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ec12095b-c6c4-45bb-b424-7806428cf4c7 | State v. Parks | 2013 MT 280 | DA 12-0253 | Montana | Montana Supreme Court | DA 12-0253 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 280 STATE OF MONTANA, Plaintiff and Appellee, v. TERRY DUANE PARKS, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-10-371 Honorable Karen S. Townsend, Presiding Judge COUNSEL OF RECORD: For Appellant: Robin A. Meguire, Meguirelaw.com; Great Falls, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant Attorney General; Helena, Montana Fred R. Van Valkenburg, Missoula County Attorney; Missoula, Montana Jesse Laslovich, Special Assistant Attorney General; Montana State Auditor’s Office; Helena, Montana Submitted on Briefs: September 4, 2013 Decided: September 25, 2013 Filed: __________________________________________ Clerk September 25 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 The State of Montana charged Terry Duane Parks in the Fourth Judicial District Court, Missoula County, with three counts of omitting material facts relating to his offer and sale of a security, in violation of § 30-10-301(1)(b), MCA. The jury found Parks guilty on all three counts. Parks now appeals. ¶2 We address the following issue on appeal: Whether § 46-11-410, MCA, precludes Parks’ convictions on two of the three counts with which he was charged. We answer this question in the affirmative and, therefore, remand this case to the District Court with instructions as specified below. Parks raises two other issues on appeal; however, we do not address those issues for the reasons explained below. BACKGROUND ¶3 The evidence presented at trial reflected the following facts. In 2007, Parks was involved in various rebuilding projects in the Gulf Coast area after Hurricane Katrina. Parks testified that banks were not lending in that area due to uncertainty, and so private funds were being sought for loans secured by real estate. To that end, Parks placed an advertisement in the Missoulian soliciting funds to facilitate the rebuilding projects. The advertisement appeared on March 30, 2007, in the Classified section of the Missoulian under the heading “Investments.” It stated: 24% well-secured fixed 1 yr. yield w/ Go Zone trusts. Help rebuild booming Gulf Coasts. Terry, [phone number] Parks explained at trial that “Go Zone” refers to Gulf Opportunity Zone. 3 ¶4 Rece Cobeen, a gentleman from Plains, Montana, noticed the advertisement. He testified that what drew his attention was the 24 percent rate of return, the fact that it was “well-secured,” and “it sounded like it would be . . . a good moneymaking opportunity.” Cobeen contacted Parks at the listed phone number. During their initial conversation, Parks explained that the one-year yield referenced in the advertisement involved “very large loans” secured by “multi-million dollar properties.” Cobeen did not have sufficient funds for these large loans, but was willing to invest smaller amounts. Parks testified that he told Cobeen “any smaller amounts of money would be used for . . . general business purposes . . . . It would probably be diversified over several projects.” ¶5 Cobeen asked Parks whether he had any references. Parks provided the name of an individual, Patrick Rummel, in Plains. Cobeen spoke with Rummel a few days later, received a “solid” reference regarding Parks, and then called Parks a second time. In this second conversation, Cobeen indicated that he wanted to invest $10,000. Parks reiterated that the one-year loans referenced in the advertisement were not available to Cobeen. He told Cobeen that the smaller, $10,000 loan would be at an annual rate of 24 percent, but on a five-year term. Parks asked Cobeen to wire the money to a bank in Missoula; however, Cobeen preferred to send a cashier’s check. Parks told Cobeen to make the check out to “Tower Trust Two.” Parks was the trustee of Tower Trust Two. ¶6 Cobeen sent Parks a cashier’s check for $10,000 dated April 19, 2007. In return, Parks sent Cobeen a document titled “Business Purpose Note,” which stated: On this date, for an [sic] consideration of a private business purpose loan, the undersigned MAKER, Tower Trust Two, a Nevada private trust, [mailing address], promises to pay to Rece Cobeen, [mailing address], or 4 order, PAYEE, principal in the amount of TEN THOUSAND DOLLARS ($10,000.00), plus accrued interest to the date of payment. This note shall bear interest at the rate of TWENTY-FOUR PERCENT PER ANNUM (24%), compounded annually. Interest shall accrue and compound until paid with the principal due. This note shall be due and payable in full, including all interest accrued, on April 16, 2012. It may be paid in part or in full before its due date without penalty. If any action shall be required under law to collect this note, the MAKER agrees to pay all reasonable costs associated with said collection action, including reasonable attorney fees, if any. This note is the liability of Tower Trust Two only, and not that of any individual person. Made this 16th day of April, 2007. [Parks’ signature] ¶7 Several months later, Cobeen called Parks on his own initiative and indicated that he wanted to invest more money. Cobeen did not make any further inquiries about the nature of the investment, and Parks did not provide any additional information. Cobeen sent Parks a cashier’s check for $35,000 dated August 27, 2007, and made out to Tower Trust Two. Parks, correspondingly, sent Cobeen another Business Purpose Note dated August 28, 2007, containing identical terms as the Business Purpose Note quoted above, except the amount was $35,000 and the due date was August 28, 2012. ¶8 Cobeen sent Parks two more checks, each for $5,000. In both instances, Cobeen sent the checks without contacting Parks first; he assumed the money would be invested the same way as his previous contributions. Both checks were made out, as before, to Tower Trust Two. Parks, in return, sent Cobeen two additional Business Purpose Notes, 5 the first dated February 15, 2008, and the second dated July 15, 2008. The terms of these notes were the same as the two Business Purpose Notes issued in 2007, except that the duration of the $5,000 loans was four years rather than five. ¶9 At no point during their discussions did Parks state that he was a securities broker. In fact, Parks is not a securities broker and he is not licensed to offer or sell securities in Montana. Moreover, at no point did Parks tell Cobeen that the Business Purpose Notes were securities registered with the State. The notes, in fact, were not registered with the State. Lastly, Parks never provided Cobeen with any kind of prospectus or disclosure documentation regarding Tower Trust Two and the Business Purpose Notes. ¶10 After his final contribution in July 2008, Cobeen began to think that 24 percent was “a ridiculously high amount,” so he contacted Parks and “asked to take my money out.” Other than a $400 interest payment in June 2007, however, Cobeen never received any money from Parks. Cobeen then filed a complaint with the Office of the Commissioner of Securities and Insurance (CSI). Following an investigation, the State filed an Information, then an Amended Information, charging Parks with three violations of § 30-10-301(1)(b), MCA. This statute states: It is unlawful for any person, in connection with the offer, sale, or purchase of any security, directly or indirectly, in, into, or from this state, to . . . make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading. Section 30-10-301(1)(b), MCA (paragraph breaks omitted). The State alleged that Parks violated this statute, “on or about April 2007 through July 2008,” in three ways: 6 Count Two.1 Parks “made untrue statements or omitted material facts when he failed to inform [Cobeen] that he was not registered to offer or sell securities in Montana.” Count Three. Parks “made untrue statements or omitted material facts when he failed to inform [Cobeen] that Tower Trust Two had not registered its securities in the state of Montana, nor had it applied for any type of an exemption from registration.” Count Four. Parks “made untrue statements or omitted material facts by failing to provide [Cobeen] with any disclosure information regarding his investments in Tower Trust Two ‘Business Purpose Notes.’ ” ¶11 At trial, the prosecution called Lynne Egan, the Deputy Securities Commissioner with CSI. Among other things, Egan testified regarding three essential requirements of securities transactions in Montana. First, a person may not transact business in this State as a broker-dealer or salesperson unless the person is registered under the Securities Act of Montana. Section 30-10-201(1), MCA. The registration requirement is designed to ensure that individuals who are assisting people in the management of their money have the requisite knowledge and skill and are familiar with the applicable laws. Knowles v. State ex rel. Lindeen, 2009 MT 415, ¶ 5, 353 Mont. 507, 222 P.3d 595. Egan explained that broker-dealers and salespersons “have a duty to know their client [and] to only make recommendations to that client that are suitable for that client based on a thorough review of their financial background, their level of sophistication, their age, their liquidity needs, their risk tolerance and their investment objectives, and any other information that may be relevant to the transaction.” ¶12 Second, a person may not offer or sell a security in this State unless the security is registered under the Securities Act. Section 30-10-202, MCA. Egan explained that 1 Count One was a theft charge, which the District Court dismissed before trial. 7 registering a security requires the filing of various documents, including audited financial statements, a copy of the prospectus, an opinion from an attorney attesting that the issuer can legally offer the security, a list of risk factors associated with the offering, and a description of the type of investment opportunity, whether an equity investment or a debt offering. CSI reviews the documents to ensure that the information is correct and that it would be in the public’s interest to allow the registration to proceed. The registration process, Egan summarized, is designed “to protect investors and make sure that there’s transparency in the securities transaction.” ¶13 Finally, Egan testified that, as part of an investment transaction, the issuer (i.e., the person or entity offering the investment opportunity) “must make full and complete disclosure to investors of all material information that an investor would need to make an informed investment decision.” See § 30-10-301(1)(b), MCA. Egan explained that such disclosures are generally made through a prospectus, which should be delivered to the investor before the investment “[s]o the investor is informed about what it is they are investing in.” Egan noted that there is no one set of material facts for each offering; “[i]t’s on a case-by-case basis what must be included” in the disclosure. ¶14 Turning to the present case, it was Egan’s opinion that the dealings between Parks and Cobeen came within the purview of the Securities Act. Egan explained that the Business Purpose Notes showed that Cobeen had lent money to Parks in exchange for a 24 percent rate of return in Tower Trust Two with an expectation of profit. Egan posited that the Business Purpose Notes were “an investment contract, a note, or any evidence of indebtedness,” all of which are included in the definition of a “security” in the Securities 8 Act.2 See § 30-10-103(22)(a), MCA. In this connection, Egan explained that a “debt offering” is “a securities offering where the investor becomes a creditor of the issuer, instead of an owner of the issuer.” The investor “lends their money to the issuer to meet some type of objective, whatever the issuer intends, as long as it’s disclosed to the investor, and then the issuer pays the investor back at a set date with a set rate of return.” Egan indicated that the Business Purpose Notes were securities of this type. ¶15 Besides Egan, the State’s only other witness was Cobeen, who testified about his prior investment experience and his interactions with Parks. Under cross-examination, Cobeen admitted that he knew his money would be used for various business purposes, possibly in Missoula or in the Gulf Coast region. Cobeen further admitted that he had continued to send Parks money because he thought it was “a good deal.” ¶16 The defense’s only witness was Parks himself. He acknowledged that he was not registered to offer or sell securities and that the Business Purpose Notes were not registered as securities. Parks also acknowledged that he did not apprise Cobeen of these facts and that he did not provide Cobeen with a prospectus. Parks explained that he had believed the Business Purpose Notes were “business loans,” not “securities.” ¶17 In closing argument, Parks’ counsel conceded the three alleged omissions—i.e., that Parks did not tell Cobeen he was not registered; that Parks did not tell Cobeen the 2 As we have noted, the Securities Act defines “security” quite broadly so as to encompass virtually any instrument that might be sold as an investment. Redding v. First Jud. Dist. Ct., 2012 MT 144A, ¶ 24, 365 Mont. 316, 281 P.3d 189. “Such a broad definition is in harmony with federal securities law, which recognizes the virtually limitless scope of human ingenuity, especially in the creation of countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.” Redding, ¶ 24 (internal quotation marks omitted). 9 Business Purpose Notes were not registered; and that Parks did not provide Cobeen a prospectus. Counsel also conceded tacitly, if not outright, that the Business Purpose Notes were securities.3 The crux of the dispute, therefore, centered on whether Parks’ omissions were “material” and “misleading.” In this regard, the District Court instructed the jury that “[a]n omitted fact is material if there is substantial likelihood that a reasonable investor would consider it important in deciding whether to invest.” ¶18 The prosecution argued that, in deciding whether to invest, a reasonable investor would consider it important to know that neither Parks nor the Business Purposes Notes were registered, and would also consider it important to receive a prospectus explaining the nature of the investment. The defense, conversely, argued that these omissions did not make Parks’ statements misleading. See § 30-10-301(1)(b), MCA (“It is unlawful . . . [to] omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading.”). Parks’ counsel argued that Cobeen knew he was dealing with a private business person, not a broker, who would be using his money for various business purposes. Counsel argued that it was not misleading to omit the facts that Parks was not a registered broker-dealer and that the Notes were not registered securities. Counsel asserted that Cobeen understood the nature of the transaction, and he noted that Cobeen had never claimed Parks “misled” him. ¶19 The jury ultimately rejected Parks’ contentions and found him guilty of the three omissions alleged by the State. Following the verdict, but before sentencing, Parks filed 3 Counsel stated: “We would agree that the ad appears to be an offer and the offer for something that appears to be securities.” Parks represents in his opening brief on appeal that his counsel also “implicitly conceded” that the Notes were securities during voir dire. 10 a motion arguing that under § 46-11-410, MCA, he could be convicted and sentenced on only one of the three counts. The District Court denied the motion on the ground that Parks had violated § 30-10-301(1)(b), MCA, “in three very separate ways.” The court sentenced him to three consecutive ten-year terms at Montana State Prison, with the second and third terms suspended (hence, a total sentence of 30 years with 20 of those years suspended). Parks now appeals. STANDARD OF REVIEW ¶20 The interpretation and application of a statute to a particular set of circumstances are questions of law subject to de novo review for correctness. CHS, Inc. v. Mont. Dept. of Revenue, 2013 MT 100, ¶ 16, 369 Mont. 505, 299 P.3d 813. DISCUSSION ¶21 Does § 46-11-410, MCA, the multiple charges statute, preclude Parks’ convictions on two of the three counts with which he was charged? ¶22 Parks asserts that “double jeopardy” protections required the District Court to convict and sentence him on only one count of securities fraud. Yet, while Parks cites the Double Jeopardy provisions of both the United States Constitution and the Montana Constitution, he provides no distinct constitutional analysis. Rather, the substance of his argument is based on the multiple charges statute, § 46-11-410, MCA. Confusion may have arisen because some of our cases refer to this statute as providing “double jeopardy” protections. See e.g. State v. Geren, 2012 MT 307, ¶ 24, 367 Mont. 437, 291 P.3d 1144; State v. Weatherell, 2010 MT 37, ¶ 11, 355 Mont. 230, 225 P.3d 1256; State v. Hamilton, 2007 MT 223, ¶ 40, 339 Mont. 92, 167 P.3d 906; State v. Becker, 2005 MT 75, ¶ 15, 326 11 Mont. 364, 110 P.3d 1; see also § 46-13-110(3)(b), MCA. Despite that characterization, however, we do not consider constitutional double jeopardy principles in resolving the instant issue. We simply apply the multiple charges statute pursuant to its language. ¶23 The multiple charges statute provides, in pertinent part: Multiple charges. (1) When the same transaction may establish the commission of more than one offense, a person charged with the conduct may be prosecuted for each offense. (2) A defendant may not, however, be convicted of more than one offense if: (a) one offense is included in the other; . . . . Section 46-11-410, MCA (emphases added). ¶24 The first question is whether Parks’ offenses were part of the “same transaction” under subsection (1) of the statute. This term is defined as follows: “Same transaction” means conduct consisting of a series of acts or omissions that are motivated by: (a) a purpose to accomplish a criminal objective and that are necessary or incidental to the accomplishment of that objective; or (b) a common purpose or plan that results in the repeated commission of the same offense or effect upon the same person or the property of the same person. Section 46-1-202(23), MCA. ¶25 Here, Parks’ omissions arguably satisfy both definitions. Under subsection (a), his series of omissions were motivated by a purpose to accomplish a criminal objective— namely, to obtain investments from Cobeen in Tower Trust Two without full disclosure of all material facts—and were necessary or incidental to the accomplishment of that objective. Under subsection (b), his series of omissions were motivated by a common purpose or plan (to obtain investments in Tower Trust Two without full disclosure of all 12 material facts) that resulted in the repeated effect upon the same person or the property of the same person—namely, Cobeen’s repeated submission of checks to Tower Trust Two. ¶26 In responding to Parks’ motion under the multiple charges statute in the District Court, the State relied on State v. Goodenough, 2010 MT 247, 358 Mont. 219, 245 P.3d 14. The defendant there had been convicted of sexual assault and sexual intercourse without consent, as well as incest. We acknowledged, based on prior precedent, that sexual assault is “included” in sexual intercourse without consent. Goodenough, ¶ 16 (citing State v. Williams, 2010 MT 58, ¶ 28, 355 Mont. 354, 228 P.3d 1127). We thus focused on whether the defendant’s offenses were part of the “same transaction.” We concluded they were not. Whereas the crimes in Williams arose from the same attack, we observed that the charges and evidence against Goodenough established “distinct criminal events.” In fact, Goodenough had conceded in his briefs on appeal that his offenses against his granddaughter involved multiple incidents occurring on different days over the alleged time period. Goodenough, ¶¶ 16-18. ¶27 The present case is distinguishable from Goodenough. Cobeen telephoned Parks after seeing the advertisement in the Missoulian. Cobeen and Parks spoke generally about the advertisement, and Cobeen requested a reference. A few days later, Cobeen called back and indicated that he wanted to invest. Parks told Cobeen that the money would be used for general business purposes, possibly in Missoula or in the Gulf Coast region. Cobeen mailed the first check to Parks and then, on his own initiative, mailed three more checks. Cobeen did not make any further inquiries about the nature of the investment, and Parks did not provide any additional information. Cobeen assumed with 13 each check he sent that his money would be invested as he and Parks had discussed in their two preliminary conversations. Hence, this is not a case like Goodenough where there were multiple incidents on different days over the alleged time period. True, the State alleged that Parks’ omissions occurred “on or about April 2007 through July 2008.” However, Cobeen’s decision was based on the specifics that Parks had provided in the initial phone conversations. Parks’ omissions occurred during those initial conversations, and they all concerned the same investment. The omissions—failing to tell Cobeen that he was not registered, failing to tell Cobeen that Tower Trust Two’s Business Purpose Notes were not registered, and failing to provide Cobeen a prospectus—thus arose from the “same transaction.”4 Section 46-11-410(1), MCA. ¶28 The next question is whether these offenses were “included” in each other. See § 46-11-410(2)(a), MCA. “Included offense” means an offense that “is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Section 46-1-202(9)(a), MCA. The State argues that Parks could be convicted of all three counts of securities fraud because each count is “factually distinct”: Parks did not tell Cobeen that he was not registered (Count Two); Parks did not tell Cobeen that the securities were not registered (Count Three); and Parks did not provide Cobeen any disclosure information regarding his investments in Tower Trust Two (Count 4 We note, in addition, that the prosecution did not charge Parks with separate violations of § 30-10-201(1), MCA, which makes it unlawful for a person to transact business in this State as a broker-dealer or salesperson unless the person is registered, and § 30-10-202(1), MCA, which makes it unlawful for a person to offer or sell a security in this State unless the security is registered. Such separate charges would make this a different case. However, the prosecution instead charged three omissions of material fact under § 30-10-301(1)(b), MCA. And, for the reasons just discussed, these omissions arose from the “same transaction” under §§ 46-1-202(23) and 46-11-410(1), MCA. 14 Four). The District Court, likewise, reasoned that Parks had violated § 30-10-301(1)(b), MCA, “in three very separate ways.” ¶29 This Court, however, has rejected the notion of analyzing § 46-1-202(9)(a), MCA, based on the facts of the individual case. In State v. Beavers, 1999 MT 260, 296 Mont. 340, 987 P.2d 371, the defendant argued that reckless driving is an included offense of criminal endangerment when criminal endangerment is used to prosecute individuals for a driving offense. The State, on the other hand, argued that since the elements of the two offenses are different, they are not included offenses. We agreed with the State, noting that we have consistently stated that the term “facts,” as used in § 46-1-202(9)(a), MCA, “refers to the statutory elements of the offenses, not the individual facts of the case.” Beavers, ¶¶ 28-30 (emphasis added); accord State v. Matt, 2005 MT 9, ¶¶ 13-14, 325 Mont. 340, 106 P.3d 530; Williams, ¶ 21. ¶30 Here, it is plain that “the statutory elements” of Counts Two, Three, and Four are exactly the same. Indeed, the State alleged exactly the same statutory elements for each of the three counts in the Amended Information: “That at the time and place mentioned above, the Defendant, while offering the sale of a security, directly and/or indirectly made untrue statements of a material fact and/or omitted to state a material fact.” Under Beavers and § 46-1-202(9)(a), MCA, Counts Two, Three, and Four are “included” in each other. ¶31 Based on the foregoing analysis, the State’s assertion in its brief on appeal that “each count had a different element” is incorrect. Each count had the same statutory element: omission of a material fact. Thus, they are included offenses. Further, as 15 discussed, the offenses arose from the same transaction. Accordingly, the District Court should have granted Parks’ motion under § 46-11-410, MCA, vacated his convictions on two of the offenses, and sentenced him on only one of the three counts. ADDITIONAL ISSUES ¶32 Parks raises two other issues on appeal. We note those issues here, but do not consider them on the merits for the reasons stated below. ¶33 First, although couched as a “sufficiency of the evidence” claim, Parks argues that he could not be convicted of the charges because the Business Purpose Notes were not “securities.” As noted, however, Parks conceded in the District Court—tacitly, if not outright—that the Notes were securities. Also, he did not provide any expert testimony to rebut Egan’s opinion that the Notes were securities. As a result, Parks’ argument is not properly before us. See State v. Claassen, 2012 MT 313, ¶ 19, 367 Mont. 478, 291 P.3d 1176; State v. Smith, 2005 MT 18, ¶ 10, 325 Mont. 374, 106 P.3d 553. ¶34 Parks further contends that the definition of “security” is unconstitutionally vague. He asserts that he preserved this claim through a post-trial motion for a new trial, which he filed personally. We note, however, that this motion contains no legal analysis, with citations to supporting authority, on the vagueness issue. Moreover, the District Court struck the motion from the record on the ground that Parks was represented by counsel at the time and, thus, he “should discuss any motions with his counsel.” Alternatively, Parks suggests that we may review his vagueness claim under our plain error doctrine. We decline to do so. On the specific facts of this case, and in light of our recognition in Redding that “security” was intentionally defined broadly in the Securities Act to 16 encompass virtually any instrument that might be sold as an investment (see ¶ 14 n. 2, supra), we are not “firmly convinced” that failing to review Parks’ claim would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial, or compromise the integrity of the judicial process. State v. Norman, 2010 MT 253, ¶¶ 17-18, 358 Mont. 252, 244 P.3d 737; see also State v. Daniels, 2003 MT 247, ¶ 28, 317 Mont. 331, 77 P.3d 224 (we need not present a full analysis whenever a party requests review under the plain error doctrine, as doing so “would defeat the rule requiring an argument to be preserved for appeal and would allow a party to make virtually any argument on appeal”). ¶35 Second, the other issue Parks raises on appeal is that his trial counsel provided constitutionally deficient representation. Parks alleges “numerous ways” in which his counsel was ineffective: failing to argue that the loans were void based on their usury rate; failing to argue that the Business Purpose Notes did not qualify as securities; failing to distinguish Parks’ personal liability from that of Tower Trust Two; failing to challenge the constitutionality of the controlling statutes as void for vagueness; failing to object to the strict liability nature of the offense; failing to object to Egan’s opinion that the Business Purpose Notes qualified as securities; and failing to present an expert witness to rebut Egan’s testimony. The standard for reviewing these claims is whether counsel’s conduct fell below an objective standard of reasonableness measured under prevailing professional norms and in light of the surrounding circumstances. Whitlow v. State, 2008 MT 140, ¶ 20, 343 Mont. 90, 183 P.3d 861. The record presently before us is insufficient for applying this standard to counsel’s challenged conduct. The record does not reveal 17 “why” counsel did or did not perform as alleged. State v. Kougl, 2004 MT 243, ¶ 14, 323 Mont. 6, 97 P.3d 1095; State v. Briscoe, 2012 MT 152, ¶ 10, 365 Mont. 383, 282 P.3d 657. And we are not persuaded by Parks’ assertion that “no plausible justification” exists to justify counsel’s action or inaction. Kougl, ¶¶ 15-17; Briscoe, ¶ 10. Accordingly, we dismiss without prejudice Parks’ ineffective assistance of counsel claim and allow him to raise the claim in a petition for postconviction relief. Norman, ¶ 20. CONCLUSION ¶36 The District Court’s judgment is affirmed as to one of Parks’ convictions of violating § 30-10-301(1)(b), MCA, and is reversed as to his other two convictions of violating this statute. We remand with instructions to vacate two of Parks’ convictions and corresponding sentences. Given this holding, and recognizing that the District Court may have fashioned a different sentence had it correctly sentenced Parks based on only one conviction, we hold that the District Court, after such further proceedings as it deems appropriate and consideration of the relevant facts and circumstances, may resentence Parks on the one conviction. Cf. State v. Petersen, 2011 MT 22, ¶¶ 15-17, 359 Mont. 200, 247 P.3d 731. We deny review of Parks’ unpreserved claims, and we dismiss without prejudice his claims of ineffective assistance of counsel. ¶37 Affirmed in part, reversed in part, and remanded with instructions. /S/ LAURIE McKINNON 18 We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ JIM RICE Justice Patricia O. Cotter concurs. ¶38 I concur in the Court’s Opinion. I write separately to address an additional concern with respect to the propriety of Park’s convictions. ¶39 Prior to trial, the State argued to the District Court that because the statute under which Parks was charged did not contain the internal requirement of a mental state as an element of the crime, it was an “absolute liability” crime, citing § 45-2-104, MCA. This statute provides: A person may be guilty of an offense without having, as to each element of the offense, one of the mental states of knowingly, negligently, or purposely only if the offense is punishable by a fine not exceeding $500 or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described. The State argued to the Court that § 30-10-301, MCA, clearly indicated a legislative intent to impose absolute liability, and therefore, the requisites of § 45-2-104, MCA, were satisfied. I disagree. ¶40 The Legislature knows how to craft a statute so as to make it clear that it intends a statute to impose absolute liability for the conduct described. For example, § 61-8-401(7), MCA, which addresses the offense of driving under the influence of 19 alcohol or drugs, provides: “Absolute liability as provided in 45-2-104 will be imposed for a violation of this section.” The intent to impose absolute liability is expressly stated. By contrast, there is no language in § 30-10-301, MCA, that gives any indication that the offense is intended to be an absolute liability offense. I would therefore conclude that the statute does not clearly indicate a legislative purpose to impose absolute liability for the conduct therein described, as § 45-2-104, MCA, requires. ¶41 I would further conclude that because the State took the position that § 30-10-301, MCA, sets forth an absolute liability offense, it would be compelled under the foregoing analysis to limit its prosecution to an offense that would be punishable by a fine not exceeding $500. Section 45-2-104, MCA. Clearly, the prosecution here greatly exceeded this limitation. ¶42 Because this argument was not presented to the District Court, I would not urge reversal of the defendant’s conviction on this premise. I write only to suggest that future felony prosecutions under § 30-10-301, MCA, could well face a viable challenge on these grounds. ¶43 I therefore concur. /S/ PATRICIA COTTER | September 25, 2013 |
8c628784-b253-4dc3-be60-382ef990493c | Hartsoe v. Tucker | 2013 MT 256 | DA 12-0740 | Montana | Montana Supreme Court | DA 12-0740 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 256 JOHN HARTSOE, Plaintiff and Appellant, v. LOREN TUCKER, Defendant and Appellee. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DV 12-204 Honorable Deborah Kim Christopher, Presiding Judge COUNSEL OF RECORD: For Appellant: John Hartsoe, self-represented, St. Ignatius, Montana For Appellee: Margaret A. Sampsel, Special Assistant Attorney General, Risk Management & Tort Defense Division, Helena, Montana Submitted on Briefs: July 31, 2013 Decided: September 10, 2013 Filed: __________________________________________ Clerk September 10 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Plaintiff John Hartsoe (Hartsoe) appeals the summary dismissal of his claim against Hon. Loren Tucker (Judge Tucker). That claim was dismissed with prejudice by Hon. Deborah Kim Christopher (Judge Christopher) in the Twentieth Judicial District Court, Lake County, on December 31, 2012. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Hartsoe filed this action on August 7, 2012, alleging that Judge Tucker had violated his constitutional rights by denying his request for a bail hearing, by dismissing one of his civil claims, and for declaring a mistrial in a criminal matter in which he was a Defendant. ¶3 Judge Tucker appeared in the case and invoked judicial immunity for his actions in the complaint. Judge Christopher agreed that Judge Tucker was immune, and granted Judge Tucker summary dismissal of the action with prejudice. It is from this dismissal that Hartsoe now appeals. STATEMENT OF THE ISSUES ¶4 Did the District Court correctly dismiss Hartsoe’s claims against Judge Tucker on the grounds that he is entitled to judicial immunity pursuant to § 2-9-112(2), MCA? ¶5 Should sanctions be imposed against Hartsoe pursuant to M. R. App. P. 19(5)? STANDARD OF REVIEW 3 ¶6 This Court reviews de novo a district court’s decision on a motion to dismiss. Hartsoe v. McNeil, 2012 MT 221, ¶ 4, 366 Mont. 335, 286 P.3d 1211 (citing Grizzly Sec. Armored Express, Inc. v. The Armored Grp., LLC, 2011 MT 128, ¶ 11, 360 Mont. 517, 255 P.3d 143). DISCUSSION ¶7 Did the District Court correctly dismiss Hartsoe’s claims against Judge Tucker on the grounds that he is entitled to judicial immunity pursuant to § 2-9-112(2), MCA? ¶8 Montana Constitution, Article II, Section 18 holds that immunity from suit may be established by a two-third vote of the Legislature. Section 2-9-112(2), MCA, provides that a member of the judiciary is immune from suit for damages arising from official judicial actions of the court. We recognize that the Legislature has complied with Article II, Section 18 in the enactment of § 2-9-112(2), MCA. Silvestrone v. Park Co., 2007 MT 261, ¶ 15, 339 Mont. 299, 170 P.3d 950. ¶9 Judges are not entitled to judicial immunity when their act (1) is not normally a function performed by a judge, and (2) the judge acts in the “clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356-62, 98 S. Ct. 1099, 1105-08 (1978). If a judge has subject-matter jurisdiction over the act in question, he is entitled to immunity. Stump, 435 U.S. at 362, 98 S. Ct. at 1108. The immunity statute applies to judicial acts without limitation. Silvestrone, ¶ 14. This is true even if the action taken was in error or in excess of his authority. Mireles v. Waco, 502 U.S. 9, 13, 112 S. Ct. 286, 288-89 (1991). 4 ¶10 First, Hartsoe complains that Judge Tucker refused his bail hearing, dismissed his civil claim, and declared a mistrial in his criminal claim, all of which are clearly within the normal duties performed by a judge. Second, Judge Tucker’s court is vested with original subject-matter jurisdiction in all criminal matters amounting to a felony and all civil matters. Mont. Const. art. VII, § 4; § 3-5-302, MCA. Hartsoe’s claims arise from Judge Tucker’s exercise of jurisdiction in his felony criminal proceeding as well as a civil proceeding against another judge. Therefore, Judge Tucker was acting within his jurisdiction when he made all three orders. Because Judge Tucker’s act was judicial under the meaning of § 2-9-112(2), MCA, he is entitled to immunity regardless of whether his decisions were in error. ¶11 Hartsoe also raises issues of qualified immunity for state employees, and asserts a malicious prosecution claim for the first time on appeal. We decline to examine either of these issues as they are precluded by our finding that Judge Tucker retains judicial immunity. ¶12 Should sanctions be imposed against Hartsoe pursuant to M. R. App. P. 19(5)? ¶13 Judge Tucker requests that we limit Hartsoe’s ability to litigate against current or former judicial officials in Montana. ¶14 Courts have the inherent power to levy sanctions to curb abusive litigation practices. Roadway Express, Inc. v. Piper, 447 U.S. 752, 765, 100 S. Ct. 2455, 2563 (1980); Motta v. Granite County Comm’rs, 2013 MT 172, ¶¶ 16-23, 370 Mont. 469, 304 P.3d 720. Under M. R. App. P. 19(5), we have the authority to award sanctions to a prevailing party in an appeal determined to be filed for the purposes of harassment, or taken without substantial or reasonable grounds. In Motta, we found abuse of the judicial process when a pro se litigant 5 filed 13 separate actions and continually ignored or misconstrued court orders. Motta, ¶ 21. We approved a district court’s order limiting that litigant’s ability to file frivolous and groundless claims. Motta, ¶ 17. ¶15 Mr. Hartsoe is a familiar litigant to the courts of Montana, and in the last three years has filed 24 lawsuits in the state district courts of three counties. Of those, 19 are against various state government employees. These include two other claims against Judge Tucker, four actions against Judge Christopher, the sitting judge in this case, and two actions against Hon. C.B. McNeil, another judge in the Twentieth Judicial District. To date, Hartsoe has not prevailed against a single state district court judge, and has unsuccessfully appealed the judicial immunity of judges in two different cases. See Hartsoe v. Christopher, 2013 MT 57, 369 Mont. 223, 296 P.3d 1186; Hartsoe v. McNeil, 2012 MT 221, 366 Mont. 335, 286 P.3d 1211. ¶16 At this point, Hartsoe is well versed in our application of judicial immunity, yet he continues to file groundless and burdensome litigation against district court judges for their discharge of official duty. These actions amount to an abuse of our court system, and we will impose a sanction tailored to prevent future harassment with frivolous claims. ¶17 First, Hartsoe must obtain prior approval from the District Court in any judicial district where he seeks to file any Complaint, Petition or Motion for Injunctive Relief, or Petition or Motion for Declaratory Relief naming any current or former judicial officer as Defendant. Second, the District Court may prohibit any such filing upon a determination that the claims asserted therein are clearly barred by judicial immunity. 6 ¶18 Finally, we note that if Hartsoe continues to abuse our court system with these limitations in place, we will consider further sanctions. CONCLUSION ¶19 We affirm the District Court’s dismissal of Hartsoe’s claim on judicial immunity grounds. Further, we grant sanctions as set forth above. /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ LAURIE McKINNON /S/ JIM RICE | September 10, 2013 |
53aa1c8b-6417-4a1a-a527-1a43c40e047b | Gold Creek Cellular of Mont. Ltd. P'ship v. Dep't of Revenue | 2013 MT 273 | DA 12-0768 | Montana | Montana Supreme Court | DA 12-0768 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 273 GOLD CREEK CELLULAR OF MONTANA LIMITED PARTNERSHIP d/b/a VERIZON WIRELESS and AT&T MOBILITY, LLC, Plaintiffs and Appellees, v. STATE OF MONTANA, DEPARTMENT OF REVENUE, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DDV 11-154 Honorable James P. Reynolds, Presiding Judge COUNSEL OF RECORD: For Appellant: C. A. Daw, David R. Stewart, Courtney Jenkins, Special Assistant Attorneys General, Montana Department of Revenue, Legal Services Office; Helena, Montana For Appellees: Richard G. Smith; Hawley Troxell Ennis & Hawley, LLP; Boise, Idaho (Counsel for Appellee AT & T Mobility) Terry B. Cosgrove; Murry Warhank; Gough, Shanahan, Johnson & Waterman; Helena, Montana (Counsel for Appellee Verizon) Submitted on Briefs: August 28, 2013 Decided: September 24, 2013 Filed: __________________________________________ Clerk September 24 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Plaintiffs Gold Creek Cellular and AT&T Mobility (Plaintiffs) brought this action for declaratory judgment alleging that the Department of Revenue’s (Department) regulations Admin. R. M. 42.22.101(12), 42.22.101(10), and 44.22.109, were invalid. Judge James Reynolds granted summary judgment to Plaintiffs. The Department of Revenue now appeals from this order. STATEMENT OF ISSUES ¶2 Issue One: Did the District Court correctly conclude that the Department’s regulation defining “goodwill” is invalid because it conflicts with § 15-6-218(2)(b), MCA? ¶3 Issue Two: Did the District Court correctly conclude that the Department’s regulation defining “intangible personal property” is invalid because it conflicts with § 15-6-218(2)(a), MCA? ¶4 Issue Three: Did the District Court correctly conclude that the valuation manuals adopted by the Department are invalid to the extent they support its new rules? FACTUAL AND PROCEDURAL BACKGROUND ¶5 Section 15-6-218, MCA, grants tax exemption to intangible personal property. Intangible personal property is defined as property that is not tangible and (a) has no intrinsic value but is the representative of value, or (b) property that lacks physical existence. Section 15-6-218(2), MCA. The statute includes a non-exhaustive list of common intangible personal property items, including “certificates of stock, bonds, promissory notes, licenses, copyrights, patents, trademarks, contracts, software, and franchises.” Section 15-6- 218(2)(a), MCA. The statute gives only one non-exhaustive example of intangible property 3 that lacks physical existence, “goodwill,” but does not define the term anywhere in Title 15, MCA. ¶6 The Department of Revenue implements this statute with Admin. R. M. 42.22.110. That administrative regulation provides default exemptions that a taxpayer may use when declaring certain intangible items as exempt. If taxpayers disagree with the default exemption, they may provide the Department with information supporting a higher exemption. Admin. R. M. 42.22.110(2). ¶7 In 2010, the Department made substantial changes to its regulations implementing § 15-6-218, MCA. The Department amended its definition of intangible personal property to include a requirement that the property “be separable from the other assets in the unit and capable of being held under separate title or ownership.” Admin. R. M. 42.22.101(12). The regulation further required that the property be able to be bought and sold separate from the operating assets, that it be capable of earning income as a standalone entity, and also defined “intangible value” as separate from intangible property and non-exempt. Admin. R. M. 42.22.101(12). Finally, the Department defined “goodwill” as goodwill that can be calculated through the purchase price accounting method. Admin. R. M. 42.22.101(10). While the Department has used the purchase price accounting process for goodwill since 1999, this change in the definition of goodwill prohibits any other method for valuing this specific intangible. The Department also adopted tax assessment methods from the Western States Association of Tax Administrators Handbook (WSATA) and the National Conference 4 of Unit Value States (NCUVS) in conjunction with the regulations on goodwill and intangibles. ¶8 The District Court considered cross-motions for summary judgment concerning the validity of the Department’s new regulations. The District Court granted Plaintiffs’ motion upon concluding that the new definitions of intangibles and goodwill imposed additional and contradictory requirements on state law, and that the WSATA and NCUVS handbooks were invalid as applied to the new regulations. The Department now appeals from this order. STANDARD OF REVIEW ¶9 Whether an administrative regulation impermissibly conflicts with a statute is a question of law to be decided by the court. Thompson v. J.C. Billion, Inc., 2013 MT 20, ¶ 11, 368 Mont. 299, 294 P.3d 397. We review a district court’s conclusions of law to determine if they are correct. Talon Plumbing & Heating v. Dept. of Lab. & Indus., 2008 MT 376, ¶ 19, 346 Mont. 499, 198 P.3d 213. DISCUSSION ¶10 The Department of Revenue argues that its interpretations of “intangible personal property” and “goodwill” are compatible with the statute, and at any rate, are entitled to administrative deference pursuant to Chevron v. Nat. Resources Def. Council, 467 U.S. 837, 104 S. Ct. 2778 (1984). Plaintiffs argue that Chevron deference applies only to a state or federal agency’s implementation of federal law, or of state law companions to federal law. ¶11 When examining regulations from a state agency implementing purely state law, we have applied the standard of deference set forth in the Montana Administrative Procedures 5 Act (MAPA), § 2-4-305, MCA. See Musselshell Co. v. Yellowstone Co., 2012 MT 292, 367 Mont. 350, 291 P.3d 579 (DOR implementing state tax on coal gross proceeds); City of Great Falls v. Mont. Dep’t of Pub. Serv. Reg., 2011 MT 144, 361 Mont. 69, 254 P.3d 595 (Public Service Commission implementing state Deregulation Act); Fallon Co. v. State, 2009 MT 454, 354 Mont. 347, 223 P.3d 886 (DOR implementing state tax). In contrast, we have only relied on Chevron deference when a federal or state agency interprets federal law or a state law companion to federal law. See Thompson, (State Department of Labor implementing federal Fair Labor Standards Act and Montana Wage Protection Act); BNSF Ry. Co. v. Feit, 2012 MT 147, ¶ 8, 365 Mont. 359, 281 P.3d 225 (“The Montana Legislature has indicated clear intent that the MHRA be interpreted consistently with federal discrimination statutes and case law.”). Finally, our Legislature passed MAPA with the clear purpose to preserve legislative intent and to curb “the undisciplined growth of administrative powers. . . .” Mont. Sen. Admin. P. Subcomm. Rpt. No. 33, 7, 42d Legis., Reg. Sess. (December, 1970) (quoting the Revised Model State Administrative Procedure Act). ¶12 The issues on appeal concern a state agency’s implementation of purely state law, a law that has no federal counterpart. Thus, the District Court correctly declined to apply Chevron’s standard for administrative deference in this case, and examined this case under Montana’s deference standard. Administrative rules are invalid when they “(1) engraft additional and contradictory requirements on the statute; or (2) if they engraft additional, noncontradictory requirements on the statute which were not envisioned by the legislature.” Bell v. Dep’t of Licensing, 182 Mont. 21, 23, 594 P.2d 331, 333 (1979) (citations and 6 quotations omitted); Safeway, Inc. v. Montana Petroleum Release Compensation Bd., 281 Mont. 189, 194, 931 P.2d 1327, 1330 (1997). Regulations that are consistent with the statute must also be reasonably necessary to effectuate the statute’s purpose. Section 2-4-305(6)(b), MCA; Michels v. Dep’t of Social and Rehabilitation Servs., 187 Mont. 173, 177-78, 609 P.2d 271, 273 (1980). ¶13 When a department’s regulation restricts a broad statutory exemption, that regulation is in direct conflict with the statute. Thompson, ¶¶ 19-23. In Bell, the statute required that a barber college operator have 10 years’ experience and be able to withstand character investigation by the Board of Barbers. Bell, 182 Mont. at 23, 594 P.2d at 333. When the Department of Licensing required these same operators to pass an examination, we found that this additional requirement was not contemplated by the Legislature, and was therefore invalid. Bell, 182 Mont. at 23, 594 P.2d at 333. In Michels, a regulation required indigent persons to provide notice within five days of medical care in order for the State to cover the costs of such care. Michels, 187 Mont. at 173, 609 P.2d at 271. The statute in that case provided broad medical coverage for indigent persons, so we invalidated the five day limit, holding that such regulations were not reasonable to effectuate the purpose of the statute. Michels, 187 Mont. at 178, 609 P.2d at 273 (“[I]n what way is this ideal [providing medical care to indigent persons] furthered by distinguishing between those who apply for the benefits within five days of receiving medical services and those who apply after five days?”). 7 ¶14 Did the District Court correctly conclude that the Department’s regulation defining “goodwill” is invalid because it conflicts with § 15-6-218(2)(b), MCA? ¶15 Section 15-6-218(2)(b), MCA, broadly exempts goodwill as a subclass of intangible personal property. The Department’s regulation defines goodwill as “booked goodwill” that can only be valued with the purchase price accounting method. Admin. R. M. 42.22.101(10). We read § 15-6-218(2), MCA, as a broad statutory tax exemption for all valuable goodwill. ¶16 The requirement for purchase price accounting of goodwill imposes a restriction on a broad statutory exemption, and thus constitutes an additional requirement. While the Department’s method of valuation is the most common way to measure goodwill, it is not the only acceptable method. Baldwin v. Stuber, 187 Mont. 430, 433, 610 P.2d 160, 162 (1980). Because of the difficulty in valuing this particular intangible, we have held that “each goodwill case must be determined on its own facts and circumstances, and the determination of the value of goodwill is a question for the trier of fact. . . .” Baldwin, 187 Mont. at 432, 610 P.2d at 161. But the Department’s regulation allows for no such leeway, and restricts goodwill to calculation by only one method. This restriction constitutes an additional requirement analogous to the barber’s test in Bell or the five day rule in Michels. ¶17 The Department argues that it must specify the type of information that taxpayers provide to demonstrate the value of intangibles. But this does not grant the Department authority to entirely exclude alternative methods of valuation. Plaintiffs are entitled to have their goodwill valued in a method of their choosing, and the Department is free to dispute 8 that valuation by relying on its preferred accounting method. However, the actual value of goodwill is left to the trier of fact, not the rulemaking processes of the Department. ¶18 Finally, the Department contends that its additional standard is reasonable to effectuate the purpose of the statute because the purchase price accounting method provides certainty and consistency in the valuation of goodwill. But the goodwill exemption’s statutory purpose is to give a broad exemption to all intangible personal property, including valuable goodwill. As in Michels, we question whether mandating a specific accounting method and prohibiting taxpayers from using alternative methods in any way furthers the Legislature’s purpose of granting broad exemption to goodwill. We conclude it does not. The regulation restricts a taxpayer’s ability to consult other methods for valuation, and could hinder a fair and accurate determination of value. This was not the original purpose of the exemption as contemplated by the Legislature. ¶19 We do not rule that the Department must use all available methods to value goodwill. We simply hold that the Department may not define goodwill in a way that precludes a taxpayer from proposing alternative methodology or information relating to valuable goodwill. ¶20 Did the District Court correctly conclude that the Department’s regulation defining “intangible personal property” is invalid because it conflicts with § 15-6-218(2)(a), MCA? ¶21 Section 15-6-218, MCA, imposes two requirements on intangible personal property: That it have no intrinsic value but is the representative of value, or that it lack physical existence. The statute also contains a non-exhaustive list of property that is considered 9 intangible personal property. The Department’s regulation requires that intangible personal property satisfy all of the following: (1) Be separable from the other assets in the unit; (2) be able to be bought and sold without impairing value of assets; (3) must create earnings that exceed their contributory value to the unit, and; (4) must not have “intangible value,” which is the value of an entity to make excess revenues over the normal rate of return. Admin. R. M. 42.22.101(12). ¶22 The Department’s definitions impose requirements that directly contradict the statute’s non-exhaustive list of intangible personal property. Plaintiffs’ FCC licenses may be exempted by the statute, but under the Department’s rules are only exempt if they can be bought and sold without destroying the unit value of assets. Other intangible personal property, like trade names or an assembled workforce, also fit the statutory definition, but do not fit the Department’s rules because they are either inseparable from the business’ asset, or their separation will impair the business asset. The Department’s distinction between intangible property and intangible value appears to sweep up goodwill, as goodwill is often defined by its ability to make excess revenues over the normal rate of return. See In re Marriage of Hull, 219 Mont. 480, 487-88, 712 P.2d 1317, 1322-23 (1985). ¶23 The Department contends that, although its regulations read alone would contradict the statutory list, it would never interpret its regulations to tax any of the items on the list. Further, the Department states that it did not incorporate the list because it is bound against repeating statutory language in its regulations under § 2-4-305(2),MCA. This position suffers from two flaws of reasoning. First, and crucial to this issue, the Department’s 10 argument misunderstands the nature of a non-exhaustive list. The list itself illustrates applicable examples of the Legislature’s chosen definition; it does not merely designate those few items that must be exempted by the Department. State v. Good, 2004 MT 296, ¶ 17, 323 Mont. 378, 100 P.3d 644; Federal Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 100, 61 S. Ct. 1, 4 (1941) (“[T]he term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.”). Accordingly, any rule defining intangible personal property must be consistent with the principle that the list represents. The Department cannot save its regulations by declining to enforce them against items on the statutory list; the fact that it must decline enforcement proves non-conformity with the statute’s definitions. ¶24 Second, the prohibition on repeating statutory language limits “unnecessarily” repeating the statutory language. Section 2-4-305(2), MCA. Here, even the Department’s own administrators misunderstand how the new regulations interact with the statutory list. (“Q: So, applying this definition to an FCC license, an FCC license would not be exempt if you apply this? A: Yeah, the FCC license would be exempt because it meets the list.” “Q: [I]s it your understanding that goodwill would satisfy that part of the intangible personal property definition? A: I don’t believe you can hold goodwill separate, no.”). In this instance, repetition of the statute is needed to ensure consistent and clear application of the statute and regulation. However, even if the Department repeated the statutory list in its regulations, it is still prohibited from formulating rules contradictory to that list, or the law illustrated by the list. 11 ¶25 The District Court correctly determined that the Department’s definition of intangible personal property contradicted state law, and was invalid under MAPA. ¶26 Did the District Court correctly conclude that the valuation manuals adopted by the Department are invalid to the extent they support its new rules? ¶27 Both parties agree that the NCUVS and WSATA handbooks are only challenged to the extent that they are used to enforce the Department’s new definitions of intangible personal property and goodwill. Because we find those definitions invalid, these handbooks are also invalid to the extent that they conflict with state law. CONCLUSION ¶28 The judgment of the District Court is affirmed. /S/ MICHAEL E WHEAT We concur: /S/ JIM RICE /S/ LAURIE McKINNON /S/ PATRICIA COTTER | September 24, 2013 |
3bab1cf6-cbad-4452-94e2-67e19d4fe344 | Estate of Gopher | 2013 MT 264 | DA 12-0719 | Montana | Montana Supreme Court | DA 12-0719 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 264 IN RE THE ESTATE OF: DOROTHY McGILLIS GOPHER, Deceased. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADP-10-0127 Honorable Thomas M. McKittrick, Presiding Judge COUNSEL OF RECORD: For Appellants: Melinda Gopher (Self-Represented); Blair Gopher (Self-Represented); Missoula, Montana Glenn Robert Gopher (Self-Represented); Miranda Gopher (Self-Represented); Mary Gopher-Parenteau (Self-Represented); Great Falls, Montana For Appellee: Neal P. DuBois; Sutton & DuBois, PLLC; Great Falls, Montana Submitted on Briefs: August 7, 2013 Decided: September 17, 2013 Filed: __________________________________________ Clerk September 17 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Melinda Gopher, Blair Gopher, Glenn R. Gopher, Miranda Gopher, and Mary Gopher-Parenteau (hereinafter “the siblings”) appeal the order of the Eighth Judicial District Court, Cascade County, appointing five co-trustees to a charitable trust with a ceremonial tribal flag as the trust property. The siblings challenge the District Court’s assumption of jurisdiction over the probate of the estate of their mother, Dorothy McGillis Gopher (the Estate), an enrolled member of the Blackfeet Tribe who lived in Cascade County and whose estate property, the flag, was located in Cascade County. The siblings assert that this estate matter belongs in the Blackfeet Tribal Court. Appellee Mike Gopher, brother of the siblings, asserts jurisdiction in the District Court is proper. We affirm. ISSUE ¶2 A restatement of the dispositive issue on appeal is: ¶3 Did the District Court err when it assumed subject matter jurisdiction over the Estate of Dorothy Gopher? FACTUAL AND PROCEDURAL BACKGROUND ¶4 Dorothy McGillis Gopher died intestate on October 2, 2008. Dorothy was an enrolled member of the Blackfeet Tribe, and at the time of her death, she was domiciled in Cascade County, Montana. Dorothy was survived by seven children: Glenn, Thane (since deceased), Mike, Blair, Miranda, Melinda, and Mary. Dorothy’s estate consisted of one asset, a thirteen-star flag known as the “Ojibwe Peace Flag.” The flag has been 3 held by successive individuals since an unknown date, beginning with an Indian individual named Ah-On-Te-Ways. Eventually, in 1946, Mary Chippewa Gopher received possession of the flag. Following Mary’s death in 1965, her son Robert Gopher possessed the flag. When Robert died in 1998, his wife Dorothy took possession of the flag. Robert’s will specified that Dorothy was to pass on the flag to one of their sons when he became of age, but Dorothy did not do so. Thus, when Dorothy passed away, the Estate obtained possession of the flag. ¶5 Mike Gopher filed an application for informal probate in the District Court on July 22, 2010. For the next two years, the District Court dealt with the family dispute that accompanied the Estate administration. On August 5, 2012, several of the Gopher siblings filed a petition before the Blackfeet Tribal Court to name Blair Gopher and Melinda Gopher as personal representatives in their parents’ estates. Glenn Gopher and Melinda Gopher then filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction in District Court on August 15, 2012, and filed the same motion again on August 24, 2012. On October 30, 2012, the Blackfeet Tribal Court issued an order asserting exclusive jurisdiction over the Estate. Meanwhile, proceedings in the District Court continued, and on November 1, 2012, the District Court denied the motions to dismiss. ¶6 On November 2, 2012, the District Court issued its Findings of Fact, Conclusions of Law, and Order. The District Court found that Ah-On-Te-Ways had been the trustor and first trustee of a charitable trust with the flag as trust property and that all subsequent possessors of the flag had been successor trustees. The District Court found that the Estate would be unjustly enriched if it retained possession of the flag since the flag is for 4 the benefit of the entire Ah-On-Te-Ways Band, not solely Dorothy’s heirs. To facilitate the transfer of the flag to a successor trustee, the District Court imposed a constructive trust on the Estate, appointed five co-trustees, and ordered the Estate to transfer the flag to the co-trustees. The District Court concluded as a matter of law that it had jurisdiction over the parties and subject matter and that venue was proper as Dorothy died while domiciled in Cascade County. ¶7 The siblings filed the appeal in this case on November 30, 2012. On February 26, 2013, the Blackfeet Tribal Court issued an order stating that “this matter has evolved into a dispute over personal property” and the tribal court “does not assert subject matter jurisdiction over the thirteen star flag at this time as the dispute has never been within this court’s jurisdiction.” ¶8 The siblings argue that Dorothy Gopher was the owner of trust property within the exterior boundaries of the Blackfeet Indian Reservation, the flag was part of the residual property owned by Dorothy, and the Blackfeet Tribe has exclusive jurisdiction over probate proceedings involving tribal members, whether or not they lived on the reservation, under the Blackfeet Law and Order Code. Furthermore, they argue the District Court’s assumption of jurisdiction unlawfully infringed on the Blackfeet Tribe’s right of tribal self-government and violated the American Indian Religious Freedom Act. Though they note that the Blackfeet Law and Order Code does allow a tribal court to relinquish its jurisdiction to a state court, they argue the Blackfeet Tribal Court asserted exclusive jurisdiction over the Estate. They ask that we reverse the District Court’s order and allow the matter to conclude pursuant to Blackfeet Tribal jurisdiction. 5 ¶9 Mike Gopher urges us to affirm the District Court. Mike argues that his siblings filed the probate action in Blackfeet Tribal Court in an attempt to “subvert” the District Court proceedings. Mike points to the February 26, 2013 Blackfeet Tribal Court order refusing to assert subject matter jurisdiction, and argues that the siblings failed to file a proper brief addressing this order even though this Court issued an Order in March granting them time to do so. Mike further argues that the flag has no ties to the Blackfeet nation and that there is no evidence of its religious significance. STANDARD OF REVIEW ¶10 We review de novo a district court’s ruling on a motion to dismiss for lack of subject matter jurisdiction. In Re Est. of Big Spring, 2011 MT 109, ¶ 20, 360 Mont. 370, 255 P.3d 121. DISCUSSION ¶11 Did the District Court err when it assumed subject matter jurisdiction over the Estate of Dorothy Gopher? ¶12 As a preliminary matter, motions to dismiss for lack of subject matter jurisdiction may be raised at any time by any party, and a court must dismiss an action if it determines that it lacks subject matter jurisdiction. M. R. Civ. P. 12(h)(3). A state court’s exercise of jurisdiction is improper if it is preempted by federal law or if it infringes on tribal self-government. Big Spring, ¶ 46. ¶13 At issue is whether the District Court’s assumption of subject matter jurisdiction infringed on tribal self-government. To resolve the issue, we look to the Blackfeet Tribal Court’s February 26, 2013 order. Judicial notice of laws may be taken at any stage of the 6 proceedings. M. R. Evid. 202(f)(1). Our Rules of Evidence include a non-exhaustive list of the kinds of law appropriate for judicial notice and provide that a court may take judicial notice of “[r]ecords of any court of this state or of any court of record of the United States or any court of record of any state of the United States.” M. R. Evid. 202(b)(6). A tribal court order, though not expressly listed in the rule, is a record analogous to those listed in M. R. Evid. 202(b)(6), and is thus law of which we may take judicial notice. We note that the order was not filed until after the siblings had filed their opening brief. However, as the siblings do not take issue with the genuineness of the order, we take judicial notice of the tribal court order. ¶14 In its order, the Blackfeet Tribal Court unequivocally declined to assert subject matter jurisdiction with respect to the flag, the subject of this appeal. The Blackfeet Tribal Court noted that the “flag is located in Cascade County and has never been on the Blackfeet reservation” and Dorothy was domiciled in Cascade County at the time of her death. The Blackfeet Tribal Court stated it “will not accept any further filings from the Gopher family in regards to the thirteen star flag until they have prevailed in their litigation in the State Court.” No evidence supports the siblings’ argument that the Blackfeet Tribal Court’s decision was made “prematurely or through error.” Because the Blackfeet Tribal Court has expressly declined to assert jurisdiction over the Estate property, it is clear that the District Court did not unlawfully infringe on the Blackfeet Tribe’s right of tribal self-government. Moreover, because Dorothy resided in Cascade County at the time of her death and the corpus of the Estate is located in Cascade County, 7 venue was proper, and the District Court did not err when it assumed jurisdiction over the probate of the Estate. Sections 72-1-202(1)(a), 72-3-111(1), -112(1)(a)-(b), MCA. CONCLUSION ¶15 For the foregoing reasons, we affirm the District Court’s decision. /S/ PATRICIA COTTER We Concur: /S/ BETH BAKER /S/ LAURIE McKINNON /S/ BRIAN MORRIS /S/ JIM RICE | September 17, 2013 |
cb1e9f20-350f-49af-826a-7339c1cfb50e | In re Estate of Gopher | 2013 MT 264 | DA 12-0719 | Montana | Montana Supreme Court | DA 12-0719 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 264 IN RE THE ESTATE OF: DOROTHY McGILLIS GOPHER, Deceased. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADP-10-0127 Honorable Thomas M. McKittrick, Presiding Judge COUNSEL OF RECORD: For Appellants: Melinda Gopher (Self-Represented); Blair Gopher (Self-Represented); Missoula, Montana Glenn Robert Gopher (Self-Represented); Miranda Gopher (Self-Represented); Mary Gopher-Parenteau (Self-Represented); Great Falls, Montana For Appellee: Neal P. DuBois; Sutton & DuBois, PLLC; Great Falls, Montana Submitted on Briefs: August 7, 2013 Decided: September 17, 2013 Filed: __________________________________________ Clerk September 17 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Melinda Gopher, Blair Gopher, Glenn R. Gopher, Miranda Gopher, and Mary Gopher-Parenteau (hereinafter “the siblings”) appeal the order of the Eighth Judicial District Court, Cascade County, appointing five co-trustees to a charitable trust with a ceremonial tribal flag as the trust property. The siblings challenge the District Court’s assumption of jurisdiction over the probate of the estate of their mother, Dorothy McGillis Gopher (the Estate), an enrolled member of the Blackfeet Tribe who lived in Cascade County and whose estate property, the flag, was located in Cascade County. The siblings assert that this estate matter belongs in the Blackfeet Tribal Court. Appellee Mike Gopher, brother of the siblings, asserts jurisdiction in the District Court is proper. We affirm. ISSUE ¶2 A restatement of the dispositive issue on appeal is: ¶3 Did the District Court err when it assumed subject matter jurisdiction over the Estate of Dorothy Gopher? FACTUAL AND PROCEDURAL BACKGROUND ¶4 Dorothy McGillis Gopher died intestate on October 2, 2008. Dorothy was an enrolled member of the Blackfeet Tribe, and at the time of her death, she was domiciled in Cascade County, Montana. Dorothy was survived by seven children: Glenn, Thane (since deceased), Mike, Blair, Miranda, Melinda, and Mary. Dorothy’s estate consisted of one asset, a thirteen-star flag known as the “Ojibwe Peace Flag.” The flag has been 3 held by successive individuals since an unknown date, beginning with an Indian individual named Ah-On-Te-Ways. Eventually, in 1946, Mary Chippewa Gopher received possession of the flag. Following Mary’s death in 1965, her son Robert Gopher possessed the flag. When Robert died in 1998, his wife Dorothy took possession of the flag. Robert’s will specified that Dorothy was to pass on the flag to one of their sons when he became of age, but Dorothy did not do so. Thus, when Dorothy passed away, the Estate obtained possession of the flag. ¶5 Mike Gopher filed an application for informal probate in the District Court on July 22, 2010. For the next two years, the District Court dealt with the family dispute that accompanied the Estate administration. On August 5, 2012, several of the Gopher siblings filed a petition before the Blackfeet Tribal Court to name Blair Gopher and Melinda Gopher as personal representatives in their parents’ estates. Glenn Gopher and Melinda Gopher then filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction in District Court on August 15, 2012, and filed the same motion again on August 24, 2012. On October 30, 2012, the Blackfeet Tribal Court issued an order asserting exclusive jurisdiction over the Estate. Meanwhile, proceedings in the District Court continued, and on November 1, 2012, the District Court denied the motions to dismiss. ¶6 On November 2, 2012, the District Court issued its Findings of Fact, Conclusions of Law, and Order. The District Court found that Ah-On-Te-Ways had been the trustor and first trustee of a charitable trust with the flag as trust property and that all subsequent possessors of the flag had been successor trustees. The District Court found that the Estate would be unjustly enriched if it retained possession of the flag since the flag is for 4 the benefit of the entire Ah-On-Te-Ways Band, not solely Dorothy’s heirs. To facilitate the transfer of the flag to a successor trustee, the District Court imposed a constructive trust on the Estate, appointed five co-trustees, and ordered the Estate to transfer the flag to the co-trustees. The District Court concluded as a matter of law that it had jurisdiction over the parties and subject matter and that venue was proper as Dorothy died while domiciled in Cascade County. ¶7 The siblings filed the appeal in this case on November 30, 2012. On February 26, 2013, the Blackfeet Tribal Court issued an order stating that “this matter has evolved into a dispute over personal property” and the tribal court “does not assert subject matter jurisdiction over the thirteen star flag at this time as the dispute has never been within this court’s jurisdiction.” ¶8 The siblings argue that Dorothy Gopher was the owner of trust property within the exterior boundaries of the Blackfeet Indian Reservation, the flag was part of the residual property owned by Dorothy, and the Blackfeet Tribe has exclusive jurisdiction over probate proceedings involving tribal members, whether or not they lived on the reservation, under the Blackfeet Law and Order Code. Furthermore, they argue the District Court’s assumption of jurisdiction unlawfully infringed on the Blackfeet Tribe’s right of tribal self-government and violated the American Indian Religious Freedom Act. Though they note that the Blackfeet Law and Order Code does allow a tribal court to relinquish its jurisdiction to a state court, they argue the Blackfeet Tribal Court asserted exclusive jurisdiction over the Estate. They ask that we reverse the District Court’s order and allow the matter to conclude pursuant to Blackfeet Tribal jurisdiction. 5 ¶9 Mike Gopher urges us to affirm the District Court. Mike argues that his siblings filed the probate action in Blackfeet Tribal Court in an attempt to “subvert” the District Court proceedings. Mike points to the February 26, 2013 Blackfeet Tribal Court order refusing to assert subject matter jurisdiction, and argues that the siblings failed to file a proper brief addressing this order even though this Court issued an Order in March granting them time to do so. Mike further argues that the flag has no ties to the Blackfeet nation and that there is no evidence of its religious significance. STANDARD OF REVIEW ¶10 We review de novo a district court’s ruling on a motion to dismiss for lack of subject matter jurisdiction. In Re Est. of Big Spring, 2011 MT 109, ¶ 20, 360 Mont. 370, 255 P.3d 121. DISCUSSION ¶11 Did the District Court err when it assumed subject matter jurisdiction over the Estate of Dorothy Gopher? ¶12 As a preliminary matter, motions to dismiss for lack of subject matter jurisdiction may be raised at any time by any party, and a court must dismiss an action if it determines that it lacks subject matter jurisdiction. M. R. Civ. P. 12(h)(3). A state court’s exercise of jurisdiction is improper if it is preempted by federal law or if it infringes on tribal self-government. Big Spring, ¶ 46. ¶13 At issue is whether the District Court’s assumption of subject matter jurisdiction infringed on tribal self-government. To resolve the issue, we look to the Blackfeet Tribal Court’s February 26, 2013 order. Judicial notice of laws may be taken at any stage of the 6 proceedings. Section 26-10-202(f)(1), MCA. Our Rules of Evidence include a non-exhaustive list of the kinds of law appropriate for judicial notice and provide that a court may take judicial notice of “[r]ecords of any court of this state or of any court of record of the United States or any court of record of any state of the United States.” Section 26-10-202(b)(6), MCA. A tribal court order, though not expressly listed in the rule, is a record analogous to those listed in § 26-10-202(b)(6), MCA, and is thus law of which we may take judicial notice. We note that the order was not filed until after the siblings had filed their opening brief. However, as the siblings do not take issue with the genuineness of the order, we take judicial notice of the tribal court order. ¶14 In its order, the Blackfeet Tribal Court unequivocally declined to assert subject matter jurisdiction with respect to the flag, the subject of this appeal. The Blackfeet Tribal Court noted that the “flag is located in Cascade County and has never been on the Blackfeet reservation” and Dorothy was domiciled in Cascade County at the time of her death. The Blackfeet Tribal Court stated it “will not accept any further filings from the Gopher family in regards to the thirteen star flag until they have prevailed in their litigation in the State Court.” No evidence supports the siblings’ argument that the Blackfeet Tribal Court’s decision was made “prematurely or through error.” Because the Blackfeet Tribal Court has expressly declined to assert jurisdiction over the Estate property, it is clear that the District Court did not unlawfully infringe on the Blackfeet Tribe’s right of tribal self-government. Moreover, because Dorothy resided in Cascade County at the time of her death and the corpus of the Estate is located in Cascade County, 7 venue was proper, and the District Court did not err when it assumed jurisdiction over the probate of the Estate. Sections 72-1-202(1)(a), 72-3-111(1), -112(1)(a)-(b), MCA. CONCLUSION ¶15 For the foregoing reasons, we affirm the District Court’s decision. /S/ PATRICIA COTTER We Concur: /S/ BETH BAKER /S/ LAURIE McKINNON /S/ BRIAN MORRIS /S/ JIM RICE | September 17, 2013 |
9eee9bd0-d52e-41d7-883a-29a5ffbaf3f2 | Matter of A.A. | 2013 MT 286N | DA 13-0284 | Montana | Montana Supreme Court | DA 13-0284 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 286N IN THE MATTER OF: A.A., A Youth in Need of Care. APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte/Silver Bow, Cause No. DN 12-07 Honorable Brad Newman, Presiding Judge COUNSEL OF RECORD: For Appellant: Carolynn M. Fagan, Fagan Law Office, P.C., Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant Attorney General, Helena, Montana Mark Vucurovich, Henningsen, Vucurovich & Richardson, P.C., Butte, Montana Submitted on Briefs: September 18, 2013 Decided: October 1, 2013 Filed: __________________________________________ Clerk October 1 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Birth mother M.A. appeals from an order of the Second Judicial District Court, Silver Bow County, terminating her parental rights to her child, A.A. We affirm. ¶3 The following issues are raised on appeal: ¶4 Whether the District Court abused its discretion in terminating M.A.’s parental rights. ¶5 Whether M.A. received effective assistance of counsel. ¶6 M.A. is the birth mother of A.A., born in 2012. A.A. was removed from M.A.’s care at the hospital four days after birth. M.A. appeared delusional at times and was observed to have difficulty holding and bonding with the infant. A.A. tested positive for marijuana at delivery, and M.A. admitted to using marijuana during her pregnancy. A.A. had a slight heart murmur and uncoordinated suckling at the time she was discharged from the hospital. ¶7 M.A. was previously involved with the Montana Department of Public Health and Human Services from 2008 to 2009, when another child was removed from her care due to neglect. M.A. failed to comply with four treatment plans in that case, and the child was ultimately placed with his birth father. ¶8 In a hearing on April 11, 2012, M.A. stipulated that A.A. was a youth in need of care, and temporary legal custody was granted to the Department. Treatment plans were approved 3 for M.A. on May 15, 2012, and August 7, 2012. M.A. did not comply with the treatment plans. She failed two parenting classes and was not consistent in attending therapy, maintaining contact with the Department, or submitting to drug testing. The Department filed a petition to terminate M.A.’s parental rights on February 1, 2013. ¶9 At a hearing on February 20, 2013, the District Court heard extensive evidence about M.A.’s mental health and ability to care for A.A. Dr. Susan Day performed a psychological evaluation and found that M.A. had a long history of mental illness. She described M.A.’s condition as chronic and unlikely to get better. Jolyne Tescher, a child protection specialist, testified that M.A. had trouble focusing on simple tasks like changing and feeding A.A. Kim Polich, who supervised M.A.’s visitation, testified that her ability to understand the baby’s cues had not improved after nearly a year of intervention. Mary Watson, a counselor assigned by the Department, testified that M.A. had potential to improve with time, and recommended continued supervised visitation and therapy. Sherry Bersanti, M.A.’s personal therapist, testified that M.A. had made progress, but admitted to having concerns about her objectivity in the case. The District Court found that M.A. “has chronic mental health issues that significantly affect her ability to parent,” and that her condition was unlikely to change within a reasonable time. The District Court terminated M.A.’s parental rights on March 29, 2013. ¶10 A district court’s decision to terminate parental rights is reviewed for abuse of discretion. In re D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691. Findings of fact are reviewed for clear error and conclusions of law for correctness. In re A.D.B., 2013 MT 167, ¶ 27, 370 Mont. 422, 305 P.3d 739. 4 ¶11 A court may order termination of parental rights upon a finding of clear and convincing evidence that the child is an adjudicated youth in need of care, an appropriate treatment plan has not been complied with or not been successful, and the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time. Section 41-3-609(1)(f), MCA. In determining whether the conduct or condition of the parent is unlikely to change, the court considers any mental illness or deficiency that would render the parent unable to provide for the child’s physical, mental, and emotional needs within a reasonable time. Section 41-3-609(2)(a), MCA. The court must give primary consideration to the needs of the child. Section 41-3-609(3), MCA. ¶12 M.A. argues that the District Court abused its discretion by disregarding the testimony of Watson and Bersanti. In fact, the District Court specifically considered the testimony. The District Court acknowledged that Watson and Bersanti had observed some improvement, but not enough to enable M.A. to safely parent A.A. The District Court relied on Watson’s testimony that M.A. would require several months of further intervention. The District Court fairly considered all of the testimony and did not abuse its discretion. ¶13 M.A. next argues that she received ineffective assistance of counsel. A parent has the right to effective assistance of counsel in adjudication and termination proceedings. In re J.J.L., 2010 MT 4, ¶ 17, 355 Mont. 23, 223 P.3d 921. The effectiveness of counsel is evaluated according to training, experience, and quality of advocacy. In re A.S., 2004 MT 62, ¶ 26, 320 Mont. 268, 87 P.3d 408. M.A. argues that her first attorney should not have stipulated to the adjudication of A.A. as a youth in need of care. M.A. admits, however, that she did not object to the Department’s involvement at that time. She also argues that her 5 second attorney was inexperienced and failed to raise proper objections. That attorney was accompanied by co-counsel, and the record fails to show that his performance was deficient. We find that M.A. has not demonstrated ineffective assistance of counsel. ¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The District Court’s findings of fact are supported by substantial evidence and the legal issues are controlled by settled Montana law, which the District Court correctly interpreted. It is manifest on the face of the briefs and the record that there was no abuse of discretion. ¶15 Affirmed. /S/ MIKE McGRATH We concur: /S/ PATRICIA COTTER /S/ BETH BAKER /S/ LAURIE McKINNON /S/ BRIAN MORRIS | October 1, 2013 |
eec80791-dde3-4f10-b4e1-167b204d26c8 | Marriage of Bossler | 2013 MT 261N | DA 13-0148 | Montana | Montana Supreme Court | DA 13-0148 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 261N IN RE THE MARRIAGE OF LOUIS WILLIAM BOSSLER, Petitioner and Appellant, v. BRENDA JOY BOSSLER, Respondent and Appellee. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDR-2011-382 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellant: KD Feeback; Gough, Shanahan, Johnson & Waterman, PLLP; Helena, Montana For Appellee: Joan Hunter; Hunter Law Office; Helena, Montana Submitted on Briefs: August 21, 2013 Decided: September 10, 2013 Filed: __________________________________________ Clerk September 10 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Louis William Bossler (Bill) appeals the decree of dissolution of the First Judicial District, Lewis and Clark County, awarding Brenda Joy Bossler (Brenda) maintenance of $750 per month for eighteen months, beginning one month after the sale of the marital home. We affirm the District Court. ¶3 Bill and Brenda were married on September 7, 1988, in Helena, Montana. They separated in March 2010, and Bill filed a petition for dissolution on June 27, 2011. Bill and Brenda have no minor children. Bill is employed by Burlington Northern and earns approximately $76,500 per year. At the time of the dissolution hearing, Brenda was self-employed, and her income was significantly less than Bill’s. Brenda sought maintenance in the sum of $1,500 per month for a period of three years. ¶4 On October 12, 2012, the District Court entered its Findings of Fact, Conclusions of Law, and Decree of Dissolution. The District Court found that Brenda was employable, had no physical disability, and had experience in the food service industry. However, the District Court also noted that Brenda was unsuccessful in her attempts to secure other employment, testified she could not support herself with her existing employment, and had enjoyed a relatively high standard of living while married to Bill. 3 The District Court determined Bill would be able to meet his own needs while paying some maintenance and found it equitable to award Brenda maintenance of $750 per month for eighteen months, beginning one month after the sale of the marital home. ¶5 Bill raises two issues on appeal. First, Bill argues that the District Court erred when it declared it lost jurisdiction to rule on his M. R. Civ. P. 60 motion upon the expiration of the 60-day deadline. The District Court had granted an extension of time for briefing the motion and then denied the motion for lack of jurisdiction on February 13, 2013, one day after we entered our decision in Green v. Gerber, 2013 MT 35, 369 Mont. 20, 303 P.3d 729. Pursuant to Green, “the expiration of a time bar does not deprive a district court of the jurisdiction to further act in the matter before it.” Green, ¶ 24. Thus, the District Court did not lose jurisdiction over the motion. However, Brenda argues the question of whether the District Court should have considered the motion is rendered moot by this appeal, as the issue Bill raised in his motion is now being heard by this Court. We agree with Brenda that our review of the merits of Bill’s appeal renders Bill’s first issue moot. ¶6 Second, Bill asserts that the District Court erred in awarding maintenance to Brenda. Bill argues that the District Court failed to determine whether or not Brenda lacked sufficient property for her reasonable needs, and that maintenance was inappropriate because Brenda can support herself through her current employment. We review the division of marital property and maintenance awards to determine whether the findings of fact upon which the District Court relied are clearly erroneous. In re Marriage of Rolf, 2004 MT 276, ¶ 18, 323 Mont. 216, 99 P.3d 217. Based on the 4 evidence before the District Court concerning the financial situations of the parties, its findings of fact are not clearly erroneous. There is sufficient evidence to support the maintenance award. ¶7 Bill also argues that the District Court erred in failing to consider the income Brenda would receive upon the sale of the marital home. In its findings of fact, the District Court acknowledged the future sale of the marital home and the parties’ agreement to share the equity. The District Court was not required to further consider the sale as it had not yet occurred. This Court will not consider subsequent events in reviewing a district court’s findings. In re Marriage of Beadle, 1998 MT 225, ¶ 20, 291 Mont. 1, 968 P.2d 698. Thus, the subsequent sale of the marital home does not change our review of the District Court’s decision. ¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The District Court’s factual findings are supported by substantial evidence and are not clearly erroneous. ¶9 We therefore affirm the District Court’s decision. /S/ PATRICIA COTTER We Concur: /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ LAURIE McKINNON /S/ BRIAN MORRIS | September 10, 2013 |
27c6f6e5-3139-4892-a951-f667eb2399ad | Matter of N.A. | 2013 MT 255 | DA 12-0613 | Montana | Montana Supreme Court | DA 12-0613 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 255 IN THE MATTER OF: N.A., Respondent and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DDI 2012-61 Honorable James P. Reynolds, Presiding Judge COUNSEL OF RECORD: For Appellant: Jeanne M. Walker; Hagen & Walker, PLLC; Billings, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant Attorney General; Helena, Montana Leo J. Gallagher, Lewis and Clark County Attorney; Helena, Montana Submitted on Briefs: June 19, 2013 Decided: September 10, 2013 Filed: __________________________________________ Clerk September 10 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Respondent and appellant N.A. was committed to Montana State Hospital for 90 days by a District Court order. N.A. now appeals this order. We affirm. STATEMENT OF THE ISSUES ¶2 The issues on appeal are as follows: ¶3 Did N.A.’s participation in his own defense reduce his attorney to mere “standby counsel” in violation of § 53-21-119, MCA? ¶4 Was N.A. deprived of procedural due process when a professional evaluator failed to submit a written report to the District Court and both parties? ¶5 Did the District Court correctly deny N.A.’s untimely motion for a jury trial? ¶6 Did the District Court abuse its discretion by denying N.A. a continuance? ¶7 Was N.A.’s counsel ineffective? FACTUAL AND PROCEDURAL BACKGROUND ¶8 Respondent N.A. has been diagnosed with paranoid schizophrenia. After some treatment at the Phoenix House, professionals there became concerned that he was a danger to himself and others. The State instituted an involuntary civil commitment proceeding. At his initial appearance, N.A. was informed of his right to a jury trial and the subsequent hearing that would occur, which would include a prehearing mental health evaluation. N.A. informed the District Court that he did not want evaluation by professionals who had evaluated him in the past because he believed them to be guilty of perjury. N.A. informed the court that he needed more time to find and choose an evaluator. 3 ¶9 N.A. could not provide the name of his professional of choice, and found both the State and public defender evaluators not to his liking. The court gave N.A. a one-day continuance to obtain his chosen professional, but he failed to provide a name to his attorney in time for her to contact the evaluator. When the commitment proceeding resumed, the District Court found that N.A. had been given a reasonable choice of evaluator, and denied N.A.’s motion for continuance. After the State had finished presenting its case, N.A. moved for a jury trial, which the court rejected as untimely. ¶10 Throughout the commitment hearing, N.A. had an unusual level of participation in his defense. N.A. performed the overwhelming majority of cross examinations, and delivered his own closing. N.A.’s attorney, Ms. Teal Mittelstadt (Mittelstadt), assisted in cross examination, conducted direct examination of N.A., and addressed the District Court concerning matters of legal significance. ¶11 After a full hearing and upon a finding that N.A. was a danger to himself, the District Court committed N.A. to the Montana State Hospital for a period of 90 days. N.A. now appeals that order. STANDARD OF REVIEW ¶12 We review orders in civil commitment proceedings to determine whether findings of fact are clearly erroneous and conclusions of law are correct. In re L.K.-S., 2011 MT 21, ¶ 14, 359 Mont. 191, 247 P.3d 1100. Issues of right to counsel in commitment proceedings are subject to plenary review. In re K.G.F., 2001 MT 140, ¶ 17, 306 Mont. 1, 29 P.3d 485. We may review involuntary commitment proceedings for plain error, regardless of whether an objection was made at trial. In re J.D.L., 2008 MT 445, 4 ¶¶ 6-7, 348 Mont. 1, 199 P.3d 805. This Court reviews a district court’s interpretation and application of a statute to determine whether its conclusions of law are correct. Estate of Donald v. Kalispell Medical Ctr., 2011 MT 166, ¶ 17, 361 Mont. 179, 258 P.3d 395. Claims of ineffective assistance of counsel present mixed issues of law and fact which we review de novo. State v. Clary, 2012 MT 26, ¶ 12, 364 Mont. 53, 270 P.3d 88. DISCUSSION ¶13 Did N.A.’s participation in his own defense reduce his attorney to mere “standby counsel” in violation of § 53-21-119, MCA? ¶14 N.A.’s primary argument is that his participation in the hearing made him essentially pro se, constituting a waiver of his right to counsel in violation of § 53-21-119(1), MCA. Although he had an attorney present, N.A. contends that his lawyer’s role was as standby counsel, which does not constitute “counsel” for the purposes of effective representation. ¶15 This Court has recognized the Sixth Amendment right to self-representation, but we are also mindful of the disadvantages confronting pro se parties. Halley v. State, 2008 MT 193, ¶ 20, 344 Mont. 37, 186 P.3d 859. These disadvantages are especially concerning in criminal and civil commitment proceedings, where the State seeks to deprive an individual of their physical freedom. With this risk in mind, our Legislature expressly prohibited waiver of the right to counsel in civil commitment proceedings. Section 53-21-119, MCA. In regard to what constitutes “counsel,” this Court has held that “standby” counsel do not qualify as counsel for the purposes of the Sixth 5 Amendment. Halley, ¶ 22 (quoting United States v. Taylor, 933 F.2d 307, 313 (5th Cir. 1991). ¶16 Yet, not all client participation transforms effective counsel into standby counsel. A defendant’s lawyer is reduced to standby counsel when she cannot (1) substantially interfere with significant tactical decisions, (2) control the examination of witnesses, (3) speak on matters of legal importance to the defendant, and/or (4) bear responsibility for defendant’s defense. Halley, ¶ 22. ¶17 Here, N.A. had an unusual level of participation in his own civil commitment proceeding, but his participation did not reduce his attorney to mere standby counsel. N.A.’s attorney, Mittelstadt, exercised control over all parts of the proceeding, including the questioning phase. Mittelstadt filed an untimely motion for jury trial and addressed the District Court in the legal discussion of this motion. Mittelstadt also made motions for a continuance during both days of the proceeding and addressed the court on this issue, at one point even calling for the commitment hearing to recess so that she could confer with her client. Mittelstadt conducted direct examination of N.A. and intervened during N.A.’s cross-examinations to ask legally significant questions. When N.A. wished to ask questions of a witness or to address the court in closing, he asked Mittelstadt. In light of these facts, Mittelstadt had direct control over N.A.’s trial tactics, she had supervisory control over the questioning of witnesses, and she had direct exchanges with the court on matters of legal significance to N.A.’s case. This level of responsibility and control demonstrates that Mittelstadt was not merely an “observer . . . who does not speak for the defendant.” Taylor, 933 F.2d at 313. 6 ¶18 Finally, N.A. argues that the District Court recognized him as pro se on several occasions. Indeed, the court told N.A. that “you are in effect representing yourself” and identified Mittelstadt as co-counsel. When Mittelstadt asked for clarification on what role N.A. should assume, the court replied that “I don’t have a problem with it either way. It can go either way.” But the District Court’s designations and indifferences are not dispositive in determining whether Mittelstadt was standby counsel. Rather, we consider the actual nature of Mittelstadt’s control over N.A.’s defense, which was more supervisory than standby. ¶19 Was N.A. deprived of procedural due process when a professional evaluator failed to submit a written report to the District Court and both parties? ¶20 N.A. next argues that his procedural due process rights were violated when Kim Waples (Waples) failed to file a written report with the court on her findings as to N.A.’s mental health. N.A. raises this issue for the first time on appeal. ¶21 While this Court will generally not hear issues raised for the first time on appeal, we may review involuntary commitment proceedings for plain error, regardless of whether an objection was made at trial. J.D.L., ¶¶ 6-7. Plain error exists when an error (1) implicates a fundamental right, and (2) leaves one firmly convinced that some aspect of the trial would result in manifest miscarriage of justice, call into question the fairness of the trial or proceeding, or compromise the integrity of the judicial process. State v. Taylor, 2010 MT 94, ¶¶ 14-17, 356 Mont. 167, 231 P.3d 79. ¶22 Section 53-21-123, MCA, provides that respondents in civil commitment proceedings must have a mental health examination conducted by a professional person 7 after the initial hearing, and that person must file a written report of the examination to the court with copies to both parties. Montana’s civil commitment laws are to be strictly adhered to. In re T.J.D., 2002 MT 24, ¶ 20, 308 Mont. 222, 41 P.3d 323. These procedures are necessary to guard against the calamitous effect that involuntary commitment can have in depriving a person of liberty. In re Shennum, 210 Mont. 442, 450-51, 684 P.2d 1073, 1078 (1984). ¶23 However, not all errors of state law amount to deprivation of procedural due process; rather, we employ a flexible balancing test to determine whether a particular safeguard is required in a specific circumstance. Engle v. Isaac, 456 U.S. 107, 121 n. 21, 102 S. Ct. 1558, 1568 (1982); Matthews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 902-03 (1976). In civil commitment proceedings, this Court examines procedural due process by weighing the risk of depriving an individual’s liberty against the probable value of the procedure in question. In re E.T., 2008 MT 299 ¶¶ 27-29, 37, 345 Mont. 497, 191 P.3d 470. When foregoing a procedure does not cause substantial prejudice to a party, the error is de minimus and does not affect an individual’s liberty interest. In re O.R.B., 2008 MT 301, ¶ 30, 345 Mont. 516, 191 P.3d 482. ¶24 In O.R.B., this Court found a written report’s lack of recommendations did not prejudice the respondent because all parties were effectively put on notice of the recommendations. O.R.B., ¶ 31. Here, even if Waples’ report violated the statute because she did not file it with the District Court, all parties had effective and sufficient notice of Waples’ findings. Waples produced a report and relied on it at trial, giving the court ample opportunity to hear her findings and conclusions about N.A.’s mental health. 8 The fact that the District Court heard this in the form of testimony instead of in written report does not risk N.A.’s fundamental right to due process. Second, N.A.’s attorney retained an additional evaluator, Dr. Bowman Smelko (Smelko), who attended and participated in the Waples examination. Smelko informed N.A.’s attorney that he would not testify at trial because his findings and recommendations did not differ from Waples’ report. Like the appellant in O.R.B., N.A. claims that he could not prepare effectively, but was confronted with sufficient evidence to put him on notice of his evaluator’s testimony. ¶25 As such, Waples’ failure to file the report did not implicate N.A.’s procedural due process rights under Matthews and E.T. While we recognize the possibility for this to constitute prejudicial error in other circumstances, it does not amount to plain error in this instance. ¶26 Did the District Court correctly deny N.A.’s untimely motion for a jury trial? ¶27 N.A. next argues that his right to a jury trial was violated when his attorney failed to make a timely demand before the hearing date. N.A. contends that he informed his previous public defender that he wanted a jury trial, and that his failure to demand a trial was due to a combination of his previous lawyer’s inaction and his own ignorance of the law. ¶28 We review a district court’s interpretation and application of a statute to determine whether its conclusions of law are correct. Estate of Donald, ¶ 17. Section 53-21-125, MCA, provides that respondents may request a jury trial at any time before the commitment hearing. 9 ¶29 N.A. had ample opportunity and notice to inform the court and his lawyer of this desire before the hearing. N.A. was advised of this right at his initial appearance on September 10, and made no demand, nor did he mention his desire for a jury during the first day of the commitment proceeding when he began to actively participate in his own defense. N.A. first notified Mittelstadt that he desired a jury trial on September 12, after the State had completed its case. While nothing in the record establishes that N.A. actually made this request to his original attorney, even if he had, N.A. had sufficient notice and opportunity to raise such a motion after he changed counsel. Thus, the District Court correctly concluded that his demand was untimely under the statute. ¶30 Did the District Court abuse its discretion by denying N.A.’s motion for continuance? ¶31 This Court reviews a district court’s interpretation and application of a statute to determine whether its conclusions of law are correct. Estate of Donald, ¶ 17. ¶32 Section 53-21-118, MCA, provides that a respondent may secure a professional person of their choosing to examine and testify to their mental health. A district court must allow the respondent a reasonable choice of an available professional person “[w]henever possible.” Section 53-21-118(2), MCA. We note that this statute only contemplates “reasonable choice of an available professional person,” and does not safeguard the demand for a more favorable but nameless professional. Additionally, 10 district courts are not bound to continually delay a hearing due to a respondent’s indecision concerning his evaluator. ¶33 Here, the District Court gave N.A. reasonable time and opportunity to secure the evaluator of his choice. N.A. objected that he did not want to be evaluated by certain professionals at his initial hearing on September 10, because he believed them to be guilty of various crimes. N.A.’s attorney secured an independent evaluator through the Office of the Public Defender, Dr. Smelko, in addition to the State’s evaluator, Waples. N.A. told his attorney at the evaluation that he wanted neither Smelko nor Waples, but could not give his attorney the name of his preferred evaluator. N.A. also had difficulty identifying his preferred evaluator to the District Court on September 11, but eventually asserted that he wanted “Dr. Smith” because he wanted an evaluator who was “specifically favorable for me.” ¶34 The District Court granted a continuance until September 13 so that N.A. or his attorney could contact an evaluator. However, N.A. told Mittelstadt of his actual choice late the next day, and she was unable to contact the chosen evaluator before the continuation of the hearing. By this point, the District Court had already given N.A. and his counsel three days to choose and secure a favorable evaluator. The District Court properly concluded that N.A. had been afforded a “reasonable choice” of evaluator, and was not bound to continually delay the hearing due to N.A.’s indecision or inability to obtain favorable evaluation. ¶35 Was N.A.’s counsel ineffective? 11 ¶36 As a final matter, N.A. argues that his counsel was ineffective for allowing him to participate in his trial, for failing to make a timely motion for jury trial, and for failing to obtain the evaluator of his choice. We review claims of ineffective assistance of counsel de novo because they include mixed questions of fact and law. Clary, ¶ 13. ¶37 In K.G.F., we examined effective assistance of counsel in civil commitment with five different factors: (1) appointment of competent counsel, (2) counsel’s initial investigation, (3) counsel’s interview with the client, (4) the presence of counsel during a mental health evaluation, and (5) the role of the counselor as an advocate or adversary. K.G.F., ¶¶ 71-89. It is unclear whether a challenge based on only one of these five critical areas would meet K.G.F.’s threshold “substantial showing of evidence . . . that counsel did not effectively represent the respondent’s interests.” In re C.R.C., 2009 MT 125, ¶ 19, 350 Mont. 211, 207 P.3d 289 (quoting K.G.F., ¶ 86). ¶38 N.A.’s complaints about his counsel’s assistance address only the fifth critical area, and even these complaints fail to raise a substantial showing of ineffectiveness. Mittelstadt was not an ineffective attorney for simply allowing N.A. to participate in the proceeding, and in fact, she intervened several times to make motions and ask questions. Although cross-examination and closing would probably have been more effective had Mittelstadt conducted them exclusively, N.A. has not demonstrated that his lawyer was ineffective for allowing him to participate in his defense. Second, the record establishes that Mittelstadt did not know of N.A.’s desire for a jury trial until September 12, after the State had concluded its case. Thus her untimely motion was not due to her own ineffectiveness. Third, Mittelstadt’s failure to obtain N.A.’s preferred evaluator was the 12 result of N.A.’s inability to provide the name of his preference, which he finally provided late the day before the hearing resumed. As such, N.A.’s complaints amount to ineffective use of counsel rather than ineffective assistance of counsel. CONCLUSION ¶39 N.A.’s participation at trial did not violate § 53-21-119, MCA. The failure to file a professional report with the court was not sufficiently prejudicial to warrant procedural due process relief. The District Court properly denied N.A.’s motions for continuance and for a jury trial. ¶40 Finally, N.A.’s claims of ineffective assistance of counsel are not supported by sufficient evidence that he was prejudiced by his attorney’s actions. ¶41 We affirm. /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ PATRICIA COTTER /S/ JIM RICE | September 10, 2013 |
43451144-e8b7-4eba-b4bf-d940f51edda4 | Gould v. State | 2013 MT 276N | DA 13-0128 | Montana | Montana Supreme Court | DA 13-0128 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 276N MICHAEL LAW GOULD, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-12-1 Honorable Karen Townsend, Presiding Judge COUNSEL OF RECORD: For Appellant: Michael Law Gould, self-represented, Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana Fred R. Van Valkenburg, Missoula County Attorney, Missoula, Montana Submitted on Briefs: September 5, 2013 Decided: September 24, 2013 Filed: __________________________________________ Clerk September 24 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Appellant Michael Gould (Gould) appeals the order of the Fourth Judicial District Court, Missoula County, that denied his petition for post-conviction relief. We affirm. ¶3 The State of Montana (State) charged Gould with aggravated assault pursuant to § 45- 5-202, MCA, in Missoula County. On January 1, 2010, Hillarie Cochran (Cochran) found Gould, a friend, sleeping on her couch. She woke Gould. Gould struck Cochran in the throat with an open hand and/or strangled her around her trachea below the jaw thereby preventing Cochran from breathing. Gould claimed that Cochran was hitting him and he defended himself “instinctively” due to his training in martial arts. He stated that he did not actually intend to harm Cochran. ¶4 The case went to trial where Gould gave notice of the affirmative defense of justifiable use of force. A jury found Gould guilty of aggravated assault. Gould appealed that verdict. He claimed that the District Court erroneously instructed the jury with regard to the mental state element of aggravated assault. He alleged that in its jury instructions the District Court should have given the jury result-based definitions for “purposely or knowingly.” The District Court instead gave conduct-based definitions of “purposely or knowingly.” The instructions stated that a person acts “purposely” “when it is the person’s 3 conscious object to engage in conduct of that nature.” The instructions stated that a person acts “knowingly” “when the person is aware of his or her conduct.” Gould did not object to these jury instructions and he did not offer alternative instructions. We rejected Gould’s claim for plain error review, or in the alternative, ineffective assistance of trial counsel. State v. Gould, 2011 MT 248N, 363 Mont. 413. ¶5 Gould timely filed a pro se petition for post-conviction relief on January 3, 2012. The District Court appointed counsel for Gould. The District Court denied Gould’s petition for post-conviction relief on January 28, 2013, after Gould’s counsel stipulated that an evidentiary hearing was unnecessary. Gould filed a pro se motion for rehearing on February 4, 2013. Gould filed a notice of appeal on February 14, 2013, before the post-conviction relief court had an opportunity to rule on Gould’s rehearing motion. Counsel Colin Stephens filed a supplemental briefing on Gould’s pro se motion for rehearing on February 25, 2013. ¶6 Gould argues on appeal that his trial counsel’s failure to object to the jury instructions given at trial constituted ineffective assistance of counsel. The State counters that Gould had asserted justifiable use of force as a defense and by this claim admitted that he had acted purposely and knowingly. The State contends the only question was whether the force exerted by Gould had been justifiable. ¶7 We review a district court’s denial of a petition for post-conviction relief to determine whether the court’s findings of fact are clearly erroneous and whether its conclusions of law are correct. Sanchez v. State, 2012 MT 191, ¶ 12, 366 Mont. 132, 285 P.3d 540. We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our 1996 Internal 4 Operating Rules, as amended in 2006, that provides for memorandum opinions. The District Court properly denied Gould’s petition for post-conviction relief. ¶8 Affirmed. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ JIM RICE /S/ BETH BAKER | September 24, 2013 |
48e99599-1a02-4b59-b639-151054e2645a | Fossen v. Fossen | 2013 MT 299 | DA 12-0702 | Montana | Montana Supreme Court | DA 12-0702 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 299 PAMELA G. FOSSEN and GREAT FALLS POTABLES, INC., a Montana Corporation f/k/a WESTLAND MANAGEMENT, INC., Third-Party Plaintiffs and Appellants, v. ALLAN R. FOSSEN, an Individual, Third-Party Defendant and Appellee. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. BDV 03-1137 Honorable Julie Macek, Presiding Judge COUNSEL OF RECORD: For Appellant: Nathan J. Hoines, Eric Biehl, Hoines Law Office, PC; Great Falls, Montana For Appellee: Jason T. Holden, Dana A. Ball, Faure Holden Attorneys at Law, P.C.; Great Falls, Montana Submitted on Briefs: September 4, 2013 Decided: October 15, 2013 Filed: __________________________________________ Clerk October 15 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 The District Court for the Eighth Judicial District, Cascade County, granted summary judgment in favor of Third-Party Defendant and Appellee Allan Fossen (Allan). Third-Party Plaintiff and Appellant Pamela Fossen (Pam) appeals from this judgment. We Affirm. STATEMENT OF ISSUES ¶2 Issue One: Did the District Court correctly determine that Pam failed to plead fraud with sufficient particularity? ¶3 Issue Two: Did the District Court correctly determine that Pam failed to show reliance on Allan’s representations? ¶4 Issue Three: Did the District Court err when it determined that Count III of Pam’s complaint is dependent on and relates back to Counts I and II? FACTUAL AND PROCEDURAL BACKGROUND ¶5 Pam, Allan, Charles Dees and Mary Lou Dees (the Dees) entered into the portable toilet business in 1996. The assets of the business were obtained through a loan bearing the names of Pam, Allan, and the Dees. Allan acted as the sole manager of the business, operating the assets as Great Falls Portables, Inc. (GFP). In 2001, Pam and Allan separated, and Pam took over management of GFP in May of that year. Pam later created a separate LLC, Rocky Mountain Portables (RMP), and transferred all of GFP’s assets and customers to RMP. The Dees filed a Complaint against Pam, GFP, and RMP in October 2003, alleging breaches of fiduciary duty, wrongful interference, unjust enrichment, and seeking recognition of their interest in GFP. In November 2003, Pam and Allan entered into a Settlement Agreement (Agreement) wherein their marital property was divided between them. The 3 Agreement provided, in part, “[w]ife also agrees to be responsible to the Dees for any obligation which may be owed them in connection with their interest, if any, in Great Falls Portables.” ¶6 In litigation with the Dees, Pam filed a Third-Party Complaint against Allan in December, 2003. Pam alleged that the Dees’ complaint arose out of Allan’s fraudulent actions in his individual capacity (Count I), that Allan had fraudulently induced Pam to enter the Agreement assigning responsibility for the Dees’ interest (Count II), and demanded that Allan remedy this fraud by indemnifying her from liability to the Dees (Count III). The District Court granted Allan summary judgment against all three counts. The court found that the complaint failed to plead fraud with sufficient particularity, that no material issue of fact demonstrated Pam’s reliance on the alleged fraudulent representations, and dismissed her Count III indemnity and contribution claim as relating back to the fraud alleged in Counts I and II. Pam appeals from this order. STANDARDS OF REVIEW ¶7 We review summary judgment rulings de novo. Dubiel v. MT Dept. of Transportation, 2012 MT 35, ¶ 10, 364 Mont. 175, 272 P.3d 66. This Court reviews a district court’s decision on summary judgment using the same standards as the district court under M. R. Civ. P. 56. Wagner v. Woodward, 2012 MT 19, ¶ 16, 363 Mont. 403, 270 P.3d 21. Summary judgment is proper under Rule 56 if the pleadings, answers to discovery, and affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Cole v. Valley Ice Garden, L.L.C., 2005 MT 115, ¶ 4, 327 4 Mont. 99, 113 P.3d 275. In responding to a motion for summary judgment, a non-movant must set forth specific facts that are not speculative or conclusory statements. Hiebert v. Cascade County, 2002 MT 233, ¶ 21, 311 Mont. 471, 56 P.3d 848. A court’s evaluation for issues of material fact must construe all reasonable inferences in favor of the non-movant. Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 38, 345 Mont. 12, 192 P.3d 186. DISCUSSION ¶8 Did the District Court correctly determine that Pam failed to plead fraud with sufficient particularity? ¶9 Montana Rule of Civil Procedure 9(b) requires a party alleging fraud to plead the circumstances constituting fraud with sufficient particularity, but malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. To sustain a fraud claim, one must plead and prove: (1) a representation; (2) falsity of the representation; (3) materiality of the representation; (4) speaker’s knowledge of the falsity of the representation, or ignorance of its truth; (5) speaker’s intent that it should be relied upon; (6) the hearer’s ignorance of the falsity of the representation; (7) the hearer’s reliance on the representation; (8) the hearer’s right to rely on the representation; and, (9) consequent and proximate injury was caused by reliance on the representation. Krone v. McCann, 197 Mont. 380, 387, 642 P.2d 584, 587-88 (1982). The key inquiry in evaluating a pleading’s sufficiency is whether the pleading gives adequate notice to an adverse party enabling it to prepare a responsive pleading. State Compensation Mut. Ins. Fund v. Berg, 279 Mont. 161, 177, 927 P.2d 975, 984 (1996); Fraunhofer v. Price, 182 Mont. 7, 15, 594 P.2d 324, 329 (1979). A sufficiently pled fraud complaint should allege not 5 only that a representation was made, but also the time and place of the representation. C. Haydon Ltd. v. Montana Mining Properties, 262 Mont. 321, 325, 864 P.2d 1253, 1256 (1993). When a pleading alone does not give sufficient notice to an adverse party, it is appropriate to consider the context in which the fraud is alleged to have occurred. Berg, 279 Mont. at 178, 927 P.2d at 985. However, allegations of fraud may not ordinarily bebased on “information and belief” except as to matters peculiarly within the opposing party’s knowledge. C. Haydon Ltd., 262 Mont. at 325-26, 864 P.2d at 1256. ¶10 The District Court correctly concluded that Pam’s third-party complaint did not plead fraud with sufficient particularity to give Allan adequate notice. Pam’s complaint consistently alleges “actions” and even “fraudulent actions” that induced her to enter into the indemnification agreement, but nowhere describes what action Allan took. Relying onBerg, Pam contends that Allan had the most intimate knowledge of the business, and had been involved in this litigation for nearly a decade, thus he was put on notice by the context surrounding the complaint. In Berg, the appellant argued that the State failed to plead with sufficient detail the speaker’s knowledge of falsity, the hearer’s ignorance, reliance, right to rely on the representation, and injury. Appellant Br. of George Berg, State Compensation Mut. Ins. Fund v. Berg, at 45-46 (No. 95-389 (1996)). Because Berg had filed incorrect payroll reports for workers compensation insurance, we found that his conduct had put him on notice that the State would rely on his representation to its detriment. Berg, 279 Mont. at 176-78, 927 P.2d at 984. 6 ¶11 The instant case is distinguishable from Berg in a number of ways. First, Berg did not concern the sufficiency of pleading the representation element of fraud. C. Haydon Ltd., however, speaks directly to that element, and requires that representations are pleaded stating the specific time and place that the representation is made. C. Haydon Ltd., 262 Mont. at 325-26, 864 P.3d at 1256. Second, the State in Berg pled fraud with a sufficient amount of detail that Berg was put on notice. The State specifically alleged that Berg had falsely reported his payroll to the State in an effort to reduce the premiums he owed to the State Fund. Berg, 279 Mont. at 176-78, 927 P.2d at 984. We find Pam’s pleading less akin to Berg and more similar to the complaint we found insufficient in Martin v. Dorn Equip. Co., 250 Mont. 422, 428-29, 821 P.2d 1025, 1028-29 (1991). There, the Martin’s complaint alleged that the respondents had “acted fraudulently” and submitted deposition statements referring to a “misrepresentation.” Martin, 250 Mont. at 428-29, 821 P.2d at 1028-29. We found this complaint insufficiently pled fraud because the Martins lacked any allegation of facts and circumstances in support of an element of fraud, including the representation element. Martin, 250 Mont. at 428-29, 821 P.2d at 1028-29. Pam’s complaint likewise fails to plead any detail or fact in support of her allegation of fraud. ¶12 Finally, Berg concerned information that was peculiarly within the defendant’s knowledge, and thus the State could plead certain elements on information and belief, pursuant to C. Haydon Ltd., 262 Mont. at 326, 864 P.2d 1256. Because Berg himself had falsely filed his payroll, the State was unable to know the facts that would support an element like the speaker’s knowledge of the falsity. Berg, 279 Mont. at 175-76, 927 P.2d at 7 984-86. Here, Allan’s representation is not peculiarly within his knowledge, in fact, Pam claims that he made the representation directly to her. There is nothing stopping Pam from pleading the representation with particularity. But, even if this information is only known by Allan, C. Haydon Ltd. requires a plaintiff to allege that such information was peculiar to the defendant’s knowledge. C. Haydon Ltd., 262 Mont. at 325-26, 864 P.2d at 1256. ¶13 Pam alleges no facts in her pleading which support an action for fraud, nor does she allege that the facts are peculiar to Allan’s knowledge. Pam’s complaint contains no fact identifying Allan’s representation in any way, except that she thought it was fraudulent and caused damages. Without particular facts and circumstances describing the representation, Allan cannot effectively answer the complaint’s allegations about the representation. Because this is the core concern behind M. R. Civ. P. 9(b), the District Court correctly determined that the complaint failed to plead with particularity. ¶14 Did the District Court correctly determine that Pam failed to show reliance on Allan’s representations? ¶15 Even if Pam’s fraud claim survives M. R. Civ. P. 9(b) scrutiny, it fails to raise an issue of material fact as to whether she relied on Allan’s representation. Fraud claims must establish both that a hearer relies on the representation and that the hearer has a right to rely on the representation. Krone, 197 Mont. at 387, 642 P.2d at 587-88. If a party has investigated a fraudulent representation, or has the means to determine the veracity of a representation, that party has no grounds to claim reliance. Grindrod v. Anglo-American 8 Bond Co., 34 Mont. 169, 179, 85 P. 891, 894 (1906); Aetna Life Ins. Co. v. McElvain, 221 Mont. 138, 148, 717 P.2d 1081, 1087 (1986). ¶16 Pam had ample notice that the business owed money to the Dees relating to their equity in the business. Pam took over the business in May 2001 when she separated from Allan. The Dees and their lawyer made several calls and sent demand letters to Pam claiming that they had equity in half of the business. Pam then transferred assets and customers from GFP and filed with the Secretary of State to form RMP, the same business under a new name. Pam acknowledged that the business assets had originally been purchased with bank notes signed by the Fossens and Dees, that those same assets were the ones she used in her business, and that no deal had ever compensated the Dees for their equity in the business. All of this occurred before November 4, 2003, when Pam signed the Agreement dividing property and debts between Allan and herself. By that time, Pam had been put on notice that the Dees claimed an interest. If Allan did make a fraudulent representation, Pam had no right to rely on this representation in the face of the Dees’ asserted interest in her business. ¶17 Pam claims that Allan had a superior knowledge of the business and its debts. In Spence v. Yocum, 201 Mont. 79, 84-85, 651 P.2d 1022, 1025 (1982), we found that an imbalance of knowledge could support a plaintiff’s right to rely on a false representation. But the plaintiff in Spence lacked equal means to verify a representation. Spence made several attempts to verify the representation, contacting an accountant and attempting to 9 verify facts independently, and even then could not correctly verify the representation in question. ¶18 Here, instead of attempting to verify whether the Dees had an interest, Pam transferred all of GFP’s assets to RMP. Pam only requested that the Dees prove their interest in response to their demand letters, and made no other attempts to verify whether the Dees had an interest in GFP’s assets. Even before these demands, Pam deliberately avoided finding out whether the Dees had an interest (“Q: [Y]ou weren’t aware in November of 2000 of any agreement that Al had with [the Dees] to buy them out of the portable toilet business? A: No . . . And I didn’t ask . . . I guess I didn’t even think about the Dees anymore . . . .”). Further, one month before Pam signed the Agreement, the Dees filed a complaint claiming interest in GFP. The Dees’ litigation and demand letters should have put Pam on notice that Allan’s representation may have been false, so she cannot claim a right to rely on the representation. Nor can Pam use her deliberate inaction to claim that she was without the means to verify the representation. Because neither party disputes that Pam was aware of the Dees’ litigation when she signed the Agreement with Allan, no material issue of fact exists that proves reliance. The District Court properly granted summary judgment against Pam’s fraudulent representation claim. ¶19 Did the District Court err when it determined that Count III of Pam’s complaint is dependent on and relates back to Counts I and II? ¶20 Count III of Pam’s complaint asserts: If the Plaintiff prevails in it’s [sic] claims, then [Allan]’s conduct has given rise to the Plaintiff’s claims against Defendants herein. In the event the 10 Defendants are found to be liable to Plaintiff in any amount, [Allan] is liable to the defendants for his proportionate share based upon his conduct that is determined to have given rise to any and all obligations and sums determined to be owed the Plaintiff. Pam argues that the District Court improperly dismissed this Count along with the other two. Under Pam’s reading of her complaint, she alleges not only fraud, but also that Allan must indemnify her against any liability from the Dees. This is not how Pam communicated her indemnity count to the District Court. In her Reply Brief Opposing Summary Judgment, Pam states, “[t]he remedies Third Party Plaintiffs seek are damages and indemnity resulting from those fraudulent acts and representations by Allan.” Throughout this litigation, Pam framed her indemnity argument as a remedy to Allan’s fraud. Thus, the District Court properly concluded that Count III was dependent on the fraud counts. CONCLUSION ¶21 For the foregoing reasons, the judgment of the District Court is affirmed. /S/ MICHAEL E WHEAT We concur: /S/ JIM RICE /S/ LAURIE McKINNON /S/ BETH BAKER /S/ BRIAN MORRIS | October 15, 2013 |
32af49bf-158d-41bb-9fd7-e6fd25810a22 | State v. Morsette | 2013 MT 270 | DA 12-0056 | Montana | Montana Supreme Court | DA 12-0056 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 270 STATE OF MONTANA, Plaintiff and Appellee, v. ISAIAH MAURICE MORSETTE, Defendant and Appellant. APPEAL FROM: District Court of the Seventeenth Judicial District, In and For the County of Blaine, Cause No. DC 09-22 Honorable John C. McKeon, Presiding Judge COUNSEL OF RECORD: For Appellant: Jennifer A. Hurley, Hurley Kujawa, PLLC, Butte, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Donald A. Ranstrom, Blaine County Attorney, Chinook, Montana Submitted on Briefs: August 7, 2013 Decided: September 17, 2013 Filed: __________________________________________ Clerk September 17 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Morsette appeals from his June 2011 conviction of sexual intercourse without consent. We affirm. ¶2 Morsette raises the following issues on appeal: ¶3 1. Did the State violate Morsette’s right to a speedy trial? ¶4 2. Did Morsette receive ineffective assistance of counsel when his attorney failed to object to evidence at trial? ¶5 3. Did the State violate Morsette’s right to due process by using his silence after arrest against him at trial? ¶6 4. Is Morsette entitled to a new trial based upon cumulative error? PROCEDURAL AND FACTUAL BACKGROUND ¶7 Morsette became the manager of a restaurant in Chinook, Montana, in June 2009. As manager he supervised other employees, several of whom were teen-aged girls. In August 2009, one of those girls, a 15-year-old referred to as S.M., agreed to meet Morsette after work. He bought some alcohol and rented a motel room. S.M. testified that she and Morsette went to the motel room and drank until she lost consciousness. She testified that she later woke to find Morsette having intercourse with her. Two weeks later Morsette quit his job. That same day the restaurant owner met with several of the female employees and their mothers. During that meeting S.M. told the others that Morsette had sexually assaulted her. Morsette was arrested that day in Havre. 3 ¶8 Morsette testified at trial that he often related inappropriately to the young female employees. He admitted that he made overtly sexual remarks, offered to buy alcohol, talked about sneaking out, and suggested that they drink with him after work. He acknowledged this conduct and conceded that it was wrong. As to the incident with S.M., Morsette testified that at her request he bought a bottle of alcohol for her at a local bar, and that he then walked to a motel and rented a room for $50. He testified that he took a shower in the motel room and then went back to the restaurant to work the rest of his shift. He testified that after work he gave the alcohol to S.M. but then left her and walked to a bar. He testified that after he returned to the motel room to retrieve his identification, he stayed at the bar, drank and played pool. Morsette testified that after spending some time in the bar he drove to Havre to spend the night at a friend’s house. He testified that at the time of his arrest he was “pretty shocked” and “didn’t know what was going on.” ¶9 In June 2011, a jury found Morsette guilty of sexual intercourse without consent pursuant to § 45-5-503, MCA. The District Court sentenced Morsette to the Montana State Prison for 35 years with 10 years suspended. Morsette appeals. STANDARD OF REVIEW ¶10 The applicable standard of review will be noted in the discussion of each issue. DISCUSSION ¶11 Issue 1: Did the State violate Morsette’s right to a speedy trial? ¶12 A district court considering a speedy trial claim must determine the relevant facts and then assess whether those facts demonstrate a denial of the right to speedy trial. State v. 4 Ariegwe, 2007 MT 204, ¶ 119, 338 Mont. 442, 167 P.3d 815. The facts are evaluated under four factors: the length of delay; the reasons for the delay; the accused’s response to the delay; and prejudice to the accused. Ariegwe, ¶ 34. This Court reviews the findings of fact to determine whether they are clearly erroneous. Ariegwe, ¶ 119. The district court’s decision on whether the facts demonstrate a denial of speedy trial is a question of constitutional law that this Court reviews de novo to determine whether it is correct. Ariegwe, ¶ 119. ¶13 Morsette filed two motions to dismiss for lack of speedy trial, and the District Court denied both after making thorough findings of fact. A total of 662 days elapsed between Morsette’s arrest and the beginning of his trial. This is sufficient elapsed time to trigger a speedy trial inquiry. State v. Couture, 2010 MT 201, ¶ 49, 357 Mont. 398, 240 P.3d 987. The District Court carefully divided the elapsed time into nine periods that varied from 4 days to 164 days. After considering the facts and reasons for each discrete time period, the District Court allotted to the State the responsibility for 321 days. Much of the time allocated to the State was “institutional” delay, which is delay inherent in the criminal justice system caused by circumstances largely beyond the control of the State or the defendant.1 Accordingly, it does not weigh heavily against the State, State v. Blair, 2004 MT 356, ¶ 19, 324 Mont. 444, 103 P. 3d 538. The District Court allocated the responsibility for 341 days to Morsette. While Morsette requests that this Court re-allocate some of the time to the State, it is clear that the District Court thoroughly considered the facts, both as to the discrete time 1 For example, in this case one period of institutional delay was the time consumed when the District Court declared a mistrial after commencement of the first trial of the offense, due to Morsette’s illness and inability to continue. 5 periods involved and the reasons for each of them. The District Court’s factual decision was not clearly erroneous. ¶14 The next factor requires consideration of the accused’s responses to the delay. The District Court found that Morsette caused or agreed to much of the pretrial delay. He caused delay to retain private counsel; he sought a continuance because his attorney was going on a trip; his health condition caused a mistrial when he could not continue after an initial attempt to bring the charges to trial; and a substantial delay was caused when Morsette sought a second mental health evaluation when he disagreed with an initial evaluation. Other than the fact that he moved to dismiss claiming denial of speedy trial, the District Court found that Morsette failed to exhibit “the timeliness, persistence and sincerity indicative of an actual desire for speedy trial.” ¶15 The District Court reviewed whether the pretrial delay had prejudiced Morsette, considering whether there was oppressive pretrial detention; the level of anxiety and concern by the accused; and the loss of memory and evidence. While there was a significant period of pretrial incarceration, the District Court found that bail had been set early and at a reasonable amount ($25,000). Morsette made bail in February 2010, but was out only 15 days when he was charged with a new offense and his bail was revoked. When the amount was later reduced to $2,000 at Morsette’s request, he did not make bail. The District Court also considered Morsette’s argument that the pretrial incarceration was oppressive because he was in solitary confinement much of the time, and found that he was in solitary because he “had difficulty getting along with others at the detention facility and . . . threats to his 6 safety had been reported.” The District Court found no material impact on Morsette’s defense from unavailable witnesses or fading memory. The District Court found no prolonged disruption to Morsette’s financial resources, specifically finding that his reports of employment history and income potential were misrepresented and self-serving. ¶16 On balance the District Court found that the State had overcome any presumption of prejudice to Morsette arising from the length of the delay. We find no reason to disturb the District Court’s conclusions concerning speedy trial and affirm the decision to deny Morsette’s motions to dismiss. ¶17 Issue 2: Did Morsette receive ineffective assistance of counsel when his attorney failed to object to evidence at trial? ¶18 Claims of ineffective assistance of counsel arising under the Montana (Art. II, sec. 24) or United States (Sixth Amendment) Constitutions present mixed questions of law and fact that this Court reviews de novo. State v. Gunderson, 2010 MT 166, ¶ 66, 357 Mont. 142, 237 P.3d 74. We review such decisions under the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). ¶19 Strickland requires that a defendant asserting a claim of ineffective assistance of counsel must establish that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that but for counsel’s errors the result of the trial would have been different. Gunderson, ¶ 67. An attorney is not required to make all possible objections during a trial, and may legitimately decide to forego certain objections as a matter of trial tactics. Claussel v. State, 2005 MT 33, ¶ 20, 326 Mont. 63, 7 106 P.3d 1175; Riggs v. State, 2011 MT 239, ¶ 53, 362 Mont. 140, 264 P.3d 693. There is a strong presumption that an attorney’s conduct falls within the wide range of reasonable professional service, and an attorney is not ineffective because another attorney might have proceeded differently. Riggs, ¶ 10. ¶20 At trial the State presented testimony about Morsette’s relationships with his teenaged female employees, including that he asked them to hang out and drink with him. There was testimony that Morsette asked another employee if she had girlfriends he could meet and whether she could get him any “sex pills.” There was testimony that Morsette would brush against the female employees, touch them, and flirt with them. There was testimony that he was seen in the company of women who were not his significant other and mother of his children. On appeal Morsette contends that this evidence was prejudicial, that it would have been excluded upon a proper objection, and that there was no plausible justification for failing to object to it. The State contends that there were sound tactical reasons for not objecting to this evidence and that failing to object was reasonable and not ineffective assistance. Both the State and Morsette agree that the claim of ineffective assistance can be reviewed on the record on appeal in this case. ¶21 Morsette has not satisfied his burden to overcome the presumption that he was provided effective assistance of counsel. In a criminal trial, defense counsel’s trial tactics are necessarily constrained by the facts and evidence that will ultimately be examined by the jury. Morsette’s attorney was faced with defending a client whose version of events the night of the crime would likely be viewed as implausible and unpersuasive by a jury. 8 Morsette’s attorney certainly would have known that his client, if he testified, would likely have to admit that he bought alcohol on the night of the event and that he had rented a motel room. There was independent evidence of both facts. He also knew that the evidence would show that Morsette sent a text message to the victim and arranged to meet her when the restaurant closed that night. ¶22 In the face of this evidence, Morsette admitted the victim’s version of the events up to the point after the restaurant closed and he gave her the alcohol he bought earlier. He testified that she then went on her own way and that he went to a bar where he had a few drinks and shot pool. He said that he then drove to Havre and spent the night at the house of his friend John. He claimed that he never went to the motel room with the victim, that he never drank with her, and that he never had sex with her. ¶23 It is not beyond the range of reasonable professional service to conclude that defense counsel here would recognize the difficulty of convincing a jury to believe that Morsette engaged in detailed planning for his meeting with the victim, but abandoned the enterprise for no apparent reason to shoot pool and drive to Havre. The obvious tactic adopted by the defense was to admit that Morsette often engaged in inappropriate behavior with his young employees, but that he did so innocently. He acknowledged in his testimony that in retrospect he acted inappropriately, but that he just wanted to be a “cool boss.” But, he knew where to draw the line with his admissions. By admitting to flaws and failures while claiming to have nothing to hide, there was some chance to develop reasonable doubt in the mind of at least one member of the jury. Letting in all the evidence arguably minimized 9 Morsette’s conduct toward the victim by showing that he acted similarly with the other employees and none of them were claiming that he sexually assaulted them. ¶24 Morsette’s attorney followed this theory of defense beginning with his opening statement, emphasizing that “inappropriate conduct does not always mean illegal conduct” and that the case was about “impropriety rather than illegality.” This was followed by Morsette’s testimony admitting most of the victim’s account of the evening of the crime, but denying that he went to the motel and sexually assaulted her. He testified that he now knows that as an adult and a boss he “crossed a boundary” with his young female employees. ¶25 At the request of the defense the District Court gave a cautionary instruction about evidence of “other acts.” The State has offered evidence that the Defendant at another time engaged in other acts. That evidence was not admitted to prove the character of the Defendant or to show he acted in conformity therewith. The only purpose of admitting the evidence was to show proof of motive, opportunity, plan, knowledge, identity, absence of mistake or accident. You may not use that evidence for any other purpose. The Defendant is not being tried for those other acts. He may not be convicted for any other offense than that charged in this case. For the jury to convict the Defendant of any other offense than that charged in this case may result in unjust double punishment of the Defendant. The District Court gave this instruction twice during the course of the trial and again in the final instructions to the jury. The defense relied upon this instruction in closing argument and again explained Morsette’s contention that he acted only inappropriately, not illegally, with all his female employees. 10 ¶26 Morsette’s attorney reasonably adopted this trial strategy in the face of a difficult factual defense presented by his client. Morsette has not established that counsel’s performance or trial tactics fell below a reasonable standard of professional services. ¶27 Issue 3: Did the State violate Morsette’s right to due process by using his silence after arrest against him at trial? ¶28 This Court reviews a district court’s decision on a motion for mistrial to determine whether the defendant was denied a fair and impartial trial. State v. Novak, 2005 MT 294, ¶ 25, 329 Mont. 309, 124 P.3d 182. A mistrial is an exceptional remedy and remedial action short of a mistrial is a preferred remedy. State v. Flores, 1998 MT 328, ¶ 17, 292 Mont. 255, 974 P.2d 124. A district court’s decision on a motion for mistrial is entitled to deference and will be affirmed if the trial judge acted rationally and responsibly. Novak, ¶ 25. ¶29 Some background is required for this issue. Morsette testified at trial to an alibi: that he left Chinook without assaulting the victim and spent the night at a friend’s place in Havre. Morsette did not disclose this defense prior to trial as required by § 46-15-323(2), MCA, nor did he provide a list of witnesses to support the defense as required by § 46-15-323(6)(a), MCA. While Morsette did not disclose his story to law enforcement or the prosecution, he discussed it during a court-ordered psychiatric evaluation, and it appeared in the psychiatrist’s report. During opening statements Morsette’s attorney explained the alibi to the jury. ¶30 At that point the State made a motion asking the District Court to disallow any evidence of the alibi because of Morsette’s failure to make the disclosures required by § 46- 11 15-323, MCA. The District Court held a hearing outside the presence of the jury and denied the State’s motion because the alibi story was previously disclosed during the evaluation. However, as a sanction for failing to follow the statute, the District Court ordered that only Morsette and the defense investigator could testify. The District Court specifically told the State that it could, through witnesses or cross-examination, “question the credibility of these contentions by the defendant that he was not in the county at the time.” ¶31 As noted, Morsette testified in his own defense, claiming that he left Chinook and went to Havre to his friend’s place during the time that the victim was attacked. On cross- examination, the State began by noting that Morsette had been in custody since 2009, and then asked where he had gone in Havre. The following exchange occurred: Q. And if you’d have told officers that you were at a different place, would they have investigated that, when you were arrested I mean? A. I don’t think they asked me. Q. Isn’t that your job—their job is to investigate where persons say that they were on a given time when they are alleged to have committed a crime elsewhere? A. If they are told, I guess. Q. And you’re the only one that had the power to tell them, aren’t you? A. Where I was? Q. Un-huh. A. There’s some other people that could have told them where I was. Q. Who would that have been? A. My friend John whose house it was. At this point the defense objected and there was a hearing out of the presence of the jury. ¶32 The defense contended that the State’s questions were an “improper comment on the defendant’s exercise of his rights under Miranda,” and asked for a mistrial. The State 12 responded that there was no inquiry about Miranda and that Morsette had “opened the door” by giving his alibi story. The defense contended that the jury had been “contaminated” and was “toast” and that the proper remedy was a mistrial; if not, then a “strong cautionary instruction” should be given. Since there were two defense attorneys, the District Court asked the other whether he agreed to the need for a mistrial, and that attorney stated: “I do agree with the cautionary instruction.” ¶33 The District Court then reviewed the transcript of the State’s questions and Morsette’s answers. The District Court denied the motion for a mistrial, noting that the prosecutor had not mentioned Morsette’s exercise of Miranda rights and had not suggested that any inference should be drawn from Morsette’s silence. The District Court further stated that a cautionary instruction to the jury might be harmful to the defense by calling attention to the issue, but that a limitation on the State’s questions about Miranda would be in order. ¶34 The defense then asked for and got a recess to discuss the situation with their client. When Morsette and his attorneys returned, they announced that they “would prefer a cautionary instruction to the prosecution” outside the hearing of the jury. The District Court then instructed the prosecution that no mention could be made of whether Morsette exercised his Miranda rights. The trial proceeded, and in closing argument the prosecution did not refer to Morsette’s failure to disclose his alibi to law enforcement. ¶35 Morsette contends on appeal that the State’s questions to him as quoted above violated his right to due process because they constituted an attack upon his silence after receiving Miranda warnings. It is well established that impeachment use of a defendant’s 13 silence after arrest and after receiving Miranda warnings is a violation of due process. Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 2245 (1976); State v. Wagner, 2009 MT 256, ¶ 16, 352 Mont. 1, 215 P.3d 20. ¶36 As this Court noted in Wagner: Underlying Doyle is the principle that Miranda warnings contain an implicit assurance that exercising Miranda rights will carry no penalty, and that “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Doyle, 426 U.S. at 618, 96 S. Ct. at 2245. Wagner, ¶ 16. In Wagner this Court found plain error and reversed the conviction despite the failure of defense counsel to object at trial. However, the factual differences between Wagner and the present case are significant. During an interview with detectives, Wagner said “something to the effect” that he wanted to speak to an attorney and that he did not want to dig himself a deeper hole. The prosecution used that invocation of counsel “in all phases of the trial:” during opening statement, during the case-in-chief, during cross-examination, and in closing argument. Wagner, ¶ 18. The prosecution employed similar tactics in cross- examination and in closing argument in the cases considered by the Supreme Court in Doyle. Doyle, 426 U.S. at 613-16, 96 S. Ct. at 2242-44. ¶37 The State’s questions that Morsette complains of on appeal are similar to those involved in State v. Godfrey, 2004 MT 197, 322 Mont. 254, 95 P.3d 166. In that case the prosecutor asked the defendant about the amount of time he had to “think up an explanation” for what happened, and about whether the defendant’s trial testimony was “the first time that anyone has really heard this explanation.” Godfrey, ¶ 18. Godfrey argued on appeal that the 14 questions were a violation of the Doyle rule and that this Court should undertake plain error review of the issue. ¶38 This Court examined the issue and upheld the conviction. While the questions to Godfrey were “inadvisable,” this Court determined that they “were more a comment on Godfrey’s story than on his silence.” Godfrey, ¶ 37 (emphasis original). The questions asked in the present case are sufficiently similar to those in Godfrey that we reach the same conclusion. The prosecutor here asked questions that attacked the veracity of Morsette’s story and its possible recent fabrication. The questions were more about the story than about any silence. It is not improper for a prosecutor to attempt to convince a jury that a defendant’s story is a recent fabrication. State v. Tadewaldt, 2010 MT 177, ¶ 22, 357 Mont. 208, 237 P.3d 1273. ¶39 Contrasting Wagner, the prosecution here did not make or attempt to make unfair use of Morsette’s comments or silence, if any, after receiving Miranda warnings. The prosecution did not pursue the issue in either opening or closing statements or in the examination of any other witness. The cross-examination of Morsette was more circumspect and focused on the defendant’s alibi—his version of the events on the night in question. Moreover, the prosecutor was given some leeway in the cross-examination as a sanction for Morsette’s failure to disclose the alibi as required by Montana law. Giving deference to the District Court’s decision, we do not find that denial of the motion for a mistrial was irrational or irresponsible under the circumstances. 15 ¶40 Issue Four: Whether Morsette’s conviction should be reversed based upon cumulative error. ¶41 Morsette contends that this Court should reverse his conviction based upon cumulative error. Cumulative error can occur when “a number of errors, taken together, prejudiced a defendant’s right to a fair trial.” State v. Ferguson, 2005 MT 343, ¶ 126, 330 Mont. 103, 126 P.3d 463. The concept of cumulative error should only be applied when there has been error. State v. Brasda, 2003 MT 374, ¶ 36-37, 319 Mont. 146, 82 P.3d 922. ¶42 Having found no error in Morsette’s conviction, we have no occasion to apply the concept of cumulative error. CONCLUSION ¶43 The District Court’s conclusion, following an evaluation of the relevant factors, that Morsette was not denied his right to a speedy trial was correct. Morsette did not establish that his trial counsel’s performance was deficient or that his counsel was ineffective. The prosecutor’s cross-examination of Morsette regarding his alibi did not violate due process. Morsette has not established that cumulative error occurred in his trial. ¶44 Morsette’s conviction is affirmed. /S/ MIKE McGRATH We concur: /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ LAURIE McKINNON 16 /S/ BRIAN MORRIS | September 17, 2013 |
