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No. 96-359

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA, ON THE RELATION
OF FLOYD LEE LOVINS,

Petitioner and Appellant,

v.

TOOLE COUNTY, MONTANA, and ALLAN J
UNDERDAL, DENIS FREELAND, and ALAN
RYAN, Toole County Commissioners,

Respondents and Respondents

APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Toole,
The Honorable David Cybulski, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William Conklin, Conklin, Nybo, Leveque & Murphy,
P. C., Great Falls, Montana

For Respondents:

Ward Shanahan and Ronald F. Waterman, Gough, Shanahan, Johnson & Waterman, Helena, Montana
Merle Raph, County Attorney, Shelby, Montana

Submitted on Briefs: July 30, 1996
Decided: September 12, 1996

Filed:

Chief Justice J. A. Turnage delivered the Opinion of the Court.

Floyd Lee Lovins appeals an order of the Ninth Judicial
District Court, Toole County, granting summary judgment to Toole
County and the Toole County Commissioners and imposing Rule 11,
M.R.Civ.P., sanctions upon Lovins. By order dated July 30, 1996,
this Court affirmed the District Court's judgment but reversed the
imposition of sanctions, stating that a full opinion would follow.

We restate the issues as:

1.
Whether summary judgment must be reversed because
supporting affidavits filed with the court were not served upon the
opposing party.


2.
Whether the District Court erred in granting summary judgment.


3. Whether the court's sanction was an abuse of discretion.

Floyd Lee Lovins, acting pro se, filed this action in the District Court in April 1996. He asked the court to stay proceed- ings by which the Toole County Commissioners proposed to borrow $1,700,000 through the Montana Health Facility Authority to construct an addition to Toole County Hospital and Nursing Home. The proposed addition would house administrative facilities and an outpatient and physicians' clinic. Lovins claimed that Toole County could not borrow the money without first submitting the question to a vote of county electors as required under 5 7-7-2402, MCA.
The defendants moved for summary judgment on the basis of res
judicata or collateral estoppel. They asked the court to take

judicial notice of a previous action, Lovins v. Toole County, Ninth

Judicial District Court Cause No. DV-95-009. Lovins had filed that
case a year before to prevent a proposed lease arrangement under
which a private nonprofit corporation would take over operation of
the hospital. In that action, the court granted Lovins a writ of
prohibition in August 1995.

In the present case, the District Court ruled that res judicata barred the action and that Lovins was estopped from proceeding further on this issue because he had unsuccessful1 y made the same legal arguments in the 1995 case. The court also ruled that

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Montana Law