08/10/2021
DA 20-0579
Case Number: DA 20-0579
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 200
ALLAN G. HOLMS, a Montana Corporation
d/b/a HOLMS & ASSOCIATES,
Plaintiff and Appellee,
v.
MARK A. BRETZ,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Butte-Silver Bow, Cause No. DV-20-08
Honorable Kurt Krueger, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
David B. Cotner, Brian T. Geer, Cotner Law, PLLC, Missoula, Montana
For Appellee:
David L. Vicevich, Lawrence E. Henke, Vicevich Law, Butte, Montana
Submitted on Briefs: June 16, 2021
Decided: August 10, 2021
Filed:
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__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Mark Bretz appeals a Second Judicial District Court order denying his motion to
change venue. Bretz argues that the District Court lacked authority to rule on the motion
because the Judge had improperly assumed jurisdiction following an untimely Motion for
Substitution. Bretz argues in the alternative that, if the venue motion properly was
considered, the District Court’s denial was in error. We conclude that the Motion for
Substitution of Judge was untimely and therefore do not address the merits of Bretz’s
motion to change venue.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 On June 2, 2016, Bretz entered into a confidentiality agreement with
Allan G. Holms, a Montana Corporation d/b/a Holms & Associates (“Holms”) regarding
the possible sale of a business or business opportunity between Bretz and a third party that
Holms hoped to facilitate. Bretz resides in Missoula, Montana, where he owns and operates
his business, Bretz RV, Inc. Holms’s principal place of business is in Butte,
Silver Bow County. On January 6, 2020, Holms filed suit in Silver Bow County alleging
Bretz breached the confidentiality agreement.
¶3 The case initially was assigned to the District Court’s Department 2, before the
Hon. Robert Whelan. Holms served the complaint upon Bretz on January 14. On
February 4, Bretz filed a Motion to Change Venue, followed three days later by his answer
to the complaint. On February 28, Holms filed a Motion for Substitution of Judge.
Judge Whelan issued an Order on April 9 inviting assumption of jurisdiction, and the matter
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was transferred to Department 1, before the Hon. Kurt Krueger. Bretz thereafter filed a
motion to have the matter returned to Judge Whelan. Judge Krueger issued an order
denying Bretz’s Motion to Change Venue and did not rule on Bretz’s motion to return the
matter to Judge Whelan. Bretz appeals the District Court’s denial of his Motion to Change
Venue and argues that Holms’s untimely filing of the Motion for Substitution deprived
Judge Krueger of authority to hear the matter, and the denial of the Motion to Change
Venue is void.
STANDARD OF REVIEW
¶4 “A district court’s determination whether to substitute a judge is a question of law
that we review for correctness.” City of Missoula v. Mt. Water Co., 2021 MT 122, ¶ 8,
404 Mont. 186,
487 P.3d 15 (quoting Labair v. Carey,
2017 MT 286, ¶ 11,
389 Mont. 366,
405 P.3d 1284) (internal quotation marks omitted).
DISCUSSION
¶5 Under § 3-1-804, MCA (the Substitution Rule), “[e]ach adverse party is entitled to
one substitution of a district judge.” At issue here is subsection (1)(a), which reads in
relevant part:
In a civil action . . ., a motion for substitution by the party filing the action
must be filed within 30 calendar days after the first summons is served or an
adverse party has appeared. A motion for substitution by the party served
must be filed within 30 calendar days after service has been completed in
compliance with M. R. Civ. P. 4.
Section 3-1-804(1)(a), MCA.
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¶6 Bretz argues this subsection should be read to require a plaintiff to file a motion for
substitution thirty days after the first summons is served or, if the opposing party appears
voluntarily before a summons is served, thirty days after that appearance. In other words,
Bretz reads the Substitution Rule to require the plaintiff to file its motion for substitution
“within 30 calendar days after the first summons is served or an adverse party has
appeared,” whichever is first. He points to the Montana Rules of Civil Procedure
governing when a court gains jurisdiction over a party, either: “(A) through service of
process as herein provided; or (B) by the voluntary appearance in an action by any person
either personally or through an attorney, authorized officer, agent, or employee.”
M. R. Civ. P. 4(a)(2). Bretz argues this Rule, which § 3-1-804(1)(a), MCA, references,
supports an interpretation that the event triggering the thirty-day countdown is when a court
first gains jurisdiction over the opposing party.
¶7 Holms responds that the Substitution Rule properly should be read to grant a
plaintiff either of two distinct and alternative time frames to file a motion for substitution—
within thirty days after an opposing party is first served with a summons and complaint, or
within thirty days after an opposing party appears. Based on this interpretation, Holms
argues he timely filed his Motion for Substitution within thirty calendar days of the
Motion to Change Venue, Bretz’s first appearance in the matter.
¶8 When interpreting a statute, this Court’s role “is to implement the objectives the
legislature sought to achieve.” Bullock v. Fox, 2019 MT 50, ¶ 52,
395 Mont. 35,
435 P.3d 1187 (quoting Mont. Vending, Inc. v. Coca-Cola Bottling Co.,
2003 MT 282,
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¶ 21, 318 Mont. 1,
78 P.3d 499). Section 3-1-804(1)(a), MCA, is a codified Rule adopted
by the Montana Supreme Court. See Patrick v. State,
2011 MT 169, ¶ 23 n.5,
361 Mont. 204,
257 P.3d 365 (citing In re Rules of the Supreme Court, 34 State Rep. 26,
27 (1976)). But we employ the same tools of statutory interpretation. See generally