e877e92a-4613-414c-8795-c0e2eaf5a8f5 | Dick Irvin, Inc. v. State | 2013 MT 272 | DA 12-0607 | Montana | Montana Supreme Court | DA 12-0607 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 272 DICK IRVIN INC., Third Party Plaintiff and Appellant, v. STATE OF MONTANA, Third Party Defendant and Appellee. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDV 08-314(b) Honorable Julie Macek, Presiding Judge COUNSEL OF RECORD: For Appellant: William J. Gregoire; Michael L. Rausch; Smith, Walsh, Clarke & Gregorie, PLLP; Great Falls, Montana For Appellee: Maxon R. Davis; Davis, Hattley, Haffeman & Tighe, P.C.; Great Falls, Montana Submitted on Briefs: May 28, 2013 Decided: September 24, 2013 Filed: __________________________________________ Clerk September 24 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Dick Irvin, Inc. (Irvin) appeals from the Order of the Eighth Judicial District Court, Cascade County, denying Irvin’s motion for summary judgment on the issue of duty in its negligence action against the State of Montana and United Rentals Highway Technologies, Inc. (collectively, State) and granting judgment in favor of the State. ISSUES ¶2 The issues on appeal are as follows: ¶3 Did the State owe a statutory, nondelegable duty to Irvin? ¶4 Did the State owe a common law duty to Irvin? ¶5 Was the State vicariously liable for the torts of contractors working on this road project? ¶6 Did the District Court err when it determined Irvin is not entitled to summary judgment? FACTUAL AND PROCEDURAL BACKGROUND ¶7 This case arose after Keith Davies (Davies), who worked for Great Falls Sand and Gravel (GFSG), was run over by a tractor-trailer driven by Paul Tychsen (Tychsen), who worked for Irvin. Davies was directing traffic and had his back to the turning truck when it struck him. ¶8 The incident occurred during a project to construct a Flying J Travel Plaza in Great Falls. To accommodate large semi-trucks and tractors accessing the Plaza, 31st Street Southwest in Great Falls needed to be widened. Flying J hired Deerfield Construction as the 3 general contractor. GFSG subcontracted for the road work. GFSG completed most of the paving in 2004. In 2005, a portion of the roadway remained unpaved. The City of Great Falls requested repaving on a portion. ¶9 Common access to 31st Street Southwest occurs by turning south off Interstate 15 (I- 15) at the airport exit (Gore Hill Interchange). Whether this portion of 31st Street Southwest is a state highway remains in dispute; however, the District Court observed “it appears that the accident itself occurred on a state right of way.” The State did not request or pay for the paving or repaving. At the time of the accident the State was not aware that the City of Great Falls had directed GFSG to do the work or that repaving work was occurring. ¶10 In “Special Provisions” dated March 1, 2000, the State provided supplemental conditions with which the contractors were required to abide. Those provisions required Flying J to: Prior to the start of construction develop and submit to the Engineer for approval, a traffic control management plan to provide for the movement and safety of traffic through the project during construction. Submit a revised plan whenever a change in work schedule significantly effects [sic] traffic control. Provide a traffic control management plan including as a minimum the following requirements… (5) Include the intended traffic control method including flagging and spacing and type of traffic control devices. Provide traffic control in compliance with the current Manual on Uniform Traffic Control Devices. Those provisions also stated: This project (31st Southwest) is a Montana Department of Transportation (MDT) project. The Contractor is required to provide all required submittals and adhere to all applicable MDT standards for construction. Applicable 4 specifications for the roadway construction is the “Standard Specifications for Road and Bridge Construction, 1995 Edition.” The owner will employ a full time representative (engineer) to provide construction inspection services. It is the Contractor’s responsibility to be familiar with all MDT special provisions, standards, specifications, and construction requirements. The provisions required that flaggers provided possess current certification from either the Montana Flagger training program, the ATSSA1 flagger program, or Idaho, Oregon or Washington state flaggers training programs. The record provides no indication that the State required use of flaggers to control traffic, although the State’s Maintenance Chief, David Kelly, testified he advised GFSG that if it did have flaggers it needed to have proper signs in place. ¶11 In April, 2000, before work began, Flying J and the Montana Department of Transportation (MDT) entered into a Memorandum of Agreement (MOA) for Roadway Improvements Interstate 15 Gore Hill Interchange. The MOA provided that “the Developer has proposed a travel plaza…southeast of the Interstate 15 Gore Hill Interchange which will affect the roadway under the authority of MDT…” and that “the parties set forth the duties and responsibilities necessary to address the needs of the traveling public due to the resulting impact on traffic flow on the affected MDT roadway resulting from the Developers proposed actions.” To this end, the MOA required that “…Developer’s contractor shall submit for MDT approval a traffic control plan that is sufficient to protect the traveling public and maintain traffic flow through the construction sites on state roadways.” MDT was to 1 American Traffic Safety Services Association, see https://www.atssa.com/ 5 “[r]eview and approve the Developer/contractor’s submittals related to the traffic control plan.” The MOA specifically provided that the necessary road improvements to the Gore Hill Interchange were “a direct result of the Developer’s proposed action….” ¶12 GFSG contracted with United Rentals to develop a traffic control plan. In September 2004, United Rentals formulated a plan for signage and submitted it to GFSG. GFSG, in turn, submitted the plan to the State of Montana for approval. The plan made general provisions for signage but no specific provision for flaggers. David Kelly reviewed and approved the plan. He testified that he found the plan sufficient to notify people coming off the interstate and frontage roads that they were coming into a construction zone. He also testified that he inspected the work on at least three occasions to look at drainage issues and the quality of some paving. ¶13 The accident occurred on May 11, 2005. GFSG’s paving foreman, Doug Conley, had directed Davies to control traffic coming from the I-15 interchange area at the intersection of 31st Street Southwest and the Tri Hill Frontage Road. Davies was not a certified flagger. Conley did not rely on any traffic control plan; and indeed, did not know GFSG had asked anyone to develop a traffic control plan. ¶14 Tychsen was operating a Kenworth Supertrain, traveling north on Tri Hill Frontage Road. Tychsen came to a full stop at the intersection. Tychsen saw Davies as Davies stood behind construction candles closing off the eastbound land of 31st Street Southwest and leading into the single open lane that normally contained westbound traffic. Tychsen (accessed Aug. 19, 2013). 6 attempted a broad right turn from Tri Hill Frontage Road onto 31st Street Southwest. Davies and Tychsen could see each other as Tychsen’s truck passed. Davies waved Tychsen’s truck by, then turned his back on Tychsen’s moving vehicle. The truck struck Davies, knocking him to the ground and dragging him along the pavement. Davies sustained serious injuries. ¶15 Davies filed a negligence action in the Eighth Judicial District Court, Cascade County, against Irvin. Irvin answered denying negligence. Irvin filed a third-party complaint seeking contribution from the State, alleging the State negligently approved the traffic control plan. Irvin settled Davies’ claims, which were dismissed from the case, leaving Irvin’s third-party claims against the State. Irvin moved for summary judgment on the issue of the State’s duty to Irvin and Davies. The District Court denied Irvin’s motion, holding the State did not owe any duty to Irvin or Davies. Irvin moved for entry of judgment on the District Court’s order denying its motion for summary judgment. The District Court entered judgment in favor of the State. Irvin appealed. STANDARD OF REVIEW ¶16 We review a district court’s denial of summary judgment de novo. Dubiel v. Mont. Dept. of Transp., 2012 MT 35, ¶ 10, 364 Mont. 175, 272 P.3d 66. Summary judgment is proper when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3) (2013). The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of material fact do not exist, 7 the court must then determine whether the moving party is entitled to judgment as a matter of law. Beckman v. Butte-Silver Bow Co., 2000 MT 112, ¶ 11, 299 Mont. 389, 1 P.3d 348 (quoting Bruner v. Yellowstone Co., 272 Mont. 261, 264, 900 P.2d 901, 903 (1995)). ¶17 Ordinarily, questions of negligence are poorly suited to adjudication by summary judgment and are better left for jury determination. Prindel v. Ravalli Co., 2006 MT 62, ¶ 20, 331 Mont. 338, 133 P.3d 189. However, the existence of a legal duty presents a question of law to be determined by the court. State v. Butte-Silver Bow Co., 2009 MT 414, ¶ 20, 353 Mont. 497, 220 P.3d 1115. ¶18 The interpretation and construction of a statute is a matter of law. In re J.D.N., 2008 MT 420, ¶ 8, 347 Mont. 368, 199 P.3d 189. A district court’s interpretation and application of a statute are reviewed de novo. J.D.N., ¶ 8. DISCUSSION ¶19 1. Did the State owe a statutory, nondelegable duty to Irvin? ¶20 Irvin argues on appeal that § 61-8-203, MCA (2003), imposed a statutory duty on the State to place and maintain traffic control devices on highways in conformance with State- issued standards; and that § 61-1-403, MCA (2003), provides a flagger is a traffic control device within the statute. Irvin argues this duty is nondelegable. Moreover, Irvin contends that the statute’s purpose is to protect road workers, like Davies, and the traveling public, like Irvin. 8 ¶21 The State counters that its statutory duty to place traffic control devices on highways is discretionary and delegable. It further asserts that a flagger is not a traffic control device within the statute. The State compares § 61-8-203, MCA (2003), with § 61-8-206, MCA (2003), to illustrate that it does not have the only authority to place traffic control devices on highways in the state. Indeed, § 61-8-314(4)(a), MCA (2003), authorizes a State, a local authority, a utility company or a private contractor to post speed limit signs—which are within the definition of a traffic control device—in work zones. A flagger, the State argues, is not a traffic control device for the purposes of § 61-8-203, MCA (2003), because flaggers are not included within the Manual on Uniform Traffic Control Device’s (MUTCD) definition of traffic control device. Section 61-1-403, MCA (2003), defines “official traffic control devices” to include “flag person” only insofar as a flag person is a device “not inconsistent with” Title 61, it explains. Since Title 61’s definition of a traffic control device refers to the MUTCD definition, which excludes “flag person,” to include flag person in that definition would be inconsistent with Title 61. Further, because § 61-1-403, MCA (2003), speaks in general terms, whereas § 61-8-203, MCA (2003), is more specific, the latter should control. Finally, the State contends that the public duty doctrine precludes the State from having a duty to Davies because the State had no special relationship with Davies. ¶22 Irvin’s reading of the applicable statutes requests we impose a nondelegable duty upon the State to police every construction project on highways within its jurisdiction to ensure that State-imposed safety standards are being followed. We decline to do so. Because we find the statutes do not impose the legal duty on the State Irvin asserts, we do 9 not reach the question of whether the statutes at issue are meant to protect Davies or Irvin from the type of harm that occurred. ¶23 Section 61-8-203, MCA (2003), provides as follows: Department of transportation to place traffic control devices on highways it maintains and approve traffic control devices on highways under its jurisdiction. (1) The department of transportation shall place and maintain traffic control devices, conforming to its manual and specifications, upon all highways maintained by the department of transportation that the department considers necessary to carry out the provisions of this chapter and chapter 9 or to regulate, warn, or guide traffic. (2) A local authority or other entity may not place or maintain a traffic control device upon a highway under the jurisdiction of the department of transportation except with the department's permission. (3) The unauthorized erection of a sign, marker, emblem, or other traffic control device on a highway under the jurisdiction of the department of transportation by any other entity is a misdemeanor and is punishable as provided in 61-8-712. (4) The erection or maintenance of a sign, marker, emblem, or traffic control device on a highway under the jurisdiction of the department of transportation is subject to the rules and specifications that the department adopts and publishes in the interest of public safety and convenience. ¶24 Section 61-1-403, MCA (2003), defines “official traffic control devices” to mean: [A]ll signs, signals, markings, and devices not inconsistent with this title, placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning, or guiding traffic. For the purpose of chapter 8, part 2, of this title, the term also includes “flag person” as defined in 61-1-411. ¶25 Section 61-1-411, MCA (2003), defines a “flag person” as: [A]ny person who directs, controls, or alters the normal flow of vehicular traffic upon a street or highway as a result of a vehicular traffic hazard then present on that street or highway. This person, except a uniformed traffic enforcement officer exercising his duty as a result of a planned vehicular traffic hazard, shall be equipped as required by the rules of the Montana department of transportation. 10 ¶26 When interpreting statutes, a court is bound by a statute’s plain meaning and its task is to simply ascertain and declare what is in terms or substance contained therein, not to insert what has been omitted, or to omit what has been inserted. Section 1-2-101, MCA (2013). We first look to the plain meaning of the words a statute contains. In re D.B.J., 2012 MT 220, ¶ 40, 366 Mont. 320, 286 P.3d 1201. ¶27 a. The State’s statutory duty. ¶28 Section 61-8-203, MCA (2003), “Department of transportation to place traffic control devices on highways it maintains and approve traffic control devices on highways under its jurisdiction,” provides two directions to MDT. MDT must both “place traffic control devices on highways it maintains” and “approve traffic control devices on highways under its jurisdiction.” Section 61-8-203(1), MCA (2003), governs where the State is maintaining a highway. Sections 61-8-203(2)-(4), MCA (2003), apply where the State is not maintaining the highway, but the highway is under State jurisdiction. Where the State is not maintaining a highway, its duty is limited to approving traffic control devices on highways under its jurisdiction. ¶29 ““Maintenance” means the preservation of the entire highway, including surface, shoulders, roadsides, structures, and traffic control devices that are necessary for the safe and efficient use of the highway.” Section 60-1-103(21), MCA (2003). “Preservation” is “keeping safe from harm; avoiding injury, destruction or decay….[and] always presupposes a real or existing danger.” Black’s Law Dictionary 1348 (4th ed., West 1968). Section 60-2- 11 203(1), MCA (2003), directs MDT to “maintain all public highways or portions of public highways that it maintained on July 1, 1976.” Public highways include “(a) federal-aid highways; (b) state highways; (c) county roads; (d) city streets.” Section 60-1-201(1), MCA (2003). The State can delegate maintenance duties to counties or municipalities but remains financially responsible for the work. Section 60-2-204, MCA (2003). In Butte-Silver Bow Co., we observed that State retention of financial responsibility for a road project reflects “ownership and control.” Butte-Silver Bow Co., ¶¶ 20-21. ¶30 i. The State’s duty to place traffic control devices on highways it maintains. ¶31 Here, § 61-8-203, MCA (2003), did not impose a duty on the State to place traffic control devices because the State was not “maintaining” the highway. The project’s purpose was to facilitate access to a new travel station constructed for Flying J’s financial benefit. No “real or existing danger” to the road surface, or need for “preservation,” would have existed if Flying J had not constructed the travel plaza. The MOA provided that the necessary road improvements to the Gore Hill Interchange were “a direct result of the Developer’s proposed action….” The travel plaza construction project did not constitute “maintenance.” ¶32 The fact that the State did not retain financial responsibility for the project further reflects that this was not a maintenance project. Unlike in Butte-Silver Bow Co., neither the State nor the County had retained financial responsibility for the project. Rather, Flying J contracted and paid for all of the highway roadwork for its own financial benefit. 12 ¶33 The purpose of the project was not maintenance; and the State was not conducting, contracting, or paying for the work. Even though the Special Provisions provided the project was an “MDT project,” in this context this characterization cannot be stretched beyond illustrating that the roadway was under State jurisdiction. This is consistent with the terms of the MOA itself, which characterized the road way as “under the authority” of MDT. The State did not have legal responsibility under § 61-8-203(1), MCA (2003), because the State was not “maintaining” the road. ¶34 ii. The State’s duty to approve traffic control devices on highways under its jurisdiction. ¶35 Nor do the facts show the State failed to approve traffic control devices on a highway under its jurisdiction. Even though the classification of the highway on which the accident occurred remains in dispute, we assume it was under State jurisdiction. The characterization of the project as an “MDT project,” or a project under MDT “authority,” tends to show State jurisdiction. As the District Court observed, “it appears that the accident itself occurred on a state right of way.” In addition, the statutes define “public highway” very broadly. See § 60- 1-201(1), MCA (2003). Since MDT was not maintaining the highway, the MOA itself correctly articulated MDT’s duty: “[R]eview and approve the Developer/contractor’s submittals related to the traffic control plan….” ¶36 David Kelly reviewed and approved the traffic control plan in 2004. He testified that he found the plan sufficient to notify people coming off the interstate and frontage roads that they were coming into a construction zone. The State’s duty ended there. GFSG submitted 13 no additional traffic control plans for the State’s approval. The State’s Special Provisions provided: “It is the Contractor’s responsibility to be familiar with all MDT special provisions, standards, specifications, and construction requirements.” ¶37 Further, GFSG was not complying with the 2004 traffic control plan when the accident occurred. Conley did not refer to or rely on any traffic control plan when he decided where to place the construction candles and where to locate the flagger stations. ¶38 Section 61-1-403, MCA (2003), unequivocally indicates that for the purposes of Title 8, section 2, a flagger is a traffic control device. We will not engage in gymnastics of interpretation to arrive at a different result. ¶39 Section 61-8-203, MCA (2003), as noted, requires the State to “approve traffic control devices on highways under its jurisdiction.” (Emphasis added.) This requirement resumes the submission of a plan for approval that sets forth which traffic control devices are to be used. The MOA with the State required that the plan include the traffic control method. The only plan submitted to the State was the September 2004 plan for signage. It made no mention of flaggers. If GFSG wished the State to approve use of flaggers as traffic control devices, it should have included flaggers in the plan it submitted for the State’s approval. The Special Provisions provided that Flying J was responsible for establishing a traffic control management plan including flagging, spacing and type of traffic control devices; providing traffic control in compliance with the MUTCD; and providing certified flaggers. It was GFSG’s responsibility to ensure it operated the construction site in accordance with State standards; the State had no duty to supervise the site. No additional plan was submitted 14 detailing locations of the construction candles or of flagging stations. MDT cannot be held negligent for not reviewing what was not submitted. ¶40 b. Whether the State’s duty was nondelegable. ¶41 We are not persuaded by the cases Irvin cites to suggest the State’s duty is nondelegable. Neither the statutes nor binding precedent indicate that to the extent the State’s duty to maintain safe roads includes placing traffic control devices in work zones, it is nondelegable. The State correctly directs our attention to statutes showing that other entities have statutory authority to place traffic control devices on highways in the state. See §§ 61-8-206, 61-8-314(4)(a), MCA (2003). ¶42 The cases Irvin cites to support its argument that a nondelegable duty applies here would not impose a duty broad enough to hold the State liable under these facts. Even where a nondelegable duty exists, as the court in Harjes v. State of New York suggested, the State “is not required to act as an insurer against all accidents…[and] is not obligated to employ a constant vigilance over its highway network, but only to pursue reasonably plausible measures.” Harjes v. State of New York, 1 A.D.3d 1278, 1279-80 (2010). The court in DiCapo v. City of Opelousas found the State had a nondelegable duty in part because “[t]he trial judge properly concluded that there was no evidence at all on which the jury could find that the City of Opelousas had any legal responsibility for the maintenance of the sidewalk.” DiCapo v. City of Opelousas, 736 So.2d 933, 936 (La. 1999). ¶43 Here, the State pursued reasonably plausible measures within the statutory requirements to ensure road safety when it approved the traffic control plan. It was not 15 required to monitor or police the construction site to make sure the plan was being followed. The District Court properly concluded that the State did not have legal responsibility for the road work at issue here. ¶44 2. Did the State owe a common law duty to Irvin? ¶45 The State has a duty to provide and maintain safe highways for the citizens of the state of Montana. Brohman v. State, 230 Mont. 198, 201-02, 749 P.2d 67, 70 (1988) (citing State v. District Court of the Fourteenth Judicial District, 175 Mont. 63, 67, 572 P.2d 201, 203 (1977)). In District Court, the issue was whether the State could maintain the defense of sovereign immunity in light of the Tort Claims Act. In that context, this Court held that “the Tort Claims Act attaches liability to the State in the same manner and to the same extent that liability attaches to a private person…Whenever and wherever it chooses to build highways it assumes the duty of building and maintaining them safely and is answerable if it fails to do so.” District Court, 175 Mont. at 67, 572 P.2d at 203. ¶46 Since we conclude that this project is not a State maintenance project, we conclude the common-law duty from Brohman and District Court does not apply here. Just as Flying J will be responsible for maintaining its travel plaza, it is responsible for the road work that results directly from constructing the plaza.2 The State’s duties related to Flying J’s work are set forth in the statutes, with which we have concluded the State complied. 2 We observe that while GFSG must comply with the Traffic Control Plan and observe safety standards for the paving project, Flying J is principally responsible for the work associated with constructing its travel plaza. This is true even though the construction work affects a state highway. Flying J’s responsibility displaces any 16 ¶47 3. Was the State vicariously liable for the torts of contractors working on this road project? ¶48 The District Court did not address the issue of vicarious liability. Irvin argues that the State is vicariously liable for contractors’ negligence because road construction work is inherently dangerous and the State owns the road where the accident occurred. Irvin, in arguing that vicarious liability should attach, relies on cases in which there was an employer- employee or contractor-subcontractor relationship. See Beckman, ¶ 12; Ulmen v. Schwieger, 92 Mont. 331, 352-53, 12 P.2d 856, 861-62 (1932). The State argues that for liability to attach there must be some contractual or agency relationship between the State and GFSG, relying primarily on Paull v. Park Co., 2009 MT 321, 352 Mont. 465, 218 P.3d 1198. ¶49 Generally, employers are not liable for torts of their independent contractors. Beckman, ¶ 12. An exception to the general rule exists where the activity is inherently or intrinsically dangerous. Paull, ¶ 19 (citing Beckman, ¶ 12). In Paull, we held that a contractor is vicariously liable for injuries to others caused by a subcontractor’s failure to take precautions to reduce the unreasonable risks associated with an inherently dangerous activity. Paull, ¶ 30. We also held that vicarious liability may attach where an agency relationship exists. Paull, ¶ 38. “Integral to any agency relationship are the elements of potential for State liability under the theory of respondeat superior because Flying J is paying for, designing and contracting the project. In other words, to the extent respondeat superior allows the employer of a contractor or subcontractor to be held liable for the contractor or subcontractor’s torts or negligence, Flying J bears that liability. But we need not reach the question of Flying J’s liability here, because that question has not been presented for our review. 17 consent and control.” Wolfe v. Schulz Refrigeration, 188 Mont. 511, 517, 614 P.2d 1015, 1018 (1979). ¶50 Here, the State was not GFSG’s employer or principal. The State did not contract with GFSG for the road work. The State did not pay GFSG. The State exercised no supervision or control over the construction of the travel plaza and appurtenant paving project, beyond approving the traffic control plan and, potentially, three site visits. Irvin provides no authority on which to base vicarious liability where there is essentially no relationship between the State and the alleged tortfeasor. The State was not GFSG’s employer; no contractor-subcontractor relationship existed between the State and GFSG; and GFSG was not acting as the State’s agent. We need not inquire into whether flagging is inherently dangerous to conclude the State was not vicariously liable for GFSG’s torts. ¶51 4. Did the District Court err when it determined Irvin is not entitled to summary judgment? ¶52 Montana Rule of Civil Procedure 56(c) provides in pertinent part: The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. ¶53 We conclude that no genuine issue of material fact exists. Although the question of whether the section of 31st Street Southwest where the accident occurred is a State highway remains, it is not material. Even where the State delegates maintenance responsibilities to a city or municipality, it retains liability for injuries stemming from negligent maintenance. 18 See generally Butte-Silver Bow Co., ¶ 20. Here, however, we have concluded no “maintenance” occurred; and the project was not under State or municipal control. Rather, we assume 31st Street Southwest is under MDT’s jurisdiction and conclude MDT fulfilled its statutory and common law duties regarding traffic control. ¶54 Irvin is not entitled to judgment as a matter of law. The State had no statutory duty to place traffic control devices, including flaggers, on 31st Street Southwest. The only duty § 61-8-203 imposed was to “approve traffic control devices on highways under its jurisdiction.” The State fulfilled this duty when it approved the traffic control plan. The State’s common law duty to maintain the highways of the State does not apply because we have concluded the construction project at issue did not constitute “maintenance.” Finally, vicarious liability is not appropriate here because the State had barely any relationship to the project beyond approving the traffic control plan. Irvin has failed to show it is entitled to judgment as a matter of law on the issue of the State’s duty and the District Court did not err when it denied Irvin’s motion for summary judgment and granted judgment in favor of the State. ¶55 Affirmed. /S/ MICHAEL E WHEAT We Concur: /S/ JIM RICE /S/ BETH BAKER /S/ PATRICIA COTTER /S/ LAURIE McKINNON 19 | September 24, 2013 |
9b8a8a13-8c0a-4af5-a59b-90e43ab00a7f | Gourneau v. Wolf Point Sch. Bd. | 2013 MT 300 | DA 13-0210 | Montana | Montana Supreme Court | DA 13-0210 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 300 DALTON PAIGE GOURNEAU, deceased, by and through his personal representative ROXANNE GOURNEAU, and ROXANNE GOURNEAU, individually, Plaintiffs and Appellants, v. HENRY H. HAMILL, in his individual capacity and in his official capacity as a District Superintendent, THE WOLF POINT SCHOOL BOARD/THE BOARD OF TRUSTEES, and THE STATE OF MONTANA, Defendants and Appellees. APPEAL FROM: District Court of the Fifteenth Judicial District, In and For the County of Roosevelt, Cause No. DV-11-31 Honorable David Cybulski, Presiding Judge COUNSEL OF RECORD: For Appellants: Solomon S. Neuhardt; Neuhardt Law Firm, P.C.; Billings, Montana For Appellees: Harlan B. Krogh; Crist, Krogh & Nord, LLC; Billings, Montana Submitted on Briefs: August 7, 2013 Decided: October 15, 2013 Filed: __________________________________________ Clerk October 15 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Roxanne Gourneau (Gourneau), acting individually and on behalf of her deceased son, Dalton Paige Gourneau (Dalton), appeals a judgment entered by the Fifteenth Judicial District Court, Roosevelt County, granting summary judgment to the Wolf Point School Board (Wolf Point). The sole issue on appeal is whether Wolf Point is entitled to judgment as a matter of law on Gourneau’s negligence claims. We affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 During his senior year at Wolf Point High School in Wolf Point, Montana, seventeen-year-old Dalton committed suicide in his home. Earlier that fall, Dalton had successfully tried out for the Wolf Point varsity wrestling team. Then, on November 23, 2010, a school counselor observed Dalton “putting a can of chew in his pocket.” Students at Wolf Point High School are prohibited from possessing tobacco at the school. ¶3 Dalton was familiar with Wolf Point’s disciplinary procedures. Dalton’s previous three years at Wolf Point High were characterized by recurrent disciplinary problems, including frequent absences, physical altercations, theft, insubordination, and verbal harassment. Wolf Point disciplined Dalton for these infractions with a variety of warnings and suspensions. ¶4 The Wolf Point High School Parent/Student Handbook provides the school’s policies and procedures for regulating student conduct, including disciplinary provisions. A violation of the prohibition against the “use or possession of drugs and/or 3 paraphernalia, alcohol, or tobacco” constitutes a “level 3 offense,” which at a minimum results in a suspension. ¶5 The Wolf Point Wolves Activities handbook provides disciplinary actions for violations of the Athletic Department Training Rules. The Athletic Department’s rules prohibit the purchase, use and possession of tobacco, and also prohibit the possession of “devices specifically or reasonably associated with alcohol or tobacco or drug use.” The first violation of the tobacco policy results in a sixty-day suspension from all extracurricular activities, including wrestling. Gourneau does not claim that Dalton was unaware of Wolf Point’s disciplinary policies. ¶6 Several Wolf Point staff, including Joseph Paine (Wolf Point’s Principal), Henry Hamill (Superintendent), and Mike Erickson (the Athletic Director), met with Dalton and notified him that he would be suspended from wrestling because of his possession of the tobacco can. Paine advised Dalton that even if Hamill would not overturn the 60-day suspension, Dalton could still appeal the suspension to the Wolf Point School Board. Dalton became distraught when he realized his suspension from wrestling could prevent him from participating in the State tournament that year. Dalton left the school and went home. Later that afternoon, Dalton committed suicide while alone in his home. ¶7 Gourneau, acting individually and on behalf of her deceased son, filed a complaint in 2011 against Wolf Point, the State of Montana, and Henry Hamill, in his individual 4 capacity and in his official capacity as a District Superintendent.1 Gourneau alleged that Dalton’s death was the direct and proximate result of Wolf Point’s negligence. Gourneau’s complaint also alleged other counts related to her negligence claim, including “respondeat superior,” negligent hiring of Henry Hamill, negligent supervision, negligent training, wrongful death and survivorship claims, and negligent infliction of emotional distress. The District Court granted summary judgment to Wolf Point on February 27, 2013. This appeal followed. STANDARD OF REVIEW ¶8 We review de novo an appeal from a district court’s summary judgment ruling. Poole v. Poole, 2000 MT 117, ¶ 13, 299 Mont. 435, 1 P.3d 936. We apply the same standard as the district court: summary judgment should be granted when the pleadings, discovery, and affidavits show “that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” M. R. Civ. P. 56. The party seeking summary judgment initially must demonstrate that no genuine issues of material fact exist. Poole, ¶ 13. When the moving party has met its burden, the non-moving party must “submit evidence of sufficient facts to support a genuine issue of material fact to preclude summary judgment in favor of the movant.” Meadow Lake Ests. Homeowners Ass’n v. Shoemaker, 2008 MT 41, ¶ 38, 341 Mont. 345, 178 P.3d 81. If we determine that genuine issues of fact do not exist, we must then determine whether the moving party is entitled to judgment as a matter of law. Poole, ¶ 13. 1 Gourneau did not pursue the claims against the State of Montana and did not appeal the summary judgment order in favor of Hamill. 5 ¶9 Negligence actions ordinarily involve questions of fact. Poole, ¶ 14. But if the moving party establishes that any one element of negligence lacks a genuine issue of material fact, and the non-moving party fails to come forward with proof that a genuine issue exists, summary judgment is proper. Poole, ¶ 14 (quoting Wiley v. City of Glendive, 272 Mont. 213, 216, 900 P.2d 310, 312 (1995)). DISCUSSION ¶10 Negligence requires a legal duty, breach of that duty, causation, and damages. Krieg v. Massey, 239 Mont. 469, 472, 781 P.2d 277, 278-79 (1989) (citing W. L. Prosser & W. P. Keeton, Prosser and Keeton on Torts § 30, 164-65 (5th ed. 1984)). Whether a legal duty is owed is a question of law. Poole, ¶ 19. The District Court held that Wolf Point did not have a duty to prevent Dalton’s suicide in light of the facts presented by the parties’ submissions. Material facts are identified by looking at the substantive law governing a claim. McGinnis v. Hand, 1999 MT 9, ¶ 6, 293 Mont. 72, 972 P.2d 1126. ¶11 Gourneau argues that disputed material facts defeat Wolf Point’s attempt to establish the absence of a special relationship with Dalton, under which it could be held to a duty to prevent Dalton’s suicide. Gourneau argues that fact questions remain regarding whether Dalton actually possessed tobacco, whether Wolf Point generally disciplined its students consistently, whether Wolf Point disciplined Dalton consistently, and whether Wolf Point had knowledge of Dalton’s state of mind. ¶12 Whether a party owes a legal duty depends largely on whether the allegedly negligent act was foreseeable. Poole, ¶ 20. “As it relates to the existence of a legal duty, 6 foreseeability is ‘measured on a scale of reasonableness dependent upon the foreseeability of the risk involved with the conduct alleged to be negligent.’” Poole, ¶ 20 (quoting Lopez v. Great Falls Pre-Release Serv., Inc., 1999 MT 199, ¶ 27, 295 Mont. 416, 986 P.2d 1081). In other words, duty “is measured by the scope of the risk which negligent conduct foreseeably entails.” Busta v. Columbus Hosp. Corp., 276 Mont. 342, 363, 916 P.2d 122, 134 (1996). The question is whether the defendants reasonably could have foreseen that their conduct could have resulted in injuries to the plaintiff, though “the specific injury need not be foreseeable.” Hinkle ex rel. Hinkle v. Shepherd Sch. Dist. # 37, 2004 MT 175, ¶¶ 28-30, 322 Mont. 80, 93 P.3d 1239. Without foreseeability of any danger of direct injury or any risk from an intervening cause, no duty exists; “in the absence of duty, there is no negligence.” Poole, ¶ 20. ¶13 Generally, a party cannot recover in negligence for the suicide of another “since the act or suicide is considered a deliberate intervening act exonerating the defendant from legal responsibility . . . .” Krieg, 239 Mont. at 471, 781 P.2d at 278. Under some circumstances, a duty to prevent a suicide may exist “when someone is obligated to exercise custodial care over the eventual decedent, is in a position to know about the latter[’s] suicidal potential, and is lax with respect to taking preventive measures.” Krieg, 239 Mont. at 471, 781 P.2d at 278. We noted in Krieg that “[t]hese situations typically involve hospitals or prisons.” Krieg, 239 Mont. at 473, 781 P.2d at 279. ¶14 Even in a custodial context, we have held that a duty does not arise unless the custodian knows or should know of the suicidal tendencies of a prisoner. Pretty On Top 7 v. Hardin, 182 Mont. 311, 317, 597 P.2d 58, 61-62 (1979). For example, in Pretty On Top, after a prisoner committed suicide, the prisoner’s wife claimed that the prison had a duty to prevent the suicide. Pretty On Top, 182 Mont. at 314, 597 P.2d at 60. This Court affirmed the District Court’s grant of summary judgment for the prison because the suicide was not foreseeable where the prisoner “did not have a history of mental disease or emotional disturbances, nor had he attempted suicide previously.” Pretty On Top, 182 Mont. at 314, 318, 597 P.2d at 60, 62. This Court held that “the District Court was required to follow the general rule that suicide is an intentional act and grant defendant’s motion for summary judgment.” Pretty On Top, 182 Mont. at 318, 597 P.2d at 62. ¶15 We held in Kreig that this general rule applies “even more forcefully” where no custodial or special relationship exists. Krieg, 239 Mont. at 472, 781 P.2d at 279. In Krieg, this Court affirmed summary judgment for a landlord when a tenant committed suicide because no duty could be established absent a custodial or special relationship. We also agreed with the District Court’s conclusion that no genuine issues of material fact existed regarding foreseeability because the plaintiff failed to present any evidence that the tenant’s suicidal tendencies were communicated to the landlord. Krieg, 239 Mont. at 473, 781 P.2d at 279. ¶16 We also upheld summary judgment for a defendant for an unforeseeable suicide in a Federal Employers’ Liability Act (FELA) case. In Marazzato v. Burlington N. R.R. Co., an employee of Burlington Northern Railroad Company committed suicide after being placed in an “Alternative Work Location,” known as a “rubber room” among 8 employees. Marazzato v. Burlington N. R.R. Co., 249 Mont. 487, 489, 817 P.2d 672, 673 (1991). The plaintiff presented expert testimony to show that the confinement of an employee to an isolated room where there was no work to be done created a reasonable possibility of harm. Marazzato, 249 Mont. at 490-91, 817 P.2d at 674-75. The plaintiff did not present evidence, however, that the railroad knew or should have known that the unsupervised rubber room could have resulted in foreseeable harm to him. We concluded that when a plaintiff fails to provide any proof that a defendant knew or should have known that its conduct created a reasonable possibility of harm, summary judgment is appropriate. Marazzato, 249 Mont. at 492, 817 P.2d at 675. ¶17 In the present case, we agree with the District Court that Wolf Point owed no legal duty because Dalton’s suicide was unforeseeable by Wolf Point. In support of its motion for summary judgment, Wolf Point introduced evidence of Dalton’s well-documented history of disciplinary problems—including instances where Dalton was subjected to arguably more severe punishments than his wrestling suspension. While Dalton attended Wolf Point High, various teachers formally filled out discipline referral forms for his behavior over thirty times. For these offenses, Dalton was disciplined with numerous detentions, parent-teacher conferences, in-school suspensions, and out-of-school suspensions. No evidence suggests that Dalton ever harmed himself, exhibited dangerous behaviors, or threatened suicide, even when subjected to these repeated reprimands. As the non-moving party, Gourneau had the burden of proving by “competent evidence,” rather than denial or speculation, that a genuine issue of material fact existed. Bridgman 9 v. Union Pac. R.R. Co., 2013 MT 289, ¶ 20, ___ Mont. ___, ___P.3d___. Gourneau did not introduce any evidence indicating that any representative of the school, including Hamill, knew that Dalton presented a potential risk of suicide. Gourneau’s complaint acknowledged that Dalton “had no history of mental health problems or treatment.” ¶18 In light of the facts in the record, Gourneau’s claim of a special relationship is not supported by the law. Dalton was not subjected to any restraint on his personal liberty that triggered a custodial or special relationship. See Morrow v. Balaski, 719 F.3d 160, 170 (3d Cir. 2013) (noting that “every other Circuit Court of Appeals that has considered this issue in a precedential opinion has rejected the argument that a special relationship generally exists between public schools and their students.”); Patel v. Kent Sch. Dist., 648 F.3d 965, 973 (9th Cir. 2011) (“[c]ompulsory school attendance is insufficient to invoke the special-relationship exception”). A “special relationship arising between a particular school and particular students under certain unique and narrow circumstances . . . must be so significant as to forge a different kind of relationship between a student and a school than that which is inherent in the discretion afforded school administrators as part of the school’s traditional in loco parentis authority or compulsory attendance laws.” Morrow, 719 F.3d at 171. Wolf Point did not exercise custodial care over Dalton akin to the care of a hospital or a prison. Dalton was not in custody: as the District Court stated in its order granting summary judgment, Dalton’s suicide occurred in his own home “approximately two hours after school had ended that day.” Gourneau did not present 10 evidence sufficient to show the existence of a special relationship that would support a duty to prevent the suicide. ¶19 Not one of Gourneau’s alleged factual disputes otherwise raises a genuine issue as to foreseeability. The first three of Gourneau’s alleged factual issues—whether Dalton actually possessed tobacco, whether Wolf Point disciplined students consistently, and whether Wolf Point disciplined Dalton consistently—have no bearing on whether Dalton’s suicide was foreseeable by Wolf Point. Gourneau admitted that Dalton “acknowledged to school personnel that he had possessed chewing tobacco on November 23, 2010.” Even if Gourneau had introduced evidence showing that Dalton’s can of chewing tobacco was empty or that Wolf Point inconsistently disciplined its students, those facts alone still could not prove that Wolf Point reasonably could have foreseen Dalton’s suicide. Gourneau’s other asserted issues of fact—for example, whether Dalton fully understood Wolf Point’s disciplinary policies or whether news on student suicides was readily available from local media sources—fail for the same reason. School authorities frequently are called upon to impose sanctions against students violating school policies. Absent evidence demonstrating foreseeability, they cannot be held to a legal duty to predict or prevent in every instance a student’s tragic decision to take his life. ¶20 The sole remaining fact issue, whether Wolf Point had knowledge of Dalton’s state of mind, could—at least in theory—impact the imposition of a duty by affecting foreseeability. The record, however, lacks evidence supporting Gourneau’s assertion. 11 Gourneau points to a response to the following request for admission: “Admit that Dalton Paige Gourneau never threatened to commit suicide.” Gourneau responded, “Plaintiff cannot either admit or deny this Request. It is believed that Dalton told school aide Carol Wallette on November 23, 2010[,] that he should go home and hang himself.” There was no affidavit or deposition testimony from Wallette or any other person with actual knowledge of any statements Dalton may have made to any school employee or official. While we view the facts in a light most favorable to the party seeking to preclude summary judgment, we will not imagine facts to be in the record when they are not. ¶21 It is well settled that a district court may consider only admissible evidence in reviewing a motion for summary judgment. N. Cheyenne Tribe v. Roman Catholic Church, 2013 MT 24, ¶ 21, 368 Mont. 330, 296 P.3d 450; M. R. Civ. P. 56(e)(2); see also Hiebert v. Cascade Co., 2002 MT 233, ¶¶ 30-32, 311 Mont. 471, 56 P.3d 848 (affidavits properly stricken when made without personal knowledge and based upon hearsay evidence). Without an affidavit or other competent evidence to support her claim, Gourneau’s assertion is conclusory and “do[es] not raise a genuine issue of material fact.” Abraham v. Nelson, 2002 MT 94, ¶ 26, 309 Mont. 366, 46 P.3d 628. ¶22 The only evidence that is in the record concerning Dalton’s state of mind is that he was feeling “pretty low” after talking with school administrators. Dalton’s low emotions are certainly understandable. But suspension from athletic activities following a student’s violation of school policy is an ordinary incident of school administration endemic in the relationship between a school and its students. In the absence of facts that 12 could show the school was on notice of any suicidal tendencies, the record does not substantiate Gourneau’s speculation that Wolf Point reasonably should have known Dalton’s state of mind or that its conduct created a reasonable possibility of harm. We conclude that no genuine issues of material fact exist in this case and that Wolf Point is entitled to judgment as a matter of law. CONCLUSION ¶23 The judgment of the District Court is affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ LAURIE McKINNON | October 15, 2013 |
c02649d5-95c2-4cc5-b9b4-151ac2bcf913 | Fletcher v. State | 2013 MT 266 | DA 13-0043 | Montana | Montana Supreme Court | DA 13-0043 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 266 CODY LYNN FLETCHER, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV 12-677(A) Honorable Ted O. Lympus, Presiding Judge COUNSEL OF RECORD: For Appellant: Briana E. Schwandt, Smith & Stephens, P.C.; Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant Attorney General; Helena, Montana Ed Corrigan, Flathead County Attorney; Kalispell, Montana Submitted on Briefs: August 14, 2013 Decided: September 17, 2013 Filed: __________________________________________ Clerk September 17 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. FACTUAL AND PROCEDURAL BACKGROUND ¶1 Cody Fletcher (Fletcher) pled guilty to sexual assault and sexual intercourse without consent in the Eleventh Judicial District, Flathead County, before Hon. Ted O. Lympus (Judge Lympus). Fletcher was represented by attorney Lane Bennett (Bennett) who helped him negotiate a plea agreement with the prosecutor. Pursuant to the agreement, the State would request only 40 years imprisonment with 20 suspended in exchange for Fletcher’s plea of guilty. At his change of plea hearing, Fletcher acknowledged that Judge Lympus was not bound by the plea agreement and that he could face a harsher sentence than that outlined in the plea agreement. ¶2 At sentencing, Judge Lympus handed down an oral order imposing a 40-year sentence with 20 suspended. The sentence also required that Fletcher complete the Sexual Offender Program (SOP) I and II in the Montana State Prison, and imposed a 10-year restriction on eligibility for parole. However, Fletcher interpreted the sentence to require SOP I and II only if professionals determined that he needed such a program, and also believed that he would not need to complete the SOP conditions before becoming eligible for parole. When the written sentence was issued, Fletcher was concerned that the SOP and parole conditions were inconsistent with the oral pronouncement of his sentence in that he was required to complete SOP I and II outright, and he would not be eligible for parole until after completion of these conditions. 3 ¶3 In his petition for Post-Conviction Relief (PCR), Fletcher argued that his sentence was unfair because the judge used personal feelings against him and did not give adequate reason for the 10-year parole restriction, and also asserted an ineffective assistance of counsel claim (IAC). Fletcher never raised the inconsistency of his oral and written sentence in his PCR petition. The District Court dismissed the petition without a hearing. It is from this dismissal that Fletcher now appeals. STATEMENT OF ISSUES ¶4 Issue One: Are Fletcher’s challenges to the legality of his sentence procedurally barred? ¶5 Issue Two: Was Fletcher denied effective assistance of counsel? STANDARD OF REVIEW ¶6 This Court reviews a district court’s denial of a petition for post-conviction relief to determine whether its findings of fact are clearly erroneous and its conclusions of law are correct. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861. We do not review issues raised for the first time on appeal. Ellenburg v. Chase, 2004 MT 66, ¶ 18, 320 Mont. 315, 87 P.3d 473. IAC claims present mixed issues of law and fact which we review de novo. State v. Clary, 2012 MT 26, ¶ 13, 364 Mont. 53, 270 P.3d 88. DISCUSSION ¶7 Are Fletcher’s challenges to the legality of his sentence procedurally barred? ¶8 Fletcher challenges his sentence on the grounds that the District Court’s oral pronouncement at sentencing differed from the written order. He further argues that a 4 hearing should have been conducted to modify or clarify his sentence. However, Fletcher raises both of these arguments for the first time on appeal, so they are barred as a matter of procedure. ¶9 All grounds for post-conviction relief claimed by a petitioner must be raised in the original or amended original petition. Section 46-21-105(1)(a), MCA. We do not review issues raised for the first time on appeal. Ellenburg, ¶ 18. In a PCR petition that includes an ineffective assistance of counsel claim, defendant may raise all claims that were foreclosed by his counsel’s abandonment of appeal. In re Hans, 1998 MT 7, ¶ 19, 288 Mont. 168, 958 P.2d 1175. ¶10 Petitioner states that he raised the inconsistency of his sentence in his PCR petition, as well as in his PCR reply brief. In fact, he raised the issue in neither document. In his PCR petition, Fletcher states that his 10-year parole restriction was handed down without reason, but does not contest the consistency of oral and written judgments. Further, his PCR reply brief raises only an ineffective assistance of counsel claim alleging that Fletcher’s attorney failed to seek clarification of the parole eligibility restriction. Nothing in Fletcher’s motions or briefs at the PCR or trial stage challenges the legality of the oral or written sentence on account of contradictory or ambiguous terms. As such, the inconsistency of his sentence is raised for the first time on appeal, and it is barred as a matter of procedure. ¶11 Was Fletcher denied effective assistance of counsel? ¶12 Fletcher also claims that he was denied effective assistance of counsel when his attorney (1) failed to ensure he understood the plea agreement, (2) failed to seek 5 clarification of the oral and written judgments, and (3) failed to preserve Fletcher’s right to appeal. ¶13 To determine if an individual has received ineffective assistance of counsel, we use the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); State v. Miner, 2012 MT 20, ¶ 11, 364 Mont. 1, 271 P.3d 56. Under this test, the defendant must demonstrate (1) that counsel’s performance was deficient, and (2) that counsel’s deficient performance prejudiced the defendant. Miner, ¶ 11. IAC claims must be grounded on facts in the record and not on mere conclusory allegations. State v. Finley, 2002 MT 288, ¶ 9, 312 Mont. 493, 59 P.3d 1132. If an insufficient showing is made regarding one prong of the test, there is no need to address the other prong. Dawson v. State, 2000 MT 219, ¶ 21, 301 Mont. 135, 10 P.3d 49. ¶14 Under Strickland’s first prong, we examine whether counsel’s conduct fell below an objective standard of reasonableness considering prevailing professional norms, and in the context of all circumstances. Whitlow, ¶ 14. Counsel’s conduct is strongly presumed to be within professional norms, and a plaintiff must “identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Whitlow, ¶ 16 (quoting Strickland, 466 U.S. at 690, 104 S. Ct. at 2066). We then examine these acts or omissions in light of all circumstances to determine whether it falls below the standard of reasonable professional conduct. Whitlow, ¶ 16. Under Strickland’s second prong, we examine whether there is a reasonable probability that counsel’s lack of reasonable professional conduct renders the trial result unreliable or the proceedings fundamentally 6 unfair. Miner, ¶ 12. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice. . .that course should be followed.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2069. ¶15 First, Fletcher’s attorney sufficiently explained the risks and benefits of a guilty plea in this situation. In State v. Cameron, we found that a defendant sufficiently understood the consequences of his plea when his lawyer explained the plea, as well as when the trial judge interrogated him to ensure his understanding. State v. Cameron, 253 Mont. 95, 102, 830 P.2d 1284. Bennett and Fletcher agreed that he had little chance for acquittal at trial because of eyewitnesses and DNA evidence. Bennett’s affidavit demonstrates that he warned Fletcher that the Court could sentence him more harshly than the plea agreement recommendations. Under these circumstances, Bennett’s conduct was that of a reasonable professional, so Fletcher’s claim fails the first prong of Strickland. But even if Bennett had failed to inform his client about the risk of a greater sentence, Fletcher acknowledged at his change of plea hearing that the Court could hand down a harsher sentence than the plea agreement. As such, Fletcher was not prejudiced by his attorney’s failure to explain the plea agreement, so his claim also fails the second prong of Strickland. ¶16 Second, Fletcher was not prejudiced by Bennett’s failure to clarify the ambiguity of the oral judgment or his failure to object to the written judgment. Although the oral version of a sentence is controlling, written judgments may help clarify an ambiguous oral sentence. State v. Lane, 1998 MT 76, ¶¶ 36-40, 288 Mont. 286, 957 P.2d 9; State v. Waters, 1999 MT 229, ¶¶ 31-32, 296 Mont. 101, 987 P.2d 1142. 7 ¶17 Here, the District Court’s oral judgment was certainly ambiguous: [T]he defendant’s consideration for eligibility for parole is restricted from the first 10 years of this sentence. . .[T]he defendant will be required to successfully comflete [sic] –complete the sex offender program SOP Program Level 1, as well as SOP Level 2 prior to being –if that is deemed appropriate by the administrators of the program at Montana State Prison. Both then, SOP I and II are to be –successfully completed prior to consideration for parole eligibility. ¶18 As Fletcher argues, the oral sentence conditions regarding his parole eligibility and SOP requirements could be subject to several possible interpretations. However, Fletcher also concedes that one of those possible interpretations is the sentence outlined by the written judgment: “It was the order of this Court that the Defendant shall not be eligible for parole for ten (10) years. It was further the order of this Court that the Defendant shall not be eligible for parole unless and until he successfully completes Sex Offender Treatment Program I and II.” ¶19 Had Bennett requested clarification of the oral judgment, the judge would have likely clarified his order at that time. Fletcher was not prejudiced simply because he was surprised by the written order’s clarification of his sentence. Because the written order legally clarified the oral sentence, Bennett’s objection to the written order would have had no legal consequence for Fletcher. Further, it is irrelevant that the Flathead Prosecutors prepared the written order because Judge Lympus demonstrated his actual intent by signing the order. Accordingly, Fletcher’s IAC claim regarding inconsistency of sentence fail the second prong of Strickland. 8 ¶20 Finally, Fletcher asserts that Bennett refused to preserve his right to appeal his sentence. But Bennett did not refuse his client’s wish for an appeal, instead, he warned Fletcher that he had slim chance for a successful appeal to this Court because his sentence was legal. Further, Bennett advised Fletcher that the proper remedy for appealing his sentence was at the Sentence Review Board (SRB). This advice is not in error, and it is irrelevant that another lawyer would have acted differently by warning Fletcher about the risks of SRB. State v. Turner, 2000 MT 270, ¶ 7, 302 Mont. 69, 12 P.3d 934. (“The fact that some other lawyer . . . would have done differently . . . is not ground for branding the appointed attorney with the opprobrium of ineffectiveness. . . .”). Therefore, Bennett’s actions were those of a reasonable professional under the circumstances, and Fletcher’s third claim fails the first prong of Strickland. CONCLUSION ¶21 Fletcher’s challenges to the legality of his sentence are procedurally barred. Fletcher was not denied effective assistance of counsel. We affirm the District Court’s denial of Fletcher’s PCR petition. /S/ MICHAEL E WHEAT We Concur: /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ JIM RICE | September 17, 2013 |
8a134240-39b5-4c13-8e6a-f2a157dc8a15 | Barile v. Butte High Sch. | 2013 MT 263 | DA 13-0159 | Montana | Montana Supreme Court | DA 13-0159 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 263 JODY BARILE, d/b/a TRIPP AND DRAGSTEDT APARTMENTS, and JAMES KUSS, Plaintiffs and Appellants, v. BUTTE HIGH SCHOOL, BUTTE SCHOOL DISTRICT NO. 1, BUTTE SCHOOL BOARD, Defendants, ATLANTIC RICHFIELD CO., and JOHN DOES 1 through 10, Defendants and Appellees. APPEAL FROM: District Court of the Second Judicial District, In and For the County of Silver Bow, Cause No. DV 03-51 Honorable Loren Tucker, Presiding Judge COUNSEL OF RECORD: For Appellants: Bernard J. (Ben) Everett, Everett Law, PLLC, Anaconda, Montana Wade J. DaHood, Knight, DaHood, Everett & Sievers, Anaconda, Montana For Appellees: Robert Cameron, KD Feeback, Gough, Shanahan, Johnson & Waterman, PLLP, Helena, Montana Submitted on Briefs: July 31, 2013 Decided: September 17, 2013 Filed: __________________________________________ Clerk September 17 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Appellants Jody Barile, d/b/a Tripp and Dragstedt Apartments (Barile), and James Kuss (Kuss), appeal the denial by the Second Judicial District Court, Silver Bow County, of their motion for judgment as a matter of law and their motion for a new trial. We affirm. ¶2 We address the following issues on appeal: ¶3 Whether the District Court correctly denied Barile’s Rule 50 motion for judgment as a matter of law. ¶4 Whether the District Court correctly denied Barile’s Rule 59 motion for a new trial. PROCEDURAL AND FACTUAL BACKGROUND ¶5 The Tripp and Dragstedt Apartments are located in uptown Butte, Montana. The historical building sits immediately to the west of Butte High School. The building, originally constructed in 1916, was the largest apartment house between St. Paul and Spokane when it was built. The Tripp and Dragstedt Apartments remains Butte’s largest apartment house. The five story brick building houses 36 apartment units plus a penthouse apartment. ¶6 Barile purchased the Tripp and Dragstedt Apartments from the McGree Corporation in 1997. Barile worked with Kuss to restore and remodel the apartment building. Barile and Kuss noticed hairline cracks that started to appear in the building’s exterior brick structure in the early 2000s. ¶7 Butte grew up around mining. The honeycomb of mining tunnels that uncoil beneath the city serve as a living proof of Butte’s mining heritage. Underground mining in the 3 vicinity of the Tripp and Dragstedt Apartments first began in the 1890s with the Travona Mine and the Emma Mine. Of the two mines, the Emma Mine was closer to the current location of the apartment building. ¶8 The Butte Copper & Zinc Mining Company originally owned the Emma Mine. The company began leasing the mine to the Anaconda Copper Mining Company(ACM) in 1942. Mining in the Emma ceased in the 1950s. ACM permanently closed the Emma in 1959 as part of its transition to open pit mining operations at the Berkeley Pit. ACM flooded the Emma’s tunnels with groundwater after the closure. ¶9 Removal of underground material led to various amounts of surface subsidence during underground mining in many areas in Butte. ACM monitored material removed from underground mines and concurrent subsidence of the surface. Mining-related surface subsidence caused incremental settlement of the Tripp and Dragstedt Apartments. The land around the Tripp and Dragstedt Apartments subsided approximately two feet primarily during the 1940s until the mid-1960s. As a result, the building tilted to the southwest approximately 24 inches. ACM paid numerous claims for damage to buildings and structures in Butte caused by mining-related subsidence. ACM paid no claims for damage to the Tripp and Dragstedt Apartments. ¶10 The Atlantic Richfield Company (ARCO) purchased ACM in 1977. ARCO’s purchase included all of ACM’s liabilities. These liabilities came to include claims for property damage caused by mining-related surface subsidence. 4 ¶11 Barile filed an initial complaint in 2003 against Butte High School, Butte School District No. 1, and the Butte School Board (School defendants). Barile alleged that construction of a gymnasium, parking lot, and alley at Butte High School in the 1980s-1990s had caused harm to and deterioration of the Tripp and Dragstedt Apartments. Barile alleged that the Tripp and Dragstedt Apartments received no exposure to sunlight and that the construction activities at Butte High School had deteriorated severely the historic bricks. ¶12 Barile and Kuss added ARCO and Montana Resources, Inc. (MRI) to an amended complaint in 2005 in which they alleged that mining-related subsidence had caused the current damage to the Tripp and Dragstedt Apartments. The amended complaint described the damage as cracking in the exterior brick of the building. Barile also asserted in the amended complaint that the School defendants were liable for having undertaken construction activities in a known subsidence zone. Barile settled with the School defendants. The District Court later dismissed MRI as a party. ¶13 The case against ARCO proceeded to trial. Barile and Kuss claimed that the replacement cost of the Tripp and Dragstedt Apartments would fall between $9,450,000 and $11 million. Barile moved for a judgment as a matter of law at the close of trial on the following issues: (1) that the Tripp and Dragstedt Apartments had been damaged by mining- related subsidence, (2) that no evidence existed of a superseding intervening cause of the current damage to the Tripp and Dragstedt Apartments, and (3) that the replacement cost of $225 to $275 per square foot represents the market value of the loss to the Tripp and Dragstedt Apartments. The District Court denied the motions. 5 ¶14 Barile offered a general verdict form. The District Court refused the general verdict form and instead submitted a special verdict form to the jury. The special verdict’s first question asked whether mining subsidence had caused the current damage to the Tripp and Dragstedt Apartments. The jury did not have to answer subsequent questions if it answered “no” to this first question. The jury determined, by an 11-1 vote, that mining-related subsidence had not caused the current damage to the apartment building. ¶15 Barile filed a motion pursuant to M. R. Civ. P. 50, for judgment as a matter of law, and a separate motion pursuant to M. R. Civ. P. 59, for a new trial. The District Court failed to rule on these motions within 60 days, and, thus, both were deemed denied pursuant M. R. Civ. P. 50(b) and M. R. Civ. P. 59(f). STANDARD OF REVIEW ¶16 We review de novo a district court’s grant or denial of a motion for judgment as a matter of law. Johnson v. Costco Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727. We also review de novo a Rule 59 motion where the alleged insufficiency of the evidence provides the basis for the motion. Stubblefield v. Town of W. Yellowstone, 2013 MT 78, ¶ 14, 369 Mont. 322, 298 P.3d 419, citing Giambra v. Kelsey, 2007 MT 158, ¶ 26, 338 Mont. 19, 162 P.3d 134. DISCUSSION ¶17 Whether the District Court correctly denied Barile’s Rule 50 motion for judgment as a matter of law. 6 ¶18 Barile and Kuss claim that no evidence exists to show that anything but mining- related subsidence could have caused the current damage to the Tripp and Dragstedt Apartments. They cite to the testimony of four witnesses at trial as uncontroverted proof that mining-related subsidence directly caused the damage to the building, namely the cracks in the exterior brick structure. Two of these witnesses were Barile’s experts, geotechnical engineer Douglas Chandler (Chandler) and structural engineer John Schlegelmilch. ARCO presented two expert witnesses: geotechnical and engineering geologist Raymond Womack (Womack) and mining engineer Allen Winters (Winters). ¶19 We have held that a court should grant judgment as a matter of law “only when there is a complete absence of any evidence which would justify submitting an issue to a jury and all such evidence and any legitimate inferences that might be drawn from the evidence must be considered in the light most favorable to the party opposing the motion.” Johnson, ¶ 13 (citations omitted). If reasonable persons could differ regarding conclusions that could be drawn from the evidence, judgment as a matter of law is not proper. Johnson, ¶ 13, citing Kearney v. KXLF Communications, Inc., 263 Mont. 407, 417, 869 P.2d 772, 777-78 (1994). ¶20 The District Court issued an Order Re Surface Subsidence before the trial to which the parties stipulated. The order provides: In accord with the stipulation of the parties, litigation regarding surface subsidence shall proceed as follows: 1. Underground miners and their successors have a duty to avoid surface subsidence. Arco is a successor to the entity which mined under the site of the Tripp and Dragstedt Apartments. Arco has a duty to avoid surface subsidence. 2. Surface subsidence has occurred at the site of the Tripp and Dragstedt 7 Apartments. The duty has been breached. 3. Plaintiffs must prove that surface subsidence caused the damages which they allege. Defendants may defend against causation, including the opportunity to present proof of intervening and superceding causes. 4. Plaintiffs must prove the amount of the alleged damages. Defendants may defend against the claimed damages. ¶21 The parties clearly agreed that mining-related subsidence had occurred on the site of the Tripp and Dragstedt Apartments. The dispute to be resolved at trial involved whether the mining-related surface subsidence had caused the specific damages to the Tripp and Dragstedt Apartments that Barile and Kuss had alleged in their amended complaint. ARCO’s defense focused on whether the damage to the Tripp and Dragstedt Apartments related to intervening and superseding causes. As the order indicates, Barile and Kuss had the burden to prove that mining-related surface subsidence had caused the specific damage that they alleged. ¶22 Barile and Kuss contend that the evidence presented at trial affirmatively established the third element of the Order Re Surface Subsidence. ARCO counters that it provided contradictory evidence through the testimony of Winters. Winters readily admitted that mining-related subsidence had affected the Tripp and Dragstedt Apartments. This admission by Winters mirrors the language in the Order Re Surface Subsidence. The rest of Winters’s testimony clarifies, however, that he does not necessarily associate mining-related subsidence with the current disputed damage to the Tripp and Dragstedt Apartments—the cracks in the exterior brick structure. In fact, Winters indicates the opposite in his testimony. Winters noted that historically mining-related subsidence has caused the Tripp and 8 Dragstedt Apartments to settle to the southwest, but the building currently appears to be settling in the opposite direction toward the northeast. Winters opined that other factors have caused more recent movements or settlements under the apartment building. ¶23 Barile and Kuss presented expert witnesses who disagreed with Winters’s opinion. Winters’s testimony, standing on its own, however, demonstrates that there was not a “complete absence of any evidence which would justify submitting [this] issue to [the] jury.” Johnson, ¶ 13. Winters holds a mining engineering degree and a master’s degree in geological engineering. These credentials made it reasonable for the jury to have found Winters to be reliable and credible. Other expert witnesses may have testified that mining- related subsidence caused the current damage to the Tripp and Dragstedt Apartments. Juries remain free, however, to disregard opinion testimony of experts. Magart v. Schank, 2000 MT 279, ¶ 10, 302 Mont. 151, 13 P.3d 390. ¶24 ARCO also presented other possible causes for the damage to the Tripp and Dragstedt Apartments. ARCO posited that the infiltration of water into the clay-rich sub-grade ground under the building had caused the building to settle. Barile’s expert witness Chandler testified that large quantities of water, likely from broken water pipes from the City of Butte’s water system, sit 15 feet below the Tripp and Dragstedt Apartments. Womack testified for ARCO that water below the Tripp and Dragstedt Apartments has weakened the ground on which the building sits and has caused the building to settle. The City of Butte’s water supply system suffered from leaky delivery systems for many years. This Court’s 9 decision in McDonald v. Washington, 261 Mont. 392, 862 P.2d 1150 (1993), describes the problems associated with the water system. ¶25 ARCO underscored Kuss’s deposition testimony that the Tripp and Dragstedt Apartments had “rocked and rolled” during the construction of Butte High School’s parking lot to highlight to the jury the fact that construction activities at Butte High School may have caused the current damage to the apartments. The jury also heard Kuss’s deposition testimony that during the construction at Butte High School there were “pictures falling off of people’s walls, fluorescent light covers in the hallway were coming down. People’s dishes were coming out of their cabinets, kitchen cabinets.” ARCO further cross-examined Barile and Kuss regarding the former lawsuit against the School defendants. Barile and Kuss conceded that they had alleged that construction activities at Butte High School in the late 1990s had caused damage to the Tripp and Dragstedt Apartments. ¶26 As this testimony indicates, ARCO produced sufficient evidence to cast doubt in a juror’s mind as to whether mining-related subsidence actually had caused the current damage alleged by Barile and Kuss. Reasonable persons could find that factors other than mining- related subsidence had caused the current damage to the Tripp and Dragstedt Apartments. The testimony of Winters, the other experts, and Barile and Kuss demonstrate that there was not “a complete absence of any evidence which would justify submitting an issue to a jury.” Johnson, ¶ 13. The District Court properly denied Barile and Kuss’s motion for judgment as a matter of law as ARCO’s evidence was not so lacking “that a reasonable jury would not 10 have a legally sufficient evidentiary basis to find for the party on that issue.” M. R. Civ. P. 50 (a)(1). ¶27 Barile argues in the alternative, that ARCO presented no substantial credible evidence to support submitting to the jury the issue of whether there existed a superseding intervening cause of damage to the Tripp and Dragstedt Apartments. The second question on the special verdict form asked the jury whether an intervening superseding cause had cut off ARCO’s liability. The jury never reached this question because they answered “no” to the special verdict form’s first question regarding whether mining subsidence had caused the current damage to the Tripp and Dragstedt Apartments. Where “the jury did not consider the issue of intervening cause in reaching its verdict, we conclude that the District Court’s instructions on intervening cause had no effect on the outcome of the trial.” Pula v. State, 2002 MT 9, ¶ 34, 308 Mont. 122, 40 P.3d 364. ¶28 Whether the District Court correctly denied Barile’s Rule 59 motion for a new trial. ¶29 Barile and Kuss argued in support of the Rule 59 motion that no substantial credible evidence supported the jury’s verdict. We do not ask whether the jury made the right decision when we review whether sufficient evidence supports a jury’s verdict. Stubblefield, ¶ 15, citing Wise v. Ford Motor Co., 284 Mont. 336, 343, 943 P.2d 1310, 1314 (1997). We ask instead whether substantial credible evidence in the record supports the jury’s verdict. Stubblefield, ¶ 15, citing Wise, 284 Mont. at 343, 943 P.2d at 1314. ¶30 Evidence qualifies as substantial and credible if a reasonable mind might accept it as adequate to support a conclusion. Stubblefield, ¶ 15, citing C. Haydon Ltd. v. Mont. Min. 11 Props., Inc., 286 Mont. 138, 151, 951 P.2d 46, 54 (1997). Substantial credible evidence may support a jury’s verdict even if other evidence contradicts it or the evidence is inherently weak. Stubblefield, ¶ 15, citing D.R. Four Beat Alliance, LLC v. Sierra Prod. Co., 2009 MT 319, ¶ 23, 352 Mont. 435, 218 P.3d 827. We must review all evidence and draw all inferences in a light most favorable to the non-moving party. Stubblefield, ¶ 18, citing Campbell v. Canty, 1998 MT 278, ¶ 19, 291 Mont. 398, 969 P.2d 268. ¶31 ARCO disputed the claim that mining-related subsidence had caused the current damage to the Tripp and Dragstedt Apartments. The testimony of Winters, other experts’ testimony about the probable water infiltration, and Barile’s and Kuss’s testimony regarding damage associated with construction activities at Butte High School undermine the claim by Barile and Kuss that unequivocal evidence exists that mining-related subsidence has caused the current damage to the Tripp and Dragstedt Apartments. ARCO provided sufficient evidence that could have sown seeds of doubt in jurors’ minds whether the current damage actually had been caused by mining-related subsidence. Stubblefield, ¶ 15, citing Wise, 284 Mont. at 343, 943 P.2d at 1314. ¶32 Affirmed. /S/ BRIAN MORRIS We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER 12 /S/ JIM RICE | September 17, 2013 |
49813206-105b-4ff2-ba4a-7fc458e601a7 | Livingston v. Park Conservation Dist. | 2013 MT 234 | DA 13-0121 | Montana | Montana Supreme Court | DA 13-0121 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 234 THE CITY OF LIVINGSTON, MONTANA, Petitioner and Appellant, v. PARK CONSERVATION DISTRICT, Respondent and Appellee, v. HEART K RANCH, Intervenor. APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DV 2012-8 Honorable Wm. Nels Swandal, Presiding Judge COUNSEL OF RECORD: For Appellant: Bruce E. Becker, Livingston City Attorney, Livingston, Montana For Appellee: Donald D. MacIntyre, Attorney at Law, Helena, Montana Brett Linneweber, Park County Attorney, Livingston, Montana For Intervenor: Karl Knuchel, Erik Coate, Attorneys at Law, Livingston, Montana Submitted on Briefs: July 31, 2013 Decided: August 20, 2013 Filed: __________________________________________ Clerk August 20 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 The City of Livingston appeals from the District Court’s “Order Affirming Decision of PCD” [Park Conservation District], filed January 7, 2013. We affirm. ¶2 On appeal the City contends that the District Court erred in upholding the PCD’s decision that a certain channel adjacent to the Yellowstone River is part of the natural watercourse of the Yellowstone River and therefore subject to the Natural Streambed and Land Preservation Act, § 75-7-101, et seq, MCA. The City contends that the PCD decision was arbitrary and capricious, characterized by an abuse of discretion or a clearly unwarranted exercise of discretion. PROCEDURAL AND FACTUAL BACKGROUND ¶3 The disputed channel is adjacent to the Yellowstone River near Livingston, Montana, and has been used since the nineteenth century to obtain Yellowstone River water to satisfy water rights currently held by Heart K Ranch. The Yellowstone River flows into the channel when water levels are high and returns to the main channel of the River downstream. Heart K has no headgate on the River, and has to remove accumulated rocks, gravel and other materials to allow River water into the channel in times of lower flows. The City owns land adjacent to the channel and contends that Heart K’s maintenance activities in the channel have harmed the City’s property. The PCD has reviewed and permitted Heart K’s maintenance activities in the channel as provided in the Natural Streambed and Land Preservation Act of 1975, § 75-7-101 through -125, MCA. The City contends that the channel does not fall under the Act and that the PCD therefore has no authority to permit Heart K’s maintenance activities. 3 ¶4 In April 2011, the City petitioned the PCD for a declaratory ruling under § 75-7-125, MCA, which provides for rulings to “determine the applicability, interpretation, or implementation of any statutory provision or any rule” adopted under the Act. The PCD accepted the petition on the narrow issue of whether the channel in question is subject to the permitting process in the Act, or whether, as the City contends, the channel is actually an irrigation ditch not subject to the Act. There is no dispute that the Yellowstone River itself is subject to the Act. ¶5 The PCD appointed Laurie Zeller, Bureau Chief of the Conservation Districts Bureau of the Montana Department of Natural Resources and Conservation as hearing officer for the declaratory ruling proceeding. The PCD, Heart K, the City, the Montana Department of Fish, Wildlife & Parks, and others submitted exhibits and information. There was a public hearing in September 2011, to receive relevant testimony, and the hearing officer conducted a site visit. The hearing officer made findings of fact and issued a recommended decision. On December 8, 2011, the PCD issued its Declaratory Ruling that the channel is a flood channel, high water channel, or side channel of the Yellowstone River, and is therefore subject to the Act. ¶6 The PCD applied the Act along with its own administrative rules and those adopted by the Department of Natural Resources and Conservation.1 Considering the totality of the circumstances, the PCD determined that the Yellowstone River is a dynamic river system in the area of the channel and that it frequently changes channels due to scouring and deposition 4 of river materials during high water. During this process, islands of gravel deposits form and then wash away, and side channels, including the channel at issue, are overtaken by the flows and become part of the River. ¶7 The channel at issue is within this migration zone of the Yellowstone River, and water in the channel comes from the natural flow of the River. Any water not taken from the channel for irrigation returns to the main channel of the River. The PCD examined aerial photos, maps, and the actual area during a site visit, and found no evidence of spoil piles to indicate that the channel is a man-made ditch. The PCD found no evidence of a headgate to divert water into the channel, although there was a diversion wing of river rock that served to direct some Yellowstone River flow into the channel. ¶8 The PCD found that the channel is part of the Yellowstone River, and is shaped by high water flows that naturally enter the channel. During some flows gravel and debris accumulate at the opening of the channel. Heart K has removed these accumulations, subject to permits from PCD under the Act, so that Yellowstone River water will flow down the channel. ¶9 The City petitioned the District Court for judicial review of the PCD decision. The District Court upheld the PCD and the City appeals. STANDARD OF REVIEW ¶10 The standard of review of a conservation district’s declaratory ruling is set out in § 75-7-125(4), MCA. Under that statute, a court on judicial review may reverse or modify the 1Section 75-7-117, MCA, requires both the Department of Natural Resources and Conservation and the conservation districts to adopt rules to implement the Natural Streambed and Land Preservation 5 conservation district’s declaratory ruling only if substantial rights of the appellant have been prejudiced because the decision violates constitutional or statutory provisions; is in excess of statutory authority; is affected by error of law; or is arbitrary or capricious, characterized by abuse of discretion or a clearly unwarranted exercise of discretion. A decision is arbitrary if it comes about seemingly at random or by chance or as a capricious and unreasonable act of will. It is capricious if it is the product of a sudden, impulsive and seemingly unmotivated notion or action. Silva v. City of Columbia Falls, 258 Mont. 329, 335, 852 P.2d 671, 675 (1993); Keily Const. v. City of Red Lodge, 2002 MT 241, ¶ 69, 312 Mont. 52, 57 P.3d 836. Under this standard a court may not alter a decision merely because the record contains inconsistent evidence or evidence that might support a different result. Keily, ¶ 69. DISCUSSION ¶11 The Legislature enacted the Natural Streambed and Land Preservation Act to further the goals of Article II, sec. 3 and Article IX of the Montana Constitution, and to establish the policy that Montana’s “natural rivers and streams and the lands and property immediately adjacent to them” be “protected and preserved.” Section 75-7-102, MCA. A person intending to engage in a “project” to alter or modify the “state of a natural, perennial-flowing stream or river, its bed, or its immediate banks” must notify the applicable local conservation district. Sections 75-7-103(5) and -111, MCA; Bitterroot River Protection Assoc. v. Bitterroot Conservation District, 2002 MT 66, ¶ 10, 309 Mont. 207, 45 P.3d 24 (Bitterroot I). The District then reviews the proposal and may deny, approve, or approve with modifications. Section 75-7-112, MCA. Heart K has used this process to obtain review and Act. 6 approval of its projects to remove accumulated river materials at the upstream end of the channel, to allow water to continue to flow down the channel in times of lower flows on the Yellowstone River. Montana law recognizes that natural stream channels may be used to convey water for appropriation. Section 85-2-411, MCA; Hidden Hollow Ranch v. Fields, 2004 MT 153, ¶ 31, 321 Mont. 505, 92 P.3d 1185. ¶12 The provisions of the Act apply to a stream, defined as a “natural, perennial-flowing stream or river, its bed and its immediate banks.” Section 75-7-103(6), MCA. Implementing rules adopted by the Department of Natural Resources and Conservation define a “stream” under the Act as “a stream which in the absence of diversion, impoundment, appropriation, or extreme drought flows continuously at all seasons of the year and during dry as well as wet years.” Admin. R. M. 36.2.402(7). The corresponding rule of the PCD applies the Act to “projects on a natural perennial-flowing stream, or portions thereof, including its bed, immediate banks, and channels.” PCD Rule 5(2). The PCD rules further provide that a natural waterway includes “[f]lood channels, high water channels, and side channels of natural, perennial-flowing streams . . . if water naturally enters the channels during high water or normal flow.” PCD Rule 5(5)(a)(iv). The City does not contest the validity or applicability of these rules. ¶13 A conservation district, when considering whether a river or a portion of it falls under the Act, must base its decision on the “totality of the circumstances demonstrated by the factual record.” Bitterroot River Protective Assoc. v. Bitterroot Conservation District, 2008 MT 377, ¶ 40, 346 Mont. 507, 198 P.3d 219 [Bitterroot II]. This determination should not be based upon “technical definitions” that “would be inconsistent with our State’s legal 7 principles.” Bitterroot II, ¶ 34. The “nature of the channel” itself is an important consideration. Bitterroot II, ¶ 42. ¶14 Here it is uncontested that the Yellowstone River itself is a “stream” covered by the Act. It is also clear that the channel at issue is a contiguous channel to the Yellowstone River, and that portions of the River’s water naturally flow through the channel in times of higher water. Those facts make the channel part of the bed of the Yellowstone River under the DNRC rules, and make it a channel of the River under the PCD rules. This is also consistent with a declared goal of the Act, to protect and preserve “natural rivers and streams and the lands and property immediately adjacent to them.” Section 75-7-102(2), MCA. ¶15 The City contends that the District Court should not have upheld the decision of the PCD because its declaratory ruling was arbitrary or capricious. The City points to various documents in the record in which the disputed channel was referred to as a “ditch,” arguing that the PCD ignored this evidence. In the present case the issue is whether the channel is part of the natural channel of the Yellowstone River, or is a man-made ditch. The City has not shown that any of these references to a ditch arose in the context in which a decision- maker decided the contested issue of whether the channel was a man-made ditch or part of the natural channel of the River. The fact that water right claimants and others may have referred to a ditch or to points of diversion therefore has marginal relevance to the issue of whether this specific channel comes under the Act. The PCD was not required to defer to references to the channel as a ditch when the actual physical characteristics of the channel clearly showed that it was natural and not a man-made ditch. Moreover, there are other historic documents that refer to the channel as a channel, slough, side channel or secondary 8 channel of the Yellowstone River. Significantly, the PCD found no physical evidence on the ground that the channel had been constructed as a ditch. ¶16 It is clear that the PCD decision should not be reversed simply because there is evidence in the record that could support a different result. Keily, ¶ 69. The City’s burden in this case is to show that the decision was “random, unreasonable, or seemingly unmotivated based on the existing record.” Silva, 258 Mont. at 335, 852 P.2d at 675. Here the PCD relied upon numerous pieces of evidence to support its decision, including photographs, maps, historic documents and a site visit. The PCD reasonably reconciled the evidence, including references in the historic record, when considering the status of the channel under the Act. The PCD explained the situation in its decision: In reviewing the record, in order to come to an understanding of the totality of the circumstances, the Supervisors looked at the documents to discern how the “Channel” has been described. The Supervisors recognize that the information in the record is contradictory. Some documents refer to the “Channel” as a ditch or canal, while other documents refer to it as a natural water course, side channel, secondary channel, or slough. Also, in reviewing the record, the Supervisors recognize that the “Channel” has been used and continues to be used as a water conveyance system. Standing alone, the information regarding the use of the “Channel” as a conveyance system does not tip the scale in either direction. Whether the “Channel” is a ditch or a natural waterway, both may, as a matter of law, be used to transport irrigation water. While not determinative the findings do establish the lawful use of the “Channel” as a conveyance system. In the analysis of the totality of the circumstances, fully recognizing the use of the “Channel” as part of an irrigation conveyance system, the greater weight of the information as outlined in Findings of Fact Numbers 16 through 24, 26 and 28, support a holding that the “Channel” is a natural waterway rather than a ditch. Such a determination is well within the policy of the Act that natural rivers and their channels are to be protected and preserved to be available in their natural or existing state. 9 The City has failed to show that the PCD reached its decision in an arbitrary or capricious manner. ¶17 The decision of the District Court upholding the decision of the PCD is affirmed. /S/ MIKE McGRATH We concur: /S/ BETH BAKER /S/ BRIAN MORRIS /S/ LAURIE McKINNON /S/ JIM RICE | August 20, 2013 |
f78a3cbc-6ed5-42d6-887a-181017e95557 | Bates v. Neva | 2013 MT 246 | DA 13-0012 | Montana | Montana Supreme Court | DA 13-0012 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 246 JIM BATES, Petitioner/Respondent and Appellee, v. LAURA LEE NEVA, Respondent/Charging Party and Appellant. APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Stillwater, Cause No. DV 12-39 Honorable Blair Jones, Presiding Judge COUNSEL OF RECORD: For Appellant: Patricia D. Peterman, Michael F. McGuinness; Patten, Peterman, Bekkedahl & Green, PLLC; Billings, Montana For Appellee: Jim Bates, self-represented; Fishtail, Montana Submitted on Briefs: June 26, 2013 Decided: September 3, 2013 Filed: __________________________________________ Clerk September 3 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Appellant Laura Lee Neva (Neva) alleges that Appellee Jim Bates (Bates) violated Montana’s Human Rights Act (the Act) by halting necessary repairs to the commercial building she rented from him because she rebuffed his sexual advances. Section 49-2-304, MCA (the Public Accommodation Provision), makes it unlawful for a place of public accommodation to deny to a person its “services, goods, facilities, advantages, or privileges” because of a person’s sex. Section 49-2-305, MCA (the Real-Estate Transaction Provision), makes it unlawful for an owner, lessor, or manager of a “housing accommodation or improved or unimproved property” to discriminate in the use, sale, lease, or rental of the property because of a person’s sex. In her complaint to the Human Rights Commission (the Commission), Neva alleged violation of the Public Accommodations Provision but made no mention of the Real-Estate Transaction Provision. The Commission nevertheless found that Bates violated the Real-Estate Transaction Provision by sexually harassing Neva while she was leasing commercial space from him. The District Court reversed that decision, holding that the Commission’s action violated Bates’s right to due process. We reverse, and address the issue: ¶2 Did the District Court err by concluding due process principles prohibited the Commission from ruling that Bates violated § 49-2-305, MCA, when Neva only specified a violation of § 49-2-304, MCA, in her pleadings? 3 FACTUAL AND PROCEDURAL BACKGROUND ¶3 During June 2009, Neva agreed to rent from Bates a commercial building she hoped to turn into an art gallery. The building was not immediately tenantable, however. Its roof leaked and other repairs were needed before it was suitable for customers and safe to display artwork. Bates and Neva came to an agreement: Bates would pay for materials and make the repairs; in return, Neva would help with repairs, would not pay rent until the repairs were complete, and would receive a month’s free rent once the building was ready to open for business. While they worked together during July 2009 to make the premises tenantable, the repairs were still unfinished months later, and Neva vacated the building without ever having paid rent. ¶4 On January 21, 2010, Neva filed a handwritten complaint with the Commission entitled “Sexual Harassment by Landlord.” Neva alleged Bates sexually harassed her in person, over the telephone, and by email. Two weeks later, Neva filed an amended complaint, alleging that Bates was her landlord and that he had stopped making necessary repairs to the building when she rebuked his sexual advances, and, as a result, she was forced to find an alternative location. Neva claimed that Bates’s conduct violated the Public Accommodation Provision of the Act. Neither the complaint nor the amended complaint mentioned the Real-Estate Transaction Provision. Bates answered, denying the allegations of sexual harassment and arguing that Neva was never his tenant. In subsequent briefing, Neva and Bates argued over whether Neva was a tenant. Neva alleged that as a tenant she had the right to be free from discrimination from her landlord. 4 Bates argued that no tenancy existed because he and Neva had never agreed to specific terms. ¶5 On August 29 and 30, 2011, a contested-case hearing was conducted by a hearing officer. Neva and Bates testified. Neva described numerous instances of inappropriate conduct by Bates that made it uncomfortable for her to be in the building. Bates would routinely stand unnecessarily close to Neva while she was working. Once Bates grabbed her right breast to “get her attention.” He told her once that there was a “problem” because he “didn’t know what color underwear [she] was wearing.” Another time, while Neva was on her hands and knees planting flowers, Bates approached her holding a strawberry in front of his crotch, telling Neva to “open up and eat this.” On another occasion when Neva was working on her knees, Bates made a comment about Monica Lewinsky. When Neva was using a power blower to clear debris from the roof, Bates told her “what a nice blow job” she was doing. Neva said that Bates would telephone to tell her that he was “naked” and getting in the shower and “just wanted to give [her] some food for thought.” The hearing examiner also admitted six emails Bates sent Neva over a two-day period in July 2009. In part, the emails discussed upcoming plans for repairs, but they also contained explicit sexual comments. Neva testified she never gave Bates reason to think his advances were welcome, but that she was careful not to upset him because she had yet to receive a written lease and was afraid he would renege on their verbal agreement. When she finally told Bates that he was “nothing but a landlord” to her, he stopped making repairs. 5 ¶6 Bates explained that he had never prepared a written lease for Neva because rent was not due until the repairs were completed, but testified to aspects of a tenancy relationship between them. Bates conceded he convinced Neva to rent the building instead of purchasing because of the disrepair, and because he felt it would be unwise for Neva, a new business owner, to incur so much debt. According to Bates, he did not withhold repairs because Neva rebuffed his advances; rather, he was unable to continue repairs because Neva installed a security system and refused him access to the building. Bates admitted to sending the emails to Neva and explained that he continued to send them even after she did not respond because he took her silence to mean she was not offended. Bates could not recall whether he had commented on Neva’s underwear, but said it would not surprise him because that was the type of “wisecracks” he routinely made. ¶7 The hearing officer determined that Bates had sexually harassed Neva, and described Bates’s conduct as “severe,” “persistent,” and “patently unwelcome.” He found that Bates discontinued making repairs because Neva rejected his advances and refused to grant him “unfettered access to the premises.” However, the hearing officer concluded that Bates’s conduct did not violate the Public Accommodations Provision because Bates’s building was private property not open to the public. Without citing the Real-Estate Transaction Provision, the hearings officer concluded that the Act only prohibited discrimination in housing leases, not commercial leases: “The [Act] does not 6 address illegal discrimination in commercial, as opposed to housing, leases between private individuals.” ¶8 Neva appealed to the Commission, arguing the hearing officer had erred by concluding the Act did not prohibit discrimination in commercial-lease settings. The Commission agreed with Neva, reasoning that the term “improved or unimproved property” in the Real-Estate Transaction Provision broadly applied to “all types of real estate,” including commercial property. The Commission reversed the hearing officer’s dismissal and remanded the case to the hearing officer with leave to take additional evidence as necessary to “determine an appropriate damage award.” ¶9 Bates petitioned the District Court for judicial review of the Commission’s decision. He argued that the Commission erred by (1) analyzing Neva’s discrimination claim under the Real-Estate Transaction Provision, and (2) concluding the Act applied to commercial leases. Concurring with Bates’s first argument, the District Court vacated the Commission’s decision and reinstated the hearings officer’s dismissal of Neva’s complaint. The District Court reasoned that while Bates may have violated the Real-Estate Transaction Provision, § 49-2-305, MCA, Neva never alleged such discrimination. The District Court concluded that allowing Neva to recover under a statute she never cited would violate Bates’s due process rights: While the Commission determined that the Department had jurisdiction over Neva’s Complaint under § 49-2-305, MCA, Neva pled and argued her claim under § 49-2-304, MCA. It is not the province of the Commission or this Court to re-characterize a specific claim brought under a specific statute on behalf of a complainant. Because Neva never requested relief under § 49-2-305, MCA, it would be a violation of Bates’ due process 7 rights to allow her to recover on this basis on remand. Notwithstanding Neva’s argument that Bates was on notice of a possible claim under § 49-2- 305, MCA, it is not Bates’ responsibility to guess what is or might be the appropriate statutory claim providing Neva the opportunity for relief. Thus, the District Court did not reach the issue of whether the Act applied to commercial leases. Neva appeals. STANDARD OF REVIEW ¶10 We review an agency’s findings of fact to determine if they are clearly erroneous. Section 2-4-704(2)(a)(v), MCA; Owens v. Mont. Dept. of Revenue, 2007 MT 298, ¶ 12, 340 Mont. 48, 172 P.3d 1227. We review an agency’s conclusions of law to determine if they are correct. Section 2-4-704(2)(a)(iv), MCA; Owens, ¶ 12. DISCUSSION ¶11 The Act prohibits discrimination “on the basis of race, creed, religion, color, sex, physical or mental disability, age or national origin” in certain enumerated settings. Arthur v. Pierre Ltd., 2004 MT 303, ¶ 16, 323 Mont. 453, 100 P.3d 987; see §§ 49-2-303, MCA through 49-2-310, MCA. Two of those settings are relevant here: places of public accommodation and real-estate transactions. The Public Accommodation Provision provides: [I]t is an unlawful discriminatory practice for the owner, lessee, manager, agent, or employee of a public accommodation: (a) to refuse, withhold from, or deny to a person any of its services, goods, facilities, advantages or privileges because of sex[.] Section 49-2-304(1)(a), MCA. The Real-Estate Transaction Provision provides: 8 It is an unlawful discriminatory practice for the owner, lessor, or manager having the right to sell, lease, or rent a housing accommodation or improved or unimproved property or for any other person: . . . (b) to discriminate against a person because of sex . . . in a term, condition, or privilege relating to the use, sale, lease or rental of the housing accommodation or property[.] Section 49-2-305(1)(b), MCA. Sexual harassment is a form of sexual discrimination because it constitutes discrimination on the basis of the victim’s sex. See Harrison v. Chance, 244 Mont. 215, 220-21, 797 P.2d 200, 203-04 (1990) (holding “sexual harassment is sexual discrimination under the Montana Human Rights Act.”). ¶12 Did the District Court err by concluding due process principles prohibited the Commission from ruling that Bates violated § 49-2-305, MCA, when Neva only specified a violation of § 49-2-304, MCA, in her pleadings? ¶13 The District Court concluded, without citation, that “[b]ecause Neva never requested relief under § 49-2-305, MCA [the Real-Estate Transaction Provision], it would be a violation of Bates’s due process rights to allow her to recover on this basis on remand.” Neva asserts error because her claim has always been that Bates, as her landlord, sexually harassed her and retaliated against her by halting building repairs when she refused his advances. She argues that, from the beginning, “Bates was aware of and has had a full opportunity to defend himself against each of Neva’s claims.” Bates counters that he “did not have notice of [a § 49-2-305, MCA] claim and did not have the opportunity to defend that claim. . . .” because “[a]ll pleadings and other filings submitted 9 by Neva in connection with the contested hearing phase of this litigation alleged discrimination in the area of public accommodation only.” ¶14 Both the Fourteenth Amendment to the United States Constitution and Article II, § 17 of the Montana Constitution provide that no person shall be deprived of property “without due process of the law.” It is axiomatic that “‘due process is flexible and calls for such procedural protections as the particular situation demands.’” State v. West, 2008 MT 338, ¶ 32, 346 Mont. 244, 194 P.3d 683 (original brackets omitted) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 1600 (1972)). “Indeed, ‘the very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.’” West, ¶ 32 (original brackets omitted) (quoting Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 1748 (1961)). “Rather, ‘“asserted denial of due process of law is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.”’” West, ¶ 32 (original brackets omitted) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 850, 118 S. Ct. 1708, 1719 (1998) in turn quoting Betts v. Brady, 316 U.S. 455, 462, 62 S. Ct. 1252, 1256 (1942)). ¶15 Consistent with this description of due process as “flexible,” we have, on occasion, permitted the resolution of issues not specifically raised in a civil complaint. While it is “generally accepted” that a plaintiff “cannot recover beyond the case stated by 10 him in his complaint[,]” Gallatin Trust & Sav. Bank v. Darrah, 152 Mont. 256, 261, 448 P.2d 734, 737 (1968), Rule 15(b) of the Montana Rules of Civil Procedure provides that an issue not explicitly pleaded but nonetheless “tried by the parties’ express or implied consent” is to be “treated in all respects as if raised in the pleadings.” Reilly v. Maw, 146 Mont. 145, 154-55, 405 P.2d 440, 446 (1965) (quoting Rule 15(b)) (affirming district court’s finding of oral contract even though the “existence of an oral contract is not claimed in the plaintiffs’ complaint”); see also McJunkin v. Kaufman & Broad Home Systems, Inc., 229 Mont. 432, 437, 748 P.2d 910, 913 (1987) (“Under Rule 15(b), M.R.Civ.P., when issues not raised by the pleadings or amended by the pretrial order are tried by the express or implied consent of the parties, they shall be treated as if raised in the pleading.”) (emphasis added). Rule 15(b) is carefully cabined, so to avoid “question[s] of due process,” to the uncommon situation when an issue not pled is tried by the “parties’ express or implied consent.” Brothers v. Surplus Tractor Parts Corp., 161 Mont. 412, 418, 506 P.2d 1362, 1365 (1973). In order to find that an issue was litigated by “implied consent,” the other party must be “put on notice that [the] issue was being raised[,]” Gallatin Trust & Sav. Bank, 152 Mont. at 261, 448 P.2d at 737, and the parties must have “actually tried” the issue. Reilly, 146 Mont. at 154, 405 P.2d at 446 (concluding that the parties “actually tried” unpleaded issue of the existence of an oral contract because “[v]irtually every witness called, whether by plaintiffs or the defendants gave testimony about an agreement between the plaintiffs and defendant . . . .”). 11 ¶16 These principles also apply in administrative proceedings. See e.g. Golden Grain Macaroni Co. v. F.T.C., 472 F.2d 882 (9th Cir. 1972). Whether a party’s due process rights have been violated by an administrative agency granting relief not specifically pleaded in an administrative complaint depends upon the specific facts of each case. Golden Grain Macaroni, 472 F.2d at 885-86. “[T]here is no due-process violation, if the party proceeded against ‘understood the issue’ and ‘was afforded full opportunity’ to justify its conduct.” Golden Grain Macaroni, 472 F.2d at 885-86 (quoting NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 350, 58 S. Ct. 904 (1938)). Conversely, if an issue was not fully litigated, and the “party proceeded against was not given an opportunity to defend himself, an adverse finding on that issue by the agency does violate due process.” Golden Grain Macaroni, 472 F.2d at 886 (collecting cases). ¶17 In Golden Grain Macaroni, the United States Court of Appeals for the Ninth Circuit upheld, against a due process challenge, an administrative ruling that Golden Grain Macaroni Company had violated the Clayton Act, even though the administrative complaint alleged only a violation of the Sherman Act. The Federal Trade Commission (FTC) instituted divestiture proceedings against Golden Grain, “the largest seller of dry-past[a] food products in the Pacific Northwest,” for its unlawful acquisition of three other macaroni producers. Golden Grain Macaroni, 472 F.2d at 884. The FTC’s complaint alleged that Golden Grain violated § 2 of the Sherman Act by monopolizing or attempting to monopolize the market in the region. The complaint made “[n]o mention of Section 7 of the Clayton Act . . . .” Golden Grain Macaroni, 472 F.2d at 884. Before 12 the hearing examiner, both parties argued the “sole issue” of monopolization. Golden Grain Macaroni, 472 F.2d at 885. The hearing examiner determined that Golden Grain had not violated § 2 of the Sherman Act, but that it had nonetheless violated § 7 of the Clayton Act, which prohibited “acquisitions the effect of which ‘may be substantially to lessen competition, or to tend to create a monopoly.’” Golden Grain Macaroni, 472 F.2d at 885 (quoting § 7 of Clayton Act codified at 15 U.S.C. § 18). The FTC affirmed the hearing examiner’s order, and Golden Grain petitioned for judicial review, arguing that its right to due process had been violated. Golden Grain Macaroni, 472 F.2d at 884-85. The Ninth Circuit Court disagreed, holding that although the complaint was lacking, there was no due-process violation because both § 2 of the Sherman Act and § 7 of the Clayton Act dealt with impermissible monopolization, the facts of which the parties had “fully litigated”: In the present case the initial complaint, while hardly a model of clarity, put Golden Grain on notice that the specific practices as well as the alleged over-all scheme of monopolization were being challenged. Moreover, an examination of the proceedings subsequent to the complaint demonstrates that while there was some confusion as to the nature of the charge, all facts relevant to the alleged unlawful acts were fully litigated. Actual litigation is often referred to in support of a holding that a party was not prejudiced by initially inadequate pleadings. Golden Grain Macaroni, 472 F.2d at 886 (emphasis added). The court noted that Golden Grain was unable to point to evidence that was absent from the hearing record that it would have developed had it known of the additional charge under § 7 of Clayton Act. Golden Grain Macaroni, 472 F.2d at 886-87 (“if an evidentiary stone was left unturned on the central issues it has not been brought to our attention.”). In sum, the court 13 concluded that Golden Grain had notice of the issue and was afforded an opportunity to defend where, despite differences between the Sherman Act and Clayton Act, the same facts were pertinent to both theories.1 ¶18 In Mackay Radio & Telegraph, 304 U.S. at 349-51, 58 S. Ct. at 912-13, the U.S. Supreme Court rejected a due process challenge to an administrative decision that ventured beyond the complaint. There, the National Labor Relations Board (NLRB) alleged a telecommunications company had violated the National Labor Relations Act by refusing to re-employ telegraph operators who had attempted to return to their jobs following a failed strike. Mackay Radio & Telegraph, 304 U.S. at 349, 58 S. Ct. at 912. However, the hearing officer determined that Mackay had violated the National Labor Relations Act by wrongfully discharging the telegraph operators by replacing them with other workers. Mackay Radio & Telegraph, 304 U.S. at 349, 58 S. Ct. at 912. Mackay argued that this action violated due process because it was “found guilty of an unfair labor practice which was not within the issues upon which the case was tried.” Mackay 1 Other U.S. Circuit Courts of Appeal follow this framework. See e.g. NLRB v. Blake Constr. Co., 663 F.2d 272, 283 (D.C. Cir. 1981) (“Elemental due process prevents this court from granting enforcement of remedies that go beyond the scope of the complaint and are directed toward violations of the [National Labor Relations] Act not noticed or actually tried before the ALJ or the Board.”) (emphasis added); NLRB v. Local Union No. 25, 586 F.2d 959, 961 (2d Cir. 1978) (rejecting legal challenge to provision of National Labor Relations Act because its legality was “not raised in the amended complaint, in the briefs, or in oral argument, and no evidence was presented concerning that issue.”) (emphasis added); Bruhn’s Freezer Meats of Chicago v. U.S. Dept. of Agric., 438 F.2d 1332, 1342 (8th Cir. 1971) (no due process violation where agency granted relief based on statute not alleged in complaint because the record showed that the issue was a “live one”); J.B. Williams Co. v. F.T.C., 381 F.2d 884, 888 (6th Cir. 1967) (affirming relief on issue “not charged in the complaint” because evidence of the issue was “present throughout the record”). 14 Radio & Telegraph, 304 U.S. at 349, 58 S. Ct. at 912. The U.S. Supreme Court rejected Mackay’s argument, describing it as “highly technical.” The Court reasoned that the record demonstrated that the parties understood the focus of the NLRB’s complaint— Mackay’s failure to give the telegraph operators their jobs back. Mackay Radio & Telegraph, 304 U.S. at 349, 58 S. Ct. at 912. ¶19 The case here is strikingly similar to Golden Grain Macaroni. Although Neva’s amended complaint could have been clearer in asserting a claim under § 49-2-305, MCA, the Real-Estate Transaction Provision, we hold it was sufficient to put Bates on notice of the nature of the claim Neva was bringing: that she rented commercial property from Bates who committed unlawful sexual harassment. In his briefing before the hearing officer, Bates framed one of the pertinent legal questions as: “Is the relationship between a commercial building owner and a tenant or potential tenant subject to [the Act],” a reference to the applicability of the Real-Estate Transaction Provision. Further, the record reveals that Bates and Neva “fully litigated” the questions of the nature of their business relationship and whether Bates sexually harassed Neva. During the contested case hearing, both Neva and Bates testified at length about the lease agreement between them. Just as Golden Grain Macaroni was unable to point to evidence it would have developed had it been on notice it was being charged with a violation of § 7 of the Clayton Act, Golden Grain Macaroni, 472 F.2d at 886-87, Bates has not brought to our attention any evidence that he would have developed had he known Neva was claiming a violation of the Real-Estate Transaction Provision. Rather, Bates’s argument is akin to 15 the “highly technical” difference between failure to re-employ and wrongful discharge argued by the telegraph company and rejected by the Court in Mackay Radio & Telegraph. The essential difference between a § 49-2-304 claim and a § 49-2-305 claim is the setting of the discrimination—a place of public accommodation as opposed to a real-estate transaction. The setting here was fully litigated, as was the discrimination— Bates’s sexual harassment of Neva. Bates “‘understood the issue’ and ‘was afforded full opportunity’ to justify [his] conduct.” Golden Grain Macaroni Co., 472 F.2d at 885-86 (quoting NLRB v. Mackay Radio & Telegraph Co., 304 U.S. at 350, 58 S. Ct. at 913). Therefore, Bates’s due process rights were not violated.2 ¶20 As noted above, the District Court disposed of Neva’s claim without addressing whether the Act applies to commercial leases. We reverse and remand this case to the District Court for further proceedings to analyze that question, in the first instance. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON /S/ BRIAN MORRIS 2 Bates cites our line of authority that provides that courts are not to address issues raised for the first time on appeal or a change in legal theory. See Day v. Payne, 280 Mont. 273, 276-77, 929 P.2d 864, 866 (1996); Unified Ind., Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, 961 P.2d 100; Gary & Leo’s Fresh Food, Inc. v. State, 2012 MT 219, ¶ 16, 366 Mont. 313, 286 P.3d 317. This authority is unavailing because we have here determined that a new issue or legal theory is not being raised for the first time on appeal. Rather, the parties litigated Bates’s sexual harassment of Neva and the setting of their commercial-lease agreement. 16 | September 3, 2013 |
3b2f71f3-b668-4088-834f-7e56385cc9f3 | Zunski v. Frenchtown Rural Fire Dep | 2013 MT 258 | DA 12-0505 | Montana | Montana Supreme Court | DA 12-0505 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 258 TAMMY ZUNSKI, Plaintiff and Appellant, v. THE FRENCHTOWN RURAL FIRE DEPARTMENT BOARD OF TRUSTEES, Defendant and Appellee. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 11-1092 Honorable Edward P. McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Daniel J. Flaherty, Attorney at Law, Great Falls, Montana For Appellee: D. James McCubbin, Deputy County Attorney; Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana Submitted on Briefs: June 26, 2013 Decided: September 10, 2013 Filed: __________________________________________ Clerk September 10 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Appellant Tammy Zunski (Zunski) appeals the decision of the Fourth Judicial District Court, Missoula County, that granted summary judgment to the Frenchtown Rural Fire Department Board of Trustees (Board) against Zunski’s right to know and right to participate claims. We affirm. ¶2 We address the following issues on appeal: ¶3 Whether the District Court correctly determined that the Board’s actions at the August 8, 2011, meeting rescinded the actions taken at the improper July 20, 2011, meeting and thereby defeated Zunksi’s open meeting and public participation claims? ¶4 Whether the District Court correctly determined that the Board had responded to Zunski’s document request in a reasonably timely manner? FACTS ¶5 The Board is a subdivision of the State of Montana. The Board’s duties include providing personnel for the Frenchtown Rural Fire District (FRFD). The FRFD chief resigned amidst controversy in February 2009. The Board initiated a search to hire a new FRFD fire chief. The Board later considered whether to hire an interim fire chief after a permanent chief applicant declined an offer. ¶6 Mitchell Hicks (Hicks), a trustee on the Board, expressed interest in serving as interim FRFD chief. The Board requested on June 30, 2011, an opinion from a private law firm to address “whether a [t]rustee of the Frenchtown Rural Fire District [sic] be hired as an interim [f]ire [c]hief while the search for a full time [c]hief continues.” The Board received 3 the opinion letter on July 1, 2011. The opinion letter concluded that “there is no statute, by- law or policy that prohibits a [t]rustee from acting as a [t]emporary [f]ire [c]hief.” The opinion letter further advised that “as long as the [t]rustee is hired as a [t]emporary [e]mployee, exception to policies regarding selection of the employees based on merit and qualifications need not be met.” ¶7 The Board held a special session on July 20, 2011. At the special session, the Board voted to enter into a closed door “executive session.” The Board voted to create an interim fire chief position during the executive session. The Board then voted during the executive session to hire Hicks for the interim position and to set Hicks’s compensation at $5,000 per month. Hicks became interim fire chief on August 1, 2011. ¶8 Zunski challenged the propriety of the July 20, 2011, meeting and the actions taken at the meeting. Zunski filed a request for documents with the Board on August 3, 2011. Zunksi also requested that the Board allow public comment before it hired an interim fire chief. The Board accommodated Zunski’s request to revisit its decision. ¶9 The Board held a properly noticed meeting on August 8, 2011, with a pre-published agenda that included “Hire Interim Chief – Action.” The Board accepted public comment regarding the interim fire chief position. Zunski and others commented during the meeting. The Board again voted to hire Hicks as the interim fire chief. Hicks served as the interim fire chief from August 1, 2011, until March 31, 2012. The Board hired a permanent fire chief who began serving on March 26, 2012. ¶10 The Board had not complied fully with Zunski’s document request by the August 8, 4 2011, meeting. Zunski had made her formal request on August 3, 2011. The Board had begun to compile Zunski’s requested information on August 5, 2011. The Board partially had complied with Zunski’s document request by the August 8, 2011, meeting. The Board made another partial production on August 16, 2011. ¶11 Zunski filed a complaint on August 19, 2011, in which she alleged that the Board’s actions at the July 20, 2011, meeting contravened Montana’s open meeting law and her rights to know and to participate. Zunski further alleged that the August 8, 2011, meeting failed to comply with her rights to know and to participate. Zunski sought the production of both the documents that she had formally requested on August 3, 2011, and additional documents. Zunski asked the court to set aside Hicks’s hiring. Zunski also sought an award for attorney fees and costs. ¶12 The parties filed cross motions for summary judgment. The District Court determined that the Board’s August 8, 2011, meeting complied with the open meeting and right to participate laws. The proceedings and decision made at the August 8, 2011, meeting “served to rescind the prior decisions made on July 20, 2011.” The Board had begun to compile the requested information for Zunski on August 5, 2011, and it had delivered partial responses on August 8, 2011, and August 16, 2011. The court therefore concluded that the filing of Zunski’s complaint on August 19, 2011, “did not affect the timing or substance” of the Board’s responses. Zunski appeals. STANDARD OF REVIEW ¶13 We review de novo a district court’s grant or denial of a motion for summary 5 judgment. Sayers v. Choteau Co., 2013 MT 45, ¶ 21, 369 Mont. 98, 297 P.3d 312. We apply the same standards the district court uses under M. R. Civ. P. 56(c). Sayers, ¶ 21. DISCUSSION ¶14 Whether the District Court correctly determined that the Board’s actions at the August 8, 2011, meeting rescinded the actions taken at the improper July 20, 2011, meeting and thereby defeated Zunksi’s open meeting and public participation claims? ¶15 Montana’s open meeting and public participation laws apply to the Board and its activities . Mont. Const. art. II, § 8; Section 2-3-203, MCA. Nothing in § 2-3-203, MCA, exempts a public body’s committee and subcommittee meetings from Montana’s open meeting laws. ¶16 A district court may void a final decision made in a meeting that violates Montana’s open meeting law. Goyen v. City of Troy, 276 Mont. 213, 219-20, 915 P.2d 824, 828-29 (1996); Section 2-3-213, MCA. The governing body can remedy the illegality of the meeting without judicial involvement by making a new decision that is not based on anything from the illegal meeting. Goyen, 276 Mont. at 219-20, 915 P.2d at 828-29. This remedy requires at a minimum the re-adoption of the challenged action in a manner that comports with the law. A successful remedy generally cures the previous violation and thereby renders moot potential controversies about the illegality. Havre Daily News, LLC v. City of Havre, 2006 MT 215, ¶¶ 30-31, 333 Mont. 331, 142 P.3d 864. ¶17 The District Court determined that the Board’s August 8, 2011, meeting complied with the open meeting and right to participate laws. The actions that the Board took at its 6 August 8, 2011, meeting correspondingly complied with the opening meeting and right to participate laws. Havre Daily News, ¶ 30. The August 8, 2011, meeting’s compliance with the open meeting and public participation laws remedied any earlier violations of those laws. Havre Daily News, ¶ 30. The Board’s remedy rendered moot any actual controversies about the actions taken at the July 20, 2011, meeting. Bryan v. Yellowstone Co. Elementary Sch. Dist. No. 2, 2002 MT 264, 312 Mont. 257, 60 P.3d 381. The Board neither denied Zunski access to any “hard data that was critical to the decision,” nor did it keep the public in the dark about an imminent decision. Allen v. Lakeside Neighborhood Planning Committee, 2013 MT 237, ¶ 24, __ Mont. __, __ P.3d __. ¶18 Zunski nevertheless argues that the Court should analyze the merits of the Board’s decision to hire Hicks at the July 20, 2011, meeting. Zunski contends that the Board’s illegal action “is capable of repetition” despite the fact that the Board evaded review in this instance. Zunski argues, in the alternative, that the Board’s “voluntary cessation” of its illegal decision to hire Hicks at the July 20, 2011, meeting should not prevent judicial scrutiny. The “voluntary cessation” and “capable of repetition yet evading review” doctrines may resuscitate a claim otherwise mooted. Havre Daily News, ¶¶ 31-34. ¶19 The voluntary cessation doctrine applies when a defendant’s challenged conduct “is of indefinite duration, but is voluntarily terminated by the defendant prior to completion of appellate review.” Havre Daily News, ¶ 34. The doctrine provides that voluntary cessation of a challenged action will moot a case only when it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Havre Daily News, ¶ 38. 7 ¶20 Zunski suggests that the Board’s conduct will recur because the Board contravened controlling legal doctrines. Zunski argues that by hiring Hicks, a board member, to serve as interim fire chief that the Board violated the incompatible offices doctrine. State ex rel. Klick v.Wittmer, 50 Mont. 22, 144 P. 648, 649-50 (1914). The doctrine provides that a person cannot hold an office over which the person exercises supervisory control. Klick, 50 Mont. at 22, 144 P. at 649. Hicks’s employment for FRFD from August 1, 2011, until March 31, 2012, violated the incompatible offices doctrine in that Hicks, as a member of the Board, exercised supervisory control over the interim fire chief. Klick, 50 Mont. at 22, 144 P. at 649. Zunski’s claim nevertheless remains moot. ¶21 Zunski did not raise the issue of the incompatible offices doctrine until after the Board already had eliminated the interim fire chief position. The Board insists that it would be “doubly speculative to guess” that it would act in the future without considering the incompatible offices doctrine. We agree. We have no reasonable expectation that the Board again would attempt to hire a trustee in violation of the incompatible offices doctrine. We expect the Board will adhere strictly to the doctrine, and to all other laws. We decline to presume the Board’s bad faith. The Board has met its burden of persuasion that it will not violate the incompatible offices doctrine again in the future. Havre Daily News, ¶ 34. ¶22 The capable of repetition yet evading review exception only applies “where the challenged conduct invariably ceases before courts fully can adjudicate the matter.” Havre Daily News, ¶ 33. A party can avail itself of this exception only when the time between the challenged wrong and the occurrence rendering the case moot “is always so short as to evade 8 review.” Havre Daily News, ¶ 33. The party that invokes the exception also must establish that “there is a reasonable expectation that the same complaining party will be subject to the same action again.” Havre Daily News, ¶ 34. ¶23 A party who asserts this exception must establish both that the challenged conduct inherently is of limited duration and that there is a reasonable expectation that “the same complaining party will be subject to the same action again.” Havre Daily News, ¶ 34. Zunski has failed to establish a reasonable expectation that the Board will again appoint a trustee to an illegal interim position. The “incompatible offices” doctrine would bar the Board from hiring a trustee as an interim fire chief. Klick, 50 Mont. at 22, 144 P. at 649. The Board has given no indication that it would not follow the incompatible offices doctrine or other applicable law. Zunski counters with general statements that “the offending conduct will likely be repeated.” The absence of more concrete evidence prevents the Court from forming a reasonable expectation that the Board again would hire an employee in violation of the incompatible offices doctrine. ¶24 Zunski lastly argues that the District Court failed to address the legality of Hicks’s appointment. Section 2-3-213, MCA, provides that a district court may void any decision made at a noncompliant meeting. The Board’s decision to hire Hicks at the July 20, 2011, noncompliant meeting no longer was in effect by the time that Zunski commenced this action on August 19, 2011. The Board’s August 8, 2011, meeting’s compliance with the open meeting law had abrogated the challenged hiring of Hicks at the July 20, 2011, meeting. The Board already had performed Zunski’s requested remedy of re-visiting its decision from the 9 noncompliant July 20, 2011, meeting. Havre Daily News, ¶ 30. ¶25 Whether the District Court correctly determined that the Board had responded to Zunski’s document request in a reasonably timely manner? ¶26 Montana’s constitutional right to know gives citizens the right to examine documents of “state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.” Mont. Const. art. II, § 9. The District Court determined that the Board had delivered to Zunski alldocuments responsive to Zunski’s August 3, 2011, right to know request by the time that the parties had filed motions for summary judgment. The District Court further determined that Zunski’s lawsuit had not affected the timing or substance of the Board’s responses to Zunski’s request. The District Court concluded that Zunski “does not dispute that partial responses were made to her requests prior to the filing of the complaint, that FRFD’s responses were reasonably timely, and that all document requests described in the [c]omplaint have been responded to in full.” ¶27 Zunski filed her right to know request on August 3, 2011. The Board partially fulfilled the request on August 5, 2011. The Board made further partial deliveries on August 5, 2011, and August 16, 2011. The Board also provided documents to Zunski after she commenced this action on August 19, 2011. The District Court determined that Zunski’s requests have “been very extensive” and were amended and broadened “numerous times.” ¶28 Zunksi argues that material facts exist as to whether the Board produced all requested documents in a reasonable and timely manner. Zunski claims that “[t]he Board did not disclose the Frank Stanley documents, the sub-committee minutes, or the undisclosed 10 meeting prior to the [sic] August 8, 2011.” Zunski further argues that the Board withheld and failed to identify documents until Zunski conducted depositions. ¶29 The District Court determined that no dispute existed regarding the delivery of responsive documents to Zunski based on Zunski’s own admission. Zunski qualifiedly admitted before the Board had filed its motion for summary judgment that no outstanding requests for public documents remained. Zunski qualified her admission on the basis that the Board “certify that all agendas, emergency sessions, & budgets have been produced.” The Board responded, that to the best of its knowledge, “all documents responsive . . . have been delivered to Plaintiff.” Zunski’s admission removed from dispute any remaining right to know claim that she may have possessed. ¶30 Zunski unsuccessfully attempts on appeal to refute her admission. To substantiate her assertions, Zunski offers only vague directions such as “documents, including committee minutes were not produced until the depositions of Sayler.” Upon inspection of the directed documents we cannot locate any basis for Zunski’s claims. Zunski fails to inform the Court when and through what means she had requested or obtained these documents. For others, Zunski offers no evidence as to what specifically she had requested. Zunski asks that we assume that the Board provided these documents only through means enabled by this action. The undisputed facts and Zunski’s own admission foreclose that assumption. ¶31 We will not fault the District Court for relying on Zunski’s admission. See M. R. Civ. P. 36(b). Zunski admitted that the Board had provided all documents responsive to her right to know request. The District Court determined that the Board had provided all responses in 11 a reasonable and timely manner. The District Court properly found that no further controversy existed regarding Zunski’s right to know claims. Havre Daily News, ¶ 31. We are left with no reasonable expectation that the Board would fail to comply with any future right to know requests made by Zunski. The District Court correctly resolved Zunski’s right to know claims. Sayers, ¶ 21. ¶32 Affirmed. /S/ BRIAN MORRIS We Concur: /S/ JIM RICE /S/ BETH BAKER /S/ PATRICIA COTTER /S/ LAURIE McKINNON | September 10, 2013 |
23678299-1c70-40af-999b-84544822c48d | CNJ Distrib. Corp. v. D & F Farms, Inc. | 2013 MT 267 | DA 13-0068 | Montana | Montana Supreme Court | DA 13-0068 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 267 CNJ DISTRIBUTING CORP. dba FAIRVIEW ANGUS RANCH, Plaintiff and Appellant, v. D & F FARMS, INC., Defendant and Appellee, v. CIRCLE S SEEDS OF MONTANA, INC., Third Party Defendant. APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Sweet Grass, Cause No. DV 2010-10 Honorable Wm. Nels Swandal, Presiding Judge COUNSEL OF RECORD: For Plaintiff and Appellant: Rodd A. Hamman, Calton Hamman & Wolff, P.C.; Billings, Montana For Appellee: Edward J. Guza, Guza, Williams & Nesbitt; Bozeman, Montana Submitted on Briefs: July 24, 2013 Decided: September 17, 2013 Filed: __________________________________________ Clerk September 17 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 CNJ Distributing Corp. (CNJ) appeals from the Order of the Sixth Judicial District, Sweet Grass County, denying and dismissing with prejudice CNJ’s breach of contract claim against D&F Farms, Inc. (D&F). ISSUES ¶2 We restate the issues on appeal as follows: ¶3 Did the District Court err in finding D&F did not materially breach the contract by failing to object to rocky field conditions or by failing to achieve consistent depth of seed placement? ¶4 Did D&F’s failure to get the seed to the proper depth prevent CNJ from harvesting the crop during harvest season and proximately cause CNJ’s damages? FACTUAL AND PROCEDURAL BACKGROUND ¶5 This controversy arose after CNJ hired D&F as a custom seeder to seed a barley crop grown under contract with Circle S Seeds of Montana, Inc. (Circle S). CNJ sued D&F for breach of contract, alleging the crop did not ripen and could not be harvested on time because of improper seed placement. D&F sued Circle S alleging failure to instruct. After a bench trial, Circle S settled with D&F. The District Court, in an Order filed December 20, 2012, denied and dismissed with prejudice CNJ’s breach of contract claim. CNJ appealed. ¶6 The uncontested findings of fact are as follows: ¶7 CNJ owns and operates the Fairview Ranch in Sweet Grass County, Montana. George Frank (Frank) is the owner and President of CNJ. CNJ purchased the Fairview 3 Ranch in 1984. Since that time, the Fairview Ranch has been operated as a registered Angus ranch with irrigated hay and pasture. CNJ has hired a full-time ranch manager to run the Fairview Ranch. Kenny Lee (Lee) started as manager of the Fairview Ranch on May 1, 2009. ¶8 D&F is a Montana corporation doing business out of Manhattan, Montana. Matt Flikkema (Flikkema) owns D&F. D&F is a “custom seeder.” This means landowners, like CNJ, hire D&F to plant crops. D&F supplies the seeding equipment, in this case a John Deere 1890 pulled by a tractor, and provides qualified individuals to operate the equipment. Casey Hamilton (Hamilton), an experienced and qualified operator, works for Flikkema doing the seeding. ¶9 Circle S is a Montana corporation doing business out of Three Forks, Montana. Circle S is a supplier of seeds, and per the agreement entered into with CNJ, a beneficiary to the crop that was to be produced on CNJ land in fall 2009. Steve McDonnell (McDonnell) is one of the owners of Circle S. Don Heck (Heck) is an agronomist/Certified Crop Advisor for Circle S and personally visited and inspected the field at issue at least six times. ¶10 In the fall of 2008, Circle S contracted with Montsago to produce a barley crop known as BG 46e for food purposes. WestBred, LLC of Bozeman, Montana developed BG 46e. Dr. Dan Biggerstaff (Biggerstaff), one of the developers of BG 46e, is an expert on BG 46e. ¶11 Pivot 2 is a “very rocky” section of field comprising 550 net irrigated acres, located on the Fairview Ranch. In the fall of 2008, CNJ hired Dwight Dyk (Dyk) of Dyk 4 Enterprises, Inc., to chem fallow Pivot 2 to kill the existing vegetation so CNJ could reseed the next spring. ¶12 McDonnell knew that CNJ was going to reseed Pivot 2. McDonnell telephoned Frank in the winter of 2009 about contracting to grow BG 46e in that field and set up a meeting to discuss seeding options. Before meeting with Frank, McDonnell called Flikkema about seeding BG 46e at the Fairview Ranch in a custom no-till seed job to obtain a price quote. McDonnell told Flikkema the fields at Fairview Ranch had a lot of rocks. Flikkema did not express any concerns and gave McDonnell a price. McDonnell did the same with other input providers and put together a written proposal with a cost and income projections. McDonnell faxed the proposal to Frank on March 10, 2009. ¶13 D&F and Circle S had formed a relationship over the years where Circle S would recommend D&F to its customers for custom seeding and then contact D&F to discuss details of the job. Details discussed generally included how the land was to be seeded (till or no-till), what was being seeded, and when the land was to be seeded. Typically, Circle S would come out to the property being seeded on the day of seeding to ensure the instructions were conveyed to Flikkema and would stay around for a couple of passes to make sure there were no problems. The land owner would typically pay D&F directly. ¶14 On March 11, 2009, McDonnell and Heck traveled to Billings and met with Frank. Frank agreed to the proposal, knowing no-till seeding would be used. McDonnell and Frank executed the Grain Production Agreement. Pivot 2 would have been seeded with alfalfa grass had McDonnell and Frank not agreed otherwise. 5 ¶15 As Biggerstaff explained in his Deposition, BG 46e is a type of waxy barley characterized by a shrunken endosperm. The endosperm is the starch portion of the seed which provides the energy for the seed to germinate. When the plant emerges from the soil, sunlight provides the energy needed for it to continue growing. Because the endosperm is small, if the seed is planted too deep, it will not have enough energy to reach the surface and will die. Also, if the soil is too cold it will hamper the seed’s ability to germinate and emerge. BG 46e should be planted from ¾ to 1½ inches deep. ¶16 McDonnell concluded no-till seeding, the predominant seeding method in Montana, was the best option for BG 46e because a tilled field would be too soft to maintain the required planting depth. There had not been no-till seeding on the Fairview before 2009. The decision to use no-till was made by McDonnell and Frank, not D&F. McDonnell and Frank decided seeding would occur on May 20, 2009. ¶17 Because of the length of time it takes to till a field as rocky and hard as Pivot 2, testimony revealed that by May 20, no-till seeding was the only option left to plant the crop in the spring of 2009. ¶18 Seeding occurred on May 20, 2009. As was their custom, Flikkema and McDonnell met at the field on the day work was to occur. ¶19 Before Flikkema left, he walked about 50 feet out into the field and Lee pointed out the large amount of rocks in the field. Because of the rocky ground, Lee asked McDonnell whether the ground needed to be torn up first or no-till. McDonnell stated that the drill was capable of planting the crop. McDonnell told Lee that he did not feel the rocks would pose a 6 problem for planting. McDonnell did not express any problems with the field conditions to Flikkema. ¶20 McDonnell instructed D&F to plant the seeds at a depth of one and a half inches. Hamilton and Flikkema set the depth setting on the 1890 to one and a half inches and set the down pressure to “medium green.” ¶21 Immediately, when Hamilton began planting, he heard the 1890’s disks chattering as they rolled over rock in the field. The chattering of the disks means that the 1890 does not have enough pressure to keep contact with the soil and/or is driving too fast. He increased the down pressure from green to orange. He also reduced his speed to make the best possible contact with the ground, to about two to three miles per hour. ¶22 As he was seeding, Hamilton made several visual checks for seed placement, which included taking a pocketknife and digging to uncover seeds. The seeds that made contact with solid rock, or were planted after the drill rolled off the edge of a rock, or were planted on top of buried rocks, would be anywhere from the surface to one inch deep. When the drill pulled out of the ground for any reason, large amounts of seed would dump out. ¶23 Either the first day or the morning of the second day of seeding, Hamilton contacted Flikkema. He reported to Flikkema the field condition and the changes he made to the drill and his speed. Flikkema told Hamilton he had done everything that Flikkema would have done under the conditions. Flikkema told Hamilton to tell Lee what he was experiencing. Hamilton told Lee over supper that “the field conditions were bad.” Lee did not inspect the field or take any other steps after Hamilton’s report. 7 ¶24 The following facts are necessary context for the current action: ¶25 McDonnell returned to the Fairview to inspect the crop a few weeks after seeding and noted a large amount of seed on the ground. Lee characterized the amount of seed on the ground as “tremendous.” McDonnell called Flikkema and told him the seeding job was bad and he needed to get in touch with CNJ. ¶26 On July 16, 2009, Dyk returned to spray the field for weeds. He stated about 50 percent of the crop had emerged properly and was approximately 10 to 12 inches tall. Other plants were substantially behind and were about six inches tall, with other areas where seeds were lying on the ground. He believed this disparity was due to improper seed placement; but had never seeded a waxy barley, nor operated a John Deere 1890. ¶27 Heck, who is a certified crop specialist, asserted the amount of seeds on the surface was comparable to other similar rocky fields. ¶28 Circle S planned to complete harvest by mid-September. However, because the less mature plants remained green, the crop could not be harvested on schedule. By October, the plants still had not been harvested; and a heavy snow destroyed the crop. As a result, CNJ had to swath and bail the barley for cattle feed and made no profit on the crop. ¶29 CNJ sued D & F for breach of contract alleging the seeding caused the crop to fail. ¶30 The District Court found as follows: ¶31 The District Court found it may have been prudent to till Pivot 2 before planting; and that the decision to plant without tilling was made by CNJ and Circle S. ¶32 The District Court found: 8 It is not surprising that seeds were found on the ground. Anytime the disk rolled over a rock, and there were many in this field, it was off the ground for a short time and seeds will scatter 1 to 4 inches. Further, anytime the operator turns or takes the wheels off the ground the whole content of the seed in the hoses is emptied. ¶33 The District Court found no adjustments beyond those Hamilton made were necessary. The problem, it concluded, was not the seeder but the condition of the field. The court noted that the same drill was used to plant some grass seed for CNJ at a different location and that job was satisfactory. It observed that it would be unusual that the drill only malfunctioned on one job unless other factors were at issue. STANDARD OF REVIEW ¶34 We review the District Court’s findings of fact to determine if they are clearly erroneous and its conclusions of law to determine whether they are correct. Cut Bank School Dist. No. 15 v. Rummel, 2002 MT 248, ¶ 5, 312 Mont. 143, 58 P.3d 159 (citing Norwood v. Service Distributing Inc., 2000 MT 4, ¶ 21, 297 Mont. 473, 994 P.2d 25). A finding is clearly erroneous “if it is not supported by substantial credible evidence, if the court misapprehended the effect of the evidence, or if a review of the evidence leaves this Court with a definite and firm conviction that a mistake has been made.” Puccinelli v. Puccinelli, 2012 MT 46, ¶ 13, 364 Mont. 235, 272 P.3d 117. DISCUSSION ¶35 Ultimately, this dispute centers on whose job it was to foresee the effect of the rocky field on seeding. The subsidiary issue is whether the seeding caused the crop to fail. 9 Because we conclude the District Court’s determination that D&F did not materially breach the contract with CNJ was not clearly erroneous, we do not reach the second issue. ¶36 ISSUE 1. Did the District Court err in finding D&F did not breach the contract by failing to object to rocky field conditions or by failing to achieve uniform depth of seed placement? ¶37 CNJ claims that D&F breached the seeding contract. The question of whether a party materially breached a contract is a question of fact and we review the district court’s findings to determine whether they are clearly erroneous. Eschenbacher v. Anderson, 2001 MT 206, ¶ 22, 306 Mont. 321, 34 P.3d 87. CNJ carried the burden of proving that D&F breached the contract. See Lindeman v. Pinson, 171 P. 271, 272 (1918) (overruled on other grounds) (burden of proof in breach of contract claim rests with plaintiff). ¶38 a. Failing to object to rocky field conditions. ¶39 CNJ states: “D&F had the opportunity to inspect the field both before and during seeding and if they [sic] concluded they [sic] could not do the job, CNJ could have canceled the barley crop and reseeded to grass/alfalfa. But D&F accepted the job with existing field conditions.” D&F counters that “CNJ’s suggestion that on May 20, D&F should have simply walked away from the job because of the conditions on the land is ridiculous.” D&F points out that to do so would have placed D&F in breach of both its contracts with CNJ and with Circle S, arguing it could not perform a job it could, and ultimately did, perform. ¶40 The District Court concluded that the contract between D&F and CNJ consisted of an oral agreement negotiated by Circle S. The District Court explained the contractual oral 10 agreement provided that D&F would fertilize and seed BG 46e in approximately 570 acres. The court concluded: “There was no evidence to suggest…that D&F had any additional requirements such as choosing the crop, deciding when the crop was to be planted, preparing the field, deciding when watering was to occur, or guaranteeing the crop’s success in any manner.” ¶41 The District Court further concluded that Hamilton did his work in a workmanlike manner. He made the necessary adjustments to get seeds into the ground, under the conditions. In evaluating Hamilton’s performance, the District Court relied on Hamilton and Flikkema’s testimony that no additional adjustments to the 1890 would have made any difference. “It is the province of the district court to determine the credibility of the witnesses and the weight assigned to their respective testimony.” Hood v. Hood, 2012 MT 158, ¶ 42, 365 Mont. 442, 282 P.3d 671. ¶42 The District Court also pointed out that D&F ensured Lee was aware of the conditions Hamilton was encountering. The District Court explained, “it was not the responsibility of D&F to prepare the field for seeding or even evaluate whether the field needed any preparation—if that would have made any difference.” (Emphasis original.) It is undisputed that “[b]ecause of the length of time it takes to till a field as rocky and hard as Pivot 2, by May 20, testimony revealed that no-till was the only option left to plant the crop in the spring of 2009.” ¶43 We conclude that the District Court did not clearly err when it determined that D&F did not materially breach the contract by failing to object to the field conditions upon 11 inspection. McDonnell and Frank made the decision to use no-till seeding, not D&F. Field preparation was Circle S and CNJ’s responsibility. D&F did not see the field until the day work was to begin. McDonnell stated he had no doubt the field could be adequately seeded by the 1890 despite the rocky conditions. The District Court determined, on the basis of testimony, that Hamilton made all necessary adjustments for the conditions. On these facts, the District Court’s determination that no material breach occurred was not clearly erroneous and substantial evidence supported the court’s finding. ¶44 b. Failing to achieve consistent depth of seed placement. ¶45 “With respect to oral contracts, it is the duty of the trial court to determine the meanings to be given words and the intention of the parties.” Richard A. Lord, Williston on Contracts vol. 11, § 30:8, 128, 130 (4th ed., West 2011). A court may not re-write the terms of a contract, but must enforce the contract as the parties intended. Stutzman v. Safeco Ins. Co. of America, 284 Mont. 372, 376, 945 P.2d 32, 34 (1997). A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. Section 28-3-201, MCA. Stipulations which are necessary to make a contract reasonable or conformable to usage are implied in respect to matters concerning which the contract manifests no contrary intention. Section 28-3-701, MCA. CNJ argues that having accepted the contract, D&F was obligated to seed the crop to a depth of one and one half inches because that depth was a term of the contract. 12 ¶46 The District Court concluded, based on Hamilton and Flikkema’s testimony, that “it is simply impossible for the 1890 to plant a seed in an immovable rock or deeper than that which an immovable rock allowed under the surface.” CNJ attempts to paint this conclusion as the District Court accepting an “impossibility” defense to performance and alleges it is an error of law. D&F argues “nowhere in the court’s Findings or Conclusions was there any mention of ‘impossibility.’” ¶47 We agree with the District Court that D&F’s failure to achieve consistent depth of seed placement did not constitute a material breach of the contract. We also are not convinced that the District Court accepted an “impossibility” defense, or that such a defense would be applicable at all under these facts. The District Court did not clearly err when it found that failure to achieve consistent seed placement did not constitute a material breach under these conditions. ¶48 It is unclear at what point CNJ alleges 1 ½ inch depth became a term of the contract. However, McDonnell instructed Flikkema to plant the seeds to one and a half inches. Per McDonnell’s instructions on May 20, D&F set the drill to one and a half inch depth. ¶49 As the District Court noted, Biggerstaff testified at his deposition that “uneven depth of seed is almost a given in any planting operation unless you had an absolutely perfect seedbed.” He also testified that “[h]aving seed deeper than 1 inch and seed on the surface does not preclude what I would call an acceptable seeding job.” The WestBred planting guide suggested planting to between ¾ and 1 ½ inches deep, suggesting that some variability was acceptable. CNJ even admitted in its brief: “No one expected the seed placement to be 13 perfect.” The District Court found, based on substantial credible evidence that it was not surprising seeds were found on the ground given the amount of rocks in the field. ¶50 The District Court did not clearly err when it determined that failing to achieve a consistent depth of seed placement under these conditions did not constitute a material breach. The evidence before the District Court indicated that having seed on the ground and inconsistent placement were foreseeable consequences of the field conditions and not, as CNJ argued, indicative of a legally-deficient performance. All facts and testimony pointed to the fact that variation in seed placement was consistent with what the parties should reasonably have expected and did expect. The District Court observed that the WestBred planting guide suggested that a depth of as little as ¾ inch remained adequate and within specifications for proper planting. Thus, substantial credible evidence supported the District Court’s determination that D&F met its obligations under the parties’ agreement. ¶51 Further, the District Court’s statement that “it is simply impossible for the 1890 to plant a seed in an immovable rock” did not signal the court accepting an impossibility defense. In Smith v. Zepp, this Court observed that “[t]he general rule is that, where a party to a contract obligates himself to a legal and possible performance, he must perform in accordance with the contract terms.” Smith v. Zepp, 173 Mont. 358, 364, 567 P.2d 923, 927 (1977) (superseded on other grounds by Garretson v. Mountain W. Farm Bureau Mut. Ins. Co., 234 Mont. 103, 105, 761 P.2d 1288, 1289 (1988)). D&F directs our attention to Cape France Enterprises v. In re Estate of Peed, where we explained: 14 Courts may determine that an act is “impossible” in legal contemplation when it is not practicable. Such an act is impracticable when it can only be done at an excessive, unreasonable and unbargained-for cost. While the doctrine of impossibility or impracticability is not set in stone, it is applied by courts where, aside from the object of the contract being unlawful, the public policy underlying the strict enforcement of contracts is outweighed by the senselessness of requiring performance. Cape France Enterprises. v. In re Estate of Peed, 2001 MT 139, ¶ 23, 305 Mont. 513, 29 P.3d 1011. ¶52 The District Court’s observation that it would be impossible to plant seed in immovable rock operated to illustrate that D&F’s performance was acceptable within the contract terms under the circumstances. Impossibility is a defense to performance, see Cape France, ¶ 23, it is not a defense to a claim alleging poor quality of performance. D&F performed. It did not try to escape performance by claiming performing would be physically impossible or financially too onerous—defenses it may have asserted had it refused the job upon viewing the field, as CNJ argues it should have done. Rather, it performed to the best of its ability within the constraints imposed by its equipment, the field conditions, and the decisions made by Circle S and CNJ. We conclude the District Court did not clearly err when it found that D&F did not materially breach the contract; so neither impossibility nor quality of performance are issues here. ¶53 ISSUE 2. Did D&F’s failure to get the seed to the proper depth prevent CNJ from harvesting the crop during harvest season and proximately cause CNJ’s damages? 15 ¶54 Because we conclude the District Court did not clearly err when it determined that D&F did not materially breach its contract with CNJ, we need not reach the second issue, which focuses on causation and damages. ¶55 Affirmed. /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ BETH BAKER /S/ PATRICIA COTTER | September 17, 2013 |
