Association of Unit Owners of the Deer Lodge Condominium v. Big Sky of Montana, Inc., 798 P.2d 1018 (1990)

Thereafter the Structure case was pursued to settlement and
was never tried on the merits.       Two of the defendants in the
Structure case, Darg and Moe, were granted summary judgment in
their favor on November 12, 1986, and May 15, 1987, respectively.
Motions for summary judgment made by Realty and by Boyne were
denied by the District Court.
       When the Structure case was finally settled, the District
Court allowed the Fire case to proceed again. However, substantial
discovery, including depositions, affidavits, and thousands of
pages of exhibits had been compiled in the Structure case during
the discovery phase.    On motion of Realty in the Fire case, the
District Court ordered that it would take judicial notice of the
pleadings and discovery in the Structure case.
     The subject of attorney fees in the Structure case came before
this Court in cause no. 89-502 (unreported), Association of Unit
Owners, et al. v. Big Sky of Montana, Inc. et al., Opinion dated
April 9, 1990.    It is not otherwise pertinent here.
     There are other facts interrelating the Fire case and the
Structure case, to which we will advert in discussing the issues.
It should be noted, however, that the State of Montana and Bruce
Houston were not defendants in the Structure case. They were named
as defendants in the Fire case on the contention of unit owners
that Houston, as a fire inspector for the State of Montana, failed
to report the numerous defects in the fireplaces found by later
experts subsequent to the second fire of February 20, 1981.
     The Deer Lodge Condominium buildings were, because of their
deficiencies in design and construction, ultimately razed in 1988
as part of the settlement in the Structure case.
     On appeal, the unit owners raise three issues:
     1.   Summary judgment was improperly entered by the District
Court in favor of the defendants.
     2.   The District Court erred by refusing to grant the unit
owners' motion to consolidate the cases.
     3.   The District Court improperly entered summary judgment for
Bruce Houston and the State of Montana.
GENERAL REMARKS
     In determining that the District Court properly granted
summary judgment in this, the Fire case, the Court is largely
influenced by the following factors: