
    DAVID G. COLE, Plaintiff, Respondent and Cross-Appellant, v. VALLEY ICE GARDEN, L.L.C., VALLEY ICE GARDEN MANAGEMENT, L.L.C., and WILLIAM MARTEL, Defendants and Appellants.
    No. 03-729.
    Withdrawn April 5, 2005.
   Appellants Valley Ice Garden, L.L.C., Valley Ice Garden Management, L.L.C., and William Martel (Appellants) have filed a Petition for Rehearing. They maintain that this Court applied the wrong standard of review in the decision entered in this cause (2005 MT 21) on February 9,2005. They maintain that because their appeal was from the District Court’s entry of summary judgment in favor of Cole to the effect that Cole was not terminated for cause, our standard of review should have been de novo. Instead, they argue, we wrongly reviewed their claim on appeal under the clearly erroneous standard. Appellants therefore request that we grant their Petition for Rehearing.

David Cole, the Respondent, opposes the Petition for Rehearing on two grounds. First, he maintains that the standard of review issue has already been considered by this Court, as is evidenced by its reference in the Dissent. Second, he argues that even if this Court reviewed the issue raised by Appellants under the de novo standard, the result would be the same.

This matter came before us on an appeal and cross-appeal. The Appellants asked us to review both the District Court’s determination that Cole was terminated without cause and various of its evidentiary rulings made during the trial on damages. The Appellants are correct that in the section addressing the standard of review in our Opinion, and again in our Discussion, we failed to set forth or apply a de novo standard with respect to that aspect of the District Court’s decision that was entered on summary judgment. Rather, we said we would review the district court’s findings of fact to determine whether they were clearly erroneous, which is the proper standard of review only for the court’s various trial rulings.

We have concluded that the Petition for Rehearing raises an issue which was overlooked in our original Opinion. Accordingly,

IT IS HEREBY ORDERED that Appellants’ Petition for Rehearing is GRANTED.

IT IS FURTHER ORDERED that our previous Opinion entered in this cause should be and hereby is WITHDRAWN. A superseding Opinion shall be entered in the near future.

IT IS FURTHER ORDERED that the Clerk of this Court give notice of this Order by mail to all counsel of record.

DATED this 5th day of April, 2005.

/S/KARLA M. GRAY

/S/ PATRICIA O. COTTER

/S/JOHN WARNER

/S/JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/JIM RICE

/S/ BRIAN MORRIS  