4a67aeff-3a28-4bb4-8ad1-a99d973648d7 | Moerman v. Prairie Rose Res., Inc. | 2013 MT 241 | DA 12-0666 | Montana | Montana Supreme Court | DA 12-0666 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 241 IRENE M. MOERMAN and JOHN H. MOERMAN, Plaintiffs and Appellants, v. PRAIRIE ROSE RESOURCES, INC., a North Dakota Corporation, Defendant and Appellee. APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Wibaux, Cause No. DV 11-11 Honorable Richard A. Simonton, Presiding Judge COUNSEL OF RECORD: For Appellant: Brian D. Lee; Lee Law Office, P.C.; Shelby, Montana For Appellee: Albert R. Batterman; Batterman Law Offices, P.C.; Baker, Montana Submitted on Briefs: May 28, 2013 Decided: August 27, 2013 Filed: __________________________________________ Clerk August 27 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Irene and John Moerman appeal the judgment and order of the District Court for the Seventh Judicial District, Wibaux County, denying their claim that the oil and gas lease at issue in this case has expired or has been forfeited. We affirm. ¶2 We address the following issues on appeal: ¶3 1. Whether the District Court correctly concluded that the parties’ oil and gas lease remained in effect. ¶4 2. Whether the District Court was correct in awarding Prairie Rose Resources, Inc. (Prairie), its attorney fees. Factual and Procedural Background ¶5 Irene and John Moerman (the Moermans) lived on a ranch in Wibaux County, Montana, until 1995, when they sold the ranch to Jim Kane. John’s father, Anton Moerman, had acquired the ranch (which included both the surface and mineral estates with the exception of coal) via a land patent. The Moermans, who are now divorced, reserved for themselves life estates to the mineral rights on the ranch with the remainder to vest in their three children. The well in question was originally drilled almost thirty years ago, but was subsequently shut in and abandoned. ¶6 In 2006, Prairie, an oil and gas development company incorporated in North Dakota, leased the well from the Moermans, but failed to bring the well into production during the lease period. Consequently, the 2006 lease terminated. In June 2010, the 3 Moermans each1 signed a new Oil and Gas Lease with Prairie. These leases were for six months with the primary term of each lease from June 1, 2010, to December 1, 2010. Michael Gleason, Prairie’s president, paid the Moermans $32,000 for the leases. ¶7 The leases granted to Prairie the exclusive right to the oil and gas in the south half of Section 30, Township 18 North, Range 59 East, M.P.M., for exploration and development purposes. The leases required that Prairie pay the Moermans a royalty of one-eighth of all oil produced and saved from the leasehold premises. As to the term, the leases provided: It is agreed that this lease shall remain in force for a term ending December 1, 2010 and as long thereafter as oil or gas of whatsoever nature or kind is produced from said leased premises or on acreage pooled therewith, or drilling operations are continued as hereinafter provided. If, at the expiration of the primary term of this lease, oil or gas is not being produced on the leased premises or on acreage pooled therewith but Lessee is then engaged in drilling or re-working operations thereon, then this lease shall continue in force so long as operations are being continuously prosecuted on the leased premises or on acreage pooled therewith; and operations shall be considered to be continuously prosecuted if not more than one hundred eighty (180) days shall lapse between the completion or abandonment of one well and the beginning of operations for the drilling of a subsequent well. If after the discovery of oil or gas on said land or on acreage pooled therewith, the production thereof should cease from any cause after the primary term, this lease shall not terminate if Lessee commences additional drilling or re-working operations within one hundred eighty (180) days from the date of cessation of production or from date of completion of dry hole. If oil or gas shall be discovered and produced as a result of such operations at or after the expiration of the primary term of this lease, this lease shall continue in force so long as oil or gas is produced from the leased premises or on acreage pooled therewith. 1 Because the Moermans were divorced, two separate leases were executed; however, the terms of the leases are identical. 4 ¶8 Prairie assigned the leases to PB Oil Company, LLP (PB Oil),2 an oilfield service company operating in the Sidney, Montana, area, subject to the reservation of a small overriding royalty interest. PB Oil then contracted with TOI Operating, Inc. (TOI) as the bonded contractor to bring the well into production. ¶9 Keith Carver, a petroleum engineer working for both PB Oil and TOI, worked to get the well into production. Carver testified that because of the high demand for drilling rigs, he was unable to get a “work-over rig” to the well site until November 2010. Carver further testified that he constructed a pad for the pump, installed the hardware and equipment necessary to produce oil at the site, and replaced the pumping unit. Carver testified that he started the well up on November 29, 2010, to make sure it would produce, but he had to leave the site early due to a blizzard. Carver returned to the site on December 1, 2010, but he was prevented from returning the following day due to the severe weather conditions. ¶10 On December 9, 2010, Carver again managed to get to the well to prepare the site for inspection by the Montana Board of Oil and Gas Conservation (BOGC). An inspector from BOGC visited the site on December 10 and 13, 2010. The inspector reported that the well was producing and that there was over seven feet of oil in the storage tanks. The BOGC referred to this well as the “Moerman 14-30.” ¶11 Gleason called John Moerman on December 10, 2010, to notify him that the well was producing. The record indicates that John Moerman failed to inform his ex-wife of 2 PB Oil was not a party to this action. 5 Gleason’s call. The record further indicates that John attempted to testify at trial, but due to health and memory issues, he was excused. ¶12 Gleason contracted with Shell Oil Corp. to purchase the oil from Moerman 14-30, but before the oil could be sold, Gleason was required to obtain a mineral title opinion to demonstrate clear title to the oil. Gleason contacted several attorneys throughout the latter part of 2010 and the early part of 2011, but because of the growth of the Bakken oil fields in North Dakota, there was a significant backlog in the production of title opinions. Gleason testified at the January 19, 2012 trial that he expected to have a completed title opinion by February 15, 2012, after which time he could begin selling the oil. ¶13 While Prairie was working to produce oil at Moerman 14-30 in the south half of Section 30, and to bring it to market, the Moermans leased the mineral rights to the north half of Section 30 to another company. Irene testified that because she had not received notice that Moerman 14-30 was producing, she assumed the leases with Prairie had expired in December 2010. Because Irene wished to lease the mineral rights to the south half of Section 30 to the same drilling company to which the Moermans had leased the mineral rights to the north half of Section 30, the Moermans’ attorney sent a letter to Prairie dated February 18, 2011, requesting that Prairie release those leases. Although Gleason later acknowledged that he had received the Moermans’ letter, he did not respond. ¶14 Gleason testified that the cost to Prairie and TOI to get Moerman 14-30 producing was approximately $150,000. In addition, Carver testified that if the well was leased out from under him, he would either have to plug the well or sell the well bore, all of which 6 would result in his incurring significant losses. Consequently, Prairie declined to cancel the leases. ¶15 On July 27, 2011, the Moermans filed a complaint for declaratory judgment claiming that their oil and gas leases with Prairie had expired. The Moermans complained that they were unable to re-lease the premises unless Prairie’s lease was voided. Prairie counterclaimed for a declaration that the lease remained in effect, and alleged that the Moermans had breached the contract as well as the implied covenant of good faith and fair dealing. ¶16 A bench trial was held on January 19, 2012. On February 15, 2012, the District Court issued its Findings of Facts, Conclusions of Law, Judgment and Order wherein the court found the lease to be in full force and effect, and awarded Prairie its attorney fees and costs pursuant to § 82-1-202, MCA. Notably, the court also pointed out that “Defendant should consider that with better communication between it and Plaintiffs, this action may not have been filed.” The Moermans appealed. Standard of Review ¶17 This Court reviews the findings of fact of a district court sitting without a jury to determine if the court’s findings are clearly erroneous. Varano v. Hicks, 2012 MT 195, ¶ 7, 366 Mont. 171, 285 P.3d 592 (citing Olsen v. Milner, 2012 MT 88, ¶ 16, 364 Mont. 523, 276 P.3d 934). We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Somont Oil Co., Inc. v. A. & G. Drilling, Inc., 2002 MT 141, ¶ 14, 310 Mont. 221, 49 P.3d 598 (Somont I), overruled on other grounds by Johnson v. Costco Wholesale, 2007 MT 43, 336 Mont. 105, 152 P.3d 727 7 (citing Carbon County v. Union Reserve Coal Co., 271 Mont. 459, 469, 898 P.2d 680, 686 (1995)). ¶18 In addition, our standard of review of a trial court’s order granting or denying attorney fees and costs is whether the court abused its discretion. Somont Oil Co., Inc. v. A. & G. Drilling, Inc., 2006 MT 90, ¶ 25, 332 Mont. 56, 137 P.3d 536 (Somont II), overruled on other grounds by Johnson v. Costco Wholesale, 2007 MT 43, 336 Mont. 105, 152 P.3d 727 (citing Gullett v. Van Dyke Const. Co., 2005 MT 105, ¶ 12, 327 Mont. 30, 111 P.3d 220). Issue 1. ¶19 Whether the District Court correctly concluded that the parties’ oil and gas lease remained in effect. ¶20 The Moermans contend that the undisputed evidence demonstrates that the Moerman 14-30 well did not produce oil until after the expiration of the primary term of the lease. The Moermans also contend that even if Moerman 14-30 had produced oil in sufficient quantities to extend the lease beyond the primary term, Prairie failed to prove that the five-month cessation of production in 2011 was authorized under the temporary cessation of production doctrine. Consequently, the Moermans argue that based on either of these scenarios, the lease automatically terminated and they are entitled to an order declaring the same. ¶21 Prairie contends that the uncontroverted evidence indicates that Prairie had at all times acted with diligence in establishing oil production, and that the lease remained in effect because the Moerman 14-30 well did produce oil prior to the expiration of the 8 primary lease term. Prairie also contends that under the lease, a cessation of production of less than 180 days would not terminate the lease, and since there has not been a cessation of production for longer than 180 days, Prairie is entitled to continue to operate the well. ¶22 In construing an oil and gas lease, courts generally apply the rules of contract interpretation. Sandtana, Inc. v. Wallin Ranch Co., 2003 MT 329, ¶ 26, 318 Mont. 369, 80 P.3d 1224. In doing so, we have stated that the “ ‘intention of the parties is to be pursued if possible,’ ” and that this intention “ ‘is to be gathered from the entire agreement, not from particular words or phrases or disjointed or particular parts of it . . . . The contract must be viewed from beginning to end, and all its terms must pass in review; for one clause may modify, limit or illuminate the other.’ ” Sandtana, ¶ 26 (quoting Federal Land Bank v. Texaco, Inc., 250 Mont. 471, 474, 820 P.2d 1269, 1271 (1991); Lee v. Lee Gold Mining Co., 71 Mont. 592, 599, 230 P. 1091, 1093 (1924)). “It is well established that a court, in interpreting a written instrument, will not isolate certain phrases of that instrument in order to garner the intent of the parties, but will grasp the instrument by its four corners and in light of the entire instrument, ascertain the paramount and guiding intention of the parties.” Sandtana, ¶ 26 (quoting Federal Land Bank, 250 Mont. at 474-75, 820 P.2d at 1271; Steen v. Rustad, 132 Mont. 96, 102, 313 P.2d 1014, 1018 (1957)). ¶23 Because oil and gas leases deal with property of a highly speculative nature, “the protection of the interests of the lessor is considered of paramount importance.” Stanolind Oil & Gas Co. v. Guertzgen, 100 F.2d 299, 300 (9th Cir. 1938). Thus, we construe oil and gas leases liberally in favor of the lessor and strictly against the lessee. 9 Clawson v. Berklund, 188 Mont. 48, 53, 610 P.2d 1168, 1171 (1980). And, while forfeitures are not favored in other areas of the law, forfeitures of oil and gas leases are favored “to prevent lands being burdened by profitless and unworked leases.” Fey v. A. A. Oil Corp., 129 Mont. 300, 316, 285 P.2d 578, 586 (1955); see also Christian v. A. A. Oil Corp., 161 Mont. 420, 425, 506 P.2d 1369, 1372 (1973). ¶24 In this case, the Moermans contend that there was no oil production prior to December 1, 2010, thus the lease automatically terminated on that date. The Moermans also contend that assuming the lease did not terminate on December 1, 2010, it would have terminated by May 2011, because there was a cessation of production in paying quantities between December 2010, and May 2011. We have several problems with the Moermans’ arguments. ¶25 First, regarding the Moermans’ contention that the well did not produce oil prior to December 1, 2010, thereby terminating the lease, the Moermans have not provided any evidence to refute Prairie’s contention that oil was produced prior to the December 1, 2010 deadline. Keith Carver, the petroleum engineer who worked the well for PB Oil and TOI, testified as follows: A. . . . At 11/29 we started the well up to make sure it would produce, and we left the well site early, shutting the well down because of a blizzard. And then we didn’t go up there until after—into December and actually establish production with the well. Q. But you continued operations up to and through December 1st? A. Yes. The Moermans interpret Carver’s statement that they “established production” into December, to mean that no oil was produced on November 29, 2010, when Carver started 10 up the well. However, the District Court determined that Carver’s statement meant that some oil was produced from the well on November 29, 2010. The inference drawn by the District Court is correct since “established production” implies starting up the pump and seeing it produce oil. In addition, Carver also testified that he was at the well site on December 1, 2010. His testimony that they “didn’t go up there until after—into December and actually establish production with the well” could also be interpreted to mean that they established production on December 1, 2010, the last day of the primary term of the lease. ¶26 Second, contrary to the Moermans’ contentions, the lease clearly states that the production of oil is not the only thing that will prevent the lease from terminating on December 1, 2010. Rather, the lease states that it “shall remain in force for a term ending December 1, 2010 and as long thereafter as oil or gas of whatsoever nature or kind is produced from said leased premises . . . or drilling operations are continued as hereinafter provided.” (Emphasis added.) The lease goes on to state that “[i]f, at the expiration of the primary term of this lease, oil or gas is not being produced on the leased premises . . . but Lessee is then engaged in drilling or re-working operations thereon, then this lease shall continue in force so long as operations are being continuously prosecuted on the leased premises . . . . (Emphasis added.) ¶27 In this case, Carver was actively engaged in re-working operations at the well both before and after December 1, 2010. Carver moved a work-over rig to the site, engineered the well to produce, constructed a pad for the pump, installed the hardware and equipment necessary to produce oil at the site, and replaced the pumping unit. Carver 11 started the unit pumping on November 29, 2010, but was forced off the site by a blizzard. In addition, service records indicate that Carver plowed the well out on December 1, 2010, but he was precluded from getting to the site the next day due to the harsh weather. Carver successfully got to the site and produced the well again for a state inspector on December 9 and 10, 2010. ¶28 Third, the Moermans cite this Court’s decision in Somont I for the proposition that “the cessation of production in paying quantities” will trigger the automatic termination of a lease. See Somont I, ¶ 26. Thus, they maintain that the cessation of production at Moerman 14-30 for the five months from December 2010, to May 2011, terminated their lease with Prairie. ¶29 We stated in Somont I that “once a plaintiff establishes that an oil and gas lease has halted production, the burden shifts to the defendant to prove that the cessation was temporary and not permanent. A temporary cessation in production will not trigger an automatic termination of the lease,” but “[a] cessation in production will only be deemed temporary when it is caused by a sudden stoppage of the well or a mechanical breakdown of the equipment used in connection with the well, or the like.” Somont I, ¶¶ 28, 33. ¶30 However, we also stated in Somont I, that this does not hold true in every case, but only “in most oil and gas leases operating pursuant to the conditions of the secondary term.” Somont I, ¶ 26 (emphasis added). Under the terms of the lease at issue in this case, the secondary term allows for a cessation of production “from any cause” not just for “a sudden stoppage of the well or a mechanical breakdown,” provided that the cessation of production is less than 180 days: 12 If after the discovery of oil or gas on said land . . . the production thereof should cease from any cause after the primary term, this lease shall not terminate if Lessee commences additional drilling or re-working operations within one hundred eighty (180) days from the date of cessation of production or from date of completion of dry hole. [Emphasis added.] ¶31 We further held in Somont I, that “[t]he diligent lessee who takes immediate steps to rectify a sudden halt in production will not lose his or her investment” during such a temporary stoppage. Somont I, ¶ 32. “The test for determining whether there was sufficient production or whether the lessee was acting with reasonable diligence in producing and marketing the gas from the leased lands is the diligence which would be exercised by the ordinary prudent operator having regard to the interests of both lessor and lessee. This is a question of fact that will depend upon the facts and circumstances of each case.” Somont I, ¶ 27 (quoting Christian, 161 Mont. at 427-28, 506 P.2d at 1373). ¶32 In this case, Gleason testified that he had contracted with Shell Oil Corp. to purchase the oil from Moerman 14-30, but before the oil can be sold, he has to obtain a mineral title opinion to demonstrate that he has clear title to the oil. Gleason further testified that he began contacting attorneys to get a title opinion beginning in September 2010, but because of the growth of the Bakken oil fields in North Dakota, there is a significant backlog in the production of title opinions. Gleason also testified that once this legal hurdle is overcome and they can start selling the oil, the well should initially produce 17 to 20 barrels of oil per day which will stabilize at 12 to 14 barrels per day, and at $100 per barrel, that will be a profitable amount. ¶33 Based on the foregoing, we hold that the District Court correctly concluded that the parties’ oil and gas leases to the Moerman 14-30 well remained in effect. 13 Issue 2. ¶34 Whether the District Court was correct in awarding Prairie its attorney fees. ¶35 The District Court awarded Prairie its attorney fees under § 82-1-202(1), MCA, because the Moermans failed to establish that the lease to the Moerman 14-30 well had been forfeited. Section 82-1-202(1), MCA, provides: If the lessee or assignee of a lease neglects or refuses to execute a release as provided by this part, the owner of the leased premises may sue in any court of competent jurisdiction to obtain the release, and in that action the owner may also recover from the lessee or the lessee’s successor or assigns the sum of $100 as damages, all costs, together with reasonable attorney fees for preparing and prosecuting the suit, and any additional damages that the evidence in the case warrants. . . . If in the action the plaintiff fails to establish the forfeiture of the lease, attorney fees must be allowed to the lessee or assignee of the lease. Issues in regard to attorney fees must be determined in the same manner as other issues in those actions. [Emphasis added.] ¶36 As we indicated previously in this Opinion, we review a trial court’s order granting or denying attorney fees and costs to determine whether the trial court abused its discretion. Somont II, ¶ 25 (citing Gullett, ¶ 12). Finding no abuse of discretion in this case, we hold that because the Moermans failed to establish that the leases in question in this case had been forfeited, Prairie’s attorney fees in defending this action are recoverable under § 82-1-202, MCA. ¶37 In addition, in its response brief on appeal, Prairie requested that it be awarded its attorney fees incurred on appeal. The Moermans did not refute Prairie’s argument regarding attorney fees on appeal as the Moermans declined to file a reply brief. Consequently, we conclude that pursuant to § 82-1-202, MCA, Prairie is also entitled to 14 its attorney fees on appeal, and we remand to the District Court for a determination of those fees. ¶38 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BRIAN MORRIS /S/ JIM RICE | August 27, 2013 |
d313d510-2fc4-4474-9604-44d44f18db56 | Weaver v. DNRC | 2013 MT 247 | DA 12-0506 | Montana | Montana Supreme Court | DA 12-0506 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 247 L. FRED WEAVER, JOAN WEAVER, and VICKI WEAVER, Plaintiffs, Appellees, and Cross-Appellants, v. STATE OF MONTANA and MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, Defendants, Appellants, and Cross-Appellees. APPEAL FROM: District Court of the Third Judicial District, In and For the County of Granite, Cause No. DV 02-25 Honorable Ray J. Dayton, Presiding Judge COUNSEL OF RECORD: For Appellants: Robert E. Sheridan, Jeffrey M. Roth; Garlington, Lohn & Robinson, PLLP; Missoula, Montana For Appellees: Quentin M. Rhoades, Liesel Shoquist, Robert Erickson; Sullivan, Tabaracci & Rhoades, P.C.; Missoula, Montana Submitted on Briefs: June 12, 2013 Decided: September 3, 2013 Filed: __________________________________________ Clerk September 3 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 The State of Montana appeals a Granite County jury’s verdict awarding damages to L. Fred Weaver, Joan Weaver and Vicki Weaver (the Weavers) from the State’s negligent fire containment procedures on their real property. The Weavers cross-appeal the Third Judicial District Court’s denial of their post-trial motion for sanctions. The State raises the following issues on appeal: ¶2 1. Whether the District Court erred when it denied the State’s motion to dismiss the Weavers’ negligence claim. ¶3 2. Whether the District Court erred when it granted the Weavers’ motion to strike and prohibited the State from asserting a public duty doctrine defense. ¶4 3. Whether the District Court incorrectly allowed the jury to find the State negligent in the absence of expert testimony establishing the standard of care. ¶5 4. Whether the District Court abused its discretion by denying the State’s motion to change venue. ¶6 The Weavers raise one issue in their cross-appeal: ¶7 Whether the District Court abused its discretion by denying the Weavers’ motion for discovery sanctions against the State. ¶8 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶9 On August 7, 2000, a wildland fire started in the Ryan Creek drainage north of Interstate 90 in Granite County, near the Weavers’ real property. Among other procedures employed to contain what became known as the Ryan Gulch Fire, the State initiated a “back burn” fire, a technique used to decrease the amount of flammable 3 material in the fire’s path. On August 13, 2000, fire spread onto the Weavers’ property, causing substantial damage. ¶10 On December 17, 2002, the Weavers filed a complaint alleging that the State failed to “exercise ordinary care in the control, suppression and containment of the Ryan Gulch Fire.” The Weavers alleged that their property was not damaged by the original Ryan Gulch Fire, but instead by the back burn fire, which the State had failed to control. The Weavers alleged that the State negligently started the back burn fire, in “high wind conditions without adequate means of control and/or suppression.” Additionally, the Weavers alleged that the back burn fire was unnecessary because the original wildland fire already had been contained through the efforts of local ranchers and farmers. The Weavers sustained damage to “timber, grazing land, natural resources and other property.” On February 13, 2003, the State filed an answer denying liability for negligence and inverse condemnation and pleading several defenses. The parties engaged in discovery for some period of time and the case then lay dormant for approximately six years before the Weavers obtained new counsel in 2010. In November 2010, the District Court issued a scheduling order directing the parties to submit all motions by December 16, 2011, and to present the pretrial order and file all trial briefs by March 16, 2012. The court set the trial date for April 9, 2012. ¶11 The Weavers amended their complaint on April 21, 2011, to add a claim of inverse condemnation, alleging that the State damaged their property for public use. The State 4 answered the amended complaint, again asserting several defenses. Neither answer raised the public duty doctrine as a defense. ¶12 In accordance with the scheduling order, the parties submitted their proposed pretrial order and respective trial briefs on March 16, 2012. The Weavers’ trial brief was directed exclusively to their inverse condemnation claim. The pretrial order included the State’s contention that it was not liable to the Weavers under the public duty doctrine because, when a “governmental entity owes a duty to the general public, that duty is not owed to any specific individual.” The State presented legal argument on this contention in its trial brief. ¶13 Both parties filed motions in response to the other’s trial brief. The Weavers moved to strike the public duty doctrine defense because the State raised it for the first time in the proposed pre-trial order; they argued that the public duty doctrine is an affirmative defense under M. R. Civ. P. 8(c) that is waived if not pleaded. The District Court agreed that the State was required to plead the public duty doctrine as an affirmative defense and granted the motion to strike. The court held that, even if it was not an affirmative defense, the State’s “failure to plead or otherwise raise the defense has prejudiced Plaintiffs.” ¶14 In response to the Weavers’ trial brief, the State moved to dismiss based on an alleged judicial admission in the brief that the State’s fire management procedures were “reasonable and necessary,” rather than negligent. The next day, the Weavers filed a Notice of Errata to correct the language the State had cited in support of its motion. 5 Following argument from both parties, the District Court denied the State’s motion in open court at the conclusion of a pretrial hearing. ¶15 The State moved for a change of venue on March 29, 2012, due to publication of three articles in the March 8, 2012 edition of the local newspaper, which the State argued contained biased and inflammatory comments that contaminated the potential jury pool. The District Court denied that motion in open court as well. The court considered whether the State had shown either presumed or actual prejudice, pursuant to State v. Kingman, 2011 MT 269, 362 Mont. 330, 264 P.3d 1104. The court determined that the State failed to show presumed prejudice and that the existence of actual prejudice could not be evaluated until the parties had conducted voir dire. ¶16 After eight days of trial, the jury reached a verdict against the Weavers on their claim of inverse condemnation, but decided that the State negligently caused damage to the Weavers’ property. By a vote of nine to three, the jury awarded damages to the Weavers in the amount of $730,000. Following the trial, the Weavers filed a “Motion for Entry of Judgment on Jury Verdict,” requesting sanctions on the ground that the State had committed “prejudicial discovery abuse” by providing inaccurate dates in the captions of photographs of the wildfire, some of which were produced during discovery. A witness for the State had corrected the photograph dates at trial. The District Court denied the motion, “given the verdict in favor of the Plaintiffs” and “lack of prejudice and bad faith.” The State appeals the jury’s verdict and the Weavers cross-appeal the District 6 Court’s denial of sanctions. Additional facts from the record and applicable standards of review will be discussed with respect to each issue. DISCUSSION ¶17 1. Whether the District Court erred when it denied the State’s motion to dismiss the Weavers’ negligence claim. ¶18 As noted, the State sought dismissal of the negligence claim based on the statement in the Weavers’ trial brief that the State’s firefighting measures were “reasonable and necessary”—a statement the State argues constituted a judicial admission. Standard of Review ¶19 Where error has been predicated on the determination of a judicial admission, our cases have applied the typical standard of review for findings of fact and conclusions of law. That is, we review a district court’s factual findings to determine whether they are clearly erroneous and its conclusions of law for correctness. See e.g. Hart v. Hart, 2011 MT 102, ¶ 10, 360 Mont. 308, 258 P.3d 389; Conagra, Inc. v. Nierenberg, 2000 MT 213, ¶¶ 22-23, 301 Mont. 55, 7 P.3d 369. Whether a statement is one of fact or law, for the purpose of determining if the statement should be considered a judicial admission, is a question of law. See Stevens v. Novartis Pharms. Corp., 2010 MT 282, ¶ 75, 358 Mont. 474, 247 P.3d 244 (“The District Court correctly ruled that Stevens’ statements made in prior pleadings were not judicial admissions because they were not statements of fact.”). Ultimately, a district court’s determination whether a statement constitutes a judicial admission “depends upon the circumstances of each case.” Kohne v. Yost, 250 Mont. 7 109, 113, 818 P.2d 360, 362 (1991). As such, we will review that determination for an abuse of discretion. American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 227 (9th Cir. 1988) (“[S]tatements of fact contained in a brief may be considered admissions of the party in the discretion of the district court.”); see also Gospel Missions of Am. v. City of L.A., 328 F.3d 548, 557 (9th Cir. 2003) (“We have discretion to consider a statement made in briefs to be a judicial admission, . . . binding on both this court and the trial court.” (citations omitted)). Analysis ¶20 A judicial admission is a statement or “express waiver” made in a court proceeding by a party or its counsel “conceding the truth of an alleged fact.” Bitterroot Int’l Sys. v. Western Star Trucks, Inc., 2007 MT 48, ¶ 41, 336 Mont. 145, 153 P.3d 627. Judicial admissions may be made at “‘any point during the litigation process,’ including ‘during discovery, pleadings, opening statements, direct and cross-examination, as well as closing arguments.’” Novartis, ¶ 74 (quoting In re Est. of Hill, 281 Mont. 142, 149-50, 931 P.2d 1320, 1325 (1997)). “A judicial admission has a conclusive effect upon the party who makes it, and prevents that party from introducing further evidence to prove, disprove, or contradict the admitted fact.” Hart, ¶ 14 (quoting Bitteroot Int’l Sys., ¶ 41). A judicial admission is not binding unless it is “an unequivocal statement of fact and not the expression of an opinion or a legal conclusion.” Papich v. Quality Life Concepts, Inc., 2004 MT 116, ¶ 31, 321 Mont. 156, 91 P.3d 553 (citation omitted). 8 ¶21 The Weavers’ trial brief did not address their claim of negligence, but focused exclusively on their inverse condemnation claim: This was not an irrational decision given the cost to society in shutting down the power supply for hundreds of thousands of people in Missoula and the Inland Northwest, in destroying telephone and 911 equipment, in closing [Interstate 90], in burning up the radio gear at Union Peak or losing the historic site of Garnet. It was surely a reasonable and necessary decision to direct the fire to the east, or to at least let it move across the Weaver property to flatter, defensible space. But the destruction of the Weaver Ranch to serve the great[er] good was, ultimately, a taking. ¶22 The day after the State moved to deem the above statement a judicial admission, the Weavers filed a notice of errata due to an alleged “scriveners’ error,” amending their trial brief to read: Whether or not it was a reasonable and necessary decision to direct the fire to the east, or to at least let it move across the Weaver property to flatter, defensible space, the destruction of the Weaver Ranch to serve the greater good was, ultimately, a taking. The State asserted that even the amended trial brief reflected a theme that the State’s fire-fighting measures were reasonable and appropriate given the circumstances. The District Court denied the State’s motion based on its observation that the statement concerned the Weavers’ alternative inverse condemnation claim and its determination that the disputed portion of the Weavers’ trial brief constituted a conclusion of law, not an admission of fact. ¶23 The State argues that the above-quoted language characterizes what the firefighting team did while suppressing the fire and thus constitutes an admission of fact. According to the State, “the Weavers conceded the State acted reasonably.” The 9 Weavers assert that they “admitted no facts” in their trial brief and point out that the issues of law stipulated in the pretrial order included whether the State’s actions in fighting the fire were reasonable. In the event that the statement in their pretrial brief amounted to a judicial admission, the Weavers argue that they promptly withdrew it upon discovery of their “scrivener’s error.” ¶24 We agree with the District Court that the relevant language in the Weavers’ pretrial brief was not an “unequivocal statement of fact.” Papich, ¶ 31. As the District Court noted, the trial brief addressed the Weavers’ inverse condemnation claim, not their alternative claim of negligence. See Novartis, ¶ 70 (pleadings “permit hypothetical and inconsistent claims”). Further, whether the State “acted reasonably” in directing the fire to the east was not a fact, but a legal conclusion to be based on the facts found by the jury. Novartis, ¶¶ 73-75 (statement in pleading that doctor was negligent for failure to communicate risk was a conclusion of law and therefore not a judicial admission). ¶25 Kohne v. Yost, on which the State relies, is not controlling. There, we held that a jury verdict finding the defendant not negligent could not stand where defense counsel conceded negligence during closing arguments and admitted that his client had fired a B.B. gun at the plaintiff. Kohne, 250 Mont. at 110-111, 818 P.2d at 360-361. We held that the “[d]efense counsel’s unequivocal statements, taken in full context with the rest of his closing argument, constituted judicial admissions on the issue of negligence binding his client.” Kohne, 250 Mont. at 113, 818 P.2d at 362. The Kohne court did not analyze separately which of counsel’s statements were admissions of fact as opposed to 10 conclusions of law, but examined the statements as a whole in light of the circumstances of the case. Kohne, 250 Mont. at 113, 818 P.2d at 362. Here, in contrast to Kohne, the context surrounding the Weavers’ statement indicates it was not an admission of fact on their alternative theory of negligence. ¶26 In further contrast to Kohne, the Weavers immediately modified the disputed language to clarify their intended meaning. See Conagra, Inc., ¶ 45 (a judicial admission is “not effective if it was subsequently modified or explained so as to show that the litigant was mistaken” (quoting Griffin v. Superior Ins. Co., 338 S.W.2d 415, 418 (Tex. 1960)) (internal quotation marks omitted)). Based on its review of the circumstances of this case, the District Court did not abuse its discretion in determining that the statement did not constitute a judicial admission. ¶27 2. Whether the District Court erred when it granted the Weavers’ motion to strike and prohibited the State from asserting a public duty doctrine defense? The District Court’s Ruling ¶28 The Weavers’ amended complaint alleged that the State “owed a duty to [the Weavers] to act in a reasonable manner and to exercise ordinary care in the control, suppression and containment of the Ryan Gulch Fire.” The State answered that allegation as follows: “Answering paragraph 13, admits that the State owed to the Plaintiffs any duties prescribed by law, but deny the remaining assertions of said paragraph.” The State did not mention the public duty doctrine in its answer or file any pretrial motions on the issue. 11 ¶29 On March 16, 2012—three weeks before the trial began—the State filed its trial brief. For the first time since the Weavers filed their complaint in 2002, the State asserted in that brief that the Weavers’ negligence claim was fatally flawed because they could not establish that the State owed them a duty of reasonable care pursuant to the public duty doctrine. The State summarized its position in the Pretrial Order: The existence of a legal duty is a question of law to be determined by the Court. If there is no duty, there can be no breach of duty and a requisite element of a negligence claim is missing. Montana has adopted the public duty doctrine[,] which provides that where a governmental entity owes a duty to the general public, that duty is not owed to any specific individual. Montana Code Annotated § 76-13-115, which sets forth the State fire policy[,] provides in part, “(5) all private property in Montana has wildfire protection from a recognized fire protection entity.” Thus, with regard to [the State’s] efforts to suppress the Ryan Gulch fire, there was no duty to specific individuals such as the [Weavers,] but only to the general public. ¶30 In the Weavers’ motion to strike this argument from the Pretrial Order, they argued that the “State should not be allowed to include . . . matters in the Pretrial Order that it did not include in its pleadings” as either contentions or affirmative defenses because allowing such a tactic deprived the Weavers of “fair notice, possibl[e] discovery, and the opportunity for motion practice . . . .” ¶31 After determining that the public duty doctrine was an affirmative defense that should have been raised in the State’s answer, the court ruled as follows: Even if the public duty doctrine does not constitute an “avoidance” or affirmative defense under M. R. Civ. P. 8(c), Defendants’ failure to plead or otherwise raise the defense has prejudiced Plaintiffs. Defendants’ pleadings do not provide Plaintiffs with notice that the public duty doctrine would be asserted as a defense. The [State’s] Amended Answer does not assert any specific defenses with respect to a duty. The Court’s review of the file indicates that the public duty doctrine was not raised by Defendants 12 at any time prior to its inclusion in the [Pretrial Order]. Defendants’ failure to raise the public duty doctrine earlier in this case has prejudiced the ability of Plaintiffs to conduct discovery and gather facts that might defeat the defense. Under these circumstances, it would be prejudicial and unfair to permit Defendants to assert the public duty doctrine on the eve of trial. Standard of Review ¶32 Because the District Court granted the motion to strike based on its determination that the Weavers would be prejudiced by the State’s failure to raise the issue until three weeks before trial, we review its determination for abuse of discretion as a matter of trial administration. Fink v. Williams, 2012 MT 304, ¶ 18, 367 Mont. 431, 291 P.3d 1140; Blanton v. Dep’t of Pub. HHS, 2011 MT 110, ¶ 22, 360 Mont. 396, 255 P.3d 1229. Analysis ¶33 The State asserts that the District Court erroneously held that it was required to plead the public duty doctrine as an affirmative defense. Since the public duty doctrine “asks whether liability exists in the first place—whether a duty is owed under the facts— not whether the defendant can avoid liability despite the existence of a duty,” the State argues that it does not qualify as an affirmative defense. The State does not address the District Court’s alternative rationale for striking the defense—that the State prejudiced the Weavers by asserting it at such a late date. ¶34 M. R. Civ. P. 8(c)(1) provides that “[i]n responding to a pleading, a party must affirmatively state any avoidance or affirmative defense . . . .” We have explained the distinction between a denial under M. R. Civ. P. 8(b) and an affirmative defense under Rule 8(c): “Rule 8(b), M.R.Civ.P., ‘is concerned with negative defenses—those that 13 controvert the adversary’s claim. Rule 8(c), on the other hand, is concerned with affirmative defenses—the pleading of matter that is not within the claimant’s prima facie case.’” Burns v. Cash Constr. Lien Bond, 2000 MT 233, ¶ 32, 301 Mont. 304, 8 P.3d 795 (quoting Sterrett v. Milk River Prod. Credit Ass’n, 234 Mont. 459, 463-64, 764 P.2d 467, 469 (1988)). ¶35 The parties point out that this Court has not addressed whether the public duty doctrine is an affirmative defense that must affirmatively be pleaded under M. R. Civ. P. 8(c). Given the manner in which this case was pleaded and in which it proceeded, and in light of the District Court’s ultimate basis for its ruling, we determine that this is not the appropriate case in which to decide that question. We have observed that Rule 8(c) concerns the underlying principles of “fairness and notice.” Ammondson v. Northwestern Corp., 2009 MT 331, ¶ 55, 353 Mont. 28, 220 P.3d 1. Likewise, under Rule 8(b), a defendant’s pleading must “apprise the opponent of those allegations in the complaint that stand admitted and will not be in issue at trial and those that are contested and will require proof to be established to enable the plaintiff to prevail.” Wright & Miller, Federal Practice and Procedure: Civil 3d § 1261, 526 (West 2004). Because the State raised the public duty doctrine so close to the date of trial, the District Court concluded that the Weavers would have no opportunity to explore applicability of the doctrine to their case, such as whether any special relationship exception applied (e.g. Nelson v. State, 2008 MT 336, ¶ 36, 346 Mont. 206, 195 P.3d 293); likewise, there was inadequate time for the issue to be briefed and considered by the court before trial. Given that the 14 State’s answer did not unequivocally deny the existence of a duty, and given further its failure to raise the issue of duty—an issue of law—at any time prior to filing its trial brief, the District Court was within its discretion to hold that the Weavers had not sufficiently been put on notice that the State intended to invoke the public duty doctrine and that it would unfairly prejudice them to allow the issue to be raised at that late stage in the proceedings. ¶36 “In determining whether a trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court, but rather whether the trial court acted arbitrarily without the employment of conscientious judgment or exceeded the bounds of reason, resulting in substantial injustice.” State v. Price, 2006 MT 79, ¶ 17, 331 Mont. 502, 134 P.3d 45. We do not decide in this case whether or not the public duty doctrine is an affirmative defense or whether or not it could apply to claims arising from government efforts to suppress wildfires. We hold only that the District Court did not abuse its discretion in striking the defense under the circumstances presented here. ¶37 3. Whether the District Court incorrectly allowed the jury to find the State negligent in the absence of expert testimony establishing the standard of care. Standard of Review ¶38 This Court generally “do[es] not address issues raised for the first time on appeal.” Robison v. Mont. Dept. of Revenue., 2012 MT 145, ¶ 26, 365 Mont. 336, 281 P.3d 218. Analysis ¶39 The State argues that the Weavers failed to establish through expert testimony the standard of care for wildfire suppression and, as a result, also failed to establish the 15 elements of breach and causation in support of their negligence claim. On that basis, the State contends that the Weavers did not meet their burden of proof and “their negligence claim failed as a matter of law.” ¶40 The Weavers argue that the State waived review of this issue by failing to raise it before the District Court. In particular, the Weavers point out that the State did not challenge the instructions provided to the jury regarding duty, breach and causation, nor did it move at any time for judgment as a matter of law. The State does not address the waiver argument in its reply brief. ¶41 The trial court instructed the jury on the standard of care as follows: Every person or entity is responsible for injury to the property of another, caused by its negligence. Negligence is the failure to use reasonable care. Negligence may consist of action or inaction. A person or entity is negligent if they fail to act as an ordinarily prudent person would act under the circumstances. The State did not object to this instruction, and in fact proposed a virtually identical instruction. There was no discussion during settlement of instructions that expert testimony had not been offered sufficient to establish the standard of care. ¶42 “Under Montana law, expert testimony is required to establish the standard of care ‘unless the conduct complained of is readily ascertainable by a lay[person].’” Brookins v. Mote, 2012 MT 283, ¶ 63, 367 Mont. 193, 292 P.3d 347 (quoting Deaconess Hosp. v. Gratton, 169 Mont. 185, 189, 545 P.2d 670, 672 (1976)). Where the standard of care must be established by expert testimony, it is well-established that without such expert testimony, “no genuine issue of material fact exists and the defendant is entitled to 16 judgment as a matter of law.” Estate of Willson v. Addison, 2011 MT 179, ¶ 17, 361 Mont. 269, 258 P.3d 410 (citing cases). The State did not object to instructing the jury on the Weavers’ claim of negligence on the basis that they had failed to prove an essential element of their cause of action. Although the State argues on appeal that Richard Mangan, the Weavers’ expert on fire suppression efforts, failed to establish the standard of care for managing the fire, the State did not object to his testimony on that ground, nor did the State move for judgment as a matter of law for the Weavers’ failure to present evidence of breach of the applicable standard of care. Both cases the State cites in support of its position that expert testimony was required are cases in which this Court upheld summary judgment. Dayberry v. City of E. Helena, 2003 MT 321, 318 Mont. 301, 80 P.3d 1218; Dubiel v. Mont. Dept. of Transp., 2012 MT 35, 364 Mont. 175, 272 P.3d 66. ¶43 We agree with the Weavers that the State “cannot now claim that it was denied something that was never requested of, or actually denied by, the District Court.” Schwabe v. Custer’s Inn Assocs., 2000 MT 325, ¶ 57, 303 Mont. 15, 15 P.3d 903 (overruled on other grounds, Giambra v. Kelsey, 2007 MT 158, ¶ 58, 338 Mont. 19, 162 P.3d 134); see Horn v. Bull River Country Store Props., 2012 MT 245, ¶ 25, 366 Mont. 491, 288 P.3d 218 (“We will not place the District Court in error ‘for an action to which the appealing party acquiesced . . . .’” (quoting In re A.A., 2005 MT 119, ¶ 26, 327 Mont. 127, 112 P.3d 993)); § 1-3-207, MCA. The State does not cite any instance in the record 17 where it objected to the Weavers’ failure to present sufficient evidence on the standard of care. We conclude that the State has waived review of this issue. ¶44 4. Whether the District Court abused its discretion by denying the State’s motion to change venue. Standard of Review ¶45 We review a district court’s ruling on a motion for change of venue for an abuse of discretion. Eklund v. Wheatland Co., 2009 MT 231, ¶ 15, 351 Mont. 370, 212 P.3d 297. “The trial judge is uniquely positioned to assess whether a change of venue is called for due to prejudice in the community.” State v. Kingman, 2011 MT 269, ¶ 40, 362 Mont. 330, 264 P.3d 1104. Analysis ¶46 Section 25-2-201, MCA, provides in relevant part that “[t]he court or judge must, on motion, change the place of trial” when “there is reason to believe that an impartial trial cannot be had therein,” or “when the convenience of witnesses and the ends of justice would be promoted by the change.” Section 25-2-201(2)-(3), MCA. We recently clarified that prejudice may be actual or presumed. Presumed prejudice occurs when “prejudicial, inflammatory publicity about a case has so saturated the community as to warrant a presumption that an impartial jury cannot be drawn therefrom.” Kingman, ¶ 42. Actual prejudice is established when it is shown, “through voir dire or other means[,] that the jury pool harbors actual partiality or hostility against the defendant that cannot be laid aside.” Kingman, ¶ 32. 18 ¶47 As noted, prior to trial, the State moved to change venue on the basis of articles in the Philipsburg Mail that allegedly were “clearly biased in favor of Plaintiffs.” The State asserted that, within one month before trial, the Philipsburg Mail published “three (3) separate articles which indicted the Defendants for setting a fire that burned onto Plaintiffs’ property and further reports that one of the supervisors on the fire apologized for having burned across the Plaintiffs’ property.” The State suggested that these articles were “prejudicial and inflammatory information about the alleged cause of the fire” and that, given the large readership of the newspaper, small population of Granite County, and small size of the jury pool, an impartial jury could not be obtained. ¶48 During its March 29, 2012 hearing, the District Court considered the parties’ arguments and denied the State’s motion to change venue. The court explained that the State had not demonstrated presumed prejudice on the basis of “one edition of the Philipsburg Mail that discussed the trial,” and also would not be able to demonstrate actual prejudice until voir dire had taken place. To address the State’s concerns, the court proposed a process by which it would attempt expeditiously to add thirty-five jurors to the current pool. Both parties expressed agreement with that procedure: [THE COURT:] So Plaintiff are you okay with that process for going back to fill in the jury? MR. RHOADES: Yes, Your Honor, so stipulated. THE COURT: Okay. And Mr. Sheridan? MR. SHERIDAN: We would so stipulate, Your Honor. 19 The District Court also stated that it would increase the amount of time permitted for jury selection. ¶49 During voir dire, the State struck several prospective jurors for cause, but ultimately agreed to the twelve empanelled jurors, stating, “[w]e would pass these jurors for cause, Your Honor.” The State does not reference on appeal, and the record does not reflect, any objection made by the State at trial that an impartial jury could not be selected. Nor did the State renew its motion for change of venue at the conclusion of voir dire. We made clear in Kingman the standards and procedures for analyzing presumed and actual prejudice. Though analyzed in the context of a criminal proceeding, both parties cite Kingman on this point and we agree that its analysis applies here: As the basis of a motion for change of venue, the defendant may allege presumed prejudice, actual prejudice, or both. Where presumed prejudice is alleged—meaning that the court is being asked to presume that jurors selected from the community cannot be impartial—the bar is extremely high. The defendant must demonstrate that an irrepressibly hostile attitude pervades the jury pool or that the complained-of publicity has effectively displaced the judicial process and dictated the community’s opinion as to the defendant’s [liability]. . . . Where such extreme circumstances are not present, and actual prejudice is alleged, the defendant must show through voir dire or other means that the jury pool harbors actual partiality or hostility against the defendant that cannot be laid aside. Kingman, ¶ 32. ¶50 The State does not argue presumed prejudice on appeal. It argues, rather, that the record shows actual prejudice demonstrated by the prospective jurors during voir dire. By its failure to renew the motion, however, the State did not give the District Court an opportunity to revisit the venue ruling on the basis of any “actual partiality or hostility” 20 evidenced during voir dire. Under these circumstances, the State effectively acquiesced in the District Court’s ruling denying the motion to change venue and failed to preserve the issue for appeal. Section 1-3-207, MCA; Horn, ¶ 25; In re A.A., ¶ 26. ¶51 5. Whether the District Court abused its discretion by denying the Weavers’ motion for sanctions against the State. Standard of Review ¶52 This Court will reverse a trial court’s refusal to invoke M. R. Civ. P. 37 sanctions “only when the trial court’s judgment materially affected the substantial rights of the parties or allowed a possible miscarriage of justice.” In re Marriage of Rada, 263 Mont. 402, 406, 869 P.2d 254, 256 (1994). We review a trial court’s rulings on post-trial motions for abuse of discretion. State ex rel. State Compen. Mut. Ins. Fund v. Berg., 279 Mont. 161, 175, 927 P.2d 975, 983 (1996). Analysis ¶53 The Weavers sought an award of attorneys’ fees and prejudgment interest as a result of what they allege to be “egregious” discovery abuse by the State. The Weavers’ motion arose from their realization during trial that some photographs of the fire taken by State witnesses had not been produced in discovery or bore incorrect dates, and their claim that a video of the fire was untimely produced and also had an incorrect date. The Weavers alleged that the State knowingly sponsored inaccurate trial exhibits and deliberately failed to produce requested photographs until after the trial had concluded. ¶54 While the State admitted that the videotape of the Ryan Gulch Fire, which was provided shortly before trial, should have been disclosed in a more timely manner, the 21 District Court concluded that there was no indication that the State had acted in bad faith and that the Weavers had not shown that the State had concealed, destroyed or altered any documents. The court observed, rather, that it became apparent immediately before and during the trial that some of dates captioned were inconsistent with metadata on the photographs, which one witness explained during his testimony. The court further observed that the incorrect date on the video was brought out during cross-examination of another witness. The District Court noted the importance of the evidence concerning the status and location of the fire on various dates and commented that, had the trial produced a different outcome, the dates on the photographs “might well be problematic.” In light of the verdict, however, the court could “conceive of no prejudice to the Plaintiffs.” ¶55 On appeal, the Weavers have offered no additional reasons for concluding that the State acted willfully or in bad faith. While they posit that the verdict on their inverse condemnation claim “could well have” been different had the Weavers received accurate and unedited photographs and video before trial, this claim is speculative. The Weavers have failed to demonstrate that the trial court’s judgment “materially affected the substantial rights of the parties or allowed a possible miscarriage of justice.” Marriage of Rada, 263 Mont. at 406, 869 P.2d at 256. The trial court was in the best position to evaluate the State’s lack of bad faith and the absence of prejudice to the Weavers and did not abuse its discretion in denying their motion for sanctions. 22 CONCLUSION ¶56 The judgment of the District Court is affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ BRIAN MORRIS | September 3, 2013 |
9949221f-3443-4030-afc0-86c8d581426e | Unterholzner v. Blake | 2013 MT 269N | DA 12-0726 | Montana | Montana Supreme Court | DA 12-0726 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 269N WARREN UNTERHOLZNER and DOROTHY UNTERHOLZNER, Plaintiffs and Appellees, v. JAMES BLAKE, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADV-2012-808 Honorable Jeffrey M. Sherlock, Presiding Judge COUNSEL OF RECORD: For Appellant: James Blake, self-represented, Helena, Montana For Appellees: Gregory W. Duncan, Attorney at Law, Helena, Montana Submitted on Briefs: August 28, 2013 Decided: September 17, 2013 Filed: __________________________________________ Clerk September 17 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Warren and Dorothy Unterholzner (Unterholzners) initiated this action in the Lewis and Clark County Justice Court and sought, pursuant to the Montana Unlawful Detainer Act, removal of James Blake (Blake) from a residence they owned in the Birdseye area near Helena. Unterholzners permitted Blake to reside in the home during the winter months of 2009-2010 and 2010-2011 when he had nowhere to live, and Blake looked after the property. However, when Unterholzners required Blake to leave the property so it could be used by a group of people in the spring of 2011, Blake refused. After an initial Justice Court judgment in favor of Unterholzners was reversed on appeal to the District Court, and Blake filed a motion for substitution of judge, the case was tried before Hon. Bob Wood in May 2012. According to the Justice Court’s findings of fact and conclusions of law, Blake “had no legal right and basis to stay” in the house, and Unterholzners “were compelled to legal action to have Mr. Blake removed.” The Justice Court concluded that Unterholzners were owed attorney fees and costs. 3 ¶3 Blake appealed to the District Court. The District Court began its discussion by noting that Blake’s failure to timely file a brief in support of the appeal, despite having notice of the requirement to do so, subjected the appeal to dismissal. The District Court further determined, “after a complete review of the file in this matter and the audio recording of the May 2012 trial,” to affirm the judgment entered by the Justice Court “in all respects,” and awarded attorney fees and costs to Unterholzners on appeal. After consideration of Unterholzners’ fee affidavit and Blake’s objections thereto, the District Court entered an order explaining it had ruled in Unterholzners’ favor on two grounds: for Blake’s failure to file a brief, and upon consideration of the evidence. The District Court stated that the case began as a result of Blake’s “blatant refusal” to leave Unterholzners’ residence when asked and that Blake was “the author of his own destiny.” The court found the attorney fee request to be reasonable and entered a judgment against Blake in the amount of $4,185.00. ¶4 On appeal, Blake argues the District Court erred by referencing dismissal of the appeal for failure to file a brief, as he had a reasonable excuse for failing to do so and Unterholzners did not request dismissal; by entering an order that insufficiently addressed the issues he raised on appeal, including his claim of slander; by extending the time for Unterholzners to submit their bill of costs and affidavit in support of attorney fees; and that the Justice Court lacked jurisdiction over the case. Unterholzners argue that the appeal was properly dismissed under the rules for failure to file a brief, that Blake is 4 raising issues not properly preserved, such as his slander claim, and that attorney fees and costs were properly awarded. ¶5 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of the Internal Operating Rules, which provides for noncitable memorandum opinions. The issues in this case are ones of judicial discretion, and there clearly was not an abuse of discretion. Any legal issues are controlled by settled law and were correctly interpreted by the District Court. ¶6 Affirmed. /S/ JIM RICE We concur: /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ BETH BAKER /S/ LAURIE McKINNON | September 17, 2013 |
8b503a12-23d2-4a90-850d-f9cc20b1053a | Marriage of Whitaker | 2013 MT 250N | DA 12-0608 | Montana | Montana Supreme Court | DA 12-0608 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 250N IN RE THE MARRIAGE OF: KATIE JEAN WHITAKER, Petitioner and Appellee, v. TRAVIS CLAY WHITAKER, Respondent and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DR 2010-1380 Honorable Ingrid Gustafson, Presiding Judge COUNSEL OF RECORD: For Appellant: Fred Snodgrass, Snodgrass, Copenhaver & Yasenak, PLLC, Billings, MT For Appellee: Robert J. Waller, Waller & Womack, P.C., Billings, MT Submitted on Briefs: August 14, 2013 Decided: September 3, 2013 Filed: __________________________________________ Clerk September 3 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Travis Whitaker appeals from the District Court’s Order Re: Child Support and Memorandum dated August 24, 2012. We affirm. ¶3 In March 2012 the parties reached a settlement of the debt and property issues in the dissolution of their marriage, and additionally agreed on many parenting issues. Pursuant to the settlement and additional information presented by the parties, the District Court issued a Final Parenting Plan dated April 10, 2012. Despite adoption of the Final Parenting Plan, the parties continued to dispute issues regarding parenting and child support. They submitted additional information and the District Court issued the Order Re: Child Support and Memorandum which forms the basis of this appeal. ¶4 Travis contends that the District Court erred in calculating the number of parenting days he should get; erred in failing to give him credit for daycare expenses he paid; and erred in calculating the amount of child support. This Court will not disturb a district court’s award of child support or a determination of custody unless there was a clear abuse of discretion. In re Marriage of Graham, 2008 MT 435, ¶ 8, 347 Mont. 483, 199 P.3d 211. ¶5 The District Court based its Order upon the information submitted by the parties, both 3 of whom waived having a hearing or presenting any testimony. While Travis may not agree with the District Court’s conclusions, he has not demonstrated that the result was the product of an abuse of discretion. The District Court carefully considered and evaluated the information submitted by the parties, and the factual findings are not clearly erroneous. Bock v. Smith, 2005 MT 40, ¶ 14, 326 Mont. 123, 107 P.3d 488. ¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provide for memorandum opinions. The District Court’s findings of fact are supported by substantial evidence and the legal issues are controlled by settled Montana law which the District Court correctly interpreted. ¶7 Affirmed. /S/ MIKE McGRATH We concur: /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ PATRICIA COTTER /S/ BRIAN MORRIS | September 3, 2013 |
64d8e25c-cb4a-4da3-8aa1-ae178d24e609 | Anderson v. Eller | 2013 MT 259N | DA 12-0773 | Montana | Montana Supreme Court | DA 12-0773 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 259N JEROME ANDERSON, Plaintiff and Appellant, v. LARRY ELLER, Defendant and Appellee. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDV-08-1307 Honorable Dirk M. Sandefur, Presiding Judge COUNSEL OF RECORD: For Appellant: Douglas C. Allen; Attorney at Law; Cut Bank, Montana For Appellee: Paul R. Haffeman; Davis, Hatley, Haffeman & Tighe, P.C.; Great Falls, Montana Submitted on Briefs: August 14, 2013 Decided: September 10, 2013 Filed: __________________________________________ Clerk September 10 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 This is a personal injury claim stemming from a motor vehicle accident that occurred in Cascade County on October 3, 2005. After three days of trial, a jury returned a verdict that Defendant/Appellee Larry Eller (“Eller”) did not cause any injury to Plaintiff/Appellant Jerome Anderson (“Anderson”) when Eller backed his pickup truck into Anderson’s car. Anderson filed a motion for new trial, citing insufficiency of the evidence, which was deemed denied by operation of law. We affirm the judgment entered by the District Court on the verdict and the District Court’s denial of Anderson’s motion for new trial.1 ¶3 On October 3, 2005, Anderson was stopped behind Eller at the intersection of River Drive North and 25th Street, in Cascade County. Eller was driving a 1999 Ford pickup truck and Anderson was driving a 1985 Subaru car. Both were waiting for a vehicle stopped ahead of Eller to enter River Drive. Eller testified that he shifted into reverse, took his foot off the brake, and was reaching down to put his foot on the gas when he heard a “honk” and a “crunch,” indicating he had backed into Anderson’s vehicle. Eller’s vehicle had moved approximately three feet and was traveling at a very 1 The District Court did not rule on Anderson’s motion; thus, the motion was “deemed denied” by operation of law on December 1, 2012. M. R. Civ. P. 59(f). 3 low speed. The trailer hitch of Eller’s vehicle went through the radiator of Anderson’s vehicle, but the body of Eller’s vehicle itself never touched Anderson’s vehicle. Eller testified he did not feel anything and there was no property damage to his vehicle. Eller admitted that his negligence was the sole cause of the accident. ¶4 The jury was instructed by the District Court that “the accident occurred as a result of Defendant Larry Eller’s negligence which was the sole cause of the accident.” Accordingly, the only issue submitted to the jury on the verdict sheet was whether Eller’s negligence caused injury to Anderson and, if so, what were the amount of damages. The jury returned a verdict that Eller’s negligence did not cause any injury to Anderson. Anderson argues that the evidence of his injuries resulting from the accident was uncontradicted by Eller and that there was therefore insufficient evidence to justify the verdict. Anderson contends that the District Court erred in denying his motion for new trial. ¶5 This Court’s review of a district court’s decision on a motion for new trial where the basis of the motion is insufficiency of the evidence is de novo. Styren Farms, Inc. v. Roos, 2011 MT 299, ¶ 11, 363 Mont. 41, 265 P.3d 1230. Like the district court, we determine whether there was substantial evidence to support the verdict. Renville v. Taylor, 2000 MT 217, ¶ 14, 301 Mont. 99, 7 P.3d 400. “Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion; it may be less than a preponderance of the evidence, but must be more than a ‘mere scintilla.’ ” Fish v. Harris, 2008 MT 302, ¶ 8, 345 Mont. 527, 192 P.3d 238 (quoting Upky v. Marshall Mountain, LLC, 2008 MT 90, ¶ 22, 342 Mont. 273, 180 P.3d 651). 4 ¶6 Anderson’s only expert witness was Dr. Michael Luckett. Dr. Luckett, who has a general practice of orthopedics with Great Falls Orthopedic Associates, was questioned regarding Anderson’s injury and the causation between the accident and Anderson’s injury. Anderson saw Dr. Luckett twice between the timeframe of the 2005 accident and trial on August 24, 2012. Ultimately, Dr. Luckett opined that Anderson “had suffered a sprain–strain of the midthoracic and thoracal lumbar junction of the spine. And that he had aggravated a preexisting, developmental degenerative condition, called Scheuermann’s Kyphosis.” Dr. Luckett explained that Anderson was affected by Scheuermann’s disease primarily in the thoracic spine. This was the same area that was symptomatic, as related by Anderson, to the motor vehicle accident. Significantly, Dr. Luckett’s opinion was “based on the history of onset” as attributed to him by Anderson. Dr. Luckett knew nothing about Anderson’s treatment for pain by Dr. R. A. Reynolds, a chiropractor, for several years prior to the accident, nor did Anderson call Dr. Reynolds to testify regarding Anderson’s chiropractic treatment both before and following the accident. ¶7 The jury heard evidence that Dr. Luckett opined, first, that he could not attribute Anderson’s symptoms to his motor vehicle accident on a more probable than not basis. The jury subsequently heard from Dr. Luckett that, following a meeting with Anderson’s lawyer, his opinion changed to one of Anderson having suffered a mid-thoracic sprain as a result of the accident. Specifically, a report issued April 5, 2012, by Dr. Luckett, and admitted into evidence, stated: 5 I cannot conclude on a more probable than not basis that Mr. Anderson’s current symptoms are clearly related to his motor vehicular accident as the predominant cause. I think that it is more likely that he did have aggravation of symptoms. However, he had preexisting degeneration that likely would have become symptomatic at some point in time. ¶8 Dr. Luckett subsequently issued a letter dated May 18, 2012, which was also admitted into evidence, indicating his previous causation opinion was incorrect because he had “overlooked the fact that my past records indicated Jerome Anderson had no prior spinal related symptoms before his automobile accident.” Dr. Luckett explained at trial that “Scheuermann’s Kyphosis is not symptomatic and is primarily a cosmetic deformity.” (Emphasis added.) Somewhat inconsistently, however, Dr. Luckett also testified that the automobile accident aggravated a preexisting condition “because Scheuermann’s Kyphosis is associated with degeneration, and a traumatic event would be more likely to cause symptoms in a degenerative spine than in a nondegenerative spine.” (Emphasis added.) The defense presented no expert testimony. ¶9 As previously stated, we review a jury’s verdict in a civil case to determine whether substantial credible evidence in the record supports the verdict. We have explained: It is not our function to agree or disagree with the jury’s verdict and, consequently, if conflicting evidence exists, we do not retry the case because the jury chose to believe one party over the other. . . . [I]n reviewing the sufficiency of the evidence to support a jury verdict, we review the evidence in a light most favorable to the prevailing party. Magart v. Schank, 2000 MT 279, ¶ 4, 302 Mont. 151, 13 P.3d 390 (citations omitted). ¶10 Anderson’s argument that there is insufficient evidence to support the jury’s failure to find injury causation is based primarily on his contention that Dr. Luckett’s 6 testimony was not controverted by an expert witness for the defense. We addressed a similar scenario in Clark v. Bell, 2009 MT 390, 353 Mont. 331, 220 P.3d 650, where the jury returned a defense verdict based on a finding that there was no causation between the defendant’s negligence and the injury. Clark similarly had a preexisting injury and was claiming a new injury. There, we affirmed the district court’s denial of a post-trial motion for judgment as a matter of law which was premised upon a claim that the plaintiff’s evidence of injury was uncontroverted. We held in Clark: Clark also argues that because Bell presented no direct evidence from lay or expert witnesses, her causation evidence was unchallenged and she was entitled to judgment as a matter of law. However, as in Ele [v. Ehnes, 2003 MT 131, 316 Mont. 69, 68 P.3d 835], Bell challenged Clark’s evidence through cross-examination. The jury was entitled to weigh that evidence and determine its credibility against Clark’s evidence. “[E]ven if uncontradicted direct testimony is admitted, the jury is entitled to weigh that testimony against adverse circumstantial evidence and other factors which may affect the credibility of the witness.” Ele, ¶ 32 (citation omitted). Thus, the District Court properly denied Clark’s motion for judgment as a matter of law on causation, leaving the question to the jury. Clark, ¶ 27. ¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. ¶12 The evidence in the record before us establishes that Anderson’s claim stems from a motor vehicle accident that had very little property damage, occurred at low speeds, and with very little impact. Anderson initially told Eller and law enforcement officers at the scene that he was fine. He did not seek medical treatment for four days following the accident. Anderson’s sole expert witness testified to a preexisting condition and could not initially conclude that the accident caused Anderson’s ongoing complaints. This 7 expert subsequently redacted his opinion indicating that he had overlooked certain aspects of Anderson’s medical records relating to prior treatment. The expert saw Anderson only twice during a seven-year period. Other evidence from lay witnesses as well is present in the record which supports the jury’s verdict. Given consideration of the record as a whole, we hold that there was substantial evidence for a jury to conclude that Anderson did not prove injury resulted from his automobile accident with Eller. We further hold that the District Court properly denied Anderson’s motion for a new trial. ¶13 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ JIM RICE | September 10, 2013 |
6b79a211-f3cf-4bbf-b6e0-efc4eef3196c | Matter of J.W. T.W. and E.R.L.L. | 2013 MT 249N | DA 13-0074 | Montana | Montana Supreme Court | DA 13-0074 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 249N IN THE MATTER OF: J.W., T.W., and E.R.L.L., Youths in Need of Care. APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause Nos. DN 10-27, DN 10-28, DN 11-5 Honorable James B. Wheelis, Presiding Judge COUNSEL OF RECORD: For Appellant: Carolynn M. Fagan, Fagan Law Office, P.C., Missoula, MT For Appellee: Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant Attorney General, Helena, Montana Bernard G. Cassidy, Lincoln County Attorney, Libby, MT Submitted on Briefs: July 17, 2013 Decided: September 3, 2013 Filed: __________________________________________ Clerk September 3 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Birth mother E.W. appeals from an order of the Nineteenth Judicial District Court, Lincoln County, terminating her parental rights to her three children, T.W., J.W., and E.R.L.L. We affirm. ¶3 The following issues are raised on appeal: ¶4 Whether the District Court erred in finding the treatment plan appropriate. ¶5 Whether the District Court erred in finding that the Department of Public Health and Human Services (the Department) made reasonable efforts to reunite E.W. with her children. ¶6 Whether the District Court abused its discretion in terminating E.W.’s parental rights. ¶7 E.W. is the mother of T.W., born in 2008, J.W., born in 2009, and E.R.L.L., born in 2011. T.W. and J.W. have been in care since November of 2010 and were adjudicated youths in need of care on March 30, 2011. E.R.L.L. has been in care since August of 2011 and was adjudicated a youth in need of care on January 13, 2012. The parental rights of both the father of T.W. and J.W. and the father of E.R.L.L. were previously terminated following a hearing on July 9, 2012. ¶8 A treatment plan for E.W. was approved on April 12, 2011, and updated on September 26, 2011, and April 23, 2012. The treatment plans were approved each time 3 without objection from E.W. The treatment plans required E.W. to complete the following tasks: work cooperatively with Family Concepts on parenting related skills; maintain a permanent and consistent residence; attend regular counseling; have a reasonable child care plan for hours of employment or school; maintain weekly contact with her social worker; attend supervised visits and follow all the rules of visitation; sign all necessary releases; and review T.W.’s occupational therapy evaluation. ¶9 The Department filed a petition to terminate E.W.’s parental rights on October 4, 2012. Following a termination hearing on December 18, 2012, the District Court terminated E.W.’s parental rights pursuant to § 41-3-609(1)(f), MCA. ¶10 A district court’s termination of parental rights is reviewed for abuse of discretion. In re H.R., 2012 MT 290, ¶ 9, 367 Mont. 338, 291 P.3d 583. A trial court abuses its discretion if it has “‘acted arbitrarily, without employment of conscientious judgment, or exceeded the bounds of reason resulting in substantial injustice.’” In re D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691 (quoting In re K.J.B., 2007 MT 216, ¶ 22, 339 Mont. 28, 168 P.3d 629). Findings of fact are reviewed for clear error. In re D.B., 2007 MT 246, ¶ 18. Conclusions of law are reviewed for correctness. In re D.B., 2007 MT 246, ¶ 18. ¶11 E.W. argues for the first time on appeal that the treatment plans were not appropriate because they failed to address her particular mental disabilities. Under Montana law, “‘[a] parent who does not object to a treatment plan’s goals or tasks waives the right to argue on appeal that the plan was not appropriate.’” In re D.S.B., 2013 MT 112, ¶ 10, 370 Mont. 37, 300 P.3d 702 (quoting In re H.R., 2012 MT 290, ¶ 10, 367 Mont. 338, 291 P.3d 583). E.W. 4 agreed to each treatment plan while represented by counsel. Therefore, she has waived the right to argue on appeal that the treatment plans were not appropriate. ¶12 E.W. next argues that the Department failed to make reasonable efforts to reunite her with the children. Reasonable efforts may include development of an individual case plan, provision of services pursuant to a case plan, and periodic review of each case to ensure timely progress. Section 41-3-423(1), MCA. Over more than two years, the Department provided services including development of a treatment plan, a psychological evaluation, parenting support services, supervised visitation, pregnancy test kits, assistance enrolling in WIC and Medicaid, therapy, assignment to a mental health case manager, a chemical dependency evaluation, a parenting assessment, gas vouchers, assistance with diapers, treatment team meetings, and family group decision making meetings. We agree with the conclusion of the District Court that these services were reasonable efforts. ¶13 E.W. finally argues that the District Court abused its discretion when it terminated her parental rights. A court may order termination of parental rights upon a finding of clear and convincing evidence that the child is an adjudicated youth in need of care, an appropriate treatment plan has not been complied with or has not been successful, and the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time. Section 41-3-609(1)(f), MCA. Compliance with the treatment plan must be complete. Partial or substantial completion of the treatment plan is insufficient. In re D.B., 2004 MT 371, ¶ 41, 325 Mont. 13, 103 P.3d 1026. ¶14 E.W. completed the tasks of maintaining contact with her social worker, signing necessary releases, and reviewing T.W.’s occupational therapy evaluation. E.W. did not 5 successfully complete the remaining tasks. She exhibited verbal aggression toward Family Concepts staff, and on two occasions she was asked to leave. She was homeless for periods of time. She missed 22 of 69 scheduled therapy sessions. She did not make any plan for reasonable child care arrangements. She attended all scheduled visitations, but did not follow the rules laid out by visitation supervisors, instead becoming argumentative when supervisors intervened. E.W. successfully completed only three of the eight tasks. The District Court correctly concluded that this is insufficient to show compliance with the treatment plan. ¶15 There is also substantial evidence supporting the finding that it is unlikely the conduct and conditions rendering E.W. unfit will change in a reasonable time. Dr. Edward Trontel, who performed the psychological evaluation, testified that “with respect to her ability to function as a parent the outlook would be dismal.” Dr. Trontel’s report states, “When asked what she needed to change to make a better life for her children, [E.W.] responded, ‘Not a Goddam thing!’” The report further notes that E.W.’s attitude toward treatment “render[ed] the chances for meaningful change virtually nil.” Marcia Tharp, the therapist assigned to E.W., testified that in over a year of therapy, the results had been “negligible” and the sessions had at times become “counter-productive.” The District Court did not err in finding that the conditions rendering E.W. unfit are unlikely to change in a reasonable time. ¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The District Court’s findings of fact are supported by substantial evidence and the legal issues are 6 controlled by settled Montana law, which the District Court correctly interpreted. It is manifest on the face of the briefs and the record that there was no abuse of discretion. ¶17 Affirmed. /S/ MIKE McGRATH We concur: /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ LAURIE McKINNON /S/ JIM RICE | September 3, 2013 |
5037011c-3881-4a3b-baa6-7c46b3ba34e4 | State v. Robert Whitehead | 2013 MT 239N | DA 12-0479 | Montana | Montana Supreme Court | DA 12-0479 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 239N STATE OF MONTANA, Plaintiff and Appellee, v. ROBERT WHITEHEAD, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 11-351 Honorable Russell C. Fagg, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender; Eileen A. Larkin, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant Attorney General; Helena, Montana Scott Twito, Yellowstone County Attorney; Juli Pierce, Deputy County Attorney; Billings, Montana Submitted on Briefs: July 31, 2013 Decided: August 27, 2013 Filed: __________________________________________ Clerk August 27 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Pursuant to a plea agreement, Robert Whitehead (Whitehead) entered a guilty plea to Assault on a Minor, a felony, while an accompanying charge of Aggravated Assault, also a felony, was dismissed. He agreed to a five year commitment to the Department of Corrections, with no time suspended. The charges arose out of an incident wherein Whitehead choked his six year old stepson after the stepson had snuck upstairs for a glass of water. The choking left finger-shaped bruising on the child’s neck, which Whitehead attempted to cover with powder before the child went to school the next day. A school official noticed the marks and reported the incident. ¶3 The pre-sentence investigation report (PSI) recommended conditions of probation “[f]or any period of community supervision” and also listed financial assessments against Whitehead, including fees, charges, surcharges, counsel costs, and restitution, which it classified as “statutory” conditions that could not be waived. After a sentencing hearing, the District Court committed Whitehead to the Department of Corrections for five years, with credit for time served, as agreed in the plea bargain agreement. Given this 3 commitment, the District Court did not suspend any portion of the sentence or impose associated conditions of probation. However, the District Court listed in its judgment conditions that it “recommended” be imposed “for any period of community supervision” that Whitehead obtained. Whitehead neither objected to the recommendations made in the PSI nor objected to the recommendations made by the District Court during the sentencing hearing. ¶4 On appeal, Whitehead challenges the financial assessments set forth in the recommended conditions of the judgment, and questions whether they were merely recommended or actually imposed. He argues that the financial assessments imposed by statute can indeed be waived, contrary to the assertion of the PSI, and that his Social Security Income (SSI) cannot be subjected to legal process in order to pay for the assessments, citing State v. Eaton, 2004 MT 283, 323 Mont. 287, 99 P.3d 661. ¶5 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. Having reviewed the briefs and record on appeal, we conclude that Whitehead has not demonstrated reversible error by the District Court and that the issues raised are controlled by settled law. Whitehead failed to object to the conditions he now challenges when presented in the PSI or imposed by the District Court. Further, the conditions are listed in the judgment as “recommended.” We recently held that a “District Court’s recommended conditions ‘[f]or any term of community supervision’” are considered “non-binding.” State v. Champagne, 2013 MT 190, ¶ 52, 371 Mont. 35, ___ P.3d___. 4 ¶6 Affirmed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BETH BAKER /S/ BRIAN MORRIS | August 27, 2013 |
e8d59e2b-0ea5-4ab6-92c5-0434eb66f47f | Jacobsen v. Allstate Ins. Co. | 2013 MT 244 | DA 12-0130 | Montana | Montana Supreme Court | DA 12-0130 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 244 ROBERT JACOBSEN, and all others similarly situated, Plaintiff and Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADV 03-201(D) Honorable Dirk M. Sandefur, Presiding Judge COUNSEL OF RECORD: For Appellant: Robert H. King, Jr. (argued), SNR Denton US LLP, Chicago, Illinois Dennis Tighe; Paul R. Haffeman; Davis, Hatley, Haffeman & Tighe, P.C., Great Falls, Montana For Appellee: Lawrence A. Anderson (argued), Attorney at Law, P.C., Great Falls, Montana Daniel P. Buckley, Buckley Law Office, P.C., Bozeman, Montana David J. Berardinelli, Berardinelli Law Firm, Santa Fe, New Mexico For Amici Curiae: Bradley J. Luck, Garlington, Lohn & Robinson, PLLP, Missoula, Montana Robin S. Conrad, National Chamber Litigation Center, Washington, D.C. Gene C. Schaerr, Winston & Strawn, LLP, Washington, D.C. (Chamber of Commerce of the United States of America) Amy Poehling Eddy, Bottomly Eddy & Sandle, PLLP, Kalispell, Montana, William F. Merlin, Jr., Merlin Law Group, P.A., Tampa, Florida August 29 2013 2 Leslie Anne Scalley, Attorney at Law, Tampa, Florida (United Policyholders) Argued: May 8, 2013 Submitted: May 15, 2013 Decided: August 29, 2013 Filed: __________________________________________ Clerk 3 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Defendant Allstate Insurance Company (Allstate) appeals the order of the Eighth Judicial District Court, Cascade County, granting Plaintiff Robert Jacobsen’s (Jacobsen) motion for class certification. We affirm the class certification but modify the certified class relief on remand. ISSUES ¶2 We restate the issues on appeal as follows: ¶3 1. Whether the District Court abused its discretion by finding that the proposed class met the requirements of M. R. Civ. P. 23(a)? ¶4 2. Whether the District Court abused its discretion by certifying a M. R. Civ. P. 23(b)(2) class action lawsuit? ¶5 3. Whether the District Court erred by holding that the Montana Rules of Evidence do not apply to class action proceedings? FACTUAL AND PROCEDURAL BACKGROUND ¶6 This interlocutory appeal arises from the District Court’s order certifying a class in Jacobsen’s class action against Allstate. Jacobsen’s class action claim in turn arose out of our remand of his initial non-class third-party claim against Allstate in Jacobsen v. Allstate Ins. Co., 2009 MT 248, 351 Mont. 464, 215 P.3d 649 (Jacobsen I). As we recounted in Jacobsen I, Jacobsen suffered bodily injuries and property damage in an automobile accident caused by Allstate’s insured in 2001. Allstate admitted liability and negotiated a settlement with Jacobsen while he was unrepresented by counsel. Allstate’s adjuster, Chuck Conners 4 (Conners) used Allstate’s Claim Core Process Redesign (CCPR) program to process Jacobsen’s claim. The CCPR is a system of claims adjusting guidelines that Allstate implemented in 1995 to fast track settlements and reduce the amount paid out on claims. Conners utilized the general outlines of the CCPR in settling Jacobsen’s claim. The program facilitated a quick, unrepresented settlement six days after the accident for $3,500 and 45 days of “open” medical payment. As part of the settlement, Jacobsen signed a release. ¶7 Roughly three weeks later, Jacobsen began experiencing significant pain. Jacobsen contacted Conners and asked him to reconsider the release and provide additional assistance. Conners refused because Jacobsen had signed a release. Jacobsen retained counsel, who successfully persuaded Allstate to rescind the release and re-open Jacobsen’s claim. Due to the efforts of Jacobsen’s newly-hired attorney, Allstate settled Jacobsen’s claim for $200,000 on November 27, 2002, roughly 18 months after his initial, unrepresented settlement for $3,500. ¶8 Thereafter, Jacobsen retained new counsel and filed a complaint against Allstate seeking compensatory damages for various violations of the Montana Unfair Trade Practices Act (UTPA), common law bad faith, intentional and negligent infliction of emotional distress (IIED and NIED respectively), and also seeking punitive damages pursuant to § 27-1-221, MCA. Jacobsen ultimately sought compensatory damages based on the attorney fees he incurred in pursuing his underlying claim and punitive damages based on Allstate’s alleged malicious conduct. 5 ¶9 The jury returned a verdict in favor of Jacobsen on October 19, 2006, finding Allstate liable for common law and statutory bad faith and awarding Jacobsen $68,372.38 in compensatory damages. The jury specifically found that Allstate violated the UTPA by misrepresenting pertinent facts regarding the claim and neglecting to attempt in good faith to promptly, fairly, and equitably settle a claim in which liability was reasonably clear. The jury also awarded Jacobsen $350,000 in punitive damages based on its finding that Allstate acted with actual malice. ¶10 Following the verdict, both Jacobsen and Allstate appealed various rulings by the District Court. Our resolution of these appeals comprises Jacobsen I. One issue under consideration in Jacobsen I concerned the discovery of what were termed the “McKinsey documents.” The McKinsey documents consist of around 12,500 PowerPoint slides produced by McKinsey & Company (McKinsey), a management consulting firm, for Allstate. The CCPR program is a distillation of the studies and recommendations contained in the McKinsey documents, and they consequently provide a more complete understanding of the program. However, Jacobsen was unaware of the existence of the McKinsey documents at the time of his initial discovery request or motion to compel production of the CCPR. When he became aware of them, Jacobsen sought leave of the court to assert new individual and class action claims against Allstate and to pursue additional discovery. The District Court denied these requests, finding that they would “cause substantial prejudice and undue delay, burden, and expense[.]” Jacobsen I, ¶ 55. 6 ¶11 In his pre-remand appeal, Jacobsen argued that the District Court erred by denying his request for further discovery. We found that because “the issue before the District Court was not whether to re-open discovery, but whether to compel Allstate to produce documents that were within Jacobsen’s original discovery request,” it was “unnecessary to determine whether Jacobsen demonstrated due diligence or excusable neglect[.]” Jacobsen I, ¶ 57. We concluded “[t]he McKinsey documents were indeed critical to Jacobsen’s theory that Allstate’s policies regarding unrepresented claimants constituted bad faith” and reversed the District Court’s decision. Jacobsen I, ¶ 58. ¶12 We ultimately remanded the case for a new trial, finding that the jury’s award of compensatory damages could not be based solely on Jacobsen’s incurred attorney costs and fees and that there could be no punitive damages following this reversal of the compensatory damages award. We also ordered the court to allow the jury to consider Jacobsen’s emotional distress damages and directed the District Court to compel the production of the McKinsey documents. Jacobsen I, ¶ 67. ¶13 On remand, bolstered by the production of the McKinsey documents, Jacobsen filed a motion for leave to file a Fourth Amended Complaint that added class action claims concerning Allstate’s CCPR program. Count Four of Jacobsen’s Fourth Amended Complaint, filed May 6, 2010, contained the newly-added class action claims. Jacobsen based the class claims on his prior individual theories asserting violations of the UTPA1 and 1 Jacobsen specifically alleged Allstate’s CCPR violated §§ 33-18-201(1) & (6), MCA. Section 33-18-201(1), MCA, prohibits misrepresenting “pertinent facts or 7 common law bad faith. Specifically, Count Four alleged that Allstate’s CCPR program violated the UTPA “and/or common law bad faith laws” by intentionally misrepresenting that unrepresented claimants generally received more compensation than represented claimants and by settling unrepresented claims via an inadequate “fast track” component of the CCPR that resulted in unfair settlements. Count Four asserted these claims on behalf of “all unrepresented individuals who had either third party claims or first party claims against Allstate whose claims were adjusted by Allstate in Montana using its CCPR program.” ¶14 Count Five presented a claim for a common fund recovery of attorney fees incurred in pursuing the class action, and Count Six presented a claim for attorney fees as a “Private Attorney General” by asserting that the State of Montana had failed to enforce §§ 33-18- 201(1) and (6), MCA. Regarding class relief, Jacobsen requested class certification, injunctive relief prohibiting Allstate from using the CCPR program in Montana, an injunction requiring Allstate to “re-open all claims in which liability was reasonable [sic] clear in which the Defendant applied the CCPR paradigm in settling such cases,” an injunction requiring Allstate to disgorge unlawful profits, the award of punitive damages, and attorney fees. ¶15 Jacobsen filed a motion for class certification on May 7, 2010, proposing a class definition encompassing “all unrepresented individuals who had either third-party claims or insurance policy provisions relating to coverages at issue.” Section 33-18-201(6) prohibits neglecting “to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear.” 8 first-party claims against Allstate whose claims were adjusted by Allstate in Montana using its CCPR program.” ¶16 The District Court certified a Rule 23(b)(2) class in its methodical June 30, 2012 Order. In the course of its analysis, the Court noted the United States Supreme Court’s admonition in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011), to conduct a “rigorous” Rule 23 analysis. The Court also construed the substantive essence of Plaintiff’s asserted class claim to be, irrespective of individual outcomes, that the CCPR’s settlement practices “constitute a common pattern and practice in violation of §§ 33-18-201(1) and (6), MCA, as generally applied to the class as a whole, thereby resulting in indivisible harm to the class as a whole . . . .” The court accordingly certified the following class claim: (A) the Casualty CCPR’s unrepresented segment adjusting practices are a common pattern and practice in violation of §§ 33-18-201(1) and (6), MCA, as generally applied to the class of unrepresented claimants as a whole; (B) Allstate’s common, systematic use of this pattern and practice in Montana caused indivisible harm to the class as a whole by operation of its zero-sum economic theory and the resulting inversely proportional relationship between Allstate profit increases and corresponding decreases in the total amount of compensation paid to the class of unrepresented claimants as a whole; and (C) Allstate acted with “actual malice,” as defined by § 27-1-221(2), MCA, by intentionally, deliberately, and consciously creating and disregarding a high probability that the net effect of its Casualty CCPR’s unrepresented segment practices would result in net settlement payouts to the class as a whole less than the net amount previously sufficient to fully and fairly settle unrepresented claims under Montana law[.] As support, the Court found that Jacobsen had proffered “substantial credible evidence” that Allstate systematically adjusted unrepresented first and third-party claims involving bodily 9 injury or property damage “in the same general manner” under the CCPR program. The Court thus rejected Allstate’s claim that Jacobsen could not establish that all unrepresented claimant’s settlements were unfair by reasoning that Jacobsen’s claims concerned the “preliminary manner, means, and course of adjustment systematically applied to the class as a whole in the context of the insurer’s duties under §§ 33-18-201(1) and (6), MCA,” and not the “ultimate outcomes” of individual claims. ¶17 The Court restructured Jacobsen’s class definition as follows: (1) all unrepresented claimants who made first-party or third-party claims to Allstate; (2) for an amount in excess of the applicable policy deductible; (3) for bodily injury or property damage related to an underlying motor vehicle incident or occurrence; and (4) whose claims were adjusted by Allstate in Montana to an unrepresented settlement since deployment in Montana of the various versions of the Casualty CCPR (CCPR Implementation Manual (Tort States)). The Court considered this reformed definition to be “sufficiently precise and homogenous for purposes of Rule 23.” Using this reformed class definition the Court determined that Jacobsen’s class claim satisfied Rule 23(a)’s four prerequisites—numerosity, commonality, typicality, and adequacy. The Court certified Jacobsen’s claim as a Rule 23(b)(2) class action and certified the following class action remedies as available upon proof of the certified class claim: (A) [a] declaratory judgment adjudicating the constituent assertions of the certified class claim [which we have recounted in ¶ 16]; (B) [a] mandatory injunction requiring Allstate to: 10 (1) give all class members court-appointed notice of the right and opportunity to obtain re-opening and re-adjustment of their individual claims by timely returning a proof of claim form; and (2) re-open and re-adjust each individual claim upon receipt of a timely filed proof of claim; (C) class-wide punitive damages pursuant to §§ 27-1-220 and 27-1-221(2), MCA (actual malice), predicated on the above-referenced class-wide conduct; and (D) common fund recovery of class action attorney fees and costs upon a class-wide punitive damages award[.] Allstate appeals the court’s certification of Jacobsen’s class claims pursuant to Rule 232 as well as the court’s consideration of what Allstate argues was inadmissible evidence during the certification proceedings. Allstate’s CCPR Program and the McKinsey Documents. ¶18 Due to Jacobsen’s contention that Allstate’s application of the CCPR program to unrepresented claimants amounts to statutory and common law bad faith, a brief summary of the program, and the related McKinsey documents, is in order. ¶19 Allstate hired McKinsey in the early 1990’s to help redesign its claims process. This redesign was prompted by Allstate’s recognition that while claims expenses were low, total payouts were increasing at a pace above the industry average. The McKinsey documents outlined a claim settlement process, like the CCPR program, to lower claims payouts by increasing claimant contact and reducing attorney involvement. McKinsey essentially 2 A more thorough analysis of the District Court’s application of Rule 23(a) and (b) will be provided in the course of our legal discussion. 11 advocated “increasing the number of early unrepresented settlements” while “holding the line” on represented claims. This focus flowed from research showing that represented claims settled for 2-3 times more than unrepresented claims, that Allstate claims adjusters were not effectively initiating early contact or communicating with claimants, and that this failure to promptly and effectively communicate with claimants made claimants more likely to hire lawyers. The McKinsey documents ultimately styled claims adjusting as a “zero sum” economic game where if Allstate gains by reducing settlements, others—including “medical providers, plaintiff attorneys, and claimants”—“must lose.” ¶20 Allstate’s CCPR program consequently strives to reduce overall claims payouts by establishing a more centralized, regimented claims adjusting process focused on quick claimant contact, building rapport, reducing claimant representation rates, and shuttling certain claims into a “fast track” system. Allstate applies the CCPR to both third and first- party claimants. ¶21 Here, Allstate’s adjuster, Conners, utilized the CCPR program to obtain a fast track, unrepresented, reduced payment settlement of Jacobsen’s claim. Jacobsen alleges that the CCPR program systematically violates the rights of unrepresented claimants as provided to them by the UTPA. Jacobsen specifically takes issue with the application of the CCRP’s “fast track” system, “9-step process,” and “attorney economics script” to his claim. ¶22 First, the “fast track” system seeks to promote settlement with claimants within 12 days of the accident. Jacobsen alleges that the system promotes quick settlements at the expense of fair settlements. A “Fast Track Evaluation Worksheet” controls whether a claim 12 is amenable to “fast track” processing and requires: the claimant is unrepresented, there are no coverage questions, there are only soft tissue injuries and a good prognosis, no residuals, no aggravation of preexisting conditions, and treatment for less than 60 days. In this case, after Jacobsen accepted the initial $3,500 settlement, Conners processed Jacobsen’s claim under the CCPR’s “fast track” guidelines for unrepresented claims. ¶23 Second, Conners generally utilized the “9-step process” for unrepresented claimant contact. The CCPR’s Initial Claimant Contact Outline for unrepresented claimants directs adjusters to: (1) establish empathy and gather injury facts; (2) confirm Allstate’s customer service pledge; (3) gather loss facts; (4) confirm Allstate’s liability decision; (5) discuss payment of medical bills and lost wages; (6) assist with car repairs; (7) assist with alternate transportation; (8) explain the bodily injury settlement process and discuss attorney economics; and (9) close the claim and follow-up. Jacobsen alleges the 9-step process increases Allstate’s profits at the expense of good faith settlements. ¶24 Third, in accordance with the CCPR, Conners discussed attorney economics with Jacobsen. The CCPR process explicitly seeks to reduce the number of represented claims to reduce claims payouts. This goal was motivated by Allstate’s determination that represented claimants typically settled for 2-3 times (and perhaps up to 5 times) the amount unrepresented claimants received. To reduce attorney involvement, the CCPR aims to build rapport with claimants though quick, empathetic contact, and directs adjusters to utilize an “attorney economics script.” The script states: 13 [q]uite often our customers ask if an attorney is necessary to settle a claim. Some people choose to hire an attorney, but we would really like the opportunity to work directly with you to settle the claim. Attorneys commonly take between 25-40% of the total settlement you receive . . . plus expenses incurred. If you settle directly with Allstate, however, the total amount of the settlement is yours. At any time in the process you may choose to hire an attorney. I would, however, like to make an offer to you first. This way, should you go to an attorney, you would be able to negotiate with the attorney so his/her fees would only apply to amounts over my offer to you. The script’s instructions counsel against improperly dissuading claimants from seeking representation and instruct adjusters to remind claimants that they are free to hire an attorney at any time and discuss the relevant statute of limitations. However, the script does not contain information advising that Allstate found that represented claimants generally received higher settlements. Jacobsen alleges Allstate’s portrayal of “attorney economics” induced him into believing unrepresented claimants generally received more compensation for injuries and resulted in an initially unfair settlement. STANDARD OF REVIEW ¶25 We afford trial courts the broadest discretion when reviewing a decision on class certification. Sieglock v. Burlington Northern & Santa Fe Ry. Co., 2003 MT 355, ¶ 8, 319 Mont. 8, 81 P.3d 495. This is because the trial court “is in the best position to consider the most fair and efficient procedure for conducting any given litigation.” Chipman v. Northwest Healthcare Corp., 2012 MT 242, ¶ 17, 366 Mont. 450, 288 P.3d 193. We will 14 therefore not upset the District Court’s decision without finding an abuse of discretion. In conducting this review we do not ask whether we would have reached the same decision, but instead ask whether the district court acted arbitrarily without conscientious judgment or exceeded the bounds of reason. Newman v. Lichfield, 2012 MT 47, ¶ 22, 364 Mont. 243, 272 P.3d 625. However, ‘ “[t]o the extent that the ruling on a Rule 23 requirement is supported by a finding of fact, that finding, like any other finding of fact, is reviewed under the ‘clearly erroneous’ standard. And to the extent that the ruling involves an issue of law, review is de novo.” ’ Mattson v. Mont. Power Co., 2012 MT 318, ¶ 17, 368 Mont. 1, 291 P.3d 1209 (Mattson III) (quoting Miles v. Merrill Lynch & Co., 471 F.3d 24, 40-41 (2d Cir. 2006)). DISCUSSION ¶26 1. Whether the District Court abused its discretion by finding that the proposed class met the requirements of M. R. Civ. P. 23(a)? A. Rule 23(a) ¶27 Initially, a class action claim is “ ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ ” Mattson III, ¶ 18 (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S. Ct. 2545 (1979)). Departure 15 from the usual rule is justified if the class representative is part of the class and possesses the same interest and suffers the same injury as the class members. East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S. Ct. 1891 (1977). In this way, class action suits save the resources of courts and parties “ ‘by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23.’ ” Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 155, 102 S. Ct. 2364 (1982) (quoting Califano, 442 U.S. at 701). ¶28 Rule 23 of the Montana Rules of Civil Procedure governs certification of a class action and ensures that the named plaintiffs are appropriate representatives of the class. Because the Montana version of Rule 23 is identical to the corresponding federal rule, federal authority is instructive, but Montana courts are not required to march lockstep with federal interpretations of Fed. R. Civ. P. 23. Chipman, ¶ 43. The four requirements found in Rule 23(a) provide the threshold inquiry courts engage in when considering a putative class. Specifically, Rule 23(a) requires that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. These prerequisites are intended to protect the due process rights of absent class members, Hansberry v. Lee, 311 U.S. 32, 42-43, 61 S. Ct. 115 (1940), and failure to establish any element of Rule 23(a) is fatal to class certification. Chipman, ¶ 43. 16 ¶29 Moreover, we have recently adopted the following guidelines in an attempt to provide further clarification of Rule 23’s proper standard of review: (1) a district judge may certify a class only after making determinations that each of the Rule 23 requirements has been met; (2) such determinations can be made only if the judge resolves factual disputes relevant to each Rule 23 requirement and finds that whatever underlying facts are relevant to a particular Rule 23 requirement have been established and is persuaded to rule, based on the relevant facts and the applicable legal standard, that the requirement is met; (3) the obligation to make such determinations is not lessened by overlap between a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule 23 requirement; (4) in making such determinations, a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement; and (5) a district judge has ample discretion to circumscribe both the extent of discovery concerning Rule 23 requirements and the extent of a hearing to determine whether such requirements are met in order to assure that a class certification motion does not become a pretext for a partial trial of the merits. Mattson v. Mont. Power Co., 2009 MT 286, ¶ 67, 352 Mont. 212, 215 P.3d 675 (Matson II). Our application of these guidelines to the District Court’s certification order in this case leads us to the conclusion that the District Court did not abuse its discretion by certifying Jacobsen’s proposed class. The District Court based its class certification on a meticulous review of the evidence behind the pleadings. As class certification requires that the plaintiff satisfy all four requirements of Rule 23(a), we will address each requirement in turn. i. Numerosity—Rule 23(a)(1) ¶30 As noted, Rule 23(a)(1) requires that the proposed class be “so numerous that joinder of all members is impracticable.” Here, the Court found that Jacobsen, using the deposition of Allstate Agent Conners, “reasonably estimated the size of the first proposed class [in Jacobsen I] at around 600 members.” Because Jacobsen had enlarged the class post-remand 17 by adding first-party claimants and automobile-related property damage claims, the Court concluded that the post-remand class met Rule 23(a)(1)’s numerosity requirement. Allstate does not challenge this conclusion on appeal. ii. Commonality—Rule 23(a)(2) ¶31 Allstate does contest the Court’s finding that the proposed class satisfied the commonality requirement of Rule 23(a)(2). Rule 23(a)(2) requires “questions of law or fact common to the class.” Because the requirements of the rule are disjunctive, a party seeking class certification must have either common questions of law or fact, and total commonality is not required. Sieglock, ¶ 11. The commonality requirement has therefore generally been seen as a relatively low burden for plaintiffs. See Diaz v. Blue Cross & Blue Shield, 2011 MT 322, ¶ 32, 363 Mont. 151, 267 P.3d 756 (quoting LaBauve v. Olin Corp., 231 F.R.D. 632, 667-68 (S.D.Ala. 2005)) (commonality requirement is met when a single issue is common to all class members); Ferguson v. Safeco Ins. Co. of Am., 2009 MT 109, ¶ 26, 342 Mont. 380, 180 P.3d 1164 (citing LaBauve, 231 F.R.D. at 668) (commonality “is not a stringent threshold and does not impose an unwieldy burden on plaintiffs.”); McDonald v. Washington, 261 Mont. 392, 401, 862 P.2d 1150 (quoting Jordan v. County of Los Angeles, 669 F.2d 1311, 1320 (9th Cir. 1982)). ¶32 As these cases indicate, we have a “long history of relying on federal jurisprudence when interpreting the class certification requirements of Rule 23.” Chipman, ¶ 52. Federal Rule 23(a)(2) jurisprudence was further developed in 2011 by the U.S. Supreme Court in Wal-Mart v. Dukes. The Wal-Mart decision has raised the dual questions of whether it plots 18 a new course for “commonality” analysis and if this course materially differs from our own. We first considered Wal-Mart’s treatment of Rule 23(a)(2) in Chipman. There, we recognized that the Wal-Mart decision had departed from our heretofore “minimal standard” and had “significantly tightened the commonality requirement.” Chipman, ¶¶ 47-48. We then applied the Wal-Mart decision’s “reasoning” concerning Rule 23(a)(2) and upheld the class certification order. Chipman, ¶¶ 47, 52. We next considered Rule 23(a)(2) and Wal- Mart two months later in our Mattson III decision. There, we again referenced the Supreme Court’s apparent tightening of Federal Rule 23(a)(2)’s requirements and noted “a recent divergence between the federal approach and Montana’s approach to the commonality requirement.” Mattson III, ¶ 35. However, despite our application of Wal-Mart’s “reasoning” in Chipman, the Mattson III decision portrayed our decision to follow Wal- Mart’s interpretation of Rule 23(a)(2) as an open question best left for some “future case.” Mattson III, ¶ 37. Despite disclaiming our adoption of Wal-Mart’s commonality reasoning, Mattson III still analyzed, and upheld, the District Court’s class certification pursuant to the supposedly “more stringent” federal standard. Mattson III, ¶ 37. ¶33 As Justice Baker observed in her dissenting opinion in Mattson III, our varying embrace of Wal-Mart in Chipman and Mattson III perhaps “introduce[d] confusion into our class certification standards . . . .” Mattson III, ¶ 45 (J. Baker, dissenting). Our opinion in Mattson III recognized this, and we determined that “[i]t may be necessary in a future case— where the issue is properly briefed and argued, and the choice of one standard over the other is dispositive of the commonality inquiry—to decide whether Montana will retain its more 19 permissive approach or instead adopt the Wal-Mart majority’s approach.” Mattson III, ¶ 37. This, however, is not that future case. Neither Jacobsen’s nor Allstate’s arguments hinge on the potential differences between Wal-Mart’s and Montana’s approaches to commonality. Moreover, the District Court applied Wal-Mart in its order certifying the class. Because we affirm the District Court’s certification of the class decision under Wal-Mart, the choice of one standard over the other is not dispositive. We therefore need not decide whether Montana will retain its approach to commonality or how these approaches differ, and we will proceed with a discussion of Jacobsen’s proposed class in the context of Wal-Mart. a. Wal-Mart and F. R. Civ. P. 23(a) ¶34 In Wal-Mart, the U.S. Supreme Court considered a proposed class of 1.5 million current and former female Wal-Mart employees “who [alleged] that the company discriminated against them on the basis of their sex by denying them equal pay or promotions ....” Wal-Mart, 131 S. Ct. at 2547.3 There, as here, the Court dealt with the requirements of the identical Federal Rule 23(a)(2). To satisfy the commonality requirement, the plaintiffs had proffered statistical evidence about pay and promotion 3 We must note that the unusual size of the Wal-Mart class presented unique challenges that may make the case inapposite to the classes generally proposed in Montana. See Mattson III, ¶ 20 (at least 3,000 class members); Pallister v. Blue Cross & Blue Shield of Mont., Inc., 2012 MT 198, ¶ 7, 366 Mont. 175, 285 P.3d 562 (3,000 class members); Chipman, ¶ 46 (1,254 class members); Diaz, ¶ 31 (“hundreds” of class members); Gonzales v. Mont. Power Co., 2010 MT 117, ¶ 6, 356 Mont. 351, 233 P.3d 328 (117 class members); Ferguson, ¶ 39 (“at least” 239 class members); McDonald, 261 Mont. at 400, 863 P.2d at 1155 (35,360 individual class members). The unique need in Wal-Mart to find some sort of common contention that would bind 1.5 million disparate individuals prompted a level of skepticism towards class certification that would likely never arise in Montana. 20 disparities between genders, anecdotal reports of discrimination from female employees, and the expert testimony of a sociologist. The District Court reviewed this evidence and certified the proposed class. Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 145, 2004 U.S. Dist. LEXIS 11297 (N.D. Cal. 2004). In the course of its Rule 23(a) analysis, the District Court noted that “the party seeking certification must provide certain facts sufficient to satisfy Rule 23(a),” that “the court’s analysis [of Rule 23] must be rigorous,” and that “ ‘the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.’ ” Dukes, 222 F.R.D. at 143-44. Wal-Mart opposed the commonality finding largely by advancing the unique nature of individual stores and its practice of giving local managers substantial discretion in pay and promotion decisions. Dukes, 222 F.R.D. at 151. ¶35 Wal-Mart appealed the class certification, contesting, inter alia, the District Court’s conclusion that the class met the commonality requirement. The Ninth Circuit affirmed after granting a re-hearing en banc. See Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010). Wal-Mart again appealed and the U.S. Supreme Court granted certiorari, issuing its opinion in 2011. The majority considered the decision on commonality to be the “crux” of the case and engaged in an analysis of Federal Rule 23(a)(2)’s requirements. The Court attempted to clarify the application of Rule 23(a)(2)’s language and establish the proper standard of Rule 23(a)(2) adjudication. For our purposes, this clarification produced two important holdings, the first concerning the sufficiency of a plaintiff’s common contentions 21 and the second regarding the proper, “rigorous” level of Rule 23(a) analysis. We will examine these clarifications in turn. ¶36 First, the majority cautioned that the language of the commonality rule is “easy to misread, since ‘[a]ny competently crafted class complaint literally raises common ‘questions.’ ” Wal-Mart, 131 S. Ct. at 2551 (citation omitted). Thus, the majority sought to clarify what sort of common questions of law or fact satisfy Rule 23(a)(2). The majority emphasized that plaintiffs may not merely raise droves of superficial common questions (providing “Do all of us plaintiffs indeed work for Wal-Mart?” as an example). Instead, the plaintiffs’ common legal or factual contentions must “demonstrate that the class members ‘have suffered the same injury’ ” by asserting a common contention “of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal- Mart, 131 S. Ct. at 2551. 4 This emphasis logically flows from the Court’s prior justification of the class-action device’s departure from the usual rule of individual litigation: “permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23.” Falcon, 457 U.S. at 155 (quoting Califano, 442 U.S. at 700-01). ¶37 Second, the Supreme Court sought to clarify what it saw as an inconsistent, and inadequate, level of Rule 23(a) review in the lower federal courts. In doing so, the Wal-Mart decision embraced what has been termed a “rigorous” form of Rule 23(a) analysis. A 4 It should be noted that the majority retained the permissive recognition that “for purposes of Rule 23(a)(2) ‘[e]ven a single [common] question’ will do.” Wal-Mart, 131 22 “rigorous” level of Rule 23(a) analysis was previously adopted by a majority of the federal Circuit Courts, and the “more rigorous” approach adopted by the Second, Fourth, Fifth, Seventh, and Ninth Circuits requires district courts to make specific findings that each requirement of Rule 23(a) has actually, not presumably, been met. Dukes, 603 F.3d at 583. The Wal-Mart decision adopted the “more rigorous” approach, as district courts may certify a class “only if” they are satisfied that the prerequisites of Rule 23(a) have actually been satisfied. Wal-Mart, 131 S. Ct. at 2551. Further, in the course of making the required determination that Rule 23(a) has actually been satisfied, “ ‘sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.’ ” Wal-Mart, 131 S. Ct. at 2551 (quoting Falcon, 457 U.S. at 160). Thus, to the Wal-Mart majority, a proper “rigorous” Rule 23(a) analysis specifically requires that the district court determine each requirement of Rule 23(a) has been actually met and allows, but does not require, the district court to probe beyond the pleadings and touch aspects of the merits to make this determination. See Wal-Mart, 131 S. Ct. at 2551. ¶38 The Wal-Mart majority’s application of the clarified commonality requirement provides some further insight into its Rule 23(a)(2) analysis. Because the plaintiffs’ class action alleged a company-wide policy of gender discrimination in violation of Title VII, the Supreme Court recognized that “proof of commonality necessarily overlaps with respondents’ merits contentions that Wal-Mart engages in a pattern or practice of discrimination.” Wal-Mart, 131 S. Ct. at 2552. The majority viewed the size of the class S. Ct. at 2556. 23 and disparate nature of Wal-Mart’s employment decisions as particular problems, and determined that “[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial questions why was I disfavored.” Wal- Mart, 131 S. Ct. at 2552. To provide this glue, the majority required the plaintiffs to prove that a company-wide policy existed. The majority accordingly reviewed the plaintiffs’ proffered evidence and concluded that it could not prove that a company-wide policy existed. Wal-Mart, 131 S. Ct. at 2553-57. Thus, the Supreme Court probed beyond the pleadings to determine a merits issue—whether Wal-Mart even had a company-wide pay or promotion policy—to determine if the plaintiffs could present a common contention amenable to classwide resolution. Unlike the present case, because the plaintiffs could not prove a uniform plan or policy, they could not present the question of whether they, and the proposed class members, had suffered a common injury as a result.5 5 Moreover, the U.S. Supreme Court recently rejected the propriety of a merits inquiry at the class certification stage for a Rule 23(b)(3) class. The case, Amgen Inc., et al. v. Connecticut Retirement Plans and Trust Funds,133 S. Ct. 1184, 185 L. Ed. 2d 308 (2013), involved a securities fraud Rule 23(b)(3) class action. To prove securities fraud and recover damages under § 10(b) of the Securities Exchange Act of 1934, a plaintiff must prove, inter alia, a material misrepresentation or omission by the defendant. Matrixx Initiatives, Inc. v. Siracusano, 568 U.S. __, __, 131 S. Ct. 1309, 1317 (2011). Materiality is key in a § 10(b) class action suit because it is an essential predicate for the fraud-on-the-market theory that supports the presumption of “classwide reliance on those misrepresentations and omissions through the information- processing mechanism of the market price.” Amgen, 568 U.S. at __, 133 S. Ct. at 1194. Without this presumption, the plaintiffs could not prove that the class as a whole relied on the misrepresentation and present a common question suitable for Rule 23(b)(3). However, the Supreme Court held that proof that a defendant’s misrepresentations or omissions materially affected their stock price was not required at the Rule 23(b)(3) class certification stage. Amgen, 563 U.S. at __, 2013 LEXIS at 8. While Wal-Mart recognized that courts may intrude on merits issues, like materiality, to certify a class, the Amgen majority held that Rule 23(b)(3) “requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class.” Amgen, 568 U.S. at __, 2013 LEXIS at 8. As the Amgen decision emphasized, “the office of a Rule 23(b)(3) certification ruling is not to adjudicate the case; rather, it 24 b. Jacobsen’s Proposed Class and the District Court’s Rule 23(a)(2) Decision ¶39 Here, the District Court applied the Wal-Mart decision’s reasoning that the asserted class claim must depend upon a common contention that will resolve an issue that is central to the validity of each member’s claim. In applying this standard, the District Court looked beyond the allegations of Jacobsen’s pleadings to find: (1) that Jacobsen had produced “significant proof” that Allstate intentionally and systematically failed to disclose that represented claimants received settlements 2-3 times larger than unrepresented claimants; (2) that Allstate developed the CCPR with the intent that it would reduce the net sum of unrepresented settlements; (3) that Allstate hid this profit motive by developing the facially neutral CCPR; (4) that Allstate consciously disregarded a high probability that the net effect of the CCPR would result in less than a full and fair settlement; and (5) that the CCPR program had resulted in “a substantial, objectively measurable reduction in the total amount of compensation paid to the class of unrepresented claimants as a whole . . . .” The Court concluded that these factual showings united Jacobsen and the class member’s claims and supported the following common questions of law and fact, asking whether: (1) the Casualty CCPR’s unrepresented segment adjusting practices are a common pattern and practice in violation of §§ 33-18-201(1) and (6), MCA, as generally applied to the class of unrepresented claimants as a whole; is to select the ‘metho[d]’ best suited to adjudication of the controversy ‘fairly and efficiently.’ ” Amgen, 568 U.S. at __, 133 S. Ct. at 1191. Amgen accordingly supports our recognition that the focus of the class action device is the fair and efficient adjudication of common claims. Further, both Amgen and Wal-Mart dealt with questions concerning what sort of merits inquiry was appropriate. The Amgen decision limited merits inquiries in the context of a Rule 23(b)(3) securities fraud claim, supporting the view that Wal-Mart’s more- skeptical level of Rule 23 analysis is not universally applicable. 25 (2) Allstate’s common, systematic use of this pattern and practice in Montana caused indivisible harm to the class as a whole by operation of its zero-sum economic theory and the resulting inversely proportional relationship between Allstate profit increases and corresponding decreases in the total amount of compensation paid to the class of [sic] as a whole; and6 (3) Allstate has consciously disregarded a high probability that the net effect of its Casualty CCPR’s unrepresented segment practices would result in net settlement payouts to the class as a whole less than the net amount previously sufficient to fully and fair[ly] settle unrepresented claims under Montana law. Despite potential factual disputes, the Court determined that Jacobsen’s proposed class action would provide the sort of “common answers” concerning the CCPR program that Wal-Mart encouraged. See Wal-Mart, 131 S. Ct. at 2551. Indeed, because the presence of a common pattern and practice is undisputed, Jacobsen’s common contentions do not suffer from the same defect as did the plaintiffs’ contentions in Wal-Mart. ¶40 On appeal, Allstate first argues that because Jacobsen’s claim is not predicated upon an assertion that his third-party bodily injury or property damage claims were ultimately settled unfairly or underpaid, there is no commonality between his claim and the alleged class claims. However, this argument misses the thrust of Jacobsen’s class claim on remand. While Jacobsen’s requested relief and alleged bases for damages are not entirely clear, the District Court determined that his claim asserts, in part, that Allstate’s application of the CCPR to unrepresented claims is a per se violation of the UTPA and results in actual harm in 6 As discussed below, however, we believe it is necessary to revise the second certified class claim in light of our holding reversing the certification of a class-wide punitive damages award. 26 the form of an alleged zero-sum economic plan systematically reducing claims payments to increase profits. This contention does not merely allege that the proposed class members suffered a violation of the same provision of law “in many ways.” See Wal-Mart, 131 S. Ct. at 2551. Here, the presence of a “general business practice,” the CCPR, is undisputed. Whether this general practice, as applied to unrepresented claimants, violates §§ 33-18- 201(1) or (6), MCA, is just the sort of question that may efficiently drive the resolution of the litigation. See Wal-Mart, 131 S. Ct. at 2551 (commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury.”). This determination would not turn on the countless discretionary decisions that troubled the Wal-Mart majority, and would not be hampered by a variety of unique defenses and circumstances. Jacobsen’s assertion that the CCPR, as applied to the class members, represents a per se violation of the UTPA would resolve a necessary, central question applicable to all class members. ¶41 Judge Richard Posner’s treatment of the Rule 23(b)(2) class certification at issue in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012) supports this conclusion. There, plaintiffs filed a class action suit alleging that Merrill Lynch engaged in a system of racial discrimination by utilizing a company policy that allowed brokers to form teams and that then rewarded team performance with increased broker account distributions. McReynolds, 672 F.3d at 483, 489-90.7 The plaintiffs asked that the 7 Essentially, the plaintiffs contended that the teams were “little fraternities” that, intentionally or not, chose members largely from similar racial groups. McReynolds, 672 F.3d at 489. Brokers did not have to join teams, but being accepted by a successful team generally increased performance. Account distributions were made when a broker left Merrill Lynch to distribute his clients’ accounts and they were based on the past success of the brokers. Thus, if a broker wasn’t selected by a successful team, he may miss out on future 27 class be certified to determine whether the defendant had engaged in discriminatory practices and to provide injunctive relief. The plaintiffs also wanted compensatory and punitive damages. McReynolds, 672 F.3d at 483. The district court denied class certification and the plaintiffs appealed. On appeal, Judge Posner considered the denied certification in the context of Wal-Mart. McReynolds, 672 F.3d at 488. Judge Posner found that, unlike the Wal-Mart plaintiffs, Merrill Lynch’s policies were an employment decision by the top management that was appropriate for a class-wide determination as to whether the challenged policies had a disparate racial impact. McReynolds, 672 F.3d at 489. ¶42 Judge Posner reversed the district court’s denial of class certification despite his recognition that a final resolution of the class’s claims would require hundreds of separate trials to determine compensatory and punitive damages. As Judge Posner noted, [o]bviously a single proceeding, while it might result in an injunction, could not resolve class members’ claims. Each class member would have to prove that his compensation had been adversely affected by the corporate policies, and by how much. So should the claim of disparate impact prevail in the class-wide proceeding, hundreds of separate trials may be necessary to determine which class members were actually adversely affected by one or both of the practices and if so what loss he sustained—and remember that the class has 700 members. But at least it wouldn’t be necessary in each of those trials to determine whether the challenged practices were unlawful. McReynolds, 672 F.3d at 490-91 (emphasis added). To Judge Posner, “[t]he kicker is whether ‘the accuracy of the resolution’ would be ‘unlikely to be enhanced by repeated account distributions, which would cause him to not be selected by the successful teams, and a vicious cycle could ensue. The plaintiffs argued that minority brokers at Merrill Lynch found it hard to join good teams “and as a result don’t generate as much revenue or attract and retain as many clients as white brokers do.” McReynolds, 672 F.3d at 490. 28 proceedings.’ ” McReynolds, 672 F.3d at 491. As the Seventh Circuit previously said in Mejdrech v. Met-Coil Systems Corp., 319 F.3d 910 (7th Cir. 2003), If there are genuinely common issues, issues identical across all the claimants, issues moreover the accuracy of the resolution of which is unlikely to be enhanced by repeated proceedings, then it makes good sense, especially when the class is large, to resolve those issues in one fell swoop while leaving the remaining, claimant-specific issues to individual follow-on proceedings. Mejdrech, 319 F.3d at 911. A single class trial for injunctive relief that determines the legality of a commonly applied procedure or policy is not only economical and attractive, but, in the alternative, “[t]here isn’t any feasible method . . . for withholding injunctive relief until a series of separate injunctive actions has yielded a consensus for or against the plaintiffs.” McReynolds, 672 F.3d at 491; see also Wal-Mart, 131 S.Ct at 2557 (“[T]he key to the (b)(2) class is the, indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them,”). ¶43 Regarding the class’s requested monetary relief, Judge Posner recognized “there may be no common issues,” and determined “in that event the next stage of the litigation, should the class-wide issue be resolved in favor of the plaintiffs, will be hundreds of separate suits for backpay (or conceivably for compensatory damages and even punitive damages as well . . . .).” McReynolds, 672 F.3d at 492. The Court approved of this bifurcated approach, determining declaratory and injunctive relief in a class trial and individual monetary relief in later individual trials, because “the lawsuits will be more complex if, until issue or claim preclusion sets in, the question whether Merrill Lynch has violated the antidiscrimination 29 statutes must be determined anew in each case.” McReynolds, 672 F.3d at 492. As the D.C. Circuit recently noted, “[t]he pututative [sic] class in McReynolds was appropriate post-Wal- Mart because the economic harm alleged by each class member was the result of the same corporate-wide policies and if the policies were held unlawful then a question central to the validity of each class member’s claim would be resolved in one stroke.” DL v. District of Columbia, 713 F.3d 120, __, 2013 U.S. App. LEXIS 7375, 22 (D.C. Cir. 2013). This recognition aligns with the Wal-Mart majority’s interest in certifying classes that will drive the resolution of litigation and it supports affirming the certification of Jacobsen’s class to determine the certified declaratory and injunctive relief. See Ferguson, ¶ 28 (finding a common fact issue existed concerning whether Safeco programmatically breached insured’s made whole rights); McDonald, 261 Mont. at 401 (concluding that commonality was satisfied, despite class members living in different areas with different water sources, because the common theory was that the defendant breached a duty owed to all class members); M. R. Civ. P. 23(c)(4) (“When appropriate, an action may be brought or maintained as a class action with respect to particular issues.”); see also Williams v. Mohawk Indus., 568 F.3d 1350, 1360 (11th Cir. 2009) (“ ‘Since in theory there should be no hard requirement that (b)(2) be mutually exclusive, and since subpart (c)(4)(A) allows an action to be maintained ‘with respect to particular issues,’ the fact that damages are sought as well as an injunction or declaratory relief should not be fatal to a request for a (b)(2) suit, as long as the resulting hybrid case can be fairly and effectively managed.’ ”). 30 ¶44 Indeed, federal courts applying Wal-Mart’s commonality analysis have focused on the presence of just this sort of common contention alleging that a defendant’s programmatic conduct violates the law. See DL, 713 F.3d at 127 (vacating class certification after Wal- Mart because “the district court identified no single or uniform policy or practices that bridges all [the putative class members’] claims.”); Wang v. Chinese Daily News, 709 F.3d 829, 834 (9th Cir. 2013) (vacating and remanding class certification following Wal-Martand requiring that the plaintiff show “significant proof that [the defendant] operated under a general policy of [violating California labor laws]” to satisfy commonality); Forte v. Wal- Mart Stores, Inc., 2012 Dist. LEXIS 97435 5-6 (S.D. Tex.) (noting that if the lease agreement provision plaintiffs were contesting was a per se violation of the Texas Optometry Act, “commonality would be met.”); Khaliel v. Norton Health Care, Inc., 287 F.R.D. 511, 517 (W.D. Ky. 2012) (affirming class certification post-Wal-Mart where “it is the appropriateness of that [employment benefit calculation] methodology that will be determined when the court reaches the merits of the case, and such a question is indeed ‘capable of classwide resolution’. . . and does not turn on the validity of countless individual discretionary decisions.”); Kingsbury v. U.S. Greenfiber, LLC, 2012 U.S. Dist. LEXIS 94854, 18-19 (C.D. Ca.) (concluding Wal-Mart did not alter the Court’s decision to certify a class based on common questions including whether a standard purchase agreement was deceptive under California’s Unfair Competition Law); Creely v. HCR ManorCare, Inc., 2011 U.S. Dist. LEXIS 77170, 4-5 (N.D. Ohio) (reconsidering class certification in light of Wal-Mart and concluding the concerns raised in Wal-Mart “simply do not exist here” 31 because “the crux of this case is whether the company-wide policies, as implemented, violated Plaintiffs’ statutory rights.”). ¶45 Allstate also asserts that the common questions identified by the District Court do not demonstrate that the proposed class members have all “suffered the same injury.” See Wal- Mart, 131 S. Ct. at 2551. Allstate specifically argues that the first proposed common question—whether the CCPR as applied to unrepresented claimants violates the UTPA—“is precisely the type of generalized question that Wal-Mart identified as insufficient.” However, as discussed above, the determination of whether Allstate’s common application of the CCPR to the proposed class violated the UTPA is the sort of “common scheme of deceptive conduct” that necessarily presents common questions of law and/or fact. See Ferguson, ¶ 28; McReynolds, 672 F.3d at 491. ¶46 Allstate further contends that this question cannot be answered as a class question because an independent cause of action for a UTPA violation or common law bad faith requires a showing of actual damages. Because Allstate argues a showing of actual damages would require case-specific, individual inquiries, it asserts that the first common question cannot be answered for the class as a whole. However, as discussed above, individualized damage inquiries generally do not preclude class certification. See Mattson III, ¶ 38 (citing McDonald, 261 Mont. at 403-04). Damages claims may be determined in later individual trials after a class trial has determined the availability of the requested injunctive and declaratory relief. McReynolds, 672 F.3d at 491. 32 ¶47 Allstate argues the second proposed common question is deficient because whether Allstate’s profit increased while total compensation paid to the class decreased does not provide a common answer demonstrating a violation of §§ 33-18-201(1) or (6), MCA. Jacobsen responds that the second common question would answer whether the CCPR caused indivisible “legal injury” to the class as a whole “through the use of a dishonest system, whether or not the monetary value of each settlement ultimately was unfair.” We agree that the second certified class claim question is deficient, but only insofar as it conflicts with our conclusion that the Court’s certification of a class-wide punitive damages award was improper. As framed by the District Court, the second class claim asks the class jury to determine whether Allstate’s systematic use of the CCPR caused indivisible harm to the class as a whole by operation of a zero-sum economic theory and an inversely proportional relationship between Allstate profits and compensation paid to unrepresented claimants. The Court formulated this claim so as to justify the entry of a class-wide punitive damages award. We believe that the second certified class claim must be revised in light of our conclusion that punitive damages must be determined on an individualized basis, to be awarded only if the claimant can demonstrate compensatory loss. We consequently modify the second certified claim as follows: (B) Allstate’s common, systematic use of this pattern and practice in Montana resulted in damages to the members of the class by operation of its zero-sum economic theory and the resulting inversely proportional relationship between Allstate profit increases and corresponding decreases in the total amount of compensation paid to the class of unrepresented claimants as a whole; and [. . .] 33 See Section 3-2-204, MCA (entitling us to “affirm, reverse, or modify any judgment or order appealed from[.]”). The District Court considered the second common contention as proposing whether the CCPR’s alleged pursuit of profits at the expense of unrepresented claimants harmed the class by potentially violating the unrepresented claimants’ rights to good faith adjusting of their claims under the UTPA. Answering this question, as revised, would presumably help determine whether the CCPR was an intentional, programmatic effort to produce unfair settlements in violation of the UTPA. While an increase in profits concurrent with a decrease in total payments to the class as a whole may not prove a violation of the UTPA by itself, the District Court did determine that significant proof existed that Allstate developed the CCPR program “with the knowledge and intent” that its implementation would reduce the net sum of unrepresented settlements. This revised inquiry would help advance the determination of the legality of the CCPR while avoiding our concerns with a class-wide award of punitive damages, as discussed below. ¶48 The third common contention asks whether Allstate consciously disregarded a high probability that the net effect of the CCPR would result in decreased settlements to the class as whole. Thus, an affirmative answer to the second question, determining that the CCPR was an intentional effort to engage in unfair settlement practices to increase profits, would likely advance the resolution of the third question and could support a finding of actual malice pursuant to § 27-1-221(2), MCA. However, Allstate claims that the third common question is deficient because Jacobsen does not assert his claim was underpaid. Jacobsen responds that the harm at issue is insufficient class-wide settlement payouts due to the 34 CCPR’s zero-sum economic focus. Because Jacobsen argues that Allstate implemented the CCPR with the intention of implementing a zero-sum economic game to systematically produce unfair settlements and increase profits, this contention would resolve an issue central to each class member’s claim: whether Allstate acted maliciously by applying the CCPR with the intent of lowering payouts to increase profits. ¶49 It is important to note that district courts have “broad power and discretion vested in them by” Rule 23 “with respect to matters involving the certification and management of potentially cumbersome or frivolous class actions.” Reiter v. Sonotone Corp., 442 U.S. 330, 345, 99 S. Ct. 2326 (1979); accord Sieglock, ¶ 8 (“Trial courts have the broadest discretion when deciding whether to certify a class.”). Here, class-wide resolution of the proposed common contentions “will drive the resolution of the litigation.” Chipman, ¶ 52. Such potentially illuminating questions are the focus of Rule 23(a)(2) and, as discussed above, resolving whether the CCPR violates the UTPA would set the stage for later individual trials. Moreover, as we require, the District Court examined the evidence behind the pleadings to determine that the proposed class actually satisfied the commonality prerequisite. We therefore conclude that the District Court did not abuse its discretion by determining that Jacobsen’s common contentions, as construed by this Court, satisfy the commonality requirements of Rule 23(a)(2). ¶50 Again, both Jacobsen and Allstate have claimed that Wal-Mart presents a heightened commonality standard when compared with our previous conception of the rule, and both applied Wal-Mart to the case on appeal. Because of this, and because we affirm the District 35 Court’s class certification (also based on Wal-Mart), we need not address whether Wal-Mart presents a different standard and if we intend to adopt it. Mattson III, ¶ 37. Instead, as we did in Chipman and Mattson III, we simply conclude that Jacobsen satisfies the Wal-Mart commonality standard because the certified class claims depend upon a common contention concerning a programmatic course of conduct that is “of such a nature that it is capable of classwide resolution,” i.e., that “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 131 S. Ct. at 2551. iii. Typicality—Rule 23(a)(3) ¶51 Regarding typicality, we have previously explained that this requirement “is designed to ensure that the interests of the named representative are aligned with the interests of the class members, the rationale being that a named plaintiff who vigorously pursues his or her own interests will necessarily advance the interests of the class.” Mattson III, ¶ 21 (citing Chipman, ¶ 53). Thus, “ ‘[t]he premise of the typicality requirement is simply stated: as goes the claim of the named plaintiff, so go the claims of the class.’ ” Arlington Video Prods. v. Fifth Third Bancorp, 2013 U.S. App. LEXIS 3355, 42 (6th Cir. 2013). The commonality and typicality requirements “tends to merge,” Falcon, 457 U.S. 147, at 158 n. 13, and typicality generally “prevents plaintiffs from bringing a class action against defendants with whom they have not had any dealings.” Diaz, ¶ 35. Typicality is not a demanding requirement, and it “is met if the named plaintiff’s claim ‘stems from the same event, practice, or course of conduct that forms the basis of the class claims and is based upon the 36 same legal or remedial theory.’ ” Diaz, ¶ 35 (quoting McDonald, 261 Mont. at 402). The underlying event, practice, or course of conduct “need not be identical.” Diaz, ¶ 35. In addition, because Wal-Mart’s discussion of Rule 23(a) hinged on an analysis of commonality, the opinion did not consider the requirements of typicality and did not purport to establish a heightened level of review. ¶52 The District Court found that the nature of Jacobsen’s claim was typical of those of the proposed class because “significant proof [exists] that Allstate subjected the class as a whole, including but not limited to Plaintiff, to the same systematic violation of §§ 33-18- 201(1) and (6), MCA, through the pattern and practice of the Casualty CCPR’s unrepresented segment adjusting practices.” Specifically, the Court found that: Jacobsen and each proposed class member are members of the above-defined class; Jacobsen and each class member were at a minimum subjected to the same allegedly unlawful conduct generally; and the allegedly unlawful conduct caused harm to the class as a whole by operation of the CCPR and its alleged zero-sum economic theory. Thus, as required by our opinion in Mattson II, the District Court probed behind the pleadings to actually determine whether Jacobsen met the typicality prerequisite. ¶53 On appeal, Allstate argues that the District Court erred because “Jacobsen is not even a member of the class.” Allstate supports this contention by claiming that Jacobsen lacks individual standing because his initial release, obtained after his claim was adjusted to an unrepresented settlement pursuant to the CCPR, was rescinded, citing Hop v. Safeco Ins. Co., 2011 MT 215, 361 Mont. 510, 261 P.3d 981. Allstate further attempts to distinguish 37 Jacobsen’s claim from those of the class members by arguing that he does not contend his property damage claim was improperly handled and that he only seeks damages due to alleged emotional distress. Jacobsen in turn claims that the application of the CCPR is a per se violation of the UTPA, that the application of the CCPR to the class as a whole resulted in systemic economic injury, and that both he and the class suffered emotional distress from the application of the CCPR to their claims. Jacobsen essentially asserts that typicality isn’t destroyed if class members display some uniqueness in the character of their individual injuries. ¶54 First, our opinion in Hop can be distinguished. There, we declined to find typicality based on the named representative’s lack of individual standing for failing to meet the procedural requirements of § 33-18-242(6), MCA. Hop, ¶ 20. The named representative did not lack individual standing because of any factual differences in the substantive details of his claim, but for bringing a claim under § 33-18-201, MCA, despite the absence of any judgment in, or settlement of, his underlying claim as required by § 33-18-242(6), MCA. This holding is therefore inapplicable to Allstate’s argument that Jacobsen’s claim is not typical because of the specific facts of the application of the CCPR to his unrepresented claim. ¶55 Second, Allstate’s arguments miss the aim of the typicality requirement by raising issues with the specific facts of Jacobsen’s claim and the specific relief he seeks. See Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (1992) (“Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose 38 or the relief sought.”). Jacobsen is a member of the class as defined by the District Court. He was an unrepresented third-party claimant bringing claims for property damage and bodily injury following a motor vehicle accident with an Allstate insured. Allstate applied the CCPR to Jacobsen while he was unrepresented, and, at base, Jacobsen’s class claim alleges that Allstate systematically applies the CCPR to violate the rights of unrepresented claimants under the UTPA. Jacobsen’s claim stems from the same course of conduct, the application of the CCPR to unrepresented claimants, as the proposed class members’ claims and both Jacobsen’s and the class members’ claims are based on the same legal theory, that this application of the CCPR violates the UTPA. The injuries that allegedly resulted among class members, whether economic or emotional, are not sufficiently dissimilar to render Jacobsen’s claim atypical of those of the class regarding this core allegation. ¶56 Indeed, we have previously determined that the common application of an insurance practice to a proposed class constitutes an event, practice, or course of conduct sufficient to satisfy the typicality requirement. See Diaz, ¶ 36; Ferguson, ¶¶ 26-28 (finding the related commonality requirement satisfied by an allegedly programmatic breach of a duty). In Chipman, we considered claims that the named plaintiffs’ claims were atypical from those of the class in the context of a suit over the discontinuation of a sick leave buy-back program. Chipman, ¶ 54. The defendant employers argued that the named plaintiffs’ claims were atypical because they worked for the employers for a longer period and may or may not have attended a meeting with management. Chipman, ¶ 54. The plaintiff employees argued that the class members’ disputes were typical because they were triggered by the same underlying 39 cancellation of the buy-back program. Chipman, ¶ 54. We determined that because the claims of the named plaintiffs and class members all arose from the same event, the plaintiffs were able to establish “the necessary nexus between the injuries alleged by named Plaintiffs and class members.” Chipman, ¶ 56. We based this decision on an analysis of Cates v. Cooper Tire & Rubber Co., 253 F.R.D. 422 (N.D. Ohio 2008). There, the named plaintiffs sought class certification in a suit against their employer over the imposition of a cap on post-retirement health benefits. Cates, 253 F.R.D. at 424. The district court determined that typicality was satisfied despite the fact that the benefit plans of the named plaintiffs varied from those of the class members because all of the claims arose from the same event or practice and the class members relied on the same legal theory. Cates, 253 F.R.D. at 429. Jacobsen’s and the class’s claims arise from the CCPR and all are proceeding under the legal theory that the CCPR was implemented to lower claims payments to the class by violating the rights afforded claimants under the UTPA. ¶57 In addition, as we discuss below, our reformation of the requested class relief will cause the specifics of Jacobsen’s injuries to be aired in a later, individual suit for damages if the court awards the requested class injunctive and declaratory relief. Jacobsen’s injunctive and declaratory claims arise from the same course of conduct as those of the putative class members, the application of the CCPR to his unrepresented claim for bodily injury and property damage following a motor vehicle incident. A class trial may efficiently, and appropriately, determine the legality of this program as applied to the class as a whole. See McReynolds, 672 F.3d at 490-91. Allstate’s concerns over Jacobsen’s typicality, centered on 40 the details of his injury and the availability of certain defenses, will be obviated if the specifics of Jacobsen’s injuries will not be addressed in a class trial that considers only the proposed injunctive and declaratory relief. Thus, despite Allstate’s contentions, the specifics of Jacobsen’s alleged injuries do not render him atypical of the class because his claim “stems from the same event, practice, or course of conduct that forms the basis of the class claims and is based upon the same legal or remedial theory,” McDonald, 261 Mont. at 402 (quoting Jordan v. County of Los Angeles, 669 F.2d 1311, 1321 (9th Cir. 1982) (emphasis in original). This satisfies the typicality requirement and we affirm the District Court’s decision. iv. Adequacy—Rule 23(a)(4) ¶58 The fourth prerequisite of Rule 23(a) allows certification only where the representative parties will fairly and adequately protect the interests of the class. M. R. Civ. P. 23(a)(4). “‘This requires that the named representative’s attorney be qualified, experienced, and generally capable to conduct the litigation, and that the named representative’s interests not be antagonistic to the interests of the class.’ ” McDonald, 261 Mont. at 403, 862 P.2d at 1156 (quoting Jordan, 669 F.2d at 1323). Adequacy is therefore closely related to commonality and typicality. Regarding potential antagonistic interests, the District Court determined that because Jacobsen’s asserted class claims satisfied the commonality and typicality requirements, Allstate had failed to show a compelling reason why Jacobsen’s individual interests would conflict with the common interests of the class. 41 The court also took notice that Jacobsen’s class counsel are competent and experienced in complex class action litigation. ¶59 Allstate argues that Jacobsen’s claims will be subject to unique defenses that are likely to become the focus of any trial. However, “perfect symmetry of interest is not required and not every discrepancy among the interests of class members renders a putative class action untenable.” Matamoros v. Starbucks Corp, 699 F.3d 129, 138 (1st Cir. 2012). When we apply this recognition to the adequacy requirement of Rule 23(a)(4), it is clear that “ ‘[o]nly conflicts that are fundamental to the suit and that go to the heart of the litigation prevent a plaintiff from meeting the Rule 23(a)(4) adequacy requirement.’ ” Matamoros, 699 F.3d at 138 (quoting 1 William B. Rubenstein, Newberg on Class Actions § 3:58 (5th ed. 2012)). The potential intra-class conflicts that Allstate cites—which include Jacobsen’s desire for an early settlement, that he may have initially decided to not hire an attorney, and the cause of his emotional distress—are not “so substantial as to overbalance the common interests of the class members as a whole.” Matamoros, 699 F.3d at 138. As a third party claimant contesting the legality of the CCPR, Jacobsen has incentive to vigorously pursue the requested injunctive and declaratory relief. In view of this, the limited scope of the class trial on remand, and the District Court’s considerable discretion in class certification decisions, we conclude that the District Court did not abuse its discretion by concluding that Jacobsen’s interests are not antagonistic to those of the proposed class. ¶60 2. Whether the District Court abused its discretion by certifying a M. R. Civ. P. 23(b)(2) class action lawsuit? 42 ¶61 Once the Rule 23(a) prerequisites are satisfied, the analysis shifts to Rule 23(b). Mattson III, ¶ 18. To be certified, a class must fit within one of the three types described in Rule 23(b). Wal-Mart, 131 S. Ct. at 2548-49. At the District Court, Jacobsen argued that his proposed class qualified under Rule 23(b)(2), or alternatively, as a “hybrid-type class” combining elements of Rule 23(b)(2) and Rule 23(b)(3). Rule 23(b)(2) allows a class action to be maintained if, having met the requirements of Rule 23(a), “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]” M. R. Civ. P. 23(b)(2). As the Wal-Mart decision noted, “[t]he key to the [Rule 23](b)(2) class is, the indivisible nature of the injunctive or declaratory remedy warranted-- the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them,” Wal-Mart, 131 S. Ct. at 2557 (internal citation omitted). ¶62 Rule 23(b)(3) allows a class action if the court finds that the common questions of law or fact predominate over individual questions. The District Court declined to address Jacobsen’s alternative claim for Rule 23(b)(3) relief because of the “cursory” briefing and “logical inconsistency” of a hybrid Rule 23(b)(2) and (b)(3) class. Jacobsen does not challenge this decision on appeal. ¶63 The District Court specifically found that “significant proof” existed that Allstate, the party opposing the class, had acted on grounds that generally applied to the class through its 43 use of the CCPR program.8 Following this determination, the Court examined whether Jacobsen sought appropriate forms of injunctive and declaratory relief and whether Jacobsen’s requested monetary relief was permissible under Rule 23(b)(2). After denying Jacobsen’s claims for equitable disgorgement and a vague prohibitive injunction,9 the Court certified the following class action remedies under Rule 23(b)(2): (A) declaratory judgment adjudicating the constituent assertions of the certified class claim [quoted at ¶ 16]; (B) mandatory injunction requiring Allstate to: (1) give all class members court-approved notice of the right and opportunity to obtain re-opening and re-adjustment of their individual claims by timely returning a proof of claim form; (2) re-open and re-adjust each individual claim upon receipt of a timely filed proof of claim; (C) class-wide punitive damages pursuant to §§ 27-1-220 and 27-1-221(2), MCA (actual malice), predicated on the above-referenced class-wide conduct; and 8 The District Court based this finding on its construction of Jacobsen’s class claim, which is quoted at ¶ 16, supra. The Court essentially determined that Jacobsen claimed that the CCPR was a common practice in violation of §§ 33-18-201(1) and (6), MCA, as applied to the class as a whole, that the CCPR caused economic harm to the class as a whole, and that Allstate consciously disregarded the high probability that the CCPR would result in insufficient net settlement payouts. 9 The Court found that that a mandatory injunction compelling disgorgement of unlawful profits was not appropriate in addition to punitive damages and denied its availability as a Rule 23(b)(2) remedy. The Court also found that Jacobsen’s requested prohibitive injunction enjoining Allstate from engaging in unlawful conduct as found by the jury was fatally vague because it failed to articulate a specific prohibition that would provide relief to the class as a whole. Jacobsen does not appeal either decision. 44 (D) common fund recovery of class action attorney fees and costs upon a class-wide punitive damages award[.]10 Allstate generally contests the appropriateness of the certified class remedies as applied to both the class and Allstate, and further asserts various violations of both its, and the class members’, right to due process. ¶64 As we explain below, we affirm the Court’s certification of a Rule 23(b)(2) class asserting the above class declaratory (“(A)”) and injunctive (“(B)”) relief, but we reverse the certification of a potential class-wide punitive damages award (“(C)”). We accordingly remand with direction to determine the availability of the above declaratory and injunctive relief in a class trial. Further, instead of considering class-wide punitive damages, the class trial will determine whether Allstate’s implementation of the CCPR involved either actual fraud or actual malice pursuant to § 27-1-221, MCA. See § 33-18-242(4), MCA; Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 91, 345 Mont. 12, 192 P.3d 186. Thus, the class trial will initially determine if the CCPR violates the UPTA according to the certified declaratory relief. If so, the Court will issue a mandatory injunction requiring Allstate to give all class members notice of the right to re-open and re-adjust their individual claims. Last, the class trial will determine if Allstate engaged in actual fraud or actual malice in implementing the CCPR. If so, the trier of fact in the later individual cases may determine the amount of 10 Allstate does not challenge the certification of common fund attorney fees on appeal. 45 individual punitive damages to be awarded if individual actual damages are also established. We will discuss the certified class remedies in turn. A. The Declaratory and Injunctive Relief i. Class Cohesiveness ¶65 Allstate first argues that a Rule 23(b)(2) class is inappropriate because the class lacks cohesiveness. This is essentially a restatement of Allstate’s arguments against commonality and typicality. However, because a Rule 23(b)(2) class action is considered “mandatory,” see Wal-Mart, 131 S. Ct. at 2558,11 a class that lacks homogeneity could unjustly bind absent class members to a negative decision. See Barnes v. Am. Tobacco Co., 161 F.3d 127, 143 (3d Cir. 1998). Because the relief sought must be able to affect the entire class at once, we will examine the cohesiveness of the class in the context of a mandatory Rule 23(b)(2) class. ¶66 Allstate claims the proposed class is inappropriate as a Rule 23(b)(2) class because it “would necessarily include many individuals who suffered no injury and thus could have no UTPA claim . . . .” Allstate claims both that these dissimilar class members would be unjustly bound by the action and that the lack of homogeneity would involve the adjudication of significant individual issues. However, these arguments are premised on a misunderstanding of the nature of Jacobsen’s asserted class claims and are precluded by the scope of the class trial on remand. The individual context of any one settlement is not relevant to the adjudication of the certified declaratory and injunctive relief and our 11 Rule 23(b)(2) classes are considered “mandatory” because the rule does not provide an opportunity for class members to opt out and does not require a district court 46 reformation of the punitive damages portion of the certified relief removes the consideration of individual circumstances in the class trial. Thus, Allstate’s claim that not all class members have suffered actual harm or an unfair adjustment misses the point. The certified class claims on remand are not intended to resolve individual cases of unfair settlement or payment. Instead, they are aimed at adjudicating the initial legality of the CCPR as applied to the class. The later individual trials would allow Allstate to present evidence that individual class members suffered no injury. But, the initial legality of the CCPR would not need to be re-litigated in each subsequent individual trial. See DL, 2013 U.S. App. at 22; McReynolds, 672 F.3d at 491; Mejdrech, 319 F.3d at 911. ¶67 As the District Court noted, our decision in Ferguson supports certifying Jacobsen’s requested declaratory and injunctive relief as part of a Rule 23(b)(2) class. There, as part of a Rule 23(b)(2) class, the plaintiff sought a declaration that the insurer, Safeco, had breached its adjustment duties through a “programmatic assertion of subrogation without first investigating and determining whether insureds had received their ‘made-whole’ rights.” Ferguson, ¶ 33. Facing a similar claim that the requested declaratory relief would require the adjudication of individual “made-whole” entitlements, we determined that the plaintiff’s claim did not raise issues with Safeco’s application of the “made-whole” rule to any one insured. Ferguson, ¶¶ 34, 39. Instead, we concluded that the plaintiff’s claim contested “the procedures of a program of subrogation which systematically deprives all class members of any consideration of their ‘made-whole’ rights.” Ferguson, ¶ 34. Thus, like Jacobsen, the to afford them notice. Wal-Mart, 131 S. Ct. at 2558. 47 plaintiff in Ferguson sought a declaration requiring Safeco to follow a statutory duty prior to any consideration of the actual harm the violation of this standard caused to any individual class member. These “class claims do not seek a determination of entitlements for each class member and the payment of damages; rather [both] class claims seek a declaratory ruling that will be enforced to compel [the insurer] to follow the legal standard . . . .” Ferguson, ¶ 34; see also Diaz, ¶ 47. ¶68 Here, as in Ferguson, the plaintiff seeks “an order compelling [the insurer] to properly perform its statutory adjustment duties.” Ferguson, ¶ 36. Because Jacobsen presents a common question alleging a common injury, an answer will determine whether the CCPR will be “enjoined or declared unlawful only as to all of the class members or as to none of them.” See Wal-Mart, 131 S. Ct. at 2557. The potential later individualized determinations of underpayment are not necessary to answer Jacobsen’s class claims and do not render the class overbroad. ii. Class Injunctive and Declaratory Relief is “Final” ¶69 Allstate contends that Rule 23(b)(2) requires “final” relief, and contends the certified relief is not final because “it only serves as a basis to present damage claims later.” Allstate largely cites federal precedent as support for this proposition. However, we have never construed M. R. Civ. P. 23(b)(2)’s use of “final” to impose a substantive obligation on plaintiffs, and it is not clear that Allstate’s citations to authority recommend that we do so. See Richards v. Delta Air Lines, Inc., 453 F.3d 525, 530 (D.C. Cir. 2006) (“Subsection (b)(2) was not intended to ‘extend to cases in which the appropriate final relief relates exclusively 48 or predominantly to monetary damages.’”). Moreover, Allstate’s preferred citations are distinguishable from the present case. See Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883 (7th Cir. 2011) (contesting the failure to implement a uniform program); Jamie S. v. Milwaukee Public Schools, 668 F.3d 481 (7th Cir. 2012) (finding proof of an illegal policy was “entirely absent here.”). We have not recognized a substantive “finality” requirement in Rule 23(b)(2) and we address Allstate’s complaints concerning monetary relief below. iii. Injunctive and Declaratory Relief is not Amorphous ¶70 As noted, Jacobsen seeks declaratory relief declaring the application of the CCPR to the class to be a violation of the UTPA and a mandatory injunction requiring Allstate to re- open and re-adjust claims. Allstate complains that this relief “is so amorphous and vague that it cannot support class certification,” citing Shook v. Bd. of County Comm’rs, 543 F.3d 597, 605 (10th Cir. 2008) and Kartman. ¶71 Allstate specifically argues that the requested declaratory relief would provide an inappropriately abstract or advisory opinion that failed to provide further direction on the process to be used if claims are to be re-adjusted. However, our rule against issuing advisory opinions is based in the concept of justiciability. Plan Helena, Inc. v. Helena Reg’l Airport Auth. Bd., 2010 MT 26, ¶¶ 8-9, 355 Mont. 142, 226 P.3d 567. The various doctrines of justiciability seek to ensure that courts provide specific relief in concrete, actual controversies instead of opinions advising what the law or rule would be based upon a hypothetical set of facts or abstract proposition. Plan Helena, Inc., ¶ 9. This prohibition does not mean that the Court’s potential determination that the CCPR violates the law also 49 needs to be accompanied by a judicial proposal for a legal claims adjusting program. Our statutory requirement that an order granting an injunction be specific in its terms, § 27-19- 105(2), MCA, does not require this level of specificity either. See Guthrie v. Hardy, 2001 MT 122, ¶¶ 61-62, 305 Mont. 367, 28 P.3d 467 (faulting an injunction which failed to indicate which named party carried the obligation of maintaining a road). Insurance adjusting is squarely within Allstate’s area of expertise, not the judicial branch’s, and where we have previously faulted injunctions for a lack of specificity, we have not required the level of detail Allstate now requests. ¶72 Allstate’s citations to authority do not support enlisting the judiciary to draft claims adjusting policies either. For example, in Shook, plaintiffs sought to certify a class containing all present and future mentally ill inmates in a Colorado jail. Shook, 543 F.3d at 600. The plaintiffs sought a Rule 23(b)(2) class with declaratory and injunctive relief addressing jail conditions. However, the plaintiffs suffered from a wide variety of mental illnesses and were subjected to a correspondingly wide range of treatments by the jail staff. Shook, 543 F.3d at 601. The plaintiffs sought a broad injunction “establishing standards across a wide range of areas affecting mentally ill inmates,” touching upon staffing, training, inmate housing, safety, psychiatric care, and the proper use of force. Shook, 543 F.3d at 602. The district court denied Rule 23(b)(2) certification because plaintiffs could not show that the defendants acted on grounds generally applicable to the whole class and because the variety within the class precluded class-wide injunctive relief. Shook, 543 F.3d at 603. The Court of Appeals affirmed the decision, noting that “the relief plaintiffs seek would require 50 the district court to craft an injunction that distinguishes—based on individual characteristics and circumstances—between how prison officials may treat class members[.]” Shook, 543 F.3d at 605 (emphasis in original). Moreover, an injunction that took the opposite tack and merely required “adequate” services would fail to describe just what, in light of the variety of the inmates’ needs, must be done. Shook, 543 F.3d at 606. Shook therefore does not stand for the proposition that Rule 23(b)(2) requires a certain specificity of injunctive relief, but for the general recognition that Rule 23(b)(2) classes must be sufficiently cohesive so that the injunctive relief applies to the class as a whole. ¶73 In Kartman, plaintiffs brought a class claim alleging, in part, that State Farm’s failure to use a uniform, objective criteria while assessing their hail-damaged roofs amounted to breach of contract, bad faith, and unjust enrichment. Kartman, 634 F.3d at 887. As relief, plaintiffs requested compensatory and punitive damages and an injunction requiring State Farm to reinspect all class members’ roofs pursuant to a uniform and objective standard. The district court judge certified a Rule 23(b)(2) class to adjudicate the request for an injunction and to assess State Farm’s liability. Kartman, 634 F.3d at 888. The appellate court reversed, finding that plaintiffs’ only cognizable injury was for underpayment of their claims and that the requested injunctive relief was not the proper remedy. Kartman, 634 F.3d at 889-90. This finding was largely based on the court’s conclusion that State Farm had no duty to use an objective, uniform standard to determine hail-damage. Kartman, 634 F.3d at 890. Thus, the plaintiffs’ failing was that the court determined State Farm had no duty to use a particular method to evaluate hail-damage claims, let alone a duty to use the method 51 the plaintiffs sought to impose with an injunction. Kartman, 634 F.3d at 890. This situation is distinct from the present case, where Jacobsen seeks a declaration that Allstate’s CCPR violates the UTPA and an injunction requiring notice to the class of the right to reopen their claims. Jacobsen, unlike the plaintiffs in Kartman, is not contesting the lack of a program or seeking to outline the contours of a legal program to be imposed on Allstate. ¶74 Unlike Shook and Kartman, the certified class at issue has been subjected to a common practice and has allegedly suffered a common injury to statutorily conferred rights. This common contention, as discussed, is amenable to class-wide relief. This does not mean, however, that the court must go beyond an injunction addressing tortious conduct to affirmatively dictate proper adjusting practices. See Rodriguez v. Countrywide Home Loans, Inc. (In re Rodriguez), 695 F.3d 360, 368-69 (5th Cir. 2012) (holding that injunctions are problematic when they order a defendant to obey the law and do not indicate what law the defendant needs to obey). B. Punitive Damages in a Rule 23(b)(2) Claim ¶75 The District Court certified the availability of class-wide punitive damages pursuant to § 27-1-220 and § 27-1-221(2), MCA. The District Court determined that monetary relief is available in a Rule 23(b)(2) class under Wal-Mart if it is incidental to the declaratory and injunctive relief, affords indivisible, non-individualized relief in a single stroke, and comports with due process by not prejudicing the rights of the class members and defendant to contest specific cases. The Court also noted that punitive damages are generally not available without a predicate award of compensatory damages, but reasoned that an award of 52 punitive damages based on actual malice does not require an award of compensatory damages if the evidence shows that the predicate tort caused actual harm or damage. The Court then determined that Jacobsen’s claim was capable of showing that Allstate’s alleged zero-sum economic theory visited a form of indivisible, actual economic harm upon the entire class, which it reasoned “would constitute a sufficient predicate for a class-wide punitive damages award in this case.” The Court further concluded that a class-wide punitive damages award did not implicate the due process concerns addressed in Wal-Mart because it was not an individualized monetary remedy and did not litigate any claim-specific issues. ¶76 Allstate initially contests the basic appropriateness of monetary damages under Rule 23(b)(2), claiming that “one possible reading” of Rule 23(b)(2) is that it does not authorize certification of monetary claims at all. The majority opinion in Wal-Mart did not go so far as to foreclose the availability of monetary relief in Rule 23(b)(2) classes, however, and it left open the possibility that incidental monetary claims could be certified under Rule 23(b)(2). Wal-Mart, 131 S. Ct. at 2557. However, we need not decide the matter in this case, because we reverse the District Court’s certification of a class-wide punitive damages award based on our concerns over the award’s potential effect on the due process rights of Allstate. i. The Class-Wide Punitive Damages and Due Process ¶77 Allstate also claims that the District Court’s certification of class-wide punitive damages violates Allstate’s right to due process because Allstate would be precluded from raising case-specific defenses to an individual class member’s entitlement to punitive 53 damages (e.g. that individual class member’s claims were handled appropriately or paid fairly). Conversely, Allstate argues that the potential class trial would “inappropriately devolve into a series of mini-trials “if the Court were to allow Allstate to present defenses to class member’s entitlement to punitive damages. Jacobsen counters that our decision in Gonzales established that punitive damages class claims can be maintained for systematic wrongdoing without individualized proof of harm. Jacobsen also asserts that Allstate’s proffered federal precedent does not apply in the class action context. ¶78 Given the nature of the requested relief as part of a Rule 23(b)(2) class, we agree that Allstate should be able to establish defenses to individual claims to ensure that punitive damages are not awarded to claimants that were not actually damaged by the adjustment of their claims under the CCPR. See Philip Morris USA v. Williams, 549 U.S. 346, 353, 127 S. Ct. 1057 (2007) (“[T]he Due Process Clause prohibits a State from punishing an individual without first providing that individual with ‘an opportunity to present every available defense.’ ”); Seltzer v. Morton, 2007 MT 62, ¶ 145, 336 Mont. 225, 154 P.3d 561. It is true that our Gonzales opinion considered the constitutionality of a class-wide punitive damages award. However, Gonzales did not consider a class-wide punitive damages award in the context of a Rule 23(b)(2) class and we did not consider the defendant’s right to present a defense to each class member’s entitlement to a punitive damages award. Gonzales, ¶ 15. Gonzales instead approved class-wide punitive damages in a combination Rule 23(b)(1) and (3) class suit where the district court certified a Rule 23(b)(3) compensatory damages class. Gonzales, ¶¶ 17-19. Thus, the Gonzales class members’ entitlement to compensatory 54 damages would be established during the class trial and would support an award of punitive damages. Here, adjudicating the requested injunctive and declaratory relief would not involve a similar determination of compensatory damages. Potentially granting class-wide punitive damages before determining whether individual class members suffered actual damages, as Jacobsen suggests, raises serious concerns about fairness. See Jacobsen I, ¶ 67; Stipe v. First Interstate Bank-Polson, 2008 MT 239, ¶ 23, 344 Mont. 435, 188 P.3d 1063. “Due process requires that there be an opportunity to present every available defense.” Lindsey v. Normet, 405 U.S. 56, 66, 92 S. Ct. 862 (1972). Permitting a class-wide recovery of punitive damages before sending notice to the class and determining the extent of the class members’ actual harm would allow the punitive award to be potentially based on non-injured parties. Allstate should be allowed to contest class members’ entitlement to punitive damages. Philip Morris USA, 549 U.S. at 353-54. We accordingly conclude that the District Court abused its discretion by certifying the requested class-wide punitive monetary relief. ii. The Second Certified Class Claim ¶79 Again, our conclusion that the Court abused its discretion by certifying a class-wide punitive damages award requires us to revise the second certified class claim. Our reformation of the second claim is discussed in paragraph 47, supra. 55 ¶80 3. Whether the District Court erred by holding that the Montana Rules of Evidence do not apply to class action proceedings? ¶81 Last, Allstate entered several objections before the District Court concerning the Court’s consideration of what Allstate argued was inadmissible evidence during the certification proceedings. In a footnote, the Court determined that the evidence Jacobsen presented in the Rule 23 certification proceedings did not need to be “in a trial-admissible form,” and denied Allstate’s objections to “the ultimate trial-admissible evidentiary sufficiency of Plaintiff’s preliminary Rule 23 factual showings in this case.” ¶82 On appeal, Allstate maintains that the District Court erroneously based its class certification order on evidence that “was clearly inadmissible under the Rules of Evidence.” Allstate argues this allegedly inadmissible evidence included opinions and statements in an expert report, an article written by the Consumer Federation of America, an affidavit by one of Jacobsen’s attorneys, a power point presentation referred to as the “Liddy slides,” an incentive compensation plan, and affidavits and testimony from a New Mexico case that considered the CCPR. Jacobsen counters that his case “was grounded on dozens of McKinsey documents” that Allstate produced on remand and that all other evidence was properly considered. However, because the Court did not make a ruling on the admissibility of any of the evidence in question, the specific admissibility of a particular piece of evidence is not presented to this Court on appeal. Rather, we must consider the Court’s contention that evidence need not be in a “trial admissible form” for the purposes of class certification proceedings. 56 ¶83 Allstate specifically contends that the District Court’s determination that “a rigorous Rule 23 analysis” does not necessarily require a preliminary factual showing in “a trial- admissible form” was error in light of our decision in Mattson II and the Montana Rules of Evidence. In Mattson II, the District Court refrained from engaging in an analysis of the merits of the plaintiffs’ claims and stated it was required to take the plaintiffs’ allegations in support of the class action as true. Mattson II, ¶ 61. The District Court thereafter certified the class. On appeal, the defendant argued that the court erred in its Rule 23 analysis by taking the plaintiffs’ allegations as true and asserted that the court should have made its determination “based upon the evidence.” Mattson II, ¶ 62. We held that the court erred by determining it must take the plaintiffs’ allegations as true and noted a district court “certainly may look past the pleadings” when determining if Rule 23’s requirements have been met. Mattson II, ¶ 65. Quoting the Supreme Court’s decision in Falcon, we held “ ‘sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question’ ” to determine actual conformance with Rule 23(a). Mattson II, ¶ 65 (quoting Falcon, 457 U.S. at 160, 102 S. Ct. at 2372). Therefore, while this “probe behind the pleadings” may necessitate allowing discovery and hearing evidence, Mattson II also determined “there is no absolute requirement that a hearing be held” if “the paper record before the court” is adequate. Mattson II, ¶ 66. The applicability of the Montana Rules of Evidence was not addressed by this Court and was not a basis of our decision. Thus, despite Allstate’s argument to the contrary, Mattson II does not stand for the proposition that courts must apply the Rules of Evidence in Rule 23 proceedings. 57 ¶84 Allstate also argues that the Montana Rules of Evidence require their application to Rule 23 proceedings. In support, Allstate cites M. R. Evid. 101(a) and 104(a). Rule 101(a) states that “[t]hese rules govern all proceedings in all courts in the state of Montana with the exceptions stated in this rule.” Rule 101(c) lists the situations in which the rules do not apply, including preliminary questions of fact, grand juries, miscellaneous proceedings like those for extradition or the issuance of warrants for arrest, “summary” proceedings, and other miscellaneous proceedings like ex parte matters. Allstate contends that because the exceptions listed under Rule 101(c) do not include class certification proceedings, the rules must apply. Rule 104 governs “[p]reliminary questions of admissibility” and Rule 104(a) specifically covers “[q]uestions of admissibility generally.” While Rule 104(a) notes further situations where the rules of evidence do not apply, it is not relevant to this case. ¶85 In response, Jacobsen cites federal authority stating that courts in Rule 23 proceedings “may consider evidence that may not be admissible at trial.” Alonzo v. Maximus, Inc., 275 F.R.D. 513, 519 (C.D. Cal. 2011); see also Fisher v. Ciba Specialty Chemicals Corp, 238 F.R.D. 273, 279 n. 7 (S.D. Ala. 2006) (“The Federal Rules of Evidence are not stringently applied at the class certification stage because of the preliminary nature of such proceedings.”). Indeed, federal courts do not generally require the application of the rules of evidence in class certification proceedings. See Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 603 n. 22 (9th Cir. 2010) (“We are not convinced by the dissent’s argument that Daubert has exactly the same application at the class certification stage as it does to expert testimony relevant at trial.”) (reversed on other grounds by Wal-Mart Stores, Inc. v. Dukes, 58 131 S. Ct. 795 (2011)); Ellis v. Costco Wholesale Corp, 240 F.R.D. 627, 635 (N.D. Cal. 2007) (“At this early stage, robust gatekeeping of expert evidence is not required; rather, the court should ask only if expert evidence is ‘useful in evaluating whether class certification requirements have been met.’ ”); Kelly v. Montgomery Lynch & Assocs., 2007 U.S. Dist. LEXIS 93656, 3-4 (N.D. Ohio 2007) (“The Court declines to grant the Plaintiff’s motion to strike, however, because the Federal Rules of Evidence do not strictly apply in evaluating a Rule 23 motion for class certification.”); Bell v. Addus Healthcare, Inc., 2007 U.S. Dist. LEXIS 78950, 5-6 (W.D. Wash. 2007) (Thus, “Fed. R. Civ. Pro. 23 does not require admissible evidence in support of a motion for class certification and the Court will not create that standard.”). ¶86 Importantly, the federal cases that hold that the Federal Rules of Evidence do not necessarily apply to class certification proceedings do not base their decisions on an application of F. R. Evid. 1101, which, like M. R. Evid. 101(c), enumerates theexceptions to the general applicability of the rules of evidence.12 Instead, these federal courts based their conclusions on the requirements of the identical F. R. Civ. P. 23, and, as noted, we consider such federal precedent to be instructive. Specifically, these courts have determined that Rule 12 Like Montana Rule 101, Federal Rule 1101 specifically enumerates the situations in which the evidentiary rules do not apply. These situations are: preliminary questions of fact regarding admissibility under Rule 104(a), grand-jury proceedings, and miscellaneous proceedings like extradition or rendition, issuing a warrant or summons, sentencing, granting or revoking probation, or bail. Thus, just like the Montana Rules, the Federal Rules neither address their applicability in class certification proceedings nor except the proceedings from 59 23 does not require specific proceedings or trial admissible evidence because of the preliminary nature of class certification and trial courts’ broad discretion in certification decisions. See e.g., Rhodes v. E.I. Dupont De Nemours & Co., 2008 U.S. Dist. LEXIS 46159, 37 (S.D. W. Va. 2008) (Rule 23 “does not specifically provide for, require, or prohibit specific proceedings,” including those that apply the Federal Rules of Evidence). Indeed, “class certification is not a dispositive motion [like Fed. R. Civ. P. 56] that requires [a] Plaintiff to submit admissible evidence” in support of their arguments for certification, and federal courts have been reluctant to create that requirement. Bell, 2007 U.S. Dist. at 5- 6. ¶87 Because of the preliminary, discretionary nature of class certification questions, every federal circuit but the Seventh13 has declined to require that a district court must conclusively decide what evidence may be ultimately admissible at trial during the class certification stage. See Cox v. Zurn Pex, Inc., 644 F.3d 604, 611 (8th Cir. 2011). “A court’s rulings on class certification issues may evolve” through the course of discovery. Cox, 644 F. 3d at 613. The “inherently tentative” nature of these decisions may make final evidentiary decisions unnecessary or inappropriate. Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n.11, 98 S. Ct. 2454 (1978). their application. 13 The Seventh Circuit only requires a conclusive ruling on any challenge to an expert’s qualifications or submissions when the expert’s report or testimony is “ ‘critical to class certification.’ ” See e.g., Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 812 (7th Cir. 2012). 60 ¶88 Importantly, the Wal-Mart decision did not dispose of the federal courts’ varying application of the Federal Rules of Evidence to class certification proceedings. The Wal- Mart Court considered the plaintiffs’ production of the testimony of Dr. William Bielby, a sociological expert, as the only proffered evidence of Wal-Mart’s alleged “general policy of [gender] discrimination.” Wal-Mart, 131 S. Ct. at 2553-54. The expert testified that Wal- Mart’s corporate culture was “vulnerable” to gender bias, but he could not specifically determine how regularly gender stereotypes played a meaningful role in employment decisions. Wal-Mart, 131 S. Ct. at 2553. The parties disputed whether this testimony met the standards for the admission of expert testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), and the District Court concluded Daubert didn’t apply to class certification proceedings. The Supreme Court’s opinion did not squarely address this contention, merely offering “We doubt” that “Daubert did not apply to expert testimony at the certification stage” in dicta while concluding “even if properly considered, Bielby’s testimony does nothing to advance respondent’s case.” Wal-Mart, 131 S. Ct. at 2554. Thus, the Wal-Mart majority failed to address the application of the Rules of Evidence to class action certification proceedings and the Court’s doubt was aimed only at the application of Daubert, a question not presented here. ¶89 Because the District Court’s inquiry into a motion for class certification is tentative, preliminary, and limited to a determination of only whether the litigation may be conducted on a class basis, “the court’s analysis is necessarily prospective and subject to change . . . and 61 there is bound to be some evidentiary uncertainty.” Cox, 644 F.3d at 613. A decision on a motion to certify a class is not a conclusive judgment on the merits of the case, and is “not accompanied by the traditional rules and procedure applicable to civil trials.” Eisen, 417 U.S. at 178, 94 S. Ct. at 2153. We therefore conclude that the District Court did not err by determining that evidence considered for the purposes of class certification need not be in trial admissible form. CONCLUSION ¶90 We accordingly conclude that the District Court did not abuse its discretion by certifying a Rule 23(b)(2) class action. We do, however, conclude that the certification of class-wide punitive damages was inappropriate in the context of a Rule 23(b)(2) class. According to our reformation of the requested relief, we remand for a class trial to determine whether the application of the CCPR to the class violated the UTPA, and, if so, to determine whether the District Court should enter an order requiring Allstate to provide notice to the class members of their right to re-open and re-adjust their claims. The trier of fact in the class trial will also make a determination as to whether Allstate’s implementation of the CCPR program involved actual fraud or actual malice, such as could justify the entry of punitive damages following a finding of actual damages in the ensuing individual cases. If the trier of fact determines that Allstate did not engage in either actual fraud or actual malice, the class members would be entitled to only the compensatory damages they can prove in the individual cases. Following the class trial, the Court shall determine whether there should be a common fund recovery of class-action attorney fees and costs. 62 ¶91 We also conclude that the District Court did not err in its determination that class certification proceedings do not require evidence to be in “trial admissible” form. ¶92 We affirm the class certification, but modify the class claim and the certified class relief as herein set forth. /S/ MICHAEL E WHEAT We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BRIAN MORRIS _______________________ Justice Beth Baker, dissenting. ¶93 I agree that the District Court erred in certifying class-wide punitive damages relief under M. R. Civ. P. 23(b)(2). The Court’s attempt to preserve the class certification order is flawed, however, because it still leaves in place a class claim that cannot meet the requirements of Rule 23(b)(2). ¶94 As a preliminary matter, regarding Rule 23(a), I disagree with the Court’s statement that Wal-Mart has raised “dual questions” that require some future case for our clarification. Opinion, ¶¶ 32-33. First, no party in this case has disputed that Wal-Mart’s analysis of the commonality element of Rule 23(a)(2) imposed a heightened threshold for class certification. Second, counsel for both parties agreed during oral argument that Wal-Mart’s commonality analysis established a different standard from that used in our prior cases. We already have 63 recognized explicitly these points. Chipman, ¶ 47. Further, we did not state in Chipman, as the Court implies (Opinion, ¶ 28 (citing Chipman, ¶ 43)), that Montana courts “are not required to march lockstep with federal interpretations of Fed. R. Civ. P. 23.” While that statement in the Court’s Opinion today is not untrue, we invoked in Chipman “this Court’s long history of relying on federal jurisprudence when interpreting the class certification requirements” and did not consider the standards we had applied “prior to Wal-Mart.” Mattson III, ¶ 53 (Baker, J., dissenting) (quoting Chipman, ¶¶ 47, 52). By perpetuating confusion over whether Wal-Mart changed the law—a point I do not believe is reasonably open to dispute—the Court disserves prospective class plaintiffs and defendants, as well as the district courts that seem to be called upon with increasing frequency to decide class certification issues. ¶95 Our October 2011 adoption of comprehensive amendments to the Rules of Civil Procedure, in fact, came in response to the recommendation of the Court’s Advisory Commission on the Rules of Civil and Appellate Procedure to bring more uniformity between the Montana and Federal Rules of Civil Procedure. Rule 23 of the Montana Rules is now identical in all substantive respects with Rule 23 of the Federal Rules, with two exceptions not applicable here.1 No party has argued that there is a legitimate basis in this case for this Court to part company with its federal counterparts on the standard for 1 Montana’s Rule 23, unlike its federal counterpart, allows appeal of right from an order granting or denying class action certification or an order finally and definitively rejecting a proposed class settlement. Compare M. R. Civ. P. 23(f) and Fed. R. Civ. P. 23(f). The federal rule also contains a provision specific to referral of certain matters to a United States Magistrate Judge. Fed. R. Civ. P. 23(h)(4). 64 commonality. The Court should refrain from interjecting speculation that it may someday choose to do so if the right case comes along. Since the Court in any event applies the Wal- Mart commonality standard (Opinion, ¶ 50), its discussion on this point is not necessary. ¶96 Even assuming that all four factors of Rule 23(a) are met in this case, there is nonetheless a serious flaw in the Court’s analysis of Rule 23(b)(2). 2 “Failure to establish each requisite element of Rule 23 is fatal to class certification.” Chipman, ¶ 43. The Court’s dismissal of Rule 23(b)(2)’s “finality” requirement not only departs from our consistent reliance on federal authorities regarding class certification, but fails to apply the language of our own rule. M. R. Civ. P. 23(b)(2), identical to its federal counterpart, provides that if Rule 23(a) is satisfied, a class action may be maintained if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]” (Emphasis added.) The Court summarily rejects Allstate’s arguments about the “final injunctive relief” language by declaring that we “have not recognized a substantive ‘finality’ 2 I harbor reservations about whether Jacobsen meets the requirements of Rule 23(a)(3) and (a)(4), since he already has obtained the relief he seeks for the class—reopening and readjustment of an unrepresented claim. See Gary Plastic Packaging Corp. v. Merrill Lynch, 903 F.2d 176, 180 (2d Cir. 1990) (unique defenses may preclude both 23(a)(3) typicality and 23(a)(4) adequacy of representation) (citing 7A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1764 at 259-60 (2d ed. 1986) and 3B J. Moore & J. Kennedy, Moore’s Federal Practice para. 23.07[1] at 23-192 (2d ed. 1987)). My concern is heightened by the Court’s determination that Jacobsen’s claims satisfy typicality because “the specifics of [his] injuries [will] be aired in a later, individual suit for damages if the court awards the requested class injunctive and declaratory relief.” Opinion, ¶ 57. Since that concern relates primarily to the requirements of Rule 23(b)(2), I do not further discuss typicality here. 65 requirement in Rule 23(b)(2)” and suggesting that the federal cases on which Allstate relies are “not clear” that we should do so. Opinion, ¶ 69. ¶97 While this Court has not had occasion to consider the question, the history of the rule and the federal cases interpreting it leave little room for doubt as to the meaning of the “finality” requirement in Rule 23(b)(2). The Advisory Committee notes to subsection (b)(2) state that it was intended to reach situations where “final relief of an injunctive nature or of a corresponding declaratory nature, settling the legality of the behavior with respect to the class as a whole, is appropriate.” This subsection of the rule does not, however, “extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Fed. R. Civ. P. 23 Advisory Committee Notes to 1966 Amendment.3 The “corresponding declaratory relief,” likewise, should be equivalent to an injunction. . . . A request for a declaration that a . . . statute is unconstitutional[, for example,] would qualify as “corresponding declaratory relief” because the resulting judicial directive would have the effect of “enjoining” the enforcement of the . . . statute. . . . On the other hand, an action seeking a declaration concerning defendant’s conduct that appears designed simply to lay the basis for a damage award rather than injunctive relief would not qualify under Rule 23(b)(2). . . . Monetary relief that may be deemed equitable in nature or ancillary to the declaratory relief may be allowed, however. 7AA C. Wright, A. Miller, M. Kane, Federal Practice and Procedure, § 1775 at 58-60 (3d ed. 2005) (emphasis added; footnotes and citations omitted); see also Rubenstein, Newberg 3 The Wal-Mart Court questioned whether “even a ‘predominating request’” for injunctive relief would support Rule 23(b)(2) certification if accompanied by a claim for damages, but left open the possibility that some incidental monetary relief might still be allowed in such an action. 131 S. Ct. at 2559-60. 66 on Class Actions § 4:31, 112-13 (“In short, declaratory relief under (b)(2) cannot simply turn a (b)(3) damages action into an action under (b)(2).”). ¶98 Actions for money damages are the province of Rule 23(b)(3), which imposes additional requirements for notice and opt-out rights for the class members and requires findings that a class action would be superior to individual litigation and that common questions predominate over individual ones. See Mattson III, ¶ 19. “If recovery of damages is at the heart of the complaint, individual class members must have a chance to opt out of the class and go it alone – or not at all – without being bound by the class judgment.” Richards, 453 F.3d at 530. “Thus, when the relief sought would simply serve as a foundation for a damages award, . . . or when the requested injunctive or declaratory relief merely attempts to reframe a damages claim, . . . the class may not be certified pursuant to Rule 23(b)(2).” Richards, 453 F.3d at 530 (citations omitted); see also Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 499 (7th Cir. 2012) (Rule 23(b)(2) certification improper when remedial order merely establishes a system for eventually providing individualized relief); Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 979 (5th Cir. 2000) (declaratory relief must, as a practical matter, serve to afford injunctive relief or serve as a basis for later injunctive relief; certification under Rule 23(b)(2) improper where, “for most of the class, damages will be the only meaningful relief obtained”); DWFII Corp. v. St. Farm Mut. Auto. Ins. Co., 271 F.R.D. 676, 685 (S.D. Fla. 2010) (declining to certify Rule 23(b)(2) class where alleged damages for State Farm's underpayment or nonpayment of reimbursements for health care services of its insureds based on State Farm’s application of 67 the Centers for Medicare and Medicaid Services’ National Correct Coding Initiative was “not a group injury requiring a group remedy” but “would require individual resolution of [factual] questions relevant to each claim for reimbursement”); Cholakyan v. Mercedes-Benz USA, LLC, 281 F.R.D. 534, 561 (C.D. Cal. 2012) (denying Rule 23(b)(2) class certification where injunctive relief to create a reimbursement program “would merely ‘initiate a process’ through which individual class members could receive a monetary award” rather than grant classwide relief in the form of an injunction); Mogel v. UNUM Life Ins. Co. of Am., 646 F. Supp. 2d 177, 184 (D. Mass. 2009) (despite satisfying all requirements of Rule 23(a), class certification denied under Rule 23(b) because “[a]ny harm suffered as a result” of insurer’s alleged ERISA violations “has already occurred” and class members’ primary objective was to obtain monetary relief). ¶99 The Court’s brief attempt to distinguish this authority (Opinion, ¶ 69) falls short. The first certified class claim requires the District Court to declare whether the CCPR violates Montana’s unfair claims settlement practices laws. Opinion, ¶ 64. If the answer is “yes,” the District Court is to “issue a mandatory injunction requiring Allstate to give all class members notice of the right to re-open and re-adjust their individual claims.” Then, if the class trial determines that Allstate engaged in fraudulent or malicious conduct, “the trier of fact in the later individual cases may determine the amount of individual punitive damages to be awarded if individual actual damages are also established.” Opinion, ¶ 64 (emphases added). The Court expressly acknowledges, as a basis for its commonality holding, that “resolving whether the CCPR violates the UTPA would set the stage for later individual 68 trials.” Opinion, ¶ 49. Thus, the decision today makes clear that the class trial is to occur for the purpose of establishing a foundation for individualized damage awards. Simply stated, this is not a Rule 23(b)(2) class. ¶100 The difficulty here is that the District Court already considered and denied, as part of a comprehensive, sixty-page order prior to Jacobsen’s first appeal, his motion to certify a class under M. R. Civ. P. 23(b)(3). Jacobsen did not appeal that ruling following its issuance in 2005 and would be barred from now challenging the District Court’s determination. Bragg v. McLaughlin, 1999 MT 320, ¶ 21, 297 Mont. 282, 993 P.2d 662 (overruled on other grounds, Essex Ins. Co. v. Moose’s Saloon, Inc., 2007 MT 202, ¶ 16, 338 Mont. 423, 166 P.3d 451). Nor did Jacobsen cross-appeal the District Court’s refusal, in its January 30, 2012, class certification order, to address his “fall-back Rule 23(b)(3) theory” because of the “cursory nature of Plaintiff’s briefing and logical inconsistency of this theory with his primary Rule 23(b)(2) theory.” He similarly fails on appeal to develop his arguments or to address the separate Rule 23(b)(3) requirements of predominance and superiority. ¶101 In conclusion, because Jacobsen cannot establish all of the requirements of the rule, I dissent from the Court’s decision to uphold Rule 23(b)(2) class certification. /S/ BETH BAKER Justice Jim Rice joins in the dissenting Opinion of Justice Baker. /S/ JIM RICE 69 Justice Laurie McKinnon, dissenting. ¶102 I dissent from the Court’s decision. As explained below, the case the Court decides today is not the case that was presented to us. This class action, as argued by Jacobsen and certified by the District Court, is one for declaratory relief under the Uniform Declaratory Judgments Act (Title 27, chapter 8, MCA). The class remedies are a declaratory judgment, an injunction, punitive damages, and attorney’s fees. The injunction gives class members the option of returning to the position they were in when they initially filed their claims, i.e., before Allstate applied the CCPR to them. This is not a class action to determine liability for damages under the Unfair Trade Practices Act (UTPA; Title 33, chapter 18, MCA). Jacobsen did not frame the class claim pursuant to Rule 23(b)(2) as one that would lead to compensatory damages; to the contrary, he conceded from the outset that some of the putative class members may have suffered no individual harm from Allstate’s use of the CCPR. All he requested was an injunction “to prohibit Allstate from using its CCPR program, to re-open improperly settled claims, and for disgorgement of illicit profits from the unlawful program.” The District Court, correspondingly, did not certify any claims or remedies under the UTPA. ¶103 This Court, however, proceeds to repackage this case as a UTPA action. One facet of Allstate’s liability is to be decided in a class trial, after which further liability determinations and assessments of damages are to be made in ensuing individual trials. I disagree with this 70 sua sponte reworking of the case. Aside from being improper appellate practice, the scheme the Court has devised here distorts the rules for certifying a class under Rule 23(b)(2) and infringes class members’ due process rights. ¶104 The ensuing discussion relates primarily to my disagreement with the Court’s remaking of the case and the Court’s approach to Rule 23(b)(2) certification. However, like Justice Baker, I also harbor reservations about whether the threshold requirements of Rule 23(a) have been met. I address those concerns at the end of this Dissent. I. The District Court’s Construction of the Class Claim and Remedies ¶105 Jacobsen’s Fourth Amended Complaint is far from a model of clarity. In fact, the District Court noted in its class-certification Order that there is “considerable pleading imprecision on [the] face” of the complaint. This Court, likewise, acknowledges that “Jacobsen’s requested relief and alleged bases for damages are not entirely clear.” Opinion, ¶ 40. ¶106 Faced with this pleading imprecision, the District Court liberally “construed” Jacobsen’s Fourth Amended Complaint and his arguments supporting class certification so as to arrive at class claims and remedies that could “minimally” satisfy the criteria of Rule 23. Jacobsen certainly benefitted from the District Court’s efforts in this regard, and it must be noted that, just as he has not contested other aspects of the District Court’s decision (see e.g. Opinion, ¶ 62, ¶ 63 n. 9), Jacobsen also has not cross-appealed from the District Court’s ultimate determination of the class claim and the class remedies. 71 ¶107 The District Court perceived both individual and class claims in the Fourth Amended Complaint. In identifying the class claim, the District Court found as follows: Separate and apart from the individual claims asserted in this case, the court construes the substantive essence of Plaintiff’s asserted class claim to be that, irrespective of individual outcomes, the unrepresented segment adjustment practices specified in Allstate’s CCPR Implementation Manual (Tort States) (hereinafter Casualty CCPR) constitute a common pattern and practice in violation of §§ 33-18-201(1) and (6), MCA, as generally applied to the class as a whole, thereby resulting in indivisible harm to the class as a whole by operation of Allstate’s own zero-sum economic theory and the resulting inversely proportional relationship between Allstate’s profit increases and corresponding decreases in the total amount of compensation paid to the class of unrepresented claimants as a whole. A critical term in this construction of the class claim is “indivisible harm to the class as a whole.” This language is important because, as explained below, it reflects the limited claim and remedies that the District Court had in mind, and because this Court’s revision of the District Court’s language dramatically alters the nature of this case. ¶108 Jacobsen requested class certification pursuant to Rule 23(b)(2). “ ‘The key to the [Rule 23](b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’ ” Diaz v. Blue Cross & Blue Shield of Mont., 2011 MT 322, ¶ 42, 363 Mont. 151, 267 P.3d 756 (brackets in original) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___, 131 S. Ct. 2541, 2557 (2011)). As the Supreme Court further explained: In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member 72 would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages. Wal-Mart, 131 S. Ct. at 2557 (emphasis in original). ¶109 The District Court construed Jacobsen’s substantive arguments mindful of these principles, correctly recognizing that Rule 23(b)(2) requires an indivisible remedy and does not permit class certification for purposes of individualized awards of monetary damages. The court construed Jacobsen’s requested class relief under Rule 23(b)(2) to consist of “a claim for class-wide declaratory, injunctive, and incidental monetary relief (equitable disgorgement and punitive damages).” The District Court declined to certify the equitable disgorgement remedy on the ground that it was cumulative to the injunctive relief, but the court otherwise certified the class relief Jacobsen sought. Specifically, the District Court certified the following claim and remedies: (2) Class Action Claim. The certified class claim is that: (A) the Casualty CCPR’s unrepresented segment adjusting practices are a common pattern and practice in violation of §§ 33-18-201(1) and (6), MCA, as generally applied to the class of unrepresented claimants as a whole; (B) Allstate’s common, systematic use of this pattern and practice in Montana caused indivisible harm to the class as a whole by operation of its zero-sum economic theory and the resulting inversely proportional relationship between Allstate profit increases and corresponding decreases in the total amount of compensation paid to the class of unrepresented claimants as a whole; and (C) Allstate acted with “actual malice,” as defined by § 27-1-221(2), MCA, by intentionally, deliberately, and consciously creating 73 and disregarding a high probability that the net effect of its Casualty CCPR’s unrepresented segment practices would result in net settlement payouts to the class as a whole less than the net amount previously sufficient to fully and fair[ly] settle unrepresented claims under Montana law; (3) Class Action Remedies. The certified class remedies available as a matter of law on proof of the certified class claim are: (A) declaratory judgment adjudicating the constituent assertions of the certified class claim; (B) mandatory injunction requiring Allstate to: (1) give all class members court-approved notice of the right and opportunity to obtain re-opening and re-adjustment of their individual claims by timely returning a proof of claim form; and (2) re-open and re-adjust each individual claim upon receipt of a timely filed proof of claim; (C) class-wide punitive damages pursuant to §§ 27-1-220 and 27-1-221(2), MCA (actual malice), predicated on the above- referenced class-wide conduct; and (D) common fund recovery of class action attorney fees and costs upon a class-wide punitive damages award[.] ¶110 With respect to establishing the “indivisible harm” asserted in the Class Action Claim, the District Court explained that the occurrence and extent of the actual harm common to the class as a whole is ascertainable and at least generally measurable on an indivisible class-wide basis without consideration of individual outcomes by comparative analysis of relevant industry performance data and internal Allstate performance data. Jacobsen’s theory is that if Allstate outperformed industry norms (in terms of profits and 74 reduced payouts) due to the CCPR, then the class members were indivisibly harmed.1 ¶111 Accordingly, setting aside the punitive damages and the common fund recovery,2the District Court certified only two class remedies. The first remedy is a declaration that the CCPR constitutes a per se prohibited claim settlement practice under § 33-18-201(1) and (6), MCA.3 The class trial must determine, therefore, that applying the CCPR was unlawful as to all class members or, conversely, to no class members. In a sense, this is analogous to deciding a facial challenge to a statute: to prevail on such a challenge, the plaintiff must show that “no set of circumstances exists under which the [statute] would be valid, i.e., that the law is unconstitutional in all of its applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S. Ct. 1184, 1190 (2008) (internal quotation marks omitted); see also Caldwell v. MACo Workers’ Comp. Trust, 2011 MT 162, ¶ 69, 361 Mont. 140, 256 P.3d 923 (Baker & Rice, JJ., dissenting). That is, in essence, what the certified class claim asserts regarding the CCPR: that no set of circumstances exists under which the CCPR would be valid. The CCPR is unlawful in all of its applications—as the theory goes—because the “attorney economics script” misrepresents facts and because the “fast 1 Jacobsen proffered several studies of Allstate’s performance. One such study—a 2007 report from the Consumer Federation of America—asserts that Allstate has been able “to outperform the industry by 20 percent” due to the CCPR. 2 I agree with the Court that the certification of classwide punitive damages was inappropriate. Not only would such an award implicate due process, Opinion, ¶¶ 77-78, but the District Court did not certify compensatory damages as a class remedy and, thus, there can be no award of classwide punitive damages, see Jacobsen v. Allstate Ins. Co., 2009 MT 248, ¶ 67, 351 Mont. 464, 215 P.3d 649. 3 “A person may not . . . (1) misrepresent pertinent facts or insurance policy provisions relating to coverages at issue; . . . [or] (6) neglect to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear; . . . .” Section 75 track” system and the “9-step process” are inherently incompatible with good-faith effectuation of fair and equitable settlements. If the class prevails on this claim, then the second remedy the District Court certified is an injunction requiring Allstate to allow each class member to return to square one, i.e., go back to the point when his or her claim was first filed, before Allstate applied the CCPR. ¶112 Importantly, the District Court did not certify any class claim or remedies under the UTPA itself. The UTPA recognizes “an independent cause of action [by an insured or a third-party claimant] against an insurer for actual damages caused by the insurer’s violation of subsection (1), (4), (5), (6), (9), or (13) of 33-18-201.” Section 33-18-242(1), MCA. In such action, “the court or jury may award such damages as were proximately caused by the violation of subsection (1), (4), (5), (6), (9), or (13) of 33-18-201,” as well as “[e]xemplary damages.” Section 33-18-242(4), MCA. That is not the nature of the class action certified by the District Court here. The parties’ arguments in the District Court, and the District Court’s ensuing analysis in its Order, confirm this conclusion. They also provide insight into the precise nature of the class claim, as follows. ¶113 First, in his briefs supporting class certification, Jacobsen asserted that this case is “squarely governed” by Ferguson v. Safeco Ins. Co. of Am., 2008 MT 109, 342 Mont. 380, 180 P.3d 1164. Of relevance, he quoted the following passage from that decision: The challenge here is not to an error in Safeco’s application of the “made-whole” rule to any given insured. Rather, this case challenges the procedures of a program of subrogation which systematically deprives all class 33-18-201, MCA. 76 members of any consideration of their “made-whole” rights. Thus, as Ferguson points out in her brief on appeal, her class claims do not seek a determination of entitlements for each class member and the payment of damages; rather, her class claims seek a declaratory ruling that will be enforced to compel Safeco to follow the legal standard in its subrogation program. Ferguson, ¶ 34. Jacobsen indicated that he was seeking the same sort of relief: a declaratory ruling that will be enforced to compel Allstate to stop using the CCPR. He further asserted that the “vehicle for class relief” under his Rule 23(b)(2) theory is an injunction requiring Allstate either to re-open and re-adjust the claims, or to disgorge the profits it made as a result of the CCPR. (As noted, the District Court chose the former.) Jacobsen did not assert any entitlement to compensatory damages for class members. ¶114 Second, in its brief seeking dismissal of the class claim, Allstate argued that Jacobsen had compromised the interests of class members by not seeking compensatory damages on their behalf. In response, Jacobsen argued that he was not required to assert claims for compensatory damages. He cited Lebrilla v. Farmers Group, Inc., 16 Cal. Rptr. 3d 25 (Cal. App. 4th Dist. 2004), for the proposition that there is no rule requiring a class representative to seek certification of all causes of action available to every member of the class. See Lebrilla, 16 Cal. Rptr. 3d at 40 (“Farmers is essentially asking us to hold a class cannot be certified anytime the class representative fails to seek certification of fewer than all causes of action. Of course there is currently no such rule.”). ¶115 Third, in its Order, the District Court recognized that there are “case-specific issues peculiar to individual claims” here. The court noted, for example, that whether liability for a 77 given claim had become “reasonably clear,” see § 33-18-201(6), MCA, is “a highly individualized, case-specific criteri[on].”4 The court noted the same thing with regard to “whether and to what extent individual class members ultimately received fair settlements.” The existence of such factual variations among claimants subjected to the CCPR would preclude classwide adjudication of Allstate’s liability for damages under § 33-18-242(1), MCA. But the District Court did not construe this case as such an action. The court instead construed Jacobsen’s class claim to be that Allstate’s use of the CCPR violated § 33-18-201(1) and (6), MCA, “irrespective of outcomes in individual cases.” The court observed that “the class-wide matter at issue is the indivisible net effect of the Casualty CCPR unrepresented segment practices on the class as a whole, irrespective of individual outcomes.” Accordingly, setting aside the statute’s case-specific criteria, the District Court reasoned that “§§ 33-18-201(1) and (6), MCA, essentially require Allstate to promptly, accurately, truthfully, fairly, and in good faith adjust bodily injury and property damage claims.” The court construed the class claim to be that Allstate’s use of the CCPR violates these general principles of § 33-18-201(1) and (6), MCA. ¶116 Fourth, the District Court recognized that Rule 23(b)(2) does not authorize class certification when each class member would be entitled to an individualized award of monetary damages. The court thus framed “the dispositive Rule 23(b)(2) issues” as “(1) whether the asserted class claim seeks permissible forms of injunctive relief that will 4 Again, § 33-18-201(6), MCA, prohibits an insurer from “neglect[ing] to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become 78 benefit the class as a whole and (2) whether as a matter of law the requested forms of monetary relief, however characterized, are permissible forms of Rule 23(b)(2) relief incidental to the predicate declaratory and injunctive relief from which they flow.” I discuss the meaning of “incidental” monetary relief below. See ¶ 134, infra. For present purposes, it suffices to note that it does not include individual claims for compensatory damages. The District Court expressly rejected Allstate’s contention that the class action here would “serve only to facilitate the award of damages.” ¶117 Finally, consistent with the foregoing points, the District Court cited Title 27, chapter 8, MCA (the Uniform Declaratory Judgments Act), as authority for the first certified class remedy and Title 27, chapter 19, MCA (authorizing injunctions), as authority for the second certified class remedy. The court did not rely on § 33-18-242, MCA, as authority for the class claim or the class remedy. In fact, the District Court rejected the proposition that Jacobsen’s class action is one that seeks “damages” under the UTPA: Here, as construed by the court, Plaintiff’s asserted UTPA-based class claim neither constitutes nor is tantamount to a claim for compensatory damages –it merely encompasses first and third-party . . . claims for declaratory relief and related equitable and punitive relief predicated on asserted class-wide violations of §§ 33-18-201(1) and (6), MCA. Allstate had pointed out in its brief opposing class certification that § 33-18-242, MCA, specifically authorizes damages—compensatory and punitive—for an insurer’s violation of the UTPA, not the equitable remedies that Jacobsen sought. See § 33-18-242(4), MCA. Allstate argued, therefore, that injunctive relief was not available to remedy the asserted reasonably clear.” 79 classwide violations of § 33-18-201(1) and (6), MCA. The District Court, however, interpreted our decision in Ferguson as approving a class action “distinct from an independent UTPA claim for damages under §§ 33-18-242(1) and (3), MCA.” The court concluded that this case was such an action, i.e., “a UTPA-based Rule 23(b)(2) class action claim for declaratory and derivative non-compensatory injunctive relief.” ¶118 In sum, the District Court attempted to construe Jacobsen’s filings to assert a class claim and class remedies that “minimally” satisfy the criteria of Rule 23(b)(2). The court recognized that Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class, and that Rule 23(b)(2) does not authorize class certification when each class member would be entitled to an individualized award of monetary damages. Diaz, ¶ 42; Wal-Mart, 131 S. Ct. at 2557. Construing Jacobsen’s filings, the District Court found that his “asserted UTPA-based class claim neither constitutes nor is tantamount to a claim for compensatory damages”; rather, what Jacobsen was asserting was “a UTPA-based Rule 23(b)(2) class action claim for declaratory and derivative non- compensatory injunctive relief.” The District Court observed that this claim is “distinct from an independent UTPA claim for damages under §§ 33-18-242(1) and (3), MCA.” ¶119 The class claim asserts what is in essence a facial challenge to the CCPR, alleging that the CCPR is per se unlawful as to all unrepresented claimants and that Allstate’s use of the CCPR caused “indivisible harm to the class as a whole” as shown “by comparative analysis of relevant industry performance data and internal Allstate performance data.” Jacobsen explained in the District Court that the claim “challenges Allstate’s systematic attempt to 80 settle claims below fair value.” In his view, “Allstate systematically promoted bad-faith adjusting and sought to undervalue claims.” Whether class members’ claims were, in fact, undervalued or settled unfairly is not the issue; the challenge is to Allstate’s alleged “systematic attempt” to settle claims below fair value. As Jacobsen further explains this theory in his brief on appeal, Allstate used “settlement guidelines below the level needed to fairly compensate claimants” which caused class members “indivisible legal injury”; i.e., “[a]ll members suffered legal injury through the use of a dishonest system, whether or not the monetary value of each settlement ultimately was unfair.” ¶120 Jacobsen and the District Court employ § 33-18-201(1) and (6), MCA, as the legal standard for judging the CCPR’s validity, but without consideration of the case-specific criteria contained in the statute (such as whether liability in a particular class member’s claim was “reasonably clear”). Under this approach, the issues to be determined at the class trial are: whether the “attorney economics script” misrepresents facts; whether the “fast track” system and the “9-step process” are inherently incompatible with good-faith effectuation of prompt, fair, and equitable settlements; and whether use of these programs caused indivisible harm to the class as a whole. If using the CCPR enabled Allstate to outperform the industry, and if the CCPR is facially unlawful, then class members suffered an indivisible legal injury. The proper remedy for this injury, the District Court determined, is injunctive relief “restoring interested class members and Allstate to the pre-settlement status quo.” This is the class action that the District Court certified and that Allstate appealed to this Court. II. This Court’s Remaking of the Class Claim and Remedies 81 ¶121 The Court, on its own initiative, fundamentally revises this framework. The Court begins with the erroneous premise that the District Court formulated the class claim using the “indivisible harm to the class as a whole” language “so as to justify the entry of a class-wide punitive damages award.” Opinion, ¶ 47. That is simply incorrect. The District Court used this language because indivisibility is what is needed to certify a class under Rule 23(b)(2), Diaz, ¶ 42; Wal-Mart, 131 S. Ct. at 2557, and because that is what Jacobsen had asserted in his pleadings and arguments. ¶122 Nevertheless, based on its mistaken assumption about the District Court’s intent, the Court proceeds to revise the class claim as follows (underlining added): As originally certified: “(B) Allstate’s common, systematic use of this pattern and practice in Montana caused indivisible harm to the class as a whole by operation of its zero-sum economic theory and the resulting inversely proportional relationship between Allstate profit increases and corresponding decreases in the total amount of compensation paid to the class of unrepresented claimants as a whole.” As revised by the Court: “(B) Allstate’s common, systematic use of this pattern and practice in Montana resulted in damages to the members of the class by operation of its zero-sum economic theory and the resulting inversely proportional relationship between Allstate profit increases and corresponding decreases in the total amount of compensation paid to the class of unrepresented claimants as a whole.” Opinion, ¶ 47. The Court then, on its own initiative, augments the relief available to the class members. In addition to the declaratory and injunctive remedies certified by the District Court, the Court announces that the class trial will “set the stage” for “individual monetary relief” in “later individual trials.” Opinion, ¶¶ 43, 46, 49, 90. The Court explains that the class trial will determine Allstate’s liability for a UTPA violation, and the later individual trials will 82 determine class members’ “compensatory damages.” Opinion, ¶¶ 49, 57, 66, 90. The Court also announces that class members may seek relief for both “economic” and “emotional” injury, Opinion, ¶ 55—something that Jacobsen never asserted, and that the District Court never certified, in the Rule 23(b)(2) class claim and remedies. ¶123 This gratuitous reworking of the case is in direct contradiction to the District Court’s certification of this case as a class action “distinct from an independent UTPA claim for damages under §§ 33-18-242(1) and (3), MCA.” It also contradicts the District Court’s statement that, “as construed by the court, Plaintiff’s asserted UTPA-based class claim neither constitutes nor is tantamount to a claim for compensatory damages.” In fact, the only monetary relief that Jacobsen discussed in his argument supporting class certification was “disgorgement of illicit profits from the unlawful [CCPR] program.” Acknowledging the limitations of Rule 23(b)(2) certification, Jacobsen did not propose that the class action would result in monetary damages under § 33-18-242, MCA. His theory, rather, was unjust enrichment—that Allstate had unjustly enriched itself at the expense of class members by using patently unlawful claim settlement practices, as evidenced by Allstate’s ability to outperform the industry. The District Court accepted this theory, but found that an injunction allowing class members to return to square one, rather than an injunction requiring Allstate to “disgorge illicit profits,” would be the proper remedy. The Court thus errs in reframing Jacobsen’s class claim as a springboard for future individual trials on damages. The class claim, as construed and certified by the District Court, does not determine whether Allstate is liable for actual damages under the UTPA. The District Court did not certify a 83 class action under § 33-18-242, MCA; it certified a class action under Title 27, chapters 8 and 19, MCA. ¶124 “[A]ppellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” NASA v. Nelson, 562 U.S. ___, 131 S. Ct. 746, 756 n. 10 (2011) (internal quotation marks omitted). The Court’s choice to remake this class action disregards this fundamental premise of our adversarial system. The Court’s citation to § 3-2-204(1), MCA—see Opinion, ¶ 47— is clearly misplaced. That provision simply grants this Court authority to “affirm, reverse, or modify any judgment or order appealed from.” Section 3-2-204(1), MCA. It does not give this Court authority to fundamentally remake the case to state claims and remedies that the appellee neither asserted in the district court nor raised in a cross-appeal before this Court. Ironically, the Court uses the arguments of the appellant (Allstate) opposing class certification as justification to revise the class claim and remedies in a way that exposes the appellant to significantly greater liability. III. Flaws in the Court’s Remade Class Claim and Remedies ¶125 Besides the questionable procedural aspect of the Court’s action, the remade class claim and class remedies are flawed for additional reasons. ¶126 First, as an initial matter, the Court’s Opinion is internally inconsistent. Pursuant to the District Court’s Order, the class is seeking a declaratory judgment as to three issues: (A) that the CCPR violates § 33-18-201(1) and (6), MCA, as applied to the class of unrepresented claimants as a whole; (B) that Allstate’s systematic use of the CCPR “caused 84 indivisible harm to the class as a whole”; and (C) that Allstate acted with actual malice. See ¶ 109, supra. Now, under the Court’s rewording of issue (B), the class is seeking a declaratory judgment that Allstate’s systematic use of the CCPR “resulted in damages to the members of the class.” Opinion, ¶ 47. At the same time, however, the Court states repeatedly that whether class members suffered damages is to be determined in later individual trials. See Opinion, ¶ 46 (“Damages claims may be determined in later individual trials after [the] class trial . . . .”), ¶ 57 (the specifics of a class member’s injuries will “be aired in a later, individual suit for damages”), ¶ 66 (“The later individual trials would allow Allstate to present evidence that individual class members suffered no injury.”), ¶ 78 (“Here, adjudicating the requested injunctive and declaratory relief would not involve a . . . determination of compensatory damages.”), ¶ 90 (“the class members would be entitled to only the compensatory damages they can prove in the individual cases”). Our Opinion leaves the District Court and the parties guessing as to how the fact-finder in the class trial is to determine whether Allstate’s use of the CCPR “resulted in damages to the members of the class” when, under this Court’s decision, damages to the members of the class are to be determined in “later individual trials” at which Allstate may “present evidence that individual class members suffered no injury.” The Court offers no explanation for this incongruity—an incongruity that arose out of the Court’s decision to insert “damages” into the class claim. ¶127 Second, the question whether Allstate’s use of the CCPR “resulted in damages to the members of the class” cannot be answered on a classwide basis in any event. A claimant is 85 not damaged under § 33-18-201(6), MCA, unless the insurer’s liability for the claim was “reasonably clear.” A claimant is not damaged under § 33-18-201(1), MCA, unless the misrepresented facts were “pertinent” to coverages “at issue.” A claimant is not entitled to damages under the UTPA unless the alleged damages were “proximately caused” by the UTPA violation. Section 33-18-242(4), MCA. A claimant is not entitled to damages under the UTPA “if the insurer had a reasonable basis in law or in fact for contesting the claim or the amount of the claim.” Section 33-18-242(5), MCA. These are all highly individualized, case-specific criteria. ¶128 Third, under the legal authority discussed above and in Justice Baker’s Dissent, class certification under Rule 23(b)(2) is improper where the requested injunctive or declaratory relief would simply serve as a basis for eventually providing monetary relief. Dissent, ¶¶ 97-99; Wal-Mart, 131 S. Ct. at 2557 (“[Rule 23(b)(2)] does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.”). I agree with Justice Baker’s analysis and conclusion that the Rule 23(b)(2) class trial which the Court conceives in today’s Opinion is for the purpose of laying a foundation for individualized awards of monetary damages. Dissent, ¶ 99. This approach is wholly inconsistent with Rule 23(b)(2)’s history and purpose.5 As the Supreme Court explained: 5 Prior to 1962, a form of class action was permitted in Montana under § 93-2821, RCM (1947). This statute, originally enacted by the first territorial Legislature in 1864 as part of the Bannack Statutes, simply provided that “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before 86 Because Rule 23 “stems from equity practice” that predated its codification, Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997), in determining its meaning we have previously looked to the historical models on which the Rule was based, Ortiz v. Fibreboard Corp., 527 U.S. 815, 841-845 (1999). As we observed in Amchem, “[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of what (b)(2) is meant to capture. 521 U.S., at 614. In particular, the Rule reflects a series of decisions involving challenges to racial segregation—conduct that was remedied by a single classwide order. In none of the cases cited by the Advisory Committee as examples of (b)(2)’s antecedents did the plaintiffs combine any claim for individualized relief with their classwide injunction. Wal-Mart, 131 S. Ct. at 2557-58 (brackets in original). ¶129 Fourth, using class certification under Rule 23(b)(2) to “set the stage” for later individual trials on compensatory damages, Opinion, ¶¶ 46, 49, 90, presents due process problems. Classes certified under Rule 23(b)(1) and (b)(2) are “mandatory classes: The Rule provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action.” Wal-Mart, 131 S. Ct. at 2558; see also M. R. Civ. P. 23(c)(2). Rule 23(b)(3), on the other hand, the court, one or more may sue or defend for the benefit of all.” In 1961, the Legislature repealed § 93-2821, RCM, and various other statutes and replaced them with the Montana Rules of Civil Procedure, which took effect on January 1, 1962. See Laws of Montana, 1961, ch. 13. Montana’s Rule 23 was identical in all material respects to then-existing Rule 23 of the Federal Rules of Civil Procedure. In 1966, several of the federal rules were amended, including Rule 23. See 39 F.R.D. 69, 94-98 (1966). Correspondingly, this Court issued an order in 1967 adopting amendments to the Montana Rules of Civil Procedure. In re Montana Rules of Civil Procedure, No. 10750-7 (Sep. 29, 1967, filed Oct. 10, 1967). As noted in our order, the amendments to the Montana Rules were “patterned after either the 1963 or the 1966 amendments to the Federal Rules,” the rationale being that it “would be desirable to maintain uniformity with the Federal Rules insofar as they are suitable to Montana practice.” In this regard, we adopted Federal Rule 23 in its entirety. In light of this background, the history of Federal Rule 23 is directly applicable and relevant to Montana Rule 23. See also Sieglock v. Burlington N. Santa Fe Ry. Co., 2003 MT 355, ¶ 10, 319 Mont. 8, 81 P.3d 495 (because Montana Rule 23 is identical to federal Rule 23, “federal authority is instructive on the issue of class certification”). 87 allows class certification in a much wider set of circumstances but with greater procedural protections. Its only prerequisites are that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3). And unlike (b)(1) and (b)(2) classes, the (b)(3) class is not mandatory; class members are entitled to receive “the best notice that is practicable under the circumstances” and to withdraw from the class at their option. See Rule 23(c)(2)(B). Wal-Mart, 131 S. Ct. at 2558; see also M. R. Civ. P. 23(b)(3), (c)(2)(B). ¶130 The absence of such procedural protections in a class action predominantly for monetary damages violates due process. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 987 (9th Cir. 2011) (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985)).6 According to the Supreme Court, [t]he procedural protections attending the (b)(3) class—predominance, superiority, mandatory notice, and the right to opt out—are missing from (b)(2) not because the Rule considers them unnecessary, but because it considers them unnecessary to a (b)(2) class. When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Predominance and superiority are self-evident. But with respect to each class member’s individualized claim for money, that is not so—which is precisely why (b)(3) requires the judge to make findings about predominance and superiority before allowing the class. Similarly, (b)(2) does not require that class members be given notice and opt-out rights, presumably because it is thought (rightly or wrongly) that notice has no purpose when the class is mandatory, and that depriving people of their right to sue in this manner complies with the Due Process Clause. In the context of a class action 6 Phillips Petroleum held that an absent plaintiff is entitled to procedural due process protection before he may be bound concerning a claim for money damages or similar relief at law. The plaintiff must be given “notice,” “an opportunity to be heard and participate in the litigation,” and “an opportunity to remove himself from the class by executing and returning an ‘opt out’ or ‘request for exclusion’ form to the court.” 472 U.S. at 811-12, 105 S. Ct. at 2974. 88 predominantly for money damages we have held that absence of notice and opt-out violates due process. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). While we have never held that to be so where the monetary claims do not predominate, the serious possibility that it may be so provides an additional reason not to read Rule 23(b)(2) to include the monetary claims here. Wal-Mart, 131 S. Ct. at 2558-59 (emphasis in original). ¶131 That is precisely the problem the Court has created by transforming this case into a class action under § 33-18-242, MCA. Apparently, Allstate’s liability to class members under § 33-18-242(1), MCA, will be determined in a class trial, which will “set the stage” for later individual trials on damages under § 33-18-242(4), MCA. Opinion, ¶¶ 49, 90. Because this class action is certified under Rule 23(b)(2), the class is mandatory and the predominance, superiority, notice, and opt-out protections of Rule 23(b)(3) do not apply. If Jacobsen loses on the merits, then the class members’ individual claims for damages will be seriously compromised, if not totally barred. See Randall v. Rolls-Royce Corp., 637 F.3d 818, 820 (7th Cir. 2011). This approach of “depriving people of their right to sue” by approving a mandatory class absent notice and opt-out rights violates the Due Process Clause. Wal-Mart, 131 S. Ct. at 2559. ¶132 The fact that the class trial may also result in injunctive relief (in addition to the compensatory damages the Court envisions in later individualized trials), Opinion, ¶ 90, does not alter this conclusion. Even if injunctive relief is the “predominant” remedy, [t]he mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify elimination of Rule 23(b)(3)’s procedural protections: It neither establishes the superiority of class adjudication over individual adjudication nor cures the notice and opt-out problems. We fail to see why the Rule should 89 be read to nullify these protections whenever a plaintiff class, at its option, combines its monetary claims with a request—even a “predominating request”—for an injunction. Wal-Mart, 131 S. Ct. at 2559 (emphases in original); see also Ellis, 657 F.3d at 986-87. ¶133 For all of the foregoing reasons, the Court errs in remaking this class action into one that determines liability for damages under § 33-18-242, MCA. Before concluding this discussion, it is necessary to address McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012), upon which the Court relies heavily. See Opinion, ¶¶ 41, 42, 43, 45, 46, 57, 66. The plaintiffs in that case sought certification, under Rule 23(b)(2), to determine whether Merrill Lynch was engaged in practices that had a disparate impact on members of the class in violation of federal antidiscrimination law, and to provide corresponding injunctive relief. McReynolds, 672 F.3d at 483. The plaintiffs also sought certification, under Rule 23(b)(3), for compensatory and punitive damages; however, such certification was not at issue on appeal. McReynolds, 672 F.3d at 483. The issues were whether the plaintiffs could obtain interlocutory review of the district court’s certification decision and whether, under Wal-Mart, Merrill Lynch’s delegation of decision-making authority to local managers precluded certification of a classwide claim for injunctive relief. McReynolds, 672 F.3d at 484-91. The Court of Appeals (speaking through Judge Posner) noted that “the only issue of relief at present is whether to allow the plaintiffs to seek class- wide injunctive relief” under Rule 23(b)(2). McReynolds, 672 F.3d at 491. He concluded that certification for this purpose was appropriate. McReynolds, 672 F.3d at 491-92. Then, near the end of the opinion, Judge Posner opined that if the classwide issue were ultimately 90 resolved in the plaintiffs’ favor (i.e., with a finding that Merrill Lynch’s policies cause racial discrimination and are not justified by business necessity), then there could be hundreds of separate suits for back pay. McReynolds, 672 F.3d at 492. He did not hold, however, as the Court implies, that Rule 23(b)(2) may be used as an integral component of a larger damages action. Indeed, such a holding would have been inconsistent with Seventh Circuit precedent. ¶134 In Randall, the Court of Appeals (again speaking through Judge Posner) rejected the plaintiffs’ attempt to cloak a damages action in a Rule 23(b)(2) certification. Judge Posner observed that “[c]lass action lawyers like to sue under [Rule 23(b)(2)] because it is less demanding, in a variety of ways, than Rule 23(b)(3) suits, which usually are the only available alternative. Of particular significance, plaintiffs may attempt to shoehorn damages actions into the Rule 23(b)(2) framework, depriving class members of notice and opt-out protections.” Randall, 637 F.3d at 825 (citations and internal quotation marks omitted). Judge Posner noted that it may be permissible in a Rule 23(b)(2) action to grant monetary relief that is incidental to the injunctive or declaratory relief, but he cautioned that “incidental” here means “requiring only a mechanical computation,” Randall, 637 F.3d at 825; in other words, “the calculation of monetary relief will be mechanical, formulaic, a task not for a trier of fact but for a computer program,” Johnson v. Meriter Health Servs. Employee Ret. Plan, 702 F.3d 364, 372 (7th Cir. 2012).7 See also Lemon v. Intl. Union, 216 F.3d 577, 581 (7th Cir. 2000) (incidental damages do not depend in any significant way on 7 Judge Posner, writing for the court in Johnson, 702 F.3d at 372, opined that Wal-Mart “left intact the authority to provide purely incidental monetary relief in a (b)(2) class action,” but he 91 the intangible, subjective differences of each class member’s circumstances and do not require additional hearings to resolve the disparate merits of each individual’s case). Judge Posner explained in Randall that the plaintiffs’ monetary claims for back pay were not “incidental” under this definition because calculating the amount of back pay to which the members of the class would be entitled if the plaintiffs prevailed would require 500 separate hearings. The monetary tail would be wagging the injunction dog. An injunction thus “would not provide ‘final’ relief as required by Rule 23(b)(2). An injunction is not a final remedy if it would merely lay an evidentiary foundation for subsequent determinations of liability.” 637 F.3d at 826 (quoting Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 893 (7th Cir. 2011)). ¶135 Kartman likewise undercuts this Court’s reliance on McReynolds. In the remade class action devised by the Court, the class trial is to determine whether Allstate violated the UTPA, and if a violation is found, then “compensatory damages” for “economic” and “emotional” injuries and “underpayment” of benefits is to be adjudicated in later individual trials. Opinion, ¶¶ 49, 55, 68, 90. In the later individual trials, Allstate may present evidence that individual class members suffered no injury. Opinion, ¶ 66. Thus, it may turn out that Allstate is liable in damages to some class members and not others. Under this scheme, “[Allstate’s] liability cannot be determined on a class-wide basis, but instead requires individualized factual inquiries into the merits of each [class member’s] claim.” Kartman, acknowledged that the Ninth Circuit has expressed doubt about this in Ellis, 657 F.3d at 986. 92 634 F.3d at 893. That is not a proper use of Rule 23(b)(2). Reviewing a similar scheme, the Kartman court observed: The [district court] judge said he would use the Rule 23(b)(2) proceeding to assess State Farm’s “liability” on the damages claims. Perhaps by this the judge meant that he intended to use the Rule 23(b)(2) class proceeding to adjudicate only those common issues pertaining to State Farm’s liability for breach of contract and bad faith, while reserving the more claimant-specific issues—such as the calculation of damages—for subsequent individual adjudication. However, as we have explained, Rule 23(b)(2) governs class claims for final injunctive or declaratory relief and is not appropriately invoked for adjudicating common issues in an action for damages. A damages class may be certified under Rule 23(b)(3) and particular issues identified for resolution on a class-wide basis pursuant to Rule 23(c)(4). Or, in an appropriate case, a Rule 23(b)(2) class and a Rule 23(b)(3) class may be certified where there is a real basis for both damages and an equitable remedy. As we have explained, that is not the case here; neither Rule 23(b)(3) nor Rule 23(c)(4) is implicated. Kartman, 634 F.3d at 895 (emphases in original, citations omitted); see also e.g. Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 499 (7th Cir. 2012) (“a claim for class-wide injunctive and declaratory relief does not satisfy Rule 23(b)(2) if as a substantive matter the relief sought would merely initiate a process through which highly individualized determinations of liability and remedy are made”). McReynolds did not overrule these precedents, and this Court misreads the McReynolds opinion in suggesting otherwise. ¶136 For the reasons noted by the Court and Justice Baker, Rule 23(b)(3) is unavailable to Jacobsen as a basis for certifying a class action. Opinion, ¶ 62; Dissent, ¶ 100. His class claim is valid, if at all, under Rule 23(b)(2) only. In this regard, setting aside my concerns about commonality, typicality, and adequacy (discussed below), the District Court construed Jacobsen’s filings to assert a plausible Rule 23(b)(2) class action—one that determines 93 whether the program at issue (the CCPR) is per se invalid as to all class members, and that provides a single injunction allowing all class members (in the event the CCPR is found unlawful) to have their claims re-opened and re-adjusted. Jacobsen’s class claim, the District Court found, is “a UTPA-based Rule 23(b)(2) class action claim for declaratory and derivative non-compensatory injunctive relief”; it “neither constitutes nor is tantamount to a claim for compensatory damages.” Seventh Circuit precedent, including McReynolds, does not support our converting this Rule 23(b)(2) action for narrow injunctive relief into a broad Rule 23(b)(3) action for compensatory damages—particularly without the procedural protections that attend a Rule 23(b)(3) certification. If anything, the cases cited above repudiate this approach. ¶137 In sum, the Court’s remade class claim and class remedies are, in my view: contrary to the District Court’s construction of Jacobsen’s claim; internally inconsistent; incapable of being determined on a classwide basis; not proper for certification under Rule 23(b)(2); and violative of class members’ due process rights. For all of these reasons, I cannot join the Court’s Opinion. IV. Rule 23(a) Requirements ¶138 As a final matter, I briefly discuss my concerns relating to the requirements of Rule 23(a). ¶139 First, I believe the Court should definitively state what standard is to be applied when assessing commonality under Rule 23(a)(2). Opinion, ¶¶ 33, 50 (declining to resolve this question). The Court, and Justice Baker in her Dissent, acknowledge confusion in our 94 caselaw regarding this issue. Despite “this Court’s long history of relying on federal jurisprudence when interpreting the class certification requirements of Rule 23,” Chipman v. N.W. Healthcare Corp., 2012 MT 242, ¶ 52, 366 Mont. 450, 288 P.3d 193, we stated in Mattson v. Mont. Power Co. (Mattson III), 2012 MT 318, ¶ 37, 368 Mont. 1, 291 P.3d 1209, that “[t]he question arises as to whether Montana . . . should abandon its ‘permissive’ approach to Rule 23(a)(2)’s commonality requirement in favor of the Wal-Mart majority’s more stringent standard.” We have not yet answered that question. We have avoided the issue here, as we did in Mattson III, by indicating that the more stringent Wal-Mart standard was satisfied in any event. Opinion, ¶¶ 33, 50; Mattson III, ¶ 37. Yet, evaluating the propriety of the District Court’s decision pursuant to Wal-Mart, and conducting our own exhaustive analysis under the Wal-Mart standard, without definitively setting forth our standard of review, emphasizes the need for us to provide direction in this area of law. Without guidance, this issue will likely be raised repeatedly in the district courts. And, absent our directive to the contrary, it is likely that district courts will continue to assess commonality under the more stringent Wal-Mart standard, as fewer issues are left to be raised on appeal. The District Court here analyzed the facts and law pursuant to Wal-Mart. The Court today has similarly conducted its analysis pursuant to Wal-Mart. The question still remains, however, as to whether the Wal-Mart standard is the controlling standard in Montana. While I understand the necessity for robust adversarial argument and briefing, as well as an appropriate factual scenario, I think litigants and the trial courts need a definitive 95 statement from this Court as to what standard is to be used. I believe the Court does the bench and bar a disservice in neglecting to address the appropriate standard to apply. ¶140 Second, I do not believe that the class claim here—neither the one certified by the District Court nor the one remade by this Court—satisfies the commonality requirement of Rule 23(a)(2). In my view, there are no questions of law or fact common to the class. Jacobsen’s class claim is that the CCPR is per se invalid under subsections (1) and (6) of § 33-18-201, MCA. These two subsections, however, demand consideration of highly individualized, case-specific criteria. The District Court recognized this, but concluded that a common question of law or fact could be formulated for the class by essentially setting aside the case-specific criteria of subsections (1) and (6) and evaluating the CCPR’s validity based on the general principles embodied in these two provisions. As discussed, the District Court reasoned that “§§ 33-18-201(1) and (6), MCA, essentially require Allstate to promptly, accurately, truthfully, fairly, and in good faith adjust bodily injury and property damage claims.” The District Court construed the class claim to be that Allstate’s use of the CCPR violates these general principles, “irrespective of individual outcomes.” This Court apparently adopts the same analysis. Opinion, ¶ 40. ¶141 I question this approach of evaluating the validity of the CCPR—or any other settlement practice, for that matter—under § 33-18-201, MCA, based on certain criteria that are selectively plucked from the statute, while ignoring other criteria in the statute. It strikes me that this approach violates the cardinal rule that, “[i]n the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance 96 contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. The Legislature crafted the various subsections of § 33-18-201, MCA, to address specific settlement practices. Subsection (1) states that an insurer may not “misrepresent pertinent facts or insurance policy provisions relating to coverages at issue.” Subsection (6) states that an insurer may not “neglect to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear.” I do not subscribe to the view that the fact-finder in a class trial can determine whether the CCPR is per se invalid under subsections (1) and (6)—as to all class members— by simply disregarding the individualized inquiry plainly required by the statute as to such questions as whether liability had become reasonably clear, whether the allegedly misrepresented facts were pertinent to coverages at issue, and whether Allstate had a reasonable basis in law or in fact for contesting the claim or the amount of the claim (see § 33-18-242(5), MCA). ¶142 I do not mean to suggest that no class action is possible under § 33-18-201, MCA. I do believe, however, that the supposed common question here—whether Allstate’s use of the CCPR violates § 33-18-201(1) and (6), MCA—cannot be answered for an entire class of claimants. Whether Allstate deliberately crafted the CCPR in such a way as to avoid review on a classwide basis (an allegation that surfaced in the District Court proceedings) is beside the point. Our duty here is to ascertain whether, under the criteria of § 33-18-201(1) and (6), MCA, there is a question of law or fact that “is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the 97 validity of each one of the claims in one stroke.” Wal-Mart, 131 S. Ct. at 2551. In my view, there is no such common question, and I thus would hold that commonality, under Rule 23(a)(2), is not met. ¶143 Third, I also share Justice Baker’s concerns about whether Jacobsen meets the typicality and adequacy requirements of Rule 23(a)(3) and (4). Dissent, ¶ 96 n. 2. The named plaintiff’s claim will be typical of the class where there is a nexus between the injury suffered by the plaintiff and the injury suffered by the class. McDonald v. Washington, 261 Mont. 392, 402, 862 P.2d 1150, 1156 (1993). Such nexus normally exists where proving the named plaintiff’s claim will necessarily prove all class members’ claims. McDonald, 261 Mont. at 402, 862 P.2d at 1156. ¶144 Here, Jacobsen does not contend that the amount of his settlement was unfair or inequitable or that his claim was not promptly resolved. Section 33-18-201(6), MCA. Moreover, he cannot claim that Allstate, through the CCPR’s “attorney economics script,” misrepresented pertinent facts or insurance policy provisions relating to coverages at issue to Jacobsen’s detriment, § 33-18-201(1), MCA, given that he actually consulted and retained counsel who assisted him with settling his claim. Jacobsen’s claim was adjusted to a represented settlement. He therefore is not a member of the class, which is defined as all unrepresented claimants “whose claims were adjusted by Allstate in Montana to an unrepresented settlement since deployment” of the CCPR. Jacobsen has already had his claim re-opened and re-adjusted for payment of additional settlement amounts for his bodily injury claim. Consequently, he cannot have his claim re-opened. Further, Jacobsen no 98 longer pursues a property damage claim, which is included in the class definition, and he is a third-party claimant seeking emotional distress damages. He thus would not be representative of first-party claimants or those claimants with property damage. Lastly, Jacobsen’s claims will be subject to unique defenses, not the least of which are: different statutes of limitations for first- and third-party claims; his admission that he spoke to an attorney but chose not to hire one; the basis of his emotional distress; and his desire to have an early settlement. I thus would hold that Jacobsen’s claims are not typical and that he is not an adequate representative of the class under Rule 23(a)(3) and (4), respectively. V. Conclusion ¶145 In conclusion, I believe the Court has wrongly remade this case into an action for damages under the UTPA (§ 33-18-242, MCA) and, in so doing, has distorted the rules for certifying a class under Rule 23(b)(2) and jeopardized class members’ due process rights. I further believe that the Rule 23(a) requirements of commonality, typicality, and adequacy are not met here. For all of the reasons set forth above, I respectfully dissent. /S/ LAURIE McKINNON | August 29, 2013 |
1ce76925-6d5d-4c5a-9686-7bb40a4e850e | Matter of M.F.W. | 2013 MT 260N | DA 12-0694 | Montana | Montana Supreme Court | DA 12-0694 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 260N IN THE MATTER OF M.F.W., Respondent and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DI-08-102 Honorable Ed McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender; Koan Mercer, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant Attorney General; Helena, Montana Fred Van Valkenburg, Missoula County Attorney; Cathleen Sohlberg, Deputy County Attorney; Missoula, Montana Submitted on Briefs: August 21, 2013 Decided: September 10, 2013 Filed: __________________________________________ Clerk September 10 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 M.F.W. appeals from an Involuntary Mental Health Commitment Order (“Order”) entered in the Fourth Judicial District Court, Missoula County, which committed him to community-based mental health treatment. We affirm. ¶3 M.F.W. is a 54-year-old male with a long history of mental illness. He has been diagnosed with schizophrenia, paranoid type, and has a history of mental health commitments. M.F.W. was criminally committed to involuntary mental health treatment after being charged with robbery alleged to have occurred on July 1, 1998. M.F.W. was later found to be suffering from a mental disease or defect that caused him to present a substantial risk of physical injury to others. He was committed to the Department of Public Health and Human Services and placed at the Montana State Hospital (MSH) from 1998 until his conditional release in 2003. Upon conditional release into the community, M.F.W. was ordered to comply with aftercare treatment and to take his medications. He remained on conditional release until 2008. ¶4 Since 2008, M.F.W. has been intermittently compliant with treatment and taking his medications. M.F.W. has had several other involuntary commitments since his conditional release and prior to these proceedings. His history indicates that when 3 M.F.W. is not compliant with taking his antipsychotic medications, his mental health condition deteriorates and he becomes disorganized, often experiencing paranoid delusions that cause him to be suspicious and guarded. M.F.W.’s prior civil commitment order has expired and he subsequently stopped taking his medications in the spring of 2012. M.F.W. receives injectable antipsychotics in order to insure he takes his medication. He missed his medication appointment in July 2012. ¶5 Based upon numerous complaints received from law enforcement that M.F.W. was intimidating females in the Seeley Lake area, a petition for M.F.W.’s involuntary commitment was filed on September 10, 2012. The District Court conducted a hearing on October 15, 2012, and entered its written order committing M.F.W. and requiring that M.F.W. comply with community-based treatment. ¶6 At the hearing, Missoula County Sheriff’s Deputies Robert Parcell and Heath Hanson testified that since July they had received over twenty calls from residents in the Seeley Lake area with complaints that M.F.W. was demonstrating inappropriate behavior towards women in the community. There were several reports that M.F.W. was approaching females at local businesses and was handing out cards soliciting women to call him. On one occasion, M.F.W. followed an elderly woman to her home after she left church. The Valley Market, the Moose River Bar and most recently Rovero’s have banned M.F.W. from their premises. Both Deputy Parcell and Deputy Hanson testified that when they approached M.F.W. to inform him he could no longer go to area businesses, M.F.W.’s behavior quickly escalated and he became agitated. M.F.W.’s thoughts centered around government conspiracies that he believed were aimed at 4 violating his rights. Residents in Seeley Lake reported feeling threatened and intimidated by M.F.W.’s behavior. ¶7 Timothy C. Myers, LCSW, testified M.F.W. refused to participate in the court-ordered evaluation prior to hearing. Myers reviewed M.F.W.’s treatment records including those from MSH and the Western Montana Mental Health Center (WMMHC). Myers testified that M.F.W. suffers from schizophrenia, paranoid type. Since his release from MSH in 2003, M.F.W. has been on court-ordered supervision for his mental health, in one form or another. M.F.W. was receiving case management services with WMMHC, including medication management and the utilization of injectable medications. It was Myers’ opinion that M.F.W. would not comply with treatment absent a court order. Myers further opined that court-ordered treatment was essential to help M.F.W. achieve and maintain stability in a community setting. ¶8 Myers further testified that he reviewed a letter M.F.W. submitted to the court. It was Myers’ opinion that, based on the letter and the recent reports about M.F.W.’s behaviors towards women in Seeley Lake, M.F.W. was showing signs of decompensation. Myers testified that when not taking medication, M.F.W. has decompensated to a point where he is unable to meet his basic needs, resulting in long-term hospitalization. M.F.W.’s current persecutory delusions are centered around the government and are consistent with those that he was experiencing just prior to his commission of a felony (robbery) and his forensic commitment to MSH in 2003. ¶9 The District Court found that M.F.W.’s treatment providers are concerned that his recent behavior may at some point place him or others in a dangerous situation. Myers 5 testified that M.F.W.’s mental illness is currently preventing him from accessing his medication. Without treatment, Myers believes M.F.W.’s symptoms of schizophrenia will continue to increase to a point that would require hospitalization. Myers testified that M.F.W.’s mental health condition is treatable with a reasonable prospect of success and he recommended that M.F.W. be court-ordered to participate in a community-based treatment program to include medication and case management services. ¶10 M.F.W. testified and denied any mental illness or the need to take medication. ¶11 The District Court concluded that the least restrictive treatment alternative necessary to protect M.F.W. and the public and to permit effective treatment was for M.F.W. to comply with community-based treatment. The District Court ordered M.F.W. to follow all recommendations of his treatment providers; take all medications as prescribed, including injectable medications if recommended; and, if necessary, M.F.W.’s treatment team would have authority to admit M.F.W. to St. Patrick Hospital or another appropriate treatment facility. The order of commitment was for a period of six months, to expire on April 15, 2013. ¶12 M.F.W. maintains that the District Court improperly violated his right to testify by interrupting M.F.W. while he was testifying and threatening M.F.W. with inpatient commitment at MSH if he did not agree to a community-based commitment. As no objection was made by M.F.W.’s trial counsel, M.F.W. contends plain error review is warranted. ¶13 This Court reviews a district court civil commitment order to determine whether the court’s findings are clearly erroneous and its conclusions of law are correct. In re 6 R.W.K., 2013 MT 54, ¶ 14, 369 Mont. 193, 297 P.3d 318. The Court’s review is discretionary when an individual requests review of issues pursuant to the plain error doctrine regarding issues not objected to in the trial court. A mere assertion that constitutional rights are implicated, or that failure to review the claimed error may result in a manifest miscarriage of justice, is insufficient to implicate the plain error doctrine. In re J.S.W., 2013 MT 34, ¶¶ 15-17, 369 Mont. 12, 303 P.3d 741; State v. Wilson, 2011 MT 277, ¶¶ 16, 28, 362 Mont. 416, 264 P.3d 1146. ¶14 A review of the record in the instant proceedings, in its totality, clearly establishes that M.F.W. was not denied his constitutional right to testify. Due process is flexible and calls for procedural protections based upon the particular circumstances of the case. In re L.K., 2008 MT 169, ¶ 27, 343 Mont. 366, 184 P.3d 353. Whether due process of law has been denied depends upon an appraisal of the totality of facts in any given case. State v. West, 2008 MT 338, ¶ 32, 346 Mont. 244, 194 P.3d 683. The District Court allowed M.F.W. to testify without interruption for a significant amount of time. M.F.W. began to ramble without being prompted or questioned by his trial counsel. The District Court properly redirected the questioning and inquiry and took control of the proceeding as it is required to do. ¶15 A review of the record further indicates that, at the point the court began its discussion with M.F.W., the District Court’s efforts were directed towards making the inevitable forthcoming events of community-based treatment as easy as possible for M.F.W. The District Court was very familiar with M.F.W., having presided over several prior commitment proceedings. The record establishes that, had M.F.W. not complied 7 with community-based treatment, the more restrictive alternative of MSH would become necessary. Far from denying M.F.W. due process, the District Court was being as fair as possible with M.F.W. in explaining to him his treatment options. ¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The District Court’s findings of fact are supported by substantial evidence and the legal issues are controlled by settled Montana law, which the District Court correctly interpreted. ¶17 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ PATRICIA COTTER /S/ JIM RICE | September 10, 2013 |
dc9909af-79eb-4e82-9b2b-2c3422876947 | State v. Bryan Simpson | 2013 MT 275N | DA 13-0107 | Montana | Montana Supreme Court | DA 13-0107 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 275N STATE OF MONTANA, Plaintiff and Appellee, v. BRYAN LEE SIMPSON, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDC 2012-64 Honorable Jeffrey M. Sherlock, Presiding Judge COUNSEL OF RECORD: For Appellant: J. Mayo Ashley, Attorney at Law, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General; Helena, Montana Leo J. Gallagher, Lewis and Clark County Attorney; Jeff Sealey, Deputy County Attorney; Helena, Montana Submitted on Briefs: August 28, 2013 Decided: September 24, 2013 Filed: __________________________________________ Clerk September 24 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Bryan Lee Simpson (Simpson) appeals his sentence from the judgment of the First Judicial District Court, Lewis and Clark County. We affirm. ¶3 Simpson was charged with and pled guilty to his fourth charge of driving under the influence (DUI). At sentencing, the District Court considered two previous DUI convictions in Montana wherein Simpson had been tried in absentia. Simpson’s plea reserved for appeal the District Court’s consideration of the previous convictions. ¶4 In both of his contested convictions, Simpson was advised of the procedure for trial in absentia. That procedure requires that, “[i]n a misdemeanor case, if the defendant fails to appear in person. . . and if the defendant’s counsel is authorized to act on the defendant’s behalf, the court shall proceed with the trial unless good cause for continuance exists.” Section 46-16-122(1), MCA. Simpson never attended trial for the charges, and was tried in the presence of his attorney, Robert Olson. After hearing evidence presented by witnesses to the incident, Simpson was convicted of the charges. Simpson now argues that the trial in absentia may not have been valid, as the record reflects no evidence that he knew of or voluntarily did not appear at those trials. 3 ¶5 We review de novo whether a prior conviction may be used for sentence enhancement. State v. Maine, 2011 MT 90, ¶ 12, 360 Mont. 182, 255 P.3d 64. A rebuttable presumption of regularity attaches to the District Court’s use of a prior conviction for sentence enhancing purposes. State v. Hass, 2011 MT 296, ¶ 15, 363 Mont. 8, 265 P.3d 1221. The defendant can only overcome this presumption by showing that his prior conviction was constitutionally infirm by a preponderance of the evidence. Hass, ¶ 15. This presumption is not overcome when a defendant simply points to an ambiguous or silent record. Maine, ¶ 34. ¶6 The District Court reviewed the trial transcripts in Simpson’s prior convictions and found that the Judge there expressly stated “THIS PROCEDURE HAD BEEN EXPLAINED TO DEFENDANT BY THE JUDGE BEFORE HE LEFT SHELBY.” Simpson offers no affirmative evidence showing that he was uninformed of procedure or was not represented by counsel, and relies only on ambiguity in the record as to whether he was advised of the trial procedure. This absence of evidence does not affirmatively demonstrate the constitutional infirmity of his prior convictions, so it does not overcome the presumption of regularity in considering these convictions at sentencing. The District Court’s findings of fact were supported by substantial evidence and the legal issues are controlled by settled Montana law, which the District Court correctly interpreted. ¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our Internal Operating Rules, which provides for noncitable memorandum opinions. 4 ¶8 Affirmed. /S/ MICHAEL E WHEAT We concur: /S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ BETH BAKER /S/ LAURIE McKINNON | September 24, 2013 |
3e4526b3-1a09-435d-830f-6b8d994bf553 | Puskas v. Pine Hills Youth Corr. Facility | 2013 MT 223 | DA 12-0515 | Montana | Montana Supreme Court | DA 12-0515 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 223 CASSIE PUSKAS, Plaintiff and Appellant, v. PINE HILLS YOUTH CORRECTIONAL FACILITY; TERI YOUNG, in her official capacity as acting Superintendent; MONTANA DEPARTMENT OF CORRECTIONS, and JOHN DOES A-ZZ, Defendants and Appellees. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDV 2010-1217 Honorable Jeffrey M. Sherlock, Presiding Judge COUNSEL OF RECORD: For Appellant: Alex Rate, Rate Law Office, P.C., Helena, Montana For Appellee: McKenzie Hannan, Special Assistant Attorney General, Montana Department of Corrections, Helena, Montana Submitted on Briefs: May 8, 2013 Decided: August 13, 2013 Filed: __________________________________________ Clerk August 13 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Appellant Cassie Puskas (Puskas) appeals the decision and order from the First Judicial District Court, Lewis and Clark County, that denied Puskas’s sexual harassment, hostile work environment, and retaliation claims against Appellee Pine Hills Youth Correctional Facility (Pine Hills). We affirm. ¶2 We address the following issues on appeal: ¶3 Whether substantial credible evidence supports the District Court’s determination that Pine Hills held open an offer for Puskas to transfer units from June 2009 until Puskas quit in 2010? ¶4 Whether the District Court correctly determined that Pine Hills reasonably and promptly offered a solution to end A.H.’s harassment of Puskas? ¶5 Whether the District Court correctly dismissed Puskas’s retaliation claim against Pine Hills? FACTS ¶6 Pine Hills serves as a youth correctional facility for male inmates up to age 18. Pine Hills is composed of five separate units, including a sex offender unit, a chemical dependency unit, and a maximum security unit. Puskas worked at Pine Hills as a correctional officer from December 2006 to January 2010. Puskas worked in the sex offender unit during the majority of her time employed at Pine Hills. All parties agree that Puskas had been a quality employee. ¶7 Puskas’s immediate supervisor served as the “shift manager” for the particular shift. 3 The shift manager’s immediate supervisors are “unit managers.” Shad Barrows (Barrows) served as Puskas’s unit manager for the majority of Puskas’s employment. Jodi Kirkwood (Kirkwood) later held this position. ¶8 Pine Hills imposes three levels of discipline on its inmates. Immediate disciplines, such as having to eat in a cell or miss a movie, represent the least severe. A serious behavior report represents the next level. The most severe offenses constitute “major rules violations” (MRV), such as assaultive behavior, deviate sexual conduct, or masturbation. Pine Hills submits MRVs to a discipline committee that either approves or disapproves the proposed disposition. Pine Hills’s upper level management personnel comprise part of the review committee. ¶9 Masturbation by inmates proved to present a confusing policy at Pine Hills. Officers testified that an inmate’s masturbation was acceptable if the youth did it in his cell, at night, and under the covers of his bed. Some officers deemed an inmate’s masturbation in front of the small window in the door while watching staff, or while exposed in the youth’s room, to constitute an MRV. Other officers testified, however, that they would just walk on by if they saw an inmate masturbating in his room. ¶10 Barrows circulated a memorandum in October 2009 to Puskas and other correctional officers in the sex offender unit. Barrows noted that “[t]here is NO such thing as an MRV for masturbating during programming hours.” In the very next sentence, however, Barrows declares that “[i]f a youth is masturbating with the obvious intent that staff members/youth seeing him (ex: [s]tanding at his door, sitting on the bed facing the door window . . .), this 4 would be an MRV.” The memorandum further provided that “[i]f you have to look in the window and try to ascertain if the youth is masturbating[,] this is probably not an MRV.” ¶11 A.H. was an inmate at Pine Hills from October 2008 to June 2010. A.H. “aged out” of the youth correctional system when he turned 18 in June 2010. Pine Hills housed A.H. in the sex offender unit during most of his time at Pine Hills. By most accounts A.H. appeared to be “a very unpleasant young man.” He often clashed with correctional officers. ¶12 A.H. suffered from mental health issues that included manic depression and obsessive compulsive disorder. A.H. often threatened Pine Hills’s staff and others. He occasionally would assault correctional officers by spitting blood or throwing urine and feces-laden toilet paper at them. Pine Hills twice transferred A.H. from the sex offender unit to the maximum security unit for short time periods due to these outbursts. ¶13 A.H. also frequently masturbated. He made no attempt to hide his masturbation from others. In fact, A.H. often targeted female correctional officers with his masturbation. A.H. would masturbate at the door of his cell while waiting for a female correctional officer to make her regular rounds. Kim Johnson and Lisa Malloy, two female officers, testified that they feared A.H. The two officers further testified that A.H. targeted them with his masturbatory behavior. ¶14 Correctional officials reported A.H. for multiple behavior issues between December of 2008 and January 15, 2010. Pine Hills’s records indicate that A.H.’s reported violations included: masturbation twenty times; threatening staff five times; assaulting other inmates five times; sexually assaulting staff two times; threatening another inmate; threatening to kill 5 a staff member; touching the groin of another youth; and exhibiting threatening behavior. Puskas reported at least 14 of these infractions. ¶15 A.H. would follow Puskas around the sex offender unit. A.H. would sit by Puskas in common areas. A.H. would attempt to brush up against her. A.H. would make a concerted effort to have Puskas perform A.H.’s routine pat-downs. This attention prompted other correctional officers to make sure that A.H. and Puskas were in separate areas while the youths were exercising. A.H.’s actions eventually led Pine Hills to assign Puskas to work temporarily in the maximum security unit to be away from A.H. in June 2009. ¶16 A.H. threatened to kill Puskas on January 14, 2010. Puskas was in a common area when she noticed A.H. standing at his door window. A.H. was masturbating. Puskas ordered A.H. to back away from the door. A.H. threatened Puskas, “I will fucking kill you bitch.” ¶17 Puskas met the next day with Teri Young (Young), Pine Hills’s director of care and custody, to discuss the incident and her concerns about A.H.’s behavior. Puskas grew extremely upset and loud during this meeting. Young offered to transfer Puskas to another of Pine Hills’s units. Pine Hills expects correctional officers to work in all five Pine Hills units. Puskas had worked previously in the maximum security unit for a short time in June 2009 to alleviate her contact with A.H. ¶18 Puskas insisted instead that A.H. be transferred to the maximum security unit. Pine Hills reserves the maximum security unit for the most violent of its inmates. These youth chronically assault staff and other youths. A.H. previously had been transferred to the 6 maximum security unit for two short time periods. ¶19 Pine Hills deemed A.H. an inappropriate candidate to be placed permanently in the maximum security unit. The Youth Court had ordered A.H. to attend inpatient sex offender treatment. Youths in the maximum security unit continue to receive the individualized portion of the sex offender treatment, but not the group treatment portion. Group treatment represents an integral component of sex offender treatment. Pine Hills also worried that A.H. would be victimized in the maximum security unit and might fall prey to violent youths who sought out and assaulted youth sex offenders. ¶20 Young had been unaware of Puskas’s concerns with A.H. before their January 15, 2010, meeting. Many others at Pine Hills knew of Puskas’s concerns, including unit managers Barrows, Alice Hougardy, and Jerry Anderson. Puskas quit her job after her meeting with Young. ¶21 Puskas filed an action against Pine Hills for sexual harassment, hostile work environment, and retaliation. Puskas alleges that she was afraid to go to work. Puskas claims anxiety over work exacerbated a physical condition of hers. Puskas further alleges that she suffered from lack of sleep, vomiting, diarrhea, and nightmares. ¶22 The District Court denied motions for summary judgment filed by both Puskas and Pine Hills. The District Court held a bench trial on June 14, 2012. The District Court entered judgment in Pine Hills’s favor on all claims. ¶23 The District Court noted that after Puskas left her employment at Pine Hills “A.H.’s behavior improved considerably.” A.H. altered his behavior and talked pleasantly with other 7 staff members and youth. A.H. had “felt somewhat targeted by Puskas.” Puskas “was seen by some as overly punitive.” The court noted that this allegation against Puskas “is born out in the drastic decrease in [A.H.’s] bad behavior reports that occurred after Puskas left.” A.H. “aged out” and was discharged from Pine Hills when he turned 18 in June 2010. Puskas appeals. STANDARD OF REVIEW ¶24 The Montana Human Rights Act (MHRA) prohibits an employer from discriminating against a person on the basis of gender. Section 49-2-303(1)(a), MCA. Montana modeled the MHRA after Title VII of the Civil Rights Act of 1964 and we frequently refer to federal case law when construing the MHRA. Williams v. Joe Lowther Ins. Agency, Inc., 2008 MT 46, ¶ 21, 341 Mont. 394, 177 P.3d 1018. ¶25 We determine whether a district court’s findings of fact are clearly erroneous and whether its conclusions of law are correct. In re B.M., 2010 MT 114, ¶ 14, 356 Mont. 327, 233 P.3d 338. A factual finding is clearly erroneous if it is not supported by substantial evidence, if the trier of fact misapprehended the effect of the evidence, or if the record leaves the reviewing court with the definite and firm conviction that a mistake has been made. Varano v. Hicks, 2012 MT 195, ¶ 7, 366 Mont. 171, 285 P.3d 592. We view evidence in the light most favorable to the prevailing party, and we leave the credibility of witnesses and the weight assigned to their testimony for the determination of the trial court. Mowrer v. Eddie, 1999 MT 73, ¶ 36, 294 Mont. 35, 979 P.2d 156. DISCUSSION 8 ¶26 Whether substantial credible evidence supports the District Court’s determination that the option to transfer units was available to Puskas from June 2009 until 2010 when Puskas quit? ¶27 The District Court determined that Pine Hills had made available to Puskas the option to transfer to another unit since June 2009. Barrows testified that he informed Puskas in June 2009 that she could transfer voluntarily to another unit. Barrows testified that officers “can asked to be moved and they can work in the same shift, but in a different unit.” Puskas had transferred between units during her time at Pine Hills. Puskas testified that once, when assigned to work in the medium max unit, she had requested and received an assignment to work instead in the maximum security unit. Others testified that Pine Hills transferred officers from one unit to another as a primary method used to “disengage” an officer from a youth. Officers also testified that they frequently transferred between units. ¶28 Puskas attempts to rebut the testimony of Barrows and the other correctional officers by pointing to contradictory testimony. The mere existence of contradictory evidence, however, fails to overcome the District Court’s finding. The District Court assesses the credibility of witnesses and assigns weight to their testimony. Mowrer, ¶ 36. We will not overturn the District Court’s resolution of competing evidence so long as substantial credible evidence supports the District Court’s finding. Varano, ¶ 7. ¶29 Puskas also has failed to demonstrate that the District Court misapprehended the effect of the allegedly contradictory evidence. Our review of the record fails to leave us with a definite and firm conviction that a mistake has been made regarding the District Court’s 9 determination that Pine Hills made available to Puskas the option to transfer units from June 2009 until 2010 when Puskas quit. Varano, ¶ 7. ¶30 Whether the District Court correctly determined that Pine Hills reasonably and promptly offered a solution to end A.H.’s harassment of Puskas? ¶31 Puskas asserts both a sexual harassment and hostile work environment claim against Pine Hills. With respect to the sexual harassment claim, the District Court found: (1) that Puskas is a member of a protected class or engaged in protected activity; (2) that Puskas had been subjected to behavior that was based on that protected class; and (3) that the behaviors were unwanted. The parties disputed whether the offensive behaviors were sufficiently severe or pervasive as to alter the conditions of employment. ¶32 The District Court similarly found, with respect to Puskas’s hostile work environment claim: (a) that Puskas had been subjected to verbal or physical conduct of a sexual nature; and (b) that the conduct had been unwelcomed. The parties again disputed whether A.H.’s conduct had been sufficiently severe or pervasive to alter the conditions of Puskas’s employment and create an abusive work environment. Freitag v. Ayers, 468 F.3d at 539; Stringer-Altmaier v. Haffner, 2006 MT 129, ¶ 22, 332 Mont. 293, 138 P.3d 419. ¶33 The District Court determined that Pine Hills should not be held liable for the actions of A.H. under either the sexual harassment claim or the hostile work environment claim because Pine Hills’s “corrective measures were reasonably calculated to end the harassment and were undertaken promptly.” An employer may be held liable for the sexual harassment of its employee by third parties where the employer, its agents, or its supervisory employees, 10 knows or should have known of the conduct and ratifies or acquiesces in the conduct by failing to take immediate and appropriate corrective action. Freitag, 468 F.3d at 538; Little v. Windermere Relocation, Inc., 301 F.3d 958, 968 (9th Cir. 2001); 29 C.F.R. 1604.11 (2013). ¶34 Employer liability for a third party’s sexual harassment and creation of a hostile work environment arises from the employer’s negligence and ratification of the conduct by failing to take reasonable and responsive action to the harassing conduct. Freitag, 468 F.3d at 538. In other words, once a plaintiff establishes the initial elements of a sexual harassment claim or a hostile work environment claim, the employer’s liability attaches only after it negligently responds, or fails to respond, to the condition created by the third party. An employer’s immediate and appropriate corrective actions prevent the employer from being liable for a third party’s sexual conduct. Freitag, 468 F.3d at 538; Little, 301 F.3d at 968; 29 C.F.R. 1604.11 (2013). ¶35 Employers must respond promptly and reasonably upon gaining awareness that an employee is being sexually harassed. Freitag, 468 F.3d at 528. The reasonableness of an employer’s remedy depends on the ability of the employer to stop harassment by the person who is engaged in the harassment. Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991). An employer who acts promptly and reasonably will not be held liable for the actions of a third party. ¶36 The District Court determined that Pine Hills had available only two potential options to address A.H.’s harassment of Puskas. Pine Hills either could place A.H. permanently in 11 the maximum security unit, or Pine Hills could transfer Puskas to another unit. Puskas argues that Pine Hills should have placed A.H. permanently in the maximum security unit in order to prevent his further harassment. ¶37 The District Court pointed to several factors to support its determination that A.H. was not an appropriate candidate to be placed permanently in the maximum security unit. The maximum security unit at Pine Hills houses only the most violent youths. Those responsible for classification and placement of Pine Hills’s youth testified that A.H. was not an appropriate candidate to place permanently in the maximum security unit because he was not a generally violent youth. ¶38 Additionally, the Youth Court had ordered A.H. to complete sex offender treatment. Part of A.H.’s sex offender treatment required that he participate in group therapy. Group therapy is not available to youths who are housed in the maximum security unit. If Pine Hills placed A.H. permanently in the maximum security unit he would not have been able to comply with his sex offender treatment requirements. ¶39 The District Court also cited legitimate concerns that A.H., as a sex offender, would be targeted for violence by other youths in the maximum security unit. Pine Hills seeks to rehabilitate youths without employing retribution or punishment. Section 41-5-102, MCA. Pine Hills could not place A.H. permanently in the maximum security unit solely as a punitive measure. These reasons provide substantial credible evidence to support the District Court’s determination that A.H. was not an appropriate candidate to be placed permanently in the maximum security unit. As a result, the District Court determined that Pine Hills’s 12 offer to transfer Puskas to a different unit represented the only reasonable option available to remedy A.H.’s harassment. ¶40 Substantial credible evidence, when viewed in the light most favorable to Pine Hills— the prevailing party—also supports the District Court’s determination that Pine Hills acted promptly to address A.H.’s harassment of Puskas once Pine Hills became aware of A.H.’s conduct and the impact that conduct was having on Puskas. See Mowrer, ¶ 36; Campbell v. Garden City Plumbing and Heating, Inc., 2004 MT 231, ¶ 19, 322 Mont. 434, 97 P.3d 546 (providing that for sexual harassment to be found a plaintiff must have perceived, both in fact and objectively, her work environment to have been altered to the extent so as to have become hostile or abusive). ¶41 The District Court determined that “[t]here is no question that A.H.’s behavior had a serious impact on Puskas.” The District Court made no express finding, however, as to when the severity or pervasiveness of A.H.’s conduct began to alter Puskas’s conditions of employment. The District Court also did not determine when Pine Hills should have or had become aware of the impact that A.H.’s conduct was having on Puskas. Courts determine this remaining factor based on the totality of the circumstances. Benjamin v. Anderson, 2005 MT 123, ¶ 53, 327 Mont. 173, 112 P.3d 1039 (citing Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)). ¶42 Puskas asserts that Pine Hills learned that A.H.’s conduct had become sufficiently severe or persuasive when Puskas first wrote A.H. an MRV for masturbation in January 2009. Puskas points to the fact that several of her supervisors served on the committee that 13 reviews all MRVs. Puskas argues that Pine Hills thereafter would have been on notice that Puskas had been sexually harassed and a duty attached for Pine Hills to address the harassment reasonably and promptly. ¶43 Under general circumstances, a notice to an employer that a third party had been masturbating in front of the employee would put an employer on notice that the employee is being subjected to unwanted sexual conduct. See Freitag, 468 F.3d at 540. Likewise, this fact generally would require the employer to recognize that the conduct itself is sufficiently severe or pervasive as to alter the employee’s conditions of employment. See Little, 301 F.3d at 968. We must evaluate Puskas’s claim, however, under the totality of the circumstances. Freitag, 468 F.3d at 539-40. ¶44 The circumstances include the fact that Pine Hills serves as a youth correctional facility and the unique problems associated with a facility of that nature. Puskas was working in the sex offender unit. As repeatedly noted by the District Court, in a youth sex offender unit, one would expect to see some amount of masturbation. A.H. and other inmates in the sex offender unit are young teenagers whose improper sexual activity had required that they be isolated from society. See Slayton v. Ohio Dept. of Youth Servs., 206 F.3d 669, 677 (6th Cir. 2000) (stating that “[p]risoners, by definition have breached prevailing societal norms in fundamentally corrosive ways.”). Pine Hills inmates in the sex offender unit frequently masturbate. ¶45 We decline to disturb the District Court’s determination that Puskas’s write-up of A.H. for an MRV failed to put Pine Hills on notice that Puskas had begun to perceive her 14 conditions of employment as having changed. Pine Hills offered Puskas the option to transfer once Puskas communicated to her supervisor that she perceived the conditions of her employment to have changed. Pine Hills made this option available to Puskas at the same time that Puskas made her view known to Pine Hills. We agree with the District Court that Pine Hills acted reasonably and promptly when it became aware that A.H.’s behavior had become sufficiently severe or pervasive to alter the conditions of Puskas’s employment conditions. ¶46 Whether the District Court correctly dismissed Puskas’s retaliation claim against Pine Hills? ¶47 Puskas asserts that Pine Hills retaliated against her “when [Pine Hills] attempted to force her to transfer units after she engaged in protected activity.” To establish a prima facie retaliation case a plaintiff must show: (1) that she was engaged in a protected activity; (2) that she was subjected to an adverse employment action; and (3) that a causal link exists between the protected activity and the adverse employment action. Rolison v. Bozeman Deaconess Health Services, 2005 MT 95, ¶ 17, 326 Mont. 491, 111 P.3d 202. The District Court determined that Puskas had failed to establish that she had been subjected to an adverse employment action based upon her complaint against A.H. ¶48 We agree with the District Court that Pine Hills possessed a legitimate, non- discriminatory reason to transfer Puskas to another Pine Hills unit. Pine Hills had to balance its need to protect Puskas from A.H.’s harassment against its need to provide A.H. with access to sex offender treatment as required by the Youth Court’s commitment order. A.H. 15 could participate in group therapy sessions only in the sex offender unit. A.H. also likely would have been targeted for harm in the maximum security unit. Finally, A.H. soon would “age out” of Pine Hills. ¶49 All of these factors supported Pine Hills’s decision to have offered Puskas a transfer as a reasonable means of protecting her from A.H.’s harassment. Puskas cannot establish that Pine Hills’s proffered explanation for seeking to transfer Puskas was pretextual, and, therefore, her retaliation claim must fail. See Vasquez v. Co. of L.A., 349 F.3d at 647 (9th Cir. 2003) (citing Ray, 217 F.3d at 1240). ¶50 Affirmed. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ JIM RICE | August 13, 2013 |
