ORDER DENYING SUMMARY JUDGMENT
Court has under consideration an Amended Motion for Summary
Judgment of respondent, Frank C. Richter (Richter), and a
Cross-motion for Summary Judgment of the petitioner, State
Compensation Insurance Fund (State Fund).
motions are supported by affidavits of Willem Visser and
Frank C. Richter. The parties also refer to, and the Court
takes judicial notice of, the proceedings in State v.
Sharon F. Young, Thirteenth Judicial District Court, No.
DC 91-028 and the decision on appeal, State v.
Young, 259 Mont. 371, 856 P.2d 961 (1993).
parties have requested oral argument, I find oral argument
unnecessary. For the reasons set forth in the following
discussion, both motions for summary judgment are denied and
this matter is set for trial.
State Fund is attempting to recover amounts paid to Frank
Richter, an attorney, out of a workers' compensation
settlement he negotiated on behalf of Sharon Young. The
settlement was based on an alleged injury Sharon suffered on
May 4, 1983. It was negotiated and executed in 1987. Richter
was paid $9, 862.50 for his efforts. He was paid out of, not
in addition to, the amounts due Young.
Young was thereafter criminally prosecuted for conspiracy to
commit felony theft. The prosecution arose out of the
benefits she obtained for her alleged May 4, 1983 industrial
injury. The criminal information charged, and a jury found,
that her 1983 claim was fraudulent. The conviction was upheld
on appeal in State v. Young, 259 Mont. 371, 856 P.2d
Young's conviction the State Fund petitioned this Court
on August 10, 1993 to recover the attorney fees Richter
received for representing Young. On August 26, 1993, Richter
filed a Motion to Dismiss for Lack of Jurisdiction, which was
denied. He filed a renewed motion to dismiss and a motion for
summary judgment on October 5, 1993. These motions were also
denied. On November 8, 1993, he again renewed his motion for
summary judgment. On December 1, 1993, the State Fund filed a
cross-motion for summary judgment. These later motions are
now ready for decision.
Court's earlier denials of Richter's motions were
without prejudice except as to his challenge to this
Court's subject matter jurisdiction. The remaining issues
raised by Richter's motions are rephrased as
(1) Whether the petition fails to state a claim upon which
relief may be granted.
(2) Whether the claim asserted against Richter is barred by
the statute of limitations.
(3) Whether mediation is a prerequisite to this action.
(4) Whether the present action is barred by equitable
principles of res judicata, collateral estoppel, waiver,
estoppel, or unjust enrichment.
(5) Whether this action deprives Richter of rights to due
process of law and a jury trial.
(6) Whether the State Fund has standing to bring this action.
(7) Whether the claim asserted in this action amounts to a
prohibited impairment of contract.
(8)Whether this action is precluded because of a lack of
privity of contract between the parties.
(9) Whether the Court has jurisdiction over the defendant.
the grounds asserted by Richter lack cogent legal analysis,
are utterly unsupported by any citation to legal precedent,
or are supported only by perfunctory assertions. The Court
disapproves of this type of practice. The prospects of
success are not improved by the sheer numbers of grounds
asserted in a motion, and parties should not expect the Court
to do their basic legal research for them.
State Fund advances a singular ground for its motion. Simply
stated, the State Fund asserts that uncontroverted facts
entitle it to judgment for the full amount of the attorney
fees paid Richter.
rules of this Court contain no specific provision for summary
judgment motions. However, the Court has in previous
decisions borrowed Rule 56, Mont.R.Civ.P., and will continue
to do so. Murer v. State Compensation Mutual Insurance
Fund, 257 Mont. 434, 436, 849 P.2d 1036 (1993); Moen
v. Peter Kiewit & Sons' Co., 201 Mont. 425,
434655 P.2d 482 (1982).
judgment must be based on sworn, admissible evidence,
although it may be presented by way of affidavit, deposition
and answers to written discovery. Rule 56, Mont.R.Civ.P. The
Court cannot consider representations of the parties which
are not rooted in the sworn evidence. B.M. by Berger v.
State, 215 Mont. 175, 179, 698 P.2d 399 (1985);
Prairie State Bank v. IRS of Treasury Dept., 745 P.2d
966 (Ariz. 1990). It is also not bound by the parties'
characterization of evidence.
judgment will be granted only if the uncontroverted material
facts entitle the moving party to judgment as a matter of
law. First Security Bank v. Vander Pas, 250 Mont.
148, 152, 818 P.2d 384 (1991). Every factual link in
the chain of elements necessary to entitle a party to
judgment must be uncontroverted. Bickler v. Racquet Club
H&S Assoc., 50 St. Rep. 409, 410 (Mont. 1993);
Tippens v. Celotex Corp., 805 F.2d 949,
rehearing denied 815 F.2d 66 (Ga.Ct.App.)
Basis For Motions
factual basis for the cross-motions are gleaned from the
record of proceedings in the criminal prosecution against
Sharon Young and affidavits submitted by Willem Visser and
Frank Richter. No depositions or other evidence have been
submitted. The following facts are deemed uncontroverted:
1. Effective March 1, 1983 Sharon Young and her husband,
Robert Young, secured workers' compensation insurance
coverage from the State Compensation Fund for a business
known as Parrot Creek Properties. The Youngs were listed as
owners of the business and they were listed as covered
employees of the business.
2. On May 6, 1983, Sharon Young submitted a claim for
compensation with respect to an injury she allegedly suffered
on May 4, 1983. The claim was accepted and the State Fund
thereafter paid benefits to Sharon.
3. On April 3, 1985, Sharon Young entered into an agreement
retaining Richter to represent her with respect to her claim.
The agreement established Richter's entitlement to a
4. Several days prior to April 7, 1986, Willem Visser, a
claims manager for the State Fund, had a telephone
conversation with Richter in which he expressed concern that
Ms. Young's claim was fraudulent. That concern was based
on a suspicious chronology of coverage and injuries which was
disclosed to Richter. Richter did not view the circumstances
as sufficient for him to waiver in his representation of
Sharon Young and he continued to vigorously press her
5. According to Richter's Affidavit, a petition was filed
in the Workers' Compensation Court on behalf of Sharon
Young, depositions were taken and the matter was heard by a
hearing examiner without any further allegations or evidence
of fraud. The State Fund does not deny or reply to this
statement and it is accepted as true. Neither ...