Mountain Water Co., ¶ 10; In re Estate of Greene,
2013 MT 174, ¶ 12,
370 Mont. 490,
305 P.3d 52; Kulstad v. Maniaci,
2009 MT 403, ¶ 10,
353 Mont. 467,
221 P.3d 127.
¶9 We “interpret a statute first by looking to its plain language” and will not interpret
it further “if the language is clear and unambiguous.” Mont. Sports Shooting Ass’n v. State,
2008 MT 190, ¶ 11,
344 Mont. 1,
185 P.3d 1003 (citing State v. Letasky,
2007 MT 51, ¶ 11,
336 Mont. 178,
152 P.3d 1288). See § 1-2-101, MCA (“the office of the judge is simply
to ascertain and declare what is in terms or in substance contained” in the statute). And we
“endeavor to avoid a statutory construction that renders any section of the statute
superfluous or fails to give effect to all of the words used.” Mont. Trout Unlimited v.
Mont. Dep’t of Nat. Res. & Conservation,
2006 MT 72, ¶ 23,
331 Mont. 483,
133 P.3d 224
(citing Mattson v. Mont. Power Co.,
2002 MT 113, ¶ 10,
309 Mont. 506,
48 P.3d 34).
¶10 Both parties focus a substantial portion of their briefing on the disjunctive “or” in
the clause, “a motion for substitution by the party filing the action must be filed within 30
calendar days after the first summons is served or an adverse party has appeared.”
Section 3-1-804(1)(a), MCA (emphasis added). The parties agree that the “or” is
disjunctive and provides two possible deadlines by which a plaintiff must file a motion to
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substitute. The core of the parties’ disagreement is whether a plaintiff may elect between
those two deadlines.
¶11 Section 3-1-804(1)(a), MCA, contains no permissive language relative to either
party. Both parties assume—correctly—that each has discretion to choose whether to file
a motion for substitution. That discretion comes from the Substitution Rule’s provision
that “[e]ach adverse party is entitled to one substitution of a district judge.”
Section 3-1-804(1), MCA (emphasis added); see Entitle, Black’s Law Dictionary
(11th ed. 2019) (“To grant a legal right to or qualify for.”). Section 3-1-804(1)(a), MCA,
presupposes that a plaintiff has elected to exercise its right to substitute a judge; it controls
when the plaintiff must exercise that right—either within thirty days after service or within
thirty days after an adverse party appears. The “or” in the subsection therefore does not
implicate the plaintiff’s discretion; it instead implicates the two conditions that trigger the
deadline for the plaintiff to file the motion to substitute.
¶12 Holms’s argument that § 3-1-804(1)(a), MCA, “provides two deadlines by
which . . . [the plaintiff] . . . may file a Motion to Substitute Judge” suggests a flexible
standard that the language of the Substitution Rule does not support. A party is entitled to
only one substitution, which if timely filed is granted as a matter of course with no briefing
or argument necessary. Once a summons is served on the defendant, the rules require her
appearance to follow twenty-one days later. Reading the “must” in subsection (1)(a) in its
proper mandatory manner, requiring that a plaintiff must file within thirty days of service
or must file within thirty days of the defendant’s appearance places the plaintiff in the
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position of having two competing mandatory deadlines for filing its sole motion to
substitute. Such an interpretation is confusing and unreasonable. See § 1-3-222, MCA
(“The law never requires impossibilities.”). Should a plaintiff refrain from immediately
effectuating service for whatever reason and a defendant appears on his own accord, it
defeats the Substitution Rule’s strict deadlines to allow the plaintiff to delay serving the
summons and thereby control the time for seeking substitution. Reading the statute as
Bretz interprets it implements the objectives of the Substitution Rule and gives effect to all
its provisions. Since the thirty-day deadline begins only once, after whichever event occurs
first, the triggering event directs the plaintiff to file and prevents the alternative thirty-day
deadline from taking effect.
¶13 We agree with Bretz that the thirty-day deadline for a plaintiff to file its motion to
substitute is triggered only once, upon service of the summons or when an adverse party
appears, whichever first occurs. This is consistent with our observation that the
Substitution Rule sets “definitive moment[s]” triggering the deadline to file a motion for
substitution. See Collins v. Mont. Eighth Judicial Dist. Court, 2018 MT 125, ¶ 6 n.1,
391 Mont. 378,
418 P.3d 672. Because Bretz did not appear in the action before the
summons was served, and Holms filed his Motion for Substitution of Judge more than
thirty days after that service, the motion was untimely and void. Section 3-1-804(4), MCA
(“Any motion for substitution that is not timely filed is void.”); see also In re Estate of
Greene, ¶¶ 7, 14 (holding that the district court properly rejected a premature substitution
motion because “[a] motion for substitution that is not timely is void”). Accordingly, all
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orders and rulings made after the substitution occurred, including the denial of Bretz’s
motion to change venue, are vacated, as Judge Krueger did not have jurisdiction to enter
them. See Mountain Water Co., ¶ 12. We therefore do not consider the denial on appeal.
CONCLUSION
¶14 We conclude that a plaintiff must file a motion to substitute a presiding district judge
within thirty days of service of the summons or of an adverse party’s appearance—
whichever first occurs. Holms filed his Motion for Substitution of Judge more than
thirty days after he served Bretz. The motion therefore was void at its inception, and
Judge Whelan improperly transferred the case to Judge Krueger. Because Judge Krueger
never had jurisdiction to hear the matter, any orders he issued are vacated. The
April 9, 2020 Order Inviting Assumption of Jurisdiction is reversed, and the case is
remanded for further proceedings consistent with this Opinion.
/S/ BETH BAKER
We Concur:
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
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