f41f5595-6b2d-49c0-9393-aefea7d9f074 | Matter of E.Z.C. and E.B.C. | 2013 MT 235N | DA 13-0105 | Montana | Montana Supreme Court | DA 13-0105 and DA 13-0106 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 235N IN THE MATTER OF: E.Z.C. and E.B.C., Youths in Need of Care. APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause Nos. DN 12-04 and DN 12-05 Honorable Laurie McKinnon, Presiding Judge COUNSEL OF RECORD: For Appellant: Lucy Hansen; Hanson Law Practice; Missoula, Montana For Appellee: Timothy C. Fox; Montana Attorney General; Katie F. Schulz, Assistant Attorney General; Helena, Montana Brett D. Linneweber, Park County Attorney, Livingston, Montana Submitted on Briefs: July 24, 2013 Decided: August 20, 2013 Filed: __________________________________________ Clerk August 20 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 C.C. (Father) appeals from orders of Montana’s Sixth Judicial District Court, Park County, terminating his parental rights to his two children, E.Z.C. and E.B.C. We affirm both orders in this consolidated appeal. ¶3 E.Z.C. and E.B.C.’s mother, J.C. (Mother), was arrested on January 18, 2012, after law enforcement officers searched their home and discovered methamphetamine and drug paraphernalia. On January 25, 2012, the State filed a petition for emergency protective services, adjudication, and temporary legal custody of E.Z.C. and E.B.C. Mother’s parental rights were terminated on October 11, 2012, and affirmed by this Court’s decision in In re E.Z.C., 2013 MT 123, 370 Mont. 116, 300 P.3d 1174. Father was incarcerated in Washington when the proceedings commenced, but returned to Montana following his release from jail on February 6, 2012. The District Court held a hearing on the State’s petition on February 28, 2012. Father attended the hearing and stipulated to his children being adjudicated as youths in need of care and to granting temporary custody to the State. ¶4 The State prepared a treatment plan and Father received it on June 26, 2012. The District Court suggested additional requirements, and all parties agreed to the revised 3 treatment plan at an August 7, 2012 hearing. Father’s treatment plan addressed housing, visitation, mental health, chemical use, and employment. On October 22, 2012, the District Court held a review hearing. The State filed a petition to terminate Father’s parental rights on November 19, 2012. ¶5 The District Court held a hearing on the termination petition on January 3, 2013. Detective Tim Barnes of the Park County Sheriff’s Office testified that during a traffic stop of Father on August 16, 2012, he discovered items commonly used to manufacture methamphetamine in Father’s vehicle. Detective Barnes also testified that Father had assisted in the development of a methamphetamine lab that Detective Barnes had uncovered in a search on September 17, 2012. The lab was located in a shed situated within 15 feet of a house occupied by children. Next, Jacqui Poe with the Department of Public Health and Human Services (DPHHS), Child and Family Services Division, testified that Father had not exhibited a change in attitude and remained at square one with respect to actual progression on his treatment plan. Poe stated that Father often tested positive for methamphetamine, marijuana, and alcohol, and frequently refused testing. Poe further testified that Father did not have an appropriate home for the children, failed to maintain weekly contact, did not adhere to the visitation schedule, failed to maintain steady employment, missed many of his anger management classes and attended while under the influence of drugs, and failed to demonstrate that he could provide for the basic needs of his children. Rie Hargraves with Community Health Partners testified as to Father’s participation in parenting classes and Jana Lehman, a 4 counselor at Southwest Chemical Dependency Center verified that Father was enrolled in outpatient treatment. ¶6 On January 11, 2013, the District Court issued orders terminating Father’s parental rights to E.Z.C. and E.B.C. Relying on the testimony presented at the termination hearing, the District Court ultimately concluded that Father had not successfully completed the court-ordered treatment plan and that the conduct making him unfit to parent E.Z.C. and E.B.C. was unlikely to change within a reasonable amount of time. ¶7 Father argues on appeal that the District Court erred in terminating his parental rights because the District Court gave Father insufficient time to complete his treatment plan and the evidence did not support the District Court’s conclusion that Father’s conduct was unlikely to change within a reasonable period of time. ¶8 Pursuant to § 41-3-609(1)(f), MCA, a court may terminate parental rights to a child who is adjudicated as a youth in need of care if “an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful” and “the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.” Courts must first determine whether DPHHS has provided an “appropriate” treatment plan. In re D.B., 2012 MT 231, ¶ 19, 366 Mont. 392, 288 P.3d 160. No bright-line test exists to assist courts in determining whether a treatment plan is appropriate; instead, courts consider various factors, including whether the parent was represented by counsel, whether the parent stipulated to the plan, and whether the plan addressed the particular problems facing both the parent and the child. In re D.B., ¶ 19. Father’s arguments that the timelines in the treatment plan were not 5 appropriate were waived when he agreed to the plan’s goals and tasks without objection. See In re H.R., 2012 MT 290, ¶¶ 10-11, 367 Mont. 338, 291 P.3d 583. Nevertheless, the record demonstrates that Father was represented by counsel, stipulated to the treatment plan, and the plan took into consideration the particular problems facing Father and his children. Father fails to point to any specific task that carried an unreasonable timeframe, nor can he demonstrate that the District Court misinterpreted the timelines set forth in the plan. ¶9 The determination of whether a parent’s behavior will change within a reasonable amount of time requires the District Court to primarily consider the physical, mental, and emotional needs of the child. In re D.B., ¶ 25; § 41-3-609(2)-(3), MCA. A court’s foremost concern is the child’s best interests when evaluating whether to terminate parental rights. In re D.B., ¶ 25. The record contains substantial evidence to support the District Court’s conclusion that Father’s behavior was unlikely to change within a reasonable amount of time. Father had an extensive history of chemical dependency problems and continually failed to comply with drug testing requirements. When he did appear for testing, he rarely passed. During the pendency of the treatment plan, Father made little if any progress towards being able to provide for the basic needs of his children, and failed to comply with many of the core requirements of the treatment plan that were established to address these inadequacies. ¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. With respect to the issues in this case involving judicial discretion, the District Court 6 clearly did not abuse its discretion. The District Court’s factual findings are supported by substantial evidence and the legal issues in this case are controlled by settled Montana law, which the District Court correctly interpreted. ¶11 Affirmed. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS | August 20, 2013 |
cffeea8d-4259-482b-a545-fc7ac006b4c8 | Bridgman v. Union Pacific | 2013 MT 289 | DA 12-0606 | Montana | Montana Supreme Court | DA 12-0606 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 289 GENE BRIDGMAN, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD CO., Defendant and Appellee. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DDV 11-68 Honorable James P. Reynolds, Presiding Judge COUNSEL OF RECORD: For Appellant: Jon M. Moyers; Moyers Law P.C.; Billings, Montana For Appellee: J. Daniel Hoven, Sara S. Berg, Evan M.T. Thompson; Browning, Kaleczyc, Berry & Hoven; Helena, Montana Submitted on Briefs: July 24, 2013 Decided: October 7, 2013 Filed: __________________________________________ Clerk October 7 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Gene Bridgman appeals an order of the First Judicial District Court, Lewis and Clark County, granting summary judgment to Union Pacific Railroad Company on Bridgman’s Federal Employers’ Liability Act (FELA) claim and denying his request for additional discovery. We address the following issues on appeal: ¶2 1. Whether the District Court erred in concluding as a matter of law that Bridgman’s FELA claims are barred by the applicable statute of limitations. ¶3 2. Whether the District Court erred in denying Bridgman’s request for additional discovery pursuant to M. R. Civ. P. 56(f). ¶4 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶5 Gene Bridgman worked in the Operating Department for Union Pacific Railroad Company from 1972 until his retirement in 2008. Bridgman worked as a locomotive engineer for much of his career, operating trains on rough tracks and getting on and off moving equipment. In 1995, Bridgman began experiencing back pain, a condition for which he sought medical treatment numerous times over the next twelve years. ¶6 Bridgman initially sought medical help for his back pain from his chiropractor, Dr. Judson Pierce, and his medical doctor, Dr. Thomas Hope, on November 3, 1995. He reported extreme back pain beginning a few days earlier and discussed how the injury may have occurred when he was on his hands and knees replacing a refrigerator seal. He returned to Dr. Pierce for a follow-up visit three days later. 3 ¶7 Bridgman first received treatment for his leg pain on January 6, 1998, when he saw Keri Blasingame, APN, and complained of radiating pain into his right calf. She referred him to Dr. Janet Albright, who examined him two days later. Bridgman returned to Dr. Pierce twice in June of that year with complaints of low back pain. ¶8 Two years later, on December 14, 2000, Dr. Pierce treated Bridgman for low back pain and numbness in his left lateral calf. At this appointment, Dr. Pierce and Bridgman discussed possible causes of his injury. Dr. Pierce first observed at that time a potential relationship between Bridgman’s employment and his injury, noting that Bridgman “does carry a heavy bag at times for work.” Four days later, Bridgman returned to Dr. Pierce, complaining about the pain worsening while sitting; Dr. Pierce discussed the possibility of a herniated disc and a potential referral to a medical doctor if the pain continued. In May 2001, Dr. Pierce again treated Bridgman for low back and leg pain. ¶9 Bridgman sought treatment from Dr. Pierce for low back pain four times over a two-month period in the fall of 2002. During the last of these appointments, on October 22, 2002, Dr. Pierce told Bridgman that a referral to a medical doctor for an MRI would be appropriate if he desired or if his pain did not improve. ¶10 Bridgman did not seek an MRI at that time. Four months later, he returned for two more treatments from Dr. Pierce. During the first appointment, on February 24, 2003, after Bridgman complained of low back and leg pain, Dr. Pierce referred Bridgman to a medical doctor for his leg pain. 4 ¶11 On April 23, 2003, following a visit to Dr. Hope, Bridgman saw a podiatrist, Dr. Craig Karrasch, for treatment of burning pain in his left calf. Dr. Karrasch diagnosed peroneal tendonitis and bilateral plantar fasciitis, a musculoskeletal overuse syndrome, and prescribed custom orthotic devices for pain management. He also provided a letter to Union Pacific notifying it of the necessity for Bridgman to wear the orthotics while on the job. Bridgman returned to Dr. Pierce for two more treatments of his low back pain in February 2005. ¶12 On December 26, 2007, Bridgman sought treatment from Dr. Hope for persistent aching of his right calf. The next month, he complained of low back pain and persistent right leg pain to Dr. Pierce, who again suggested the possibility of a herniated disc. Bridgman visited Dr. Thomas Fyda for an orthopedic evaluation on January 25, 2008, at which time he complained of lower extremity pain. Dr. Fyda noted that Bridgman was “a few weeks” into the symptoms. He ordered an X-Ray, which showed a mild degenerative disc disease. Bridgman returned for another appointment with Dr. Pierce and told him Dr. Fyda had informed him that he was suffering from low back degeneration. ¶13 On February 22, 2008, Bridgman, on a referral from Dr. Fyda, had an orthopedic evaluation from Dr. Steve Cunningham for his low back and leg pain. During the visit, Bridgman complained of the pain worsening while sitting for long periods of time. Dr. Cunningham’s notes indicate that Bridgman “[was] very concerned . . . that this may 5 be a job-related abnormality.” An MRI taken by Dr. Cunningham showed evidence of a degenerative disc disease. ¶14 On that same day, Bridgman filed a Report of Personal Injury with Union Pacific regarding pain in his back and legs. Bridgman reported that he became aware from his physician on February 22, 2008, that his condition may have been caused by his work. Bridgman also reported that he first noticed symptoms “recently” and that he was first treated or diagnosed on February 22, 2008. ¶15 On a referral from Dr. Cunningham, Bridgman visited Dr. Dante Vacca for a neurosurgical consultation in March 2008. Bridgman reported to Dr. Vacca that his pain began the previous December. Bridgman consulted in April with Dr. Andrew Wesely, whose notes indicate that Bridgman had experienced low back and leg pain for “at least four to six months” prior to the appointment. ¶16 On January 20, 2011, Bridgman filed a complaint against Union Pacific under FELA, 45 U.S.C. § 51 et seq., for the back and leg injuries he allegedly sustained during his employment with the company. The complaint alleged that he “began experiencing low back and leg pain” on or about January 22, 2008. Bridgman alleged that Union Pacific knew or should have known that the types of tasks assigned to Bridgman, including getting on and off moving equipment and riding rough tracks, cause cumulative trauma disorder and repetitive musculoskeletal injuries in railroad workers. ¶17 Union Pacific filed a motion for summary judgment arguing that Bridgman’s claim was time-barred under FELA’s three-year statute of limitations. In support of its 6 argument, Union Pacific detailed the numerous occasions Bridgman sought medical help for his back and legs to demonstrate the lack of an issue of material fact as to when Bridgman knew or should have known about the possibility of a work-related injury. Bridgman opposed the motion, claiming that a question of material fact existed, and arguing in the alternative that further discovery should be permitted under M. R. Civ. P. 56(f). ¶18 The District Court granted Union Pacific’s motion for summary judgment on August 30, 2012. The court held that the statute of limitations began running once Bridgman learned that his back and leg pain may have been caused by his employment; according to the medical records, that was as early as December 14, 2000, when Bridgman and his chiropractor, Dr. Pierce, discussed aspects of his work as a potential cause for his pain. The court rejected Bridgman’s argument that knowledge of the specific cause of an injury is required to trigger the limitations clock in a FELA action, stating, “A plaintiff who discovers his job may be a potential cause of his injury is on notice of the running of this statute.” ¶19 The court also rejected Bridgman’s argument that further discovery should be allowed. The court determined that Bridgman did not show what possible discovery would need to be undertaken that would bear on the issue of the statute of limitations. Given that the applicable medical records already were collected and submitted to the court, the court denied Bridgman’s request. Bridgman appeals both the District Court’s summary judgment ruling and its denial of his request for additional discovery. 7 STANDARD OF REVIEW ¶20 We review de novo a district court’s summary judgment ruling. Johnston v. Centennial Log Homes & Furnishings, Inc., 2013 MT 179, ¶ 24, 370 Mont. 529, 305 P.3d 781. Under M. R. Civ. P. 56(c), the moving party has the burden of demonstrating the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Dovey v. Burlington N. Santa Fe Ry. Co., 2008 MT 350, ¶ 12, 346 Mont. 305, 195 P.3d 1223. The burden then shifts to the non-moving party to prove by more than mere denial or speculation, and by competent evidence, that a genuine issue of material fact exists. Roy v. Blackfoot Tel. Coop., Inc., 2004 MT 316, ¶ 11, 324 Mont. 30, 101 P.3d 301. ¶21 We review a district court’s M. R. Civ. P. 56(f) ruling for an abuse of discretion. Rosenthal v. Co. of Madison, 2007 MT 277, ¶ 23, 339 Mont. 419, 170 P.3d 493. DISCUSSION ¶22 1. Whether the District Court erred in concluding as a matter of law that Bridgman’s FELA claims are barred by the applicable statute of limitations. ¶23 FELA requires an injured railroad employee to commence a claim for injury within three years from the date the cause of action accrued. 45 U.S.C. § 56. The Act does not define when an injury accrues, but case law distinguishes the standard based upon whether the injury was an accident from a one-time occurrence or an occupational disease accumulating over time. See Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018 (1949) (recognizing occupational disease claims under FELA for the first time). Claims 8 based upon medical injury accrue when the plaintiff has actual or constructive knowledge of the injury and its cause. Urie, 337 U.S. at 170; Winter v. U.S., 244 F.3d 1088, 1090 (9th Cir. 2001). ¶24 Courts recognize that determining the date of accrual is more difficult in cases involving latent injuries that can go unnoticed or injuries without a definite onset. Matson v. Burlington N. Santa Fe R.R., 240 F.3d 1233, 1235 (10th Cir. 2001). To avoid applying a strict limitations period requiring plaintiff to file suit before a latent injury manifests itself, the Supreme Court created the “discovery rule,” which starts the limitations period running “when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action.” Matson, 240 F.3d at 1235; see also U.S. v. Kubrick, 444 U.S. 111, 121-23, 100 S. Ct. 352, 361 (1979). Although the Supreme Court applied the discovery rule under the Federal Tort Claims Act, many circuits have applied the discovery rule in FELA actions as well. Matson, 240 F.3d at 1235 (citing Aparicio v. Norfolk & W. Ry. Co., 84 F.3d 803, 814 (6th Cir. 1996); Fries v. Chicago & N.W. Transp. Co., 909 F.2d 1092, 1095 (7th Cir. 1990); Albert v. Maine Cent. R.R. Co., 905 F.2d 541, 544 (1st Cir. 1990); Townley v. Norfolk & W. Ry. Co., 887 F.2d 498, 501 (4th Cir. 1989); Kichline v. Consol. Rail Corp., 800 F.2d 356, 359 (3d Cir. 1986); Dubose v. Kansas City S. Ry. Co., 729 F.2d 1026, 1030 (5th Cir. 1984)). ¶25 To keep the limitations period from being too open-ended, the discovery rule imposes an affirmative duty upon plaintiffs to exercise reasonable diligence and investigate the cause of a known injury. It is enough to know that work is a possible 9 cause of an injury to trigger a duty to investigate work conditions and pursue potential claims. Matson, 240 F.3d at 1235-36. Although Urie allowed for tolling the limitations period while an injury is undetectable, it did not extend that tolling to plaintiffs who are aware that some type of injury exists yet do not “seek diagnosis and investigate the cause.” Fries, 909 F.2d at 1095 (citing Kubrick, 444 U.S. at 120-21). ¶26 On December 14, 2000—more than ten years before filing the complaint— Bridgman and Dr. Pierce discussed the possibility that Bridgman’s work contributed to his condition. A few days later, Dr. Pierce communicated with Bridgman the possibility that his back pain may be caused by a herniated disc and discussed a potential referral to a medical doctor. Bridgman argues that requiring him to file within three years of this date would be an “absurd” result given that he was still working full, unrestricted duty and because his symptoms were “distant, benign, infrequent, and resolved.” The nature and extent of Bridgman’s symptoms over the ensuing years, however, establish that he was on notice of a possible link between his injury and his work prior to the February 2008 appointment with Dr. Cunningham. He went to a doctor seeking treatment for back pain, leg pain or both more than twenty times over the twelve-year period preceding the February 22, 2008, appointment that ultimately resulted in his filing a report of injury claim with Union Pacific. He was alerted to a musculoskeletal overuse condition in 2003. And, though Bridgman’s first report of injury stated that he first experienced symptoms in February 2008, even a generous view of the facts establishes that Bridgman had experienced considerable leg and back pain at least since December 10 2007—more than three years before filing his complaint in January 2011. Even if the statute was not triggered in December 2000, Bridgman’s experience of similar symptoms over the following years put him on sufficient notice before January 2008 that gave rise under FELA to an affirmative duty to investigate. ¶27 Bridgman’s argument is made particularly difficult because the symptoms or contributing factors that led to his report of injury did not differ from those he experienced in the previous twelve years. Although Bridgman claims that he complained of symptoms “unlike anything he had ever experienced in his low back, with new pain radiating into his lower extremities,” the symptoms do not differ in character from those indicated in the medical records. Instead, Dr. Cunningham’s report from the February 22, 2008 evaluation states that Bridgman’s back pain was not significant, and the previous medical records establish that Bridgman had experienced leg pain for years. Additionally, consistent with his prior complaints to Dr. Pierce, Bridgman reported his symptoms as worse after sitting for long periods of time. The primary difference between this and previous appointments was that Bridgman affirmatively told Dr. Cunningham he was concerned the injury was work-related—something he already should have known was a possibility. Though Bridgman’s affidavit states that he did not know until Dr. Cunningham told him that his back and leg pain were related and likely caused by operating rough riding locomotives, this is identical to the “specific cause” argument rejected by the federal circuit courts. See Fries, 909 F.2d at 1096; Matson, 240 F.3d at 1236; Townley, 887 F. 2d at 501. 11 ¶28 This case is not controlled by our recent rulings in Dvorak v. Mont. State Fund, 2013 MT 210, 371 Mont. 175, 305 P.3d 873 or Siebken v. Voderberg, 2012 MT 291, 367 Mont. 344, 291 P.3d 572. Although there also are factual distinctions, the important difference between these and the present case is the applicable law. FELA is a federal statutory scheme, and we are required to follow the federal substantive law interpreting its provisions. St. Louis S.W. Ry. Co. v. Dickerson, 470 U.S. 409, 411, 105 S. Ct. 1347, 1348 (1985). Such substantive law includes the applicable statute of limitations. See Engel v. Devenport, 271 U.S. 33, 38-39, 46 S. Ct. 410, 412-13 (1926). As noted, FELA imposes an affirmative duty upon plaintiffs to investigate the cause of their injury upon notice of a possible job-related connection. See Matson, 240 F.3d at 1236. That affirmative duty is not imposed by the Montana law considered in our prior cases. Dvorak, ¶ 19; Siebken, ¶¶ 21-23. ¶29 In conclusion, Bridgman fails to raise a genuine issue of material fact and we agree that summary judgment in favor of Union Pacific was appropriate. The medical records establish that Bridgman was on inquiry notice that he may be suffering from a work-related back and leg condition before the three years preceding his complaint on January 20, 2011. The claim is time-barred under FELA’s three-year statute of limitations and Union Pacific is entitled to judgment as a matter of law. ¶30 2. Whether the District Court erred in denying Bridgman’s request for additional discovery pursuant to M. R. Civ. P. 56(f). 12 ¶31 M. R. Civ. P. 56(f) states that if a party opposing a motion for summary judgment shows, for specified reasons, that it cannot present facts essential to justify an opposition, the court may deny summary judgment or order a continuance to allow additional discovery. “A district court does not abuse its discretion in denying a Rule 56(f) motion if the party moving for additional discovery fails to establish how the proposed additional discovery will prevent summary judgment.” Hinderman v. Krivor, 2010 MT 230, ¶ 16, 358 Mont. 111, 244 P.3d 306 (citing Rosenthal, ¶ 38). The District Court determined that Bridgman failed to meet this burden. Bridgman argues that the District Court ignored his argument that additional discovery about Union Pacific’s failure to inform him of the signs and symptoms of cumulative trauma injuries would potentially prevent the railroad from asserting a statute of limitations defense under our holding in Bevacqua v. Union Pac. R.R. Co., 1998 MT 120, 289 Mont. 36, 960 P.2d 273. ¶32 While the District Court did not discuss this particular argument, we conclude that it did not abuse its discretion. Bridgman failed to show what discovery would have been material to the issue before the court. The undisputed facts establish that Bridgman first apprised Union Pacific of the existence of a work-related injury on February 22, 2008. His assertion that discovery may exist showing he was misled by Union Pacific about the signs and symptoms of his injuries up until that date is not compelling in light of the fact that Union Pacific was unaware of any injury to Bridgman. Our ruling in Bevacqua is inapplicable. There, the plaintiff was examined over the years by physicians of Union Pacific’s choosing who were determined to be agents of the railroad. Since their 13 misrepresentation misled plaintiff into not filing suit within the three-year period, we determined that plaintiff was entitled to have his case heard on the merits. Bevacqua, ¶¶ 57-60. Bridgman failed to meet his burden as the moving party under M. R. Civ. P. 56(f) in showing specific reasons requiring further discovery. The court was within its discretion to determine that no further discovery was necessary and to deny Bridgman’s request. ¶33 For the foregoing reasons, the judgment of the District Court is affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ JIM RICE /S/ LAURIE McKINNON /S/ BRIAN MORRIS Justice Patricia O. Cotter dissents. ¶34 I respectfully dissent from the Court’s decision to affirm the order granting the Union Pacific Railroad Company’s motion for summary judgment. I would reverse the decision and remand the case for a factual determination by the jury as to whether the statute of limitations has run. ¶35 Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). 14 A plaintiff’s burden in a FELA action is significantly lighter than in an ordinary negligence case, and some FELA cases have been “submitted to juries based upon evidence ‘scarcely more substantial than pigeon bone broth.’ ” Grogg v. CSX Transp., Inc., 659 F. Supp. 2d 998, 1002 (2009) (citing Williams v. Natl. R.R. Passenger Corp., 161 F.3d 1059, 1061 (7th Cir. 1998) (internal quotations omitted)). ¶36 While the Court correctly concluded that federal substantive law applies in this FELA case, the issue of whether summary judgment was appropriate is governed by state law. “The rule in Montana, and in the majority of jurisdictions, is that when there is conflicting evidence as to when a cause of action accrued, the question of whether an action is barred by the statute of limitations is for the jury to decide.” Nelson v. Nelson, 2002 MT 151, ¶ 24, 310 Mont. 329, 50 P.3d 139 (citing Hill v. Squibb & Sons, E.R., 181 Mont. 199, 212, 592 P.2d 1383, 1390-91 (1979) (internal citation omitted)). See also McCormick v. Brevig, 1999 MT 86, ¶¶ 102-03, 294 Mont. 144, 980 P.2d 603 (it is for the trier of fact to determine at what point the plaintiff discovered or should have discovered through due diligence any negligence by the accountant when the existence of a trust was self-concealing); Werre v. David, 275 Mont. 376, 384, 913 P.2d 625, 630 (1996) (the point at which the plaintiff discovered a connection between the sexual abuse she experienced as a child and her mental disorders as an adult was a question of fact for the jury; thus, denial of the defendant’s motion for a directed verdict was correct). ¶37 Drawing all reasonable inferences that may be drawn from the offered proof in favor of Bridgman, I conclude genuine issues of material fact exist. Though the Court 15 determines that the discussion at the February 22, 2008 doctor appointment was no different than the discussions held during the previous appointments, Bridgman argues that he complained of symptoms “unlike anything he had ever experienced in his low back, with new pain radiating into his lower extremities.” Here, as in Fonseca v. Consol. Rail Corp., 246 F.3d 585 (6th Cir. 2001), there is a genuine issue of material fact as to whether the symptoms Bridgman complained of for three years prior to filing the lawsuit were separate from the symptoms he experienced periodically beginning in 1995. Bridgman is entitled to have a jury decide whether and when a reasonable person in his circumstances would have realized that he had suffered more than a de minimus injury and that the injury was work-related. For example, a jury could have determined Dr. Pierce’s note that Bridgman “carr[ies] a heavy bag at times for work” would not put a reasonable person on inquiry notice that the injury was work-related when there was no evidence that the doctor indicated to Bridgman that carrying a heavy bag was related to his injury, or that Bridgman himself identified the bag as a possible cause of the injury. ¶38 I acknowledge that FELA imposes an affirmative duty on plaintiffs to investigate the cause of their injury upon inquiry notice, but I conclude that whether Bridgman exercised reasonable diligence to investigate his injury is a question of fact for the jury. A jury could have concluded that Bridgman made reasonable efforts to investigate his pain complaints by visiting his chiropractor and doctors, but that his physicians did not know the effect of his occupational exposures on his condition. 16 ¶39 For the foregoing reasons, I dissent from the Court’s decision to affirm the District Court. /S/ PATRICIA COTTER Justice Michael E Wheat joins the Dissent of Justice Patricia O. Cotter. /S/ MICHAEL E WHEAT | October 7, 2013 |
b06db116-9b62-40f0-a624-38b7c28979e5 | Montana v. Aker | 2013 MT 253 | DA 11-0696 | Montana | Montana Supreme Court | DA 11-0696 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 253 STATE OF MONTANA, Plaintiff and Appellee, v. JIMMIE LEE AKER, Defendant and Appellant. APPEAL FROM: District Court of the Third Judicial District, In and For the County of Powell, Cause No. DC 10-32 Honorable Brad Newman, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Tammy K Plubell, Assistant Attorney General; Helena, Montana Lewis K. Smith, Powell County Attorney; Deer Lodge, Montana Dan Guzynski, Joel Thompson, Assistant Attorneys General, Special Deputy County Attorneys; Helena, Montana Submitted on Briefs: February 20, 2013 Decided: September 4, 2013 Filed: __________________________________________ Clerk September 5 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Jimmie Lee Aker appeals the judgment entered by the Montana Third Judicial District Court, Powell County, after a jury convicted him of sexual intercourse without consent following a four-day trial in May 2011. Aker appeals his conviction on the grounds that the prosecutor committed plain error during closing argument and that Aker’s counsel provided ineffective assistance during the trial. We affirm. ¶2 We address the following issues on appeal: ¶3 1. Whether plain error review should be exercised to grant Aker a new trial on his claim of prosecutorial misconduct during closing arguments. ¶4 2. Whether Aker received ineffective assistance of counsel due to his counsel’s failure to object to hearsay testimony that bolstered the victim’s credibility. PROCEDURAL AND FACTUAL BACKGROUND ¶5 On June 10, 2010, the Powell County Attorney filed an information charging Aker with one count of sexual intercourse without consent, a felony, in violation of § 45-5- 503(1), MCA, and two misdemeanor charges that are not at issue in this appeal. The felony count alleged that between November 1, 2009, and December 31, 2009, Aker engaged in sexual intercourse without consent with C.Y. The date of the offense was in dispute, but alleged to have been near C.Y.’s twelfth birthday, which was in late November 2009. ¶6 As is common in cases alleging sexual contact with a minor child, the defendant was well known to the alleged victim and there were no eyewitnesses to the event. As 3 such, the outcome of the trial depended on who the jury believed. Each party called numerous witnesses in its case in chief and both sides conducted vigorous cross-examination in order to undermine the other’s theory. ¶7 At trial, C.Y. testified that in November or December of 2009, she was babysitting L.L., her cousin, and several other small children, at her cousin’s house. When she arrived at the house, L.L.’s mother Amie and stepfather Donald, as well as two other adults, were making dinner for the children. At some point after dinner, all of the adults left the house, leaving C.Y. in charge. After C.Y. had put the children to sleep, she testified that she went downstairs to watch a Hannah Montana television show. ¶8 Aker previously had dated C.Y.’s aunt, and C.Y. testified that “he was like an uncle” to her. While C.Y. lay on the couch watching television in her pajamas, Aker entered the room. C.Y. testified that he walked over to her, pulled down her pajama pants and underwear, and “put his first two fingers inside [her vagina]” while “he had the other hand on [her] chest.” C.Y. pretended that she was sleeping during the incident, which she stated lasted for twenty minutes; afterwards, Aker washed his hands and, before leaving, he told C.Y. that she “couldn’t tell anyone or [she] would get in trouble and he would too.” C.Y. then went to the bathroom and, when she wiped herself, she discovered that she was bleeding, which scared her. For several weeks, C.Y. did not tell anyone what had happened because she felt like she had done something wrong. ¶9 C.Y. testified that, eventually, she confided in her mother’s best friend, Cari, and told her what Aker had done. Cari testified that C.Y. gave her a “full account” of what 4 happened. Cari’s recollection of her conversation with C.Y. was consistent with C.Y.’s testimony, with some differences. Cari testified that C.Y. told her that she and Aker had a short conversation before he “walked over and he kind of grabbed her by the shoulders . . . and laid her down on the couch.” Cari also recalled that C.Y. said that she struggled, and Aker told her “this is normal,” before unbuttoning her pants. C.Y. also told Cari that the incident lasted half an hour and that she waited until she heard Aker’s car leave before she used the bathroom. Aker’s attorney did not object as Cari relayed what C.Y. had told her. Cari also testified about the conversation she subsequently had with C.Y.’s mother, Jennifer. ¶10 The State called Jennifer as its next witness. Although C.Y. has never spoken with her mother about what Aker did to her, Jennifer did testify about her phone conversation with Cari after C.Y. informed Cari of what had happened. Jennifer testified that Cari told her that C.Y. “had been sexually molested . . . [by] Jim Aker.” Aker’s attorney did not object as Jennifer recalled what Cari previously had told her on the telephone. ¶11 After Jennifer testified, the State called Dr. Michelle Corbin, an expert in family medicine. Dr. Corbin testified that Powell County Sheriff Scott Howard referred C.Y. to her and that she performed a sexual abuse examination of C.Y. nearly two months after the assault. Dr. Corbin explained that C.Y. had described the incident to her—that it was a one-time event that lasted for twenty minutes and that Aker had penetrated her vagina with two fingers. Dr. Corbin also explained that, even though she did not find any 5 physical evidence of the assault, that did not surprise her and it did not call into question the veracity of C.Y.’s account because such an injury usually heals within twenty-four to forty-eight hours. Aker’s attorney did not object during Dr. Corbin’s testimony. ¶12 Next, the State called Kristi Rydeen, a licensed clinical professional counselor, to testify. In addition to testifying about C.Y.’s general demeanor during counseling sessions, Rydeen testified that C.Y. told her about “the incident of abuse perpetuated by Jimmie Aker.” On redirect, the prosecutor asked Rydeen, “[i]n your discussions with [C.Y.] did she reference or did you find any other trauma that would explain the symptoms you were observing and having been reported, other than sexual abuse by [Aker]?” Rydeen responded “no.” Aker’s attorney did not object to those statements identifying Aker as the assailant. ¶13 The defense theory was that Aker could not have committed the crime because he “didn’t go to that house” on the night C.Y. was there and because, due to a recent back injury, he physically was incapable of being in the position C.Y. claimed he took during the assault. Though he did not object to their direct testimony, Aker’s counsel cross- examined the State’s witnesses about certain details in C.Y.’s statements to them to illuminate inconsistencies. For example, he established that C.Y. had related different dates when the offense occurred, whether Aker was standing, kneeling, or on the couch when he assaulted her, where his hands were on her upper body, and whether any of the adults had come home while she was still awake. He also brought out through the State’s witnesses other issues and circumstances in C.Y.’s life as alternative explanations for her 6 anxiety and nightmares, including, in part, bullying at school and by her brother and having a father in jail and a mother in military combat duty overseas. ¶14 In his case in chief, Aker called Sheriff Howard to testify about prior inconsistent statements C.Y. made to Howard regarding the date on which the incident occurred and what Aker had told her that night. Under questioning by Aker’s counsel, Howard acknowledged that C.Y. had mistakenly or erroneously alleged that Aker saw her and waved to her during a community gathering months after the assault; an investigation determined that it could not have been Aker. On cross-examination by the State, Howard testified about additional statements C.Y. made during the interview that were consistent with C.Y.’s trial testimony. Aker’s attorney did not object to that testimony. ¶15 Aker also presented evidence that C.Y. only stayed the night at her cousin’s house on one occasion in November and December of 2009. Aker called three adult witnesses who shared the home—L.L.’s mother, Amie, L.L.’s step-father, Donald, and Donald’s sister, Angela. All three testified that they were friends with Aker, that C.Y. stayed overnight at the house only one time during the period charged, and that Aker did not visit the house on that night. Aker also called nine-year-old L.L., who testified that C.Y. had only spent the night at her house once, that Aker was not there that night, and that she never told C.Y. that Aker had touched her. That statement contradicted the testimony of Mary Pat Hansen, a nurse practitioner who had conducted a forensic interview of C.Y. and testified in the State’s case in chief. Hansen acknowledged on cross-examination that C.Y. reported to her that L.L. told C.Y. that Aker also had “touched her” in her “private 7 spots.” Aker also introduced testimony, including his own, that he could not have sexually assaulted C.Y. in the manner that she described because he was recovering from a severe back injury in November and December of 2009. The State attempted to discredit Aker’s witnesses, pointing out that they all were very close friends and that Aker spent considerable time at their home during the time period in question, when both he and Amie were off work recovering from injuries. The State impeached Amie with evidence that she had lied about whether she sustained her injury from an assault at work or a slip and fall. ¶16 In closing arguments, the prosecutor argued that C.Y. was a credible witness because the core details of the statements she provided to Cari, Sheriff Howard, Dr. Corbin and Rydeen were consistent: And what you heard when she testified is that the core, core details about Mr. Aker coming into that home when the kids were sleeping, walking across that room, coming up to her while Hannah Montana was on, sexually assaulting her, pushing her down, placing his fingers in her. Those core details have never changed. Hannah Montana was always on tv every time she told the story. . . . Those core details, the details that we would expect a child to remember, the blood, the spotting, the blood, those details have never ever changed. How in the world would [C.Y.] discuss blood in these interviews, the spotting afterwards, wiping herself when Mr. Aker left the house; unless this actually happened. ¶17 After recounting the evidence and discussing C.Y.’s testimony and her demeanor in the courtroom, the prosecutor argued that C.Y.’s testimony was truthful: 8 I’d ask you to consider this, Ladies and Gentlemen, that this case is not overly complicated, it’s rather simple. I ask you to consider this; that when [C.Y.] came into the courtroom and told you her story, that she did so for the simple reason that she was telling you the truth; no motive, no other reason. ¶18 The prosecutor contrasted C.Y.’s allegedly truthful testimony with the testimony of the defense witnesses. He argued that, in spite of a bad back, Aker was capable of doing many things and could have committed the act alleged, and that Aker’s friends had “[come] into this courtroom and lied” when they stated that Aker did not visit the house the one night C.Y. was there: [Y]ou need to look at these people that testified. Certainly they had a strong, strong motive to lie. And it’s really, it’s kind of, if you knew what was going on in the case, it’s pretty unsophisticated really. I mean it’s an unsophisticated lie. ‘We all just say that we were there that night, and we never left, we never left that night. We’ll just say that.’ And that Jim Aker never came over. Pretty unsophisticated. ‘That’s what we’re going to remember.’ ‘Let’s just all remember that, that we never left that night’. Pretty unsophisticated. It’s not really hard to remember that part of it. And I’m not saying they’re unsophisticated, I’m saying the lie is unsophisticated. ‘That we just say we were there that night.’ Like very, very powerful if you believe it. That unsophisticated lie has the power to rob [C.Y.] of justice for the rest of her life. So we think about this case. Look at their testimony. ¶19 The prosecutor elaborated on the credibility of the defense witnesses: So it’s very important that you assess . . . the credibility of those three people. And keep in mind that idea, [because] we’re all in from different parts of society, from different social stratus [sic]. Think about those people. I don’t want to disparage them anymore, but these are people who couldn’t be asked to take the gum out of their mouth when they were testifying, to change into jeans in the courtroom, to wear something other than sweats and sandals. In that group of people where you’re unemployed and collecting unemployment or workers’ comp, and you play video games all day, that, there is a nobility for them in the idea that you protect your innocent friend. You rally around him. The problem with that, Ladies and 9 Gentlemen, is that by doing so they are attempting to rob that little girl of the justice that she requires, the justice that we all require. And that’s why we can’t let it go, and that’s why we have to tell you that they’re not being truthful. . . . So it’s not about them just protecting their friend too. Let’s also consider their own self-interest. Consider this, how much would they want to admit, and again I have to draw you back to their social strata. How much would they want to admit that on that Friday night when they were staying up until 2:00 o’clock in the morning. We didn’t ask them what they were doing, we didn’t ask them if they were drinking or if they were doing drugs, I think we knew that they would say ‘no’. But how much would they want to admit that they left on that Friday night, their two, 2 year old kids alone, even asleep, and little 8 year old [L.L.], and left her in the care of a 12 year old girl? That’s their own self-interest. Do you think they’re cognizant of maybe Child Protective Services hearing about that? So it’s not just them protecting their friend. They’ve got their own reasons to protect themselves. ¶20 Aker’s counsel did not object to any of these statements. Before concluding, the prosecutor reminded the jury that his argument “isn’t evidence. If I said anything here, if you think in any way that I misstated the evidence, disregard it. It’s your job to. I don’t get to testify.” The jury returned a guilty verdict. Aker appeals. STANDARD OF REVIEW ¶21 We generally “do not address issues of prosecutorial misconduct pertaining to a prosecutor’s statements not objected to at trial.” State v. Longfellow, 2008 MT 343, ¶ 24, 346 Mont. 286, 194 P.3d 694. We may review such an issue, however, under the plain error doctrine. State v. Lacey, 2012 MT 52, ¶ 14, 364 Mont. 291, 272 P.3d 1288. We apply plain error review only “in situations that implicate a defendant’s fundamental constitutional rights when failing to review the alleged error may result in a manifest 10 miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process.” State v. McDonald, 2013 MT 97, ¶ 8, 369 Mont. 483, ___ P.3d ___ (citing State v. Hayden, 2008 MT 274, ¶ 17, 345 Mont. 252, 190 P.3d 1091). The decision to invoke plain error review is “a discretionary one.” Hayden, ¶ 17. ¶22 “Only record-based ineffective assistance of counsel claims are considered on direct appeal.” State v. Howard, 2011 MT 246, ¶ 18, 362 Mont. 196, 265 P.3d 606. To the extent such claims are reviewable, “they present mixed questions of law and fact that we review de novo.” Howard, ¶ 18. DISCUSSION ¶23 1. Whether plain error review should be exercised to grant Aker a new trial on his claim of prosecutorial misconduct during closing arguments. ¶24 Both the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee criminal defendants “the right to a fair trial by a jury.” Hayden, ¶ 27. A prosecutor’s misconduct “may be grounds for reversing a conviction and granting a new trial if the conduct deprives the defendant of a fair and impartial trial.” McDonald, ¶ 10 (quoting Hayden, ¶ 27). We “consider alleged improper statements during closing argument in the context of the entire argument.” State v. Makarchuk, 2009 MT 82, ¶ 24, 349 Mont. 507, 204 P.3d 1213. We do not presume prejudice from the alleged prosecutorial misconduct; rather, the “defendant must show 11 that the argument violated his substantial rights.” McDonald, ¶ 10 (quoting Makarchuk, ¶ 24). ¶25 Aker contends that “the State improperly commented on witness credibility” during closing arguments in contravention of his right to a fair trial by characterizing C.Y.’s testimony as truthful and by portraying the defense witnesses as liars and unproductive members of society. Although he recognizes that his attorney did not object to any of the comments he claims were improper, Aker argues that plain error review is warranted under State v. Hayden. The State counters that declining to review the alleged misconduct would not result in a manifest miscarriage of justice, leave unsettled the fundamental fairness of the trial, or compromise the integrity of the judicial process. Instead, the State argues that the prosecutor “appropriately explained to the jury that it would have to resolve issues of credibility” and further explained “what factors it could consider in doing so.” ¶26 An attorney “invades the jury’s province and engages in highly improper behavior when [he] characterizes the defendant or witnesses as liars or offers personal opinions on a witness’s credibility.” State v. Racz, 2007 MT 244, ¶ 36, 339 Mont. 218, 168 P.3d 685 (citing State v. Hanson, 283 Mont. 316, 326, 940 P.2d 1166, 1172 (1997)); see also Mont. R. Prof. Cond. 3.4(e) (lawyer shall not state personal opinion as to the credibility of a witness). On the other hand, “it is proper ‘to comment on conflicts and contradictions in testimony, as well as to comment on the evidence presented and suggest to the jury inferences which may be drawn therefrom.’” State v. Daniels, 2003 MT 247, 12 ¶ 26, 317 Mont. 331, 77 P.3d 224 (quoting State v. Gladue, 1999 MT 1, ¶¶ 14-15, 293 Mont. 1, 972 P.2d 827). Moreover, to properly preserve the issue for appeal, “the defendant must make a timely objection or it is considered waived.” Racz, ¶ 36 (citing § 46-20-104(2), MCA); see also State v. Rose, 2009 MT 4, ¶ 106, 348 Mont. 291, 202 P.3d 749. ¶27 As we recently discussed in McDonald, although a prosecutor must avoid offering personal opinion, comment is appropriate “on ‘the gravity of the crime charged, the volume of evidence, credibility of witnesses, inferences to be drawn from various phases of evidence, and legal principles involved’” in the instructions to the jury. McDonald, ¶ 14 (quoting State v. Green, 2009 MT 114, ¶ 33, 350 Mont. 141, 205 P.3d 798). A prosecutor’s argument is not plain error if made in the context of discussing the evidence presented and how it should be used to evaluate a witness’s testimony under the principles set forth in the jury instructions. McDonald, ¶ 15. ¶28 Aker’s reliance on Hayden is unpersuasive. While we faulted the prosecutor in that case for voicing his “opinions during closing arguments regarding the credibility of witnesses,” Hayden, ¶ 29, our decision was based on “multiple errors committed by the prosecutor.” McDonald, ¶ 12. Most notably, the prosecutor had elicited what amounted to expert opinion testimony from its law enforcement witness that the victim and another key fact witness were telling the truth. In closing argument, the prosecutor then told the jury it could “rely on” the officer and that both the officer and the victim were “believable.” Hayden, ¶ 32. Additionally, the prosecutor improperly testified “by 13 vouching for the efficacy of the search of [the defendant’s] residence” and by “stating his opinion that a scale found in the residence was used for drugs.” Hayden, ¶ 32. We invoked plain error review because the cumulative effects of these instances of prosecutorial misconduct “[left] unsettled the question of the fundamental fairness of the proceedings.” Hayden, ¶¶ 29-33; see also McDonald, ¶¶ 12-13. ¶29 As the State points out, there are numerous instances in which we have refused to conduct plain error review of a prosecutor’s comments regarding witness credibility in closing arguments, even in cases where we have concluded that the comments were improper. We declined review, for example, when a prosecutor categorized a defense witness “as a ‘liar,’ while arguing the State’s evidence was genuine and truthful[.]” State v. Lindberg, 2008 MT 389, ¶ 33, 347 Mont. 76, 196 P.3d 1252. In Lindberg, we unanimously determined that “the prosecutor’s comments [did] not rise to a level sufficient to invoke the plain error doctrine[,]” even though we disapproved of the prosecutor’s comments. Lindberg, ¶¶ 34-35.1 ¶30 Our decision in Lindberg was not unusual—we generally have refused to invoke plain error review of allegedly improper closing arguments regarding witness credibility. Rose, ¶¶ 105-07 (prosecutor argued in closing that defendant had “[gotten] up and [told] the big lie”); Lacey, ¶¶ 18-26 (prosecutor argued that the State’s witness was “candid,” whereas the defendant was not candid and was, “by God,” guilty); McDonald, ¶¶ 5-17 (prosecutor argued that State’s witnesses were “completely believable” and “telling [the 1 Lindberg was decided on November 18, 2008, three months after Hayden. 14 jury] the truth”; prosecutor’s comments were tied to what he believed the evidence showed); State v. Thorp, 2010 MT 92, ¶¶ 18, 26-28, 356 Mont. 150, 231 P.3d 1096 (in a sexual intercourse without consent case, prosecutor told jury that the victim was “a very credible witness” who had “no reason to lie”; prosecutor also said she thought the jury should believe the victim); Racz, ¶¶ 35-36 (in closing arguments, prosecutor stated the State’s witness had “no reason to lie,” was “honest” and “told the truth”); State v. Arlington, 265 Mont. 127, 157-61, 875 P.2d 307, 325-28 (1994) (prosecutor stated “a number of times [that the defendant] had lied to the jury”); State v. Rogers, 257 Mont. 413, 417-20, 849 P.2d 1028, 1031-33 (1993) (prosecutor “called the defendant and his son liars during closing argument”). Hayden appears to be the only time we have granted a party’s request to invoke plain error review on the ground that a prosecutor made improper comments regarding witness credibility to which the defendant failed to object. See Longfellow, ¶ 24. Aker points to no other case where we invoked plain error review on these grounds. ¶31 Since there were no witnesses to the claimed encounter, the entire trial of this case was about who was telling the truth. As the prosecutor argued, the jury either could believe twelve-year-old C.Y. or could believe Aker and his three friends. Though the prosecutor used the word “lie,” defense counsel had used that same word in questioning Aker’s witnesses whether they had “cook[ed] up a story” to protect their friend and whether they would “lie for Jimmie [Aker] even though he’s [like] family.” The prosecutor tied his remarks to evidence presented at trial and to the court’s instruction 15 that, in determining witness credibility, the jury was to consider “every matter in evidence that tends to indicate whether a witness is worthy of belief.” Each party’s closing argument focused on why the jury should believe that party’s witnesses and not those of the other side. Without parsing each of the prosecutor’s comments, in the final analysis—having reviewed the trial transcript and considered the comments in the context of the entire argument and in light of the specific evidence presented by both sides—we are not convinced that failure to review Aker’s claims will result in a manifest miscarriage of justice, leave unsettled the fundamental fairness of his trial, or compromise the integrity of the judicial process. By failing contemporaneously to object to the prosecutor’s comments concerning witness credibility, Aker waived his right to do so on appeal. Rose, ¶ 106. ¶32 2. Whether Aker received ineffective assistance of counsel due to his counsel’s failure to object to hearsay testimony that bolstered the victim’s credibility. ¶33 Aker contends that his lead trial attorney, William Hooks, provided ineffective assistance of counsel when he failed to object at numerous points during the trial, including: (1) when Cari, Jennifer, and Sheriff Howard testified about statements C.Y. made describing the alleged abuse; (2) when Dr. Corbin testified about statements that C.Y. made to her describing the abuse; (3) when Dr. Corbin testified that the lack of any physical findings two months after the assault did not “have any reflection on the veracity of [C.Y.’s] report” because C.Y.’s injuries would have healed within a few days; and (4) when Rydeen testified that C.Y. had identified Aker as the perpetrator during 16 counseling sessions. Aker contends that “a failure to raise an objection, generally, has been deemed record based, and therefore appropriate for direct appeal.” The State counters that “there is a plausible explanation for defense counsel’s decision not to object.” The State argues that Hooks’s lack of objection reflected a broader trial strategy designed to allow Aker to expose “inconsistencies in C.Y.’s prior statements in order to highlight those inconsistencies to the jury during cross examination of the State’s adult witnesses” without directly cross-examining the young victim about discrepancies in her story. ¶34 The right to effective assistance of counsel is guaranteed by both the United States and Montana Constitutions. State v. Kougl, 2004 MT 243, ¶ 11, 323 Mont. 6, 97 P.3d 1095. Before reaching the merits of an ineffective assistance of counsel claim in a direct appeal, we “must first determine whether the allegations are properly before the Court on appeal or whether the claim should be raised in a petition for post-conviction relief” pursuant to § 46-21-101, MCA. State v. Upshaw, 2006 MT 341, ¶ 33, 335 Mont. 162, 153 P.3d 579. To make this determination, we ask “‘why’ counsel did or did not perform as alleged and then seek to answer the question by reference to the record.” Howard, ¶ 21 (quoting Kougl, ¶ 14). If the claim is based on matters outside of the record, “we will refuse to address the issue on appeal.” Kougl, ¶ 14. Only through a petition for postconviction relief may the record be developed to explain “why” counsel acted as alleged, which then allows a reviewing court to determine “whether counsel’s performance was ineffective or merely a tactical decision.” Kougl, ¶ 14. 17 ¶35 We have regarded an alleged failure to object to witness testimony as “record-based, and therefore appropriate for direct appeal.” State v. White, 2001 MT 149, ¶ 15, 306 Mont. 58, 30 P.3d 340. We also have recognized, however, that “decisions regarding the timing and number of objections lie within counsel’s tactical discretion, which would indicate that non-record based information explaining the tactic may be involved, and thus should be barred from review on direct appeal.” White, ¶ 16 (citing State v. Brown, 228 Mont. 209, 212, 741 P.2d 428, 430 (1987)). If the record does not “fully explain” why the attorney failed to object, the matter “is best suited for post- conviction proceedings.” Upshaw, ¶ 33; see also State v. Dyfort, 2000 MT 338, ¶¶ 9-12, 303 Mont. 153, 15 P.3d 464 (holding that, because the record was silent as to the attorney’s trial strategy regarding his failure to object, the defendant’s objections were not record based). ¶36 We agree with the State that it is plausible that Aker’s attorney made a tactical, strategic decision by not objecting to the testimony that Aker now contests on appeal. Hooks did object, successfully, to numerous questions during the State’s cross- examination of Aker’s witnesses. “Counsel’s use of objections lies within his or her discretion.” Riggs v. State, 2011 MT 239, ¶¶ 53-54, 362 Mont. 140, 264 P.3d 693 (rejecting ineffective assistance of counsel claim based on failure to object to child victim’s prior consistent statements in light of counsel’s postconviction testimony that he wanted to point out inconsistencies in the witnesses’ testimony). 18 ¶37 Hooks argued in closing that it was not unreasonable for the defense witnesses, all of whom shared the home where the assault allegedly occurred, to talk to each other about the fact that someone they considered family was accused of a crime “they know he could not have committed,” and that this did not mean the three had conjured a lie to protect their friend. His closing argument focused on all the mistakes C.Y. made in the stories she told others and on the inconsistencies in her various statements about the event. Hooks told the jury it could not ignore those inconsistencies in judging the credibility of her accusations. Without directly attacking the victim, he suggested the evidence showed other anxiety-producing factors in her life that could explain her accusations. While it was impossible to know the cause, Hooks argued, that wasn’t Aker’s burden to demonstrate, and the State had not proven guilt beyond a reasonable doubt. Because the trial record does not include Hooks’s explanation of his trial strategy concerning C.Y.’s prior consistent statements, this Court “will not speculate” on the claimed error. See Dyfort, ¶ 11. Consequently, we conclude that Aker’s allegations of ineffective assistance of counsel are not record based and we dismiss this portion of the appeal without prejudice. Dyfort, ¶ 12. ¶38 For the foregoing reasons, the judgment is affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT 19 /S/ JIM RICE /S/ BRIAN MORRIS Justice Laurie McKinnon, dissenting. ¶39 I respectfully dissent from the Court’s decision on both issues. ¶40 As to Issue 1, I believe prosecutor Thompson’s remarks about three of the defense witnesses (Amie Manahan, Angela Zinke, and Donald Zinke Jr.), and his assertions about the truthfulness of these witnesses’ testimony, constitute plain error requiring a new trial. ¶41 In his rebuttal closing argument, prosecutor Thompson chose not only to “disparage” (Thompson’s own word) Amie, Angela, and Donald, but also to tell the jury that he had personally determined that these witnesses were liars. Thompson asserted (more than once) that Amie, Angela, and Donald were from a “different social stratu[m].”1 He told the jury that these individuals belong to “that group of people where you’re unemployed and collecting unemployment or workers’ comp, and you play video games all day.” He criticized Amie’s, Angela’s, and Donald’s attire in court and the fact that one or more of them had been chewing gum while on the witness stand. He posited that these witnesses had “rall[ied]” around Aker because there is recognized “nobility” among these sorts of people to protect their friends, even if doing so “rob[s]” a crime victim of justice. Thompson concluded his remarks by telling the jurors: “And that’s 1 Thompson used the word “stratus.” However, I presume he meant “stratum,” given that “stratus” refers to a type of cloud formation. In this context, “stratum” means “a socioeconomic level of society comprising persons of the same or similar status esp. with regard to education or culture.” Merriam-Webster’s Collegiate Dictionary 1162 (10th ed., Merriam-Webster 1997). 20 why we [referring to the prosecution] can’t let it go, and that’s why we have to tell you that they [referring to Amie, Angela, and Donald] are not being truthful.” ¶42 Thompson’s disparagements of the defense witnesses and his assertions of personal knowledge about the truthfulness of their testimony were highly improper and unacceptable. Determinations of the credibility and weight of testimony are exclusively within the province of the jury, not the prosecutor. State v. Hayden, 2008 MT 274, ¶ 26, 345 Mont. 252, 190 P.3d 1091. A prosecutor “should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence.” ABA Stands. for Crim. Just.: Prosecution Function and Def. Function, Stand. 3-5.8(b), 106 (3d ed., Am. B. Assn. 1993); accord Hayden, ¶ 28. Thompson’s remarks violated this professional standard, intruded on the jury’s function, and prejudiced the constitutional right of the defendant to receive a fair and impartial trial. ¶43 Characterizing Amie, Angela, and Donald as lazy, ill-bred, and poorly clothed, telling jurors that these three individuals come from a “different social stratu[m],” and implying personal knowledge that these witnesses “are not being truthful” clearly exceeded the bounds of proper argument. This is precisely the sort of prosecutorial misconduct that we recently condemned in State v. Criswell, 2013 MT 177, ¶ 49, 370 Mont. 511, ___ P.3d ___. As Chief Justice McGrath observed in his concurring opinion, “[a] prosecutor is an officer of the court” who “must strive to promote justice and the rule of law.” Criswell, ¶ 57 (McGrath, C.J., concurring). “ ‘Unfortunately, some prosecutors have permitted an excess of zeal for conviction or a fancy for exaggerated rhetoric to 21 carry them beyond the permissible limits of argument.’ ” Criswell, ¶ 55 (McGrath, C.J., concurring) (quoting ABA Stands. for Crim. Just.: Prosecution Function and Def. Function, Stand. 3-5.8, Commentary, 107). In this regard, “[p]rosecutorial conduct in argument is a matter of special concern because of the possibility that the jury will give special weight to the prosecutor’s arguments, not only because of the prestige associated with the prosecutor’s office, but also because of the fact-finding facilities presumably available to the office.” ABA Stands. for Crim. Just.: Prosecution Function and Def. Function, Stand. 3-5.8, Commentary, 107. “Expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony and tend to exploit the influence of the prosecutor’s office and undermine the objective detachment that should separate a lawyer from the cause being argued.” ABA Stands. for Crim. Just.: Prosecution Function and Def. Function, Stand. 3-5.8, Commentary, 108. Such personal opinions have no place in a prosecutor’s closing argument. ¶44 We have explained that the applicability of plain error review must be decided on a “case-by-case” basis. State v. Sullivant, 2013 MT 200, ¶ 17, 371 Mont. 91, ___ P.3d ___; State v. Daniels, 2003 MT 247, ¶ 20, 317 Mont. 331, 77 P.3d 224; State v. Finley, 276 Mont. 126, 138, 915 P.2d 208, 215 (1996), overruled on other grounds, State v. Gallagher, 2001 MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 817. Here, however, the Court presents a string-cite of cases in which we have not exercised plain error review of a prosecutor’s comments. Opinion, ¶¶ 29-30. Far from a “case-by-case” approach, the Court asserts as a “general” rule that we do not review improper remarks by a prosecutor 22 under the plain error doctrine—even going so far as to fault Aker for not pointing to any case other than Hayden. Opinion, ¶ 30. In my view, however, the Court’s precedent shows something else: that nine times out ten, this Court is willing to overlook improper remarks by prosecutors. The message that this increasingly prevalent practice is sending, unfortunately, is that prosecutors in this State can be assured of having their convictions upheld despite comments made during trial which violate ethical rules and “run the risk of undermining the fundamental fairness of the judicial process.” State v. Lindberg, 2008 MT 389, ¶ 34, 347 Mont. 76, 196 P.3d 1252. Until there are actual consequences, such as reversal of the conviction, the problem is going to persist. ¶45 We must evaluate whether plain error is appropriate in light of the facts of the case before us. Thompson’s remarks during closing argument plainly exceeded the bounds of proper argument. In so doing, his conduct compromised the integrity of the judicial process and calls into question the fundamental fairness of Aker’s trial. Under such circumstances, it is this Court’s “paramount obligation” to review Aker’s prosecutorial misconduct claim and grant appropriate relief. Finley, 276 Mont. at 137, 915 P.2d at 215. In my view, the Court misapplies our plain error doctrine in reaching a contrary result. ¶46 Turning now to Issue 2, I conclude that defense counsel rendered constitutionally deficient representation by failing to object to the prosecution’s presentation (through multiple witnesses) of C.Y.’s hearsay statements about the offense. Given that the State’s case against Aker depended entirely on C.Y.’s credibility, I would hold that counsel’s deficient performance prejudiced the defense, thus requiring that Aker be granted a new 23 trial. While the Court theorizes that defense counsel made a “tactical, strategic decision” not to object to C.Y.’s hearsay statements, and then speculates further about what defense counsel’s supposed reasons might have been, Opinion, ¶¶ 36-37, it is my view that, regardless of why defense counsel remained silent, his doing so was objectively unreasonable, Whitlow v. State, 2008 MT 140, ¶¶ 18, 20, 343 Mont. 90, 183 P.3d 861. ¶47 “When claims of ineffective assistance are capable of resolution by examining the record alone, they are appropriate for consideration on direct appeal.” State v. Howard, 2011 MT 246, ¶ 21, 362 Mont. 196, 265 P.3d 606. Generally, we ask “why” counsel did or did not perform as alleged, and then seek to answer the question by reference to the record. State v. Kougl, 2004 MT 243, ¶ 14, 323 Mont. 6, 97 P.3d 1095. If the record on appeal explains “why,” we will then address the issue on appeal. If, as is usually the case, the claim is based on matters outside the record on appeal, we will refuse to address the issue on appeal and allow the defendant to file a postconviction proceeding where he/she can develop a record as to “why” counsel acted as alleged, thus allowing the court to determine whether counsel’s performance was ineffective or merely a tactical decision. Kougl, ¶ 14. ¶48 We have observed that it may not be necessary to ask “why” in the first instance, however. Kougl, ¶ 15. One such exception, although infrequently applied, is where there is “no plausible justification” for what defense counsel did. If it is apparent that there is no plausible justification for defense counsel’s conduct, then “[w]hether the reasons for defense counsel’s actions are found in the record or not is irrelevant. What matters is that there could not be any legitimate reason for what counsel did.” Kougl, ¶ 15 (emphasis 24 added). We applied this exception in Kougl and determined that there was no reason for trial counsel not to ask for a jury instruction to view the testimony of the defendant’s accomplices with suspicion. Kougl, ¶ 20. We noted that trial counsel had nothing to lose in asking for the instruction. Kougl, ¶ 21. ¶49 We also applied the exception in State v. Jefferson, 2003 MT 90, 315 Mont. 146, 69 P.3d 641, and found that there was “no plausible justification” for defense counsel’s remarks in opening and closing statements which undermined the ability of his client to obtain an acquittal. Jefferson, ¶ 50. Similarly, in State v. Rose, 1998 MT 342, 292 Mont. 350, 972 P.2d 321, we found that there was no plausible justification for defense counsel’s failure to ask that the jury be instructed to view an accomplice’s testimony with suspicion. Counsel had nothing to lose in asking for the instruction, and if counsel had asked for the instruction the trial court would have been obligated to grant the request. Rose, ¶ 18. ¶50 Allegations of child sexual abuse are very difficult cases to prosecute. Where the victim is young and unable to testify about a secretive encounter, there often is no other evidence for a prosecutor to rely on in proving the State’s case. Following many child sexual abuse investigations, a prosecutor unfortunately may be forced not to proceed because he is ethically bound to pursue only those prosecutions which he can, by applicable law and rules of evidence, prove. Many states, Montana included, have addressed these difficulties by allowing expert witnesses to testify directly about the credibility of a victim who testifies in a child sexual abuse trial, see State v. Scheffelman, 25 250 Mont. 334, 342, 820 P.2d 1293, 1298 (1991), and have enacted statutes to assist in the prosecution of child sexual abuse, see § 46-16-220, MCA (child hearsay exception in criminal proceedings). ¶51 The instant proceedings involved an allegation of sexual intercourse without consent perpetrated upon a 12-year-old victim. There were no eyewitnesses to the offense, and while she clearly was competent to testify, C.Y.’s credibility—like that of any child witness—was subject to attack. This was apparent from the beginning of trial: in voir dire, the prosecution suggested that “what the girl has to say when she comes into court and testifies is the most important piece of evidence in these types of cases,” and in his opening statement, defense counsel told the jury that, “[f]or whatever reason, [C.Y.] was mistaken.” ¶52 C.Y testified first and provided sufficient details to satisfy the elements of the offense. Aside from circumstantial evidence regarding C.Y.’s demeanor following the offense, described by persons who were not witnesses to the crime, the prosecution had very little more that it could present. The State offered no expert witnesses pursuant to the requirements of Scheffelman, 250 Mont. at 342, 820 P.2d at 1298, and the State’s case, therefore, necessarily would rise or fall on the credibility of C.Y. ¶53 In the context of a child sexual abuse prosecution, there can be “no plausible justification” for the admission of hearsay, without objection, that corroborates the child victim’s story. Nevertheless, defense counsel did not object to the admission of C.Y.’s hearsay statements through five different witnesses—two laypersons, a physician, a 26 counselor, and a law enforcement officer—which bolstered C.Y.’s testimony and corroborated the details of the assault. ¶54 Cari, a “second mom” to C.Y., was asked by the prosecution to give “a full account” of what C.Y. had told her. Cari testified: Q. What did she tell you? A. She was telling me that she was sitting on the couch watching t.v., and the kids were upstairs sleeping, and Jim walked in the house and he asked where everybody was at. And she said “well, the kids are upstairs sleeping” and Amie and Don were gone, she was babysitting. And so he didn’t say anything but he walked over and he kind of grabbed her by the shoulders, just, not forcefully but just kind of gently and laid her down on the couch. And when she I guess tried to struggle up once, he just said “It’s okay. This is normal.” And so she just laid there and he started unbuttoning her pants and pulling her down. . . . Q. What is her demeanor when she is telling you about this? A. She’s crying. Her whole body is still shaking. Almost like she’s just cold, she just, her whole body is just absolutely shaking. But I gave her her time, you know, I didn’t rush her. I told her, I said “you know, you just need to tell me what happened and make sure that you’re telling me the truth.” And so she started proceeding to tell me about how he took his hand and separated her legs and he was kind of holding her down with one hand and pulling her legs apart with the other. And he took his fingers, and I stopped her there and I asked her; “I know this sounds funny, but how many fingers”, and she said “two” that she could think of. She said he had very big hands. And he proceeded to rub her vagina and started going up inside of her and was, she was; he was going in and out of her with his fingers. ¶55 Cari provided significantly more detail of the incident than C.Y. had given during her testimony. The evidence was clearly hearsay. Yet, Aker’s attorney did not object to these statements corroborating and supplementing C.Y.’s own testimony. 27 ¶56 The prosecution next called Jennifer, C.Y.’s mother. Jennifer stated that Cari had told her C.Y. was sexually molested by Jim Aker. Specifically, Jennifer testified: “She told (inaudible – crying) Cari told me that my daughter had confided in her that she had been sexually molested.” When Jennifer asked who had molested C.Y., “[Cari] said that it was Jim Aker.” This evidence was clearly hearsay. Aker’s attorney did not object to these statements which corroborated and verified the occurrence of the assault and identified Jim Aker as the assailant. ¶57 The State called Dr. Michelle Corbin, who testified that she had conducted a sexual abuse examination of C.Y. Dr. Corbin stated that C.Y. “told me there was digital penetration,” “told me it lasted approximately 20 minutes,” “told me that she thought it happened at the end of November,” and “reported that there was some bleeding afterwards.” Dr. Corbin opined that the lack of physical findings, as in C.Y.’s case, did not reflect on the veracity or truth of C.Y’s report. No objection was made to any of this testimony. ¶58 The State called Kristi Rydeen, a licensed clinical professional counselor, who testified that C.Y. had told her about “the incident of abuse perpetrated by Jimmie Aker.” The prosecution asked Rydeen, “In your discussions with [C.Y.] did she reference or did you find any other trauma that would explain the symptoms you were observing and having been reported, other than the sexual abuse by [Aker]?” Rydeen replied, “No.” Defense counsel did not object to these statements identifying Aker as the assailant. 28 ¶59 The defense called Sheriff Scott Howard, who had been the lead investigator in the case. Defense counsel covered four areas of examination: C.Y.’s statements as to the date of the offense; C.Y.’s statements as to how she was initially accosted; the Territorial Days Celebration, held seven months after the offense, where C.Y. mistakenly thought she saw Aker; and Aker’s Miranda rights. In cross-examination, however, the prosecutor was allowed to describe C.Y.’s hearsay statements that Aker had put his fingers inside her, that it lasted 20 minutes, that Aker used his hand to hold her down, and that C.Y. bled as a result. Sheriff Howard confirmed the following details of the incident on which C.Y. had been consistent: Q. But [C.Y.] told you some other things during that [interview] as well, didn’t she? A. She did. Q. She told you she was watching a show, right? A. She did. Q. And she told you she was sitting on a couch when she was watching her show, right? A. She did. Q. And you indicated to Mr. Hooks that she also said “he told me to lay down,” right? A. That’s correct. Q. And that “everything was going to be okay”? A. That’s correct. Q. And that he put his hand on her chest, correct? A. Correct. Q. And he stuck his fingers inside of her? A. He did. Q. And pulled her pants down, right? A. That’s what she said, yes. Q. This is what [C.Y.] is telling you on January 14th, right? A. That’s correct. Q. Approximately 5-6 weeks after the alleged incident, right? A. That’d be fair, yes. Q. She said it lasted about 20 minutes? 29 A. She did. Q. And even at that time she said she had her eyes closed, right? A. Yes. Q. And then she told you afterwards she was bleeding? A. She did. Q. And she also said at that time that Mr. Aker told her that [she] and he would be in trouble if she told anybody? A. She did. Consequently, in addition to C.Y.’s testimony, the jury heard the core details of the incident on five more occasions through five different witnesses. All of these witnesses’ testimony about the incident came from C.Y.’s hearsay statements. None of the witnesses had personal knowledge of the facts of the incident. All of this testimony was admitted without objection from Aker’s counsel. ¶60 The State argues that Aker’s counsel failed to object to C.Y.’s prior consistent statements, presented through five other witnesses, in order to emphasize “inconsistent details” in C.Y.’s retelling of the incident. However, the admission of prior inconsistent statements is not contingent upon the admission of prior consistent statements. Prior inconsistent statements are admissible pursuant to M. R. Evid. 801(d)(1)(A). Prior consistent statements, on the other hand, are not admissible unless they are “offered to rebut an express or implied charge against the declarant of subsequent fabrication, improper influence or motive.” M. R. Evid. 801(d)(1)(B). We have held that the prior consistent statement rule applies only when the declarant’s in-court testimony has been impeached by another party’s allegations of subsequent fabrication, improper influence, or motive. State v. McOmber, 2007 MT 340, ¶ 15, 340 Mont. 262, 173 P.3d 690; see also State v. Champagne, 2013 MT 190, ¶ 39, 371 Mont. 35, 305 P.3d 61. Here, there 30 were no allegations of subsequent fabrication or that C.Y. had been improperly coached or influenced. Thus, it is not plausible to allow the admission of prior consistent statements, which corroborated C.Y.’s testimony, for the purpose of emphasizing prior inconsistent statements. Aker’s counsel could have had the inconsistent statements admitted under M. R. Evid. 801(d)(1)(A) and objected to C.Y.’s prior consistent statements under M. R. Evid. 801(d)(1)(B). ¶61 The Court’s reliance on Riggs v. State, 2011 MT 239, 362 Mont. 140, 264 P.3d 693—see Opinion, ¶ 36—is unpersuasive. There, the district court found in the postconviction proceeding that “the alleged prior consistent statements were not hearsay, were successfully objected to, or were inconsistent with other statements made by the girls.” Riggs, ¶ 52. Here, in contrast, C.Y.’s statements—as repeated at trial by Cari, Jennifer, Dr. Corbin, Rydeen, and Sheriff Howard—were plainly hearsay. They were not objected to at all. And they were not inconsistent with C.Y.’s testimony, but were in fact consistent with C.Y.’s description of the “core details” of the incident—something the prosecution hammered during its closing arguments. Riggs is simply not on point. ¶62 The notion that Aker’s counsel endeavored in his cross-examination of the State’s witnesses to “illuminate inconsistencies” in C.Y.’s statements, Opinion, ¶ 13, is speculation. It also misstates counsel’s argument. For example, regarding the date of the offense, C.Y. originally told Sheriff Howard that the incident occurred in the third or fourth week of November 2009, but further investigation revealed that the actual date was December 4, 2009. Aker’s counsel argued in closing that this was “not an inconsistency. 31 It’s a mistake.” He added: “We know that [C.Y.] was wrong, verifiably wrong in other regards.” Counsel later reemphasized that “we know that the child in question, [C.Y.], had made mistakes.” The point of this argument was not that C.Y. gave inconsistent stories to different people; counsel’s argument, more precisely, was that C.Y. was a child who tended to make “mistakes.” He used this term continually throughout his closing. Clearly, however, it was not necessary for counsel to allow repeated recitations of C.Y.’s prior consistent statements in order to show that C.Y. was a child who makes mistakes. ¶63 Based upon the foregoing, I believe it is not necessary to ask “why” counsel failed to object to the admission of C.Y.’s hearsay statements. In my view, there is no plausible justification for failing to object and we thus may rule on the merits of Aker’s ineffective assistance of counsel claim on direct appeal. Further, having determined that Aker’s counsel could have no plausible justification for failing to object, counsel’s performance was deficient and the first prong of the test is satisfied. See Riggs, ¶ 9 (to prevail on an ineffective assistance of counsel claim, the defendant must first demonstrate “that counsel’s performance fell below an objective standard of reasonableness”). ¶64 To establish prejudice under the second prong of the test, Aker must show “that a reasonable probability exists that, but for counsel’s errors, the result of the proceeding would have been different.” Riggs, ¶ 9. “A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding.” Riggs, ¶ 12. Here, the cumulative effect of counsel’s errors prejudiced Aker’s right to a fair trial. State v. Ferguson, 2005 MT 343, ¶ 126, 330 Mont. 103, 126 P.3d 463. It is reasonably 32 probable that the outcome of the proceeding would have been different had counsel objected to the introduction of all of C.Y.’s prior consistent statements. Indeed, this is clear from the prosecution’s heavy emphasis, during closing argument, on the fact that the core, core details about Mr. Aker coming into that home when the kids were sleeping, walking across that room, coming up to her while Hannah Montana was on, sexually assaulting her, pushing her down, placing his fingers in her. Those core details have never changed. Hannah Montana was always on tv every time she told the story [to the various witnesses who then repeated her statements at trial]. Permitting the jury to hear improper hearsay testimony from five different witnesses which corroborated the victim’s testimony and the specific details of the sexual assault prejudiced Aker’s right to a fair trial. ¶65 For the foregoing reasons, I would reverse Aker’s conviction based upon prosecutorial misconduct and ineffective assistance of counsel. I respectfully dissent from the Court’s contrary decision. /S/ LAURIE McKINNON Justice Patricia O. Cotter joins the Dissent of Justice Laurie McKinnon. /S/ PATRICIA COTTER | September 5, 2013 |
ca7f508d-5016-473f-a01e-c59c0e471bbf | City of Missoula v. Fogarty | 2013 MT 254 | DA 12-0300 | Montana | Montana Supreme Court | DA 12-0300 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 254 CITY OF MISSOULA, Plaintiff and Appellee, v. MICHELLE RENEE FOGARTY, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause Nos. DC 12-25, DC 12-26, DC 12-28, DC 12-29 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Johnna K. Baffa, Van de Wetering Law Offices, P.C., Missoula, MT For Appellee: Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant Attorney General, Helena, Montana Jim Nugent, Missoula City Attorney; Tiffany Heaton, Deputy City Attorney, Missoula, Montana Submitted on Briefs: April 24, 2013 Decided: September 5, 2013 Filed: __________________________________________ Clerk September 5 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 This appeal arises out of four misdemeanor criminal cases filed against Michelle Renee Fogarty in the Missoula Municipal Court. The cases were heard in bench trials, all held on the same day, at which Fogarty represented herself. Fogarty appealed her convictions to the Fourth Judicial District Court, Missoula County, on grounds that she had been denied her constitutional right to counsel. The District Court generally affirmed the convictions, and Fogarty now appeals to this Court. We affirm. BACKGROUND ¶2 The first of the four cases here on appeal was an October 2010 charge of no proof of motor vehicle insurance. An attorney from the Missoula Office of Public Defender (OPD) was appointed to represent Fogarty. Although she was represented by counsel, Fogarty filed several rambling pro se documents in which she, among other things, complained that her counsel was “accusatory and bullying” and was not properly representing her. At a March 9, 2011, status hearing, Fogarty told the court she had defended herself before, in a proceeding in Minnesota, she had done a better job than the public defender, and she would be proceeding pro se. Following a dialogue about Fogarty’s competence, Fogarty told the court she would not cooperate with a mental health evaluation to determine if she was competent to proceed to trial. “Being not trained as an attorney does not make you . . . have mental disease.” The court appointed Robin Ammons as standby counsel to assist her, but Fogarty declared she would not be asking Ammons for any help. Later, another contract public defender (Sandefur) was appointed to represent Fogarty, but he subsequently withdrew on 3 grounds of a breakdown in the attorney-client relationship, and yet another contract public defender took over. That attorney was allowed to withdraw upon his motion, filed at Fogarty’s request. ¶3 In the meantime, in November of 2010, Fogarty was charged with resisting arrest and violating a privacy in communication statute by electronically using profane/obscene language with the purpose to harass. OPD filed a notice of appearance, followed by notice of appearance by conflict counsel contracting with OPD. Again, although Fogarty was represented by counsel, she filed voluminous rambling handwritten documents, including complaints that her counsel was threatening her, and a request to meet with the judge “regarding some appropriate legal representation.” ¶4 Also in the meantime, Fogarty was charged with criminal contempt and disorderly conduct during a March 9, 2011, court appearance. A regional deputy public defender entered notices of appearances of two private attorneys, in succession, who contracted with OPD to represent Fogarty. The first of those two contract attorneys advised the court he had concerns about Fogarty’s ability to assist in her defense and was in the process of investigating this issue. He later was allowed to withdraw on grounds of a breakdown in the attorney-client relationship. The next contract attorney (Foley) moved to withdraw on grounds that Fogarty had created a conflict of interest by making allegations that Foley and her law firm had acted unethically. Attorney Birdsong entered an appearance but later moved to withdraw on grounds that Fogarty had told him she no longer wanted him to represent her. ¶5 The fourth group of charges involved in this appeal arose in August of 2011, when 4 Fogarty was charged with disorderly conduct and resisting arrest in a Missoula restaurant. In that case, the court granted two attorneys’ motions to be allowed to withdraw—the first, at Fogarty’s request, and the second, due to conflicts of interest that arose after Fogarty made complaints about the attorney. At that point, the court ordered that any further filings should be sent to Fogarty personally. ¶6 On November 3, 2011, the Missoula regional OPD office filed notice that Lisa Kauffman, a contract attorney with OPD, would be appearing for Fogarty in the first three of the above four cases. Then, on November 7, 2011, Fogarty appeared in the Missoula Municipal Court for a preliminary hearing on all four cases, held before retired District Judge Harkin. Kauffman did not appear. The court asked Fogarty if she had a new attorney, and Fogarty replied she felt she should represent herself at her trials, all four of which had been scheduled for December 22, 2011. At that point, the following exchange occurred: Judge: You want to represent yourself? Fogarty: Yeah. Judge: Okay, that’s fine. You have the right to do that and so all we need now is for you to sign this little form here. And this is the form that will tell you what day you should be getting your— Fogarty: Here? Judge: Yeah. Here’s your copy. Fogarty: Okay. Judge: And that’ll be—the day you should get your notice of the trial is December 16. Judge Harkin then went on to make sure Fogarty had information on all the evidence the 5 State would be using against her. Two days later, Kauffman moved to withdraw in the three cases in which her appearances had been entered, on grounds that OPD had instructed her to do so and that she had received notice from the Clerk of the Municipal Court that Fogarty had indicated she wanted to proceed pro se. ¶7 On December 22, 2011, just before the first of the four bench trials began, the Municipal Court judge reviewed with Fogarty the possible penalties for the offenses charged. The court then asked Fogarty whether she had previous experience in trials. Fogarty responded at some length on that and several related subjects, including describing the Minnesota case in which she stated she had been forced to plead guilty. She also complained that her right to speedy trial has been violated in the matters pending before the Municipal Court. Fogarty stated, “I feel I should have an attorney that will effectively represent me, but that has not happened.” The court responded: [O]ne of the things is you can’t keep firing your lawyers. That’s the problem because that’s pretty much a rejection of being represented by an attorney. . . . What I’m only inquiring about is I want to make sure that you’re capable of representing yourself. You seem to be very capable of that. You know the penalties involved here. You’ve had experience with the legal system. You are an articulate, thinking person and I think you can represent yourself. Fogarty then replied that she did not want to “go to jail for a year based on all these cops coming around the courtroom here and nobody else present. I’m a little concerned.” The judge advised her that the officers in the courtroom were witnesses for the trials. After Fogarty responded with complaints about corruption of police officers, the court stated, “I determine that you are able to represent yourself today.”1 1 Despite the trial court’s specific determination that Fogarty was capable of representing herself, 6 ¶8 Fogarty pled guilty to driving without insurance and the court fined her $250 on that charge. Following the bench trials, the court found Fogarty guilty on all of the remaining charges. It sentenced her to 10 days in jail for disorderly conduct; 180 days in jail, all suspended, for criminal contempt; 10 days in jail for disorderly conduct and 180 days in jail for resisting arrest, with 180 days suspended; 180 days in jail, suspended with conditions, for violation of privacy in communications; and 180 days in jail, suspended, for resisting arrest. ¶9 On appeal, the Fourth Judicial District Court stated “It is clear from the record that [Fogarty] is a disturbed person who has a great deal of difficulty dealing with other people.” The court set forth the histories of the various cases before it on appeal. Relying on case law regarding defendants who had not unequivocally requested to proceed pro se or waived their right to counsel, but who were found to have effectively waived their right to counsel by their dilatory conduct hindering the efficient administration of justice, the court determined the Municipal Court had made the appropriate balancing decision between Fogarty’s right to counsel and her “refus[al] to work with everyone appointed to represent [her].” The court generally affirmed the judgments entered in the Municipal Court. However, it set aside and dismissed Fogarty’s conviction of disorderly conduct during her March 9, 2011, court appearance, on double jeopardy grounds. the dissent asserts that her “mental health issues” or her “compromised mental health” were bases enough to require reversal of the courts’ decisions below. Nothing in the record substantiates that Fogarty was unable to proceed without counsel. Neither party nor any of the prior counsel moved the court for an expert mental evaluation and, as noted, Fogarty specifically rejected the need for an evaluation. As this Court has previously held, even when facing involuntary mental commitment, individuals can nevertheless be fully competent to waive basic fundamental rights. In re R.W.K., 2013 MT 54, 369 Mont. 193, 297 P.3d 318; In re P.A.C., 2013 MT 84, 369 Mont. 407, 298 P.3d 1166. If anything, the record shows that Fogarty was capable of deciding to represent herself. 7 STANDARDS OF REVIEW ¶10 Where there is a question of whether a defendant has waived her right to counsel, we will not disturb the district court’s findings “as long as substantial credible evidence exists to support that decision.” State v. Clary, 2012 MT 26, ¶ 12, 364 Mont. 53, 270 P.3d 88. We defer to a trial court’s consideration of a request to appoint new counsel “and the court’s determination will be sustained absent an abuse of discretion.” State v. Craig, 274 Mont. 140, 149, 906 P.2d 683, 688 (1995). DISCUSSION ¶11 The Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution guarantee persons charged with criminal offenses the right to the assistance of counsel. Since Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963), an indigent defendant in a criminal matter is entitled to have an attorney appointed at public expense. Craig, 274 Mont. at 148, 906 P.2d at 688. ¶12 A defendant may, however, waive the right to counsel, as long as the court determines the waiver is voluntary, knowing, intelligent, and unequivocal. Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975); § 46-8-102, MCA. No particular sort of questioning or inquiry is required before a trial court allows a defendant to represent himself or herself, so long as the court is satisfied that the defendant is “aware of the dangers and disadvantages of self-representation, so that . . . ‘he knows what he is doing and his choice is made with eyes open.’” State v. Langford, 267 Mont. 95, 99, 882 P.2d 490, 492 (1994), quoting Faretta, 422 U.S. at 835, 95 S. Ct. at 2541. “In applying the Faretta standard, we have repeatedly held that a trial court is not required to advise a defendant specifically of the 8 dangers and disadvantages of self-representation as long as the court makes inquiry of the defendant to the extent it deems necessary to ensure that the defendant’s waiver of counsel is voluntary, knowing, and intelligent.” State v. Insua, 2004 MT 14, ¶ 19, 319 Mont. 254, 84 P.3d 11. ¶13 Further, a defendant’s waiver of the right to counsel must be evaluated in light of the record as a whole. United States v. Gerritsen, 571 F.3d 1001, 1008 (9th Cir. 2009). The reviewing court may look to the circumstances of prior proceedings in the case to determine whether the defendant’s waiver was knowing and voluntary. United States v. Erskine, 355 F.3d 1161, 1170 n.11 (9th Cir. 2004). “A properly-conducted Faretta colloquy need not be renewed in subsequent proceedings unless intervening events substantially change the circumstances existing at the time of the initial colloquy.” U.S. v. Hantzis, 625 F.3d 575, 580-81 (9th Cir. 2010). ¶14 In addition, a defendant who does not unequivocally request to proceed pro se and does not expressly waive her right to counsel may effectively do so by failing to cooperate with a court-appointed attorney. Craig, 274 Mont. at 148, 906 P.2d at 688; Hantzis, 625 F.3d at 583. And “[b]are unsupported allegations are insufficient to establish the total lack of communication required to warrant appointment of new counsel.” Robinson v. State, 2010 MT 108, ¶ 22, 356 Mont. 282, 232 P.3d 403. ¶15 In the present case, Fogarty contends the Municipal Court clearly abused its discretion when it made no inquiry at the November 7 hearing about the absence of her newly- appointed attorney, Lisa Kauffman. She further contends that, because the court did not enter a written order allowing Kauffman to withdraw, Kauffman was her attorney of record 9 on December 22, 2011. ¶16 At the outset of the November 7 hearing, Fogarty told the court she wished to proceed pro se. As a result, and given the histories of these cases, any procedural errors by the court in beginning that hearing without Kauffman’s presence and in failing to later enter a written order granting Kauffman’s motion to be allowed to withdraw did not result in any deprivations of Fogarty’s rights. ¶17 Fogarty argues the Municipal Court clearly abused its discretion in finding her capable of representing herself at trial. We disagree. Fogarty had refused to pursue any inquiry into a possible claim that she was mentally incompetent for purposes of defending the charges against her. She told the court she had represented herself in criminal proceedings before, in Minnesota. In discussing the current charges against her, while she tended to ramble into other matters, she also was able to discuss the particulars of the current charges, and certainly seemed to comprehend the possible penalties she faced if convicted. A court cannot deny a request to represent oneself on the basis that the defendant would not do so adequately. State v. Swan, 2000 MT 246, ¶ 18, 301 Mont. 439, 10 P.3d 102. ¶18 Fogarty cites State v. Hass, 2011 MT 296, ¶ 21, 363 Mont. 8, 265 P.3d 1221, for the proposition that it is a violation of a criminal defendant’s constitutional right to counsel for a court to allow the defense attorney to withdraw, without notice to the defendant, and then to proceed to trial without first obtaining from the defendant a waiver of the right to counsel. That is not the sequence of events that occurred in the present case, however. ¶19 The facts of this case are more similar to those in Hantzis. In that case, Hantzis was charged with possession of methamphetamine with intent to distribute. He went back and 10 forth on whether he wanted to be represented by counsel or to proceed pro se, and he personally filed many motions even when he was represented by counsel. The trial court eventually granted Hantzis’s motion to proceed pro se. On appeal, Hantzis argued he had been denied his right to counsel on grounds that the court’s Faretta colloquy with him had been inadequate. The appeals court disagreed, stating that waiver of the right to counsel must be evaluated in light of the record as a whole, and the court may look to the circumstances of prior proceedings in the case to determine whether the defendant’s waiver was knowing and voluntary. Hantzis, 625 F.3d at 580. ¶20 The dissent’s reliance on § 37-61-403, MCA, to support the argument that proper change-of-attorney procedures were not followed here is misplaced. That statute allows for a change of attorney “upon order of the court, upon application of either client or attorney.” That is essentially the procedure that was followed here. At the November 7, 2011, hearing, after Fogarty informed the court that she wanted to represent herself, the court indicated its assent, saying “that is fine.” The judge then had Fogarty sign the preliminary hearing/pre- trial order form, gave her a copy, and advised that she should receive her notice of trial by December 16. Two days later, Fogarty’s latest appointed attorney filed a formal motion to withdraw, indicating she had received a notice from the clerk of court that Fogarty was proceeding pro se. ¶21 Moreover, the dissent’s comments in regard to the individual OPD counsel assigned to Fogarty’s cases assume that courts assign the individual attorneys, rather than OPD as an entity, to represent indigent criminal defendants. That is not the case. As a rule, OPD, not the court, assigns the individual counsel to handle a case. See § 47-1-215(2)(b), MCA. The 11 necessity of this for managing OPD’s caseloads, particularly in busy courts of limited jurisdiction, should be obvious. It is clear from the record in this case that the Municipal Court intended OPD to be counsel of record. ¶22 Under the circumstances presented here, we conclude it was within the Municipal Court’s discretionary authority to accept Fogarty’s decisions to represent herself in these matters. Substantial credible evidence from the colloquies at the proceedings in which the court determined Fogarty could represent herself, and also from the prior filings and proceedings in the four actions here on appeal, supports the Municipal Court’s decision to allow Fogarty to represent herself. Fogarty had gone back and forth about whether she wished to represent herself or to rely on counsel to represent her. At hearings held on March 9, 2011, November 7, 2011, and December 22, 2011, she asked to be allowed to do so. Fogarty had gone through several lawyers in each of the cases filed against her as a result of communication problems between herself and the attorneys, or counsels’ conclusions that they must withdraw due to ethical claims Fogarty had made against them. Just before her trials began on December 22, 2011, Fogarty did not dispute the City’s statement that she had fired Kauffman, nor did she disagree with the court’s statement that she had fired all of her attorneys. To the extent that Fogarty did not expressly and unequivocally waive her right to counsel because her decision was inconsistent over time, she effectively did so by failing to cooperate with a series of court-appointed attorneys. ¶23 The Opinion of the District Court is affirmed. /S/ MIKE McGRATH 12 We concur: /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ JIM RICE Justice Laurie McKinnon, dissenting. ¶24 I dissent from the decision of the Court finding that Fogarty, a mentally ill defendant, waived her right to counsel because she failed to cooperate with “a series,” Opinion, ¶ 22, of court-appointed attorneys. The record does not support such a conclusion and the appropriate inquiry to establish a knowing and intelligent waiver by Fogarty was never conducted by the Municipal Court. ¶25 Fogarty undisputedly had mental health issues which were repeatedly raised by her court-appointed counsel and the Municipal Court. The District Court noted at the onset of its review that “[i]t is clear from the record that the Defendant is a disturbed person who has a great deal of difficulty dealing with other people.” A review of the court records and transcript of trial confirms this. There is a voluminous amount of correspondence and assertions from Fogarty to the court describing judges, attorneys, and law enforcement as “murderers,” “stalkers,” “child molesters,” and the like. Among Fogarty’s disjointed and rambling communications, she references various other criminal actions allegedly committed against her in other states, as well as abuse of her dogs in order to get her to plead guilty. Her first attorney of record, Russell LaFontaine, raised Fogarty’s fitness to proceed in the 13 initial omnibus hearing memorandum filed on December 29, 2010. Fogarty’s mental health was additionally questioned by the Municipal Court Judge who attempted to get Fogarty to agree to a mental health evaluation. Although there appears to be no action taken by the court, counsel or otherwise which affirmatively addresses Fogarty’s mental health, indications of Fogarty’s compromised mental health are relevant in determining whether the Municipal Court was correct in finding that Fogarty validly waived her right to counsel and could represent herself at trial. ¶26 I agree that a defendant’s waiver of the right to counsel must be evaluated in light of the whole record.1 United States v. Gerritsen, 571 F.3d 1001, 1008 (9th Cir. 2009). Therefore, to the extent the record permits, the two hearings where there was an attempt by the Municipal Court to address Fogarty’s right to counsel will be set forth in their entirety. ¶27 The court conducted a preliminary hearing on November 7, 2011, where Fogarty appeared without counsel. The following inquiry was made by the court: Clerk: She has a new attorney, Judge. I don’t know where the attorney is. Judge: Do you have a new attorney? 1 The Court suggests that because no motion was filed for an expert mental evaluation, that Fogarty’s mental health was not an issue in these proceedings. This is contrary, however, to the requirement that the record be considered in its totality. There is little dispute, as found by the District Court, that Fogarty is a “disturbed person” who has “great difficulty getting along with other people.” Additionally, the Municipal Court Judge and Fogarty’s first counsel questioned her mental capacity on the record and in pleadings. The pleadings, substitutions, and correspondence from Fogarty clearly suggest Fogarty’s mental health was compromised. The totality of the record must be reviewed to determine whether a waiver of a fundamental right was valid. Hence the issue is not whether Fogarty could legally waive her right to counsel, a matter not in dispute, In re R.W.K., 2013 MT 54, 369 Mont. 193, 297 P.3d 318, but whether, considering the totality of the record, Fogarty’s waiver was knowingly, voluntarily, and intelligently made following an inappropriate inquiry by the court. 14 Fogarty: You know, I uh don’t and I uh have not been in contact with the public defender’s office. I’ve received nothing in the mail. And I just, you know, I’ve done jail time for most of what I’ve been ticketed for; I just feel like I should represent myself. Judge: You want to represent yourself? Fogarty: Yeah. Judge: Okay, that’s fine. You have the right to do that and so all we need now is for you to sign this little form here. And this is the form that will tell you what day you should be getting your . . . . Fogarty: Here? Judge: Yeah. Here’s your copy. Fogarty: Okay. Judge: And that’ll be – the day you should get your notice of the trial is December 16. If you don’t get it by December 23, call us. And he’ll have an omnibus form for you to fill out and sign, and then we’ll be ready for your trial when it’s set. . . . Fogarty: I appreciate the fact the public defender’s office didn’t even attempt to come and pretend to represent me today. ¶28 The Municipal Court subsequently scheduled Fogarty’s trials for December 22, 2011. On December 22, 2011, the Municipal Court proceeded with Fogarty’s trials in the absence of court-appointed counsel.2 The court explained which of Fogarty’s cases were on the docket, and Fogarty was provided with a handout designed to assist defendants proceeding without counsel. Fogarty was advised of the maximum penalties for her alleged crimes and she was asked whether she “had experience in trials before since [she was] representing 2 Although Fogarty’s most recent court-appointed counsel had filed a motion to withdraw, the record does not reflect that a court order was issued allowing counsel to withdraw from Fogarty’s cases. On December 22, 2011, the Municipal Court inquired of the City Attorney whether they could locate Fogarty rather than proceed in absentia as the State requested. Within a few minutes, Fogarty was located by law enforcement and brought to the court. Fogarty claimed she had never received notice that her trials were scheduled for that day. Notably, this appears plausible since the trials were held the day before Fogarty had been instructed to call to inquire about her scheduled trial date. Thus, Fogarty was not prepared for the trials on December 22, 2011. 15 [her]self.” Fogarty responded that she was only representing herself because of the corruption of the judges, attorneys and law enforcement. She rambled on about threats and harassment and being intimidated while in her jail cell with comments about her dogs. The Municipal Court determined “[w]hat this tells me is that you do have some experience in the legal system – some of it good, and some of it not so good . . . . You seem to be able to handle yourself quite well . . . .” Fogarty responded that “I feel I should have an attorney that will effectively represent me, but that has not happened.” The Municipal Court indicated that Fogarty’s “firing of [her] attorneys is a rejection of representation,” and found that Fogarty was able to proceed without counsel at her trial. The court stated: One of the things is you can’t keep firing your lawyers. That’s the problem because that’s pretty much a rejection of being represented by an attorney. . . . What I’m only inquiring about is I want to make sure that you’re capable of representing yourself. You seem to be very capable of that. You know the penalties involved here. You’ve had experience with the legal system. You are an articulate, thinking person and I think you can represent yourself. These statements, together with those made during the hearing on November 7, 2012, comprise the record relating to Fogarty’s waiver of her right to counsel. ¶29 Courts will indulge every reasonable presumption against the waiver of the fundamental right to assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938); see also Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 1242 (1977). In Johnson, the Supreme Court explained: [W]e do not presume acquiescence in the loss of fundamental rights. A waiver is ordinarily an intentional relinquishment or abandonment of a 16 known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. Johnson, 304 U.S. at 464, 58 S. Ct. at 1023 (internal quotation marks and footnote omitted). “The record must show . . . that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver.” Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct. 884, 890 (1962). ¶30 The Supreme Court set forth the criteria for a valid waiver of the right to counsel in Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975). Faretta does not mandate that a specific colloquy or questioning occur—only that the trial court satisfy itself that the defendant is aware of the dangers and disadvantages of self-representation, that the defendant knows what he or she is doing, and that the choice to proceed without counsel is made with open eyes. Faretta, 422 U.S. at 835, 95 S. Ct. at 2541; see also State v. Colt, 255 Mont. 399, 403, 843 P.2d 747, 749-50 (1992). ¶31 After the Supreme Court’s decision in Faretta, this Court adopted the requirement that “the request to represent oneself must be unequivocal.” State v. Langford, 267 Mont. 95, 99, 882 P.2d 490, 492 (1994). We noted in Langford: “If the court appoints counsel, the defendant could, on appeal, rely on his intermittent requests for self-representation in arguing that he had been denied the right to represent himself; if the court permits self-representation the defendant could claim he had been denied the right to counsel. . . . The requirement of unequivocality resolves this dilemma by forcing the defendant to make an explicit choice. If he equivocates, he is presumed to have requested the assistance of counsel.” 17 Langford, 267 Mont. at 100, 882 P.2d at 493 (emphasis added) (quoting Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989). In addition, the trial court must ensure the defendant is competent to abandon his right to assistance of counsel and proceed pro se. Colt, 255 Mont. at 403, 843 P.2d at 749-50. ¶32 The record in the instant case indicates that Fogarty was very dissatisfied with her counsel and, in fact, attributed assaultive and abusive behavior to many of them. The record also reveals Fogarty had difficulty getting along with her appointed counsel and that several attorneys cited a breakdown in the attorney-client relationship as a reason necessitating their withdrawal from representation. Without question, Fogarty appears to have been a challenging client to represent. Nevertheless, it is the obligation of counsel and the court to ensure that defendants, despite challenges to representation presented by their mental health, receive their constitutional right to the effective assistance of counsel. ¶33 What is clear from the questioning of Fogarty at her trial, and at the several hearings conducted prior to trial, is that she wanted to be represented by an attorney, but believed the attorneys appointed had been ineffective. Fogarty remained steadfast in her position that none of the attorneys appointed thus far were competent; that she desired to have counsel represent her; and that she accepted she would have to represent herself if she were only appointed counsel that was ineffective. Fogarty appreciated that she could potentially receive a year incarceration and, in response to questioning from the court, stated that “I feel I should have an attorney that will effectively represent me . . . .” In light of Fogarty’s request for counsel at the start of her December 22, 2011 trial, and upon consideration of her statements regarding counsel made at other times during these proceedings, I conclude that 18 Fogarty did not make an unequivocal request to represent herself sufficient to satisfy Langford. As we stated in Langford, it is presumed that a defendant who equivocates has requested the assistance of counsel. Langford, 267 Mont. at 102, 882 P.2d at 494. Fogarty’s objections were not that she wanted to represent herself, but rather that she wanted effective counsel to represent her. ¶34 Even were we to assume that Fogarty made an unequivocal request to represent herself, there does not exist in the record before us substantial and credible evidence to support the Municipal Court’s determination that Fogarty acted voluntarily, knowingly, and intelligently in waiving her right to counsel. While this Court does not require that a trial court adhere to a rigid set of requirements in ascertaining a valid waiver of the right to counsel, there must exist substantial and credible evidence ensuring that “the defendant is competent to abandon his right” and proceed pro se. Colt, 255 Mont. at 403, 843 P.2d at 749. Competence does not necessarily mean that “he have the skill and experience of a lawyer,” but it does mean that the defendant’s relinquishment of his right to counsel “must not only be voluntary, but also made knowingly and intelligently.” Colt, 255 Mont at 403- 04, 843 P.2d at 750 (citing State v. Plouffe, 198 Mont. 379, 385, 646 P.2d 533, 536 (1982)). ¶35 Further, we held in State v. Hartsoe, 2011 MT 188, 361 Mont. 305, 258 P.3d 428, that an accused “must ‘be made aware of the dangers and disadvantages of self representation[,] [so that the record will establish that he knows what he is doing and his choice is made with eyes open].’ ” Hartsoe, ¶ 39 (brackets in original) (quoting Colt, 255 Mont at 407, 843 P.2d at 751). We have noted that 19 [t]he test focuses, not on what a defendant was told, but on a determination that a defendant understands his decision and is proceeding voluntarily. This is a stricter and higher standard, thus satisfying any increased measure of protection provided under the Montana Constitution’s guarantees of the right to counsel and to a fair trial. State v. Insua, 2004 MT 14, ¶ 20, 319 Mont. 254, 84 P.3d 11. ¶36 In light of this precedent, I do not believe the record contains substantial evidence to support a determination that Fogarty validly exercised her right to proceed without counsel. While Fogarty was advised of the maximum penalties, she was not “made aware of the dangers and disadvantages of self-representation.” Faretta, 422 U.S. at 835, 95 S. Ct. at 2541. The record does not support a determination that she was competent to exercise a valid waiver or that the waiver was voluntarily and intelligently made. ¶37 The State argues, and the Municipal Court and District Court found, that Fogarty’s behavior in “firing” her counsel was “to obstruct and delay the administration of justice in her case” and waive her Sixth Amendment right to counsel. The District Court, citing as authority for its position State v. Craig, 274 Mont. 140, 906 P.2d 683 (1995), and United States v. Kelm, 827 F.2d 1319 (9th Cir. 1987), overruled in part by United States v. Heredia, 483 F.3d 913 (9th Cir. 2007), determined that “[d]efendants cannot be allowed to bring the justice system to a halt by repeatedly demanding counsel but then refusing to work with everyone appointed to represent them.” It is well-established that the right to assistance of counsel does not grant to defendants the right to counsel of their choice. Craig, 274 Mont. at 149, 960 P.2d at 688. ¶38 In Craig we determined: 20 In refusing to cooperate with his appointed counsel and, at the same time insisting that he was not asking to proceed pro se, Craig was attempting to force the appointment of new counsel. This Court cannot countenance such dilatory and manipulative tactics at the expense of the efficient administration of justice. Craig, 274 Mont. at 153, 906 P.2d at 691. We thus stated in Craig that “ ‘at some point a criminal defendant can be deemed to have waived to a certain extent his constitutional right to effective assistance by virtue of his unreasonable refusal to communicate with his attorney,’ ” and that a “ ‘persistent unreasonable demand for dismissal of counsel [is] the functional equivalent of a knowing and voluntary waiver of counsel.’ ” Craig, 274 Mont. at 152, 906 P.2d at 690 (quoting Thomas v. Wainwright, 767 F.2d 738, 743 (11th Cir. 1985). Thus, we affirmed the district court’s conclusion that Craig was not denied the effective assistance of counsel and that any compromise in counsel’s effectiveness was directly attributable to Craig’s lack of cooperation. Craig, 274 Mont. at 155, 906 P.2d at 692. Significantly, counsel in Craig was present throughout the trial and provided assistance. At issue in Craig was a motion to substitute counsel made by the defendant. In the present matter, counsel made the requests for substitution, not Fogarty. ¶39 Unlike Craig, the Municipal Court in this case effectively terminated, albeit without an order, any appointment of counsel on Fogarty’s behalf by requiring that Fogarty proceed on her own. Up to the time of trial, the court files reflect that Fogarty had counsel appointed to represent her. Absent an unequivocal assertion by Fogarty that she desired to proceed without counsel, any inquiry by the court should have taken place with counsel present. In the presence of Fogarty’s counsel, the court could have inquired and determined whether to (1) terminate appointment of counsel after a valid waiver by Fogarty pursuant to Faretta; (2) 21 determine that Fogarty, although not requesting to proceed without counsel has, through her behavior, waived her right to counsel; or (3) continue Fogarty’s representation by court- appointed counsel. If Fogarty continued to insist counsel was ineffective, then the court could have assessed the validity of Fogarty’s assertions. See State v. Dethman, 2010 MT 268, 358 Mont. 384, 245 P.3d 30 (wherein we held that when a defendant complains about the effective assistance of counsel, a district court must make an “adequate initial inquiry” as to whether defendant’s allegations are “seemingly substantial.”). ¶40 This Court states that State v. Hass, 2011 MT 296, 363 Mont. 8, 265 P.3d 1221, does not have the same “sequence of events that occurred in the present case.” Opinion, ¶ 18. The Court does not explain how the “sequence” in each case materially differs. To the contrary, we held in Hass that “the Justice Court’s actions of permitting Hass’s counsel to withdraw, thereby leaving Hass without legal representation, and then proceeding to try, convict, and sentence Hass to jail, without first obtaining from him a voluntary, knowing, and intelligent waiver of his right to counsel, violated Article II, Section 24.” Hass, ¶ 21. This is what happened in Fogarty’s case. The cases may be distinguished, however, upon each defendant’s mental health—Fogarty showed significant signs of mental illness observed by her counsel and the court. ¶41 Lastly, this Court finds support in the Ninth Circuit decision of United States v. Hantzis, 625 F.3d 575 (9th Cir. 2010). Opinion, ¶ 19. In Hantzis, however, the court inquired whether Hantzis understood the hazards of representing himself, whether he understood the “severe disadvantage which may hurt [him] down the road,” and whether he wanted either a public defender or to represent himself. Hantzis, 625 F.3d at 578. Each time 22 Hantzis replied unequivocally that he wanted to represent himself. Moreover, there were no indications that Hantzis had any mental disabilities. ¶42 In the instant proceedings, all requests for substitution of counsel were made by the attorneys themselves, on various grounds, presumably related to Fogarty’s conduct. In most instances, there was no oversight from the Municipal Court or involvement from Fogarty herself. No initial inquiry was conducted as required by Dethman to determine whether counsel was ineffective or whether substitution should otherwise be granted. While Fogarty insisted on “effective counsel,” any request by Fogarty to proceed without counsel, in light of the November 7, 2011, and December 22, 2011 trial transcripts, is equivocal at best. ¶43 Against this background, I make the following additional observations. Counsel may not withdraw from a criminal case involving an indigent defendant once they have undertaken the responsibility of representation because they now determine a particular client is difficult. Representing criminal defendants who are indigent, especially those who are potentially mentally ill, is difficult and should not be undertaken lightly. At a minimum, a record should have been made establishing the circumstances which prevented counsel from continuing with their representation of Fogarty. In this manner, the Municipal Court would have had the matter before it and could have begun the process of managing these proceedings consistent with precedent regarding a valid exercise of the right to proceed pro se or a valid substitution of counsel based upon claims of ineffectiveness. ¶44 The record of the “series” of attorneys should be assessed. On November 16, 2010, Russell LaFontaine entered his appearance on behalf of Fogarty and remained in Fogarty’s cases for two months. Without an order of the Municipal Court or consent from Fogarty, 23 LaFontaine filed his withdrawal, and on January 14, 2011, the appearance of Robin Ammons was entered by the OPD. ¶45 Two months later, on March 15, 2011, the appearance of Patrick Sandefur was entered as contract counsel for the OPD, also without a court order or consent from Fogarty for the change of counsel. After citing a breakdown in the attorney-client relationship as well as Montana Rule of Professional Conduct 1.6,3 Sandefur’s appearance was stricken by the Municipal Court, and the OPD was ordered to appoint new counsel. Sandefur’s withdrawal and the subsequent reappointment of the OPD were in compliance with § 37-61- 403, MCA,4 because they were effectuated pursuant to a Municipal Court order. 3 Rule 1.6 – Confidentiality of Information. (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to secure legal advice about the lawyer’s compliance with these Rules; (3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or (4) to comply with other law or court order. 4 Section 37-61-403, MCA, provides: Change of attorney. The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: (1) upon consent of both client and attorney, filed with the clerk or entered upon the minutes; (2) upon the order of the court, upon the application of either client or 24 ¶46 On July 28, 2011, the OPD appointed Kathleen Foley. However, Foley withdrew one month later on August 31, 2011, citing “numerous and scandalous allegations” made by Fogarty against Foley’s firm. The Municipal Court issued an order granting Foley’s Motion to Withdraw. On October 20, 2011, Gregory Birdsong entered his appearance on behalf of Fogarty, but he filed a motion to withdraw on October 31, 2011, citing a breakdown in the attorney-client relationship and Rule 1.6. In the four Municipal Court files for the four cases pending against Fogarty at that time, only one contains an order signed by a Municipal Court Judge allowing Birdsong’s withdrawal. ¶47 Finally, on November 4, 2011, Lisa Kaufman entered her appearance on behalf of Fogarty; however, Kaufman was not present at the November 7, 2011 preliminary hearing. The Court nevertheless proceeded to inquire of Fogarty regarding self-representation. Two days later Kaufman filed a formal motion to withdraw after receiving an email from the clerk of court that Fogarty was proceeding pro se. Our Opinion today suggests that this, as well as the “series” of prior attorneys is an acceptable manner of handling indigent representation. I do not concur with this view. ¶48 The number of substitutions in these proceedings is alarming, and, upon initial inquiry, appear to indicate Fogarty is abusing the system by “firing” her counsel and continuing to insist on representation. Clearly no defendant should be permitted to manipulate the process in this manner. However, statutory requirements and case law exist to protect against violations of the right to counsel and to protect counsel as well. Once counsel have chosen to enter their appearance, any withdrawal must be made in accordance attorney, after notice from one to the other. 25 with the provisions of § 37-61-403, MCA, and case law regarding substitution and waivers. A motion that complies with § 37-61-403, MCA, and sets forth reasons for the request, will normally suffice to gain court approval and allow a substitution of counsel. That these proceedings occurred in an overburdened Municipal Court provides no exception to the law regarding the right to counsel. It is my position that this is unacceptable in light of the fundamental right that was at stake. ¶49 I respectfully dissent from the decision of the Court finding that Fogarty, a mentally ill defendant, waived her right to counsel by failing to cooperate with a “series” of court- appointed counsel. /S/ LAURIE McKINNON | September 5, 2013 |
7d068e09-1a22-4357-8f03-8e31b3cc8463 | Montana v. Dietsch | 2013 MT 245 | DA 12-0533 | Montana | Montana Supreme Court | DA 12-0533 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 245 STATE OF MONTANA, Plaintiff and Appellee, v. ROBERT LEE COLTON DIETSCH, Defendant and Appellant. APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 2011-54 Honorable James A. Haynes, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender; Deborah S. Smith, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman, Assistant Attorney General; Helena, Montana William Fulbright, Ravalli County Attorney; Hamilton, Montana Submitted on Briefs: August 7, 2013 Decided: September 3, 2013 Filed: __________________________________________ Clerk September 3 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Robert Lee Colton Dietsch (Dietsch) appeals his conviction from the Twenty-First Judicial District, Ravalli County. We affirm in part, reverse in part, and remand. ¶2 We address the following issues on appeal: ¶3 Whether the District Court abused its discretion in denying Dietsch’s request for a transfer to Youth Court? ¶4 Whether the District Court imposed a lawful sentence? PROCEDURAL AND FACTUAL BACKGROUND ¶5 In February 2011, 17-year old Dietsch convinced 12-year old C.C., and her friend to join Dietsch and two of his friends at his mother’s home. Dietsch’s mother was away for several days on business, and had left Dietsch to supervise his younger siblings and the home. ¶6 Once there, Dietsch pressured C.C. to have sex with him. Although she initially declined, Dietsch continued to pressure C.C. Eventually he picked C.C. up, carried her into the bathroom, removed his and her clothing, and then had sexual intercourse with C.C. ¶7 C.C. told her mother about the incident. C.C.’s mother alerted the police. The State of Montana (State) charged Dietsch as an adult with one count of sexual intercourse without consent and one count of sexual assault. Dietsch acknowledges both C.C.’s age, and that sexual intercourse with C.C. was illegal because of her age. The State has not alleged physical force or intimidation on Dietsch’s part. 3 ¶8 Dietsch moved to transfer prosecution from the District Court to the Youth Court. The District Court denied the motion. The District Court recognized that Dietsch would benefit from the transfer. The District Court determined, however, that the nature of the alleged offense and the threat to community safety presented by Dietsch militated against the transfer. ¶9 Dietsch later entered into a plea agreement with the State whereby he agreed to plead guilty to one count of sexual assault in exchange for the State’s agreement to drop the sexual intercourse without consent charge. The District Court heard testimony from several witnesses and reviewed several statements over the course of two sentencing hearings. The District Court imposed a deferred sentence of 6 years, and 60 days in the Ravalli County Detention Center, with credit for time served. The District Court also imposed a number of other conditions. The conditions relevant here include mandates that Dietsch pay both $800.00 for the cost of his public defender and undetermined restitution to the victim. The District Court also required Dietsch to “advise all medical personnel of addiction history/conviction, including all prescribed narcotics and/or medical marijuana.” Dietsch appeals. STANDARD OF REVIEW ¶10 We review for abuse of discretion a District court’s decision whether to transfer a juvenile charged in district court to youth court. State v. Whiteman, 2005 MT 15, ¶ 10, 325 Mont. 358, 106 P.3d 543. We review criminal sentences for legality, to determine whether 4 they are within the parameters set by statutes as a matter of law. Matter of T.M.L., 2012 MT 9, ¶ 8, 363 Mont. 304, 268 P.3d 1255 DISCUSSION ¶11 Whether the District Court abused its discretion in denying Dietsch’s request for a transfer to Youth Court? ¶12 Section 41-5-206(1), MCA, authorizes the State to charge a juvenile directly in district court under certain circumstances. Once the State files the case in district court, the district court may transfer the case to the youth court only if it finds the following factors by a preponderance of the evidence: (a) a youth court proceeding and disposition will serve the interests of community protection; (b) that the nature of the offense does not warrant prosecution in district court; and (c) it would be in the best interest of the youth if the matter was prosecuted in youth court. Section 41-5-206(3)(a)-(c), MCA. ¶13 Deitsch first argues that no substantial evidence supports the District Court’s finding that a transfer to youth court would not protect the interests of the community. Dietsch claims that the District Court misapplied the standard of proof in making this finding. Deitsch further claims that no substantial evidence supports the District Court’s finding that the nature of the offense warranted prosecution in district court. 5 ¶14 The District Court concluded that Deitsch likely would reoffend whether charged in the District court or youth court. Youth court proceedings would limit the dispositional options to the extent of the youth court’s jurisdiction: “until Deitsch turns 21,” with potential “supervision only until Dietsch reaches the age of 25.” District Court prosecution, conversely, would allow dispositional options that would include supervision and rehabilitation “for a period of up to Dietsch’s remaining natural life.” The District Court also found troubling the lack of expert testimony about the probability that Dietsch would attempt to contact his victim C.C. in the future. ¶15 The District Court as factfinder sits in the best position to weigh all of this evidence. The District Court’s finding of high recidivism potential and concern over the lack of evidence about future victim contact demonstrate that Dietsch failed to show by a preponderance of the evidence that a youth court proceeding would serve the interests of community protection. The District Court did not abuse its discretion in determining that the potential lengthier term of supervision available in District Court would better serve the interest of community protection. ¶16 The District Court also received testimony at the transfer hearing concerning the nature of the offense. The District Court heard from a sexual offender evaluator (Christopher Quigley), a clinical psychologist (Dr. Tessa Reed), and a police detective (Jesse Jessop). The District Court found more substantive the testimony of the State’s witnesses. The Court concluded that Dietsch’s contact with the victim’s mother showed a “high lack of empathy” and that Dietsch had demonstrated “a highly significant familiarity about sex with underage 6 girls in his community.” The District Court properly resolves conflicting evidence before it. We generally will not overturn those determinations on appeal. State v. Deines, 2009 MT 179, ¶ 20, 351 Mont. 1, 208 P.3d 857. Sufficient credible evidence supports the District Court’s finding that the nature of the offense does not warrant a youth court proceeding and disposition. ¶17 Whether the District Court imposed a lawful sentence? ¶18 Dietsch’s counsel asked the District Court to waive the costs of Dietsch’s assigned counsel at the sentencing hearing. The District Court asked whether Dietsch “has the ability to work, [and] the capability of earning money.” Dietsch’s counsel responded “[y]es, Your Honor. I think the Court has heard from people that he’s very capable of that.” The District Court then imposed $800.00 to cover the cost of Dietsch’s counsel. ¶19 The law in effect at the time of the offense controls sentencing options available to a sentencing court. Section 46-8-113, MCA (2009), governed the District Court’s ability to require Dietsch to pay for the costs of his assigned counsel. The District Court lawfully could impose only up to $500.00 to pay the costs of counsel in a felony case. Section 46-8- 113(1)(b), MCA (2009). The District Court’s imposition of $800.00 to pay the costs of counsel exceeds this amount. Dietsch further argues that the District Court failed to inquire properly into his ability to pay. The District Court can address these issues on remand. We strike the $800.00 fee and remand to the District Court to determine the amount, if any, that Dietsch should pay for his assigned counsel, pursuant to § 46-8-113(3), MCA (2009). 7 ¶20 Dietsch next challenges the condition that requires him to report his conviction to all medical providers. A rehabilitative condition must have a nexus to either the offense for which the offender is being sentenced, or to the individual offender. State v. Ashby, 2008 MT 83, ¶ 15, 342 Mont. 187, 179 P.3d 1164. The State concedes that the District Court did not convict Dietsch of any offense that involved dangerous drugs, and that Dietsch has no history of substance use or abuse. We agree with the State that this condition lacks a nexus to either the offense or offender and remand to have the District Court strike it from the judgment. ¶21 The State further concedes that the District Court failed to retain jurisdiction over Dietsch’s case until he reaches the age of 21, and failed to require the Department of Corrections (DOC) to submit bi-annual reports, as required by § 41-5-2503(1), MCA. We remand to the District Court to amend the judgment to reflect its statutorily-required continuing jurisdiction over Dietsch until age 21, and to order DOC to submit required status reports every 6 months until Dietsch reaches the age of 21. ¶22 The District Court, upon the agreement of Dietsch’s trial counsel, required restitution payments for victim counseling as part of Dietsch’s sentence. Restitution specifically would include those “costs incurred by [C.C.].” The District Court ordered the State to file a restitution statement within thirty days of the final judgment. ¶23 The State failed to file a restitution statement by the time that Dietsch had filed this appeal. Dietsch argues that the District Court’s open-ended restitution award violates the 8 statutory requirement that a court specify the total amount of restitution that the offender shall pay. Section 46-18-244(1), MCA. We agree. ¶24 The judgment must set a specific amount of restitution. State v. Guill, 2011 MT 32, ¶¶ 52-53, 359 Mont. 225, 248 P.3d 826; State v. Heafner, 2010 MT 87, ¶ 11, 356 Mont. 128, 231 P.3d 1087. We vacate the restitution requirement and remand to the District Court to comply with § 46-18-244(1), MCA. State v. Johnson, 2011 MT 286, ¶ 16, 362 Mont. 473, 265 P.3d 638. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH /S/ JIM RICE /S/ LAURIE McKINNON /S/ PATRICIA COTTER | September 3, 2013 |
