charging decision
    was based on his review of Anderson's internal memoranda and the
    investigation file prepared by the Missoula County Sheriff's Office
    and    was   undertaken    in   the   exercise   of   his     independent,
    prosecutorial discretion. Felsman testified that Deschamps did not
    speak with her or review her investigation files prior to charging
    Bickenheuser.
           Following   the    defense's   presentation    of    the     foregoing
    testimony, the burden shifted to Bickenheuser to establish a
    genuine issue of fact.          In Issue 1, we determined that the
    affidavits of Ranney and Bickenheuser did not meet the requirements
    of Rule 56(e), M.R.Civ.P., and were properly stricken. Therefore,
    Bickenheuser failed to meet his affirmative duty to respond by
    affidavit or other sworn testimony containing material facts that
    raise genuine issues.       As there is no genuine issue of material
    fact, respondents are entitled to summary judgment as a matter of
    law.
         We hold that the District Court did not err in granting
    respondents' motion for summary judgment.
         Af firmed.
         Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
    1988 Internal Operating Rules, this decision shall not be cited as
    
    precedent and shall be published by its filing as a public document
    with the Clerk of the Supreme Court and by a report of its result
    to Montana Law Week, State Reporter and West Publishing Company.
    
    
    
                                             Justice
    
    We concur:
                                           February 23, 1995
    
                                      CERTIFICATE OF SERVICE
    
    I hereby certify that the following certified order was sent by United States mail, prepaid, to the
    following named:
    
    
    CHARLES M. BICKENHEUSER
    1105 Haaglund Dr. No. Six
    Missoula, MT 59802
    
    
    HON. JOSEPH P. MAZUREK
    Kelly M. O'Sullivan
    Agency Legal Services
    Justice Bldg.
    Helena, MT 59620-1402
    
                                                         ED SMITH
                                                         CLERK OF THE SUPREME COURT
                                                         STATE OF MONTANA