3579c6d6-0f90-449f-a5d6-fc9482f03f6f | Langford v. State | 2013 MT 265 | DA 12-0645 | Montana | Montana Supreme Court | DA 12-0645 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 265 JAMES MARTIN LANGFORD, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-12-610C Honorable Stewart E. Stadler, Presiding Judge COUNSEL OF RECORD: For Appellant: Carolyn Gill; Gill Law Office, PLLC; Kila, Montana For Appellee: Timothy C. Fox; Montana Attorney General; Pamela P. Collins; Assistant Attorney General; Helena, Montana Ed Corrigan, Flathead County Attorney; Travis R. Ahner; Deputy County Attorney; Kalispell, Montana Submitted on Briefs: June 12, 2013 Decided: September 17, 2013 Filed: __________________________________________ Clerk September 17 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 James Martin Langford appeals from an order of the Eleventh Judicial District Court, Flathead County, denying his petition requesting relief from his duty to register as a sexual offender, filed pursuant to § 46-23-506(3)(b), MCA. We affirm. ¶2 The sole issue on appeal is whether the District Court abused its discretion in denying Langford’s petition. BACKGROUND ¶3 Langford was convicted in 1992 of incest in violation of § 45-5-507, MCA (1991). He pleaded guilty to having sexual intercourse or sexual contact with his daughter, B.S., who was sixteen at the time of the offense. On August 28, 1992, Langford was sentenced to Montana State Prison for twenty years, with ten years suspended. The sentencing court, in addition to standard conditions for sexual offenders, required that Langford register as a sexual offender and complete a sexual offender treatment program at Montana State Prison. Langford was prohibited from having contact with the victim, B.S., unless approved by his probation officer. He was also prohibited from having contact with any children under the age of sixteen years. Langford could not reside or frequent places where children congregated and was prohibited from accessing child pornography. Langford was further subject to polygraph testing. At the time of Langford’s conviction, level designation of a sexual offender was not required. Therefore, Langford did not receive a level designation by the sentencing court. ¶4 Many of the arguments Langford currently advances resound with those advanced at his sentencing hearing. The sentencing court observed that Langford argued he should 3 not be incarcerated because of the efforts he had made in developing alcohol treatment programs in the western part of Montana. The sentencing court noted that “[a]pparently the defendant has remained free of intoxicating substances, and has dedicated himself to helping others to recover from such addiction.” In response to Langford’s arguments, the sentencing court stated: While the defendant should be commended for his efforts in his recovery, as well as his efforts in helping others, this court is nonetheless mindful that one of the goals of sentencing is punishment. . . . In imposing the sentence specified below, this court is struck by the fact that the defendant has admitted hundreds of the instances of sexual abuse against his daughter. The fact that the defendant has disclosed the full history of his sexual abuse of his daughter is also commendable. However, this long history of sexual abuse, coupled with physical violence against the daughter, indicates to this court an extensive problem. ¶5 The psychosexual evaluator, Dr. Michael Scolatti, recommended that Langford could be treated in the community. The sentencing court rejected this recommendation, noting Scolatti’s statement, in his report, that “Mr. Langford represents a sex offender whose crime is horrendous. There is no doubt that Mr. Langford has caused significant psychological harm to his victim and should be held accountable for his sexually abusive behavior.” ¶6 On June 8, 2012, Langford filed his petition in the District Court requesting relief from his requirement to register as a sexual offender. The District Court conducted a hearing on August 31, 2012, and received evidence from Langford and the State. ¶7 Langford presented evidence that he was (as he states in his opening brief on appeal) “a model prisoner”; that he completed Phases I and II of sex-offender treatment; that he accumulated no infractions or violations of prison rules; and that he received all of 4 his good time credit. Following his release from prison in 1997, Langford completed a two-year aftercare sexual offender program; registered as a sexual offender for the past fifteen years; was regularly employed; and has been a member of the Fresh Life Church. Langford represented that the registration requirement negatively impacts his personal life and his business life. He presented testimony from Dr. Scolatti, who conducted a follow-up evaluation of Langford in 2012. Dr. Scolatti opined that Langford’s treatment had been successful—though, upon questioning by the District Court, Dr. Scolatti admitted that he could not say that there is “no risk” Langford will reoffend. For these reasons, as well as others, Langford argued that the District Court should relieve him from his requirement to register as a sexual offender pursuant to § 46-23-506(3)(b), MCA. ¶8 B.S. was present by way of videoconference and expressed her opposition to Langford’s petition. In addition, she submitted a letter, dated June 25, 2012, which the State filed in the District Court and the District Court referenced in its Order. B.S. opened her letter by stating her emphatic opinion that her father should be a lifetime sexual offender registrant. The letter went on to describe Langford’s sexual abuse of her “hundreds to thousands of times,” beginning when she was about three years old. When B.S. was very little, Langford threatened that her mother would leave them if B.S. told anyone what he was doing to her; when she was older, he told her he would kill her mother and brothers if she told anyone, and she believed that he would. B.S. described escalating violence as she grew older—Langford choked her, punched her, and placed pillows over her face so no one would hear her screams. “There were many times I 5 thought he was going to kill me, and many that I wished he had.” B.S. states she continues to suffer from flashbacks, trust issues, and PTSD, and that she lives in fear of her father and people like him. “It seems like a small price for him to have to pay to have to register as a sex offender in comparison to what I will go through for the rest of my life.” ¶9 The District Court determined, after “[c]onsidering the testimony of Dr. Michael Scolatti and most importantly the testimony of the victim, Petitioner has failed to establish the statutory requirements necessary to be relieved from the requirements of lifetime registration.” The District Court specifically found, after considering all the circumstances, that “[c]ontinued registration is necessary for public protection and is in the best interests of society.” STANDARDS OF REVIEW ¶10 A district court’s interpretation and application of a statute and its conclusions of law are reviewed for correctness. In re C.D.H., 2009 MT 8, ¶ 21, 349 Mont. 1, 201 P.3d 126. We have not previously discussed the standard for reviewing a district court’s decision regarding a petition for relief from the duty to register as a sexual offender filed under § 46-23-506(3), MCA. As with designation of a sexual offender level, see State v. Hill, 2009 MT 134, ¶ 22, 350 Mont. 296, 207 P.3d 307, a district court must exercise considerable discretion in determining whether to grant or deny relief from registration. Accordingly, the standard of review is whether the district court abused its discretion in granting or denying the petition. This Court will not disturb a discretionary decision of a district court absent an abuse of that discretion. State v. Burke, 2005 MT 250, ¶ 11, 329 6 Mont. 1, 122 P.3d 427. A district court abuses its discretion when it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. State v. Rovin, 2009 MT 16, ¶ 23, 349 Mont. 57, 201 P.3d 780. Further, a district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence. City of Missoula v. Girard, 2013 MT 168, ¶ 10, 370 Mont. 443, 303 P.3d 1283. DISCUSSION ¶11 Did the District Court abuse its discretion in denying Langford’s petition? ¶12 Langford argues on appeal that the District Court incorrectly interpreted the first prong of § 46-23-506(3)(b)(ii), MCA, to mean that no one can be relieved of the duty to register unless an evaluator can predict that there is no possible chance of reoffending. Such an interpretation, Langford argues, would render the statute meaningless and make it impossible for someone to ever obtain relief from registration. Langford also argues that the harm to the victim is addressed at sentencing and should not be the basis for determining the best interests of society. Further, the preferences of the victim do not equate, Langford maintains, to the best interests of society. ¶13 The State argues that the District Court properly exercised its discretion when it denied Langford’s petition. Citing protection from recidivism as the primary purpose of the Sexual or Violent Offender Registration Act, the State maintains that the District Court was correct in finding that Langford continues to present a threat of reoffending and that protection of the public is necessary so long as that possibility exists. 7 ¶14 Section 46-23-506, MCA, provides for several distinct duration periods for registration of sexual or violent offenders. The relevant provisions for sexual offenders are set forth as follows: (1) A sexual offender required to register under this part shall register for the remainder of the offender’s life, except as provided in subsection (3) or during a period of time during which the offender is in prison. . . . [(3)](b) Except as provided in subsection (5), at any time after 10 years of registration for a level 1 sexual offender and at any time after 25 years of registration for a level 2 sexual offender, an offender may petition the sentencing court or the district court for the judicial district in which the offender resides for an order relieving the offender of the duty to register. The petition must be served on the county attorney in the county where the petition is filed. Prior to a hearing on the petition, the county attorney shall mail a copy of the petition to the victim of the last offense for which the offender was convicted if the victim’s address is reasonably available. The court shall consider any written or oral statements of the victim. The court may grant the petition upon finding that: (i) the offender has remained a law-abiding citizen; and (ii) continued registration is not necessary for public protection and that relief from registration is in the best interests of society. . . . (5) Subsection (3) does not apply to an offender who was convicted of: (a) a violation of 45-5-503 [sexual intercourse without consent] if: (i) the victim was compelled to submit by force, as defined in 45-5-501, against the victim or another; or (ii) at the time the offense occurred, the victim was under 12 years of age; (b) a violation of 45-5-507 if at the time the offense occurred the victim was under 12 years of age and the offender was 3 or more years older than the victim; (c) a second or subsequent sexual offense that requires registration; or (d) a sexual offense and was designated as a sexually violent predator under 46-23-509. 8 ¶15 The statute presents a scheme whereby a sexual offender generally must register for the remainder of the offender’s life. However, with certain exceptions, a sexual offender may petition for relief from registration. Thus, an offender designated a Level 1 offender may petition after 10 years of registration and a sexual offender designated a Level 2 may petition after 25 years of registration. The court must consider statements of the victim and “may” grant the petition upon finding that (1) the offender has remained law-abiding; (2) continued registration is not necessary for public protection; and (3) relief from registration is in the best interests of society. ¶16 Langford incorrectly asserts that the District Court misinterpreted the statute to mean that no one could be relieved of the duty to register unless an evaluator could predict there is no possibility of recidivism. The District Court determined that there was a low risk of Langford’s reoffending based upon the testimony of Dr. Scolatti. The District Court also properly considered Langford’s crime and B.S.’s statements. Considering that protection from recidivism by sexual offenders is the primary purpose of the Sexual or Violent Offender Registration Act, evidence that there is some risk of reoffending is a sufficient basis to deny relief from the duty to register. We conclude that the District Court correctly interpreted § 46-23-506(3), MCA. We must now consider whether the District Court abused its discretion in denying the relief requested. ¶17 The trial court is in the best position to judge the credibility and demeanor of witnesses and their testimony. State v. Lally, 2008 MT 452, ¶ 24, 348 Mont. 59, 199 P.3d 818; State v. Gray, 2001 MT 250, ¶ 25, 307 Mont. 124, 38 P.3d 775. Although finding 9 that Langford’s registration requirements posed problems for him in his personal life and business life, the District Court also found that B.S.’s statement and request for continued registration were more compelling. The District Court considered the nature of abuse in the underlying offense and the years in which it had been perpetrated upon B.S. Consideration was given to Langford’s progress, but the District Court ultimately determined that B.S., as a member of society, demonstrated that Langford still posed a threat to the public. This conclusion was supported by Dr. Scolatti’s testimony, which established that Langford had a low risk of reoffending. ¶18 A district court abuses its discretion when it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. Rovin, ¶ 23. This Court will not disturb a discretionary decision of the District Court absent an abuse of discretion. Burke, ¶ 11. The sexual abuse perpetrated by Langford upon his daughter was horrific. B.S., in her letter to the court, articulated her fears and concerns regarding Langford’s petition in a well-reasoned and logical manner. The District Court was required to consider her statements, and it ultimately decided that Langford remained a threat to public safety. In doing so, the District Court demonstrated that it employed conscientious judgment and did not exceed the bounds of reason. We see no injustice in the District Court’s denial of Langford’s petition. We agree with the State that the District Court exercised its discretion properly. ¶19 Finally, we note that Langford has admitted to years of sexual abuse beginning when B.S. was eight years old. B.S. indicates that the abuse began when she was much younger and that Langford threatened to kill her mother and brothers if she told about the 10 abuse. Although Langford only pleaded to one incident of incest under the Information filed in 1991, occurring when B.S. was sixteen years of age, B.S. testified that this was because the State, at that time, believed a specific date of sexual abuse, rather than a continuing course of abuse beginning when she was younger, was necessary. We note that under the registration statute, had the 1991 Information accurately represented the same conduct as Langford has admitted in the psychosexual evaluation, Langford would have been required to register for life, with no ability to petition for relief, because B.S. was under the age of twelve, § 46-23-506(5)(b), MCA, and because B.S. was compelled to submit to force based upon threats to kill her mother and brothers, § 46-23-506(5)(a)(i), MCA. This issue, however, was not raised in the trial court and is thus not currently before us. We also observe that Langford’s repeated petitions to the District Court (three), and B.S.’s plea that she be spared the continual trauma of addressing her abuse on any subsequent petitions by requiring Langford to register for life, is also not before us. We nevertheless note these considerations regarding the legislative scheme, Langford’s admissions, and B.S.’s plea in order to further enlighten Langford that his petition is not well-founded and the District Court exercised proper discretion in denying his petition. ¶20 Affirmed. /S/ LAURIE McKINNON 11 We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BRIAN MORRIS | September 17, 2013 |
e91a413d-3c16-41ea-a0b0-40ef6f4d04d3 | Doty v. Molnar | 2013 MT 236N | DA 12-0750 | Montana | Montana Supreme Court | DA 12-0750 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 236N RUSSELL L. DOTY, Plaintiff and Appellant, v. BRADLEY MOLNAR, Respondent and Appellee. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 07-22 Honorable G. Todd Baugh, Presiding Judge COUNSEL OF RECORD: For Appellant: Russell L. Doty, self-represented; Greeley, Colorado For Appellee: Jack E. Sands; Attorney at Law; Billings, Montana For Intervernor: Martha Sheehy, Sheehy Law Firm; Billings, Montana Submitted on Briefs: July 17, 2013 Decided: August 20, 2013 Filed: __________________________________________ Clerk August 20 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Russell L. Doty (Doty) and Bradley Molnar (Molnar) have been political and legal opponents since at least 2004, when they squared off as candidates for a seat on the Public Service Commission. Charges and countercharges made first to the public and media led to several complaints that were filed by both parties against each other before the Commissioner of Political Practices (Commissioner). After investigation, the Commissioner ultimately dismissed all of the complaints. Doty appealed the dismissal of his complaints, which was affirmed by the District Court and this Court. See Doty v. Mont. Commr. of Political Pracs., 2007 MT 341, 340 Mont. 276, 173 P.3d 700 (Doty I). ¶3 Several weeks after our decision in Doty I was issued, Doty initiated this litigation. Doty alleged that Molnar committed malicious prosecution by making false allegations to the Commissioner, defamed Doty in statements made to the media and to the Commissioner, violated 42 U.S.C. § 1983 by infringing upon Doty’s First Amendment rights, committed breach of contract by violating the Fair Campaign Practices Pledge, and committed abuse of process by filing a political practices complaint against Doty to influence the outcome of the election. In January 2012, the District Court granted 3 summary judgment in favor of Molnar on all counts of Doty’s complaint except for the defamation claim, which was tried to a jury from September 11 through September 18, 2012. The jury determined that Molnar had not defamed Doty. ¶4 During the course of the litigation, Doty served a deposition subpoena duces tecum on the Billings Gazette seeking identifying and contact information about online users who had electronically posted messages on the Gazette’s website, including Molnar, Molnar supporter John E. Olsen, and those posting under user names “Always Wondering,” “CutiePie,” and “High Plains Drifter.” The Gazette moved to quash the subpoena, citing the Media Confidentiality Act, the First Amendment to the U.S. Constitution, and the right of privacy under Article II, Section 10, of the Montana Constitution. The District Court granted the motion. ¶5 Following the verdict, Doty made post-trial motions for the entry of additional findings and for a new trial, which were denied by the District Court. Doty appeals, challenging the dismissal of his claims by summary judgment, the quashing of the subpoena duces tecum to the Gazette, the District Court’s trial rulings on jury instructions and verdict form, and the denial of his post-trial motions. The Gazette moved this Court to intervene in order to respond to Doty’s appeal of the order quashing the subpoena; the motion was granted. ¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The legal issues are controlled by settled law, which the District Court correctly interpreted. 4 The District Court did not err by concluding that Doty had failed to establish the necessary elements of the claims of malicious prosecution, violation of 42 U.S.C. § 1983, breach of contract, and abuse of process, and entering summary judgment in favor of Molnar on these claims. The remaining issues are ones of judicial discretion and there clearly was not an abuse of discretion by the District Court in granting the motion to quash, instructing the jury, and denying the post-trial motions. ¶7 Affirmed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ BETH BAKER | August 20, 2013 |
7d646a16-5f96-4ce3-9d8e-c20caf3f9712 | Smart v. State | 2013 MT 224N | DA 12-0480 | Montana | Montana Supreme Court | DA 12-0480 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 224N FORREST SCOTT SMART, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 10-583 Honorable G. Todd Baugh, Presiding Judge COUNSEL OF RECORD: For Appellant: Forrest Scott Smart, Self-Represented, Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana Scott Twito, Yellowstone County Attorney; Ann-Marie McKittrick, Deputy County Attorney, Billings, Montana Submitted on Briefs: July 17, 2013 Decided: August 13, 2013 Filed: __________________________________________ Clerk August 13 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Appellant Forrest Smart (Smart) appeals the order of the Thirteenth Judicial District Court, Yellowstone County, that dismissed his petition for post-conviction relief. We affirm. ¶3 The State of Montana (State) charged Smart with five counts of sexual intercourse without consent; one count of felony intimidation; and one count of felony witness tampering on March 29, 2006. The victims in the sexual intercourse without consent and intimidation charges were two children, C.R. and C.M. The charged offenses occurred in 2002 through 2004. ¶4 Smart agreed to plead guilty to two counts of sexual intercourse without consent by way of an Alford plea agreement. The State agreed to recommend 20 years in Montana State Prison with 10 years suspended for each count. The parties agreed that Smart would be able to withdraw his plea if the District Court rejected the sentence recommendation and imposed a stricter sentence. ¶5 The District Court accepted the State’s recommendation and sentenced Smart to 20 years in Montana State Prison with 10 years suspended on each count to run concurrently with each other. The District Court also imposed numerous conditions on the suspended portion of Smart’s sentencing based upon the results of a psychosexual evaluation. The 3 evaluation revealed that Smart had two previous sex offense convictions. Smart objected to several conditions, including those that required him to undergo polygraph testing, a prohibition on drug and alcohol use and conditions that limited his ability to go to any place where adults and children may congregate. The District Court adopted the conditions over Smart’s objections. ¶6 Smart appealed the District Court’s sentence to this Court in 2008. Smart specifically opposed the imposition of the conditions that required polygraph testing and prohibited drug and alcohol use. This Court affirmed the polygraph testing, but reversed the drug and alcohol restrictions. State v. Smart, 2009 MT 1, 348 Mont. 274, 201 P.3d 123. ¶7 Smart filed a petition for post-conviction relief in 2010. Smart raised eleven separate claims. The District Court determined that Smart’s petition lacked merit. The District Court determined that Smart had made “conclusory statements and illusory arguments, about being prejudiced by trial counsel and appellate counsel” without supporting evidence. The District Court further determined that Smart had not alleged any new evidence that raised questions about his plea or the legality of his sentence. Smart appeals. ¶8 Smart argues on appeal that his appellate counsel’s failure to challenge his sentencing conditions that prohibited him from having unsupervised contact with children under 18 constituted ineffective assistance of counsel. Smart further argues that the District Court should have analyzed separately with legal authority each issue that he raised. We review a district court’s denial of a petition for post-conviction relief based upon a procedural bar to determine whether the court correctly applied the law. Sanchez v. State, 2012 MT 191, ¶ 12, 4 366 Mont. 132, 285 P.3d 540. Ineffective assistance of counsel claims present mixed questions of law and fact, that we review de novo. Miller v. State, 2012 MT 131, ¶ 9, 365 Mont. 264, 280 P.3d 272. ¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. It is manifest on the face of the briefs and the record before us that § 46-21-105(2), MCA, bars Smart’s arguments concerning the District Court’s sentencing conditionsand that the District Court correctly applied the law. ¶10 Affirmed. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ JIM RICE | August 13, 2013 |
6dab5c02-5289-41b1-b367-b4d6f12e4b10 | Yeaton v. Yeaton | 2013 MT 227N | DA 12-0498 | Montana | Montana Supreme Court | DA 12-0498 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 227N MICHAEL S. YEATON, an Individual, and as Personal Representative of the Estate of Forrest A. Yeaton, Plaintiff and Appellee, v. ERIC D. YEATON, Defendant and Appellant. APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DV 11-193 Honorable James B. Wheelis, Presiding Judge COUNSEL OF RECORD: For Appellant: Eric D. Yeaton (Self-Represented), Eureka, Montana For Appellee: Caleb E. Simpson, Hedman, Hileman & LaCosta, PLLP, Whitefish, Montana Submitted on Briefs: July 17, 2013 Decided: August 13, 2013 Filed: __________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court. August 13 2013 2 ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and its case title, Supreme Court cause number and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 On December 27, 2005, Forrest A. Yeaton (decedent) executed a self-proved will that appointed his son, Michael Yeaton, as personal representative. Under the provisions of the will, Michael was the primary beneficiary and decedent’s other son, Eric Yeaton, was given 15% of the residuary estate, to be held in a trust and distributed by the trustee. The decedent named Michael as the trustee. A copy of the will was delivered to both sons. ¶3 On September 15, 2010, decedent executed a statutory power of attorney appointing Eric as his attorney in fact. Pursuant to the terms of the document, Eric was authorized to act on behalf of his father in a fiduciary capacity conditioned upon decedent’s “inability to function mentally or physically in a competent manner for a significant period of time, as determined in the sole and absolute discretion of my treating physician.” ¶4 The decedent died on July 23, 2011. Between July 18, 2011, and July 22, 2011, while his father’s death was imminent, Eric transferred into his own name real property of the decedent located in Lincoln County, over $125,000.00 in accounts and/or currency. Eric also removed gold coins kept in decedent’s safety deposit box. ¶5 Michael, acting as personal representative, filed a Complaint and Application for Preliminary Injunction on August 3, 2011, seeking to have the assets transferred by Eric returned to the Estate. Eric answered and counterclaimed that the decedent’s testamentary 3 intent was to make Eric the primary beneficiary of the will. The District Court ruled that evidence concerning the decedent’s testamentary intent contrary to the will in probate was not admissible. Neither party has challenged this order entered by the District Court. ¶6 Following a hearing, the District Court determined that at the time decedent executed his power of attorney to Eric on September 15, 2010, decedent lacked sufficient mental capacity to create the document used by Eric to transfer his assets. The court carefully noted in its written findings that the testimony of Patrick J. Burns, M.D., a neurologist who examined the decedent close to the time the power of attorney was created, establishes that decedent lacked the capacity to execute the document. Dr. Burns performed the examination upon referral from the decedent’s treating physician. The District Court found that the neurologist “produced quantifiable evidence of organic brain dysfunctions that would not have been transient and that would have been present at the time [Eric] and his witnesses testified that the decedent was not incapacitated.” The District Court considered Eric’s testimony and the testimony of Eric’s witnesses. ¶7 The District Court further determined that even had the document creating the power of attorney been executed by one with the mental capacity to do so, Eric breached his fiduciary duty by transferring property within days of his father’s death knowing of the existence of the will. Sections 72-31-101 through -238, MCA (2009). The District Court entered judgment for Michael and ordered that Eric pay attorney fees and costs. Eric appealed. ¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The 4 District Court’s findings of fact are supported by substantial evidence and the legal issues are controlled by settled Montana law, which the District Court correctly interpreted. The District Court was able to observe and hear the witnesses and draw conclusions as to their credibility, ultimately finding that the testimony of Dr. Burns was both credible and not rebutted. In addition, the District Court correctly determined that even had the power of attorney been valid, Eric breached his fiduciary duty to preserve the principal of the decedent’s estate when he transferred assets to himself prior to his father’s death. ¶9 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ BETH BAKER /S/ JIM RICE | August 13, 2013 |
294eb03e-0178-46cc-8b96-d857203ef76b | Watts v. HSBC Bank USA, N.A. | 2013 MT 233 | DA 12-0695 | Montana | Montana Supreme Court | DA 12-0695 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 233 TIMOTHY E. WATTS, Plaintiff and Appellee, v. HSBC BANK US TRUSTEE, ACE SECURITIES TRUST AND REGISTERED HOLDERS OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2007-ASAP1, ASSET-BACKED PASS-THROUGH CERTIFICATES, DAVID A. MARION AND DEBRA E. MARION, husband and wife, and ALL PERSONS UNKNOWN, CLAIMING OR WHO MIGHT CLAIM ANY RIGHT, TITLE, ESTATE, OR INTEREST IN, OR LIEN OR ENCUMBRANCE UPON THE REAL PROPERTY DESCRIBED IN THE COMPLAINT, OR ANY PART THEREOF, ADVERSE TO PLAINTIFF'S OWNERSHIP OR ANY CLOUD UPON PLAINTIFF'S TITLE THERETO, WHETHER SUCH CLAIM OR POSSIBLE CLAIM BE PRESENT OR CONTINGENT, Defendants and Appellants. APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DV 11-73 Honorable James B. Wheelis, Presiding Judge COUNSEL OF RECORD: For Appellant: Mark C. Sherer; Mackoff Kellogg Law Firm; Dickinson, North Dakota For Appellee: Amy N. Guth; Attorney at Law; Libby, Montana Submitted on Briefs: June 26, 2013 Decided: August 20, 2013 August 20 2013 2 Filed: __________________________________________ Clerk 3 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 HSBC Bank USA, N.A., as trustee on behalf of Ace Securities Corp., Home Equity Loan Trust, and for the registered holders of Ace Securities Corp. Home Equity Loan Trust, series 2007-ASAP 1, asset backed pass-through certificates (collectively “HSBC”), appeal from an order of the Nineteenth Judicial District Court, Lincoln County, denying HSBC’s motion for summary judgment and granting summary judgment to Timothy E. Watts (Watts) in a quiet title action.1 We reverse. ISSUES ¶2 HSBC raised four issues on appeal. However, we deem the following issue dispositive: ¶3 Did the District Court err in determining that the Marion debt to PrimeLending was no longer in the first priority lien position because the debt had been assigned to HSBC? FACTUAL AND PROCEDURAL BACKGROUND ¶4 On November 8, 2006, Watts sold real property located at 123 Meadow Lane in Eureka, Montana (Property), to David and Debra Marion (together “Marions”). The Marions financed the purchase of the Property with a loan from PrimeLending for $248,000 and a second loan from Watts in the amount of $62,000. Watts signed a warranty deed, a trust indenture to secure his loan to the Marions, and a subordination 1 M. R. App. P. 2(4) provides that “On motion of a party, or on the court’s own motion, the caption of a pending cause may be modified to more accurately reflect the actual alignment or status of a party.” Because Watts was the plaintiff in the underlying action, we have modified the caption to accurately reflect the actual alignment of the parties. 4 agreement. The subordination agreement, signed by Watts and Marions, provided that Watts agreed to subordinate his loan to the PrimeLending loan. On November 15, 2006, the Marions signed a deed of trust to PrimeLending, a trust indenture in favor of Watts, and the subordination agreement. First American Title Company recorded the warranty deed, trust indenture, deed of trust, and subordination agreement on November 17, 2006. ¶5 On May 1, 2009, the Marions defaulted on the loan originating with PrimeLending. PrimeLending assigned its interest in the Marions’ loan to HSBC on August 11, 2009. Charles J. Peterson (Peterson), acting as trustee for HSBC, executed a notice of trustee sale on October 13, 2009. Peterson mailed the notice of trustee sale to Watts by certified mail at Watts’ address of record in Montana. The post office attempted service of the notice on October 21 and 27, 2009, but both attempts were unsuccessful. Peterson then published the notice of trustee sale for three consecutive weeks and posted the notice at the Property. Watts was living in New Mexico at the time and claims that he never received any notice concerning the Marions’ default on the HSBC loan or the HSBC trustee’s sale. On February 22, 2010, Peterson held the trustee’s sale. HSBC purchased the Property for $260,000. HSBC recorded a trustee’s deed on February 23, 2010. ¶6 The Marions also defaulted on the loan from Watts. Watts, who claimed to be unaware of the previous HSBC trustee’s sale, recorded a notice of successor trustee on January 4, 2010, in anticipation of executing a foreclosure. Watts executed a notice of trustee’s sale on May 28, 2010. Watts provided notice to HSBC of his foreclosure proceeding, but HSBC did not provide notice of its previous foreclosure or respond in 5 any way. On September 30, 2010, Watts held his own trustee sale and was purchaser of record. Watts then recorded a trustee’s deed naming himself as the owner of the Property. ¶7 On March 22, 2011, after discovering that HSBC claimed ownership of the Property, Watts filed his complaint against HSBC, the Marions, and other parties claiming any interest in the Property. Watts sought to quiet title to the Property, and in the alternative, requested damages. HSBC answered the complaint and filed a counterclaim seeking to quiet title to the Property. On September 2, 2011, the District Court entered a default against the Marions. On August 26, 2011, HSBC filed its motion for summary judgment. The District Court denied HSBC’s motion for summary judgment on January 18, 2012. On August 3, 2012, Watts filed his motion for summary judgment. The District Court granted Watts’ motion for summary judgment on October 17, 2012. HSBC appeals. STANDARDS OF REVIEW ¶8 We review a district court’s ruling on a motion for summary judgment de novo, applying the same criteria of M. R. Civ. P. 56 as the district court. Mt. West Bank, N.A. v. Cherrad, LLC, 2013 MT 99, ¶ 25, 369 Mont. 492, 301 P.3d 796; Dubiel v. Mont. DOT, 2012 MT 35, ¶ 10, 364 Mont. 175, 272 P.3d 66. Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3). DISCUSSION 6 ¶9 Did the District Court err in determining that the Marion debt to PrimeLending was no longer in the first priority lien position because the debt had been assigned to HSBC? ¶10 Watts argued, and the District Court agreed, that when PrimeLending assigned its interest in the deed of trust and promissory note to HSBC, HSBC lost its priority over Watts’ previously subordinated lien on the Property because PrimeLending could not freely assign its rights under the subordination agreement to HSBC. The District Court noted that neither the Marions nor Watts consented to the assignment of any contractual rights or obligations to HSBC. Next, the District Court stated that HSBC had never claimed that it was an intended beneficiary of the subordination agreement. The District Court reasoned that even if HSBC had raised the issue, the language of the subordination agreement demonstrated that PrimeLending was an intended beneficiary but HSBC was not. After determining that Watts properly foreclosed on his trust indenture as the first priority lien holder, the District Court granted Watts’ motion for summary judgment and declared Watts the due and lawful owner of the Property. The District Court’s conclusions were in error. ¶11 Under Montana law, the assignee of a mortgage obtains all rights held by the original mortgage holder. This Court has long held that an assignment does not create a new lien. Hull v. Diehl, 21 Mont. 71, 79, 52 P. 782, 783 (1898). “Its sole office is to transfer from one person to another title to a mortgage lien already on the land, and its operation is of necessity limited to that purpose.” Hull, 21 Mont. at 79, 52 P. at 783. “[T]he general rule in most states is that where a valid assignment of a mortgage has been 7 consummated with proper consideration, the assignee is vested with all the powers and rights of the assignor.” Mort v. U.S., 86 F.3d 890, 894 (9th Cir. 1996). ¶12 Since a mortgage assignee succeeds to all of the assignor’s powers and rights, other jurisdictions have consistently held that an assignment of a mortgage does not affect its priority. See Fannie Mae v. Kuipers, 732 N.E.2d 723, 729 (Ill. App. 2d. Dist. 2000) (“Other jurisdictions have held under their respective state laws that an assignment of a mortgage does not affect its priority.”); Bank Western v. Henderson, 874 P.2d 632, 636 (Kan. 1994) (“There is nothing in the statutes or case law which indicates that an assignment of a mortgage . . . somehow affects the priority of the mortgage.”); Finlayson v. Waller, 134 P.2d 1069, 1072 (Idaho 1943) (“Upon the assignment of this mortgage, the assignee became vested with all the rights, powers and equities of the original mortgagee, and the mortgage in the hands of the assignee takes precedence over a lien which attached prior to the assignment but subsequent to the execution of the mortgage.”); Berger v. Baist, 6 P.2d 412, 413 (Wash. 1931) (“A mortgage having once obtained priority by record does not lose its place by being held by anyone under an unrecorded assignment.”); Schelling v. Thomas, 274 P. 755, 757-58 (Cal. App. 1st Dist. 1929) (“The assignee of a mortgage takes all the rights of his assignor, and if, in the hands of the assignor, it was entitled to priority over another mortgage . . . it has the same priority in the hands of the assignee.”). Although Montana has not previously addressed this question, we adopt the rationale set forth in these cases. ¶13 As noted above, Watts signed a subordination agreement, subordinating his loan to that of PrimeLending. Under the foregoing rule, Watts did not gain priority over the 8 PrimeLending deed of trust by virtue of the assignment from PrimeLending to HSBC. PrimeLending assigned “all of its rights, title and interest in and to” the deed of trust and note to HSBC. HSBC, as the assignee of the trust deed from PrimeLending, succeeded to all powers and rights previously held by PrimeLending, which included the right of priority over Watts’ subordinated trust indenture. ¶14 “An assignee of contract rights generally stands in the shoes of the assignor.” Credit Serv. Co. v. Crasco, 2011 MT 211, ¶ 17, 361 Mont. 487, 264 P.3d 1061; Massey-Ferguson Credit Corp. v. Brown, 173 Mont. 253, 256, 567 P.2d 440, 441-42 (1977). Montana has long recognized the rule that rights arising from contracts between private individuals are assignable, and that non-assignability is the exception. Winslow v. Dundom, 46 Mont. 71, 82, 125 P. 136, 139 (1912). In the absence of a non-assignment clause, either party may generally make an assignment of rights under the contract. Forsythe v. Elkins, 216 Mont. 108, 113, 700 P.2d 596, 599-600 (1985). There was no non-assignment clause in the mortgage documents between the Marions and PrimeLending. ¶15 HSBC is entitled to stand in the shoes of PrimeLending and receive any benefits that PrimeLending was entitled to under the mortgage documents, including the subordination agreement. The Deed of Trust between the Marions and PrimeLending expressly provided, as is common in the industry, that PrimeLending could sell the note without prior notice to the borrower. Because no notice of transfer was required, clearly the transfer could occur without the consent of either the Marions or Watts. Our only remaining inquiry, therefore, is whether the subordination agreement conferred a first 9 priority lien position upon PrimeLending. The language of the document clearly demonstrates that it did so. ¶16 A subordination agreement dictates the priorities between existing interests. Travelers Ins. Co. v. Holiday Village Shopping Ctr. Ltd. Pshp., 280 Mont. 217, 224, 931 P.2d 1292, 1296 (1996). The subordination agreement provided in pertinent part as follows: WHEREAS, it is a condition precedent to obtaining said loan from lender [PrimeLending] that said Deed of Trust last above mentioned [PrimeLending’s deed of trust] shall unconditionally be and remain at all times a lien or charge upon the land hereinbefore described [Property], prior and superior to the lien or charge of the Deed of Trust first above mentioned [Watts’ deed of trust]; and WHEREAS, Lender is willing to make said loan provided the Deed of Trust securing the same is a lien or charge upon the above described property [Property] prior and superior to the lien or charge of the Deed of Trust first above mentioned and provided that Beneficiary [Watts] will specifically and unconditionally subordinate the lien or charge of the Deed of Trust first above mentioned to the lien or charge of the Deed of Trust in favor of Lender; and WHEREAS, it is to the mutual benefit of the parties hereto that Lender shall make such loan to Owner [Marions]; and Beneficiary is willing that the Deed of Trust securing the same shall, when recorded, constitute a lien or charge upon said land which is unconditionally prior and superior to the lien or charge of the Deed of Trust first above mentioned. NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties hereto and other valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, and in order to induce Lender to make the loan above referred to, it is hereby declared, understood and agreed as follows: 1) That said Deed of Trust securing said Note [$248,000 PrimeLending loan] in favor of Lender, and any renewals or extensions thereof, shall unconditionally be and remain at all times a lien or charge on 10 the property therein described, prior and superior to the lien or charge of the Deed of Trust first above mentioned. 2) That Lender would not make its loan above described without this subordination agreement. 3) That this agreement shall be the whole and only agreement with regard to the subordination of the lien or charge of the Deed of Trust first above mentioned to the lien or charge of the Deed of Trust in favor of Lender above referred to and shall supersede and cancel, but only insofar as would affect the priority between the Deeds of Trust hereinbefore specifically described, any prior agreement as to such subordination including, but not limited to, those provisions, if any, contained in the Deed of Trust first above mentioned, which provide for the subordination of the lien or charge thereof to another Deed or Deeds of Trust or to another Mortgage or Mortgages. ¶17 Neither the deed of trust nor the subordination agreement contain any provisions restricting the lender’s right of assignment. Further, the plain language of the subordination agreement demonstrates the parties’ intent to subordinate Watts’ trust indenture to the PrimeLending deed of trust. The subordination agreement effectively and firmly placed PrimeLending’s mortgage interest ahead of Watts’ interest in the Property. ¶18 Watts concedes on appeal that PrimeLending was an intended beneficiary of the subordination agreement entered between him and the Marions, but argues that HSBC was not an intended beneficiary and therefore cannot enforce the terms of the document. We disagree. As intended beneficiary, PrimeLending was entitled to enforce the terms of the subordination agreement. Kurtzenacker v. Davis Surveying, Inc., 2012 MT 105, ¶ 20, 365 Mont. 71, 278 P.3d 1002; Williamson v. Mont. PSC, 2012 MT 32, ¶ 40, 364 Mont. 128, 272 P.3d 71. Because HSBC stepped into PrimeLending’s shoes in all respects by virtue of the assignment, it assumed PrimeLending’s rights as first lienholder as well as 11 its status as beneficiary of the subordination agreement. Watts cannot avoid the clear terms of the subordination agreement simply because a routine assignment occurred. ¶19 Accordingly, we conclude that the District Court erred in granting summary judgment to Watts. HSBC’s deed of trust in the Property clearly is entitled to priority over Watts’ trust indenture. We therefore reverse the entry of summary judgment in favor of Watts and remand for entry of judgment in favor of HSBC. ¶20 Reversed. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ BETH BAKER | August 20, 2013 |
8ae8dcc7-45d4-4c8a-a621-44a27be6cf37 | In re Estate of Quirin | 2013 MT 231 | DA 12-0737 | Montana | Montana Supreme Court | DA 12-0737 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 231 IN THE MATTER OF THE ESTATE OF VIOLET H. QUIRIN, a/k/a VI QUIRIN, Deceased. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DP-11-14 Honorable Karen Townsend, Presiding Judge COUNSEL OF RECORD: For Appellant: James P. O’Brien; O’Brien Law Office, P.C.; Missoula, Montana For Appellee: Harold V. Dye; Dye & Moe, PLLP; Missoula, Montana Submitted on Briefs: June 19, 2013 Decided: August 20, 2013 Filed: __________________________________________ Clerk August 20 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Cathie Schmiedeke (Schmiedeke) appeals from an order of Montana’s Fourth Judicial District Court, Missoula County, denying her Motion for Substitution of Judge as untimely. We affirm. ISSUE ¶2 Schmiedeke raises the following issue on appeal: ¶3 Did the District Court err in denying as untimely Schmiedeke’s Motion for Substitution of Judge? FACTUAL AND PROCEDURAL BACKGROUND ¶4 Violet H. Quirin (Decedent) died testate on January 10, 2011. Decedent was a widow and had two daughters, Schmiedeke and Marcy Speiser (Speiser). Decedent’s June 23, 2010 will acknowledged her daughters but expressly made no provision for them in her will. The will appointed Decedent’s friend, Kristine Fankell (Fankell), as the personal representative of Decedent’s estate and revoked all prior wills. ¶5 On January 18, 2011, Fankell filed an application for informal probate. The Clerk of Court accepted the application for informal probate and appointed Fankell as personal representative of Decedent’s estate. On January 24, 2011, Fankell issued by mail a Notice and Information to Heirs and Devisees. The Notice and Information to Heirs and Devisees was sent to Schmiedeke and Speiser. ¶6 On May 2, 2011, Speiser filed a Petition for Supervised Administration of the Estate and a Petition for Formal Probate of the Will, Determination of Testacy and Heirs, and Appointment of Personal Representative. Speiser attached a March 1, 2007 will of 3 Decedent that divided Decedent’s estate equally between her two daughters. Speiser argued that Decedent was not competent at the time she executed the June 23, 2010 will. Discovery commenced on July 27, 2011. ¶7 Schmiedeke made her first appearance in this action on October 19, 2012. Schmiedeke filed an Objection to Application for Informal Probate of Will and Appointment of Personal Representative and Demand for Jury Trial, a Petition for Removal of Fankell as Personal Representative, and a Motion for Substitution of Judge. On November 5, 2012, Fankell submitted a Motion to Strike Pleadings Filed by Schmiedeke. Fankell argued that Schmiedeke’s pleadings were improper because Schmiedeke was not a party to the proceeding and had not sought permission to intervene. ¶8 On December 5, 2012, the District Court denied Schmiedeke’s Motion for Substitution of Judge as untimely under § 3-1-804(1)(a), MCA. The District Court determined that Schmiedeke had 30 days from the date the Notice and Information to Heirs and Devisees was served to file a motion to substitute the judge. Since the Notice and Information to Heirs and Devisees was sent on January 24, 2011, the District Court reasoned that Schmiedeke had until February 24, 2011 to file the motion. The District Court concluded that Schmiedeke’s October 19, 2012 Motion for Substitution of Judge was filed far beyond the statutorily-prescribed time period. Furthermore, the District Court granted Fankell’s motion to strike Schmiedeke’s pleadings because Schmiedeke failed to timely move to intervene and her interests were adequately represented by Speiser. Schmiedeke appeals. 4 STANDARDS OF REVIEW ¶9 A district court’s decision on whether a motion for substitution of a judge is timely is a conclusion of law that this Court reviews for correctness. In re Estate of Greene, 2013 MT 174, ¶ 5, 370 Mont. 490, ___ P.3d ___; Patrick v. State, 2011 MT 169, ¶ 12, 361 Mont. 204, 257 P.3d 365. DISCUSSION ¶10 Did the District Court err in denying as untimely Schmiedeke’s Motion for Substitution of Judge? ¶11 Section 3-1-804(1)(a), MCA, governs the right of parties in a civil action to move for substitution of a district court judge. Each adverse party is generally granted one opportunity to substitute the district court judge assigned to her case. Section 3-1-804(1), MCA. A motion for substitution of a district court judge must be filed within 30 calendar days after the first summons is served in compliance with M. R. Civ. P. 4 or an adverse party has appeared. Section 3-1-804(1)(a), MCA. A motion for substitution that is not timely filed is void and must be denied by the district court judge for whom substitution is sought. Section 3-1-804(4), MCA. ¶12 In an informal probate proceeding, the application for informal probate of a will and appointment of a personal representative is directed to the clerk of court rather than the district court judge. Section 72-3-201, MCA. The clerk of court is tasked with determining whether the application is complete and timely, and the clerk appoints the personal representative upon determining that the statutory requirements have been met. Sections 72-3-212 and -225, MCA. Within 30 days of appointment, the personal 5 representative must deliver or send by ordinary mail a notice of appointment to the heirs and devisees of the decedent. Section 72-3-603, MCA. An informal probate is a non-adjudicative proceeding to which the Montana Rules of Civil Procedure do not apply. See In re Estate of Spencer, 2002 MT 304, ¶ 13, 313 Mont. 40, 59 P.3d 1160; § 72-1-207, MCA (“Unless specifically provided to the contrary in this code or unless inconsistent with its provisions, the rules of civil procedure, including the rules concerning vacation of orders and appellate review, govern formal proceedings under this code.”) (emphasis added). ¶13 An interested person may bring an informal probate under the supervision of the district court by filing a petition for formal testacy pursuant to Title 72, chapter 3, part 3, MCA, or by filing a petition for supervised administration pursuant to Title 72, chapter 3, part 4, MCA. Estate of Greene, ¶ 11. In contrast to informal probate of a will, formal proceedings are conducted before a judge with notice to interested persons. Estate of Spencer, ¶ 15; § 72-1-103(19), MCA. The Montana Rules of Civil Procedure apply in a formal estate proceeding. Estate of Spencer, ¶ 16; § 72-1-207, MCA. ¶14 This Court’s recent decision, Estate of Greene, is highly analogous to the instant case. Estate of Greene began as an informal probate, but became a formal proceeding when one of the decedent’s children petitioned for supervised administration. Estate of Greene, ¶¶ 3-4. The Court reasoned that since an informal probate is not a contested proceeding and does not fall under the supervision of a district court judge, it does not constitute a “civil action” for purposes of § 3-1-804, MCA. Estate of Greene, ¶¶ 9, 13. The Court determined that the 30-day timeline for substitution of a district court judge set 6 forth in § 3-1-804(1)(a), MCA, is triggered when an interested person files a petition that converts the proceeding to a court-supervised administration. Estate of Greene, ¶¶ 11-12. We concluded that the petitioner’s motion for substitution of the district court judge was untimely because it was not filed within 30 calendar days of the filing of the petition for supervised administration. Estate of Greene, ¶ 15. ¶15 Similar to Estate of Greene, the administration of Decedent’s estate began as an informal probate proceeding. When Speiser filed a Petition for Supervised Administration of the Estate and a Petition for Formal Probate of the Will, Determination of Testacy and Heirs, and Appointment of Personal Representative on May 2, 2011, the informal probate proceeding initiated by Fankell was converted into a formal proceeding and effectively came under the supervision of the District Court Judge. These May 2, 2011 filings triggered the 30-day deadline for filing a motion to substitute the District Court Judge pursuant to § 3-1-804(1)(a), MCA. See Estate of Greene, ¶¶ 11-12. ¶16 Schmiedeke argues that the timeline under § 3-1-804(1)(a), MCA, did not begin to run until she made her initial appearance on October 19, 2012, by filing her Objection to Application for Informal Probate of Will and Appointment of Personal Representative and Demand for Jury Trial, a Petition for Removal of Fankell as Personal Representative, and a Motion for Substitution of Judge. However, § 3-1-804(9), MCA, states that “No party who is joined or intervenes has any right of substitution after the time has run as to the original parties to the proceeding.” Once the deadline passes for the original parties to move for substitution, subsequently joined parties may not do so. Mattson v. Mont. Power Co., 2002 MT 113, ¶ 14, 309 Mont. 506, 48 P.3d 34. Accordingly, Schmiedeke 7 was required to file her Motion for Substitution of Judge within 30 days of May 2, 2011, the date that the matter was converted to a formal proceeding by Speiser. Schmiedeke’s October 19, 2012 Motion for Substitution of Judge clearly failed to comply with the statutory deadline established by § 3-1-804(1)(a), MCA. ¶17 The District Court correctly determined that Schmiedeke’s Motion for Substitution of Judge was untimely, but incorrectly concluded that the 30-day deadline was triggered on January 24, 2011, upon service of the Notice and Information to Heirs and Devisees. This Court will affirm a district court’s decision when it reaches the correct result, even if it is for the wrong reasons. Estate of Greene, ¶ 14; Mary J. Baker Revocable Trust v. Cenex Harvest States, Coops., Inc., 2007 MT 159, ¶ 80, 338 Mont. 41, 164 P.3d 851. CONCLUSION ¶18 For the foregoing reasons, we affirm the District Court’s denial of Schmiedeke’s Motion for Substitution of Judge. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ JIM RICE /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS | August 20, 2013 |
977ba27d-01dd-49c5-824a-2644d7d326a0 | State v. Carson Tillett | 2013 MT 251N | DA 12-0734 | Montana | Montana Supreme Court | DA 12-0734 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 251N STATE OF MONTANA, Plaintiff and Appellee, v. CARSON TILLETT, Defendant and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 12-24C Honorable John C. Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Robin A. Meguire, Attorney at Law, Great Falls, Montana For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana Marty Lambert, Gallatin County Attorney, Bozeman, Montana Submitted on Briefs: July 10, 2013 Decided: September 3, 2013 Filed: __________________________________________ Clerk September 3 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Carson Tillett pled guilty to felony theft by common scheme, and was sentenced pursuant to a plea agreement to three years deferred imposition of sentence, community service and restitution. The District Court set the amount of restitution at $2,424.78, and made Tillett jointly and severally liable for that amount with the others involved in the crime. Tillett appeals from the amount of restitution. We affirm. ¶3 Tillett was involved in a scheme with five others to enter a Walmart store in Bozeman very early in the morning and steal merchandise by passing it out of an opening one of them had made in a wall in the store’s garden area. Tillett and his companions moved electronic devices and other merchandise to the garden area and passed them through the opening so they could be loaded into waiting vehicles. They were confronted by store employees and fled the store in two vehicles loaded with stolen merchandise. ¶4 The restitution obligation imposed upon Tillett was composed partially of the amount of damage done to the store wall and partially of the value of the merchandise stolen. Tillett claims that he should not be responsible for the damage to the store wall because he did not personally create the hole, but only used it to steal merchandise. Tillett claims that he should not be responsible for the value of the stolen merchandise because Walmart could take it and 3 resell it at the usual retail price. Tillett points out that Walmart has a 90-day full refund policy on undamaged merchandise, and that he would have been able to return the goods except for the fact that the State impounded the stolen items as evidence and kept them past the 90-day window. ¶5 The Walmart store filed a restitution affidavit in the District Court and a store employee testified at the sentencing hearing. She testified as to the cost to repair the hole in the store wall and as to the value of four of the items stolen by Tillett and his compatriots. While other items were stolen, these four items had been opened or damaged and could not be returned to the store shelves for retail sale. According to store policy they would be returned to Walmart’s Return Center and the Bozeman store would be provided with a credit representing the salvage value of the items. As ordered by the District Court and agreed to by the store, this salvage value, if any, will be deducted from Tillett’s restitution obligation. ¶6 Tillett was part of a common scheme felony along with several others. He used the hole in the store wall to commit a felony and cannot escape liability for restitution by arguing that another person initially created the opening. Tillett was charged with and pled guilty to theft by common scheme. He is liable by accountability for the damage to the store and for the loss occasioned by the thefts. Sections 45-2-301 and -302, MCA. Tillett fully participated in the theft from the store and therefore is jointly and severally liable for restitution. State v. Workman, 2005 MT 22, ¶¶ 18-20, 326 Mont. 1, 107 P.3d 462. The District Court’s authority to impose liability for the entire amount of loss arises from § 46- 18-241(1), MCA, which requires a court to “require an offender to make full restitution to any victim who has sustained a pecuniary loss.” 4 ¶7 As to the return of the stolen property to Walmart, Tillett cannot avail any benefit from the store’s 90-day return policy. That policy was clearly intended for the benefit of bona fide customers of the store, and not for people who pass stolen merchandise through a hole in the wall. Further, the District Court specifically allowed for a reduction in the amount of restitution arising from the value of the stolen merchandise if it had any salvage value after being released as evidence. ¶8 Restitution is viewed as a civil obligation and if Tillett feels that he is bearing a disproportionate burden of the joint and several obligation, he can seek contribution from his compatriots. Workman, ¶ 19. ¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for memorandum opinions. The issues in the case are legal and the District Court correctly applied Montana law. ¶10 Affirmed. /S/ MIKE McGRATH We concur: /S/ JIM RICE /S/ LAURIE McKINNON /S/ BETH BAKER /S/ BRIAN MORRIS | September 3, 2013 |
b3f16562-5e7e-4bca-b447-1d0d74272fda | Kananen v. South | 2013 MT 232 | DA 12-0714 | Montana | Montana Supreme Court | DA 12-0714 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 232 CARL W. KANANEN, Plaintiff and Appellant, v. KAREN A. SOUTH, ALTA MAE PALLETT and WESTERN SURETY COMPANY, Defendants and Appellees. APPEAL FROM: District Court of the Tenth Judicial District, In and For the County of Fergus, Cause No. DV 12-47 Honorable E. Wayne Phillips, Presiding Judge COUNSEL OF RECORD: For Appellant: Jack R. Stone, Attorney at Law, Lewistown, Montana For Appellee: Joan E. Cook, Law Office of Joan E. Cook, Missoula, Montana (Counsel for Appellee, Karen A. South) Kris A. Birdwell, Stogsdill Law Office, Lewistown, Montana (Counsel for Appellees Alta Mae Pallett and Western Surety Company) Submitted on Briefs: May 29, 2013 Decided: August 20, 2013 Filed: __________________________________________ Clerk August 20 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Carl Kananen (Kananen) appeals from the judgment of the Tenth Judicial District Court, Fergus County, granting a motion to dismiss filed by Karen South, Alta Mae Pallett, and Western Surety (collectively “Defendants”). We affirm in part and reverse in part, and address the following issues: ¶2 Issue One: Did the District Court err by dismissing Kananen’s fraud claim on the basis of the statute of limitations? ¶3 Issue Two: Did the District Court err by not conducting a hearing on the Rule 12(b)(6) motion to dismiss? ¶4 Issue Three: Did the District Court err by awarding attorney fees and costs pursuant to § 40-4-110, MCA? FACTUAL AND PROCEDURAL BACKGROUND ¶5 Kananen and Karen South (South) were married in November 1993. In January 1995, South made Kananen a co-owner of the Mill Creek Property, which South had owned and lived on prior to her marriage to Kananen. In October 2007, the Fergus County Clerk and Recorder recorded a quit claim deed (the “deed”) that transferred Kananen’s interest in the Mill Creek Property back to South. ¶6 Kananen and South’s marriage ended in divorce in 2009. The District Court held a dissolution hearing on November 19, 2009, at which the parties argued over their respective interests in the Mill Creek Property. Testimony revealed that between 1993 and 2009, the Mill Creek Property increased in value by $100,000. The parties disputed whether this 3 $100,000 should go into the net marital estate to be equitably apportioned between Kananen and South. Following the hearing, the District Court concluded that South was the owner of the Mill Creek Property, and that the majority increase in value of the property was due to market force and had nothing to do with any contributions made by Kananen. The court granted $8,000 to Kananen for his minimal contributions to improvements in the property. ¶7 On June 5, 2012, Kananen filed a complaint alleging that South fraudulently forged Kananen’s signature on the deed to the Mill Creek Property and that Alta Mae Pallett (Alta) notarized the forged signature. Western Surety Company issued Alta her notary bond and, accordingly, was also a named defendant. ¶8 Defendants moved to dismiss pursuant to the statute of limitations, collateral estoppel, and lack of damages. The District Court granted Defendants’ motion on the basis that the two-year statute of limitations for fraud claims had run. The District Court also awarded Defendants attorney fees and costs pursuant to § 40-4-110, MCA. ¶9 Kananen appeals. STANDARD OF REVIEW ¶10 We review de novo a district court’s ruling on a motion to dismiss for failure to state a claim pursuant to M. R. Civ. P. 12(b)(6). White v. State, 2013 MT 187, ¶ 15, 371 Mont. 1, __ P.3d __. A district court’s determination that a complaint failed to state a claim presents a conclusion of law, which we review for correctness. White, ¶ 15. 4 ¶11 We review a district court’s decision that legal authority exists to award attorney fees for correctness. Wittich Law Firm, P.C. v. O’Connell, 2013 MT 122, ¶ 29, 370 Mont. 103, __P.3d__. DISCUSSION ¶12 Issue One: Did the District Court err by dismissing Kananen’s fraud claim on the basis of the statute of limitations? ¶13 Kananen argues that pursuant to § 27-2-203, MCA, a cause of action for a fraud claim does not accrue until the discovery by the aggrieved party of the facts constituting the fraud. Kananen maintains that he did not know of the allegedly forged deed until September 27, 2011, when he obtained a copy of the deed from the Fergus County Clerk and Recorder. Kananen further asserts that the alleged forgery was not substantiated until March 19, 2012, when a forensic document examiner issued a report on Kananen’s signature on the deed and concluded it was “highly probable” that the signature did not belong to Kananen. Kananen therefore claims that the actual date of the discovery of fraud, and the date the statute of limitations began to run, was March 19, 2012. Accordingly, Kananen argues the District Court erred when it held that his fraud claim—filed on June 5, 2012—was barred by the two- year statute of limitations. ¶14 Defendants counter that the statute of limitations for Kananen’s claim began to run at the time of the dissolution hearing on November 19, 2009. Defendants maintain that the deed containing Kananen’s allegedly forged signature was reviewed and admitted into 5 evidence at the hearing, and Kananen was thus put on notice of the relevant facts related to the alleged forgery at that time. ¶15 Section 27-2-203, MCA, requires that an action for fraud must be commenced within two years after the claim accrues. The cause of action shall not “be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud . . . .” Section 27-2-203, MCA. The two-year limitations period therefore begins to run when the party bringing the action discovered the fraud or in the exercise of due diligence should have discovered the fraud. Section 27-2-102(3), MCA; Cartwright v. Equitable Life Assur. Socy. of the U.S., 276 Mont. 1, 19, 914 P.2d 976, 984 (1996). ¶16 In the present case, the District Court determined that the Mill Creek Property was addressed during the dissolution proceeding and that Kananen was thus distinctly put on notice of the import of the deed on November 19, 2009. The court found that Kananen received a copy of the allegedly forged deed at the dissolution hearing. Further, during the dissolution hearing the District Court referred to the Mill Creek Property as real property owned by South, and clarified that the only issue pertaining to that property was whether the increase in its value of $100,000 was a marital asset. In the final decree of dissolution filed on December 8, 2009, the court found that the property was owned exclusively by South and allocated a sum of $8,000 to Kananen for his contribution to it. Even if Kananen did not review the deed at the hearing, as he alleges, he was clearly alerted to the fact that he was no longer a co-owner of the Mill Creek Property at that time. He was thus put on notice of the facts underlying any fraud claim. 6 ¶17 Kananen further argues that Defendants concealed facts relevant to the alleged forgery, and that the doctrine of fraudulent concealment therefore tolled the statute of limitations for his claim. The doctrine of fraudulent concealment, which was essentially codified in § 27-2-102(3), MCA, tolls the statute of limitations until the cause of action is discovered or could have been discovered through due diligence. Rucinsky v. Hentchel, 266 Mont. 502, 506, 881 P.2d 616, 618 (1994). As just explained, Kananen discovered or could have discovered the alleged forgery on November 19, 2009. There is no evidence that Defendants concealed any facts that would toll the statute of limitations beyond this point. ¶18 Since his claim was not filed until June 2012, it is clear that the action was brought more than two years after Kananen discovered or could have discovered the alleged forgery. The District Court therefore correctly determined Kananen’s fraud claim was barred by the statute of limitations. ¶19 Issue Two: Did the District Court err by not conducting a hearing on the Rule 12(b)(6) motion to dismiss? ¶20 Kananen argues that the District Court violated his constitutional due process rights by failing to give notice and hold a hearing on Defendants’ motion to dismiss, even though a hearing was never requested. In support of his argument, Kananen points out that the constitutional right to due process requires notice and an opportunity to be heard “‘at a meaningful time and in a meaningful manner,’” In re Marriage of Stevens, 2011 MT 124, ¶ 18, 360 Mont. 494, 255 P.3d 154 (quoting Mont. Power Co. v. Pub. Serv. Commn., 206 Mont. 359, 368, 671 P.2d 604, 609 (1983)). However, Kananen failed to provide any 7 authority for his assertion that this right requires that a district court hold a hearing on a motion to dismiss when a hearing was never even requested in the first place. ¶21 Pursuant to M. R. Civ. P. 12(i), when a party moves to dismiss an action for failure to state a claim, the motion shall be heard and determined before trial “[i]f a party so moves[.]” Here, none of the parties requested that the District Court hold a hearing on Defendants’ motion to dismiss, and Kananen has provided nothing to suggest that the District Court interfered with his opportunity to do so. We therefore conclude Kananen’s due process rights were not violated by the District Court granting Defendants’ motion to dismiss without holding a hearing. ¶22 Issue Three: Did the District Court err by awarding attorney fees and costs pursuant to § 40-4-110, MCA? ¶23 Kananen maintains that the District Court improperly awarded attorney fees and costs to Defendants pursuant to § 40-4-110, MCA. He argues that his cause of action was one for fraud, and, consequently, § 40-4-110, MCA, was not applicable. We agree. ¶24 Section 40-4-110, MCA, governs the award of attorney fees in dissolution actions. The District Court determined that although Kananen’s complaint was characterized as one for fraud, it was “unequivocally a re-litigation of an allocation of real property made in the Decree.” The court therefore granted attorney fees and costs to Defendants based upon § 40- 4-110, MCA. ¶25 Although the underlying facts of Kananen’s fraud claim overlap with the facts of the 2009 dissolution proceeding, the two causes of action were separate. Kananen’s complaint 8 in the case at hand clearly alleges fraud and constructive fraud. The District Court therefore erred by awarding fees and costs pursuant to § 40-4-110, MCA. CONCLUSION ¶26 For the reasons stated above, we affirm in part and reverse in part. /S/ MICHAEL E WHEAT We concur: /S/ MIKE McGRATH /S/ JIM RICE /S/ BETH BAKER /S/ PATRICIA COTTER | August 20, 2013 |
f61fda78-af23-47a4-bff5-97ae015bbbdb | Owen v. Skramovsky | 2013 MT 348 | DA 13-0119 | Montana | Montana Supreme Court | DA 13-0119 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 348 ROBERT OWEN, Plaintiff, Appellee and Cross-Appellant, v. DON SKRAMOVSKY, Defendant, Appellant and Cross-Appellee. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV 10-1308(B) Honorable Robert B. Allison, Presiding Judge COUNSEL OF RECORD: For Appellant: Stephanie M. Breck, Justin G. Breck; Kaplan & Breck, PC; Columbia Falls, Montana For Appellee: Tammi E. Fisher, Noah H. Bodman; Fisher & Bodman, PC; Kalispell, Montana Submitted on Briefs: October 2, 2013 Decided: November 19, 2013 Filed: __________________________________________ Clerk November 19 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Don Skramovsky purchased a Mission Foods distributorship from Robert Owen in April 2010. While Skramovsky paid Owen $10,000 down to be applied to the full purchase price of the distributorship, he took over operation of the distributorship without paying Owen the remaining balance. Owen sued Skramovsky in the Eleventh Judicial District Court of Montana for breach of contract and unjust enrichment. Skramovsky counter-claimed that Owen had fraudulently and negligently misrepresented aspects of the business to Skramovsky resulting in Skramovsky’s “uninformed” purchase. Following a bench trial, the District Court determined Skramovsky had been unjustly enriched by the transaction and awarded Owen $81,325 plus reasonable costs. Skramovsky appeals and Owen cross-appeals. We affirm. ISSUES ¶2 Did the District Court err in finding that Skramovsky agreed to buy the distributorship for $130,000? ¶3 Did the District Court err in finding that Skramovsky was unjustly enriched? ¶4 Did the District Court apply the proper measure of damages in awarding Owen $81,325 plus costs for his unjust enrichment claim? ¶5 Did the District Court err in finding that Skramovsky had knowledge of the falsity of Owen’s representations regarding commissions and the provision of profit and loss statements? ¶6 Owen presents the following issue on cross-appeal: 3 ¶7 Did the District Court improperly apply the law to the facts underlying his unjust enrichment/quantum meruit claim so as to misstate the damages due him? FACTUAL AND PROCEDURAL BACKGROUND ¶8 Robert Owen owned a Mission Foods distributorship in Flathead County, Montana, from 1999 until 2010. He purchased the business for $75,000 at a time when the distributorship was making less than $2,000 per week in gross sales. By the spring of 2009, the distributorship was averaging approximately $8,000 per week in gross sales. Owen testified that operation of the distributorship provided him with a comfortable living without the need for additional employment. ¶9 In 2009, Owen decided to sell his business and met with Don and Tammy Skramovsky in February 2010 to discuss their interest in purchasing the distributorship. He told the Skramovskys that the business generated approximately $8,000 in weekly sales and showed them a claim slip purportedly supporting that figure. Owen and the Skramovskys also discussed the percentage of sales retained by the distributor. Owen claims he told Skramovskys they would keep 15 – 20% depending on the type of products sold, while Skramovsky insists Owen said it was a fixed 20 percent. ¶10 Skramovsky asserts that he requested profit and loss statements from Owen during the February 2010 meeting and Owen agreed to provide them. Owen denies this, saying he never kept such statements but that he agreed to “put together” some financial information for Skramovsky’s review. It is undisputed that Owen did not provide any 4 kind of financial documentation either before or after completion of the transfer of the distributorship. ¶11 Owen alleges that the parties discussed a purchase price of $130,000 with $10,000 as a down payment. Skramovsky claims Owen requested $120,000 with a $10,000 down payment. Owen asserts that at the close of the February 2010 meeting, he believed he had a deal with the Skramovskys to purchase his business. He nonetheless subsequently met with Don and Jan Keltner to explore their interest in purchasing the distributorship. After the meeting to discuss the sale, the Keltners accompanied Owen on the distribution route serviced by the distributorship. They later offered to purchase the distributorship for $130,000. ¶12 In March 2010, Owen notified Skramovsky that the Keltners wished to purchase the business for more money than the Skramovsky had offered. He told Skramovsky that if he and his wife wished to purchase the distributorship, the price was now $140,000. It appears that Skramovsky offered $130,000 and Owen accepted.1 Owen informed the Keltners that the business had been sold. In April and May 2010, Skramovsky gave Owen two checks for $5,000 each. These checks constituted the $10,000 down payment discussed in the February meeting. ¶13 Skramovsky applied with Mission Foods for approval to assume control over the distributorship and signed a distributor agreement with Mission Foods on April 30, 2010. During May 2010, Skramovsky accompanied Owen on at least six occasions along the 1 Owen testified to both a $130,000 and a $140,000 sales price. See ¶ 21. 5 distribution route during which Owen instructed Skramovsky in the operation of the route. Additionally, Owen notified Mission Foods that Skramovsky would be assuming control. These events took place despite the absence of any written sales contract or agreement. ¶14 On June 1, 2010, Owen relinquished control and Skramovsky assumed control over the distributorship. Owen transferred the distributorship’s inventory to Skramovsky at that time. On June 7, 2010, Owen presented a proposed written asset purchase agreement to Skramovsky but Skramovsky refused to sign it because it contained terms he claims were never discussed. Owen amended the proposed agreement and presented the amended document to Skramovsky on July 3, 2010. Skramovsky again refused to sign claiming Owen had not completed Skramovsky’s training. Owen denies that Skramovsky requested additional training. Ultimately, the parties never entered into a written purchase contract, nor did Skramovsky pay Owen any more money toward the purchase of the distributorship. ¶15 In September 2010, Owen filed a Complaint alleging breach of contract and unjust enrichment. Skramovsky answered the Complaint, presented numerous affirmative defenses and counter-claimed for fraud and negligent misrepresentation. He sought punitive damages as well. The District Court conducted a bench trial in late October and November 2012. The court issued its Findings of Fact, Conclusions of Law, and Order on December 19, 2012. It concluded Skramovsky had been unjustly enriched by his acquisition of the distributorship for a $10,000 payment and, as a result, the court 6 awarded damages to Owen. It calculated these damages based upon “the value of the enhancement to Skramovsky’s property as a result of his acquiring the distributorship.” Skramovsky was ordered to pay Owen $81,325. The court also dismissed Skramovsky’s counter-claims. ¶16 Skramovsky appeals and Owen cross-appeals. STANDARD OF REVIEW ¶17 We review the factual findings of a district court sitting without a jury to determine whether they are clearly erroneous. A district court’s findings are clearly erroneous if they are not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed. We review for correctness a district court’s conclusions of law. AAA Constr. of Missoula, LLC v. Choice Land Corp., 2011 MT 262, ¶ 17, 362 Mont. 264, 264 P.3d 709. ¶18 A district court’s determination of damages is also a factual finding which will be upheld if supported by substantial evidence. We will not overturn such a determination unless it is clearly erroneous. Watson v. West, 2011 MT 57, ¶ 16, 360 Mont. 9, 250 P.3d 845. DISCUSSION ¶19 Did the District Court err in finding that Skramovsky agreed to buy the distributorship for $130,000? ¶20 Skramovsky denies having agreed to buy Owen’s Mission Foods distributorship for $130,000 or, for that matter, any other price. He claims that he told Owen he would 7 “consider” paying $130,000 “but only if Owen produced the financial documentation” requested by Skramovsky, which Owen did not do. Skramovsky further argues in the alternative that “[e]ven if [he] did agree to purchase the [d]istributorship for $120,000 or $130,000, he was an uniformed [sic] buyer and therefore, the price is not a ‘fair market value’ and should not be utilized for any calculation of damages.” ¶21 Owen testified that at the end of the February 2010 meeting with Skramovsky, he concluded Skramovsky had agreed to purchase the distributorship for the asking price of $130,000. After being approached by the Keltners, Owen went back to Skramovsky and told him the Keltners had offered a higher price for the distributorship. After discussing this with Skramovsky, Owen concluded that Skramovsky had agreed to purchase the distributorship for the higher price of $140,000. Owen therefore told the Keltners the distributorship had been sold and was no longer available. Subsequently, Owen began training Skramovsky on the route, Skramovsky paid $10,000 down, sought and received approval from Mission Foods to take over Owen’s distributorship and began operating the business. ¶22 It is well established that it is exclusively within the province of the trier of fact, and not this Court, to weigh evidence, including conflicting evidence, and judge the credibility of the witnesses. We have repeatedly held that we will not second-guess a district court’s determinations regarding the strength and weight of conflicting testimony. St. James Healthcare v. Cole, 2008 MT 44, ¶ 43, 341 Mont. 368, 178 P.3d 696, Varano v. Hicks, 2012 MT 195, ¶ 9, 366 Mont. 171, 285 P.3d 592. 8 ¶23 The District Court was presented with conflicting evidence as to the purchase price and the existence of an agreement between the parties. It was the District Court’s responsibility to determine the credibility of the witnesses and weigh the evidence presented. As there was testimony supporting the District Court’s findings that Skramovsky did agree to purchase the distributorship for $130,000, the findings are not clearly erroneous nor are the court’s conclusions of law in this regard incorrect. ¶24 Did the District Court err in finding that Skramovsky was unjustly enriched? ¶25 Because the parties did not enter into a written contract, the District Court concluded the doctrine of unjust enrichment applied. “The doctrine of unjust enrichment is an equitable means of preventing one party from benefiting from his or her wrongful acts.” In the absence of a contract between parties, the doctrine of unjust enrichment may create an implied contract in law. Hinebauch v. McRae, 2011 MT 270, ¶ 29, 362 Mont. 358, 264 P.3d 1098 (citing Estate of Pruyn v. Axmen Propane, Inc., 2009 MT 448, ¶¶ 63- 64, 354 Mont. 208, 223 P.3d 845). Unjust enrichment is simply “[t]he retention of a benefit conferred by another, without offering compensation, in circumstances where compensation is reasonably expected.” Black’s Law Dictionary 1536 (Bryan A. Garner ed., 7th ed., West 1999). ¶26 Skramovsky argues that he did not engage in any “wrongful acts” such as misconduct or taking advantage of Owen. He maintains that at the time Mission Foods transferred control of the distributorship to him, he and Owen were still engaged in negotiations for the sale and that a price had not yet been established nor had Owen 9 provided Skramovsky with requested financial documents. Skramovsky claims he felt “obligated” under the April 2010 distribution agreement with Mission Foods to operate the distributorship even though he had not yet purchased it. Therefore, he asserts there was no “bad act,” nor was it misconduct for him to operate the distributorship despite not owning it. Relying on the testimony of his expert witness, Donald Kisler, Skramovsky further asserts that the distributorship had “no value” at the time Skramovsky assumed it and his assumption of the distributorship “did not give him any ‘benefit’ or value.” ¶27 The District Court found that Owen agreed to sell and Skramovsky agreed to buy the distributorship but that no “valid, enforceable agreement to this effect [was consummated] between the parties.” The court also found that the value of the distributorship was clearly “above $10,000”—the amount Skramovsky paid to Owen. ¶28 During the three-day bench trial, substantial evidence was presented as to the value of the distributorship. Some of the evidence indicated the distributorship had no value while other evidence indicated a substantial and growing value. The court found that “Skramovsky, by assuming control of the distributorship and deriving all benefit therefrom without paying any further monies to [Owen] other than the previously mentioned $10,000 down payment, has clearly taken advantage of Owen.” The District Court continued that “[s]ince June 1, 2010, Skramovsky has been operating the distributorship, which has yielded gross weekly sales in excess of $8,000.” Because the value was greater than the amount paid, and Skramovsky was reaping the benefits of 10 operating the distributorship, the District Court concluded Skramovsky was unjustly enriched. ¶29 As addressed above, it is for the trier of fact to weigh the evidence and judge the credibility of the witnesses. St. James Healthcare, ¶ 43. As the record contains substantial credible evidence reflecting a value to the distributorship greater than the $10,000 paid by Skramovsky, we conclude the District Court’s determination that Skramovsky was unjustly enriched is not clearly erroneous. ¶30 Did the District Court apply the proper measure of damages in awarding Owen $81,325 plus costs for his unjust enrichment claim? ¶31 The District Court determined that the proper measure of damages for Owen’s unjust enrichment claim was either the quantum meruit value of Owen’s labor and materials or the value of the enhancement to Skramovsky’s property. The court concluded that because there was no evidentiary basis for measuring the quantum meruit value, “the value of the distributorship, being the enhancement to Skramovsky’s property, must be determined.” ¶32 To make such a determination, the District Court considered the value attributed to the distributorship by Owen and Skramovsky when they were negotiating a sale of the distributorship. Acknowledging that there was no enforceable agreement between the parties, the court nonetheless found that Skramovsky had agreed to purchase the distributorship for $130,000. This “agreed price” was premised upon Owen’s representation that the distributorship had weekly gross sales of $8,000 which was subject to a 20% commission structure. Such sales and commissions would yield 11 Skramovsky a weekly income before expenses of $1,600. Discounting sales receipts from the first six months of operations during which Skramovsky was learning how to efficiently operate the distributorship, the District Court focused on testimony revealing that during 2011, Skramovsky’s commissions averaged $1,124/week, or 70.25% of the commissions Skramovsky expected to receive for his $130,000 investment. Applying 70.25% to the original purchase price of $130,000, the court concluded that a fair value for the distributorship was $91,325. This sum was offset by the $10,000 down payment, resulting in a balance of $81,325. ¶33 Skramovsky does not challenge the District Court’s conclusion that there was insufficient evidence to determine a quantum meruit value. However he disagrees that a determination of the enhancement to his property should have been based upon “Owen’s desired selling price.” Skramovsky opines that the benefit bestowed upon him has nothing to do with the price he was originally willing to pay to purchase the distributorship. ¶34 We conclude based upon the facts of this case that the District Court’s determination of damages was based upon credible evidence and is not clearly erroneous. The court crafted a reasonable method for determining the value of the distributorship which represented the amount by which Skramovsky was unjustly enriched. We affirm the court’s ruling on this issue. 12 ¶35 Did the District Court err in finding that Skramovsky had knowledge of the falsity of Owen’s representations regarding commissions and the provision of profit and loss statements? ¶36 Skramovsky alleged in his counter-claim that Owen misrepresented the commission structure applied to the distributorship’s sales by Mission Foods and that Owen falsely represented he would provide Skramovsky with profit and loss statements reflecting the distributorship’s financial performance. Owen denies both allegations. To prevail on a claim of actual fraud or negligent misrepresentation, Skramovsky must establish, among other things, that he was unaware that Owen’s misrepresentations were incorrect or untrue. McCulley v. Am. Land Title Co., 2013 MT 89, ¶ 19, 369 Mont. 433, 300 P.3d 679 (setting forth the nine elements of an actual fraud claim); Harpole v. Powell Cty. Title Co., 2013 MT 257, ¶ 28, 371 Mont. 543, 309 P.3d 34 (setting forth the six elements of a negligent misrepresentation claim). ¶37 The District Court dismissed Skramovsky’s counter-claim alleging that Owen engaged in fraud and misrepresentation with respect to commissions. The court found Skramovsky’s allegations incredible. It concluded that even if Owen did represent that the commission return was 20%, Skramovsky knew this to be incorrect in light of the fact that he signed the Mission Foods distributor agreement and initialed the page that set forth the actual commission structure information. Further, the court found it significant that Skramovsky was aware that Owen had not ever maintained profit and loss statements over the years he operated the business. It therefore concluded that Skramovsky could not satisfy the elements of a claim of actual fraud and negligent misrepresentation. 13 Again, the court made its determination based upon its perception of the credibility of the witnesses. Having reviewed the record, we cannot conclude that the court’s findings in this regard are clearly erroneous or that its conclusions are incorrect. We therefore affirm the court’s dismissal of Skramovsky’s counter-claims. ¶38 CROSS-APPEAL: Did the District Court improperly apply the law to the facts underlying his unjust enrichment/quantum meruit claim so as to misstate the damages due him? ¶39 Owen asserts the District Court erred in determining the amount by which Skramovsky was unjustly enriched. He opines that Skramovsky was unjustly enriched by $120,000—the amount of money the Keltners were willing to pay for the distributorship ($130,000 minus Skramovsky’s $10,000 down payment). Owen further argues, as noted above, that Skramovsky signed the distribution agreement with Mission Foods and knew exactly what the commission structure was because it was included in the agreement. For this reason, Owen alleges the District Court erred in using a 20% commission factor in its calculation of Skramovsky’s enhanced value. ¶40 While we acknowledge there may be multiple ways in which the court could have determined the enhanced value enjoyed by Skramovsky, the method utilized by the court was supported by facts presented to the District Court. And while other facts were also presented that could have supported a different calculation, it was within the province of the District Court to weigh the evidence presented and apply it accordingly. The District Court’s determination is not clearly erroneous and we will not substitute our judgment for its determinations. 14 CONCLUSION ¶41 For the foregoing reasons, we affirm the District Court’s rulings. The evidence presented at trial supported the court’s findings and the court’s conclusions of law were correct. /S/ PATRICIA COTTER We concur: /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ JIM RICE | November 19, 2013 |
f2ca694a-232d-4018-9027-3f56d8627c81 | Allen v. Lakeside Neighborhood Planning Comm. | 2013 MT 237 | DA 13-0054 | Montana | Montana Supreme Court | DA 13-0054 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 237 DAVID G. ALLEN, ELEANOR M. ALLEN, JOHNATHON D. ALLEN, AARON C. ALLEN, KRISTY D. ALLEN, DARREN J. CLARKE, JAMES R. FRAME, ROXANNE M. FRAME, JOHN M. DAY, BILL B. BLOMGREN, CHARLES E. HARRIS, JUDY K. HARRIS, DENNIS THORNTON, DONNA THORNTON, JIM ETZLER, BEVERLY E. ETZLER, CHRIS M. RASMUSSEN, REMI C. RASMUSSEN, and JOYCE C. DAY, Plaintiffs and Appellants, v. LAKESIDE NEIGHBORHOOD PLANNING COMMITTEE and FLATHEAD COUNTY, Defendants and Appellees. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV- 09-843(C) Honorable Stewart E. Stadler, Presiding Judge COUNSEL OF RECORD: For Appellants: Tammi E. Fisher, Noah H. Bodman; Fisher & Bodman, P.C.; Kalispell, Montana Richard DeJana; Richard DeJana & Associates, PLLC; Kalispell, Montana For Appellee: Paul J. Nicol, Caitlin Overland; Deputy Flathead County Attorneys; Kalispell, Montana Submitted on Briefs: July 10, 2013 Decided: August 20, 2013 August 20 2013 2 Filed: __________________________________________ Clerk 3 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 In December 2010, the Flathead County Commissioners approved and adopted a revised neighborhood plan prepared by the Lakeside Neighborhood Planning Committee. Numerous property owners in the Lakeside and Somers areas of Flathead County challenged the revised plan and now appeal the Eleventh Judicial District Court’s rulings in favor of the Planning Committee and Flathead County. We affirm. ISSUES ¶2 A restatement of the issues on appeal is: ¶3 Did the District Court err when it declined to void the 2010 Lakeside Neighborhood Plan and determined that no relief was available on Plaintiffs’ claims regarding the destruction of public records and violations of Montana’s open meeting laws? ¶4 Did the District Court err in determining a public meeting could not be held via a Yahoo email group? FACTUAL AND PROCEDURAL BACKGROUND ¶5 In November 1995, the Flathead County Commissioners (Commissioners) adopted the original Lakeside Neighborhood Plan designed to address land use and growth in the Lakeside and Somers areas of Flathead County. As recommended by this 1995 plan, the Lakeside Community Council was created as an advisory board to address community issues pertaining to neighborhood plan development. ¶6 In March 2007, Flathead County adopted the Flathead County Growth Policy (Policy or Growth Policy). The Policy acknowledged the validity of existing 4 neighborhood plans and the possibility that some neighborhood plans would require revisions to comply with the newly-adopted Growth Policy. The Flathead County Planning Board (Board or Planning Board) determined the 1995 Lakeside Neighborhood Plan required revisions and the Board authorized the rewriting of the plan. Consequently, in or around October 2007, the Lakeside Community Council created the Lakeside Neighborhood Planning Committee (Committee or LNPC) to assist with the update of the earlier plan. ¶7 Beginning in October 2007 and throughout the first year of its existence, the LNPC worked on drafting a new plan or revising the old plan. The Committee held numerous meetings, most of which were held in private residences without adequate notice or invitation to the public. LNPC also created a password-protected, private Yahoo Group website for the exclusive use of LNPC members. A separate public website was created but it contained limited information and material. While members of the Planning Board were invited to closed meetings and given access to the members- only website, it was not until complaints about the lack of transparency in the proceedings began to arise that the Flathead County Attorney advised LNPC that it was subject to the “open meeting” laws and must hold public meetings in publicly-accessible places with proper notice. All LNPC meetings held after October 13, 2008, were properly noticed and held at the Lakeside Library. ¶8 In June 2009, numerous Lakeside property owners (a total of nineteen individuals referred to in this Opinion as Plaintiffs) filed a lawsuit against LNPC and Flathead County claiming LNPC had violated Montana’s open meeting laws by conducting 5 Plan-related meetings in private and on a “secret” website. However, in May 2010 the parties stipulated to holding the cause of action in abeyance until the Commissioners either approved or rejected the recommended Plan. ¶9 The Planning Board ultimately approved the revised Lakeside Neighborhood Plan as submitted by LNPC in September 2010 (hereinafter the Plan or LNP) and forwarded it to the County Commissioners, who passed the resolution to adopt the Plan in December 2010. Upon adoption of the Plan, the complaint was revived in District Court and the action proceeded. In March 2011, the District Court enjoined the implementation of the Plan pending final outcome of the lawsuit. Plaintiffs subsequently filed an amended complaint and all parties later moved for summary judgment. ¶10 Multiple issues were raised for resolution by summary judgment but we address only those that are the subject of this appeal. Plaintiffs claimed LNPC was a public or governmental body that had violated Montana’s right to know and open meeting laws by holding unannounced meetings in private homes or via a private Yahoo Group website. Plaintiffs also asserted LNPC had unlawfully destroyed public records by deleting files that had been posted to the Yahoo Group website prior to that website being closed in October 2008. They sought to have the Plan declared void as a result of these violations. ¶11 In November 2011, while acknowledging LNPC initially failed to fully comply with the open meeting laws, the District Court concluded that voiding earlier drafts of the Plan or voiding the final Plan were not appropriate remedies for the offenses. In conjunction with these rulings, the court also concluded that “meetings” as defined by 6 applicable statute could not be held on Yahoo Group. Plaintiffs appeal these specific rulings. STANDARD OF REVIEW ¶12 We review the grant of summary judgment de novo, using the same M. R. Civ. P. 56 criteria used by the trial court. Summary judgment is appropriate when the moving party demonstrates both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. Once the moving party has met its burden, the non-moving party must present substantial evidence essential to one or more elements of the case to raise a genuine issue of material fact. Harris v. State, 2013 MT 16, ¶ 11, 368 Mont. 276, 294 P.3d 382. (Internal citations omitted.) DISCUSSION ¶13 Did the District Court err when it declined to void the 2010 LNP and determined that no relief was available on Plaintiffs’ claims regarding the destruction of public records and violations of Montana’s open meeting laws? ¶14 The District Court expressly determined that LNPC was a “public or governmental body” required to “make all its meetings open to the public” under Article II, Section 9 of the Montana Constitution and § 2-3-203, MCA.1 The court then declared that “[t]he record contains undisputed evidence that the LNPC convened at least some meetings that were less than open in violation of Section 2-3-203(1), MCA.” In determining whether voiding the Plan, as permitted under §§ 2-3-114 and -213, MCA, was the proper remedy for these violations, the court concluded that LNPC was not an “agency” (as defined in 1 Unless otherwise noted, statutory references in this Opinion are to the 2007 MCA in effect at the time the challenged meetings were held. 7 § 2-3-102, MCA) and therefore the “procedural irregularities” pertaining to LNPC’s early meetings were “not decisions by an agency.” Therefore, the District Court held that voiding the entire Plan based upon LNPC’s early non-compliance with the open meeting laws was not an available remedy under the statutes. ¶15 In addition, the District Court noted that Plaintiffs’ original complaint did not “challenge the County’s decision adopting the revised . . . Plan,” and the amended complaint did “not seek to void the . . . Plan”; therefore, the court reasoned, voiding the Plan “is not available based on the allegations in the pleadings and the undisputed evidence before the [c]ourt.” The court further concluded that because revisions to LNPC’s earliest Plan drafts occurred after LNPC opened the process to the public and took public comment, voiding early versions of the Plan would be an idle act. ¶16 Turning to Plaintiffs’ destruction of public records claim, the District Court ruled that Plaintiffs’ amended complaint did not request any specific relief for LNPC’s alleged destruction of public records. The court expressly noted, however, that voiding the LNP was not an available remedy for this claim. Consequently, the District Court dismissed Plaintiffs’ complaint as to this issue for failure to state a claim upon which relief could be granted. ¶17 On appeal, Plaintiffs argue that the District Court’s ruling that voiding earlier versions of the Plan would be an “idle act” and that Plaintiffs’ complaint “does not challenge the County’s decision adopting the . . . [Plan]” are incorrect and should be reversed. Relying on the language in Article II, Sections 8 and 9 of the Montana Constitution, related statutes, and Bryan v. Yellowstone Co. Elementary Sch. Dist. No. 2, 8 2002 MT 264, 312 Mont. 257, 60 P.3d 381, Plaintiffs assert that their desired remedy of voiding the entire Plan is legally available and is the correct resolution. ¶18 Addressing the court’s dismissal of their destruction of public records claim, Plaintiffs submit a confusing argument. They state in their opening brief on appeal that “while Plaintiffs maintain that their claims regarding the destruction of public records should not have been dismissed, the merits of that claim are not before the Court on this appeal.” Notwithstanding this assertion, Plaintiffs ask that we reverse the District Court’s ruling that their destruction of public records claim had no available remedy. ¶19 Defendants acknowledge that LNPC’s earliest meetings were held in private homes without adequate notice to the public, but argue that upon learning in October 2008 that its meetings had to comply with the open meeting laws, LNPC immediately came into full compliance commencing in November 2008. Additionally, Defendants point out that LNPC, the Lakeside Community Council and the Planning Board conducted at least 50 Plan-related public meetings between November 2008 and the Commissioners’ adoption of the LNP in December 2010—all of which satisfied the open meeting laws. Therefore, they assert that voiding early versions of the Plan and requiring LNPC to reconstruct what it had accomplished in the earlier closed meetings would indeed be an idle act which is unnecessary given that Plaintiffs had ample opportunity for over two years to participate in the process. ¶20 Addressing this Court’s analysis in Bryan, Defendants argue that “the Montana Supreme Court recognized that a process flawed by lack of public participation can be corrected and the flawed result confirmed by proper process.” In Bryan, the Yellowstone 9 County Elementary School District No. 2 (School District) concluded it had to close three elementary schools for budgetary reasons. Bryan, ¶ 1. During its deliberations to select which schools to close, the deciding committee relied upon a spreadsheet developed by a member of the committee that set forth information about several district schools to be considered for closure. Bryan, ¶ 9. In the meantime, the School District conducted a public forum and notified the general public of the School District’s budget issues and potential solutions. Notably, the School District did not provide the public with the informational spreadsheet that contained ratings for each potentially affected school. Bryan, ¶¶ 11-12. Several days before the School District’s final meeting announcing the closures, Lisa Schroeder, a parent of a child attending Rimrock Elementary School,2 asked the School District’s superintendent for a “head-to-head comparison” of the schools being considered for closure. She was told no such comparison existed. Bryan, ¶ 12. ¶21 The following day, however, Schroeder saw a televised interview with the committee member who prepared the spreadsheet in which the author was explaining the comparison method. Thereafter, Schroeder called the School District superintendent again and requested the spreadsheet. She was again told that the superintendent had no knowledge of the comparison document. Bryan, ¶ 13. ¶22 Four days later, the School District held its final meeting on school closures. During the public comment period of the meeting, Bryan and other parents urged the 2 Several parents of Rimrock Elementary School students including Schroeder and Bryan united to rebut the school closure recommendation. 10 school board not to close Rimrock Elementary School. At the close of the public comment period of the meeting, the school board publicly reviewed and discussed the spreadsheet but again the spreadsheet was not distributed to the attending public. The school board subsequently selected three schools for closure, one of which was Rimrock Elementary School. Bryan and the other parents finally obtained the spreadsheet the day after the School District had announced its final decision. Bryan, ¶ 14. ¶23 Bryan filed a petition for a writ of prohibition to prevent the school closures. Bryan, ¶ 1. In our analysis, we concluded that Bryan’s right to participate and her right to know as guaranteed by Article II, Sections 8 and 9, of the Montana Constitution had been violated. Bryan, ¶¶ 39 and 46. As a remedy, Bryan requested that the School District’s decision to close certain schools be voided. Bryan, ¶ 48. We agreed and voided the School District’s closure decision. Bryan, ¶ 52. However, we explained that we were not ordering the school district to re-open the closed schools; rather, we remanded the matter to the district court with instructions to allow Bryan another opportunity to rebut the closure recommendations based upon full disclosure and review of the spreadsheet. Bryan, ¶ 55. ¶24 Bryan stands for the proposition that voiding a decision by a public entity for failure to comply with open meeting laws may sometimes be an appropriate remedy. However, we conclude that because the case is significantly distinguishable on its facts, it does not dictate the appropriate remedy here. This is so for two reasons. First, the information set forth in the spreadsheet was hard data that was critical to the decision confronting the School District, such as comparable school capacities; per capita 11 expenditures for utilities; square footage; maintenance and repair costs; and other facts and figures not available in comparison form to the concerned public. Second, the immediacy of the violation in Bryan was a decisive factor. Though the school board decision was imminent, the public was kept in the dark about the very information upon which the school board would rely in making its closure decision. The parents were therefore clearly deprived of their right to know and right to participate in the school board’s decision. ¶25 By contrast, Plaintiffs here were deprived of information generated during the early exchanges among the members of LNPC. This information was not hard data, but rather consisted of discussions and ongoing analysis of possible plan revisions. Once the meetings were opened, the Lakeside residents had the right to participate in the Committee meetings, Council meetings, Board meetings, and the drafting process, and had access to the information relied upon by these drafting and reviewing entities for approximately two years before the Commissioners issued their final ruling. Unlike the parents in Bryan, the Lakeside residents had available to them all information under consideration, and plenty of time to digest the material and propose revisions. Thus, the situation here is radically different than that before the Court in Bryan. ¶26 We next consider whether the Plaintiffs have adequately stated a cause of action against the Flathead County Commissioners. As noted above, Plaintiffs dispute the District Court’s finding that the complaint did not challenge any agency decision. Plaintiffs argue that such a finding “ignores the plain language of the Complaint and entirely ignores the history of the case.” They concede that the original complaint did not 12 challenge any decision by the County Commissioners because at the time the complaint was filed, there was no agency decision to challenge. Plaintiffs submit, however, that because the matter was held in abeyance and then revived when the Commissioners adopted the Plan, to conclude that Plaintiffs were not challenging the Commissioners’ decision would be an “absurd and unreasonable result.” They further claim that both the original complaint and the amended complaint expressly requested that the District Court void the LNP for non-compliance with the open meeting laws and “[d]eclare the draft [LNP] illegal and unconstitutional and therefore of no force and effect.” ¶27 While the complaint and amended complaint do contain the language quoted above, Plaintiffs did not assert in the District Court nor have they alleged on appeal any error or open meeting law violations on the part of the County Commissioners. They name Flathead County as a defendant, but do not argue that the County itself has done anything wrong. The County Commissioners had no involvement in the drafting work done by LNPC, nor has it been demonstrated that they had any participation in the early non-public meetings conducted by LNPC. It is therefore difficult to conclude that Plaintiffs have effectively challenged the ultimate decision made by the County Commissioners. ¶28 Moreover, while the applicable statutes require that counties consider the advice offered by city-county planning boards, counties are not bound to accept their recommendations. In Common Cause of Montana v. Statutory Comm. to Nominate Candidates for Com’r of Political Practices, 263 Mont. 324, 868 P.2d 604 (1994), a statutory committee was put in place to create a list of possible candidates for the office 13 of Commissioner of Political Practices. The Committee held a private meeting to discuss potential candidates and later submitted a list to then-Governor Stan Stephens. Governor Stephens selected one of the listed candidates who was later confirmed by the Senate and sworn into office. In the meantime, Common Cause challenged the Governor’s selection and sought to have the appointment voided on the grounds the Committee had violated the open meeting laws. Common Cause, 263 Mont. at 326-27, 868 P.2d at 606. After concluding that the Committee was required to conduct open meetings and that the private meeting should have been publicly announced, we addressed the remedy sought by Common Cause. Common Cause, 263 Mont. at 330-32, 868 P.2d at 607-09. ¶29 Relying on § 13-37-102, MCA (1993), which provides that a governor may “consider” names presented to him by the Committee, we observed “[t]he language [in the statute] ‘for his consideration’ illustrates the advisory role of the Committee.” Common Cause, 263 Mont. 332-33, 868 P.2d 609. We declined to void the Governor’s decision because the Governor was “free to disregard entirely the list of names submitted by the Committee.” Common Cause, 263 Mont. at 333, 868 P.2d at 609. Consequently, there was no direct legal nexus between the Committee’s recommendations and the Governor’s appointment. As such, the action by the Governor was not tainted by the Committee’s failure to comply with the open meetings laws. ¶30 In the case before us, § 76-1-603, MCA, provides that, after the requisite public hearing on a growth policy, the Planning Board must “consider” the recommendations and suggestions elicited at the public hearing. The Planning Board must then (1) recommend adoption of the proposed policy to the appropriate governing body—in this 14 case the County Commissioners, (2) recommend that the policy not be adopted, or (3) recommend that the governing body take some other action. Section 76-1-604, MCA, requires the appropriate governing body to adopt, adopt with revisions, or reject the proposed growth policy. Notably, these statutes were followed here. Just as the Planning Board could have rejected LNPC’s proposed Plan, the Commissioners could have rejected the Board’s recommendation. Therefore, under the circumstances of this case and for the same reasons adopted in Common Cause, we agree with the District Court that voiding the Commissioners’ adoption of the LNP is not an appropriate remedy. ¶31 Lastly, we conclude the District Court did not err in concluding that LNPC was not an “agency” whose decisions could be voided under §§ 2-3-114 and -213, MCA. An “agency” is defined, with certain inapplicable exceptions, as “any board, bureau, commission, department, authority, or officer of the state or local government authorized by law to make rules, determine contested cases, or enter into contracts . . . .” Section 2-3-102(1), MCA. Section 2-3-114, MCA, provides that “the district courts of the state have jurisdiction to set aside an agency decision . . . .” and § 2-3-213, MCA, states “Any decision made in violation of 2-3-203 may be declared void by a district court having jurisdiction. A suit to void a decision must be commenced within 30 days of the date on which the plaintiff or petitioner learns, or reasonably should have learned, of the agency’s decision.” (Emphasis added.) These statutes clearly and expressly state that an agency decision reached in violation of the open meeting laws may be voided. The LNPC is not an agency but rather is an advisory committee. Consequently, while the open meeting 15 laws apply to its proceedings, the statutes pertaining to the voiding of agency decisions have no application to the LNPC. ¶32 We in no way condone LNPC’s early violation of the applicable open meeting laws. However, once LNPC learned it was in possible violation of the law, it immediately took steps to correctly and publicly notice its meetings and provide the public with access to all of its discussions and planning. The public was able to participate in dozens of ensuing meetings and discussions before the County Commissioners finally approved and adopted the Plan. Therefore, we conclude that vacating the revised neighborhood plan and reinstituting the entire lengthy drafting process is not an appropriate remedy. ¶33 Finally, as noted in ¶ 18, because Plaintiffs assert in their opening brief on appeal that the merits of their destruction of public records claim are not before this Court on appeal, we decline to further address this issue. ¶34 Did the District Court err in determining a public meeting could not be held via a Yahoo email group? ¶35 Citing § 2-3-202, MCA, the District Court stated that “with respect to the Yahoo Group, a ‘meeting’ is the convening of a quorum of the constituent membership of a public or governmental body to hear, discuss or act upon a matter over which that entity has supervision, control, jurisdiction or advisory power.” The court observed that the record contained undisputed evidence that a quorum did not and could not convene on the Yahoo Group. The District Court noted that during the time LNPC used the Yahoo Group, it did not have online chat capability. Additionally, the System and Network 16 Administrator for Flathead County’s Information Technology Department testified by affidavit, that “it is impossible to hold a meeting on the Yahoo Work Group [because it] was not designed for this purpose and could not be used as an alternative to holding an actual meeting.” The court acknowledged that § 2-3-202, MCA, requires that “meetings” convened by electronic equipment must comply with open meeting laws but ruled that no evidence was presented that a quorum of LNPC members could actually convene on the Yahoo Group “such that a meeting . . . would have been possible.” ¶36 We affirm the District Court’s ruling based upon the lack of evidence that such an electronic meeting occurred in this case. However, given the constantly evolving technology, we decline to state that a “meeting” could never be convened by way of a Yahoo email group. We therefore caution public officers that conducting official business via email can potentially expose them to claims of violation of open meeting laws. CONCLUSION ¶37 For the foregoing reasons, we affirm the District Court’s rulings in favor of LNPC and Flathead County. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ BRIAN MORRIS /S/ JIM RICE | August 20, 2013 |
afcd78b3-224e-4ada-8005-cb1484d040b3 | Harpole v. Powell Co. Title | 2013 MT 257 | DA 12-0614 | Montana | Montana Supreme Court | DA 12-0614 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 257 TOM HARPOLE, Plaintiff and Appellant, v. POWELL COUNTY TITLE COMPANY, and FIRST AMERICAN TITLE INSURANCE COMPANY, Defendants and Appellees. APPEAL FROM: District Court of the Third Judicial District, In and For the County of Powell, Cause No. DV-10-77 Honorable Ray J. Dayton, Presiding Judge COUNSEL OF RECORD: For Appellant: Quentin M. Rhoades; Sullivan, Tabaracci & Rhoades, P.C.; Missoula, Montana Nathan G. Wagner; Datsopoulos, MacDonald & Lind, P.C.; Missoula, Montana For Appellee First American Title Insurance Company: Ian McIntosh, Kelsey E. Bunkers, Brad Brown; Crowley Fleck, PLLP; Bozeman, Montana For Appellee Powell County Title Company: Ted L. Mizner; Attorney at Law; Deer Lodge, Montana Submitted on Briefs: July 31, 2013 Decided: September 10, 2013 September 10 2013 2 Filed: __________________________________________ Clerk 3 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Tom Harpole, a former owner of real property in Powell County, sued First American Title Insurance Company and Powell County Title Company claiming they negligently misrepresented the status of the access road into his former property and thus foiled a potential sale of the property. The Third Judicial District Court granted summary judgment in favor of the title companies. Harpole appeals. We affirm. ISSUES ¶2 A restatement of the issues on appeal is: ¶3 Did the District Court err in granting summary judgment in favor of the title companies? ¶4 In a companion case, did the District Court abuse its discretion when it required Harpole to post an appellate bond? FACTUAL AND PROCEDURAL BACKGROUND ¶5 Tom Harpole moved onto a parcel of real property located near Avon, Montana, in Powell County in 1977. At that time, the property was owned by his grandfather’s corporation and had been since 1931. In 1991, Harpole purchased the property from the family corporation. At the time of purchase, he obtained title insurance from First American Title Insurance Company (First American) through Powell County Title Company (Powell County Title). The 1991 title policy did not contain any exception for legal access. Harpole testified that since he moved onto the property, he had 4 continuously accessed it without complication by way of what is now known as Harpole Road. ¶6 In 2006, Harpole began marketing the property for sale. He claims a prospective buyer made an offer to purchase the property for $800,000 in 2008. In preparation for this sale, Harpole obtained a preliminary title commitment from Powell County Title. At the time Grace Foster was responsible for all title insurance work performed by Powell County Title and wrote insurance policies for First American. Prior to issuing the preliminary title commitment, Foster searched “the records located in the Powell County Treasurer’s Office, Clerk and Recorder’s Office, the Clerk of Court’s office and the Commissioner’s Office.” Discovering that these records contained no indication that Harpole Road was a county road, Foster consulted with the Powell County Assessor who opined that Harpole Road was not an official county road. As a result, the 2008 preliminary title commitment contained an exception for “lack of right of access to and from the subject property.” ¶7 Harpole visited Foster’s office to discuss the title commitment. Foster explained to Harpole that Harpole Road had not been designated as a county road and there was no recorded easement establishing a road. Harpole then met with numerous county officials all of whom opined that Harpole Road was not a designated county road on the road map or in the county road book. He claims he was invited by county officials to conduct his own research and thus began an investigation that lasted three months and took him to Helena, Butte, Missoula and Billings. In his investigation, Harpole discovered several 5 old maps and various historic documents including a 1903 road record document (1903 Road Record) which was located in a vault in the Clerk and Recorder’s office at the Powell County Courthouse. ¶8 The 1903 Road Record, which contains a description of multiple road districts existing in Powell County in 1903, including the Avon area, stated “County Road No. 9” was declared a public highway in 1903. Based upon the description of County Road No. 9, Harpole concluded that Harpole Road was formerly known as County Road No. 9 and had been a “public highway” since either 1903 or as a result of a 1907 resolution. ¶9 After discussing his research results and this document with the County Attorney, a Powell County Commissioner, and the Powell County Road Supervisor, the County Attorney issued a written opinion that Harpole Road was in fact a lawfully dedicated county road. Subsequently, Foster issued an amended preliminary title commitment which deleted the exception pertaining to lack of legal access. ¶10 Harpole claims that the prospective buyers withdrew their offer of purchase when First American and Powell County Title initially refused to insure legal access to the property. Though an amended commitment was later issued, Harpole maintains that the prospective buyers had by then purchased other property and were no longer in the market. Harpole subsequently sold the property in 2009 for $475,000. ¶11 Harpole filed a Complaint and Demand for Jury Trial on September 15, 2010, claiming both title companies had failed to conduct “a reasonable search and examination of the title” as required by § 33-25-214(1), MCA (2009), and, consequently, were 6 negligent per se. He also asserted the companies had negligently misrepresented the status of Harpole Road in the preliminary title commitment prepared for Harpole. He urged the District Court to apply the “reasonable care” standard set forth in Restatement (Second) of Torts, § 552, when analyzing his negligent misrepresentation claim. Lastly, he claimed to have suffered the loss of a sale and severe emotional distress as a result of the title companies’ negligence. ¶12 On September 16, 2011, in response to the title companies’ motions for partial summary judgment, the District Court dismissed Harpole’s claim of negligence per se. Harpole does not appeal this ruling and we will address it no further. The court also determined that Harpole’s claim of negligent misrepresentation could not apply to statements in the preliminary title commitment because under § 33-25-111(2), MCA (2009), a preliminary title commitment “does not constitute a representation as to the condition of title to real property.” ¶13 In April 2012, Harpole filed an amended complaint. He re-asserted his claims of negligence per se and negligent misrepresentation based upon statements contained in the preliminary title commitment, despite the court’s prior dismissal of these claims. He also restated his negligent misrepresentation claim based upon Foster’s verbal statements to him. He re-designated his emotional distress claim as a common law negligence claim. Lastly, he added a “vicarious liability-agency” claim against the title companies. ¶14 On May 17, 2012, First American and Powell County Title filed a joint motion for summary judgment on Harpole’s remaining claims. On August 16, 2012, the District 7 Court granted summary judgment in favor of the title companies and dismissed the case. Harpole does not appeal the entry of summary judgment on his vicarious liability claim. As to Harpole’s remaining negligence and negligent misrepresentation claims, the court expressly ruled that Foster’s decision to issue a legal access title commitment exception was reasonable given the uncertainty surrounding the legal status of Harpole Road, and that Foster did not orally provide false information to Harpole. Consequently, the District Court dismissed Harpole’s negligence-based claims. Harpole appeals these rulings. STANDARD OF REVIEW ¶15 We review de novo a district court’s grant of summary judgment, applying the same M. R. Civ. P. 56 criteria as the district court. The moving party must establish the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. We review a district court’s conclusions of law for correctness. Hartsoe v. Christopher, 2013 MT 57, ¶ 8, 369 Mont. 223, 296 P.3d 1186 (internal citations omitted). DISCUSSION ¶16 Did the District Court err in granting summary judgment in favor of the title companies? ¶17 On appeal, Harpole argues the District Court erred in granting summary judgment in favor of the title companies. He maintains that genuine issues of material fact existed and therefore a jury should have decided both his common law negligence and his negligent misrepresentation claims. Respectively, these claims are based upon Foster’s 8 failure to locate and review the 1903 Road Record, and Foster’s oral conversations with Harpole pertaining to the legal status of Harpole Road. Common Law Negligence ¶18 Harpole relies on Malinak v. Safeco Title Ins. Co, 203 Mont. 69, 76, 661 P.2d 12, 16 (1983), which states that a title insurer has a duty to “base its title commitment and report upon a reasonably diligent title search of the public records.” Harpole maintains that he has sufficiently alleged a breach of this duty, and that whether the title companies breached this duty is a question of fact to be resolved by a jury. Harpole argues that the District Court “ignored” expert testimony proffered by the title companies’ expert that Harpole Road is the only road that meets the 1903 description of County Road No. 9. He claims the court also wrongly dismissed his expert’s testimony because Harpole’s counsel had described the 1903 Road Record to the expert witness in a manner the District Court concluded was “unsupported by the record.” Harpole claims these errors constitute prejudicial and reversible error. ¶19 Harpole notes that in its order granting summary judgment, the District Court acknowledged “[r]easonable minds cannot differ that, even if Ms. Foster’s search of records had included a review of [the 1903 Road Record], her decision to issue a preliminary title commitment excepting legal access was reasonable given the uncertainty surrounding the legal status of Harpole Road.” Harpole asserts that because there is no question that Harpole Road was in fact a dedicated county road, the question is whether 9 Foster’s document search was reasonable and diligent and whether her unequivocal conclusion as to the status of Harpole Road was reasonable under the circumstances. ¶20 Harpole also maintains that the affidavit submitted by the prospective buyer who stated he did not go forward with the purchase because of the preliminary title commitment’s exception satisfies “the prima facie showing required to defeat a motion for summary judgment” as to causation. Lastly, he claims in his affidavit that he suffered damages, including but not limited to the difference in sale price from $800,000 to $475,000, as a result of Foster’s error. ¶21 The title companies respond that because Foster’s document search was reasonable and satisfied the applicable standard they breached no duty to Harpole. They assert the title company’s duty was “to examine the public records before issuing the title commitment and it is undisputed that it did so.” (Emphasis added.) They argue that the 1903 Road Record is not a public record because it was never “recorded” or “filed” of record. They further argue that the 1903 Road Record did not in any event conclusively establish the status of Harpole Road, as it contained no survey or legal description, and contained only vague references to landmarks that have long since disappeared. The title companies point out that it was only after assimilating multiple documents that the County Attorney ventured to conclude that Harpole Road was in fact a county road. Thus, the title companies maintain that Foster’s failure to uncover the document and her decision to issue a title commitment excepting legal access based upon the contents of public records and the information derived from county officials, was reasonable. 10 ¶22 As noted by all parties, Malinak provides: We find a duty on the part of the title insurer when it issues a title commitment which later forms the basis for a title insurance policy, particularly where the seller relies on the title commitment, to base its title commitment and report upon a reasonably diligent title search of the public records. Malinak, 203 Mont. at 76, 661 P.2d at 16. See also Miller v. Title Ins. Co., 1999 MT 230, ¶¶ 17-19, 296 Mont. 155, 987 P.2d 1151. ¶23 In Miller, the Millers purchased a home in Helena, Montana, and purchased title insurance from Title Insurance Company of Minnesota (TIC). Miller, ¶ 3. It was later discovered that the Millers’ neighbor’s water and sewer lines ran across the Millers’ property and prohibited the Millers from constructing a garage. They submitted a claim to TIC requesting that TIC cure the title defect, secure the relocation of the neighbor’s water and sewer lines, and reimburse them for any costs incurred. TIC denied the claim and the Millers sued. Miller, ¶¶ 5-6. TIC moved for summary judgment based upon a policy coverage exclusion that limited coverage to “easements of public record.” Miller, ¶¶ 1, 6. The policy defined “public records” as “those records which by law impart constructive notice of matters relating to said land.” Miller, ¶ 12 (emphasis in original). The district court granted TIC’s motion, holding that TIC had no duty under Montana law or the policy to review the records at the City of Helena Engineer’s Office and Water Department. Because TIC complied with the terms of the insurance contract and Montana law, TIC was entitled to judgment as a matter of law. Miller, ¶ 1. We affirmed. Miller, ¶ 23. 11 ¶24 As in Miller, the 2008 commitment at issue here states that the policy will except “[e]asements, claims of easement or encumbrances which are not shown by the public records.” It also states “Public Records” means “title records that give constructive notice of matters affecting your title according to the state statutes where your land is located.” There were no “public records” on file during Foster’s search that established Harpole Road as a county road. ¶25 Based upon the record in this case and our ruling in Miller, we conclude the 1903 Road Record document was not a “public record” at the time of Foster’s search. It also bears noting that Harpole claims to have spent hundreds of hours over three months researching the history of Harpole Road in four different cities. It would be wholly unrealistic to require the expenditure of hundreds of hours and travel to four cities in order for a search of records to be deemed a “reasonably diligent search.” ¶26 Having determined that Foster’s conduct satisfied the Malinak standard, we conclude Foster did not breach a duty to Harpole in that her search was a reasonably diligent search of public records. We therefore affirm the District Court’s dismissal of Harpole’s common law negligence claim. As there was no breach of duty, we need not address the remaining elements of a negligence claim or Harpole’s claims regarding expert testimony. Negligent Misrepresentation ¶27 Harpole also argued to the District Court that both the written preliminary title commitment and Foster’s oral statements vis-à-vis the status of Harpole Road constituted 12 negligent misrepresentations. The District Court ruled that the written preliminary title commitment could not form the basis for Harpole’s negligent misrepresentation claim based upon § 33-25-111(2), MCA. We do not address this claim as Harpole does not present an apparent argument that the District Court’s ruling on this issue is incorrect. We therefore turn to the question of whether the District Court erred in concluding that Foster’s oral statements pertaining to the status of Harpole Road did not constitute negligent misrepresentation. ¶28 In Osterman v. Sears, 2003 MT 327, ¶ 32, 318 Mont. 342, 80 P.3d 435, we stated that the elements of the tort of negligent misrepresentation are: a) the defendant made a representation as to a past or existing material fact; b) the representation must have been untrue; c) regardless of its actual belief, the defendant must have made the representation without any reasonable ground for believing it to be true; d) the representation must have been made with the intent to induce the plaintiff to rely on it; e) the plaintiff must have been unaware of the falsity of the representation; it must have acted in reliance upon the truth of the representation and it must have been justified in relying upon the representation; f) the plaintiff, as a result of its reliance, must sustain damage. ¶29 Montana’s standard for tortious negligent misrepresentation had been previously based upon Restatement (Second) of Torts § 552 (1997) since Brown v. Merrill Lynch, Pierce, Fenner & Smith, 197 Mont. 1, 12, 640 P.2d 453, 458-59 (1982). There, we adopted a “reasonable care” test for determining whether one who in the course of business has supplied false information to another in the conduct of his business transactions should be held liable for negligent misrepresentations. Subsequently, we set forth the six-prong list of elements in Kitchen Krafters v. Eastside Bank, 242 Mont. 155, 13 165, 789 P.2d 567, 573 (1990), overruled on other grounds, Busta v. Columbus Hosp., 276 Mont. 342, 916 P.2d 122 (1996), and applied this test to allegations of negligent misrepresentation against a title insurance company in Yellowstone II Dev. Group, Inc. v. First Am. Title Ins. Co., 2001 MT 41, 304 Mont. 223, 20 P.3d 755. We have since applied these six prongs in numerous cases, including Osterman. ¶30 The second prong of the foregoing test requires that the subject misrepresentation be untrue. The District Court concluded that “Ms. Foster’s statement that her search revealed that Harpole Road was not an officially dedicated county road and there was no recorded easement establishing Harpole Road was undisputedly truthful.” We agree with the District Court. Foster’s search did not reveal to her that Harpole Road was a county road. While additional research led the County Attorney to determine otherwise, this does not render Foster’s statement untruthful when it was made. The same analysis applies to Foster’s statement that an easement did not exist. Moreover, we note that had the District Court continued its analysis of the Osterman elements, Harpole would have been unable to satisfy the third prong because the evidence established that Foster had “reasonable grounds for believing [what she told Harpole] to be true,” and Harpole presented no argument to the contrary. ¶31 We deem it unnecessary to decide here whether Restatement (Second) of Torts § 522 or the Osterman test should be applied to Harpole’s claim against the title companies for negligent misrepresentation, as we conclude that under either the Osterman test or the “reasonable care” Restatement test, Harpole’s negligent 14 misrepresentation claim would fail under the facts before us. Consequently, we affirm the District Court’s ruling that Harpole did not satisfy the elements of a negligent misrepresentation claim and the title companies were entitled to summary judgment on this claim. ¶32 In a companion case, did the District Court abuse its discretion when it required Harpole to post an appellate bond? ¶33 In Harpole’s opening brief, he asserts he is appealing the District Court’s ruling requiring that he post an appellate bond in a companion case. However, he fails to proffer any argument on this issue as required by M. R. App. P. 12(f). Consequently, we decline to reach this issue. CONCLUSION ¶34 For the foregoing reasons, we affirm the District Court’s grant of summary judgment in favor of the title companies. We decline to address Harpole’s issue pertaining to a bond for costs on appeal. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ JIM RICE | September 10, 2013 |
ce7068f6-e3ec-4ee4-b943-3d94156e9097 | Covenant Invs., Inc. v. Dep't of Revenue | 2013 MT 215 | DA 13-0005 | Montana | Montana Supreme Court | DA 13-0005 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 215 COVENANT INVESTMENTS, INC., Petitioner and Appellee, v. STATE OF MONTANA, DEPARTMENT OF REVENUE, Respondent and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV-11-913A Honorable Holly Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Michelle R. Crepeau, Special Assistant Attorney General, Montana Dept. of Revenue; Helena, Montana For Appellee: Michael Green, D. Wiley Barker, Crowley Fleck PLLP; Helena, Montana Submitted on Briefs: June 19, 2013 Decided: August 6, 2013 Filed: __________________________________________ Clerk August 6 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Covenant Investments, Inc. (Covenant), challenged the constitutionality of the six- year tax cycle mandated by § 15-7-111, MCA. The District Court for the Eighteenth Judicial District, Gallatin County, determined that § 15-7-111, MCA, as applied to Covenant, violated Covenant’s right to equal protection. The Department of Revenue (Department) appeals. We reverse. ¶2 We address the following issue on appeal: ¶3 Whether the District Court correctly determined that § 15-7-111, MCA, violated Covenant’s right to equal protection? PROCEDURAL AND FACTUAL BACKGROUND ¶4 Covenant owns property for residential subdivision development in Gallatin County. Section 15-7-211, MCA, requires the Department to reappraise all residential property in Montana every six years. The Department assessed the value of Covenant’s property in 2008. The Department used the 2008 appraisal to establish Covenant’s tax liability for the six-year tax cycle ending in 2014. ¶5 The Department valued Covenant’s property at $17,600,988. Covenant challenged the 2008 appraisal value of its property. The Gallatin County Tax Assessment Board reduced the appraised value of Covenant’s property from $17,600,988 to $13,745,684. ¶6 Covenant submitted a petition to the State Tax Appeal Board (STAB) asking it to reduce further Covenant’s 2008 appraisal value. The Department had added 35% to the value of Covenant’s property based on the sale price of the first four parcels in the subdivision. Testimony before STAB established, however, that Covenant had sold these 3 parcels to close friends and families of Covenant’s principals at an artificially high value in order to establish a higher market value for the subdivision. STAB determined that this artificially high value did not correctly represent the true value of the property. STAB accordingly ordered the Department to further reduce Covenant’s 2008 appraisal value by removing this 35% increase. ¶7 Covenant further challenged the Department’s use of this revised 2008 assessment for the six-year period ending in 2014. Covenant presented to STAB evidence from an appraiser that its property value had declined from 2008 to 2010. Covenant argued that the Department required Covenant to pay an inequitable share of taxes by assessing Covenant’s tax liability for the six-year cycle based on the revised 2008 value. Covenant argued that § 15-7-111, MCA, as applied to Covenant, violated Covenant’s right to equal protection. STAB rejected the claim that § 15-7-111, MCA, impermissibly discriminated against Covenant. Covenant appealed to the District Court. ¶8 The District Court determined that the Department’s failure to conduct a mid-term reevaluation of property values subjected taxpayers to disparate treatment. The six-year tax cycle, according to the District Court, caused some taxpayers to pay a disproportionate share of taxes due to their over-assessed property value, and other taxpayers to pay less than their fair share of taxes due to their under-assessed property value. The District Court determined that the Department had forced Covenant to pay taxes based on a 2008 property value that exceeded the actual market value of its property in 2010. The District Court further determined that taxing a residential property owner on a value that exceeded the actual market value of the property was not rationally related to the legislature’s purpose in drafting 4 § 15-7-111, MCA. The District Court concluded that § 15-7-111, MCA, violated Covenant’s right to equal protection. In addition, although § 15-7-111, MCA, contains no such provision, the District Court directed the Department to conduct a mid-cycle reappraisal of Covenant’s property for the 2010 tax year. STANDARD OF REVIEW ¶9 We review for correctness a district court’s conclusions of law. Roosevelt v. Montana Dep’t of Revenue, 1999 MT 30, ¶ 25, 293 Mont. 240, 975 P.2d 295. We presume that all legislative enactments are constitutional. Roosevelt, ¶ 26. The party challenging the constitutionality of a statute bears the burden of proving the statute unconstitutional beyond a reasonable doubt. Roosevelt, ¶ 26. DISCUSSION ¶10 Whether the District Court correctly determined that § 15-7-111, MCA, violated Covenant’s right to equal protection? ¶11 To prevail on an equal protection claim, an injured party must first demonstrate that the law or governmental action at issue discriminates by impermissibly classifying persons and treating them differently on the basis of that classification. State v. Spina, 1999 MT 113, ¶ 85, 294 Mont. 367, 982 P.2d 421. The Department contends that Covenant has failed to point to any evidence that the Department treated Covenant differently than similarly situated taxpayers. ¶12 The Department points out that in all cases where this Court has found an equal protection violation, the Department had used different standards to value similar property. The property owners therefore started out the tax-cycle with inequitable property valuations. 5 See, e.g., Montana Dep’t of Revenue v. Barron, 245 Mont. 100, 109, 799 P.2d 538 (1990); Montana Dep’t of Revenue v. Sheehy, 262 Mont. 104, 862 P.2d 1181 (1993) (both determining that the Department’s use of a ratio factor to increase a property’s actual appraisal value violated equal protection). ¶13 Covenant does not argue that it started out the six-year tax cycle with an inequitable valuation of its property. Covenant instead challenges the Department’s use of the 2008 appraisal value for the six-year tax cycle, rather than providing for a mid-cycle reevaluation. Covenant contends that Roosevelt stands for the proposition that the Department violates a property owner’s right to equal protection each time the Department assesses property taxes based on an appraisal value that exceeds the property’s actual value. ¶14 This Court considered the Department’s “phase-in” of a property owner’s decreased property value in Roosevelt. The Department appraised Roosevelt’s property at $820,597 in 1996. The Department reappraised Roosevelt’s property in 1997 at $658,840. Roosevelt, ¶ 5. Rather than assessing Roosevelt’s property tax based on the 1997 property value of $658,840, the Department phased-in the decrease in value of Roosevelt’s property at 2% per year. Roosevelt, ¶ 5. Although Roosevelt’s property value had declined by $161,757, the Department assessed property taxes as though Roosevelt’s property had declined only $3,235. Roosevelt, ¶ 5. Roosevelt therefore paid property taxes based on a valuation set at 124% of his property’s value. Roosevelt, ¶ 15. ¶15 This Court determined that the 2% phase-in violated Roosevelt’s right to equal protection. The Montana Constitution requires the Department seasonably to attain equality in tax treatment of similarly situated property owners. Roosevelt, ¶ 45. The Department 6 failed to treat Roosevelt like other similarly situated property owners when it reassessed Roosevelt’s property value, but did not tax Roosevelt based on this revised property value. Roosevelt, ¶ 45. ¶16 Like Roosevelt, Covenant contends, the Department has failed to tax Covenant on its revised property value. Covenant overlooks the fact, however, that Roosevelt began the five- year tax cycle with an inequitable valuation of his property due to the Department’s use of the 2% phase-in. Covenant, in contrast, began the six-year tax cycle with a fair property valuation. Covenant challenges the application of the property value throughout the six-year tax cycle, rather than the initial property value assessment. ¶17 This Court upheld a five-year appraisal cycle in Patterson v. Department of Revenue, 171 Mont. 168, 557 P.2d 798 (1976) (superseded by statute). The Department applied an appraisal rotation that allowed counties to reappraise 20% of the properties each year during the five-year cycle. The Court recognized any cyclical revaluation plan inevitably would create temporary disparities between individual property valuations. Patterson, 171 Mont. at 176, 557 P.2d at 802. Courts uniformly had upheld such cyclical reevaluations against equal protection challenges provided that no intentional, systematic, arbitrary, or fraudulent discrimination was present. Patterson, 171 Mont. at 176, 557 P.2d at 802; see alsoLarson v. State and Department of Revenue, 166 Mont. 449, 455, 534 P.2d 854, 857 (1975) (“[W]e are aware of the abundance of authority which finds no violation of constitutional or statutory mandates in the temporary inequalities which accompany a cyclical plan of reappraisal.”). ¶18 The Montana Constitution requires only periodic attainment of equality in tax treatment. Roosevelt, ¶ 45. The equal protection clause “ ‘does not require immediate 7 general adjustment on the basis of the latest market developments . . . [T]he constitutional requirement is the seasonable attainment of a rough equality in tax treatment of similarly situated property owners.’ ” Roosevelt, ¶ 45, quoting Allegheny Pittsburgh Coal Co. v. County Com., 288 U.S. 226, 343, 109 S. Ct. 633, 638 (1989). Even similarly situated taxpayers, for a short time, may pay divergent taxes. Powder River Co. v. State, 2002 MT 259, ¶ 84, 312 Mont. 198, 60 P.3d 357 (discussing Roosevelt). Such a divergence in taxes does not violate equal protection privileges. Powder River Co., ¶ 84. ¶19 Covenant began the six-year tax cycle in 2008 with tax liability based on 100% of its property value. The Department treated Covenant like other similarly situated property owners when it assessed Covenant’s property value. The fact that Covenant’s property may have declined in value during the six-year cycle, and that Covenant may pay taxes, for some portion of the remainder of the six-year cycle, on a valuation greater than 100% of its property value, does not violate Covenant’s right to equal protection. See Powder River Co., ¶ 84; Patterson, 171 Mont. at 176, 557 P.2d at 802. ¶20 In addition, the Montana Constitution prohibits courts from exercising legislative power. Ingraham v. Champion Int’l, 243 Mont. 42, 49, 793 P.2d 769, 773 (1990). Montana courts are not at liberty to amend statutes. Ingraham, 243 Mont. at 49, 793 P.2d at 769. The District Court effectively inserted a provision into the statute that would require the Department to conduct a mid-cycle reappraisal on Covenant’s property. The District Court improperly exercised legislative power. ¶21 Reversed. /S/ BRIAN MORRIS 8 We concur: /S/ PATRICIA COTTER /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON | August 6, 2013 |
7f543d76-d7b8-44d5-ab69-13c7c57b7b82 | Williams v. Bd. of County Commr's | 2013 MT 243 | DA 12-0343 | Montana | Montana Supreme Court | DA 12-0343 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 243 L. REED WILLIAMS, Plaintiff and Appellee, v. BOARD OF COUNTY COMMISSIONERS OF MISSOULA COUNTY, the governing body of the County of Missoula, acting by and through Michele Landquist, Bill Carey and Jean Curtiss, Defendants and Appellees, LIBERTY COVE, INC., PAUL ROSSIGNOL, NORMA ROSSIGNOL, and PONDEROSA DEVELOPMENT, INC., Intervenors and Appellants. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-10-673 Honorable Karen Townsend, Presiding Judge COUNSEL OF RECORD: For Intervenors and Appellants: Cory R. Gangle (argued); Gangle Law Firm, P.C.; Missoula, Montana For Appellee L. Reed Williams: Timothy M. Bechtold (argued); Bechtold Law Firm, PLLC; Missoula, Montana For Appellee Missoula County: Fred Van Valkenburg; Missoula County Attorney; D. James McCubbin (argued); Deputy County Attorney; Missoula, Montana For Amicus Land Use Clinic: Michelle Bryan Mudd, Benjamin S. Sudduth (argued); University of Montana School of Law; Missoula, Montana August 28 2013 2 For Amicus State of Montana: Timothy C. Fox; Montana Attorney General; Lawrence Vandyke (argued); Montana Solicitor General; Helena, Montana Argued: April 17, 2013 Submitted: April 23, 2013 Decided: August 28, 2013 Filed: __________________________________________ Clerk 3 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Liberty Cove, Inc., Paul and Norma Rossignol, and Ponderosa Development, Inc. (collectively “Landowners”) utilized the protest provision of § 76-2-205(6), MCA, to block the Board of County Commissioners of Missoula County (Commissioners) from establishing a special zoning district north of Lolo, Montana. L. Reed Williams (Williams) challenged the constitutionality of § 76-2-205(6), MCA, by filing a complaint against Commissioners in Montana’s Fourth Judicial District Court, Missoula County, seeking declaratory and injunctive relief. Landowners intervened in the action at the District Court and now appeal from the District Court’s order denying their motion to dismiss and granting summary judgment to Williams and Commissioners. We affirm. ISSUES ¶2 We restate the four issues raised by Landowners on appeal as follows: ¶3 1. Did the District Court abuse its discretion in denying Landowners’ motion to dismiss Williams’ complaint for failure to join them as necessary parties under the Montana Uniform Declaratory Judgments Act? ¶4 2. Did the District Court err in determining that § 76-2-205(6), MCA, was an unconstitutional delegation of legislative power? ¶5 3. Did the District Court err in determining that § 76-2-205(6), MCA, was an unconstitutional violation of the right to equal protection and the right to suffrage? ¶6 4. Did the District Court err when it ruled that § 76-2-205(6), MCA, was severable from the remainder of the statute? FACTUAL AND PROCEDURAL BACKGROUND 4 ¶7 On September 8, 2009, Commissioners and the Lolo Community Council held a joint public meeting to solicit public testimony concerning the development of a zoning proposal for an area north of Lolo, Montana. Public testimony at this meeting indicated that support existed for the development of a zoning proposal. Following the joint public meeting, Commissioners directed their staff to work with residents and landowners to create a proposal to replace the North Lolo Interim Zoning Plan. Three draft alternative plans were presented at public meetings on January 30, February 3, and February 9, 2010. Based on comments received on the alternative plans and additional staff review, Commissioners issued the Planning Board Public Hearing Draft on February 25, 2010, for public comment. ¶8 The proposed North Lolo Rural Special Zoning District consisted of 422 acres of land north of Lolo and west of U.S. Highway 93. Agricultural and forest land comprised 223 acres in the district. Prior to 2008, this area had been unzoned. On May 30, 2008, Commissioners enacted interim zoning to address public health and safety issues associated with a gravel mining and asphalt production operation proposed by Liberty Cove, Inc., who is one of the parties referred to as Landowners in the instant case. We previously upheld these interim zoning regulations as lawful in Liberty Cove, Inc. v. Missoula County, 2009 MT 377, 353 Mont. 286, 220 P.3d 617.1 Commissioners 1 Liberty Cove challenged the interim zoning on three grounds: (1) Whether the District Court erred in concluding there was an emergency to justify interim zoning; (2) Whether the District Court erred in concluding that Missoula County gave proper notice before adopting interim zoning; and (3) Whether the District Court erred in concluding that the interim zoning adopted by Missoula County did not constitute illegal reverse spot zoning. We affirmed the District Court on all three issues and upheld the interim zoning. 5 extended the one-year interim zoning in 2009, but the interim zoning was set to expire on May 30, 2010. The proposed North Lolo Special Zoning District would have replaced the interim zoning and continued to prohibit sand and gravel mining and concrete and asphalt operations within the district. ¶9 Legal notice concerning the North Lolo Growth Policy Amendment and North Lolo Rural Special Zoning District was published on multiple occasions in Missoula newspapers, posted in five locations, mailed to property owners in and near the proposed district, and emailed to interested members of the public in the Lolo area. The Missoula Consolidated Planning Board held public hearings on March 16 and 23, 2010, and recommended approval of the proposed zoning amendment and special zoning district to Commissioners on a 5 to 1 vote. ¶10 On April 7, 2010, Commissioners held a public hearing and passed “A Resolution of Intention to Adopt Amendments to the 2002 Lolo Regional Plan as an Amendment to the Missoula County Growth Policy 2005 Update.” Commissioners published notice in accordance with § 76-2-205(5), MCA, on April 15, 2010. The publication included notice that the written protest period provided for in § 76-2-205(6), MCA, would expire in 30 days. Section 76-2-205(6), MCA, is a protest provision that allows landowners to prevent the board of county commissioners from adopting a zoning resolution when protests are received from one of the following two groups: (1) 40 percent of the real property owners within the district; or (2) real property owners representing 50 percent of property taxed for agricultural purposes or as forest land in the district. When a successful protest is received, it prevents the board of county commissioners from 6 proposing any further zoning resolutions with respect to the subject property for one year. Section 76-2-205(6), MCA. ¶11 On April 20, 2010, five landowners2 who together owned more than 50 percent of the agricultural and forest land within the district filed a written protest. All parties agree that these landowners owned the requisite acreage to effectively block the zoning proposal pursuant to § 76-2-205(6), MCA. ¶12 On May 14, 2010, Williams filed a complaint in District Court against Commissioners. Williams requested that the District Court declare that the protest provision of § 76-2-205(6), MCA, was unconstitutional because it violated equal protection, due process, and voting rights. Williams also asked for a temporary restraining order and preliminary and permanent injunctions preventing Commissioners from taking any action pursuant to the allegedly unconstitutional protest provision. ¶13 On May 20, 2010, Commissioners filed an answer. Commissioners agreed with Williams that § 76-2-205(6), MCA, was unconstitutional for the reasons set forth by Williams. However, Commissioners admitted that they would apply the protest provision to prevent adoption of the zoning regulations absent an order from the District Court directing otherwise. ¶14 Without objection from Commissioners, the District Court issued an order for a preliminary injunction on May 21, 2010. The order enjoined Commissioners from taking any actions based on § 76-2-205(6), MCA, but permitted Commissioners to proceed in 2 Four of these five landowners are the Appellants in this case, designated “Landowners.” 7 accordance with the remaining provisions of § 76-2-205, MCA. On May 26, 2010, Commissioners adopted the North Lolo Rural Special Zoning District. ¶15 Landowners filed an unopposed motion to intervene on May 24, 2010. The District Court granted Landowners’ motion to intervene on May 28, 2010. Next, Landowners filed a M. R. Civ. P. 12(b)(7) motion to dismiss on June 3, 2010, arguing that Williams failed to join all of the proper parties pursuant to M. R. Civ. P. 19, which governs joinder of required parties, and Montana’s Uniform Declaratory Judgments Act (UDJA), § 27-8-301, MCA, which requires inclusion of all parties who have an interest which would be affected by the declaration. ¶16 On July 14, 2010, Williams filed a motion for summary judgment. Williams’ motion for summary judgment sought a declaration from the District Court that the protest provision of § 76-2-205(6), MCA, was an unconstitutional violation of equal protection and voting rights. Williams requested permanent injunctive relief to prevent Commissioners from enforcing the protest provision. Commissioners agreed that § 76-2-205(6), MCA, was unconstitutional and they supported issuance of a permanent injunction. On September 21, 2010, Commissioners filed a separate motion for summary judgment, challenging the constitutionality § 76-2-205(6), MCA, as an unconstitutional delegation of legislative power. ¶17 On July 23, 2010, Landowners filed a motion to stay summary judgment proceedings pending the District Court’s disposition of their motion to dismiss. Landowners filed an application to quash, vacate and dissolve the preliminary injunction on August 30, 2010. On October 15, 2010, Landowners filed a motion to quash 8 Commissioners’ motion for summary judgment, arguing that Commissioners’ motion addressed matters outside the pleadings, and that Commissioners and Williams lacked standing to challenge the constitutionality of § 76-2-205(6), MCA, on the grounds that it represented an unconstitutional delegation of legislative power. In response to Williams’ and Commissioners’ motions for summary judgment, Landowners maintained that the protest provision was constitutional. ¶18 On February 2, 2011, Williams filed a motion for leave to amend his complaint to add the claim that § 76-2-205(6), MCA, constituted an unconstitutional delegation of legislative power. Williams alleged that this claim was merely a new theory of recovery that arose from the same set of facts contained in the original complaint. The District Court granted Williams’ motion to amend his complaint on April 18, 2011. ¶19 On April 5, 2012, the District Court issued its order addressing all of the outstanding and fully briefed motions. The District Court denied Landowners’ M. R. Civ. P. 12(b)(7) motion to dismiss, denied Landowners’ application to quash, vacate and dissolve the preliminary injunction, and denied Landowners’ motion to quash Commissioners’ motion for summary judgment. The District Court granted Williams’ and Commissioners’ motions for summary judgment and concluded that § 76-2-205(6), MCA, was unconstitutional on three grounds: (1) it violated the fundamental right to vote because not all landowners within the district were permitted to participate equally in the zoning process; (2) it violated equal protection rights because there was no compelling state interest in providing some landowners with a vote against zoning regulations while depriving other landowners of the opportunity to vote in favor of the 9 zoning regulations; and (3) it constituted an unconstitutional delegation of legislative power because it failed to provide any standards or guidelines for the application of a protest and failed to provide a legislative bypass to allow for review of a protest. Furthermore, the District Court determined that the protest provision, § 76-2-205(6), MCA, was severable from the remainder of the statute. ¶20 On May 4, 2012, the District Court entered a final judgment in favor of Williams and Commissioners. Landowners appeal. STANDARDS OF REVIEW ¶21 When considering a motion to dismiss based on the assertion that an indispensible party is absent, the court is given discretion to determine whether the action will proceed or must be dismissed. Blaze Constr. v. Glacier Elec. Coop., 280 Mont. 7, 10, 928 P.2d 224, 225 (1996); Mohl v. Johnson, 275 Mont. 167, 169, 911 P.2d 217, 219 (1996). We review such discretionary rulings for an abuse of discretion. Blaze Constr., 280 Mont. at 10, 928 P.2d at 225; Mont. Rail Link v. Byard, 260 Mont. 331, 337, 860 P.2d 121, 125 (1993). ¶22 We review a district court’s ruling on a motion for summary judgment de novo, applying the same criteria of M. R. Civ. P. 56 as the district court. Steichen v. Talcott Props., LLC, 2013 MT 2, ¶ 7, 368 Mont. 169, 292 P.3d 458; Brown & Brown of MT, Inc. v. Raty, 2012 MT 264, ¶ 17, 367 Mont. 67, 289 P.3d 156. Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3). 10 ¶23 This Court’s review of constitutional questions is plenary. Walters v. Flathead Concrete Prods., 2011 MT 45, ¶ 9, 359 Mont. 346, 249 P.3d 913. The constitutionality of a statute is a question of law, and we review a district court’s legal conclusions for correctness. Walters, ¶ 9. Legislative enactments are presumed to be constitutional, and the party challenging the provision bears the burden of proving beyond a reasonable doubt that it is unconstitutional. DeVoe v. City of Missoula, 2012 MT 72, ¶ 12, 364 Mont. 375, 274 P.3d 752; State v. Ergdorf, 2003 MT 264, ¶ 12, 317 Mont. 436, 77 P.3d 517. ¶24 The severability of an unconstitutional provision from a statute is a matter of statutory interpretation. See Finke v. State ex rel. McGrath, 2003 MT 48, ¶¶ 25-26, 314 Mont. 314, 65 P.3d 576. We review a district court’s interpretation of a statute for correctness. Blanton v. Dep’t of Pub. HHS, 2011 MT 110, ¶ 21, 360 Mont. 396, 255 P.3d 1229; Stevens v. Novartis Pharms. Corp., 2010 MT 282, ¶ 24, 358 Mont. 474, 247 P.3d 244. DISCUSSION ¶25 Did the District Court abuse its discretion in denying Landowners’ motion to dismiss Williams’ complaint for failure to join them as necessary parties under the Montana Uniform Declaratory Judgments Act? ¶26 When Williams filed his initial complaint on May 14, 2010, seeking declaratory relief pursuant to the UDJA, he did not include Landowners as parties to the action. Landowners claim that they were “necessary parties” to Williams’ action because their interests as protesting property owners would be affected by the District Court’s declaration as to the constitutionality of § 76-2-205(6), MCA. Landowners moved to 11 intervene on May 24, 2010, and the District Court granted Landowners’ motion on May 28, 2010. However, by the time Landowners were allowed to intervene, the District Court had already granted Williams’ request for a preliminary injunction. ¶27 On June 3, 2010, Landowners filed a M. R. Civ. P. 12(b)(7) motion to dismiss premised on Williams’ failure to join all of the proper parties. Landowners asserted that both M. R. Civ. P. 19 and the UDJA required that Landowners must be included as parties to Williams’ action. The District Court discussed the application of M. R. Civ. P. 19(a)(1), and determined that “[a]lthough Intervenors [Landowners] may have an interest in the instant action, their interest is not one that is within the provisions of Rule 19(a)(1).” The District Court reasoned that Williams’ action was a constitutional challenge to the protest provision of a zoning statute and not a property rights dispute. After concluding that it was not mandatory under M. R. Civ. P. 19(a)(1) to join Landowners, the District Court denied Landowners’ motion to dismiss. The District Court noted that “as property owners with an interest in the constitutionality of the zoning statute at issue, Intervenors [Landowners] were properly granted leave to intervene.” ¶28 While the District Court’s decision on Landowners’ motion to dismiss addressed the matter in the context of M. R. Civ. P. 19, it is completely bereft of any analysis of necessary parties under the UDJA. On appeal, Landowners do not challenge the District Court’s conclusions concerning M. R. Civ. P. 19. Instead, they assert that the District Court abused its discretion by failing to consider that Landowners were necessary parties under the UDJA. 12 ¶29 Section 27-8-301, MCA, governs “necessary parties” to an action brought under the UDJA and provides as follows: When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. A court’s decision as to whether a non-party must be included in a matter depends on the facts and circumstances of the particular case in question. John Alexander Ethen Trust Agreement v. River Res. Outfitters, LLC, 2011 MT 143, ¶ 49, 361 Mont. 57, 256 P.3d 913. ¶30 John Alexander Ethen Trust Agreement involved a boundary dispute between neighboring property owners. One of the property owners attempted to invalidate the trial court’s decision concerning the location of the property boundary for failure to join an indispensable party. John Alexander Ethen Trust Agreement, ¶ 22. The property owner argued that other neighboring landowners who owned parcels along the same creek and whose property was divided by the same survey were indispensible. John Alexander Ethen Trust Agreement, ¶ 52. This Court disagreed, reasoning that while the other neighboring landowners had an interest in the interpretation of the surveys, they held no legal interest in the disputed acreage at issue in the case. John Alexander Ethen Trust Agreement, ¶ 52. Since the only boundary in dispute in the case was between the two parties to the action and the decision would not determine the rights of any other neighboring landowners, we held that the trial court did not abuse its discretion in 13 declining to join the neighboring landowners. John Alexander Ethen Trust Agreement, ¶ 52. ¶31 Williams commenced the action in District Court in direct response to Landowners’ use of the protest provision to prevent Commissioners from adopting the proposed North Lolo Rural Special Zoning District. As the parties who exercised their rights under the protest provision, Landowners had a clear interest in the outcome of the District Court’s declaration concerning the constitutionality of § 76-2-205(6), MCA. If the District Court declared the protest provision unconstitutional, Landowners’ property would be zoned according to the proposed North Lolo Rural Special Zoning District, and Landowners’ use of their property would be limited. On the other hand, if the District Court declared that the protest provision was constitutional, Landowners’ property would remain unzoned and they would be permitted to develop their property free of regulation. Unlike in John Alexander Ethen Trust Agreement, Landowners’ legal rights and interests as protesting property owners were directly at issue in Williams’ lawsuit. ¶32 The absence of Landowners from Williams’ lawsuit created additional problems likely to result in prejudice. The Commissioners, as the defendants in Williams’ lawsuit, agreed with Williams that § 76-2-205(6), MCA, was unconstitutional. The Attorney General was given notice of the constitutional challenge to § 76-2-205(6), MCA, but declined to defend the statute.3 Accordingly, before Landowners intervened, all of the parties before the District Court were of the same mind that the protest provision was 3 Though the Attorney General declined to participate in 2010 in District Court, the Attorney General did participate by filing an amicus curiae brief on appeal and appeared at oral argument before this Court defending the constitutionality of § 76-2-205(6), MCA. 14 unconstitutional. Allowing the lawsuit to continue in the absence of Landowners and without the presence any other party similarly situated would likely have prejudiced Landowners. ¶33 Although we agree with Landowners that they were a necessary party under § 27-8-301, MCA, we do not agree with Landowners that the proper remedy for Williams’ failure to name them as a party in his initial complaint is dismissal. M. R. Civ. P. 19 is instructive in determining the appropriate remedy when a required party is absent. Rule 19(a)(2) states that “[i]f a person has not been joined as required, the court must order that the person be made a party.” ¶34 Here, the District Court granted Landowners’ motion to intervene in the early stages of the litigation. Landowners fully participated in all substantive briefing regarding the constitutionality of the protest provision. Even though the District Court granted a preliminary injunction shortly before Landowners intervened, the preliminary injunction and the Commissioners’ adoption of the North Lolo Rural Special Zoning District were subject to the District Court’s later determination of the constitutionality of the protest provision. Granting the preliminary injunction was necessary to prevent the issue of the constitutionality of § 76-2-205(6), MCA, from becoming moot. Without the preliminary injunction, Landowners could have built gravel pits in the interim while the case was pending before the District Court, thus rendering the question regarding the validity of the protest provision moot. ¶35 This Court’s adherence to the harmless error doctrine requires that “[a]t every stage of the proceeding, the court must disregard all errors and defects that do not affect 15 any party’s substantial rights.” M. R. Civ. P. 61; see e.g. Liberty Cove, ¶ 21. Under the circumstances of this case, we find it unnecessary to dismiss the action in its entirety because the Landowners cannot demonstrate that their substantial rights were harmed in any way by Williams’ failure to include them as a party in his original complaint. Landowners’ timely intervention remedied Williams’ error of failing to initially include them as necessary parties under the UDJA. We therefore conclude that the District Court did not abuse its discretion in denying Landowners’ motion to dismiss Williams’ complaint. ¶36 Did the District Court err in determining that § 76-2-205(6), MCA, was an unconstitutional delegation of legislative power? ¶37 In Montana, the establishment of local zoning districts is governed by statute. A local zoning district can be created in two different ways: (1) by citizen petition to the board of county commissioners under § 76-2-101, MCA, known as “Part 1 zoning,” or (2) directly by the board of county commissioners under § 76-2-201, MCA, referred to as “Part 2 zoning.” See Helena Sand & Gravel, Inc. v. Lewis & Clark County Planning & Zoning Comm’n, 2012 MT 272, ¶ 6, 367 Mont. 130, 290 P.3d 691. This case involves Part 2 zoning pursuant to § 76-2-201, MCA. ¶38 Section 76-2-201, MCA, provides that a board of county commissioners may adopt zoning regulations “[f]or the purpose of promoting the public health, safety, morals, and general welfare.” The board of county commissioners is authorized by § 76-2-202, MCA, to “regulate the erection, construction, reconstruction, alteration, repair, location, or use of buildings or structures or the use of land” in zoning districts. In 16 adopting zoning regulations, the board must consider reasonable provision of adequate light and air, effects of motorized and non-motorized transportation systems, compatible urban growth in the vicinity of cities and towns, the character of the district and its peculiar suitability for particular uses, conserving the value of buildings, and encouraging the most appropriate use of land. Section 76-2-203(2), MCA. Zoning regulations must be made in accordance with relevant growth policies and must, as nearly as possible, be compatible with the zoning ordinances of nearby municipalities. Section 76-2-203, MCA. The county and city-county planning boards serve an advisory role to the board of commissioners by recommending boundaries and appropriate regulations for the zoning district. Section 76-2-204, MCA. ¶39 The procedure for establishing district boundaries and adopting or revising zoning regulations, which includes notice and public hearing requirements, is set forth in § 76-2-205, MCA. Section 76-2-205(6), MCA, contains a protest provision that provides two ways for real property owners within the proposed zoning district to prevent the board of county commissioners from adopting zoning regulations. The protest provision reads as follows: Within 30 days after the expiration of the protest period, the board of county commissioners may in its discretion adopt the resolution creating the zoning district or establishing the zoning regulations for the district. However, if 40% of the real property owners within the district whose names appear on the last-completed assessment roll or if real property owners representing 50% of the titled property ownership whose property is taxed for agricultural purposes under 15-7-202 or whose property is taxed as forest land under Title 15, chapter 44, part 1, have protested the establishment of the district or adoption of the regulations, the board of county commissioners may not adopt the resolution and a further zoning resolution may not be proposed for the district for a period of 1 year. 17 Section 76-2-205(6), MCA. At issue in this case is the constitutionality of the provision allowing agricultural and forest landowners representing 50 percent of the titled agricultural or forest land within the district to block a board of county commissioners from adopting a zoning resolution and prevent another from being proposed for one year. ¶40 Section 76-2-205, MCA, was originally adopted in 1963. At that time, the statute contained the language that allowed 40 percent of property owners in a district to protest the establishment of a zoning district or imposition of zoning regulations and effectively prevent the board of county commissioners from taking any action. However, the original version of the statute did not contain the protest provision concerning agricultural and forest land property owners. In 1995, the Legislature debated and ultimately adopted the protest provision at issue in this case. Based on the legislative history, Landowners note that the protest provision was enacted to give large agricultural and forest land property owners more power in the zoning process, and the ability to protect their property interests from unwanted regulation by residential property owners who often greatly outnumber agricultural and forest land property owners in a district. ¶41 Courts have long recognized zoning as a valid form of regulation to promote public health, safety, and welfare. In Freeman v. Board of Adjustment, 97 Mont. 342, 351, 34 P.2d 534, 536 (1934), this Court noted that when zoning ordinances were first enacted, they were often challenged as unconstitutionally depriving property owners of liberty and property without due process of law, or attacked as a violation of equal protection rights. Back in 1934, the Court recognized that the “modern trend” nationwide 18 was to uphold the validity of such ordinances and the statutes that authorize them. Freeman, 97 Mont. at 351, 34 P.2d at 537. The Court went on to explain that zoning statutes and ordinances are “generally sustained upon the theory that they constitute a valid exercise of the police power; that is to say, they have a substantial bearing upon the public health, safety, morals and general welfare of a community.” Freeman, 97 Mont. at 352, 34 P.2d at 537 (citing Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114 (1926)). ¶42 One important way that zoning promotes public health, safety, and the general welfare of a community is by separating incompatible land uses, such as industrial and residential. See Euclid, 272 U.S. at 394, 47 S. Ct. at 120. In Montana, gravel and sand mining operations present a common example of this conflict between contrary land uses. The State does not require permitting for certain categories of gravel pits, so counties must rely on zoning to protect residential areas from the industrial impacts often associated with gravel and sand mining operations. See § 82-4-431, MCA (providing limited exemptions from state permitting requirements for mining, processing and reclamation); see also § 76-2-209, MCA (authorizing reasonable conditions or prohibitions against sand and gravel mining operations in areas zoned as residential, and reasonable conditions on operations in areas not zoned residential). This Court has decided numerous zoning cases in recent years concerning gravel and sand mining operations. See e.g. Helena Sand & Gravel; Gateway Opencut Mining Action Group v. Bd. of County Comm’rs, 2011 MT 198, 361 Mont. 398, 260 P.3d 133; Liberty Cove; Beasley v. Flathead County Bd. of Adjustments; 2009 MT 120, 350 Mont. 171, 205 P.3d 19 812; Flathead Citizens for Quality Growth, Inc. v. Flathead County Bd. of Adjustment, 2008 MT 1, 341 Mont. 1, 175 P.3d 282; Merlin Myers Revocable Trust v. Yellowstone County, 2002 MT 201, 311 Mont. 194, 53 P.3d 1268. ¶43 The instant case is not the first time that the constitutionality of § 76-2-205(6), MCA, has been questioned before this Court. In Gateway Opencut Mining Action Group, an advocacy group challenged the protest provision as an unconstitutional delegation of legislative authority to private parties. However, this Court did not reach the merits of the constitutional challenge. We determined that the proposed zoning regulations failed because the board of county commissioners did not act within the statutorily-prescribed deadlines. Gateway Opencut Mining Action Group, ¶ 24. Therefore, we held that the constitutional question presented to the Court was moot. Gateway Opencut Mining Action Group, ¶ 25. ¶44 In Bacus v. Lake County, 138 Mont. 69, 354 P.2d 1056 (1960), this Court set forth the standard for a delegation of legislative power as follows: The law-making power may not be granted to an administrative body to be exercised under the guise of administrative discretion. Accordingly, in delegating powers to an administrative body with respect to the administration of statutes, the legislature must ordinarily prescribe a policy, standard, or rule for their guidance and must not vest them with an arbitrary and uncontrolled discretion with regard thereto, and a statute or ordinance which is deficient in this respect is invalid. Bacus, 138 Mont. at 78, 354 P.2d at 1061 (quoting 73 C.J.S. Public Administrative Bodies & Procedure § 29). ¶45 In the context of zoning, this Court has previously held that a lawful delegation of legislative authority “must contain standards or guidelines” to inform the propriety of the 20 exercise of that power. Shannon v. City of Forsyth, 205 Mont. 111, 114, 666 P.2d 750, 752 (1983). When no standards or guidelines are present, the exercise of the delegated power may result in “arbitrary and capricious” actions, “dependent wholly on the will and whim” of others. Shannon, 205 Mont. at 115, 666 P.2d at 752. The existence of an appellate body with the power to consider exceptional cases is essential to the proper exercise of police power. Shannon, 205 Mont. at 115, 666 P.2d at 752. Unlawful delegations of legislative authority run afoul of the due process guarantees of the Fourteenth Amendment to the United States Constitution and Article II, Section 17 of the Montana Constitution. Shannon, 205 Mont. at 114, 666 P.2d at 752. ¶46 In Shannon, mobile home owners filed a petition with the City of Forsyth seeking a waiver to locate a mobile home in a zoning district which prohibits mobile homes. Shannon, 205 Mont. at 112, 666 P.2d at 751. The local ordinance required a successful petition for a variance to include the signatures of at least 80 percent of the landowners residing within 300 feet of the proposed location of the mobile home and also required the signatures of all adjoining landowners. Shannon, 205 Mont. at 112, 666 P.2d at 751. We held that the ordinance was unconstitutional as an unlawful delegation of legislative authority and police power. Shannon, 205 Mont. at 115, 666 P.2d at 753. We reasoned that the ordinance provided no standard whatsoever by which to judge the neighbors’ consents. Shannon, 205 Mont. at 115, 666 P.2d at 752. We determined that the ordinance was arbitrary and capricious because the negative vote by a single adjoining landowner could defeat the petition. Shannon, 205 Mont. at 115, 666 P.2d at 752. Additionally, we concluded that the ordinance represented an unwarranted application of 21 police power because the City Council had no power to determine whether a variance should be granted unless a petition was submitted containing all of the required signatures. Shannon, 205 Mont. at 115, 666 P.2d at 752-53. ¶47 This Court has struck down several other statutes and ordinances outside the context of zoning as unconstitutional delegations of legislative authority. See e.g. In the Petition to Transfer Territory, 2000 MT 342, 303 Mont. 204, 15 P.3d 447 (holding that a statute giving a superintendent the authority to grant or deny petitions to transfer territory among school districts was an unconstitutional delegation of legislative power because the superintendent’s broad discretion was “unchecked by any standard, policy, or rule of decision”); Ingraham v. Champion Int’l, 243 Mont. 42, 793 P.2d 769 (1990) (deeming a workers’ compensation statute an unconstitutional delegation of legislative power because it granted the insurer “absolute discretion” as to what terms, under what circumstances, and in what amounts a lump-sum conversion payment could occur); In the Matter of Savings & Loan Activities, 182 Mont. 361, 597 P.2d 84 (1979) (declaring a statute granting the Department of Business Regulation the power to approve or disapprove applications for the merger of savings and loan associations was an unconstitutional delegation of legislative power because it lacked guidelines or substantive criteria); Douglas v. Judge, 174 Mont. 32, 568 P.2d 530 (1977) (holding unconstitutional a statute authorizing the Department of Natural Resources and Conservation to make loans to farmers and ranchers who proposed “worthwhile” renewable resource development projects because the statute lacked adequate parameters). 22 ¶48 The U.S. Supreme Court has similarly struck down laws as unconstitutional delegations of legislative power when the law “creates no standard by which the power thus given is to be exercised.” Eubank v. Richmond, 226 U.S. 137, 143-44, 33 S. Ct. 76, 77 (1912). In Eubank, a property owner challenged a city ordinance that required municipal authorities to establish building setback lines when such action was requested by two-thirds of the property owners on a street. Eubank, 226 U.S. at 141, 33 S. Ct. at 76. The Court determined that the ordinance, by “conferring the power on some property holders to virtually control and dispose of the property rights of others,” unlawfully empowered “[o]ne set of owners [to] determine not only the extent of use but the kind of use which another set of owners may make of their property.” Eubank, 226 U.S. at 143, 33 S. Ct. at 77. In fact, under the ordinance, a single landowner who owned two-thirds of a city block could assert her will against the remaining property owners on the block solely for her own interest or even capriciously, without any standard to guide the exercise of her power. Eubank, 226 U.S. at 144, 33 S. Ct. at 77. The ordinance left the Court questioning, “In what way is the public safety, convenience or welfare served by conferring such power?” Eubank, 226 U.S. at 143, 33 S. Ct. at 77. A similar result followed in Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S. Ct. 50 (1928), in which the Court concluded that an ordinance requiring the consent of two-thirds of neighboring property owners to allow a facility for the elderly to expand was unconstitutional because it conferred absolute discretion over whether to issue a permit to property owners without prescribing any standards or rules or providing for review of their decision. 23 ¶49 In reaching its decision that § 76-2-205(6), MCA, represented an unconstitutional delegation of legislative power, the District Court relied heavily on an analogous decision from the South Dakota Supreme Court, Cary v. City of Rapid City, 559 N.W.2d 891 (S.D. 1997). Cary petitioned the city to rezone her property from a general agricultural classification to medium density residential. Cary, 559 N.W.2d at 892. The city granted Cary’s request, but prior to the changes going into effect, certain neighboring property owners filed a written protest to the rezoning pursuant to a statutory protest provision. Cary, 559 N.W.2d at 892. The statute provided that if 40 percent of the property owners within and around the district filed written protests against the proposed zoning, it would fail. Cary, 559 N.W.2d at 893. Cary challenged the statute as an unconstitutional delegation of legislative power. Cary, 559 N.W.2d at 895. ¶50 Relying in part on the Montana decisions Shannon and Freeman, the South Dakota Supreme Court determined that the protest provision was unconstitutional. Cary, 559 N.W.2d at 895-96. The Court reasoned that the protest provision did not provide the necessary guidelines or standards for a protest and as a result, it allowed the use of a person’s property “to be held hostage by the will and whims of neighboring landowners” without reason or justification. Cary, 559 N.W.2d at 895. As the Court observed, “[s]uch a standardless protest statute allows for unequal treatment under the law and is in clear contradiction of the protections of the due process clause of the Fourteenth Amendment.” Cary, 559 N.W.2d at 895. Moreover, the Court determined that the absence of a legislative bypass or review provision impermissibly allowed a potentially 24 small number of neighboring property owners to make the ultimate determination of the public’s best interest. Cary, 559 N.W.2d at 895-96. ¶51 We agree with the District Court that the protest provision in § 76-2-205(6), MCA, which allows property owners representing 50 percent of the agricultural and forest land in a district to block zoning proposals, is an unconstitutional delegation of legislative power. First, the protest provision provides no standards or guidelines to inform the exercise of the delegated power. Second, the protest provision contains no legislative bypass. ¶52 Without any standards or guidelines for the exercise of the delegated power, the protest provision of § 76-2-205(6), MCA, contains the same constitutional infirmities as discussed in Shannon, Eubank, and Cary. The protest provision allows a minority of landowners, or even one landowner, to strike down proposed zoning regulations without any justification or for no reason at all. There is no requirement that the protesting landowners consider public health, safety, or the general welfare of the other residents of the district when preventing the board of county commissioners from implementing zoning regulations. As a result, agricultural and forest landowners can exercise their unfettered power in a proper manner, or in an arbitrary and capricious manner, making zoning decisions dependent wholly on their will and whim. ¶53 The protest provision also lacks provision for review by a legislative body with the power to consider exceptional cases, which was noted as essential to the proper exercise of police power in Shannon and Cary. Without a legislative bypass provision, a small number of agricultural or forest landowners, or even a single landowner, is granted 25 absolute discretion to make the ultimate determination concerning the public’s best interests with no opportunity for review. Not only does the statute lack a provision allowing a legislative body to take action notwithstanding the protest, it actually prohibits the board of county commissioners from even proposing an alternative zoning resolution for a period of one year. In contrast, Montana’s Municipal Zoning Act contains an example of a proper legislative bypass. Section 76-2-305, MCA, allows a city or town council or legislative body of a municipality to override a citizen protest to a zoning proposal by a two-thirds vote. When the legislative body retains the authority to make the final decision on a zoning proposal, courts have often determined that the statute or ordinance falls within constitutional bounds. See e.g. Hope v. Gainesville, 355 So. 2d 1172 (Fla. 1977); Trumper v. Quincy, 264 N.E.2d 689 (Mass. 1970). Section 76-2-205(6), MCA, unlawfully vests this final decision-making power in private individuals. ¶54 Therefore, we conclude that the District Court did not err in determining that the protest provision at issue in this case represents an unlawful delegation of legislative power. ¶55 In his Dissent, Justice Rice touts the rights of the Landowners to acquire and protect their land as reason for upholding the protest provision. The legislative history of § 76-2-205(6), MCA, reveals that the protest provision was enacted to protect agricultural production and the traditional uses of forest and agricultural land. In fact, as Justice Rice acknowledges, the Legislature enacted another statute the same year that the protest 26 provision was adopted, expressly declaring the Legislature’s intent to protect agricultural property from governmental zoning: 76-2-901. Agricultural activities—legislative finding and purpose. (1) The legislature finds that agricultural lands and the ability and right of farmers and ranchers to produce a safe, abundant, and secure food and fiber supply have been the basis of economic growth and development of all sectors of Montana’s economy. In order to sustain Montana’s valuable farm economy and land bases associated with it, farmers and ranchers must be encouraged and have the right to stay in farming. (2) It is therefore the intent of the legislature to protect agricultural activities from governmental zoning and nuisance ordinances. The goals of the Legislature are surely salutary. It bears noting, however, that Landowners were not utilizing the protest provision to preserve their ability to “produce a safe, abundant, and secure food and fiber supply” or protect their “right to stay in farming.” Rather, Landowners wielded the power of the protest provision to block regulations that would limit their ability to transform their agricultural and forest land into a large industrial gravel pit. Thus, Justice Rice’s invocation of “safeguards for agricultural property” as a basis for upholding the protest provision rings somewhat hollow. ¶56 While Justice Rice expresses concern for the property rights of Landowners, his Dissent utterly ignores the property rights of the remaining property owners in the zoning district. These neighboring property owners also have a constitutional right to possess their property and protect it from harm. When zoning regulations are designed to “have a real and substantial bearing upon the public health, safety, morals and general welfare of a community,” such regulations do not unduly interfere with the fundamental nature of 27 private property ownership and can in fact bolster the use, enjoyment, and value of property. Freeman, 97 Mont. at 355, 34 P.2d at 538. ¶57 Justice Rice attempts to distinguish the instant case by arguing that “Landowners held only the ability to protect and prevent their own land from being zoned, not to approve or impose conditions on their neighbors’ property.” Dissent, ¶ 78. We disagree with this characterization of the protest provision. The protest power of § 76-2-205(6), MCA, granted Landowners the ability to prevent any zoning regulations from being adopted for the entire North Lolo Rural Special Zoning District, regardless of how or whether the proposed regulations might affect their own land. The protest provision did not merely give Landowners the ability to gain a variance for their own property; it allowed them to block an entire zoning plan from being implemented. Moreover, Landowners could presumably invoke the protest provision year after year so as to indefinitely block zoning. Contrary to the assumption implicit in ¶ 79 of Justice Rice’s Dissent, nothing in the protest provision prevents Landowners from engaging in successive protests whenever the board might again attempt to establish zoning regulations. ¶58 We now turn to Justice McKinnon’s Dissent. Contrary to the plain language of the statute, Justice McKinnon argues that § 76-2-205(6), MCA, functions as a “condition precedent to zoning.” This is simply not the case. This Court has previously defined a condition precedent as “one which is to be performed before some right or obligation dependent thereon accrues.” Holter Lakeshores Homeowners Ass’n v. Thurston, 2009 MT 146, ¶ 22, 350 Mont. 362, 207 P.3d 334. Section 76-2-205, MCA, contains no 28 provision allowing, let alone requiring, property owners to vote to approve zoning regulations before a board of county commissioners may act. This mischaracterization of the nature of the protest provision derails much of the analysis that follows in Justice McKinnon’s Dissent. ¶59 Contrary to the impression left by the Dissents, the sky is not falling. We have concluded that the statute as written unlawfully vests private individuals with legislative power. It bears repeating that appropriate legislative bypass language has been employed over the last century around the country to alleviate similar concerns. The Montana Legislature is certainly free to consider whether and how to reenact the protest provision so that it will pass constitutional muster. ¶60 For these reasons, we respectfully reject the arguments presented by the Dissents. ¶61 Did the District Court err in determining that § 76-2-205(6), MCA, was an unconstitutional violation of the right to equal protection and the right to suffrage? ¶62 Based on our resolution of Issue 2 and our determination that the protest provision in question constitutes an unconstitutional delegation of legislative power, we decline to address Landowners’ equal protection and right to suffrage constitutional challenges. ¶63 Did the District Court err when it ruled that § 76-2-205(6), MCA, was severable from the remainder of the statute? ¶64 We must now consider whether the protest provision of § 76-2-205(6), MCA, is severable from the remainder of the statute. This Court attempts to construe statutes in a manner that avoids unconstitutional interpretation whenever possible. State v. Samples, 2008 MT 416, ¶ 14, 347 Mont. 292, 198 P.3d 803; City of Great Falls v. Morris, 2006 29 MT 93, ¶ 19, 332 Mont. 85, 134 P.3d 692. If a law contains both constitutional and unconstitutional provisions, we examine the legislation to determine if there is a severability clause. Finke, ¶ 25; Sheehy v. Public Employees Retirement Div., 262 Mont. 129, 141, 864 P.2d 762, 770 (1993). The inclusion of a severability clause in a statute is an indication that the drafters desired a policy of judicial severability to apply to the enactment. Finke, ¶ 26; Sheehy, 262 Mont. at 141, 864 P.2d at 770. In the absence of a severability clause, this Court “must determine whether the unconstitutional provisions are necessary for the integrity of the law or were an inducement for its enactment.” Finke, ¶ 25; Sheehy, 262 Mont. at 141, 864 P.2d at 770. When unconstitutional provisions are severed, the remainder of the statute must be complete in itself and capable of being executed in accordance with the apparent legislative intent. Finke, ¶ 26; Sheehy, 262 Mont. at 141, 864 P.2d at 770. Though “the presumption is against the mutilation of a statute,” Sheehy, 262 Mont. at 142, 864 P.2d at 770, if removing the offending provisions will not frustrate the purpose or disrupt the integrity of the law, we will strike only those provisions of the statute that are unconstitutional. Mont. Auto Ass’n v. Greely, 193 Mont. 378, 399, 632 P.2d 300, 311 (1981). ¶65 The District Court began its analysis by determining that § 76-2-205(6), MCA, does not contain a severability clause. Next, the District Court reviewed the legislative history of § 76-2-205, MCA, and noted that there was very little discussion in 1963 when the statute was first enacted concerning the 40 percent protest provision. Since the protest provision for 50 percent of agricultural and forest landowners was not added until 1995, the District Court concluded that this protest provision was neither necessary for 30 the integrity of the law nor did it induce the statute’s enactment. The District Court determined that the protest provision contained in § 76-2-205(6), MCA, was severable from the statute. ¶66 Landowners argue that if the protest provision is found to be unconstitutional, this Court must strike down § 76-2-205, MCA, in its entirety. Landowners argue that the statute contained a severability clause until 1995, and the subsequent removal of the severability clause should be viewed as evidence that the Legislature did not intend for the statute to be severable. ¶67 Our review of the history of § 76-2-205, MCA, demonstrates that when the statute was enacted in 1963, it did in fact contain a severability clause. 1963 Mont. Laws 782, ch. 246, § 11. The severability clause read as follows: The provisions of this act shall be severable and, if any of its sections, provisions, exceptions, clauses or parts be held unconstitutional or void, the remainder of this act shall continue in full force and effect. 1963 Mont. Laws 782, ch. 246, § 11. In 1971, the Legislature amended the statute to clarify its language. 1971 Mont. Laws 1176, ch. 273, § 19. The 1971 amendments did not substantively alter § 76-2-205, MCA. The Legislature once again expressed its intent that the statute be severable by including the following severability clause: It is the intent of the legislative assembly that if a part of this act is invalid, all valid parts that are severable from the invalid part remain in effect. If part of this act is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications. 1971 Mont. Laws 1176, ch. 273, § 21. 31 ¶68 According to the Montana Bill Drafting Manual published by the Montana Legislative Services Division, severability clauses are not codified but are published in the annotations. In 1977, the statute at issue was identified as § 16-4705, R.C.M., and was located in Title 16: Counties, Chapter 47: Zoning Districts. At the end of this chapter, the code contained an annotation noting the severability clause. However, in 1978, the code was renumbered and reorganized. The statute at issue was renumbered as § 76-2-205, MCA, and moved to Title 76: Land Resources and Use, Chapter 2: Planning and Zoning, Part 2: County Zoning. The annotation noting the existence of a severability clause was removed from the code, but the legislative history does not demonstrate that the Legislature took any specific action to remove the severability clause. Severability was not mentioned in later revisions of the statute in 1995 and 2009. The current version of § 76-2-205, MCA, does not include an annotation noting the existence of a severability clause. ¶69 Even given the checkered background and unclear history of § 76-2-205, MCA, several facts are apparent. First, when the Legislature enacted the statute in 1963, it expressly included a severability clause. The original version of the statute contained the protest provision allowing 40 percent of property owners within the district to block a zoning proposal, but it did not include the protest provision concerning agricultural and forest landowners. The protest provision applicable to agricultural and forest landowners was not enacted until 32 years after the original statute was approved. Since the statute existed for 32 years without the protest provision at issue in this case, we reject Landowners’ argument that the protest provision was necessary for the integrity of the 32 law or served as an inducement for its enactment. Furthermore, the Legislature never took any action at any point in the statute’s history that expressly demonstrated its intent to remove the severability clause. ¶70 When the protest provision is severed from the statute, the remaining provisions are complete and capable of fulfilling the legislative intent underlying the statute. The stated purpose of county zoning is to promote “the public health, safety, morals, and general welfare.” See § 76-2-201, MCA. In the absence of the protest provision, the purposes of the statute can still be achieved. The process set forth in § 76-2-205, MCA, adequately protects the rights of property owners within the district by requiring notice of any proposed changes and by allowing public comment and participation. Under these circumstances, the District Court correctly determined that the protest provision at issue is severable from § 76-2-205, MCA. CONCLUSION ¶71 For the foregoing reasons, we affirm the District Court’s grant of summary judgment to Williams and Commissioners. We hold that the protest provision in § 76-2-205(6), MCA, is an unconstitutional delegation of legislative power. Accordingly, we strike the protest provision that allows agricultural and forest property owners representing 50 percent of such land within a district to block the board of county commissioners from adopting a zoning proposal and prohibiting the board from proposing further zoning regulations for one year. Since the protest provision utilized by Landowners was unconstitutional and thereby ineffective, we uphold the Commissioners’ adoption of the North Lolo Rural Special Zoning District. 33 /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ BRIAN MORRIS Justice Jim Rice, dissenting. ¶72 In its analysis, I believe the Court misses the big picture: the Landowners have a constitutional right to property and to protect their property rights from infringement; Missoula County has no constitutional right to zone. ¶73 The Court holds that the protest provision in § 76-2-205(6), MCA, is an unconstitutional delegation of legislative power that violates due process guarantees in Article II, Section 17 of the Montana Constitution and the Fourteenth Amendment of the United States Constitution. Opinion, ¶ 51. However, the purported due process violation—that the protest provision confers “the power on some property holders to virtually control and dispose of the property of others,” Opinion, ¶ 48 (citing Eubank)— did not occur here. Indeed, the Court has gotten it exactly backwards. Landowners are not disposing the property of others, but are protecting their own property from disposition. By the Court’s striking of the right to protest zoning restrictions upon their land, it is the Landowners who have been denied due process and their constitutional property rights. 34 ¶74 Landowners enjoy the inalienable right of lawfully “acquiring, possessing and protecting property.” Mont. Const. art. II, § 3; see also e.g. Roberge, 278 U.S. at 121, 49 S. Ct. at 52 (a landowner’s right “to devote its land to any legitimate use is properly within the protection of the Constitution.”). As mentioned above, there is no constitutionally-based right to zone, and we have recognized the principle that “zoning laws and ordinances are in derogation of the common law right to free use of private property . . .” Whistler v. Burlington N. R.R., 228 Mont. 150, 155, 741 P.2d 422, 425 (1987) (citations omitted). In 1995, the Montana Legislature provided additional safeguards for agricultural property from governmental zoning and nuisance ordinances, see § 76-2-901, MCA, which included the protest provision challenged here. ¶75 A delegation of legislative power must confer upon a designated group or agency the ability to create or enact a law. The Court quotes the standard provided in Bacus for delegation of legislative powers, Opinion, ¶ 44, but overlooks the point that, for delegation to occur, an agency or group must be given “law-making power” to enact, make, or create a law. Bacus, 138 Mont at 78-79, 354 P.2d at 1061. This point was discussed in Eubank, where two-thirds of the neighbors petitioned the local government to institute a setback restriction that affected the landowner’s use of his property. Eubank, 226 U.S. at 141, 33 S. Ct. at 76. It was in this context of law-making power that the Supreme Court held, as rephrased by the Court, that “‘conferring the power on some property holders to virtually control and dispose of the property rights of others’ unlawfully empowered ‘[o]ne set of owners [to] determine not only the extent of use but the kind of use which another set of owners may make of their property,’” and struck 35 down the ordinance as unconstitutional. Opinion, ¶ 48 (quoting Eubank, 226 U.S. at 143, 33 S. Ct. at 77). The Court has here misapplied the holding in Eubank by twisting it to support the opposite conclusion. ¶76 This is further illustrated by the U.S. Supreme Court’s subsequent explanation. Three years after Eubank, the Supreme Court considered whether a Chicago ordinance was an unconstitutional delegation of legislative power in Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S. Ct. 190 (1917). The Chicago ordinance required consent from a majority of residential property owners on the affected city block before a person or company could construct a billboard on the city block. Thomas Cusack Co., 242 U.S. at 527-28, 37 S. Ct. at 190. The Supreme Court held that this landowner check on the city’s zoning power was not an unconstitutional delegation of legislative power, and compared Chicago’s ordinance to the ordinance at issue in Eubank: The [ordinance in Eubank] permits two-thirds of the lot owners to impose restrictions upon the other property in the block, while the [ordinance in Thomas Cusack Co.] permits one-half of the lot owners to remove a restriction from the other property owners. This is not a delegation of legislative power, but is, as we have seen, a familiar provision affecting the enforcement of laws and ordinances. Thomas Cusack Co., 242 U.S. at 531, 37 S. Ct. at 192 (emphasis added). The constitutional ordinance in Thomas Cusack Co. allowed a particular kind of property owners—residential—to block or remove a zoning restriction, Thomas Cusack Co., 242 U.S. at 531, 37 S. Ct. at 190, while the unconstitutional ordinance in Eubank conferred power to a group of property owners to enact new property restrictions, Eubank, 226 U.S. at 143-44, 33 S. Ct. at 77. 36 ¶77 Section 76-2-205(6), MCA, is a landowner protection device akin to that in Thomas Cusack Co., because the protest provision does not confer power to enact or create a law, as defined in Bacus. The protest provision merely permits Landowners, who have a constitutional right to possess and protect their own property, to preserve the status quo by blocking proposed zoning for one year. The fact that some may resent the device enacted by the Legislature to protect property rights does not render it unconstitutional. ¶78 The Court fails to recognize that Landowners held only the ability to protect and prevent their own land from being zoned, not to approve or impose conditions on their neighbors’ property. The Court correctly presents the applicable principles articulated in Shannon and Cary, but does so in errant oversimplification. In Shannon and Cary, the neighboring landowners were granted the ability to prevent the plaintiff from taking a proposed action on the plaintiffs’ own property. Shannon, 205 Mont. at 112, 666 P.2d at 751 (plaintiff landowners sought a variance to place a mobile home on their own land, which neighbors would not approve); Cary, 559 N.W.2d at 892 (plaintiff landowner sought to rezone her land from agricultural to medium density residential, which neighbors protested). Here, the protest power used by the Landowners to prevent zoning of their own land in no way deprived their neighbors from any right to use their own property. ¶79 Finally, § 76-2-205(6), MCA, does not grant to Landowners the power to make a final arbitration necessary to constitute an unconstitutional delegation of legislative power. Rather, a successful protest provides for a one-year suspension of the 37 implementation of new zoning. The County may again engage in zoning after the one year period has passed, with or without modifications. Section 76-2-205(6), MCA. In light of a proper understanding of the mechanism of the protest provision and applicable federal and state precedent, the Court’s striking of § 76-2-205(6), MCA, significantly expands the governmental power to zone and erodes the ability of the Legislature and property owners to protect the constitutional rights to lawfully acquire, possess, and protect their property. Mont. Const. art. II, § 3. Many such similar protest provisions in Montana law will now be called into question. In the words of the U.S. Supreme Court, the statutory protest here is “a familiar provision affecting the enforcement of laws and ordinances.” Thomas Cusack Co., 242 U.S. at 531, 37 S. Ct. at 192. ¶80 In response to this Dissent, the Court fails to acknowledge the clear analysis of the U.S. Supreme Court distinguishing the constitutionally flawed ordinances in the cases relied upon by the Court from the statute at issue here. The Court instead invokes the property rights “of the remaining property owners in the zoning district,” Opinion, ¶ 56, as if this case somehow involved a balancing of rights between property owners. However, there is no balancing of constitutional rights here—at least, there is not supposed to be. Under § 76-2-205(6), MCA, other property owners had the same right as the Landowners to protest or not protest the zoning proposed by the County. The Landowners exercised their right of protest. The issue thus raised and litigated is the right of property owners to resist the government’s restrictions on the use of their property. The legal conflict is one, not between citizens, but between citizens and the 38 government. And it is a conflict in which the citizens, under the Court’s decision, come out the big losers. ¶81 I agree with the Court’s conclusion that the District Court erred by rejecting Landowners’ claim that they were necessary parties, but disagree that the District Court’s error was harmless. By the time the Landowners were allowed to intervene, the District Court had already granted the preliminary injunction and the County Commissioners had already enacted the North Lolo Rural Special Zoning District. The failure to join Landowners denied them an opportunity to argue against the preliminary injunction and in favor of the constitutionality of the statutory protest provisions. By the time Landowners got to make their arguments, the zoning was enacted. ¶82 The District Court should have known that Landowners were both interested and necessary parties to this action from the beginning. The complaint and the answer agreed that Landowners had availed themselves to the protest provision in § 76-2-205(6), MCA, to protect their property from being zoned. By its preliminary injunction, the District Court voided § 76-2-205(6), MCA, without notice to or hearing from the Landowners, whose efforts pursuant to the protest provision were thereby negated. To me, such exercise of raw judicial power is astonishing. The District Court should have engaged in the precisely opposite presumptions—that the statutory protest provision was constitutional and that the constitutional right of property reinforced the need to uphold the statute until demonstrated beyond a reasonable doubt that it was unconstitutional. Landowners’ constitutional right to protect their property from governmental intrusion was thereby prejudiced. The Landowners should have come before the District Court as 39 successful protestants who were entitled to rely on the presumption of constitutionality of the protest statute. Instead, they came before the District Court having already lost the battle: the protest provision was struck down, the presumption of the statute’s constitutionality was eliminated, and the zoning was already enacted. Landowners had “a snowball’s chance” before the District Court. ¶83 The County had no constitutional power to zone; it had only the powers given by the Legislature. The District Court first marginalized the Landowners procedurally and then failed to protect their substantive constitutional rights, granting new powers for government to override property rights. ¶84 I would reverse. /S/ JIM RICE Justice Laurie McKinnon, dissenting. ¶85 In my opinion, the Court today fails to distinguish between a zoning regulation and a statute that enables zoning to take place in the first instance. The latter does not implicate considerations of an unconstitutional delegation of legislative authority, while the former may. In failing to make a distinction between enabling provisions of the zoning statute and its substantive provisions, the Court has declared unconstitutional a condition precedent to zoning which the Legislature, as representatives of its citizens, determined was proper to have. We tell the Legislature and Montana citizens today that 40 you must have zoning in your counties even though 50 percent of agricultural landowners do not want to be zoned. We tell the Legislature and Montana citizens today that we find offensive a statute which prioritizes land ownership, perhaps at the expense of a large number of county residents. ¶86 The Court’s decision today allows county commissioners in rural counties to implement zoning measures impacting farm and agricultural land based upon a resolution of county commissioners—normally three individuals in our rural counties. We make these declarations in spite of the Legislature’s finding and purpose “to protect agricultural activities from governmental zoning and nuisance ordinances,” § 76-2-901(2), MCA, and the Legislature’s recognition that agricultural lands in Montana are a basis of Montana’s growth and development, § 76-2-901(1), MCA. While recognizing Montana’s unique heritage as a basis for upholding statutes in other contexts, we strike down today one of Montana’s “unique” statutes designed to protect agricultural lands from governmental zoning. We are obliged as jurists, as compared to legislators, to recognize these distinctions in the law, and to not allow our preference for zoning, in particular circumstances, to confuse our analysis. ¶87 Landowners own the majority of the property subject to the proposed regulations. They own agricultural and forest land and are taxed accordingly. One of the Landowners, Liberty Cove, wanted to build a lake on their property and entered into a purchase agreement with a contractor for the gravel mining operations. On March 8, 2006, Missoula County granted a zoning compliance permit, noting that the site location was not zoned. County commissioners received complaints from Lolo residents 41 requesting the county enact interim zoning to address environmental and traffic concerns at the site. The Court today notes that Landowners are attempting to “transform their agricultural and forest land into a large industrial gravel pit” and that Landowners were not “utilizing the protest provision to preserve their ability to ‘produce a safe, abundant, and secure food and fiber supply’ or protect their ‘right to stay in farming.’ ” Opinion, ¶ 55. I do not believe it is for this Court to decide which uses of property have merit and which do not. It seems to me such an analysis is akin to the notion of choosing what speech someone may or may not hear. I, for one, am uncomfortable with the notion that my rights depend on the value another individual gives to the particular use I make of my property, as long as it is lawful. Landowners pay taxes on their agricultural and farm land and their standing under § 76-2-205(6), MCA, has not been challenged. We ought not qualify our analysis by questioning whether they are endeavored in “agricultural production and the traditional uses of forest and agricultural land.” Opinion, ¶ 55. ¶88 Zoning regulations are enacted pursuant to the police power of the state. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114 (1926). The power to zone is exercised primarily by local units of the government. However, local governments have no inherent police powers of their own and therefore no inherent power to zone. Before a local government can legally exercise the zoning power, it must receive a delegation of that power from the sovereign entity inherently possessing it. Most typically, that entity is the state. 6 Patrick J. Rohan, Zoning and Land Use Controls, § 35.01 (Matthew Bender 2013). There is thus no inherent power to zone except as has been delegated to local government by its enabling statutes or constitution. Transamerica Title Ins. Co. v. Tucson, 757 P.2d 42 1055 (Ariz. 1988); Riggs v. City of Oxnard, 154 Cal. App. 3d 526, 201 Cal. Rptr 291 (1984); Nopro Co. v. Cherry Hills Village, 504 P.2d 344 (Colo. 1972); Stucki v. Plavin, 291 A.2d 508 (Me. 1972); Sun Oil Co. v. New Hope, 220 N.W.2d 256 (Minn. 1974); State ex rel Ellis v. Liddle, 520 S.W.2d 644 (Mo. Ct. App. 1975); Nemeroff Realty Corp. v. Kerr, 38 A.D.2d 437, 330 N.Y.S.2d 632 (N.Y. App. Div. 1972), aff’d 299 N.E.2d 897 (1973). The action taken by the local government must not exceed that provided for in its delegation and must be consistent with the enabling legislation. Smith v. Zoning Bd. Of Appeals of Greenwich, 629 A.2d 1089 (Conn. 1993); Board of Township Trustees v. Funtime, Inc., 563 N.E.2d 717 (Ohio 1990); Riggs v. Long Beach, 538 A.2d 808 (N.J. 1988); Ramsey v. Portland, 836 P.2d 772 (Or. 1992); Jachimek v. Superior Ct., 819 P.2d 487 (Ariz. 1991); Ripso Realty & Dev. Co. v. Parma, 564 N.E.2d 425 (Ohio 1990). The Supreme Court of North Carolina has aptly described the nature of the delegation of authority to zone: Thus, the power to zone is the power of the State and rests in the General Assembly originally. There, it is subject to the limitations imposed by the Constitution upon the legislative power forbidding arbitrary and unduly discriminatory interference with the rights of property owners. A municipal corporation has no inherent power to zone its territory and restrict to specified purposes the use of private property in each such zone. . . . Obviously, the General Assembly cannot delegate to a municipal corporation more extensive power to regulate the use of private property than the General Assembly, itself, possesses. Consequently, the authority of a city or town to enact zoning ordinances is subject both to the above mentioned limitations imposed by the Constitution and to the limitations of the enabling statute. Zopfi v. Wilmington, 160 S.E.2d 325 (N.C. 1968) (internal citations omitted). 43 ¶89 Involvement by state legislatures in land-use regulation has been growing since the 1960s. Robert M. Anderson offers the following analysis for the growth of state legislatures’ involvement, by way of enabling legislation, into the land-use control field: Land-use restriction was assumed to be a problem which could be solved more efficiently on the local level. The rationale of this policy was articulated as early as 1929 by Chief Judge Cardozo of the New York Court of Appeals: “A zoning resolution in many of its features is distinctively a city affair, a concern of the locality, affecting, as it does, the density of population, the growth of city life, and the course of city values.” . . . The growing state participation in land-use regulation has been generated by a combination of problems of a regional nature and local inability to provide solutions. The typical fragmentation of the zoning power, which created numerous zoning authorities in urban areas sharing a common regional problem, made orderly control of development improbable. Legislative bodies, amenable to electors from a small geographic district, predictably enacted zoning regulations which served the provincial interest of their district. They disregarded the broad interests of the regional community, making solution of area-wide problems difficult, if not impossible. This invited state regulation by legislators who were answerable to a broader constituency. State legislators began to realize that ecological problems would be solved, if at all, only on a state wide basis. This encouraged the adoption of measures to control land use which threatened natural resources, including places of natural beauty or historic interest. In addition, state land use controls were inspired by such other factors as land shortages, fiscal crises, urban deterioration, and a wide variety of community ills which seemed unlikely to be cured by purely local regulation. 1 Robert M. Anderson, American Law of Zoning 3d, § 2.03 (1986). ¶90 Pursuant to Montana’s Constitution, county commissioners have only that legislative authority specifically granted by the Legislature. Mont. Const. art. XI, § 3(1). The Legislature conditioned their grant of legislative authority to zone by allowing 40% of real property owners or 50% of agricultural land owners to reject any proposed zoning. 44 While popularly elected county commissioners can vote for or against zoning proposals, they cannot enact zoning ordinances when they have not been granted the authority to do so. The Legislature specifically limited the authority of county commissioners to zone by allowing those most affected by the zoning—the property owners—to reject any proposed zoning. The 1995 protest provision was sponsored by Rep. Trexler who, in his opening statement on HB 358, explained the bill was “not a zoning bill” and was not intended to address public health, safety and welfare because county governments already had in place mechanisms to protect public health and safety. The purpose of the bill was to address if “a group of people are imposing their wishes on their neighbors, they must sit down and talk with their neighbors to reach an agreement.” Owners of agricultural land “should be allowed to [manage their property] and not be zoned to [prevent] that.” Senate Committee Hearing on HB 358 (March 21, 1995). Then Attorney General Joe Mazurek opined in 1996 that [t]here is no controlling decisional law in Montana pertaining to the questions . . . presented and the law of other jurisdictions has limited application given the unusual nature of the Montana statute. Opinions of other jurisdictions are premised on the recognition that the protest provisions of those jurisdictions pertain to the amendment of an existing zoning regulation. The courts recognize that those protest provisions are a form of protection afforded property owners in the stability and continuity of preexisting zoning regulations. Such reasoning is not applicable to the Montana statute, which operates as a form of extraordinary protection afforded property owners to prevent the legislative body from adopting zoning regulations in the first instance. As such, the statute operates more like a “consent provision” than a protest provision. Consistent with these observations, the statute’s “protest” rights discussed within this opinion are so identified only for purposes of consistency with the actual language of the statute. 46 Mont. Op. Att’y 22 (July 22, 1996) (emphasis added; footnotes omitted). 45 ¶91 Initially, it is significant to point out that this Court has previously held valid, as against an attack that the statute was an unlawful delegation of legislative authority, the statutory forerunner to § 76-2-205, MCA. In City of Missoula v. Missoula County, 139 Mont. 256, 362 P.2d 539 (1961), this Court found that zoning statutes which created a zoning commission and enabled the county commissioners to enact zoning ordinances validly delegated administrative authority and provided sufficiently clear, definite and certain standards to enable the agency to know its rights and obligations. See Montana Wildlife Federation v. Sager, 190 Mont 247, 258, 620 P.2d 1189, 1196 (1980). We said in City of Missoula: We shall not quote the entire act, but, with respect to the procedure, the law provides definite outlines and limitations. The zoning district may come into being only upon petition of sixty percent of the freeholders in the area. The adoption of the development district must be by a majority of the Commission, after definitely prescribed public notice and public hearing. The resolution must refer to maps, charts, and descriptive matters. In other words, quite adequate procedural matters are contained in the act itself. City of Missoula, 139 Mont. at 260-61, 362 P.2d at 541. Although City of Missoula did not directly address the contention raised here, this Court recognized the validity of the statutory provision that prevented the creation of a zoning district until 60% of the freeholders petitioned for its establishment. Significantly, these prior enabling provisions, found to be valid by the Court, “denied the power to regulate the use of land for grazing, horticulture, agriculture, or the growing of timber.” City of Missoula, 139 Mont. at 258, 362 P.2d at 540 (emphasis added). The Legislature’s limitation of zoning authority to a county and its zoning commission has thus been part of our statutory scheme since 1953. Our current zoning statute, § 76-2-205, MCA, actually provides less 46 protection to owners of agricultural and farm lands by not prohibiting zoning outright of these lands, but instead conditioning it upon there being no objection from at least 51% of the landowners of agricultural and farm land. ¶92 I agree with Justice Rice in his Dissent when he states that “the Court has gotten it exactly backwards” in describing our analysis of cases construing protest provisions. Dissent, ¶ 73. While it is true that the Supreme Court in Eubank v. Richmond, 226 U.S. 137, 33 S. Ct. 76 (1912), found an unconstitutional delegation of legislative authority to particular landowners in determining the location of a building line, the authority to establish the building line was not challenged and had already been conferred. Thus the question was not whether the City of Richmond had authority to create the ordinance, but rather, once conferred, whether that authority was constitutionally exercised. The action of the committee is determined by two-thirds of the property owners. In other words, part of the property owners fronting on the block determine the extent of use that other owners shall make of their lots, and against the restriction they are impotent. This we emphasize. One set of owners determine not only the extent of use but the kind of use which another set of owners may make of their property. In what way is the public safety, convenience or welfare served by conferring such power? The statute and ordinance, while conferring the power on some property holders to virtually control and dispose of the proper rights of others, creates no standard by which the power thus given is to be exercised; in other words, the property holders who desire and have the authority to establish the line may do so solely for their own interest or even capriciously. Eubank, 226 U.S. at 143-44, 33 S. Ct. at 77 (emphasis added). Five years later, the Supreme Court explained, in declaring constitutional an ordinance that required consent by a majority of the property holders before billboards could be erected in residential areas, that: 47 A sufficient distinction between the ordinance [in Eubanks] and the one at bar is plain. The former left the establishment of the building line untouched until the lot owners should act and then made the street committee the mere automatic register of that action and gave to it the effect of law. The ordinance in the case at bar absolutely prohibits the erection of any billboards in the blocks designated, but permits this prohibition to be modified with the consent of the persons who are to be most affected by such modification. The one ordinance permits two-thirds of the lot owners to impose restrictions upon the other property in the block, while the other permits one-half of the lot owners to remove a restriction from the other property owners. This is not a delegation of legislative power, but is, as we have seen, a familiar provision affecting the enforcement of laws and ordinances. Thomas Cusack Co., v. Chicago, 242 U.S. 526, 531, 37 S. Ct. 190, 192 (1917) (emphasis added). See also Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 121-22, 49 S. Ct. 50, 52 (1928), where the Court held that “[t]he right of [a property owner] to devote [his] land to any legitimate use is properly within the protection of the Constitution” and thus the consent provision for issuance of a permit to accommodate a larger home for the elderly poor was an unconstitutional delegation of power and “repugnant to the due process clause of the Fourteenth Amendment.” ¶93 The Court’s reliance on Cary v. City of Rapid City, 559 N.W.2d 891 (S.D. 1997), and Shannon v. Forsyth, 205 Mont. 111, 666 P.2d 750 (1983), is also misplaced. In Cary, the issue was not the authority to zone, but rather whether the authority delegated was constitutionally exercised. Cary sought to have her property rezoned which, following protests from neighbors, was denied by the City. The Court determined that the absence of a legislative bypass and a standardless statute regarding her neighbors’ protests “allows for unequal treatment under the law.” Cary, 559 N.W.2d at 895. Similarly, in Shannon, several zoning districts had already been established. The issue 48 was whether there were sufficient standards imposed upon adjoining landowners in denying a petition seeking a waiver to locate a mobile home within a “Residential A” zoning district. This Court determined that the consent ordinance was unconstitutional as an unlawful delegation of legislative authority and police power. Shannon, 205 Mont. at 115, 666 P.2d at 753. ¶94 Other jurisdictions have observed a distinction between consent and protest provisions which impermissibly delegate legislative authority and those that condition the exercise of legislative authority on particular conditions having been established. In O’Brien v. St. Paul, 173 N.W.2d 462 (Minn. 1969), the Court determined that a provision requiring an owner to obtain written consent of two-thirds of the adjoining property owners prior to rezoning was valid. Consent was determined to be not a delegation of power, but merely a condition precedent to an exercise of power by the city council. The Court referred to rules enunciated from other jurisdictions and adopted the following distinction: If the action of the property owners has the effect of legislation—if it creates the restriction or prohibition, then it is deemed to fall within the forbidden “delegation of legislative power.” On the other hand, if the consents are used for no greater purpose than to waive or modify a restriction which the legislative authority itself has lawfully created and in which creation it has made provisions for waiver or modification, then such consents are generally regarded as being within constitutional limitations. O’Brien, 173 N.W.2d at 465-66 (citing 2 Metzenbaum, Law of Zoning, c. X-b-1, p. 1067 (2d ed.). See also 1 Yokley, Zoning Law and Practice § 7-13, p. 358 (3d ed.). The Washington Supreme Court upheld a similar consent statute and explained: 49 In this case it may readily be seen that the council, recognizing the rights of the residents of the city to be consulted in matters purely local, matters affecting the comfort and even the health of the residents, and the right to have their will reflected in the enactments of their representatives, provided the ordinance for the purpose of meeting the desires of the residents in that regard. The ordinance is prohibitive, but leaves the right to the citizen to waive the prohibition if he chooses. Statutes of this character are common, and while it is generally conceded that the legislature cannot delegate its legislative function, it is well established that it may provide for the operation of a law which it enacts upon the happening of some future act or contingency. The local option laws in their various phases are common instances. While these laws were violently assailed, and in some instances received judicial condemnation, they are now almost universally sustained. Spokane v. Camp, 97 P. 770, 771 (Wash. 1908) (emphasis added.). The Illinois Supreme Court explained in 1896 that “[i]t is competent for the legislature to pass a law, the ultimate operation of which may, by its own terms, be made to depend upon a contingency . . . . The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.” Chicago v. Stratton, 44 N.E. 853, 855 (Ill. 1896). The distinction drawn was this: In the case at bar, the ordinance provides for a contingency, to-wit: the consent of a majority of the lot owners in the block, upon the happening of which the ordinance will be inoperative in certain localities. The operation of the ordinance is made to depend upon the fact of the consent of a majority of the lot owners, but the ordinance is complete in itself as passed. What are known as local option laws depend for their adoption or enforcement upon the votes of some portion of the people, and yet are not regarded as delegations of legislative power. Delegation of power to make the law is forbidden, as necessarily involving a discretion as to what the law shall be; but there can be no valid objection to a law, which confers an authority or discretion as to its execution, to be exercised under and in pursuance of the law itself. Chicago, 44 N.E. at 855 (internal citations omitted). 50 ¶95 A careful and close reading of these cases demonstrates that there exists a clear distinction between those protest and consent provisions that impermissibly delegate legislative authority and those that require a condition precedent to the exercise of legislative authority in the first instance. In my opinion, we have failed to recognize this distinction. I believe it is the role of the Legislature to chart the course of this State in land development and growth. Ultimately, it is up to the citizens to craft their own destiny, but they must do so in the Legislature and not the courts. If they are displeased with zoning provisions in our statutes, then their remedy is to petition their representatives for a change in the law. While I would have no problem scrutinizing a statute for an unconstitutional delegation of authority, that analysis is not called for here. The statute merely imposes a condition precedent to the grant of legislative authority to the counties to zone. I believe courts “should be wary of substituting their economic and business judgment for that of legislative bodies, and should avoid the temptation, however attractive, to sit as a ‘super-legislature to weigh the wisdom of legislation.’ ” McCallin v. Walsh, 64 A.D.2d 46, 59, 407 N.Y.S.2d 852, 859 (N.Y. App. Div. 1st Dept. 1978) (quoting Day-Brite Lighting v. Missouri, 342 U.S. 421, 423, 72 S. Ct. 405, 407 (1952)). ¶96 I respectfully dissent. /S/ LAURIE McKINNON | August 28, 2013 |
6826e047-2eca-44c0-b2f9-192e1ddd37d2 | In re Estate of Bennett | 2013 MT 230 | OP 13-0294 | Montana | Montana Supreme Court | OP 13-0294 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 230 _________________ IN THE MATTER OF THE ESTATE OF JEREMIAH BENNETT O P I N I O N A N D O R D E R _________________ ¶1 Abel Robert Bennett and Judy Bennett have petitioned this Court to exercise supervisory control over the Twentieth Judicial District Court, and determine the District Court is proceeding under a mistake of law by its April 18, 2013 order holding that Bennetts are not entitled to claim damages resulting from the wrongful death of their adult son, Jeremiah Bennett. We grant the petition. BACKGROUND ¶2 The underlying action is a dispute regarding the administration of the estate of Jeremiah Bennett (Jeremiah). Jeremiah died as a result of injuries sustained in a motor vehicle accident on September 8, 2012. Jeremiah is survived by two minor children he had with his former wife, Sabrina Bennett (Sabrina), and his parents, Abel Robert Bennett and Judy Bennett (Bennetts). Sabrina is the court-appointed guardian and conservator for the two minor children. Jeremiah’s fiancée, Christina Jackson, was also August 20 2013 2 killed in the accident, and his two minor children suffered serious injuries. Jeremiah died intestate. ¶3 The District Court informally appointed Abel Robert Bennett (Abel Robert) personal representative of the Estate of Jeremiah Bennett (Estate) on October 19, 2012. On November 14, 2012, Sabrina petitioned the District Court to remove Abel Robert and appoint her as personal representative. After hearing, the District Court granted Sabrina’s requests. The District Court’s granting of Sabrina’s petition for formal probate and for removal of Abel Robert as personal representative was the subject of an interlocutory appeal. In re the Estate of Bennett, 2013 MT 228, ___ Mont. ___, ___ P.3d ___. ¶4 On March 4, 2013, Sabrina petitioned the District Court for a declaration that the Bennetts had no standing to claim wrongful death damages as a result of Jeremiah’s death. The same day, Bennetts filed a motion to intervene, arguing that their wrongful death claims were not being recognized or pursued by Sabrina in her role as personal representative. Bennetts conceded that they did not have a viable claim for loss of consortium under this Court’s precedent, see Hern v. Safeco Ins. Co. of Ill., 2005 MT 301, ¶ 58, 329 Mont. 347, 125 P.3d 597, but maintained they could claim damages for grief, sorrow, and mental anguish that Sabrina, as personal representative of Jeremiah’s estate, had a fiduciary duty to advance on their behalf. After a hearing, the District Court entered its Findings of Fact, Conclusions of Law, and Order on April 18, 2013 (Order), holding that “the minor children of the decedent are the sole heirs of the estate under the 3 laws of intestate succession and therefore have priority over any wrongful death and survivorship claims.” The Order continued: . . . [T]he Court does not accept Abel Robert and Judy’s argument that because the parents in Hern recovered grief, sorrow and mental anguish, through the personal representative, that Abel Robert and Judy may also personally recover those damages. Becky Hern’s parents were her “heirs.” In this case, Jeremiah’s [minor children] are his only heirs under the Montana laws in intestate succession and therefore have the exclusive right to recover wrongful death damages for grief, sorrow and mental anguish. That because Abel Robert and Judy are neither intestate heirs nor statutory heirs . . . any claims to wrongful death damages for grief, sorrow and mental anguish are subordinate to those of decedent’s minor children. They lack standing to participate, object or intervene in any estate proceedings or wrongful death claims arising out of Jeremiah’s death. The Order granted Sabrina’s petition for declaratory relief, and denied Bennetts’ motion to intervene, concluding “[Bennetts] are not entitled to wrongful death benefits arising out of Jeremiah’s death as they concede they lack the relationship requirement for loss of consortium and they are not entitled to grief, sorrow, and mental anguish benefits.” ¶5 Bennetts petitioned this Court for supervisory control, and we ordered that a response be filed by Sabrina and, if it desired, the District Court. Sabrina has filed a response. On Bennetts’ motion, we imposed a stay preventing Sabrina from releasing any of Bennetts’ claims and from entering agreements for allocation of insurance proceeds, until the matters pending before this Court were resolved. ¶6 The subject of this petition is whether the District Court erred as a matter of law by concluding the Bennetts are not entitled to claim wrongful death damages for grief, sorrow, and mental anguish under § 27-1-513, MCA, for the death of Jeremiah, their adult child. 4 DISCUSSION ¶7 This Court “has general supervisory control over all other courts.” Mont. Const. art. VII, § 2(2). “Supervisory control is an extraordinary remedy, reserved for extraordinary circumstances.” Stokes v. Mont. Thirteenth Jud. Dist. Ct., 2011 MT 182, ¶ 5, 361 Mont. 279, 259 P.3d 754 (citing Hegwood v. Mont. Fourth Jud. Dist. Ct., 2003 MT 200, ¶ 6, 317 Mont. 30, 75 P.3d 308). Acceptance of supervisory control is decided on a case-by-case basis and is “limited to cases involving purely legal questions, in which the district court is proceeding under a mistake of law causing a gross injustice or constitutional issues of statewide importance are involved.” Stokes, ¶ 5 (citing M. R. App. P. 14(3)). We may assume supervisory control to direct the course of litigation if the district court “is proceeding based on a mistake of law, which if uncorrected, would cause significant injustice for which appeal is an inadequate remedy.” Stokes, ¶ 5 (citing Simms v. Mont. Eighteenth Jud. Dist. Ct., 2003 MT 89, ¶ 18, 315 Mont. 135, 68 P.3d 678). ¶8 We conclude that the circumstances warrant exercise of supervisory control. Bennetts may not initiate an interlocutory appeal from the denial of their motion to intervene. M. R. App. P. 6; Continental Ins. Co. v. Bottomly, 233 Mont. 277, 279, 760 P.2d 73, 75 (1988) (citing former M. R. App. P. 1). An appeal from a final judgment could potentially invalidate a complex settlement now being negotiated among multiple claimants and insurers, a process from which Bennetts have been excluded. Bennetts present a purely legal question: whether the District Court erred by concluding the 5 Bennetts may not receive wrongful death damages for grief, sorrow, and mental anguish as a matter of law under § 27-1-513, MCA, for the death of their adult son. We have determined that clarification is necessary regarding who is entitled to claim wrongful death damages. ¶9 Bennetts argue that Montana law recognizes a claim for grief, sorrow, and mental anguish by parents for the wrongful death of an adult child because there is no requirement that a claimant for wrongful death damages be a probate heir or “heir in law.” Sabrina responds that Bennetts are not “heirs” as defined by the intestacy statutes, that Jeremiah’s minor children are the only such heirs, and that allowing Bennetts to claim wrongful death damages contradicts Montana law, citing Hern, ¶¶ 46, 47, 62. We begin with a general review of wrongful death actions. ¶10 In an action for wrongful death under § 27-1-513, MCA, “damages may be given as under all the circumstances of the case may be just.” Section 27-1-323, MCA. “When injuries to and the death of one person are caused by the wrongful act or neglect of another, the personal representative of the decedent’s estate may maintain an action for damages against the person causing the death . . .” Section 27-1-513, MCA. Montana’s wrongful death statute is considered a “general loss” statute. See James L. Isham, Recovery of Damages for Grief or Mental Anguish Resulting from Death of Child – Modern Cases, 45 A.L.R.4th 234, 241 (1986) (explaining the three major categories of statutory damages for wrongful death: “all-inclusive,” which specifically enumerates the types of available wrongful death damages; “general loss,” which provides for awards of 6 “such damages that are just”; and “pecuniary loss,” which limits recovery to economic losses of beneficiaries). ¶11 Some jurisdictions statutorily identify the particular survivors who may recover under the wrongful death statutes and further classify available benefits to each class of survivor. See Jacob A. Stein, Stein on Personal Injury Damages §§ 3:2-3:3 (Gerald W. Boston, ed., 3d ed., West 1997) (citing statutes and cases). Montana does not statutorily define wrongful death claimants, but through the common law has identified survivors who may claim wrongful death damages, as well as the parameters of recovery. See i.e. Batchoff v. Butte Pacific Copper Co., 60 Mont. 179, 198 P. 132 (1921); State ex rel. Carroll v. First Jud. Dist. Ct., 139 Mont. 367, 364 P.2d 739 (1961); Swanson v. Champion Intl. Corp., 197 Mont. 509, 646 P.2d 1166 (1982); Dawson v. Hill & Hill Truck Lines, 206 Mont. 325; 671 P.2d 589 (1983); Johnson v. Marias River Elec. Coop., Inc., 211 Mont. 518, 687 P.2d 668 (1984); Renville v. Fredrickson, 2004 MT 324, 324 Mont. 86, 101 P.3d 773; and Hern v. Safeco Ins. Co. of Ill., 2005 MT 301, 329 Mont. 347, 125 P.3d 597. ¶12 In Swanson, this Court distinguished wrongful death and survival actions.1 We explained that a survival action is personal to the decedent for damages suffered by the decedent between the wrongful act and his death. Any recovery for such damage belongs 1 Swanson involved an appeal from the Workers’ Compensation Court in which we held that the decedent’s wife was entitled to noneconomic wrongful death damages as part of the workers’ compensation settlement. Swanson, 197 Mont. at 527, 646 P.2d at 1174. Nonetheless, Swanson’s discussion of wrongful death and survival claims has been cited and relied upon for tort cases generally. See i.e. Johnson v. Marias River Elec. Coop., Inc., 211 Mont. 518, 687 P.2d 668 (1984); Starkenburg v. State, 282 Mont. 1, 934 P.2d 1018 (1997). 7 to the decedent’s estate and is administered as an estate asset. Swanson, 197 Mont. at 515-16, 646 P.2d at 1169. In contrast, a wrongful death action seeks damages that “pertain to the personal loss of the survivors.” Swanson, 197 Mont. at 517, 646 P.2d at 1170 (emphasis in original). We explained that: Such damages do not belong to the decedent’s estate. They are not subject to the claims of decedent’s creditors. They are not part of the estate for the determination of inheritance taxes . . . . . . The distribution of the [wrongful death] damages to the heirs is not controlled by the decedent’s will or by the laws of intestate succession. Swanson, 197 Mont. at 517-18, 646 P.2d at 1170-71. Although occasionally using the term “heirs” in Swanson, it is clear from the context of the entire discussion that we were not limiting those “survivors” who could bring a wrongful death claim to only intestate heirs. ¶13 Several decisions prior to Hern addressed the issue of which survivors were permitted to claim wrongful death damages. In Carroll, the decedent’s widow and his four children, three of which were from a previous marriage, were allowed to pursue wrongful death damages. Carroll, 139 Mont. at 372, 364 P.2d at 741-42. In Versland v. Caron Transport, 206 Mont. 313, 671 P.2d 583 (1983), the nonadopted minor stepchildren of the decedent were not permitted to claim loss of consortium and support. Versland, 206 Mont. at 324, 671 P.2d at 589. In so concluding, we noted that “nonadopted stepchildren of a decedent are not heirs as defined by the intestacy statutes.” Versland, 206 Mont. at 323, 671 P.2d at 588. In Johnson, we again recognized that the 8 minor children of the decedent and the decedent’s surviving spouse were all “proper parties” in the wrongful death action. Johnson, 211 Mont. at 525, 687 P.2d at 671. In Dawson, we held that wrongful death damages, including sorrow, mental distress, or grief, could be recovered by parents of deceased minor children. Dawson, 206 Mont. at 333, 671 P.2d at 594. In Bear Medicine v. U.S., 192 F. Supp. 2d 1053, 1070 (D. Mont. 2002), the U.S. District Court concluded that parents could recover wrongful death damages for the death of their adult son, in addition to the decedent’s spouse and children. ¶14 In 1987, the Montana Legislature enacted legislation requiring survival actions under § 27-1-501, MCA, and wrongful death actions under § 27-1-513, MCA, to be “combined in one legal action, and any element of damages may be recovered only once.” Section 27-1-501, MCA. We addressed this statutory “one action rule” in Renville, wherein the adult decedent’s personal representative filed and settled a wrongful death action but did not advance a claim on behalf of the decedent’s mother. Renville, ¶ 22. The decedent’s mother attempted to bring a subsequent wrongful death action, seeking damages for negligent infliction of emotional distress and loss of consortium. Renville, ¶¶ 16-17. We affirmed the district court’s grant of summary judgment, stating “[a]llowing a separate loss of consortium action by someone other than a personal representative would create a multiplicity of lawsuits arising from the same wrongful death. Such multiple actions are in contravention of legislative intent.” Renville, ¶ 24. 9 We also noted that, because the mother was not Sorenson’s heir, she lacked standing to bring a wrongful death claim for her adult son’s death. Renville, ¶ 23. ¶15 The common law developed further in Hern, where this Court recognized that parents of an adult decedent may recover wrongful death damages for loss of consortium when there was “significant evidence of an extraordinarily close and interdependent relationship,” adopting the test applied in Bear Medicine. Hern, ¶¶ 58, 68. Although not expressly discussed, our decision in Hern also implicitly approved of recovery of wrongful death damages for grief, sorrow, and mental anguish by parents of a deceased adult child. Ardell Hern, the mother of adult decedent Becky Hern, brought a wrongful death claim as the personal representative of Becky’s estate, on behalf of Becky’s survivors. Hern, ¶ 9. Becky’s father, Robert, also submitted his own claim and was listed separately on the special verdict form. Hern, ¶ 15. The jury awarded $300,000 to Ardell for loss of consortium, $200,000 to Robert for loss of consortium, $450,000 to Ardell for grief, sorrow, and mental anguish, and $300,000 to Robert for grief, sorrow, and mental anguish. Hern, ¶ 15. We vacated Robert’s awards for loss of consortium and for grief, sorrow, and mental anguish because it was impermissible for him to be awarded personal damages separate from those claimed by the personal representative. Hern, ¶¶ 47, 64-65.2 We concluded that the wrongful death claims brought by Ardell, as personal representative of Becky’s estate, were proper. Hern, ¶¶ 48-62. The loss of 2 See also Swanson, 197 Mont. at 518, 646 P.2d at 1171 (“The jury is not given the duty of ascribing so much to one heir and so much to another. Rather, the trial court, after the verdict, is given the task of allocating the money damages among the heirs.”). 10 consortium award to Ardell was vacated because we concluded that evidence of the relationship between Becky and her parents did not satisfy the “high level of proof” that there was “significant evidence of an extraordinarily close and interdependent relationship.” Hern, ¶¶ 58, 61. However, we upheld Ardell’s $450,000 award for grief, sorrow, and mental anguish, reasoning that “[a]s personal representative of Becky’s estate, Ardell was entitled to pursue such damages on behalf of herself and Becky’s heirs.” Hern, ¶ 62. Pursuant to our precedent, this award was not Ardell’s personal award, but was to be allocated by the trial court among Becky’s survivors. See Swanson, 197 Mont. at 517-18, 646 P.2d at 1170 (“any recovery made by the personal representative in the wrongful death claim is not in his capacity as personal representative. He is a trustee of the moneys for the person entitled.” (Emphasis in original.)); see also Renville, ¶ 21 (“The personal representative holds the proceeds of any damage award for the heirs of the decedent and the award does not become part of the decedent’s estate.”). ¶16 In 2009, the United States District Court for the District of Montana reviewed our precedent in deciding Adams v. U.S., 669 F. Supp. 2d 1203 (D. Mont. 2009). In Adams, the decedent, Jay Allen, was survived by his spouse, Kathleen Adams, three children, his parents, and several siblings. Kathleen was named the personal representative and brought a survival claim and wrongful death claims on behalf of herself and Jay’s children, parents, and siblings for loss of consortium. Adams, 669 F. Supp. 2d at 1205-06. The defendant moved for partial summary judgment and dismissal of the loss 11 of consortium claims of Jay’s parents and siblings, because “[a]pplying intestacy statutes to determine Jay’s ‘heirs’, Jay’s surviving spouse Kathleen should receive the entire estate.” Adams, 669 F. Supp. 2d at 1208 n. 1. In denying this argument, the U.S. District Court reasoned: [T]he [defendant] contends, because Kathleen would receive all proceeds from the wrongful death claim, Jay’s parents and siblings may not recover any damages in this action. While the [defendant] correctly identified Jay Allen’s intestate heirs, these statutes would apply, if at all, to survival damages awarded to Jay’s estate. In light of the Montana Supreme Court’s recognition that parents may be compensated for loss of consortium of their adult children, the intestacy laws seem inapplicable to this motion. Wrongful death claims belong to the survivors while survival claims belong to the estate. Adams, 669 F. Supp. 2d at 1208 n. 1 (emphasis added).3 ¶17 We conclude that the U.S. District Court’s reasoning in Adams is appropriate. As Jeremiah’s personal representative, Sabrina is advancing claims for survival damages and wrongful death damages. Under the survival claim, Jeremiah’s minor children are his only intestate heirs and they will receive any survival damages that are recovered, upon administration of the Estate. However, wrongful death damages are personal to the survivors. Such damages, when recovered, are paid without regard to the intestate succession statutes, and are not controlled by the intestate succession statutes. Swanson, 197 Mont. at 518, 646 P.2d at 1171. There is no statutory prohibition of parental claims. 3 The U.S. District Court ultimately dismissed the siblings’ claims, concluding that this Court had not approved sibling loss of consortium claims and was unlikely to do so. Adams, 669 F. Supp. 2d at 1210. The U.S. District Court also held that Jay’s parents had satisfied the “extraordinarily close and interdependent relationship” test and therefore could recover damages for loss of consortium under Hern. Adams, 669 F. Supp. 2d at 1208-10. 12 We have approved wrongful death claims by survivors other than the decedent’s intestate heirs. See Johnson, 211 Mont. at 525, 687 P.2d at 671; § 72-2-202, MCA (1981). In Hern, our analysis did not limit loss of consortium claims for deceased adult children to parents who were intestate heirs. We implicitly approved in Hern parental recovery of damages for grief, sorrow, and mental anguish. ¶18 Therefore, we conclude that Bennetts, as Jeremiah’s parents, are entitled to recover wrongful death damages, including damages for grief, sorrow, and mental anguish. Such damages are personal to them as Jeremiah’s parents and survivors, but would be pursued by the personal representative of the Estate on the Bennetts’ behalf in one action, along with all other claims. Section 27-1-501, MCA; Renville, ¶ 24. If the action proceeds to trial, and damages are awarded, the District Court will apportion the wrongful death damages among the claimants. Swanson, 197 Mont. at 518, 646 P.2d at 1171 (“When a wrongful death action is prosecuted, the damages are returned by general verdict, covering all the heirs involved. The jury is not given the duty of ascribing so much to one heir and so much to another. Rather, the trial court, after the verdict, is given the task of allocating the money damages . . .”). ¶19 In conclusion, the portion of the District Court’s Order denying the Bennetts the opportunity to recover wrongful death damages for grief, sorrow, and mental anguish was in error. We acknowledge, in defense of the District Court, that in the past we have been neither consistent in our analyses and holdings, nor precise in the use of the term “heirs.” We thus accept the petition and issue the writ to provide clarification on this issue. 13 ¶20 IT IS HEREBY ORDERED that the Petition for Writ of Supervisory Control is GRANTED in part. ¶21 IT IS FURTHER ORDERED that the portion of the District Court Order of April 18, 2013, holding that Bennetts cannot recover wrongful death claims as a matter of law is VACATED. This case is remanded to the District Court for further proceedings consistent with this opinion. ¶22 IT IS FURTHER ORDERED that the procedural motions pending herein are DENIED and the stay previously entered herein is VACATED. ¶23 The Clerk of this Court is directed to provide copies of this Order to all counsel of record and the Honorable C.B. McNeil, Twentieth Judicial District Court Judge, presiding. DATED this 20th day of August, 2013. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ BRIAN MORRIS | August 20, 2013 |
0a611377-42fe-4a59-b854-57fa4f5e7cfd | State v. Rogers | 2013 MT 221 | DA 12-0263 | Montana | Montana Supreme Court | DA 12-0263 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 221 STATE OF MONTANA, Plaintiff and Appellee, v. DONALD PAUL ROGERS, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 11-180 Honorable Edward P. McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender; Eileen A. Larkin, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Tammy K Plubell, Assistant Attorney General; Helena, Montana Fred R. Van Valkenburg, Missoula County Attorney; Jason Marks, Deputy County Attorney; Missoula, Montana Submitted on Briefs: June 12, 2013 Decided: August 13, 2013 Filed: __________________________________________ Clerk August 13 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Following a three-day trial, a Missoula County jury convicted Donald P. Rogers of eight criminal counts, including sexual intercourse without consent, partner or family member assault, unlawful restraint, and violation of a no contact order. The Montana Fourth Judicial District Court subsequently sentenced Rogers to forty years at the Montana State Prison, with twenty years suspended. Rogers appeals his conviction. We reverse and remand for a new trial. ¶2 Rogers raises two issues on appeal: ¶3 1. Did the District Court violate Rogers’s constitutional rights by precluding him from cross-examining the victim about her prior acts of violence against him unless he first testified to his defense of justifiable use of force? ¶4 2. Did the District Court err by allowing the State to question Rogers about his prior criminal history once he testified about the victim’s prior acts of violence against him? PROCEDURAL AND FACTUAL BACKGROUND ¶5 Over the course of a four-year period, Rogers and the alleged victim, S.M., engaged in an “on again, off again” romantic relationship that “had some good times and bad times”; it abruptly ended in mid-April 2011. Rogers agreed to meet with S.M. at 1:00 p.m. on April 15 to discuss their relationship as well as money Rogers owed S.M. When Rogers failed to arrive as agreed, S.M. called him and texted him numerous times. Eventually, Rogers told S.M. that he and his brother would have a drink with her at a bar 3 in Missoula. S.M. testified that both Rogers and his brother had been drinking “quite a lot” and they were asked to leave the bar after Rogers’s brother made a scene. Rogers told S.M. to go back to her home in Arlee and he “would be there later” after he finished “hanging out with [his] brother.” S.M. continued to call and text Rogers throughout the evening of April 15 and into the early-morning hours of April 16. ¶6 S.M. testified that at approximately 3:00 that morning, she heard someone “banging” on her back door. Rogers then called S.M. and asked her to let him into the house. When she refused, Rogers broke into her home and “made it clear that he wanted to have . . . sexual relations[.]” S.M. described Rogers as being “very intoxicated” and testified that he was “slurring his words.” S.M. later stated that after she asked Rogers to leave, he “hit [her] in the jaw . . . very hard” and prevented her from calling 911. At that point, S.M. stopped resisting Rogers’s advances because she was afraid he would kill her unless she complied. ¶7 Rogers “basically held [S.M.] hostage from 3:00 a.m. to 7:00 a.m.” He pinned S.M. down on her bed and, after he was unable to obtain an erection, he penetrated her with his fingers and tongue; later that morning he “masturbated over [her] head and chest.” Rogers also choked S.M. “several times” during the ordeal and, when he needed to use the bathroom, he “grabbed the back of [her] hair” and “made [her] go into the restroom with him.” S.M. tried to get Rogers to stop assaulting her by telling him that her daughter was picking up her dog at the house that morning; instead of stopping, 4 Rogers stated he should stay so he could have sex with S.M.’s daughter as well and then “hurt both of [them].” ¶8 At approximately 7:00 a.m., Rogers left S.M.’s house. Even though S.M. had not reported Rogers for prior instances of abuse, she immediately called 911—in part because Rogers had threatened her daughter. Missoula County Sheriff’s Deputies responded to the call and arrested Rogers outside of S.M.’s residence. Deputy Scott King later recalled that S.M. was coherent, but she “had a split lip, and a bruising on her face.” She told Deputy King that Rogers had sexually and physically assaulted her that morning; she also reported that Rogers had physically assaulted her in November 2010. ¶9 After his arrest, Rogers was transported to the Missoula County Sheriff’s Office, where Deputy William Burt interviewed him. Rogers “adamantly” denied breaking into S.M.’s house and told the deputy that S.M. had consented to having sex with him. Although he initially denied striking S.M., when Burt noticed Rogers had blood on his hand Rogers began to cry and admitted slapping S.M. in the face. Rogers explained that he struck S.M. after she made “comments about his brother’s sexual offender status.” ¶10 Deputy King then filled out a seventy-two-hour no-contact order and gave it to Rogers at the county jail. Rogers admitted at trial that, even though he understood he was prohibited from contacting S.M., he violated that order several times by calling S.M. from the jail. S.M. testified that he called her five times on the day he was arrested. ¶11 On May 3, 2011, the Missoula County Attorney filed an information with the District Court charging Rogers with sexual intercourse without consent, a felony, in 5 violation of § 45-5-503, MCA; two counts of partner or family member assault, third or subsequent offense, a felony, in violation of § 45-5-206(3)(a)(iv), MCA; unlawful restraint, a misdemeanor, in violation of § 45-5-301, MCA; and four counts of violating a no-contact order by a person charged with partner or family member assault, a misdemeanor, in violation of § 45-5-209, MCA. Rogers pled not guilty before the District Court, which set his trial for the week of November 28, 2011. ¶12 Several months before trial, Rogers gave notice that he would assert a justifiable use of force defense by establishing that S.M. had a violent character. He planned to introduce evidence that the State had charged S.M. with criminal endangerment and partner or family member assault after she allegedly bit Rogers while he was driving. The State subsequently filed a motion in limine requesting that the District Court prohibit Rogers from introducing “testimony or physical evidence related to any alleged prior acts of violence of [S.M.] absent proper foundation.” In the motion, the State contended that, pursuant to State v. Daniels, 2011 MT 278, 362 Mont. 426, 265 P.3d 623, Rogers was required to testify about his personal knowledge of S.M.’s past acts of violence prior to any testimony regarding S.M.’s character for violence. Rogers responded that he understood the ruling of Daniels and was confident he could lay the necessary foundation to permit introduction of the victim’s violent history with Rogers. Rogers’s counsel indicated that he proposed to make an offer of proof outside the presence of the jury “[t]o facilitate the resolution of this issue.” The response did not identify any constitutional issues for the court’s consideration or offer other legal argument. 6 ¶13 Immediately prior to trial, Rogers’s attorney, Chris Daly, presented a proposal for how he intended to satisfy Daniels prior to cross-examining S.M. about her allegedly violent character: [A]t some point before the alleged victim testifies, we would—out of the presence of the jury—I would put on an offer of proof for the Court to hear what evidence we would, in fact, intend to put forward, and, then, the Court [could] see if that satisfies the requirements of Daniels. And, then, we would be able to proceed with cross-examination of [S.M.]. ¶14 The State objected to the proposal, asserting that pursuant to Daniels, Rogers could not cross-examine S.M. about her violent character until he testified before the jury and established that his knowledge of S.M.’s prior acts of violence served as the basis for his decision to defend himself by striking S.M. Daly offered that it would be “more efficient” to proceed with the offer first, “so the Court would know what we[’]re going to say, . . . and then do the cross-examination of [S.M.], knowing that Mr. Rogers has already said what he was going to say.” The District Court took the issue under advisement and stated it would not issue a ruling until it had read Daniels. ¶15 After the State made its opening statement, the prosecution again requested that the court rule on its outstanding motion in limine. Rogers’s attorney reiterated his position: “[W]hat I’d actually like to do with that is to do an offer of proof, so the Court could hear exactly what Mr. Rogers intends to testify, with regard to that, so that there’s no surprises or objections at the time of his testimony.” The District Court granted the State’s motion in limine; it reasoned that the only way Rogers could satisfy the requirements in Daniels was to testify and lay the appropriate foundation in front of the 7 jury. Daly attempted to persuade the court one last time, stating that for the sake of “judicial economy,” he preferred to make an offer of proof establishing what Rogers would later testify to because “otherwise, if we have to wait until Mr. Rogers takes the stand, as part of our case-in-chief, then I would . . . have to recall [S.M.].” The District Court stated it “[didn’t] think judicial economy [was] going to carry the day” and agreed that, pursuant to Daniels, the proper procedure was to raise the issue of justifiable use of force through Rogers’s testimony, and then to recall S.M. during Rogers’s case-in-chief. Daly did not object to the District Court’s decision on the ground that Rogers may choose not to testify. S.M. testified during the State’s case-in-chief, and Daly cross-examined her, but not about the actions that led the State to charge her with partner or family member assault. ¶16 The next day, during a recess taken just prior to the close of the State’s case-in- chief, Daly made an offer of proof to the court detailing what Rogers’s testimony would be so that the court could establish what the “ground rules” would be for his self-defense testimony. Daly explained that Rogers “will testify that knowing this [violent] history of [S.M.], that’s why he felt he needed to use the force he did.” The court then asked whether S.M.’s “violent acts” Rogers would testify about were directed toward Rogers. After learning that they were, the Court ruled it would “allow any evidence of prior violence between the parties by the Defendant, or by the State.” The court informed the prosecution that “once the defendant opens the door, you’re free to go where you want.” 8 The District Court then allowed Daly to confer with Rogers for the remaining four minutes of the recess. ¶17 At the end of the recess, the court stated that it wanted to further clarify its ruling: “I just want to be certain that Mr. Rogers knows that once he [testifies about S.M.’s prior violent acts towards him], his prior criminal history comes into play.” Daly asked the court whether that meant his criminal history involving S.M., or his entire criminal history. The District Court responded that it meant any violent acts committed by Rogers: “If you talk about violence, any act of violence that you committed against another person is relevant and admissible.” ¶18 Rogers then voiced his objection to this ruling, telling the court that it was “leaving [him] no choice—with no defense—is what [it’s] leaving me” because he had an extensive criminal history, even though he asserted that he had been “clean for ten [or] twelve years.” Daly then asked Rogers whether, in light of the court’s decision, he still wanted to proceed with his justifiable use of force defense and testify about S.M.’s past acts of violence. Rogers responded: “Well, you better stand up, and tell them I’m a piece of shit, and I’ve been in a lot of trouble in my life because I’m going to tell them the truth. I’m going to tell them how crazy [S.M.] is, and how violent she is.” ¶19 Rogers took the stand in his own defense. He explained that S.M. let him into her house and they proceeded to have consensual sexual relations. Rogers denied ever restraining S.M., choking her, or grabbing her by the hair. Rogers also testified that S.M. woke him up in the morning and asked him to leave because her daughter, who 9 “despised” Rogers, was coming to the house. When he refused to leave, Rogers explained, she “blew a gasket” and became “violently upset” and started hitting him and clawing at him. Rogers then stated that he defended himself by slapping S.M. and pushing her away, and that he then ran out of the house in his boxer shorts to escape S.M. Daly then asked Rogers if he ever had experienced this sort of reaction from S.M. Rogers replied by acknowledging that if he answered the question, he would “have to tell you people all about me and my past”; he then discussed previous times that S.M. physically had attacked him. ¶20 On cross-examination, the prosecutor—Jason Marks—asked Rogers a series of questions about his criminal history. Marks began his cross-examination by asking, “when you said you have kind of a checkered past, that didn’t quite cover the whole story, did it?” Rogers then asked, “Do you want to prosecute me on my past or this charge?” Marks stated: “You’ve got two prior partner assaults that you were convicted of?” Rogers admitted that was true, and volunteered a detailed account of the factual circumstances that gave rise to the convictions. Marks proceeded, stating: “I’m assuming those [bar fights] are the misdemeanor assaults on your record?” Rogers answered that was correct. Marks then asked whether Rogers had been convicted of “felony assault and use of a weapon” and Rogers answered that those charges were “dismissed in court, 10 eventually.”1 Marks also questioned Rogers about a 2008 partner or family member assault conviction, but Rogers replied that he had no recollection of such a conviction. ¶21 Marks then asked Rogers: “[A]nd how many women is it you’ve been charged with raping?” Rogers answered: “Oh, five, ten, twenty—I don’t know. You tell me— actually, two—years ago. Fifteen years ago, I was accused of it. I was acquitted of it, and charges were dismissed, and [S.M.’s] . . . .” At that point, Marks interrupted Rogers and stated: “You were convicted at trial, and it went up [and was reversed] on appeal. Let’s be clear.”2 ¶22 The jury returned a verdict convicting Rogers of all eight counts charged. STANDARD OF REVIEW ¶23 For questions regarding constitutional law, our review is plenary. Daniels, ¶ 11. A district court’s ruling on evidentiary matters generally is reviewed for an abuse of discretion; however, “to the extent the [district] court’s ruling is based on an interpretation of an evidentiary rule or statute, the ruling is reviewed de novo.” State v. Stewart, 2012 MT 317, ¶ 23, 367 Mont. 503, 291 P.3d 1187; see also Daniels, ¶ 11. 1 We reversed Rogers’s felony assault with a weapon conviction and remanded the case for a new trial because Rogers “established both error and prejudice under the Strickland test for ineffective assistance of counsel.” State v. Rogers, 2001 MT 165, ¶ 23, 306 Mont. 130, 32 P.3d 724. Rogers’s criminal record does not indicate he was convicted of those charges on remand. 2 We reversed Rogers’s sexual intercourse without consent conviction because “the District Court abused its discretion in admitting testimony about previous sexual assaults by Rogers.” State v. Rogers, 1999 MT 305, ¶ 43, 297 Mont. 188, 992 P.2d 229. 11 DISCUSSION ¶24 1. Did the District Court violate Rogers’s constitutional rights by precluding him from cross-examining the victim about her prior acts of violence against him unless he first testified to his defense of justifiable use of force? ¶25 Rogers contends that the District Court “erred and violated [his] constitutional rights by precluding him from questioning [S.M.] about her past violence against him unless and until he testified.” He argues that the District Court’s ruling forced him “into the intolerable position of choosing between his right to present a defense . . . [by cross-examining] the State’s principal witness against him, and his right not to testify.” This error violated his rights guaranteed by the Fifth Amendment of the United States Constitution, Rogers argues, as well as his right to cross-examine adverse witnesses found in the Confrontation Clause of the Sixth Amendment and Article II, Section 24 of the Montana Constitution. ¶26 The State asserts that Rogers waived his constitutional claim that the District Court’s ruling impermissibly required him to testify before cross-examining S.M. about her prior acts of violence. Instead of objecting that he was being forced to choose between competing constitutional rights, the State argues, “Rogers asserted that as a matter of judicial economy, it simply made more sense for Rogers to make an offer of proof about his intended testimony” so that he could cross-examine S.M. about those acts, rather than recalling her during his case in chief. (Emphasis in original.) The State maintains that Rogers always “expressed to the district court a firm intention to testify, 12 and indicated that his offer of proof to lay the proper foundation to introduce character evidence of S.M. would constitute his intended testimony.” We agree with the State that Rogers failed to preserve this issue for appeal. ¶27 Generally, a “‘defendant must make a timely objection to properly preserve an issue for appeal.’” Daniels, ¶ 31 (quoting State v. Paoni, 2006 MT 26, ¶ 35, 331 Mont. 86, 128 P.3d 1040); see also §§ 46-20-104(2) and -701, MCA. To be timely, the objection “must be made as soon as the grounds for the objection are apparent.” Schuff v. Jackson, 2002 MT 215, ¶ 30, 311 Mont. 312, 55 P.3d 387. “Failure to lodge a timely objection constitutes a waiver of the objection and precludes raising the issue on appeal.” State v. Sittner, 1999 MT 103, ¶ 13, 294 Mont. 302, 980 P.2d 1053. Our consistent application of the timely-objection rule has been motivated by concerns of judicial economy and fundamental fairness, both of which require alleged errors to be brought to the attention of the district court “so that actual error can be prevented or corrected at the first opportunity.” State v. West, 2008 MT 338, ¶ 17, 346 Mont. 244, 194 P.3d 683 (citation omitted). ¶28 The District Court determined on the first day of trial that Rogers would have to testify and establish a foundation for his justifiable use of force defense before he could cross-examine S.M. about her prior violent acts. Rogers did not alert the court to any constitutional concerns in his response to the State’s motion in limine, nor did he object on that basis to the court’s ruling during trial. The District Court asked Daly if he disagreed with the ruling. Daly stated: “Well I just think, as a matter of—like I say—of 13 judicial economy, we could do it the way I suggested.” The court disagreed, stating that “judicial economy [was not] going to carry the day.” Furthermore, Daly repeatedly stated that Rogers intended to testify and offered no objection to his doing so, undermining Rogers’s argument on appeal that the District Court forced him to choose between exercising his constitutional right to not testify and his right to cross-examine S.M. See Daniels, ¶ 35. Because Rogers failed to timely object to the District Court’s ruling and because he did not argue that he could not be compelled to testify prior to asserting a justifiable use of force defense, we decline to consider his constitutional arguments on appeal. ¶29 2. Did the District Court err by allowing the State to question Rogers about his prior criminal history once he testified about S.M.’s prior acts of violence against him? ¶30 Rogers asserts that the District Court “erred and prejudiced [him] by allowing the State to inquire into his past criminal history, including matters that were reversed on appeal.” He contends that, in doing so, the District Court violated M. R. Evid. 404(b), which generally prohibits the admission of an individual’s criminal history into evidence without justification. Rogers claims that the District Court “erred by going beyond” an examination of his relationship with S.M. and “opening up [his] criminal history to cross-examination.” Rogers argues that the error prejudiced his right to a fair trial. ¶31 Rule 404(b) does not bar evidence, but prohibits a “theory of admissibility.” Stewart, ¶ 61. Evidence of other crimes, wrongs or acts may not be admitted to prove the defendant’s character, disposition or propensity in order to show that he acted in 14 conformity with that character at the time of the offense in question. Stewart, ¶ 61. Thus, “‘if the necessary logical steps [in the prosecutor’s theory of admissibility] include an inference of general character or propensity, or if it seems likely that the proof will be used to support such an inference,’ then the principle of exclusion applies.” Stewart, ¶ 61 (quoting Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence vol. 1, § 4:28, 746-47 (3d ed., Thomson/West 2007)). As a general rule, evidence of other crimes, wrongs, or acts must be excluded because “‘prior acts or crimes are highly prejudicial to the defendant, and usually irrelevant for purposes of the charged crime.’” State v. Derbyshire, 2009 MT 27, ¶ 51, 349 Mont. 114, 201 P.3d 811 (quoting State v. Croteau, 248 Mont. 403, 407, 812 P.2d 1251, 1253 (1991), and citing State v. Ray, 267 Mont. 128, 133-34, 882 P.2d 1013, 1016 (1994)); see also State v. Lacey, 2010 MT 6, ¶ 31, 335 Mont. 31, 224 P.3d 1247 (citing M. R. Evid 404(b)). Proof that the “accused committed other crimes, even if they were of like nature to that charged, is not admissible to show his depravity or criminal propensities, or the resultant likelihood of his committing the offense charged[.]” State v. Tiedemann, 139 Mont. 237, 242, 362 P.2d 529, 531 (1961). These inquiries are prohibited because of fears that a jury will “prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” State v. Gowan, 2000 MT 277, ¶ 19, 302 Mont. 127, 13 P.3d 376 (quoting Michelson v. U.S., 335 U.S. 469, 475-76, 69 S. Ct. 213, 218 (1948)). ¶32 This rule barring proof of other crimes “‘should be strictly enforced in all cases where applicable, because of the prejudicial effect and injustice of such evidence, and 15 should not be departed from except under conditions which clearly justify such a departure.’” Derbyshire, ¶ 22 (quoting Tiedemann, 139 Mont. at 242-43, 362 P.2d at 531). We have applied this rule to ensure that a defendant is not convicted “‘merely because he is an unsavory person’ or on the rationale that because he committed a crime in the past, he has a defect of character that makes him more likely than people generally to have committed the charged offense.” Derbyshire, ¶ 22 (quoting Gowan, ¶ 19). “Essentially, Rule 404(b) disallows the inference from bad act to bad person to guilty person.” State v. Dist. Ct. of the Eighteenth Jud. Dist., 2010 MT 263, ¶ 47, 358 Mont. 325, 246 P.3d 415. ¶33 The State does not argue in this case that evidence of Rogers’s prior crimes properly was admissible for any of the other purposes identified in the rule, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” M. R. Evid. 404(b). Rather, it argues that Rogers did not make a specific objection on 404(b) grounds, that Rogers has not specifically identified which of the prosecutor’s questions were objectionable, and that the evidence was admissible for impeachment because Rogers testified that he had not been in trouble for the last twelve years. Finally, the State argues that any error was harmless. ¶34 Initially, we reject the State’s impeachment argument, since Rogers only testified about his prior record after the District Court had ruled that the State could offer that evidence once he raised justifiable use of force. We also disagree with the State that Rogers did not object to the court’s ruling. As soon as he learned that the prosecution 16 would be allowed to introduce his criminal history if he presented a justifiable use of force defense, he protested, stating: “The Court is leaving me no choice—with no defense—is what they’re leaving me.” When the State began to question Rogers about his criminal history, Rogers objected once more, asking the prosecutor: “Do you want to prosecute me on my past, or this charge?” These statements were sufficient to put the State and the court on notice that Rogers was objecting to the introduction of his criminal history and to preserve his objection for appeal. See Pumphrey v. Empire Lath & Plaster, 2006 MT 99, ¶ 30, 332 Mont. 116, 135 P.3d 797. Likewise, Rogers’s brief on appeal makes clear the basis for his claimed error. ¶35 Neither the District Court in its ruling nor the State, either at trial or on appeal, offered any basis for admissibility of Rogers’s entire violent criminal history once he asked S.M. about her past acts of violence. Our review of the record reveals none. We agree with Rogers that the evidence was not admissible under Rule 404(b) as it was likely to be used to support an inference of character or propensity and was not shown to be admissible for another purpose. See Stewart, ¶ 61, Derbyshire, ¶ 55. A cause may not be reversed by reason of any error committed by the trial court, however, “unless the record shows that the error was prejudicial.” Section 46-20-701(1), MCA. ¶36 We have adopted a two-step analysis to determine whether an error “prejudiced the criminal defendant’s right to a fair trial and is therefore reversible.” State v. Van Kirk, 2001 MT 184, ¶ 37, 306 Mont. 215, 32 P.3d 735. 17 ¶37 The first step in this analysis is determining whether the claimed error is categorized as “structural error” or “trial error.” Van Kirk, ¶ 37. Structural error “affects the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Van Kirk, ¶ 38 (citation omitted). Structural error is “typically of constitutional dimensions, precedes the trial, and undermines the fairness of the entire trial proceeding.” Van Kirk, ¶ 38. Trial error, on the other hand, “typically occurs during the presentation of a case to the jury.” Van Kirk, ¶ 40. If an error was structural, it is presumptively prejudicial and we automatically reverse the verdict. Van Kirk, ¶¶ 38, 41. If, however, the error is “the more ‘typical’ trial error,” we do not automatically reverse the conviction; instead, we proceed to the second step of our analysis—determining whether the error was harmless under the circumstances.” Van Kirk, ¶ 41. The error Rogers identifies on appeal took place during the presentation of evidence to the jury. As such, it “is amenable to qualitative assessment by a reviewing court for prejudicial impact relative to the other evidence introduced at trial” and is trial error. Van Kirk, ¶ 40; Stewart, ¶ 45. ¶38 When determining whether an error in the admission of evidence was harmless, we apply the “cumulative evidence test.” Van Kirk, ¶ 43. This test requires a qualitative analysis of the evidence; thus, it “looks not to the quantitative effect of other admissible evidence, but rather to whether the fact-finder was presented with admissible evidence that proved the same facts as the tainted evidence proved.” Van Kirk, ¶ 43 (emphasis omitted). If there was no other admissible evidence proving the same facts that the 18 tainted evidence proved, the analysis turns on whether the tainted evidence went to the proof of an element of the crime charged or, by contrast, to some fact not involving an element of the crime. Van Kirk, ¶ 47. “If there was no cumulative evidence presented as to a fact proving an element of the crime charged, then the error in admitting the tainted evidence which proved that element cannot be considered harmless, the qualitative assessment is never reached, and the court’s decision will be reversed.” Van Kirk, ¶ 47. Conversely, “[i]f the evidence in question did not prove an element of the crime, then the State must demonstrate that, qualitatively, there is no reasonable possibility that the tainted evidence might have contributed to the defendant’s conviction.” Van Kirk, ¶ 47; see also State v. McComber, 2007 MT 340, ¶ 26, 340 Mont. 262, 173 P.3d 690 (citing State v. Peplow, 2001 MT 253, ¶¶ 49, 51, 307 Mont. 172, 36 P.3d 922). ¶39 The State contends, and we agree, that its cross-examination of Rogers about his criminal history “clearly was not for the purpose of proving an element of the offense.” Nonetheless, the State cites to State v. Stewart in support of its position that the erroneous admission of this evidence was qualitatively harmless. There, we applied the cumulative evidence test where the prosecution had erred by admitting evidence for the purpose of proving an element of the charged offense, “that Stewart knowingly had sexual intercourse or sexual contact with [the victim].” Stewart, ¶ 47. Importantly, we were able to evaluate the tainted evidence against “admissible evidence that proved the same facts.” Stewart, ¶ 48. Doing so, we concluded that, qualitatively, “nothing [in the tainted evidence] is any more inflammatory or prejudicial than the other, admissible evidence at 19 trial.” Stewart, ¶ 50. That is not the situation here. There was no admissible evidence proving Rogers’s entire history of violence; his criminal history was not an admissible fact for the jury’s consideration. For this reason, Stewart is not on point. ¶40 Stewart aside, the State stresses—in support of its argument that there is no reasonable possibility that introducing Rogers’s criminal history may have contributed to his conviction—that it did not introduce Rogers’s criminal history during its case-in- chief, it did not dwell on his criminal history during the cross-examination, and it did not mention his past violent acts in its closing argument. The State also points out that, when the prosecution asked Rogers about his criminal history, it encouraged Rogers to provide “yes” or “no” answers and that Rogers “chose to portray himself in a negative light to the jury by using offensive language”3 and by offering facts that led to some of his past convictions. These observations do not satisfy the State’s burden under Van Kirk. ¶41 When discussing how the State might demonstrate that no reasonable possibility exists that the admission of tainted evidence might have contributed to the defendant’s conviction in Van Kirk, we presented two hypothetical scenarios. Van Kirk, ¶ 46. In the first scenario, the State offered evidence during a DUI trial that the defendant was a convicted child molester. Van Kirk, ¶ 46. On appeal, the State would have to demonstrate that there was no reasonable possibility that introducing this evidence led to the defendant’s conviction, “a virtually impossible burden to carry, given the highly 3 For example, Rogers stated during his testimony that the prosecutor was “fucking pitiful,” he referred to S.M.’s daughter as a “c-u-n-t[,]” and he referred to S.M. as a “shrew” whom he could not “tame.” 20 inflammatory nature of child molestation evidence.” Van Kirk, ¶ 46. Conversely, in the second hypothetical, the State erred by offering evidence that the same defendant previously had declared bankruptcy. Van Kirk, ¶ 46. We speculated that, in such a scenario, the State would be able to carry its burden because it is unlikely that an allegation of bankruptcy is the sort of defect in character that would lead a jury to believe that the defendant likely committed the charged offense. Van Kirk, ¶ 46. ¶42 We consistently have applied this framework in subsequent cases. In State v. Derbyshire, the State elicited testimony from its witnesses that they were “probation officers” and that the defendant “was on probation” when he was arrested. Derbyshire, ¶ 55. We held that these statements were “not admissible under Rule 404(b).” Derbyshire, ¶ 55. The defendant’s status as a probationer was not an element of the charges against him. We concluded that the State failed to satisfy its burden under Van Kirk because “in terms of quality, the tainted evidence here was highly prejudicial” and there was a reasonable possibility that the jury’s knowledge that the defendant had committed past crimes contributed to a guilty verdict. Derbyshire, ¶¶ 51, 53. ¶43 In State v. Peplow, the district court erred by allowing the State to introduce evidence that the defendant had been driving with a suspended license and had no insurance when he was arrested for driving under the influence. Peplow, ¶ 48. The tainted evidence suggested that the defendant had been convicted of similar past crimes and did not prove an element of the charged crime. Peplow, ¶¶ 51, 55. We reversed the defendant’s conviction and remanded the case for a new trial because the State was 21 unable to satisfy its burden under Van Kirk. Peplow, ¶ 56. Similarly, in State v. Nolan, the district court erred by allowing the State to introduce evidence that the defendant— who had been charged with bail-jumping—had fathered five children with four different women, none of whom he had married; the State also introduced evidence that the defendant had worked as a pimp. State v. Nolan, 2003 MT 55, ¶¶ 19-20, 314 Mont. 371, 66 P.3d 269. We held that this evidence was “highly inflammatory and prejudicial” and that the State had failed to carry its burden pursuant to Van Kirk. Nolan, ¶¶ 25-26. Consequently, we reversed Nolan’s conviction and remanded the case for a new trial. Nolan, ¶ 27. ¶44 In this case, the State introduced “highly inflammatory” evidence that Rogers had a prior rape conviction, which had been reversed on appeal, as well as evidence that he had been convicted of other crimes, in violation of M. R. Evid. 404(b). See Van Kirk, ¶ 46; see also Derbyshire, ¶ 55. Upon our review of the record, we conclude that there is a reasonable possibility the tainted evidence influenced Rogers’s conviction. The prosecutor questioned Rogers about two serious felony convictions that later were reversed. In the course of that questioning, the State informed the jury that Rogers previously had been convicted of rape and felony assault with a weapon, and had gotten both convictions set aside. This invited an opportunity for the jury to make sure Rogers would be punished when it deliberated on crimes charged. The law prohibits the State from introducing evidence of past crimes because doing so denies individuals a fair 22 opportunity to defend against the charged crimes. Gowan, ¶ 19. In light of the nature of the evidence presented, the error was not harmless. ¶45 In Van Kirk, we rejected our previous standard that “overwhelming evidence of a defendant’s guilt can render harmless a district court’s error” because it “invit[es] the State to offer inadmissible yet damaging evidence in a strong case . . . since the worst that can happen is that the error is noted but deemed harmless.” Van Kirk, ¶¶ 33-35. Our review of the record in this case “shows [that] the jury was presented with ample admissible evidence” that Rogers had committed the charged crimes. Peplow, ¶ 57. Nonetheless, the State’s introduction of Rogers’s criminal history, including convictions overturned by an appellate court for legal error, violated Rogers’s right to a fair trial. ¶46 The judgment is reversed and the case is remanded to the District Court for a new trial on all charges. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ PATRICIA COTTER /S/ JIM RICE /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS | August 13, 2013 |
499baa13-cd6b-473a-8bc1-eeff7f35374b | State v. Spinks | 2013 MT 248N | DA 12-0423 | Montana | Montana Supreme Court | DA 12-0423 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 248N STATE OF MONTANA, Plaintiff and Appellee, v. BRIAN JOSEPH SPINKS, Defendant and Appellant. APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Toole, Cause No. DC 11-027 Honorable Laurie McKinnon, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender; Nicholas Domitrovich, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant Attorney General; Helena, Montana Merle Raph, Toole County Attorney, Shelby, Montana Submitted on Briefs: August 7, 2013 Decided: September 3, 2013 Filed: __________________________________________ Clerk September 3 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Appellant Brian Joseph Spinks (Spinks) appeals his felony conviction for violation of an order of protection in the Ninth Judicial District Court, Toole County. We affirm. ¶3 The State of Montana (State) charged Spinks with one felony count of violation of order of protection pursuant to § 45-5-626, MCA, on January 11, 2011, in Gallatin County. Spinks’ ex-wife, Stephanie Archuleta (Archuleta), contacted the Gallatin County Victim Services regarding letters that she had received from two inmates at the Crossroads Correctional Center (CCC) in Shelby. Spinks was housed as an inmate at CCC at that time. The State dismissed the charges in Gallatin County and refiled them in Toole County. The State timely filed a notice of intent to seek persistent felony offender status, pursuant to § 46- 18-501, MCA. ¶4 Spinks filed a motion to suppress evidence of prior bad acts based on his belief that police investigative materials that the State had disclosed contained extensive references to Spinks’ prior bad acts or unfavorable character evidence. The State clarified that it did not intend to “elicit testimony of specific incidents of any physical abuse or mental cruelty” on the part of Spinks. The State informed the jury during opening statements that Spinks passed around Archuleta’s home address to other inmates and told them to write to her as a means to 3 “threaten[] her or harass[] her” to “[r]each[] out the one way he could still hold some power over her, over this gal that was his ex-wife, and . . . get at her one more time.” ¶5 Archuleta testified at trial about her state of mind as a result of receiving these letters from the inmates. Archuleta pointed to the fact that Spinks had threatened her during their marriage that he would have others rape or murder her to explain the basis for her fear of Spinks. The District Court overruled Spinks’ objection to the testimony. The District Court explained that Archuleta’s brief statement of a ten-year history between her and Spinks proved more probative than prejudicial as a reflection of the nature of Archuleta’s fear of Spinks. The District Court further rejected Spinks’ request for a limiting instruction. The jury convicted Spinks and the District Court sentenced him as a persistent felony offender to an 18-year commitment to the Department of Corrections. The court also ordered Spinks to pay fees and surcharges in the amount of $1,998.83. Spinks appeals. ¶6 Spinks argues on appeal that the District Court improperly admitted Archuleta’s testimony as the State intended it to infer Spinks’ propensity to commit the charged offense. Spinks argues, in the alternative, that the potential prejudice of Archuleta’s testimony outweighed any probative value under M. R. Evid. 403. Spinks further contends that the District Court failed to inquire as to Spinks’ ability to pay fees and surcharges that the District Court imposed. ¶7 We review for abuse of discretion a district court’s decision to admit evidence. State v. Guill, 2010 MT 69, ¶ 21, 355 Mont. 490, 228 P.3d 1152. We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our 1996 Internal Operating Rules, as 4 amended in 2006, that provides for memorandum opinions. The District Court did not abuse its discretion in admitting Archuleta’s testimony as probative of whether Spinks violated the order of protection by contacting Archuleta indirectly through the other two inmates. Spinks failed to object to the District Court’s imposition of the fines and surcharges. ¶8 Affirmed. /S/ BRIAN MORRIS We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ JIM RICE /S/ BETH BAKER | September 3, 2013 |
eeacc17f-be05-4d2d-8fc8-16612589c07b | Matter of A.S. A.S. and C.S. | 2013 MT 211N | DA 13-0039 | Montana | Montana Supreme Court | DA 13-0039 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 211N IN THE MATTER OF: A.S., A.S., C.S., Youths in Need of Care. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause Nos. DN 11-037, -038, -039 Honorable Robert B Allison, Presiding Judge COUNSEL OF RECORD: For Appellant: Julie Brown, Montana Legal Justice, PLLC; Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General; Helena, Montana Emily Von Jentzen, Assistant Attorney General, Child Protection Unit; Kalispell, Montana Ed Corrigan, Flathead County Attorney, Kalispell, Montana For Children: Brianne Franklin, Bennett Law Firm, Kalispell, Montana Submitted on Briefs: June 26, 2013 Decided: July 30, 2013 Filed: __________________________________________ Clerk July 30 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Appellant C.J.S. appeals the order of the Eleventh Judicial District Court, Flathead County, terminating his parental rights. We affirm. ¶3 C.J.S. (Father) is the birth father of A.S., A.S., and C.S. (collectively “the children”). The children were living with T.B. (Mother) when the Department of Public Health and Human Services (Department) received a report about the children in June 2011. The Department discovered that Mother was living with a registered sex offender, T.W. Mother allowed T.W. to watch the children unsupervised. The Department eventually removed the children from Mother. The Department filed a petition for emergency protective services, adjudication as youths in need of care, and temporary legal custody on August 18, 2011. ¶4 The District Court held a hearing in September 2011. At the time of the hearing Father did not have an appropriate residence where he safely could care for the children. The children needed supportive services for their mental health. Father failed to develop a plan to accommodate the children’s needs. Mother and Father agreed to grant the Department temporary legal custody of the children for six months. The District Court approved a treatment plan for Father in November 2011 to improve his ability to take care of the children. 3 ¶5 The Department placed the children at Watson’s Children’s Home in Missoula from October 2011 to August 2012. Father failed to complete his treatment plan while the children were at the home. Father failed to obtain appropriate housing where the children could live with him. Father also failed to contact the children regularly while they were at the home. ¶6 The court granted several six-month extensions of temporary legal custody to the Department. The Department eventually filed a petition for permanent legal custody and for termination of Father’s parental rights. The District Court held a termination hearing in December 2012. ¶7 The District Court issued findings of fact, conclusions of law, and an order terminating Father’s parental rights on December 28, 2012. The District Court determined that Father’s inability to find appropriate housing and his failure to comply with the treatment plan established that Father’s conduct and condition rendered him unfit and that he was unlikely to change within reasonable time pursuant § 41-3-609(1)(f), MCA. Father appeals. ¶8 Father argues on appeal that there was not sufficient evidence at the adjudicatory hearing as to show any causal relationship between his actions and the abuse or neglect of the children. Father argues that Mother’s actions, not his, led the court to adjudicate the children as youths in need of care. Father further argues that the need for his completion of a treatment plan was inappropriate under the circumstances. In adjudicating the children youths in need of care, the District Court found that both parents had committed acts and 4 omissions that created a substantial risk of physical or psychological harm to the children; that neither parent had appropriate living conditions; and that neither parent had established readiness to deal with the children’s special needs. The Court’s findings of fact that both parents’ acts and omissions had created a substantial risk of physical or psychological harm was supported by substantial evidence. ¶9 Father further argues that the Department failed to demonstrate by clear and convincing evidence that he had failed to comply with the treatment plan. After review of the record, we are not persuaded. We review for an abuse of discretion a district court’s decision to terminate parental rights. In re R.M.T., 2011 MT 164, ¶ 26, 361 Mont. 159, 256 P.3d 935. We will not disturb a district court’s decision on appeal under these circumstances unless “there is a mistake of law or a finding of fact not supported by substantial evidence that will amount to clear abuse of discretion.” In re M.N., 2011 MT 245, ¶ 14, 362 Mont. 186, 261 P.3d 1047. ¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. It is manifest on the face of the briefs and the record before us that substantial evidence supports the District Court’s findings of fact and that the District Court correctly applied the law to these facts. ¶11 Affirmed. /S/ BRIAN MORRIS 5 We concur: /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JIM RICE | July 30, 2013 |
2f5c5e13-f6d8-4ddb-b252-b1caa6d532f6 | Rolan v. New West Health Servs. | 2013 MT 220 | DA 12-0622 | Montana | Montana Supreme Court | DA 12-0622 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 220 DANA ROLAN, Plaintiff and Appellee, v. NEW WEST HEALTH SERVICES, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV 2010-91 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellant: Leo S. Ward, Daniel J. Auerbach; Browning, Kalecyzc, Berry & Hoven; Helena, Montana For Appellee: Erik B. Thueson, Scott Peterson; Thueson Law Office; Helena, Montana Submitted on Briefs: May 28, 2013 Decided: August 6, 2013 Filed: __________________________________________ Clerk August 6 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 New West Health Services (New West) appeals an order of the First Judicial District Court, Lewis and Clark County, certifying a class complaint against New West. The sole issue on appeal is whether the District Court abused its discretion by adopting the class definition proposed by Rolan and denying New West’s motion to modify the class definition. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 Dana Rolan was injured in a vehicular collision on November 16, 2007 and sustained serious injury, resulting in medical expenses totaling approximately $120,000. Rolan carried health insurance through New West. The tortfeasor who caused the accident carried liability insurance through Unitrin Services Group (Unitrin). Unitrin accepted legal responsibility and paid approximately $100,000 of Rolan’s medical bills. ¶4 The policy under which Rolan was insured stated that, in addition to the right of subrogation, New West had a right to be reimbursed for benefits it paid to an insured who also had recovered or settled with a third party. The policy also contained an exclusion for injuries covered by a medical payments provision of another liability carrier: 5.30.10 LIABILITY INSURANCE POLICY MEDICAL PAYMENTS Healthcare services to treat any injury are not covered services if you receive payments for that injury under a medical payments provision of a liability insurance policy, whether insured by an insurance company or self-insured. Examples of liability insurance policies to which this section applies include, but are not limited to, automobile, homeowner and business liability policies. 3 ¶5 On January 26, 2010, Rolan filed a complaint against New West alleging individual and class claims for breach of contract, violation of made-whole rights, and unfair claims settlement practices under §§ 33-18-201, MCA, et seq., authorizing punitive damages. Rolan alleged that New West failed to pay approximately $100,000 of her medical expenses because Unitrin, the third party liability carrier, had “paid the majority of the bills.” Rolan sought to certify a class under M. R. Civ. P. 23(b)(2) for declaratory and injunctive relief arising from the claims for breach of contract and violation of made-whole rights. She sought certification under Rule 23(b)(3) for damages arising from New West’s alleged unfair claims settlement practices. Although Rolan asserted that a class definition was unnecessary at that time, she proposed the following class parameters: (1) All class members were insured by New West for the period commencing eight years prior to filing of this suit through the date this Court will enter judgment on the merits. (2) All members incurred medical costs due to the negligence or wrongdoing of a third party tortfeasor or tortfeasors. (3) For all members, New West avoided paying benefits because the tortfeasor or tortfeasors paid medical costs as part of tort damages. (4) For all members, New West failed to perform a “made-whole” determination before avoiding payment of benefits. ¶6 New West filed an Answer on July 7, 2010, denying that it refused to pay Rolan’s medical expenses and opposing class certification. New West argued that the class should not be certified because Plaintiffs did not meet the Rule 23(a) criteria and “failed to 4 appropriately define a class of persons.” On November 17, 2011, the District Court held a hearing on the motion for class certification. ¶7 On April 25, 2012, the District Court granted Rolan’s motion to certify the class complaint. The District Court determined that Rolan had met the Rule 23(a) certification requirements and, citing our decision in Diaz v. Blue Cross & Blue Shield of Mont. (Diaz I), 2011 MT 322, 363 Mont. 151, 267 P.3d 756, rejected New West’s argument that the class was imprecisely defined. In Diaz I, considering whether a class should have been certified alleging similar claims, we concluded that “the prerequisites set forth in Rule 23(a) sufficiently define a class in this case, and any additional definition by this Court, at this time, is unnecessary.” Diaz I, ¶ 30.1 ¶8 On May 4, 2012, the District Court issued an order certifying the class under Rule 23(b)(2) for declaratory and injunctive relief. The Certification Order contained a class definition that substantially mirrored the definition proposed in Rolan’s complaint: (1) They were insured by New West at any time from January 26, 2002 (eight years preceding the filing of this lawsuit) through the date that this Court will ultimately enter judgment on the merits. (2) They incurred medical costs due to the negligence or wrongdoing of a third-party tortfeasor or tortfeasors. (3) Some or all of the medical costs were not paid by New West, but were paid by the tortfeasors or insurance covering damages caused by the tortfeasors. 1 We have clarified today in Diaz v. State (Diaz II), 2013 MT 219, ___ Mont. ___, ___ P.3d ___, that we did not in Diaz I address whether non-filing insureds should be included in the class definition. Instead, we addressed class definition in Diaz I “only to confirm that a precisely defined class existed and that the named plaintiffs were members of the proposed class.” Diaz II, ¶ 33 (citing Diaz I, ¶¶ 28-30). 5 (4) New West failed to perform a “made-whole” determination before avoiding payment of benefits. The court then clarified how that class definition was to be interpreted: The term “avoiding payment of benefits,” is intended to include situations where New West did not make payment of benefits because a tortfeasor was paying medical costs. It also includes situations where New West received reimbursement from medical providers when a tortfeasor commenced paying medical costs. It includes traditional subrogation which was achieved without first making a made-whole determination. Finally, it includes what might be characterized as de facto subrogation as described by the Montana Supreme Court in State Auditor v. Blue Cross Blue Shield of MT, 2009 MT 318, ¶¶ 18- 19. ¶9 In its order granting class certification, the District Court noted that New West employed a company called First Recovery Group to assist it in subrogating against third- party liability carriers through the following procedures: New West contracted with a Michigan company called First Recovery Group to identify which of New West’s insured[s] might have been injured in an accident where a liability carrier was involved. If First Recovery identified a carrier, it would direct the carrier to pay the medical bills, allowing New West to avoid payment. If New West had already paid the bills, First Recovery would direct the liability carrier to reimburse New West. (Emphasis added.) The plaintiffs alleged that those procedures would result in New West being either reimbursed by a provider who had been paid by a liability carrier or not paying an insured’s medical bill if the liability carrier already paid it—in both cases allegedly without first determining that the insured had been made whole. ¶10 On July 12, 2012, New West moved, pursuant to Rule 23(c)(1)(C), to limit the class to those insureds who timely filed claims for benefits covered by New West. In support of the 6 motion, New West noted that, following remand in Diaz I, First Judicial District Court Judge Jeffrey Sherlock considered similar arguments regarding the appropriate class definition and decided to confine the class to those insureds who had timely filed claims for benefits covered under the State’s health insurance plan. New West argued that, “[i]n the event this case proceeds with a substantially different class definition, there is a strong likelihood for divergent legal conclusions that may not be reconciled between this case and Diaz.” New West thus sought to limit the class definition to those insureds who had met the claim filing deadline: (1) individuals insured by New West who timely submitted claims for covered benefits pursuant to the terms of their health insurance plan(s) for health care services that took place no earlier than eight years prior to the filing of the Complaint in this action, which is January 26, 2010; (2) who were injured through the legal fault of persons who have legal obligations to compensate them for all damages sustained; and (3) who have not been made whole for their damages (or for whom New West conducted no made whole analysis) because New West has programmatically failed to pay benefits for their covered medical costs. ¶11 Rolan objected to modification of the class definition on grounds that New West’s “billing procedures and insurance practices” would prevent numerous insureds from filing their claims with New West. Rolan stated that an insured generally submits claims to the medical provider, who in turn decides whether to bill New West or another liability carrier. Rolan also referred to New West’s employment of First Recovery Group “to get tortfeasors to pay rather than New West[.]” She suggested, therefore, that New West was “directly or 7 indirectly encouraging its preferred providers to bill the tortfeasor,” such that New West would not receive the claim when a liability carrier was involved. ¶12 On September 17, 2012, the District Court denied New West’s motion to modify the class definition. The court stated that it agreed with Rolan that “if New West’s customer service instructs their insureds to send their bills to the tortfeasor’s liability carrier, no claim for benefits would be made to New West, thus defeating or compromising the insureds’ made-whole rights.” New West appeals. STANDARD OF REVIEW ¶13 We review class certification orders for an abuse of discretion. Chipman v. N.W. Healthcare Corp., 2012 MT 242, ¶ 17, 366 Mont. 450, 288 P.3d 193. We consider “not whether this Court would have reached the same decision, but whether the district court acted arbitrarily without conscientious judgment or exceeded the bounds of reason.” Chipman, ¶ 17 (quoting Newman v. Lichfield, 2012 MT 47, ¶ 22, 364 Mont. 243, 272 P.3d 625) (internal quotation marks omitted). A district court’s class certification decision “should be accorded the greatest respect because it is in the best position to consider the most fair and efficient procedure for conducting any given litigation.” Chipman, ¶ 17 (citing Diaz I, ¶ 10 and Sieglock v. Burlington N. & Santa Fe Ry. Co., 2003 MT 355, ¶8, 319 Mont. 8, 81 P.3d 495). A court abuses its discretion “if its certification order is premised on legal error.” Mattson v. Mont. Power Co., 2012 MT 318, ¶ 17, 368 Mont. 1, 291 P.3d 1209 (quoting Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1237 (9th Cir. 2001) (internal quotation marks omitted)). 8 DISCUSSION ¶14 Whether the District Court abused its discretion by adopting the class definition proposed by Rolan and denying New West’s motion to modify the class definition. ¶15 Our decision today in Diaz II addresses a substantially similar issue to that New West raises here, though in a slightly varied procedural posture. In Diaz II, the class plaintiffs sought review of Judge Sherlock’s decision to limit the class to insureds who timely filed claims for covered benefits under the State’s health insurance plan. This Court affirmed the District Court’s narrower choice of class definition, based in part on the deferential standard of review we apply to interlocutory class action appeals. We reiterated that “an appellate court’s review under the abuse of discretion standard is limited to whether the court ‘acted arbitrarily without conscientious judgment or exceeded the bounds of reason,’” Diaz II, ¶ 21 (quoting Chipman, ¶ 17), and stated that “[w]e are particularly reluctant to interfere with discretionary orders in the early stages of litigation.” Diaz II, ¶ 21 (citing Hegwood v. Mont. Fourth Jud. Dist. Ct., 2003 MT 200, ¶ 16, 317 Mont. 30, 75 P.3d 308). We emphasized that a district court has broad authority in assessing the manageability of a class action and, under M. R. Civ. P. 23(c)(1)(C), maintains discretion to modify the class definition at any time until final judgment: Issues bearing on the overall manageability of a class action properly are considered throughout the class action proceedings and fall particularly within the purview of the district court. Blanton v. Dept. of Pub. Health and Hum. Servs., 2011 MT 110, ¶ 38, 360 Mont. 396, 255 P.3d 1229 (citing Sieglock, ¶ 8). . . . As is well-established, district courts have “broad discretion in determining issues relating to trial administration.” Fink v. Williams, 2012 MT 304, ¶ 18, 367 Mont. 431, 291 P.3d 1140. In exercising that discretion in 9 the class action context, a district court “may consider any factor that the parties offer or the court deems appropriate to consider.” Blanton, ¶ 38. Additionally, class action certification orders “are not frozen once made”; instead, the District Court maintains discretion to alter the class definition as the case proceeds. Amgen Inc. v. Conn. Ret. Plans & Trust Funds, ___ U.S. ___, 133 S. Ct. 1184, 1202 n. 9 (2013) (“Rule 23 empowers district courts to ‘alter or amend’ class-certification orders based on the circumstances developing as the case unfolds.”) (citing Fed. R. Civ. P. 23(c)(1) and 23(c)(1)(C)); see Howe v. Townsend, 588 F.3d 24, 39 (1st Cir. 2009) (“Courts can amend certification orders to reflect major changes or minor adjustments to the class.”) (citing Fed. R. Civ. P. 23(c)(1)(C)). Accordingly, Plaintiffs may seek to alter or amend the class definition as discovery progresses. Diaz II, ¶¶ 27-28. ¶16 Importantly, the same principles apply here. We now consider defendant New West’s contention that the District Court’s choice of class definition constituted an abuse of discretion on grounds that the current definition (1) is imprecise, (2) improperly diverges from the definition adopted by Judge Sherlock following remand in Diaz I, and (3) will necessitate de-certification of the class. ¶17 1. Whether the class definition is imprecise. ¶18 New West argues that “[i]dentifying class members who never submitted claims requires proof of legal and factual issues that are not readily determinable.” According to New West, the class parameters are not sufficiently precise because the District Court did not define the term “avoiding payment of benefits.” New West suggests that it cannot be held accountable for avoiding payment to an insured who did not file a claim. Citing Polich v. Burlington N., Inc., 116 F.R.D. 258, 261 (D. Mont. 1987), New West thus argues that the class cannot be defined “using objective criteria.” Additionally, if the broad class definition 10 is used, New West argues that Rolan would be an inadequate representative of the class claims because her experience varies factually from that of other class members. New West contends that in Rolan’s case, New West was alleged to have “improperly accepted reimbursements from providers who were double paid for Rolan’s medical expenses,” but the District Court broadened the class to include any circumstances where “New West failed to perform a ‘made-whole’ determination before avoiding payment of benefits.” New West again denies that it avoided paying Rolan’s claims and contends that it did not fail to perform a made-whole analysis because “it never asserted a claim for subrogation.” ¶19 As Rolan suggests, our decision in Diaz I disposes of these arguments. There, named plaintiffs Diaz and Hoffman-Bernhardt were insured under the State group insurance plan and suffered injuries in vehicular collisions caused by insured tortfeasors. They filed a class complaint alleging that the State and the third-party administrators of the State’s group health insurance plan—Blue Cross and Blue Shield of Montana (BCBS) and New West— exercised their subrogation rights without conducting made-whole analyses of the insureds. As in Rolan’s case, the State through its third-party administrator, BCBS, allegedly refused to pay Diaz for medical expenses already paid to her medical provider by the tortfeasor’s insurer. Under a factual scenario that varies only slightly from Rolan’s, New West allegedly refused to pay Hoffman-Bernhardt the reimbursement it already had received from her medical providers following payment by the tortfeasor’s insurer to the medical providers. See Diaz II, ¶¶ 4-6. Employing a class definition essentially identical in scope to the one at issue here, the District Court initially determined that Plaintiffs failed to meet the Rule 23 11 criteria. Diaz I, ¶¶ 6, 28. The plaintiffs appealed and we reversed the order denying class certification, though we affirmed the court’s decision that the third-party administrators were not liable under the made-whole laws. Diaz I, ¶ 26. As in this case, the defendants, relying on Polich, argued on appeal that the class had been imprecisely defined.2 Diaz I, ¶ 29. This Court rejected that argument, stating: First . . . it is clear the members of the class will be individuals insured under the State plan, just like Diaz and Hoffmann-Bernhardt. Second, the prerequisites set forth in Rule 23(a) sufficiently define a class in this case, and any additional definition by this Court, at this time, is unnecessary. Diaz I, ¶ 30. Because the class was sufficiently precise for purposes of certification, we remanded the case for further proceedings and did not consider any other arguments regarding suitability of the class parameters. See Diaz II, ¶ 33. ¶20 Rolan also cites Blue Cross & Blue Shield of Mont., Inc. v. Mont. State Auditor, 2009 MT 318, 352 Mont. 423, 218 P.3d 475, in arguing that the class definition is sufficiently precise. There, we affirmed a decision of the Montana State Auditor and Commissioner of Insurance to disapprove the coverage exclusions contained in BCBS’s insurance forms. State Auditor, ¶ 1. We recognized that the exclusions “violate Montana statutory and case law on subrogation” because: 2 The class in Diaz I was defined in full as follows: (1) insureds under health insurance plans and policies administered or operated by the State and the TPAs; (2) who were injured through the legal fault of persons who have legal obligations to compensate them for all damages sustained; and (3) who have not been made whole for their damages because the State and the TPAs have programmatically failed to pay benefits for their medical costs. Diaz I, ¶ 28. 12 The exclusions allow BCBS to avoid any payment of benefits to its insured if the insured is “entitled to receive” benefits from any other auto or premises liability policy, whether or not the insured actually receives any of those benefits, and whether or not the insured has been made whole. State Auditor, ¶ 19. While that case was not a class action and thus did not discuss class definition, we agree with Rolan that the language supports the District Court’s inclusion in the class of members for whom New West “avoid[ed] payment of benefits” without first conducting made-whole analyses of its insureds. The District Court adequately explained the parameters for determining whether New West was “avoiding payment” to keep the class definition from becoming amorphous. ¶21 In summary, New West’s policy exclusion is comparable to those discussed in State Auditor and Diaz I, both of which, like this case, involved allegations that the insurer is withholding payment to the insured—of either the reimbursement or the covered benefits. Additionally, Rolan’s experience is comparable to that of the named plaintiffs in Diaz I, where we concluded that a similarly broad class definition was adequately precise to certify the class. That conclusion also applies in this case. ¶22 2. Whether the class definition improperly diverges from the definition adopted by Judge Sherlock following our remand in Diaz I. ¶23 Following our remand in Diaz I, the State requested the district court in that case to modify the class definition under Rule 23(c)(1)(C) to, among other things, include the one- year filing limitation applicable for receipt of benefits under the terms of the State’s group insurance plan. As already noted, Judge Sherlock’s certification order narrowed the class definition by including the filing limitation and we have affirmed that decision today in Diaz 13 II. Judge Sherlock’s choice of class definition appeared to be based on the State’s argument that, of the approximately 32,000 individuals insured under the State’s plan, a large number failed to file their claims with the State and there appeared to be no manageable means by which the non-filing insureds could be identified. Even if they could be identified, the State argued that their eligibility for class membership would require innumerable mini-trials to determine which of those non-filing insureds failed to file as a direct result of the policy exclusion, rather than for other reasons. See Diaz II, ¶ 26. ¶24 We reemphasize that, under the abuse of discretion standard of review, district courts may reach different determinations of substantially similar questions, as long as neither court has “acted arbitrarily without conscientious judgment or exceeded the bounds of reason.” Chipman, ¶ 17. We do not consider whether we would have reached the same decision. Chipman, ¶ 17. While we affirmed Judge Sherlock’s choice of the narrower class definition in Diaz II, our decision in Diaz I made clear that the class also could have been certified under the broader definition. We stated that “certification orders are not frozen once made.” Diaz II, ¶ 28. Instead, under Rule 23(c)(1)(C), the District Court maintains discretion to alter or amend the class definition at any time until final judgment. The same is true here. New West may seek to modify the class definition as discovery progresses. ¶25 The District Court in this case considered a different record from that presented to the court in Diaz II, and the two courts defined the classes in response to the particular arguments supporting the parties’ proposed class definitions in each case. We disagree with New West’s contention that the record fails to support divergence from Judge Sherlock’s 14 choice of class definition. The State argued on remand following Diaz I that identification of the non-filing insureds eligible for class membership was highly burdensome, perhaps impossible, because there was no record of which insureds had failed to file due to the involvement of another liability carrier. Diaz II, ¶ 25. Here, Rolan offered evidence that New West hired First Recovery Group specifically for the purpose of identifying insureds whose injuries were covered by other liability carriers, and to assist New West in exercising its subrogation right against the other insurers—allegedly without first conducting made- whole analyses. ¶26 New West’s appellate argument focuses on whether the class definition is sufficiently precise—a question we addressed in Diaz I—and has not persuaded us at this stage in the proceeding that identification of class members will be overly burdensome or impossible in this case. The District Court acted within its discretion in determining that the broader class definition should be used in light of Rolan’s evidence supporting her claim that New West used practices and procedures “to get tortfeasors to pay rather than New West.” See Diaz I, ¶ 47; State Auditor, ¶ 19. ¶27 3. Whether the class definition necessitates de-certification of the class. ¶28 The foregoing analysis makes clear that the District Court’s class definition does not require de-certification of the class as the case now stands. New West argues that a class that includes both filing and non-filing insureds “cannot meet the remaining requirements of Rule 23(a) and (b) because it is not properly defined.” In particular, New West asserts that, as the class is defined, its members do not share a common question of law or fact under Rule 15 23(a)(2), but it has not appealed the District Court’s determination of the Rule 23(a) and (b) prerequisites. We already decided in Diaz I that a class of similar parameters met the Rule 23(a) and (b)(2) certification criteria. As discussed, the District Court maintains discretion to alter or amend the class definition at any time until final judgment. M. R. Civ. P. 23(c)(1)(C). ¶29 For the foregoing reasons, we affirm the District Court’s certification order. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ LAURIE McKINNON /S/ JIM RICE | August 6, 2013 |
af0a906b-eb09-4b19-91e0-01260796b14a | State v. Haller | 2013 MT 199 | DA 12-0472 | Montana | Montana Supreme Court | DA 12-0472 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 199 STATE OF MONTANA, Plaintiff and Appellee, v. DWAYNE BRUCE HALLER, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-32-2011-0000367-IN Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Clinton H. Kammerer, Kammerer Law Offices, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana Fred Van Valkenburg, Missoula County Attorney; Susan E. Boylan, Deputy County Attorney, Missoula, Montana Submitted on Briefs: April 17, 2013 Decided: July 23, 2013 Filed: __________________________________________ Clerk July 23 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Dwayne Bruce Haller (Haller) appeals from his convictions in the Fourth Judicial District Court, Missoula County, of Driving Under the Influence of Alcohol –fourth offense, a felony, and Driving Without a Valid Driver’s License. We affirm. ¶2 The issue on appeal is whether the District Court properly denied Haller’s motion to vacate his convictions. PROCEDURAL AND FACTUAL BACKGROUND ¶3 Haller was arrested on August 3, 2011, on suspicion of driving under the influence of alcohol. The next day, the State submitted a complaint and an affidavit of probable cause to the Missoula County Justice Court. Based on the affidavit, the Justice of the Peace found that there was probable cause and allowed the complaint to be filed. That same day, August 4, 2011, Haller made his initial appearance. At the initial appearance, as required by § 46-7- 102, MCA, the Justice Court informed Haller of the charges against him as well as his various rights, including the right to counsel and the right to bail. The Justice Court also scheduled a preliminary examination for August 18, 2011, during the initial appearance. For reasons that are not clear from the record, that preliminary examination was not held. On August 23, 2011, 19 days after Haller’s initial appearance, the State filed a motion, supported by an affidavit of probable cause, that sought leave from the District Court to file an information. The court granted the State’s motion, and the State filed its information charging Haller with felony DUI and driving without a valid driver’s license the same day. A jury found Haller guilty of both charges on February 29, 2012. 3 ¶4 On April 16, 2012, Haller filed a motion to vacate his convictions. Haller argued primarily that his convictions should be vacated because he had not received an adversarial probable cause hearing within 48 hours of his arrest. Alternatively, Haller argued that his convictions should be vacated because the State failed to present any evidence at the scheduled preliminary examination on August 18, 2011. The District Court denied Haller’s motion on May 4, 2012. The court held a sentencing hearing on May 8, 2012, and issued its written judgment on May 29, 2012. STANDARD OF REVIEW ¶5 The grant or denial of a motion to dismiss in a criminal case is a question of law that we review for correctness. State v. Robison, 2003 MT 198, ¶ 6, 317 Mont. 19, 75 P.3d 301. We review a district court’s determination of what constitutes a reasonable time under § 46- 10-105, MCA, for an abuse of discretion. State v. Gatlin, 2009 MT 348, ¶ 15, 353 Mont. 163, 219 P.3d 874. DISCUSSION ¶6 Section 46-6-311(1), MCA, provides that “[a] peace officer may arrest a person when a warrant has not been issued if the officer has probable cause to believe that the person is committing an offense or that the person has committed an offense and existing circumstances require immediate arrest.” To ensure that the officer correctly determined that there was probable cause to make the arrest, the Fourth Amendment gives a criminal defendant who has been arrested without a warrant the right to a prompt probable cause determination by a neutral and detached magistrate. Gerstein v. Pugh, 420 U.S. 103, 124-25, 95 S. Ct. 854, 868-69 (1975). Section 46-11-110, MCA, also gives a defendant a right to a 4 judicial determination of probable cause before the prosecution can be commenced in justice court. A sworn affidavit submitted with a complaint is a proper basis for the probable cause determination required by the Fourth Amendment. State v. Brown, 1999 MT 339, ¶ 15, 297 Mont. 427, 993 P.2d 672. ¶7 Following all arrests, an initial appearance must be conducted before the nearest and most accessible judge without unnecessary delay. Section 46-7-101, MCA (emphasis added). We have noted that this statute, together with the requirement to inform defendants of their rights set out in § 46-7-102, MCA, is designed to “ensure that a criminal prosecution begins promptly and with a recognition of the defendant’s essential rights.” State v. Strong, 2010 MT 163, ¶ 11, 357 Mont. 114, 236 P.3d 580. In addition, before leave to file an information in district court can be granted, a separate determination of probable cause must be made. ¶8 There are three different procedures by which the State can obtain the requisite probable cause determination before filing charges in district court: 1) a preliminary examination; 2) direct application to the district court for leave to file an information; or 3) indictment by a grand jury.1 Section 46-10-105, MCA. The State may utilize whatever process it wishes; a defendant is not entitled to any specific procedure. State v. Farnsworth, 240 Mont. 328, 332, 783 P.2d 1365, 1368 (1989). Montana has adopted a flexible standard that requires the district court determination to be made within “a reasonable time” after the defendant’s initial appearance. State v. Higley, 190 Mont. 412, 419, 621 P.2d 1043, 1048 (1980); see also § 46-10-105, MCA. 5 ¶9 Citing County of Riverside v. McLaughlin, 500 U.S. 44, 53, 111 S. Ct. 1661, 1668 (1991), Haller argues that he was entitled to a preliminary examination within 48 hours of his arrest. Because a preliminary examination was not held within 48 hours of his arrest, Haller argues the State had to prove that the time that it took for him to receive a probable cause determination was reasonable. Haller’s argument conflates the two procedures that require a finding of probable cause and is clearly contrary to Montana’s established criminal procedure framework. Although both procedures require a judicial determination of probable cause, they are distinct procedures and serve different purposes. ¶10 Haller received a prompt judicial determination of probable cause as required by the Fourth Amendment the day after he was arrested. On August 4, 2011, based on the State’s affidavit of probable cause, the Justice Court issued an order that found that there was probable cause and allowed the State to file a complaint. That probable cause determination was sufficiently prompt and fulfilled the Fourth Amendment’s requirement. ¶11 Whether the time between Haller’s initial appearance in Justice Court and when the District Court granted the State leave to file an information was reasonable is a separate matter and depends upon the specific facts and circumstances of the case. See Gatlin, ¶ 15; Robison, ¶ 12; State v. McElderry, 284 Mont. 365, 370, 944 P.2d 230, 232-33 (1997). The State argues that under § 46-11-203, MCA, the time between the initial appearance and the probable cause determination is reasonable if it files an information within 30 days. ¶12 Section 46-11-203(1), MCA, provides that: After a finding of probable cause following a preliminary examination or 1 The defendant may also waive his right to a determination of probable cause. See § 46-10-105(1), MCA. 6 waiver of a preliminary examination or after leave of court has been granted, the prosecutor shall file within 30 days in the proper district court an information charging the defendant with the offense or any other offense supported by probable cause. (Emphasis added). However, that statute establishes the time limit for filing an information after a judicial determination of probable cause has been made before charges can be initiated in the district court. It does not establish 30 days as a presumptively reasonable time for obtaining a probable cause determination after the initial appearance in justice court. ¶13 We ultimately do not reach the question of whether the 19-day delay between Haller’s initial appearance and when the District Court granted the State leave to file an information was reasonable. The issue before us on appeal is whether the District Court erred by denying Haller’s motion to vacate his convictions. Significantly, Haller did not object to the 19-day delay until after his trial. In essence, Haller’s motion was a motion to dismiss that he filed after he was tried and convicted by a jury. A party must raise any defense, objection, or request that is capable of determination without trial of the general issue at or before the pre- trial omnibus hearing. Section 46-13-101(1), MCA. A defendant who does not timely raise an objection that can be determined before trial waives that objection. State v. Cotterell, 2008 MT 409, ¶ 80, 347 Mont. 231, 198 P.3d 254; § 46-13-101(2), MCA. Haller thus waived his right to complain that 19 days was an unreasonable time for the State to initiate filing charges in the District Court by failing to object or file a motion to dismiss before his trial. ¶14 Lastly, Haller argues that his convictions should have been vacated because the State did not present any evidence to establish probable cause at the preliminary examination 7 scheduled for August 18, 2011. It does not appear from the record, however, that a preliminary examination was held on August 18. Haller contends that the hearing was cancelled because the State failed to appear. As noted above, the State may initiate a prosecution in district court without a preliminary examination. State v. Strobel, 268 Mont. 129, 133, 885 P.2d 503, 505 (1994). Here, the State supported its motion seeking leave to file the information with an affidavit of probable cause. The District Court found that sufficient probable cause existed and allowed the State to file the information. As such, Haller’s allegation is unsubstantiated, has no support in the record, and is not well taken. ¶15 For the reasons stated above, the motion to vacate Haller’s convictions was properly denied. The District Court did not abuse its discretion. The final judgment is affirmed. /S/ MIKE McGRATH We concur: /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ BRIAN MORRIS | July 23, 2013 |
4c147192-6493-40f9-8bb8-27f046d2f284 | State v. Marcial | 2013 MT 242 | DA 12-0436 | Montana | Montana Supreme Court | DA 12-0436 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 242 STATE OF MONTANA, Plaintiff and Appellee, v. MARCO ANTONIO MARCIAL, Defendant and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 10-361A Honorable Holly Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender; Koan Mercer, Assistant Appellate Defender; Jesse Kodadek, Law Student; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman, Assistant Attorney General; Helena, Montana Greg Sullivan, Bozeman City Attorney; Susan Wordal, Assistant City Attorney; Bozeman, Montana Submitted on Briefs: June 26, 2013 Decided: August 27, 2013 Filed: __________________________________________ Clerk August 27 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Marco Marcial (Marcial) pled guilty to driving under the influence (DUI) following the Bozeman Municipal Court’s denial of his motion to suppress. Marcial appealed to the Eighteenth Judicial District Court, Gallatin County, which affirmed the Municipal Court’s denial of Marcial’s motion. We affirm the District Court’s decision to deny Marcial’s motion to suppress, but rely on alternate grounds. ¶2 We restate and consider the following issue: ¶3 Whether the District Court erred by affirming the Municipal Court’s denial of Marcial’s motion to suppress based on the Community Caretaker Doctrine? FACTUAL AND PROCEDURAL BACKGROUND ¶4 On May 8, 2010, at around 1:15 a.m., Bozeman Police Department Sergeant Travis Munter (Sgt. Munter) was traveling south on North Rouse Avenue in Bozeman. Sgt. Munter observed Marcial, who was driving northbound, execute a hard left turn in an area where Sgt. Munter knew there were no cross streets. Marcial drove up on the sidewalk and onto the grass before coming to an abrupt stop, nearly perpendicular to the street. Sgt. Munter then observed Marcial’s vehicle back away from the curb area, where he saw a fire hydrant immediately next to the sidewalk. Concerned that Marcial had collided with the fire hydrant, Sgt. Munter turned his vehicle around and stopped behind Marcial’s car just as Marcial was parking parallel to the street. Sgt. Munter activated his rear warning lights, but not his top lights. ¶5 Sgt. Munter exited his car and approached Marcial’s vehicle, knocking on the side of the car. Sgt. Munter testified that he did not observe any damage to Marcial’s vehicle 3 at that time and could see that the fire hydrant did not appear to be damaged. Marcial opened the door, and Sgt. Munter asked, “everything okay?” Marcial responded affirmatively. While speaking to Marcial, Sgt. Munter noticed the smell of an alcoholic beverage and other indicators that Marcial was driving under the influence of alcohol. Sgt. Munter then asked Marcial for his license and vehicle registration and proceeded with a DUI investigation. Sgt. Munter administered several standard field sobriety tests, ultimately arresting Marcial and citing him for driving under the influence in violation of § 61-8-401, MCA. Marcial was not issued any other traffic citations. ¶6 Marcial filed a motion to suppress the evidence from the stop, arguing that the community caretaker doctrine was not applicable and Sgt. Munter did not have the requisite particularized suspicion to make a traffic stop. A suppression hearing was held in Bozeman Municipal Court on November 1, 2010, with Judge Karl Seel presiding. At the hearing, Sgt. Munter said he thought Marcial “might have collided with the fire hydrant,” but that he had no intent to make a traffic stop. Sgt. Munter testified that his primary concern was to “check his welfare” after seeing Marcial make the abrupt turn and sudden stop, and after observing the nearby fire hydrant. On cross examination, Sgt. Munter confirmed that he did not cite Marcial for any other traffic offense and stated “my initial contact was merely for welfare and to ascertain if there was a crash.” Sgt. Munter added, “a lot of times when cars hit fire hydrants there is enough damage to report a crash.” Sgt. Munter explained that while he was walking up to Marcial’s vehicle, he said he didn’t “see any damage on the fire hydrant” adding “those things are pretty hearty. 4 So, you want to check the vehicle, and it was a low enough vehicle, like I said, once I made sure he was okay, I could look up and see that there didn’t appear to be any damage on the front of the car.” ¶7 Judge Seel ruled from the bench, denying Marcial’s motion to suppress. The Municipal Court orally found that the “officer turned around believing there may have been an accident,” “there was a fire hydrant close to that,” “the vehicle was already off the roadway at that point,” and “the officer turned around . . . to see if there had been an accident to bring it within the caretaking doctrine.” The Municipal Court found further that Sgt. Munter’s “first statements to the defendant were asking if he was ‘okay’ and he got an affirmative response that he was.” The Municipal Court concluded that Sgt. Munter could have made “a pretty good determination” that there had not been a collision, but he “could not know with certainty until he had . . . a good look and some conversation with defendant as to whether he had been injured because it was an abrupt stop.” Denying Marcial’s motion to suppress, the Municipal Court stated, “the caretaker doctrine started the stop and it ripened into a proper DUI investigation.” On November 24, 2010, Marcial pled guilty to the amended charge of DUI per se subject to a plea agreement, reserving his right to appeal the denial of his motion to suppress. ¶8 Marcial appealed to the Eighteenth Judicial District Court. Judge Holly Brown reviewed the Municipal Court’s decision and affirmed the denial of Marcial’s motion to suppress. The District Court’s Order stated: Sgt. Munter personally observed erratic driving behavior that caused him concern, both of a potential accident with property damage, and of a 5 possible welfare issue with the driver. Sgt. Munter was well within the parameters under State v. Lovegren to have “objective, specific and articulable facts from which an experienced officer would suspect that a citizen is in need of help.” [State v. Lovegren, 2002 MT 153, ¶ 25, 310 Mont. 358, 51 P.3d 471.] Upon contact with Defendant, the objective observations made by Sgt. Munter supported the shift to an investigation to determine if Defendant was operating a motor vehicle while under the influence of alcohol. The Order continued: “[t]he contact shifted to an investigation of DUI only after additional information became available to Sgt. Munter which shifted the focus from the welfare of Defendant to an investigation of Defendant.” ¶9 Marcial appeals the District Court’s denial of his motion to suppress. STANDARD OF REVIEW ¶10 We review a district court’s rulings on a motion to suppress to determine whether the court’s findings of fact are clearly erroneous and whether the court’s interpretation and application of the law are correct. State v. Spaulding, 2011 MT 204, ¶ 13, 361 Mont. 445, 259 P.3d 793; State v. Seaman, 2005 MT 307, ¶ 10, 329 Mont. 429, 124 P.3d 1137. “We review cases that originate in justice court and are appealed to district court ‘as if the appeal originally had been filed in this Court.’” State v. Gai, 2012 MT 235, ¶ 11, 366 Mont. 408, 288 P.3d 164 (citing State v. Ellison, 2012 MT 50, ¶ 8, 364 Mont. 276, 272 P.3d 646). “We examine the record independently of the district court’s decision” to review the trial court’s findings, conclusions, and ruling. Ellison, ¶ 8. “We will affirm the district court when it reaches the right result, even if it reaches the right result for the wrong reason.” Ellison, ¶ 8. 6 DISCUSSION ¶11 Whether the District Court erred by affirming the Municipal Court’s denial of Marcial’s motion to suppress based on the Community Caretaker Doctrine? ¶12 We adopted the community caretaker doctrine in State v. Lovegren, 2002 MT 153, 310 Mont. 358, 51 P.3d 471. We quoted Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528 (1973), in which the United States Supreme Court stated: Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Lovegren, ¶ 17. After conducting an extensive review of the authority governing the community caretaker function and the approaches used in other jurisdictions, we adopted the following test: First, as long as there are objective, specific and articulable facts from which an experienced officer would suspect that a citizen is in need of help or is in peril, then that officer has the right to stop and investigate. Second, if the citizen is in need of aid, then the officer may take appropriate action to render assistance or mitigate the peril. Third, once, however, the officer is assured that the citizen is not in peril or is no longer in need of assistance or that the peril has been mitigated, then any actions beyond that constitute a seizure implicating not only the protections provided by the Fourth Amendment, but more importantly, those greater guarantees afforded under Article II, Sections 10 and 11 of the Montana Constitution as interpreted in this Court’s decisions. Lovegren, ¶ 25. ¶13 The community caretaker doctrine encapsulates certain police-citizen encounters that are “unrelated to the detection and investigation of crime.” Seaman, ¶ 15; see also Lovegren, ¶ 16; State v. Graham, 2007 MT 358, ¶ 25, 340 Mont. 366, 175 P.3d 885; 7 Spaulding, ¶ 18. Community caretaker functions exercised by police officers may include “assisting motorists who are stranded, involved in accidents, or otherwise in need of assistance.” Seaman, ¶ 15 (citing Lovegren, ¶ 17). We have explained that “the community caretaker doctrine cannot be used as a pretext for an illegal search and seizure,” Spaulding, ¶ 24 (citing Lovegren, ¶ 23), and the stop must actually involve a “welfare” check. Compare i.e. Seaman, ¶ 23 (officer conducted a “welfare” check to determine whether Seaman’s car was disabled or if Seaman was experiencing medical or physical problems), with Graham, ¶ 30 (officer “did not stop and question Graham in order to assist them, but instead to ‘move them along.’”). Providing assistance to a motorist in peril or helping a person in need of aid is commonly viewed as an affirmative duty of a police officer. Seaman, ¶ 15; Lovegren, ¶ 26. ¶14 The doctrine recognizes that not all contact between law enforcement officers and citizens involves a “seizure” implicating the Fourth Amendment. Seaman, ¶ 13 (citing Lovegren, ¶ 13); Graham, ¶ 26. Although we stated in Spaulding that “[i]n the usual case, a welfare check by its very nature necessarily involves a brief seizure—but a seizure nonetheless—in order for the officer to ascertain whether the citizen needs assistance or is in peril,” we nonetheless recognized that “[t]here may be fact-specific situations in which a welfare check does not involve a seizure.” Spaulding, ¶¶ 18, 19. “Each community caretaker case turns on its discrete facts.” Spaulding, ¶ 29. ¶15 It is our observation that the caretaker doctrine is increasingly being offered by the State as an alternate justification for police contact in addition to particularized suspicion 8 of criminal activity. We underscore the doctrine’s intended application to situations where a citizen “is in need of help or is in peril,” thus authorizing an officer “to render assistance or mitigate the peril,” Lovegren, ¶ 25, in cases “unrelated to the detection and investigation of crime.” Seaman, ¶ 15. A caretaker inquiry should not typically require a seizure. This caretaker premise is important, given Montana’s express right to privacy and protection against unreasonable searches and seizures. Mont. Const. art. II, §§ 10, 11. As one commentator cautions, “[t]he restraint of a person’s liberty under the public servant exception cannot exceed the purpose of that exception—to determine if aid is necessary. The officer cannot constitutionally take any action that extends beyond the public servant role without another justification.” Mary Elisabeth Naumann, The Community Caretaker Doctrine: Yet Another Fourth Amendment Exception, 26 Am. J. Crim. L. 325, 341 (Spring 1999). ¶16 Marcial and the State both advance arguments urging us to modify the test we adopted in Lovegren. Marcial argues that a community caretaker check, like an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), is a seizure that is constitutionally permissible only if the officer can identify objective, specific, and articulable facts justifying a warrantless intrusion throughout the entire course of the procedure. In contrast, the State argues that “[w]elfare checks are not by their very nature seizures” and “if a defendant can show he was seized—for whatever reason—the State may nonetheless demonstrate the seizure was reasonable under the Fourth Amendment pursuant to the community caretaker doctrine if it can show objective, 9 specific and articulable facts existed from which an experienced officer would have suspected a citizen was in need of help or was in peril.”1 We reject these entreaties to modify the Lovegren test. Rather, its application must be limited to proper cases. ¶17 Police officers are “vested by law with a duty to maintain public order and make arrests for offenses while acting within the scope of the person’s authority.” Section 46- 1-202(17), MCA. Law enforcement officers have an affirmative statutory duty to investigate motor vehicle accidents pursuant to § 61-7-109(3), MCA, which reads: A law enforcement officer who in the regular course of duty investigates a motor vehicle accident in which a person is killed or injured or in which damage to the property of a person exceeds $1,000, either at the time of and at the scene of the accident or after the accident by interviewing participants or witnesses, shall within 10 days after completing the investigation forward a written report of the accident to the department. Section 61-7-109(3), MCA (emphasis added). There is no requirement that police officers wait until an accident is reported to determine whether an incident they have observed first-hand requires an accident investigation. Further, officers have authority to investigate and cite motorists for traffic code violations. ¶18 “To have particularized suspicion for an investigative stop, the peace officer must be possessed of (1) objective data and articulable facts from which he or she can make certain reasonable inferences and (2) a resulting suspicion that the person to be stopped has committed, is committing, or is about to commit an offense.” State v. Wagner, 2013 MT 159, ¶ 10, 370 Mont. 381, 303 P.3d 285. We conclude that Sgt. Munter’s testimony 1 We refined the “experienced officer” consideration of the particularized suspicion inquiry in Brown v. State, 2009 MT 64, ¶¶ 19, 20, 349 Mont. 408, 203 P.3d 842. 10 demonstrates that he had a particularized suspicion upon objective, articulable facts that Marcial had been involved in a property damage accident that would require an accident investigation and possible citation of Marcial under the traffic code. See Wagner, ¶ 16 (vehicle straddling two lanes for 500-600 feet was particularized suspicion for violation of § 61-8-328(1), MCA, which requires motorists to operate a vehicle “as nearly as practicable entirely within a single lane.”); Brown v. State, 2009 MT 64, ¶ 23, 349 Mont. 408, 203 P.3d 842 (a “barely moving” vehicle along a public roadway at 2:51 a.m. suddenly pulling over, coming to a stop, and shutting off its lights constituted particularized suspicion of DUI); State v. Luckett, 2007 MT 47, ¶ 11, 336 Mont. 140, 152 P.3d 1279 (slow driving and weaving was particularized suspicion of careless driving or DUI); State v. Brander, 2004 MT 150, ¶ 9, 321 Mont. 484, 92 P.3d 1173 (vehicle going 35 mph in a 70 mph zone, weaving, and crossing fog line was particularized suspicion of careless driving and DUI). Sgt. Munter witnessed Marcial’s vehicle make an unexpected hard left turn into an area with no cross streets, drive up on the sidewalk and onto the grass, and come to an abrupt stop nearly perpendicular to the street at 1:15 a.m. Sgt. Munter then observed a fire hydrant that was in a position indicating it could have been hit by Marcial’s vehicle, thus explaining the abrupt stop. His subjective feelings notwithstanding, Sgt. Munter’s observation of objective data and facts gave rise to a particularized suspicion to approach Marcial’s vehicle to inquire and investigate whether an accident requiring further police investigation and citation had occurred. 11 ¶19 After making contact with Marcial, Sgt. Munter observed definite signs of intoxication, giving him particularized suspicion to expand the investigation into a possible DUI, ultimately leading, after Marcial failed several standard field sobriety tests, to Marcial’s arrest for DUI. This escalation of events leading to Marcial’s arrest is appropriate under our decision in Hulse v. DOJ, Motor Vehicle Dev., 1998 MT 108, 289 Mont. 1, 961 P.2d 75. See also i.e. State v. Larson, 2010 MT 236, ¶ 25, 358 Mont. 156, 243 P.3d 1130; Brander, ¶ 8. ¶20 The District Court did not err by denying Marcial’s motion to suppress. Though the District Court based its reasoning on the community caretaker doctrine, the motion was appropriately denied on the ground that there was particularized suspicion for the stop. “We will affirm the district court when it reaches the right result, even if it reaches the right result for the wrong reason.” Ellison, ¶ 8. ¶21 Affirmed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ LAURIE McKINNON | August 27, 2013 |
e55c5857-3538-4669-91ef-99f74b6c80f4 | Mocko v. State | 2013 MT 218N | DA 12-0572 | Montana | Montana Supreme Court | DA 12-0572 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 218N STEPHEN R. MOCKO, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DV 12-20 Honorable James B. Wheelis, Presiding Judge COUNSEL OF RECORD: For Appellant: Stephen R. Mocko, self-represented; Eureka, Montana For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant Attorney General; Helena, Montana Bernard G. Cassidy, Lincoln County Attorney; Libby, Montana Submitted on Briefs: July 17, 2013 Decided: August 6, 2013 Filed: __________________________________________ Clerk August 6 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Stephen Mocko appeals the Nineteenth Judicial District Court’s August 27, 2012 denial of his motion to amend his petition for postconviction relief. Mocko argues that the Lincoln County Justice Court lacked jurisdiction over the criminal case against him, that the criminal court failed to establish a factual basis for his guilty plea, and that he received ineffective assistance of counsel during the criminal proceedings. He argues that the District Court abused its discretion when it summarily denied his petition and refused to allow him to amend it. We affirm. ¶3 In October 2009, Mocko was charged in Lincoln County Justice Court with misdemeanor Driving Under the Influence of Alcohol, second offense. The citation, written by a Lincoln County Sheriff’s Deputy, indicates that Mocko had a broken taillight and was swerving on “Hwy 37 – River Dr.” Mocko eventually entered into a written plea agreement with the State, pursuant to which he agreed to plead nolo contendere to Reckless Driving in exchange for the State’s dismissal of the DUI charge. Mocko was represented by counsel at the time the plea agreement was signed, though he also 3 appeared pro se at times during the pendency of the case. While he had filed several pretrial motions, Mocko did not reserve his right to appeal any of the Justice Court’s adverse rulings. His written plea agreement stated his acknowledgment that “there is a factual basis to believe that I am guilty of each offense, and that the violations occurred within Lincoln County.” In addition, the plea agreement expressly waived “the right to object to and move for the suppression of any evidence that may have been obtained in violation of the law or constitution.” ¶4 On February 2, 2011, as agreed, Mocko entered his nolo contendere plea to Reckless Driving and the State moved to dismiss the DUI charge. The court imposed judgment the same day; in accordance with the plea agreement, it sentenced Mocko to ninety days in the county detention facility, all of which was suspended, fined him $300 plus surcharges, and ordered Mocko to complete a chemical dependency assessment. No appeal was taken. ¶5 On February 2, 2012, Mocko filed a petition for postconviction relief, along with a seventy-page supporting memorandum and a motion to vacate the judgment. Mocko claimed that the Justice Court lacked jurisdiction to adjudicate the charge against him because the charging instrument was invalid and the State never filed a new document charging him with Reckless Driving; that the Justice of the Peace acted outside her jurisdiction by failing to disqualify herself after Mocko filed an affidavit of prejudice; that the State violated his constitutional rights by failing to provide him with evidence in its possession; that there was insufficient colloquy at the change of plea hearing to 4 establish a factual basis for the charge of Reckless Driving; and that Mocko was denied effective assistance of counsel. The District Court denied Mocko’s original petition on April 2, 2012, without a hearing. His subsequent motion to alter or amend was deemed denied. ¶6 Mocko sought leave to amend his petition to raise another claim of ineffective assistance on the ground that his counsel failed to inform him that the plea agreement could reserve the right to appeal the pretrial rulings against him. The District Court denied the motion, ruling it untimely and without merit. Mocko’s appeal reiterates the claims raised in his original petition and argues that the District Court abused its discretion by denying him leave to amend. ¶7 We review a district court’s denial of a petition for postconviction relief to determine whether its findings of fact are clearly erroneous and whether its legal conclusions are correct. Rukes v. State, 2013 MT 56, ¶ 8, 369 Mont. 215, 297 P.3d 1195. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Rogers v. State, 2011 MT 105, ¶ 15, 360 Mont. 334, 253 P.3d 889 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052 (1984)). In the context of a claim of a plea of guilty, the petitioner “must establish prejudice by showing ‘there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’” Hardin v. State, 2006 MT 272, ¶ 18, 334 Mont. 204, 146 P.3d 746 (citations omitted). A court’s determination of its jurisdiction is a 5 conclusion of law that this Court reviews to determine whether the interpretation of law is correct. City of Dillon v. Warner, 2012 MT 17, ¶ 5, 363 Mont. 383, 272 P.3d 41. ¶8 The record demonstrates that the Justice Court had jurisdiction. The original citation was adequate to confer jurisdiction on the court and to “reasonably apprise the accused of the charges against him, so that he may have the opportunity to prepare and present his defense.” State v. Wilson, 2007 MT 327, ¶ 19, 340 Mont. 191, 172 P.3d 1264 (citation omitted); § 46-11-401, MCA. Mocko thereafter agreed that the facts would show the offense occurred in Lincoln County. Once the parties entered into a formal plea agreement, the court had authority to accept the plea agreement and to impose sentence on the Reckless Driving offense. See § 46-12-211, MCA. Having entered a plea of nolo contendere, Mocko waived all non-jurisdictional defects or defenses, including claims of constitutional violations that occurred before the plea. Ellenburg v. Chase, 2004 MT 66, ¶ 21, 320 Mont. 315, 87 P.3d 473. Mocko’s filings demonstrate that he had raised many of his concerns prior to the entry of his plea. In response to one filing, the Justice Court advised him that his remedy if he disagreed with its rulings was to conclude the case in that court and, if convicted, to appeal for a trial de novo in District Court. Mocko elected to plead instead. ¶9 Finally, Mocko has not demonstrated error in the District Court’s denial of his motion to amend his petition for postconviction relief. Mocko argues that the postconviction court improperly ruled his motion untimely because the court failed, in violation of the postconviction statutes, to set a deadline for amendment of the petition. 6 On the merits, he claims that his counsel was ineffective by failing to advise him that he could reserve his right to appeal the court’s unfavorable pretrial rulings and states that he only recently became aware that this possibility existed. Thus, he argues that he should have been allowed to amend his petition to prove his claim of ineffective assistance. As the District Court observed, however, even if Mocko could demonstrate that the State would have agreed to, and the court would have approved, the reservation of issues for appeal, he has not shown prejudice as required by Strickland. Mocko’s motion to amend stated that but for counsel’s failure to inform him of the opportunity, Mocko “would have reserved these issues.” He has not shown that he would have insisted on going to trial. Moreover, he has not established a likelihood that those claims would have succeeded on appeal. The District Court aptly noted that Mocko could not demonstrate how he was prejudiced by his lawyer’s success in getting a second offense DUI charge dismissed in exchange for a plea to Reckless Driving. Mocko’s plea agreement indicates he fully understood the benefit of his bargain when he entered his plea. ¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. Mocko entered a knowing and voluntary plea in exchange for a substantial benefit. He has not met his burden on appeal to demonstrate error in the District Court’s conclusion that his challenges have been waived or lack merit. The District Court correctly applied the law and did not abuse its discretion in denying Mocko’s petition for postconviction relief and motion to amend. 7 ¶11 Affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ JIM RICE /S/ LAURIE McKINNON /S/ BRIAN MORRIS | August 6, 2013 |
4fcec435-965a-4428-8eac-f1c82aaf0301 | Earl v. Pavex | 2013 MT 343 | DA 12-0466 | Montana | Montana Supreme Court | DA 12-0466 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 343 JAMES EARL and RACHEL E. EARL, Plaintiffs, Appellees, & Cross-Appellants, v. PAVEX, CORP., an Arizona corporation licensed to do business in Montana, Defendant, Appellant, & Cross-Appellee. APPEAL FROM: District Court of the Sixteenth Judicial District, In and For the County of Rosebud, Cause No. DV 08-66 Honorable Joe L. Hegel, Presiding Judge COUNSEL OF RECORD: For Appellant: Gerry P. Fagan, Brandon JT Hoskins, Moulton Bellingham PC, Billings, Montana For Appellees: Steven W. Jennings, Crowley Fleck PLLP, Billings, Montana Submitted on Briefs: May 15, 2013 Decided: November 12, 2013 Filed: __________________________________________ Clerk November 12 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 James and Rachel Earl commenced this action against Pavex Corporation in the Sixteenth Judicial District Court, Rosebud County. The Earls sought declaratory rulings concerning two overlapping easements—one 100 feet in width, the other 30 feet in width—that burden the Earls’ land for the benefit of Pavex’s land. The Earls conceded the 30-foot-wide easement but disputed the 100-foot-wide easement. They asserted that the latter easement is unenforceable because it does not appear in the chain of title to the Earls’ property. In the alternative, even if the 100-foot-wide easement is valid, the Earls alleged that they are not required to remove structures and cropland that encroach upon the 30-foot-wide and 100-foot-wide easements. ¶2 The District Court concluded that the 100-foot-wide easement does not burden the Earls’ property and, thus, granted summary judgment to the Earls on this issue. The court further concluded that the Earls may be required to remove structures and cropland from the easements—the 30-foot-wide easement, as well as the 100-foot-wide easement if this Court found the latter easement valid—to the extent necessary to effectuate the purposes of the easements. The court thus granted summary judgment to Pavex on this issue. ¶3 Pavex now appeals from the District Court’s ruling that the 100-foot-wide easement does not burden the Earls’ property, and the Earls cross-appeal from the court’s ruling that encroachments may need to be removed. We address two issues: (1) whether Pavex’s 100-foot-wide easement was extinguished by failure to properly record it, and (2) whether encroachments need to be removed from Pavex’s easements. We reverse as to Issue 1, affirm as to Issue 2, and remand for further proceedings as specified below. 3 BACKGROUND ¶4 The two parcels of land at issue in this case were previously held by Edward, Mattie, Robert, Mary, Benjamin, and Kathyrn Keim as a single 390.841-acre tract designated “Tract 1” on Certificate of Survey No. 85486, which is shown here:1 ¶5 There is a 30-foot-wide easement over Tract 1 beginning at Rosebud County Road #S-447 and running in easterly and northerly directions, as shown by the dashed line on the diagram above. It appears from documents in the record that one of the Keims’ 1 The diagrams contained in this Opinion are part of the record in this case, with some labeling added for clarity. Tract 1 COS 85486 Tract 1 COS 85486 Tract 1 COS 85486 Rosebud County Road #S-447 Rosebud County Road #S-447 30-foot-wide easement 30-foot-wide easement 30-foot-wide easement 30-foot-wide easement 4 predecessors in interest (Tongue River Farms, LLC) granted this easement in 1999 for purposes of ingress, egress, and utilities to land north and west of Tract 1. As noted, there is no dispute concerning the validity of this easement, although there is a dispute concerning the need for the Earls to remove encroachments from it. ¶6 In 2006, the Keims executed Amended Certificate of Survey No. 85486/99927, which divided Tract 1 into a 275.940-acre parcel designated Tract 1A and a 52.828-acre parcel designated Tract 2A. (It appears the southernmost 62.073 acres of original Tract 1 had already been severed.) Amended Certificate of Survey No. 85486/99927 shows the same 30-foot-wide easement over what is now Tract 2A and Tract 1A. Tract 1A Tract 1A Tract 2A 30-foot-wide easement 30-foot-wide easement 30-foot-wide easement 30-foot-wide easement Rosebud County Road #S-447 5 ¶7 The Keims filed Amended Certificate of Survey No. 85486/99927 with the Rosebud County Clerk and Recorder on August 16, 2006. Nine days later, on August 25, the Keims conveyed Tract 1A to Pavex by a warranty deed which referenced Amended Certificate of Survey No. 85486/99927. The Keims retained Tract 2A. In the deed, the Keims granted Pavex a 100-foot-wide easement over Tract 2A, described as follows: together with a non-exclusive, perpetual easement, 100 feet in width, running with the land, for ingress and egress, and for the installation, maintenance, repair and replacement of utilities, from the Tongue River Road to the aforesaid Tract 1A of COS 99927 along, over and beneath an existing roadway on the southerly boundary of [Tract 2A] . . . . ¶8 It appears from the foregoing description that the 100-foot-wide easement follows the same course as the existing 30-foot-wide easement. Pavex’s owner, Siamak Samsam, filed an affidavit in the present lawsuit stating that he insisted on the 100-foot-wide easement over Tract 2A when he purchased Tract 1A. He explained that the extra width is necessary to enable the passage of farm equipment and semi-trucks and trailers and that the 30-foot-wide easement, in its existing configuration, is insufficient for this purpose. ¶9 The Keims-Pavex warranty deed was filed with the Rosebud County Clerk and Recorder on September 15, 2006. Seven months later, in April 2007, the Keims entered into a contract for deed for the sale of Tract 2A to the Earls. The contract for deed refers to Amended Certificate of Survey No. 85486/99927 but makes no mention of the 100-foot-wide easement granted in the Keims-Pavex warranty deed. ¶10 The Earls assert that when they purchased Tract 2A, they had knowledge of the 30-foot-wide easement but were unaware of the 100-foot-wide easement. The Earls state that they became aware of the latter easement in April 2008 when James Earl stopped a 6 motorist who was using the roadway over Tract 2A in order to reach Tract 1A. When James asked the motorist what he was doing, the motorist (an associate of Pavex) replied that Pavex holds a 100-foot-wide easement over the southern portion of Tract 2A and that the Earls would need to remove their encroachments from this easement. ¶11 Following this encounter, the Earls contacted Pavex’s title company and inquired about the alleged easement. The title company sent the Earls a copy of the deed in which the Keims had granted Pavex the 100-foot-wide easement. The Earls then contacted their own title company. They asserted that their title company had “missed” the Keims-Pavex deed in the title search and demanded that the title company “fight to get this easement off our land.” ¶12 The instant action was filed on July 1, 2008, seeking to invalidate Pavex’s claimed 100-foot-wide easement or, in the alternative, to obtain a ruling that the Earls are not required to remove their structures and cropland from Pavex’s easement(s). The parties filed cross-motions for summary judgment on both issues. The proceedings were stayed for approximately 20 months while the parties attempted to settle the dispute; however, when such efforts proved unsuccessful, the District Court proceeded to issue its rulings from which the parties now appeal and cross-appeal. The District Court’s reasoning will be discussed below. STANDARD OF REVIEW ¶13 We review a district court’s ruling on a motion for summary judgment de novo, applying the criteria set forth in M. R. Civ. P. 56. Gordon v. Kuzara, 2012 MT 206, ¶ 13, 366 Mont. 243, 286 P.3d 895. Summary judgment “should be rendered if the pleadings, 7 the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3). At the summary judgment stage, the court does not make findings of fact, weigh the evidence, choose one disputed fact over another, or assess the credibility of witnesses. Rather, the court examines the pleadings, the discovery and disclosure materials on file, and any affidavits to determine whether there is a genuine issue as to any material fact relating to the legal issues raised and, if there is not, whether the moving party is entitled to judgment as a matter of law on the undisputed facts. Andersen v. Schenk, 2009 MT 399, ¶ 2, 353 Mont. 424, 220 P.3d 675. DISCUSSION ¶14 Issue 1. Whether Pavex’s 100-foot-wide easement was extinguished by failure to properly record it. ¶15 As discussed, the Keims held Tract 1A and Tract 2A in common ownership. In August 2006, they sold Tract 1A to Pavex and retained Tract 2A for themselves. In the deed, the Keims granted Pavex an easement 100 feet in width over Tract 2A for the benefit of Tract 1A. There is no dispute that this was an enforceable easement as between the Keims and Pavex. ¶16 The problem arose eight months later when the Keims sold Tract 2A to the Earls, without any mention of Pavex’s 100-foot-wide easement in the Keims-Earls deed. This not uncommon situation has been described in a leading treatise as follows: A landowner may convey Blackacre and grant therewith an easement, such as a right of way over his adjoining lot, Whiteacre, to which he retains title; or he may agree not to use Whiteacre in a certain way or for certain purposes. In either case, he has created a servitude which is an 8 encumbrance against Whiteacre. Is a subsequent purchaser of the latter, who has no actual notice of the easement or restriction, bound by the record of the deed of Blackacre?[2] American Law of Property vol. 4, § 17.24, 601-02 (Little, Brown & Co. 1952). ¶17 Whether a subsequent purchaser of the servient estate is bound by the servitude depends on the recording statutes and the required scope of the title search. Laws governing the recording of instruments of conveyance are in force in all the states. Joyce Palomar, Patton and Palomar on Land Titles vol. 1, § 4, 14 (3d ed., West 2003); see generally Title 70, chapter 21, MCA. These laws generally serve three purposes: to secure prompt recordation of all conveyances by according priority of right to the purchaser who is first to record her conveyance; to protect subsequent purchasers against unknown conveyances and agreements regarding the land; and to preserve an accessible history of each title so that anyone needing the information may reliably ascertain in whom the title is vested and any encumbrances against it. Palomar, Patton and Palomar on Land Titles § 4, 14; see also Blazer v. Wall, 2008 MT 145, ¶ 73, 343 Mont. 173, 183 P.3d 84 (a central depository of instruments affecting title to real property “enables a prospective purchaser to determine what kind of title he or she is obtaining without having to search beyond public records”); Erler v. Creative Fin. & Invs., 2009 MT 36, ¶ 21, 349 Mont. 207, 203 P.3d 744 (the recording system “imparts constructive notice to subsequent purchasers that there exists another interest in the property”). 2 There is some disagreement between the Earls and Pavex about whether the Earls had “actual notice” of the 100-foot-wide easement in April 2007 when they executed the contract for deed. As discussed below, such notice (if it existed) would preclude the Earls from disputing the easement’s validity. However, we need not consider the issue of actual notice because we conclude, for the reasons which follow, that the Earls had constructive notice of the easement. 9 ¶18 To effectuate these purposes, the recording acts provide that certain instruments are ineffective or void as to certain parties unless the instruments are duly recorded. Palomar, Patton and Palomar on Land Titles § 5, 24-25. Of relevance here, when multiple purchasers hold conflicting interests in a given property, the recording acts will accord priority of right based on one of three approaches. Under the “race” recording system, the purchaser who records first has priority of right. Thus, to preserve her rights, an earlier purchaser must record her conveyance before a later purchaser records his conflicting conveyance, and this is true even if the later purchaser has knowledge of the prior conveyance. Palomar, Patton and Palomar on Land Titles §§ 6, 7, at 27-30, 33. This has been termed a “race to the courthouse” system of recordation. Wede v. Niche Mktg. USA, LLC, 52 So. 3d 60, 63 n. 6 (La. 2010). Under the “notice” recording system, in contrast, a subsequent purchaser with actual notice of a prior unrecorded conveyance cannot claim priority over the prior purchaser. However, a subsequent purchaser without actual notice of a prior conveyance has priority over an earlier purchaser who fails to record her conveyance before the later purchase occurs. Palomar, Patton and Palomar on Land Titles § 7, 31-34. Lastly, under the “race-notice” recording system, a subsequent purchaser has priority over an earlier purchaser if the subsequent purchaser (1) lacks notice of the prior conveyance and (2) records his conveyance before the prior conveyance is recorded. Palomar, Patton and Palomar on Land Titles § 8, 35-39. About one-third of the states—including Montana—have a race-notice recording system. See Palomar, Patton and Palomar on Land Titles § 8, 36-37 & n. 8; §§ 70-20-303, 70-21-304, MCA; Hastings v. Wise, 91 Mont. 430, 435-36, 8 P.2d 636, 638-39 (1932). 10 ¶19 The significance of the recording acts in the present case is that the failure to duly record an express easement may result in the easement’s termination—which is what the District Court essentially determined had occurred to Pavex’s 100-foot-wide easement. In a state with a notice recording system, an unrecorded express easement is extinguished when a bona fide purchaser acquires title to the servient estate without notice of the easement. The same result occurs in a jurisdiction [such as Montana] with a race-notice recording statute if the bona fide purchaser without notice also records the deed to the servient estate before the easement is recorded. Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land § 10:32, 10-90 to 10-92 (Thomson Reuters 2013) (footnotes omitted); accord Restatement (Third) of Property: Servitudes § 7.14 (2000); Herbert T. Tiffany, The Law of Real Property vol. 3, § 828, 397-99 (3d ed. 1939 & Supp. 1998); Richard R. Powell, Powell on Real Property vol. 4, § 34.21[2], 34-197 to 34-198 (LexisNexis Mathew Bender 2013). “In either recording system, an easement holder can preserve the easement simply by recording the easement instrument immediately upon receiving it, thereby imparting constructive notice of the servitude to subsequent purchasers of the servient estate.” Bruce & Ely, The Law of Easements and Licenses in Land § 10:32, 10-92. ¶20 There is no question that the Keims-Pavex deed was recorded in September 2006, seven months before the Earls entered into the contract for deed with the Keims for the purchase of Tract 2A. However, of further significance to this case, it has been held that a prior conveyance is not “of record” unless and until it is recorded in such a way that a subsequent purchaser may find it in a chain-of-title search. See Palomar, Patton and Palomar on Land Titles § 8, 39-40 (citing Keybank N.A. v. NBD Bank, 699 N.E.2d 322 11 (Ind. App. 1st Dist. 1998)). As the court explained in Keybank, [t]he recording of an instrument in its proper book is fundamental to the scheme of providing constructive notice through the records. . . . A person charged with the duty of searching the records of a particular tract of property is not on notice of any adverse claims which do not appear in the chain of title; because, otherwise, the recording statute would prove a snare, instead of a protection[, to subsequent purchasers]. . . . Constructive notice is provided when a deed or mortgage is properly acknowledged and placed on the record as required by statute. However, an otherwise valid instrument which is not entitled to be recorded, improperly recorded, or recorded out of the chain of title does not operate as constructive notice, although binding upon persons having actual notice. 699 N.E.2d at 327 (citations and paragraph break omitted). ¶21 At this point, it is necessary to briefly explain the indexing system. Traditionally, jurisdictions have used one of two methods of index preparation: tract indices or grantor/grantee name indices. Palomar, Patton and Palomar on Land Titles § 67, 223. Montana uses a grantor/grantee indexing system. As each instrument is received by the county clerk, the name of the grantor is placed alphabetically on the appropriate page of the grantor index, followed by the name of the other party to the document, the book and page of the record, description of the property, dates, etc. At the same time, there is entered alphabetically in a separate grantee index the name of the grantee, with identical information about the document. Palomar, Patton and Palomar on Land Titles § 67, 225; §§ 7-4-2613, -2617, -2619, -2620, MCA. These alphabetical indices make it possible to run a chain of title, either forward or backward, from any known owner: A searcher may begin with the name of the present owner and work backward under the proper letter of the grantee index until finding the name of that party as grantee in a deed for the land involved. The data regarding the deed is copied from the index and the process repeated as to the grantor in that deed, thus finding the earlier deed in which he was grantee, and so 12 on back for a certain number of years or back to the original grant from a sovereignty. In order to ascertain mortgages and other encumbrances, the grantor indices must then be run forward as to each name for the period that said party owned the premises. Another method of search is to run the grantor indices, running the name of an early owner until the deed from him is found, then running the name of party to whom he conveyed and so on down to the date of search, noting en route the encumbrance given by the respective owners. Palomar, Patton and Palomar on Land Titles § 67, 225-26 (footnotes omitted). ¶22 The crux of the issue in this case is whether Pavex’s 100-foot-wide easement was recorded in such a way that the Earls should have found it in a chain-of-title search. “There are two lines of authority on the question whether a servitude created by a common grantor in the deed to the benefited parcel is in the chain of title of the burdened lot.” Restatement (Third) of Property: Servitudes § 7.14, Reporter’s Note: Chain of Title; see also Palomar, Patton and Palomar on Land Titles § 72, 240; American Law of Property § 17.24, 602; Tiffany, The Law of Real Property vol. 5, § 1266, 23-25. According to the Restatement, “[t]he majority view is that the chain of title includes all servitudes created by the common grantor prior to parting with title to the parcel in question.” Restatement (Third) of Property: Servitudes § 7.14, cmt. b. Under this approach, a prospective purchaser is on constructive notice not only of conveyances to the prior owners of the parcel, but also of conveyances from the prior owners of the parcel during each of their respective periods of ownership. Pavex advocates for this broad chain-of-title concept. Conversely, “the minority view restricts the required title search to conveyances of the parcel in question.” Restatement (Third) of Property: Servitudes § 7.14, cmt. b. The Earls advocate for this narrow chain-of-title concept. 13 ¶23 New York applies the narrow approach; hence, an owner of land is bound by encumbrances (of which he does not have actual notice at the time of his purchase) only if the encumbrances “appear in some deed of record in the conveyance to himself or his direct predecessors in title.” Buffalo Acad. of the Sacred Heart v. Boehm Bros., Inc., 196 N.E. 42, 45 (N.Y. 1935) (emphasis added); accord Witter v. Taggart, 577 N.E.2d 338, 340-42 (N.Y. 1991); Simone v. Heidelberg, 877 N.E.2d 1288, 1290 (N.Y. 2007). In explaining the rationale underlying this approach, the Witter court reasoned that [t]o impute legal notice for failing to search each chain of title or “deed out” from a common grantor would seem to negative the beneficent purposes of the recording acts and would place too great a burden on prospective purchasers. Therefore, purchasers . . . should not be penalized for failing to search every chain of title branching out from a common grantor’s roots in order to unearth potential [encumbrances]. They are legally bound to search only within their own tree trunk line and are bound by constructive or inquiry notice only of [encumbrances] which appear in deeds or other instruments of conveyance in that primary stem. 577 N.E.2d at 341 (citation and some internal quotation marks omitted). The court opined that the dominant landowner or the common grantor could safeguard against the encumbrance’s extinguishment “by recording in the servient chain the conveyance creating the [encumbrance] so as to impose notice on subsequent purchasers of the servient land.” Witter, 577 N.E.2d at 341. Other cases adopting a similar view include Hancock v. Gumm, 107 S.E. 872, 877 (Ga. 1921), Glorieux v. Lighthipe, 96 A. 94, 95-96 (N.J. 1915), and Spring Lakes, Ltd. v. O.F.M. Co., 467 N.E.2d 537, 539-40 (Ohio 1984). ¶24 Pavex cites Dukes v. Link, 315 S.W.3d 712 (Ky. App. 2010), in support of the broad chain-of-title concept. The Dukes court held that “the recording of the instrument that grants an easement by a common grantor binds a subsequent purchaser of the tract 14 burdened by the easement regardless of whether it is included in the purchaser’s deed.” 315 S.W.3d at 717. The court reasoned that “to hold otherwise would leave the holders of easements subject to the whim of a common grantor who could defeat that interest by conveying the same interest to multiple grantees by omitting the easement from the deeds.” Dukes, 315 S.W.3d at 717. In addition, the court noted that a landowner cannot convey a greater right or estate than he actually possesses, and that the recording statutes protect purchasers against adverse claims of which they “could not have been reasonably aware.” Dukes, 315 S.W.3d at 717. Other cases similarly holding that a purchaser is on notice of recorded encumbrances from a common grantor during the time he held title to the premises in question include Hamilton v. Smith, 208 S.W.2d 425, 427 (Ark. 1948), Szakaly v. Smith, 544 N.E.2d 490, 492 (Ind. 1989), Beins v. Oden, 843 A.2d 147, 151-52 (Md. Spec. App. 2004), Guillette v. Daly Dry Wall, Inc., 325 N.E.2d 572, 574-75 (Mass. 1975), McQuade v. Wilcox, 183 N.W. 771, 773-74 (Mich. 1921), Duxbury-Fox v. Shakhnovich, 989 A.2d 246, 252-53 (N.H. 2009), Cullison v. Hotel Seaside, Inc., 268 P. 758, 760 (Or. 1928), Piper v. Mowris, 351 A.2d 635, 639 (Pa. 1976), and Moore v. Center, 204 A.2d 164, 167 (Vt. 1964). “The rule is based generally upon the principle that a grantee is chargeable with notice of everything affecting his title which could be discovered by an examination of the records of the deeds or other muniments of title of his grantor.” Piper, 351 A.2d at 639 (internal quotation marks omitted). ¶25 We conclude that the broad approach strikes the appropriate balance between the interest of the owner of the dominant property in retaining her easement and the interest of the purchaser of the servient property in ascertaining whether that land is encumbered. 15 The narrow chain-of-title concept creates an unacceptable risk that an otherwise valid and recorded easement will be extinguished through mere failure to mention the easement in a deed conveying the servient property. This result is contrary to the recording system’s purpose of “impart[ing] constructive notice to subsequent purchasers that there exists another interest in the property.” Erler, ¶ 21. The general rule in Montana is that “[e]very conveyance of real property acknowledged or proved and certified and recorded as prescribed by law, from the time it is filed with the county clerk for record, is constructive notice of the contents thereof to subsequent purchasers and mortgagees.” Section 70-21-302(1), MCA; see also § 70-21-301, MCA (defining “conveyance” to embrace “every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged, or encumbered or by which the title to real property may be affected, except wills”). Refusing to impute legal notice of recorded encumbrances given by a landowner while he held title to the servient parcel would negate the broad constructive notice contemplated by these statutes. ¶26 Furthermore, we are not persuaded that it would “negative the beneficent purposes of the recording acts” or “place too great a burden on prospective purchasers,” Witter, 577 N.E.2d at 341, to require that they search for and examine recorded conveyances by prior owners of the premises in question to ascertain whether encumbrances or servitudes were placed on the property. “The practical effect of the [recording] acts is that an intending purchaser of land may, by reference to the record, determine whether his vendor has previously disposed of any interest in the land.” Tiffany, The Law of Real Property vol. 5, § 1262, 14. The intending purchaser may do the same with respect to 16 preceding owners of the land during their respective periods of ownership. Tiffany, The Law of Real Property vol. 5, § 1262, 14-15. The searcher beginning his chain of title uses as a starting point the name of the present owner. By following that name back in the grantee index, the examiner will usually find the grantor from whom he acquired title. Then the name of that party is used in tracing back till the name of the previous owner is ascertained, and the process is repeated till one has traced the chain as far back as practical safety requires, or as far as the records are intelligible to the examiner. . . . Having thus made a skeleton chain of title, it is necessary to run the grantor indices as to each name for the period that each party owned the property. This should furnish confirmation of the skeleton and also provide a list of the recorded encumbrances, junior interests, and clouds. In turn, it may be necessary to “grantor” the names of these donees in order to ascertain assignments and releases. American Law of Property § 18.1, 656-57 n. 3 (emphases added, cross-reference and paragraph breaks omitted). The ability to conduct such searches is made possible by the maintenance of grantor indices and grantee indices in the county clerk offices throughout this State. See §§ 7-4-2613, -2617, -2619, -2620, MCA. Indeed, that is a key function of the two indices. Here, had the Earls properly examined the grantor index for the period during which the Keims owned the land now comprising Tract 2A, they would have found the recorded deed from the Keims to Pavex in which the Keims granted Pavex an easement 100 feet in width over Tract 2A. A purchaser cannot ignore such deeds issued by a common grantor, or fail to search for them, on the theory that the deeds are outside the servient estate’s “chain of title.” To hold otherwise would undermine the broad constructive notice afforded recorded conveyances under the recording statutes. ¶27 At this juncture, it is necessary to address our decision in Nelson v. Barlow, 2008 MT 68, 342 Mont. 93, 179 P.3d 529. The Earls rely on Nelson in support of the narrow 17 chain-of-title concept, and the District Court found Nelson “controlling” in resolving this case. In Nelson, the Cedar Hills Partnership owned lots in the Cedar Hills Subdivision, which bordered Flathead Lake. The Partnership sold Tract 1 to Nelson in 1990. In the deed, which was recorded, the Partnership granted Nelson a “roadway easement as shown on Certificate of Survey No. 4377 for access to Lot 8 of Cedar Hills Subdivision.” The Partnership still owned Lot 8 at the time. In 1996, the Partnership sold several lots, including Lot 8, to Barlow. Barlow’s deed contained no mention of the easement granted in Nelson’s deed. A dispute later arose over the parameters of Nelson’s easement. Nelson claimed that “access to Lot 8” meant that he was entitled to cross Lot 8 to access Flathead Lake, while Barlow claimed that Nelson had access along Cedar Hills Drive up to the northern boundary of Lot 8, but not across Lot 8. Nelson, ¶¶ 3-7, 10-11. ¶28 The case was decided on the pleadings. Nelson, ¶ 9. This Court concluded that “access to Lot 8” was susceptible to two reasonable but conflicting meanings and, as such, was ambiguous. Nelson, ¶¶ 14-15. The Court further concluded, however, that the easement was unenforceable in any event because Nelson had failed to allege in his complaint that the easement appeared in Barlow’s chain of title or that Barlow otherwise had knowledge of the easement. Nelson, ¶ 18. In this regard, the Court cited New York precedent for the proposition that, “ ‘ “[i]n the absence of actual notice before or at the time of . . . purchase or of other exceptional circumstances, an owner of land is only bound by restrictions if they appear in some deed of record in the conveyance to [that owner] or [that owner’s] direct predecessors in title.” ’ ” Nelson, ¶ 16 (brackets and ellipsis in original) (quoting Puchalski v. Wedemeyer, 586 N.Y.S.2d 387, 389 (N.Y. App. 18 Div. 3d Dept. 1992), in turn quoting Witter, 577 N.E.2d at 340); accord Waters v. Blagg, 2008 MT 451, ¶ 7 n. 2, 348 Mont. 48, 202 P.3d 110. ¶29 Based on the foregoing language in Nelson, the Earls argue that “chain of title” includes only deeds of record in the conveyance “to” a landowner or that landowner’s direct predecessors in title (the narrow chain-of-title concept). Thus, because Pavex’s 100-foot-wide easement does not appear in a deed of record “to” the Earls or their direct predecessors in title (the Keims), the Earls assert they are not bound by this easement. The District Court agreed with this reasoning in granting summary judgment to the Earls. ¶30 On appeal, Pavex argues that Nelson is distinguishable from the present case and that we should apply the broad chain-of-title approach here. However, we perceive no principled distinction between this case and Nelson. In Nelson and the present case, the land that would become the dominant parcel and the land that would become the servient parcel were held in common ownership. In both cases, the common grantor sold the dominant parcel and retained the servient parcel. In both cases, the deed for the dominant parcel referred to a certificate of survey that did not give notice of the claimed easement. In both cases, the deed for the dominant parcel contained language granting the claimed easement over the common grantor’s retained property. In both cases, the common grantor subsequently sold the retained property without any mention of the previously granted easement. In both cases, the purchaser of the servient parcel apparently had no actual knowledge of the easement. In both cases, had the purchaser searched the record for encumbrances given by the common grantor during the time he owned the servient land, the purchaser would have discovered the claimed easement. 19 ¶31 Thus, we are faced with either perpetuating the narrow chain-of-title rule that the Court imported from New York in the Nelson case, or overruling Nelson in favor of the broad chain-of-title rule. The Court in Nelson, and again in Waters, gave no reasoning to support its application of the narrow chain-of-title rule. Under the narrow approach, as explained, a prospective purchaser is not required to search the records for servitudes created by her grantor prior to parting with title to the parcel. The purchaser, in other words, is not on constructive notice of recorded encumbrances given by her grantor while he owned the property. She is on constructive notice only of conveyances “to” her grantor, not “from” her grantor. This approach is in direct contradiction of Montana law, which provides that every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged, or encumbered, or by which the title to real property may be affected, “is constructive notice of the contents thereof to subsequent purchasers and mortgagees” from the time it is filed with the county clerk for record. Sections 70-21-301, -302(1), MCA. Having considered the rationales underlying the two chain-of-title concepts and the purposes of the recording statutes, we conclude that the broad chain-of-title rule strikes the appropriate balance between the dominant landowner’s interest and the servient purchaser’s interest and is consistent with the broad constructive notice that recorded conveyances are afforded under § 70-21-302(1), MCA. For these reasons, Nelson and Waters are overruled to the limited extent that these cases support the narrow chain-of-title rule. ¶32 In addition to New York precedent, the Court in Nelson, ¶ 16, also cited three Montana cases as examples of the narrow chain-of-title rule: Rigney v. Swingley, 112 20 Mont. 104, 113 P.2d 344 (1941), Goeres v. Lindey’s, Inc., 190 Mont. 172, 619 P.2d 1194 (1980), and Loomis v. Luraski, 2001 MT 223, 306 Mont. 478, 36 P.3d 862. Upon closer examination, however, we conclude that these cases are not controlling here. ¶33 First, Rigney concerned a mortgage on an automobile. The mortgage had been executed by an individual who was not the automobile’s owner. This Court, therefore, held that the mortgage was not in the automobile’s chain of title. Rigney, 112 Mont. at 106-09, 113 P.2d at 346-47. That is entirely distinguishable from the present case and Nelson, where the servitude was granted by the undisputed owner of the land in question. ¶34 Second, Goeres—which the Earls cite several times in their brief on appeal— involved a covenant that restricted certain subdivision lots to noncommercial use. Although defendant Lindey’s title insurer had found the restriction in its examination of the records, Goeres, 190 Mont. at 174, 619 P.2d at 1195-96, the plaintiffs nevertheless conceded that the restriction was not part of Lindey’s chain of title, Goeres, 190 Mont. at 178, 619 P.2d at 1198. The plaintiffs instead sought enforcement of the restriction on equitable grounds. Goeres, 190 Mont. at 175-76, 619 P.2d at 1196-97. On the particular facts of the case, however, this Court concluded that “[e]quity . . . requires more if this Court is to restrict the use of land by mere implication.” Goeres, 190 Mont. at 179, 619 P.2d at 1198. This holding does not mandate a narrow chain-of-title approach. ¶35 Lastly, Loomis involved a “stranger to the deed” issue. The Kolbs sold a portion of their land to the Luraskis. In the deed, the Kolbs reserved a 30-foot-wide easement over the Luraskis’ parcel, which was depicted on a referenced certificate of survey. The Kolbs included this reservation to provide access to other property, which the Kolbs did 21 not then own, located directly north of the Kolbs’ property. The Kolbs had thought they might purchase the property to the north, but when they realized they were not going to be able to do so, they recorded an amended certificate of survey which did not include the 30-foot-wide easement over the Luraskis’ parcel. Loomis, ¶¶ 6-15. Later, the Loomises came into ownership of a portion of the northern property and sought to establish an easement over the Luraskis’ parcel, for the benefit of the Loomises’ land, based on the reservation in the Kolbs-Luraskis deed. Loomis, ¶¶ 16, 27. Yet, neither the Loomises nor their predecessors had been parties to that deed, which did not pertain to the Loomises’ property and was outside the Loomises’ chain of title. Loomis, ¶ 28. This Court held, therefore, that the Loomises had the burden to show that the Kolbs intended to reserve an easement for the benefit of a stranger to the deed. Loomis, ¶¶ 32-33. And because the Loomises had failed to meet this burden, the Court concluded that they held no easement rights over the Luraskis’ parcel. Loomis, ¶¶ 34-37. This holding does not support a narrow chain-of-title approach; it simply reaffirms settled law that an easement generally cannot be reserved in favor of a stranger to the deed. Loomis, ¶ 31. ¶36 Accordingly, consistent with §§ 70-21-301 and -302(1), MCA, we hold that a prospective purchaser is on constructive notice of recorded servitudes and encumbrances granted by the existing and prior owners of the parcel in question during the respective periods when each owner held title to the parcel. Had the Earls properly searched and examined the grantor index for conveyances by the Keims during their ownership of the land now comprising Tract 2A, the Earls would have discovered Pavex’s 100-foot-wide easement. The Earls purchased Tract 2A prior to our decision in Nelson and cannot claim 22 reliance on Nelson in failing to discover the 100-foot-wide easement. The Earls, thus, were on constructive notice of the easement, and the easement is enforceable against the Earls. To the extent that Nelson v. Barlow and Waters v. Blagg are inconsistent with this conclusion, they are overruled. Correspondingly, the District Court’s grant of summary judgment to the Earls, and denial of summary judgment to Pavex, is reversed as to this issue. ¶37 Issue 2. Whether encroachments need to be removed from Pavex’s easements. ¶38 In August 2006, when the Keims executed the warranty deed conveying Tract 1A to Pavex and granting Pavex a 100-foot-wide easement over Tract 2A, there were several structures located on Tract 2A, including a rental house, a barn, a well house, and animal sheds. Some of these structures are situated partially within the 30-foot-wide easement. At certain points, the structures restrict the easement to 19 feet of clearance. There also is cropland within the 30-foot-wide easement. Likewise, depending on the precise position of the 100-foot-wide easement, the structures and cropland may encroach upon that easement as well. The Earls maintain, however, that they are not required to remove the structures and cropland because (1) Pavex took its easements over Tract 2A subject to open and obvious encroachments that existed at the time of sale and (2) “the owners of Tract 2A (the Earls) have an implied easement within Pavex’s easement for the purpose of using their structures and cropland.” ¶39 The District Court ruled in favor of Pavex on this issue. The court reasoned that the plain language of the documents creating the easements is controlling. The court observed that the easements were granted for ingress and egress and for the installation, 23 maintenance, repair, and replacement of utilities. The court noted that there is no language otherwise limiting the dominant estate’s use of the easements to the fullest extent. The court further reasoned that had the grantors wished to limit the easements to accommodate structures or cropland, “they could have included such restrictions in the document creating the easement. They did not and the Court is not willing to imply or insert that which was not included by the grantor.” Finally, the court rejected the Earls’ claim of an implied easement, noting that an owner of land cannot hold an easement on his own land. See Albert G. Hoyem Trust v. Galt, 1998 MT 300, ¶ 22, 292 Mont. 56, 968 P.2d 1135. Thus, the District Court concluded that the encroachments would need to be removed to the extent necessary to effectuate the purposes of Pavex’s easements. ¶40 On appeal, the Earls contend that the District Court erred because Pavex took its easements subject to the encroachments and because the Earls hold an implied easement within Pavex’s easements. Pavex, conversely, argues that the District Court’s decision is correct because any obstructions which interfere with an easement must be removed. Notably, the parties’ citations in support of these arguments are, for the most part, not on point. Pavex cites various authorities—such as Musselshell Ranch Co. v. Seidel-Joukova, 2011 MT 217, ¶ 26, 362 Mont. 1, 261 P.3d 570—for the proposition that the owner of a servient estate may not erect or place physical obstructions within the easement. Yet, the Earls did not erect or place the physical obstructions at issue in Pavex’s easements; the obstructions were already there at the time Tract 2A became burdened with the easements benefitting Tract 1A. Likewise, the Earls cite various authorities concerning easements implied from existing use, see Yellowstone River, LLC v. Meriwether Land Fund I, LLC, 24 2011 MT 263, ¶ 30, 362 Mont. 273, 264 P.3d 1065 (explaining such easements), and easements which occupy the same physical location. Yet, with one exception discussed below, none of these authorities contemplate an easement on the servient property, for the benefit of the servient property, consisting of a permanent physical obstruction within the dimensions of the easement expressly granted to the dominant property. ¶41 The one case cited by the Earls that arguably is analogous to the present case is Newton v. N.Y., New Haven & Hartford R.R. Co., 44 A. 813 (Conn. 1899). There, the court recognized that a landowner whose property abuts a highway owns the soil to the center of the highway in fee. As such, the landowner has not only the rights that all others of the community have to travel on the highway, but also certain privileges that are not common to the public generally, such as the right to construct a sidewalk, set hitching posts, and place stepping stones within the right-of-way as it passes in front of the landowner’s property. The court characterized this as “an easement upon an easement.” Newton, 44 A. at 815-16. Even so, however, the court noted that any such obstructions must not interfere with the highway or render it unfit for its purpose (public travel). Newton, 44 A. at 815. We conclude that the same principle is controlling here. ¶42 Absent an express provision in a grant or reservation, “[t]he owner of the servient estate may utilize the easement area in any manner and for any purpose that does not unreasonably interfere with the rights of the easement holder.” Bruce & Ely, The Law of Easements and Licenses in Land § 8:20, 8-63 to 8-65; accord Sampson v. Grooms, 230 Mont. 190, 196-97, 748 P.2d 960, 964 (1988); Strahan v. Bush, 237 Mont. 265, 268-69, 773 P.2d 718, 721 (1989); Gabriel v. Wood, 261 Mont. 170, 177, 862 P.2d 42, 46 (1993); 25 Mason v. Garrison, 2000 MT 78, ¶ 49, 299 Mont. 142, 998 P.2d 531. In the present case, Tongue River Farms granted an easement 30 feet in width over land now comprising Tract 2A. The Keims granted an easement 100 feet in width over that same land. The use of these easements is expressly limited to ingress, egress, and utilities, but there is no express reservation of a right by the servient landowners (Tongue River Farms and the Keims, and now the Earls) to maintain physical obstructions within the easements, and the Earls have shown neither a legal nor a factual basis for implying such a reservation. Indeed, it is implausible that Tongue River Farms and the Keims, on one hand, granted easements for ingress, egress, and utilities but, on the other hand, intended obstructions which unreasonably interfere with the use of these easements to remain in place. ¶43 Unreasonable interference with an easement holder’s use of the servient estate is a form of trespass and constitutes an infringement upon a valuable property right. See Bruce & Ely, The Law of Easements and Licenses in Land §§ 8:21, 8:32, 8-70, 8-91. Consequently, an easement holder is entitled to equitable relief against a servient owner’s unlawful interference with the easement holder’s enjoyment of the servitude, particularly when the obstruction is of a permanent character. Bruce & Ely, The Law of Easements and Licenses in Land § 8:32, 8-91 to 8-92; see e.g. Strahan, 237 Mont. at 269, 773 P.2d at 721; Mason, ¶¶ 46-49. We therefore agree with the District Court that the structures and cropland must be removed from the two easements to the extent these encroachments constitute unreasonable interference with Pavex’s easement rights. This is a question of fact that will need to be determined on remand. See Musselshell Ranch, ¶ 19 (whether interference is reasonable depends on the factual circumstances of the case). 26 ¶44 We emphasize that the determination whether the encroachments must be removed from the easement requires a balancing of the parties’ interests, with reasonableness being the controlling standard. Mattson v. Mont. Power Co., 2009 MT 286, ¶ 52, 352 Mont. 212, 215 P.3d 675 (“[W]e presume that the parties intended a fair balance of their interests.”); Musselshell Ranch, ¶ 19 (“The balancing of rights . . . incorporates a standard of reasonableness.”). Unless otherwise stated in the terms of the servitude, the parties to an express easement are deemed to have contemplated both (1) that the easement holder may do whatever is reasonably convenient or necessary in order to fully enjoy the purposes for which the easement was granted, though he may not cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment, and (2) that the servient owner may utilize the servient estate, including the easement area, in any manner and for any purpose that does not unreasonably interfere with the easement holder’s enjoyment of the servitude. Mattson, ¶¶ 44, 52; Flynn v. Siren, 219 Mont. 359, 361, 711 P.2d 1371, 1372 (1986); Bruce & Ely, The Law of Easements and Licenses in Land §§ 8:3, 8:20, 8-13, 8-65; Restatement (Third) of Property: Servitudes §§ 4.9, 4.10. We have recognized the necessity of balancing these interests in various cases. See e.g. Sampson, 230 Mont. at 197, 748 P.2d at 964 (“The subject easement must be used only for purposes that do not unreasonably burden the servient tenement and which do not interfere with the use and right reserved to the dominant tenement.”); Gabriel, 261 Mont. at 177, 862 P.2d at 46 (“[A] gate may be constructed across the easement if it is necessary for the reasonable use of the servient estate and does not interfere with reasonable use of the right-of-way.”). Again, what constitutes reasonable use and 27 unreasonable interference is a question of fact, and uniform rules are difficult to formulate. Bruce & Ely, The Law of Easements and Licenses in Land §§ 8:3, 8:21, 8-13 to 8-14, 8-70. “Some permanent encroachments may not justify a finding of unreasonable interference. The particular facts of a situation are always controlling, and what is reasonable or unreasonable is often a close call.” Musselshell Ranch, ¶ 27. ¶45 As a final matter, the Keims-Pavex deed describes the 100-foot-wide easement as located “along, over and beneath” the 30-foot-wide easement. It thus is clear that the 100-foot-wide easement generally follows the same course as the 30-foot-wide easement. This does not necessarily mean that the centerlines of the two easements line up over the entire length of Tract 2A, however. Indeed, it appears from the depiction on Amended Certificate of Survey No. 85486/99927 that the 30-foot-wide easement, at certain points, runs along Tract 2A’s outer boundaries, which may cause the 100-foot-wide easement to encroach on land outside Tract 2A if the centerlines of the two easements were lined up. ¶46 Therefore, it will be necessary for the District Court on remand to determine the precise location of the 100-foot-wide easement relative to the 30-foot-wide easement. Various factors may be relevant to this analysis, including the purposes of the easement, the geographic relationship of the properties, the uses of the dominant and servient estates, the benefit to the easement holder compared to the burden on the servient estate owner, and any admissions of the parties. See Bruce & Ely, The Law of Easements and Licenses in Land § 7:6, 7-13 to 7-17; Broadwater Dev., LLC v. Nelson, 2009 MT 317, ¶ 22, 352 Mont. 401, 219 P.3d 492 (“For purposes of interpreting a writing granting an interest in real property, evidence of the surrounding circumstances, including the 28 situation of the property and the context of the parties’ agreement, may be shown so that the judge is placed in the position of those whose language the judge is to interpret.”). CONCLUSION ¶47 As to Issue 1, the Earls had constructive notice of the 100-foot-wide easement over Tract 2A for the benefit of Tract 1A, and the easement is thus enforceable against the Earls. Pavex is entitled to summary judgment on this issue, and the District Court’s contrary conclusion is accordingly reversed. As to Issue 2, the structures and cropland that encroach upon the 30-foot-wide easement and/or 100-foot-wide easement must be removed to the extent they constitute unreasonable interference with Pavex’s easement rights. The District Court’s grant of summary judgment to Pavex on this legal question is accordingly affirmed. ¶48 However, whether the structures and cropland actually interfere unreasonably with the two easements is a question of fact that will need to be determined on remand. In conjunction with this determination, the District Court will also need to determine the precise location of the 100-foot-wide easement relative to the 30-foot-wide easement based on the factors set out above and any other circumstances the court deems relevant. ¶49 Affirmed in part, reversed in part, and remanded for further proceedings. /S/ LAURIE McKINNON We Concur: /S/ BRIAN MORRIS /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ PATRICIA COTTER /S/ MIKE McGRATH /S/ JIM RICE | November 12, 2013 |
ca879d4c-6b91-4253-98a9-3f4a80f74970 | Missoula v. John Girard | 2013 MT 229N | DA 12-0728 | Montana | Montana Supreme Court | DA 12-0728 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 229N CITY OF MISSOULA, Plaintiff and Appellee, v. JOHN STEVEN GIRARD, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 12-301 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Jeffrey T. Renz, Clinical Professor of Law, School of Law, University of Montana; Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Jim Nugent, Missoula City Attorney; Gary L. Henricks, Deputy City Attorney, Missoula, Montana Submitted on Briefs: July 24, 2013 Decided: August 20, 2013 Filed: __________________________________________ Clerk August 20 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Appellant John Girard (Girard) appeals the order of the Fourth Judicial District Court, Missoula County, denying his motion to suppress. We affirm. ¶3 Missoula Police Officer Nathan Mattix (Mattix) was driving southbound on Ryman Street on September 11, 2011, at approximately 11:35 p.m. Officer Mattix observed a vehicle making an illegal left turn onto West Front Street from a northbound lane on Higgins Avenue. Officer Mattix made a U-turn to initiate a stop of the vehicle. He activated his Stage 2 emergency lights. The activation of Stage 2 emergency lights causes the previous 60 seconds of patrol car camera footage to be saved automatically. The vehicle proceeded down West Front Road apparently with no indications of illegal driving behavior. ¶4 Officer Mattix activated his Stage 1 emergency lights as soon as the vehicle passed him. Officer Mattix’s activation of his Stage 1 emergency lights erased the previous 60 seconds of tape that allegedly had exhibited Girard’s good driving. Officer Mattix testified that he activated his Stage 1 emergency lights in order to warn oncoming motorists. Officer Mattix immediately initiated the setting that saved the video upon stopping Girard. ¶5 Officer Mattix arrested Girard, the driver of the vehicle, after conducting a DUI investigation. Girard filed a motion to suppress the evidence of his intoxication in the 3 Municipal Court. Girard contended that Officer Mattix had detained him unlawfully because Officer Mattix had not been in a position to see an illegal left turn. Girard further argued that Officer Mattix had violated his due process rights when Officer Mattix consciously destroyed 60 seconds of tape that allegedly would have exhibited Girard’s good driving behavior. Girard further contended that contradictory statements by Officer Mattix concerning the location of the patrol car at the time that he saw Girard make the illegal left turn constituted a judicial admission. The Municipal Court denied Girard’s motions. ¶6 The District Court affirmed. The District Court determined that the judicial admission rule does not apply to the prosecution in a criminal case. The District Court further determined that Officer Mattix could see an illegal left turn from his location that night. Finally, the District Court determined that Girard had produced insufficient evidence to prove that the destroyed tape footage contained exculpatory evidence. Girard appeals. ¶7 Girard argues on appeal that Officer Mattix’s conscious decision to activate the State 1 emergency lights and thereby erase the videotape constitutes a due process violation. Girard contends that the destroyed tape contained exculpatory evidence based upon Officer Mattix’s admission that the tape would have exhibited signs of Girard’s good driving. Girard further argues that contradictory statements concerning the location of Officer Mattix’s patrol car constitute a judicial admission. ¶8 We review a district court’s grant or denial of a motion to suppress to determine whether the court’s findings are clearly erroneous and whether those findings were applied correctly as a matter of law. State v. Gill, 2012 MT 36, ¶ 10, 364 Mont. 182, 272 P.3d 60. 4 Although we agree with Girard that Officer Mattix’s explanation for switching between his Stage 1 and Stage 2 emergency lights makes little sense, Officer Mattix testified, and the Municipal Court and District Court agreed, that he had observed Girard perform an illegal left-hand turn. This observation, on its own, provided particularized suspicion to support the stop. The District Court properly made this determination based upon its review of the testimony presented at the hearing in the Municipal Court rather than based upon any alleged judicial admissions in the City of Missoula’s brief filed in the Municipal Court. We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. ¶9 Affirmed. /S/ BRIAN MORRIS We concur: /S/ JIM RICE /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ LAURIE McKINNON | August 20, 2013 |
f8ebd82c-9299-4235-a2f9-3bc13b605f4a | Landa v. Assurance Co. of Am. | 2013 MT 217 | DA 12-0535 | Montana | Montana Supreme Court | DA 12-0535 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 217 LEONARD LANDA and LANDA- HARBAUGH & ASSOCIATES, LLC, a Montana Limited Liability Corporation, Plaintiffs and Appellants, v. ASSURANCE COMPANY OF AMERICA, Defendant and Appellee. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 09-508 Honorable Karen Townsend, Presiding Judge COUNSEL OF RECORD: For Appellant: Elizabeth A. O’Halloran; Milodragovich, Dale & Steinbrenner, P.C.; Missoula, Montana For Appellee: Steve Reida;, Patrick C. Riley; Landoe, Brown, Planalp & Reida, P.C., Bozeman, Montana Submitted on Briefs: April 17, 2013 Decided: August 6, 2013 Filed: __________________________________________ Clerk August 6 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Plaintiffs and appellants Leonard Landa and Landa-Harbaugh & Associates, LLC (collectively “Landa”) appeal the grant of defendant and appellee Assurance Company of America’s (Assurance) motion for summary judgment by the Fourth Judicial District Court of Montana, Missoula County. We affirm. ISSUES ¶2 We restate the issues on appeal as follows: ¶3 1. Did the District Court err by determining that Assurance had no duty to defend Landa because Alsup’s claim did not involve an “occurrence” as defined by the insurance policy? ¶4 2. Did the District Court err by determining that Assurance had no duty to defend Landa because Alsup’s claim did not involve a “bodily injury” as defined by the insurance policy? ¶5 3. Did the District Court err by determining that Assurance did not have a duty to conduct an independent investigation of Landa’s claim? FACTUAL AND PROCEDURAL BACKGROUND ¶6 Leonard Landa was the sole managing member of Landa-Harbaugh & Associates, LLC, a Montana limited liability corporation licensed to sell securities and insurance in this state. Landa carried commercial general liability insurance through Assurance, a New York entity licensed to do business in Montana. This appeal arises out of Assurance’s refusal to defend Landa against claims made by Olan L. “Bubba” Alsup (Alsup), a former employee of Landa’s. 3 ¶7 Alsup had previously worked as a salesman at Bretz RV & Marine in Missoula, Montana. Landa approached Alsup and encouraged him to quit his job at Bretz and come to work at Landa selling insurance. Alsup claimed that Landa promised to train him to run the insurance business with an eye towards soon retiring and selling Alsup the business for a “reasonable price.” Alsup claimed that he quit his job at Bretz based on these representations and he began to work for Landa in January of 2002. However, Alsup claimed that Landa spent much of his time out of the office on vacation instead of training him or transferring him clients. Alsup eventually came to believe that Landa had no intention of either retiring or selling him the insurance business. When Alsup did approach Landa about buying the business, Landa repeatedly quoted prices that Alsup considered to be unreasonable and unrealistic given his valuation of the business. Alsup quit working at Landa in 2006 due to his belief that Landa’s promises had been a ruse. ¶8 Alsup thereafter filed a complaint and demand for a jury trial on April 1, 2008, alleging that Landa had engaged in “fraud and constructive fraud,” “misrepresentation and deceit,” “deception in the character of employment,” “negligence,” “breach of contract,” and “tortious breach of the implied covenant of good faith and fair dealing” by inducing Alsup to come work for him under allegedly false pretenses. Landa tendered defense of Alsup’s claim to Assurance, through Zurich North America, on April 18, 2008. Landa included a copy of Alsup’s complaint with this request. 4 ¶9 Assurance declined to defend Landa, asserting that the allegations set forth in Alsup’s complaint were not covered under Landa’s policy. The policy sets out the following relevant coverages under “Section I – Coverages”: COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY 1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which the insurance applies. We will have the right and duty to defend the insured against any ‘suit’ seeking those damages. However, we will have no duty to defend the insured against any ‘suit’ seeking damages for ‘bodily injury’ or ‘property damages’ to which this insurance does not apply. . . . The bodily injury and property damage liability section also provides: b. This insurance applies to ‘bodily injury’ and ‘property damage’ only if: (1) The ‘bodily injury’ or ‘property damage’ is caused by an ‘occurrence’ . . . . The section entitled “Coverage B – Personal and Advertising Injury Liability” provides: a. We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘personal and advertising injury’ to which this insurance applies. We will have the right and duty to defend the insured against any ‘suit’ seeking those damages. However, we will have no duty to defend the insured against any ‘suit’ seeking damages for ‘personal and advertising’ to which this insurance does not apply. . . . Section V of the policy provides the following relevant definitions: 3. ‘Bodily injury’ means bodily injury, sickness or disease sustained by a person. This includes mental anguish, mental injury, shock, fright or death resulting from bodily injury, sickness, or disease. 5 13. ‘Occurrence’ means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. 14. ‘Personal and advertising injury’ means injury, including consequential ‘bodily injury’, arising out of one or more of the following offenses: a. False arrest, detention, or imprisonment; b. Malicious prosecution; c. The wrongful eviction from . . .; d. Oral or written publication of material that slanders or libels . . .; e. Oral or written publication of material that violates a person’s right of privacy; f. Misappropriation of advertising ideas . . .; g. Infringing upon another’s copyright . . .. 17. ‘Property damage’ means: a. Physical injury to tangible property . . .; or b. Loss of use of tangible property . . .. ¶10 Assurance specifically claimed that Alsup’s complaint did not contain any allegations of “bodily injury” or “property damage” as defined by the policy and that Landa’s actions did not constitute a covered accidental “occurrence.” Assurance also asserted that none of Alsup’s allegations fell within the policy’s definition of “Personal and Advertising Injury.” Assurance’s denial concluded with a request for “any case law, authority or any other information at all that would cause Assurance to reconsider its position[.]” ¶11 Landa again tendered defense of Alsup’s claim to Assurance on January 16, 2009. This time Landa included a statement of claim asserting that Alsup sought damages for 6 emotional distress. This emotional distress claim, however, was not included in Alsup’s complaint. Landa also attached a copy of our decision in Allstate Ins. Co. v. Wagner- Ellsworth, 2008 MT 240, 344 Mont. 455, 188 P.3d 1042. Assurance again declined to defend Landa. Assurance essentially repeated its claims that Alsup’s allegations did not amount to “bodily injury” caused by an “occurrence” under the policy. Landa and Alsup settled the underlying case in 2010. ¶12 Landa subsequently filed a complaint seeking declaratory relief establishing that Assurance had a duty to defend and indemnify Landa, alleging several violations of Montana’s Unfair Trade Practices Act (UTPA), common law bad faith, negligence, breach of the covenant of good faith and fair dealing, and breach of contract, and requesting attorney fees and punitive damages. Assurance filed a motion for summary judgment on all of Landa’s claims, again arguing that Alsup’s claims did not involve either a “bodily injury” or an “occurrence” while also asserting that several of the policy’s coverage exceptions applied. The District Court granted Assurance’s motion in an August 3, 2012 order, finding that Alsup did not experience a “bodily injury” as the result of an “occurrence” as those terms were defined by the “clear and unambiguous” language of the policy. The Court also determined that Assurance was not liable under the UTPA because the denial of coverage was “grounded on a legal conclusion.” Landa appeals the Court’s order. STANDARD OF REVIEW ¶13 We review de novo a district court’s summary judgment ruling. Johnston v. Centennial Log Homes & Furnishings, Inc., 2013 MT 179, ¶ 24, 2013 Mont. LEXIS 224. 7 We apply the same M. R. Civ. P. 56 criteria as the district court, and summary judgment may be granted only “when the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file show no genuine issues of material fact exist and when the moving party is entitled to judgment as a matter of law.” Fasch v. M.K. Weeden Constr., Inc., 2011 MT 258, ¶ 14, 362 Mont. 256, 262 P.3d 1117. The interpretation of an insurance policy presents a question of law, and we will review the District Court’s legal conclusion for correctness. Cusenbary v. United States Fid. & Guar. Co., 2001 MT 261, ¶ 9, 307 Mont. 238, 37 P.3d 67. Findings of fact are reviewed to determine if they are clearly erroneous. Plum Creek Mktg. v. Am. Econ. Ins. Co., 2009 MT 264, ¶21, 352 Mont. 56, 214 P.3d 1238. DISCUSSION ¶14 1. Did the District Court err by determining that Assurance had no duty to defend Landa because Alsup’s claim did not invovle an “occurrence” as defined by the insurance policy? ¶15 Assurance declined to defend Landa in part because it concluded that the allegations contained in Alsup’s complaint did not constitute an “occurrence” as defined by the policy. As noted above, the policy provides that coverage extends only to “bodily injury” or “property damage” caused by an “occurrence.” Thus, if Alsup’s claims did not involve an “occurrence,” Assurance had no duty to defend Landa for claims alleging either “bodily injury” or “property damage” under Coverage A of the policy. ¶16 Landa generally argues that Alsup’s complaint included allegations of negligent, accidental, or unintentional conduct sufficient to fall within the above definition of “occurrence.” Landa supports this argument with citations to cases from other jurisdictions 8 that purportedly show that a “misrepresentation” can be an “occurrence” and by arguing that Alsup’s claims in Counts I, II, and III included allegations that Landa’s statements were accidental. Landa further claims that we must look to the intended outcome from the perspective of the insured, “not the conduct itself,” to determine what counts as an “occurrence” under the policy. From this perspective, Landa argues that it is “apparent that the unexpected [by Landa] impact of the conduct alleged by Alsup dictates that there has been an ‘occurrence’ in this instance.” ¶17 In response, Assurance first broadly claims that Alsup’s complaint “alleged only that Landa engaged in intentional fraudulent conduct – rather than any accidental conduct – purposefully designed to cause the harms Alsup allegedly suffered.” Assurance also more specifically argues that the manner in which Alsup pled “misrepresentation” under Count II “made clear that he was indeed alleging intentional conduct.” ¶18 The District Court determined that “the allegations in Alsup’s complaints clearly alleged that Landa’s misrepresentations were intentional.” We agree. Thus, we need not address Landa’s extra-jurisdictional citations1because a review of Alsup’s complaint belies Landa’s claim that Counts I-III include allegations of accidental conduct. Lloyd A. Twite Family P’ship v. Unitrin Mutli Line Ins., 2008 MT 310, ¶ 7, 346 Mont. 42, 192 P.3d 1156; Town of Geraldine v. Mont. Mun. Ins. Auth., 2008 MT 411, ¶ 11, 347 Mont. 267, 198 P.3d 1 However, even if we did, Landa’s foreign cases explicitly focus on determining whether negligent misrepresentation can be an occurrence, which is not the question we are addressing. 9 796 (“An insurer’s duty to defend its insured arises when a complaint alleges facts which represent a risk covered by the terms of an insurance policy.”). ¶19 It is well-settled that an insurer’s duty to defend the insured arises when an insured sets forth facts which represent a risk covered by the terms of the insurance policy. Farmers Union Mut. Ins. Co. v. Staples, 2004 MT 108, ¶ 27, 321 Mont. 99, 90 P.3d 381. We have held that “[t]he insurance company must look to the allegations of a complaint to determine if coverage exists under an insurance policy, thus giving rise to the insurer’s duty to defend.” Staples, ¶ 20. Thus, to determine whether Assurance had a duty to defend Landa, we will look first to the terms of the policy, and next to the facts alleged by Alsup’s complaint. Lloyd A. Twite Family P’ship, ¶ 7. When doing so, we will give the terms in the policy their usual meaning and construe them using common sense. Hardy v. Progressive Specialty Ins. Co., 2003 MT 85, ¶ 14, 315 Mont. 107, 67 P.3d 892. ¶20 Landa’s policy defines “occurrence” as an “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policy does not provide a separate definition for what constitutes an “accident.” We have previously held that, where a policy defines an “occurrence” as an “accident,” “[g]enerally, the term ‘accident’ from the standpoint of the insured reasonably refers to any unexpected happening that occurs without intention or design on the part of the insured.” Safeco Ins. Co. of Am. v. Liss, 2000 MT 380, ¶ 36, 303 Mont. 519, 16 P.3d 399. A review of Alsup’s complaint does not reveal allegations of the sort of accidental, unintentional conduct that the policy’s definition of “occurrence” requires. 10 ¶21 Specifically, Count I of Alsup’s complaint alleged fraud and constructive fraud based on Landa’s representations that Alsup “would be entering a profitable business and would be sold a business.” In particular, Alsup claims that Landa’s representations “were made with the intent that Plaintiff would quit his prior employment and begin working for Defendants . . . .” Indeed, Count I focuses on Landa’s purportedly “false representations and improper motives” and does not itself allege accidental conduct. ¶22 Count II presents a claim for “misrepresentation and deceit.” The claim is based on Landa’s alleged representations that he would be able to provide Alsup with increased income, business opportunities, and the opportunity to purchase the insurance business. Importantly, negligent misrepresentation is neither mentioned nor alleged. Instead, as Assurance points out, Alsup plead “misrepresentation” in the conjunctive, claiming: 27. When the representations by Defendants were made, Defendants: (a) knew that the representations were untrue; (b) had no reason to believe that the representations made to Plaintiff were true; and (c) made the representations to mislead Plaintiff into quitting his prior employment, work for defendants for little or no compensation and no opportunity to purchase the business. (emphasis added). Thus, Count II claims that Landa knowingly made false representations to Alsup concerning the nature of the work, persuaded Alsup to quit his job to pursue an illusory opportunity, and caused Alsup to suffer related damages. ¶23 Count III presents a claim for “deception in the character of employment.” This claim is predicated on an alleged violation of § 39-2-303, MCA. Section 39-2-303, MCA prohibits a person or entity doing business in Montana from inducing, influencing, persuading, or engaging workers to change jobs “by means of deception, misrepresentation, or false 11 advertising . . ..” Count III alleged that Landa violated § 39-2-303, MCA, “by fraudulently inducing and/or misrepresenting to Plaintiff that his coming to work for Defendants would lead to greater income, advanced business opportunities, and the opportunity to purchase the business at a fair price.” ¶24 None of the aforementioned claims allege that Landa engaged in accidental conduct. Besides, “[t]he acts giving rise to the claim form the basis for coverage, not any legal theories contained in the underlying complaint.” Travelers Cas. & Sur. Co. v. Ribi Immunochem Research, 2005 MT 50, ¶ 40, 326 Mont. 174, 108 P.3d 469 (emphasis added); see also Town of Geraldine, ¶ 24; New Hampshire Ins. Group v. Strecker, 244 Mont. 478, 482, 798 P.2d 130 (1990). The underlying conduct alleged in Alsup’s complaint is wholly comprised of Landa’s intentional acts. Alsup claimed Landa approached him with false promises to lure him away from his job with Bretz RV. Alsup further claimed that Landa misled him regarding his intent to sell the business, provide training, or transfer clients. None of these claims involve accidental conduct. Rather, Alsup explicitly claimed that Landa “lulled” him into believing that he would be able to buy the business and that “Landa would overvalue the business so that Plaintiff would become discouraged” in his attempts to purchase it. The acts giving rise to these claims are not in dispute, and Alsup’s complaint portrays a program of intentional misrepresentation. As noted, Landa’s insurance policy with Assurance does not provide coverage for “bodily injury” or “property damage” caused by intentional acts. “If there is no coverage under the terms of the policy based on the facts contained in the complaint, there is no duty to defend.” Steadele v. Colony Ins. Co., 2011 12 MT 208, ¶ 25, 361 Mont. 459, 260 P.3d 145 (citing Grimsrud v. Hagel, 2005 MT 194, ¶ 34, 328 Mont. 142, 119 P.3d 47). Thus, the District Court correctly determined that Alsup’s allegations did not fit within the policy’s definition of “occurrence” and, as a result, did not give rise to a duty to defend Landa. ¶25 This conclusion is supported by our analysis in Blair v. Mid-Continent Cas. Co., 2007 MT 208, 339 Mont. 8, 167 P.3d 888. There, as here, the policy defined “occurrence” as “ ‘[a]n accident, including continuous or repeated exposure to substantially the same general harmful conditions.’ ” Blair, ¶ 9. Blair admitted that he intentionally removed gravel from his property, but he claimed that Montana law established that an intentional act is an occurrence under an insurance policy if the resulting injuries or damages were not the intended or expected result. Blair, ¶ 17. We rejected that argument, holding that “[u]nder this definition, the proper focus in on whether Blair’s deliberate operation of removing gravel is covered – not whether he intended the resulting damages allegedly stemming from the operation.” Blair, ¶ 18. Thus, we do not look to whether Landa intended the specific harm or damages that Alsup alleged. Instead, we must focus on the acts described in Alsup’s complaint, which, as discussed, concerned Landa’s deliberate, allegedly false representations. “An intentional act cannot be an ‘occurrence’ because it is not an accident and because it is intended or expected by the insured.” Farmers Mut. Ins. v. Kienenberger, 257 Mont. 107, 109, 847 P.2d 1360 (1993). Because Alsup’s complaint alleged injuries caused by intentional acts, Assurance had no duty to defend Landa. We accordingly affirm 13 the District Court’s conclusion that Alsup’s claim did not constitute an occurrence as defined by the policy. ¶26 2. Did the District Court err by determining that Assurance had no duty to defend Landa because Alsup’s claim did not involve a “bodily injury” as defined by the insurance policy? ¶27 Assurance also declined to defend Landa by asserting that Alsup’s claim did not allege a “bodily injury.” The District Court agreed, finding first that “Alsup did not allege damages of ‘bodily injury’ or emotional distress in either [amended] complaint, although Alsup did claim emotional distress in his statement of claim.” The Court also concluded that “[u]nder the policy at issue here, emotional distress can amount to ‘bodily injury’ only if the ‘mental anguish, mental injury’ results from ‘bodily injury.’ ” The District Court next found “no allegations and no supporting facts in Alsup’s complaints or statement of claim that his claimed emotional distress was a result of ‘bodily injury’ or that there were physical manifestations of his emotional distress” and determined that Alsup did not suffer “bodily injury” under the policy. ¶28 Landa claims that the policy’s definition of “bodily injury” is ambiguous and should be construed against Assurance. Specifically, Landa argues that the limiting language “resulting from bodily injury, sickness or disease” can be read two ways, either qualifying only “death” or qualifying “mental anguish, mental injury, shock, fright or death.” Landa argues that if this ambiguity is construed in favor of the insured, physical manifestations of emotional distress are not required to constitute “bodily injury.” 14 ¶29 However, Coverage A clearly states that Landa’s insurance only applies if claims for “bodily injury” or “property damage” result from an “occurrence.” As we discussed above, we have concluded that Alsup’s complaint did not allege an “occurrence.” Under the clear language of Coverage A, this finding alone establishes that Assurance did not have a duty to defend Landa. We therefore need not determine whether Alsup suffered “bodily injury.” ¶30 3. Did the District Court err by determining that Assurance did not have a duty to conduct an independent investigation of Landa’s claim? ¶31 Landa claims that Assurance had “an affirmative obligation to make an investigation of the claim” pursuant to the Unfair Trade Practices Act. Landa specifically cites § 33-18- 201(3) & (4), MCA, which provides that: A person may not, with such frequency as to indicate a general business practice, do any of the following: . . . (3) fail to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies; (4) refuse to pay claims without conducting a reasonable investigation based upon all available information; . . . . Assurance responds that the both UTPA and our case law show that where an insurer has a reasonable basis in law for denying a claim, an insurer is not liable under the UTPA. We agree. ¶32 First, the UTPA does not apply to Assurance in this instance because Assurance possessed a reasonable basis in law for denying coverage. Section 33-18-242, MCA, sets out the requirements of an independent cause of action under the UTPA. Section 33-18-242(5), MCA, states that “[a]n insurer may not be held liable under this section if the insurer had a 15 reasonable basis in law or in fact for contesting the claim or the amount of the claim, whichever is in issue.” The District Court concluded that Assurance had a reasonable basis in law to deny coverage based on its conclusion that Alsup did not allege either an “occurrence” or “bodily injury.” Having also concluded that Alsup’s claims did not allege an “occurrence,” we similarly find that Assurance is not liable under the UTPA pursuant to § 33-18-242(5), MCA. ¶33 Our case law also contradicts Landa’s claim that Assurance had an affirmative obligation to make an investigation of the claim. In Revelation Industry, we discussed when insurers may or may not look beyond the contents of the complaint when deciding their duty to defend. Revelation Indus., ¶ 22. We outlined three general scenarios addressed by our jurisprudence: in Scenario (1), where the complaint clearly alleges facts that come within the coverage of the policy, we have held that the insurer is required to defend the insured without looking beyond the complaint; in Scenario (2), where the complaint alleges facts that do not come within the coverage of the policy and the insurer has no knowledge of any other facts, we have held that the insurer has no duty to defend the insured; and in Scenario (3), where the complaint alleges facts that come within the coverage of the policy, but the insurer knows of other facts that negate coverage, we have held that the insurer has no duty to defend. Revelation Indus., ¶ 22. The present case most clearly aligns with Scenario 2. Landa tendered defense of Alsup’s complaint twice. Both times, Landa attached the complaint. The second time, Landa also attached a statement of claim alleging Alsup suffered emotional distress and our opinion in Wagner-Ellsworth. There is no indication that 16 Assurance had any other outside sources of information concerning Alsup’s complaint. As discussed, neither Alsup’s complaint, nor the statement of claim, contained an allegation of an “occurrence” sufficient to trigger a duty to defend. In this situation, “if the allegations in the complaint clearly present an event or occurrence that is not covered under the policy, the insurer may refuse to defend.” Revelation Indus., ¶ 27 (emphasis in original). ¶34 Indeed, our opinion in Revelation Industry expressly declined to require that insurers seek out facts beyond the complaint. We instead concluded that an insurer could not “simply ignore factual information supplied to them by their insured but not alleged in the complaint or petition, where those facts would trigger a duty to defend.” Revelation Indus., ¶ 30. We expressly noted that “[t]his does not require an insurer to seek out such information—as we have previously held, insurers that look at facts beyond the allegations in the complaint do so at their own risk as they will be require to defend and/or indemnify based on the information discovered.” Revelation Indus., ¶ 30; see also Lloyd A. Twite Family P’ship, ¶¶ 7-8, 16; Staples, ¶ 24. The facts alleged in Alsup’s complaint were outside the policy’s coverage, as Assurance correctly concluded. Landa’s second tender of defense, with a statement of claim and our Wagner-Ellsworth case attached, did not provide facts sufficient to bring the claim within the policy’s coverage, and Landa does not argue that Assurance possessed other information that would have triggered a duty to defend. Assurance therefore properly denied coverage based on the complaint and the information it possessed. Revelation Indus., ¶ 30. We accordingly conclude that the District Court correctly determined that Assurance is not liable under the UTPA, that Assurance had a reasonable basis in law for denying coverage, 17 and that Assurance was not obligated to make any further investigation before declining to defend Alsup’s claim. CONCLUSION ¶35 Alsup’s complaint did not allege an “occurrence” and, as a result, did not trigger a duty to defend under the policy. Because of this, Assurance correctly declined to provide a defense and the District Court correctly granted summary judgment on Landa’s claims. Further, our decision to affirm the District Court’s order with regards to Issue One renders a decision regarding Issue Two superfluous. ¶36 Affirmed. /S/ MICHAEL E WHEAT We concur: /S/ BETH BAKER /S/ JIM RICE /S/ LAURIE McKINNON /S/ BRIAN MORRIS | August 6, 2013 |
9036aa7f-7ae7-436d-8332-672c1942ef47 | State v. Brothers | 2013 MT 222 | DA 12-0547 | Montana | Montana Supreme Court | DA 12-0547 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 222 STATE OF MONTANA, Plaintiff and Appellee, v. THOMAS DANIEL BROTHERS, Defendant and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 10-306C Honorable Stewart E. Stadler, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender, Jonathan King, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General; Helena, Montana Ed Corrigan, Flathead County Attorney, Kalispell, Montana Submitted on Briefs: June 12, 2013 Decided: August 13, 2013 Filed: __________________________________________ Clerk August 13 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Defendant and Appellant Thomas Brothers (Brothers) appeals the Eleventh Judicial District Court’s award of $1,069.02 in restitution to the State. We reverse. ISSUE ¶2 We restate the sole issue on appeal as follows: ¶3 Did the District Court err by ordering Brothers to pay restitution to the State? FACTUAL AND PROCEDURAL BACKGROUND ¶4 Brothers was charged with sexual assault, incest, and indecent exposure by information on September 1, 2010. The District Court issued a warrant and Brothers was arrested in New Mexico on January 10, 2011. Brothers pled guilty to one count of sexual assault on February 24, 2012, as part of a plea agreement. The agreement recommended a 15-year prison sentence with 10 years suspended. The agreement allowed Brothers to withdraw his plea if the District Court imposed a different sentence. The Court accepted Brothers’ plea and conducted a sentencing hearing on July 5, 2012. ¶5 At the sentencing hearing, the State requested that Brothers pay $1,069.02 in restitution to reimburse the State for the cost of extraditing Brothers from New Mexico. The State did not provide an affidavit or any testimony in support of this request. Brothers objected, claiming that the restitution was “just brought up.” The Court eventually ordered $1,069.02 in restitution without either receiving an affidavit or testimony from the State to determine the proper amount. The Court also deviated from the plea agreement’s sentencing 3 recommendation, imposing a term of 20 years in Montana State Prison with 10 years suspended. ¶6 Brothers subsequently withdrew his guilty plea due to the Court’s imposition of a sentence longer than that recommended by the plea agreement. Brothers and the State thereafter filed a motion stipulating to an amendment of the judgment and sentence. The parties recommended the Court reconsider the July 5, 2012 sentence and impose the plea’s recommended 15-year sentence with 10 suspended. ¶7 The District Court held a hearing on the parties’ stipulation to amend the judgment and sentence on July 11, 2012. The Court noted that the parties requested that Brothers be re-sentenced to Montana State Prison for a term of 15 years, 10 suspended “pursuant to the same conditions as previously were imposed last week[.]” The Court then re-sentenced Brothers to the requested term and noted that it was also imposing “the restitution that was previously ordered for your return – your extradition costs[.]” Brothers appeals the imposition of restitution without the State producing either an affidavit or testimony describing the costs of his extradition. STANDARD OF REVIEW ¶8 Pursuant to § 46-18-201(5), MCA, if a person has been found guilty of an offense, whether by a verdict of guilty or by a plea of guilty or nolo contendre, and the sentencing judge finds that a “victim” has sustained a “pecuniary loss,” as the terms are defined in § 46- 18-243, MCA, then the sentencing judge shall, as part of the sentence, require payment of full restitution to the “victim,” as provided in §§ 46-18-241 through -249, MCA. State v. 4 Jent, 2013 MT 93, ¶ 9, 369 Mont. 468, 299 P.3d 332. Such analysis requires the sentencing judge to apply the statutory definition of “victim” to the factual circumstances of the case. Jent, ¶ 9. This constitutes a mixed question of law and fact. Jent, ¶ 9 (citing State v. Warclub, 2005 MT 149, ¶ 21, 327 Mont. 352, 114 P.3d 254). ¶9 In our review on appeal, we will not disturb factual findings unless they are clearly erroneous, and whether those facts satisfy the legal standard is reviewed de novo. Jent, ¶ 10 (citing Warclub, ¶ 23). We also review de novo whether a district court had statutory authority to impose the sentence, whether the sentence falls within the applicable sentencing parameters, and whether the court adhered to mandates of the applicable sentencing statutes. State v. Johnson, 2011 MT 116, ¶ 12, 360 Mont. 443, 254 P.3d 578. DISCUSSION ¶10 Both the State and Brothers agree that the District Court lacked the authority to impose restitution because it failed to follow the statutory mandate that a victim’s pecuniary loss be substantiated in an affidavit or through live testimony. However, while neither party has raised the specific argument on appeal, we conclude that the District Court lacked the authority to impose restitution because the State is not a “victim” as required by § 46-18- 201(5), MCA, and defined in § 46-18-243(2)(a), MCA. ¶11 Sentencing courts are required to impose a sentence that includes payment of full restitution whenever the court finds the “victim” of an offense has sustained a pecuniary loss. Section 46-18-201(5), MCA; Johnson, ¶ 16; State v. Hunt, 2009 MT 265, ¶ 16, 352 Mont. 70, 214 P.3d 1234. A “victim” is defined as: 5 (i) a person who suffers loss of property, bodily injury, or death as a result of: (A) the commission of an offense; (B) the good faith effort to prevent the commission of an offense; or (C) the good faith effort to apprehend a person reasonably suspected of committing an offense; (ii) the estate of a deceased or incapacitated victim or a member of the immediate family of a homicide victim; (iii) a governmental entity that suffers loss of property as a result of the commission of an offense in this state or that incurs costs or losses during the commission or investigation of an escape, as defined in 45-7-306, or during the apprehension or attempted apprehension of the escapee; (iv) an insurer or surety with a right of subrogation to the extent it has reimbursed the victim of the offense for pecuniary loss; (v) the crime victims compensation and assistance program established under Title 53, chapter 9, part 1, to the extent that it has reimbursed a victim for pecuniary loss; and (vi) any person or entity whom the offender has voluntarily agreed to reimburse as part of a voluntary plea bargain. Section 46-18-243(2)(a), MCA (emphasis added). ¶12 We recently considered when the State can be a “victim” for the purposes of the restitution statutes in State v. Jay, 2013 MT 79, 369 Mont. 332, 298 P.3d 396. There, the district court ordered the defendant to pay $600 in restitution to the State for expenses incurred in interviewing an expert defense witness. Jay, ¶ 14. We concluded that a “victim” under § 46-18-243(2)(a), MCA, included a governmental entity “only when that entity suffers property damage in the commission of a crime, or incurs costs in the investigation or apprehension of an escaped person.” Jay, ¶ 48. We then found neither situation to be present, as the State had incurred expenses only by interviewing a defense witness. Jay, ¶ 48. Thus, we concluded that the State was not a “victim” entitled to restitution under § 46- 18-201(5), MCA. Jay, ¶ 48. 6 ¶13 The same reasoning applies here. The State sought restitution for expenses incurred extraditing Brothers from New Mexico. Like Jay, the expenses were not the result of property damage suffered during the commission of a crime or of the investigation or apprehension of an escapee. According to § 46-18-243(2)(a), MCA, and Jay, the State is therefore not a “victim” and is not entitled to seek restitution from Brothers. We accordingly vacate the $1,069.02 in restitution awarded to the State. CONCLUSION ¶14 Because we conclude that the State was not a “victim” for the purposes of the restitution statutes, we conclude that the District Court lacked the authority to award restitution to the State. ¶15 Reversed and remanded for entry of an amended judgment consistent herewith. /S/ MICHAEL E WHEAT We concur: /S/ PATRICIA COTTER /S/ BRIAN MORRIS /S/ BETH BAKER /S/ JIM RICE | August 13, 2013 |
678dac3c-1af5-414c-a55c-432baa40dc76 | Billings Gazette v. City of Billings | 2013 MT 334 | DA 12-0739 | Montana | Montana Supreme Court | DA 12-0739 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 334 THE BILLINGS GAZETTE, a division of LEE ENTERPRISES, Plaintiff and Appellee, v. THE CITY OF BILLINGS, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 12-1349 Honorable Russell C. Fagg, Presiding Judge COUNSEL OF RECORD: For Appellant: Gerald B. Murphy, Emily Jones; Moulton Bellingham PC; Billings, Montana For Appellee: Martha Sheehy; Sheehy Law Firm; Billings, Montana Submitted on Briefs: August 28, 2013 Decided: November 8, 2013 Filed: __________________________________________ Clerk November 8 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Appellant City of Billings (City) appeals the order of the Thirteenth Judicial District Court, Yellowstone County, ordering that it release copies of investigative documents and disciplinary forms without redactions for information identifying five City employees. The five employees had been disciplined by the City for inappropriate computer usage on their work computers. The Billings Gazette (Gazette) sought access to documents detailing the investigation into and punishment of the misconduct. The City disclosed some documents but refused to release the disciplinary corrective action forms, and redacted all information that could be used to identify the five employees or uninvolved third parties alleging that to do so would violate the employees’ right to privacy. The District Court ruled in favor of the Gazette and ordered that unredacted copies of all documents, including the corrective action forms, be provided to the newspaper. The City appealed, and obtained an order staying judgment through appeal as to the identifying information, but not as to the corrective action forms. We reverse. ¶2 We restate and consider the following issues: ¶3 1. Did the District Court err by ordering that identifying information for five City employees disciplined for accessing pornography on their government computers be released to the Gazette? ¶4 2. Did the District Court abuse its discretion by denying the Gazette’s request for attorney fees? FACTUAL AND PROCEDURAL BACKGROUND ¶5 Between March and June of 2012, the City discovered five city employees (Employees) had possibly been using their respective public City computers to access 3 adult and/or pornographic material on the Internet during work hours. The City conducted separate internal investigations into the Internet activity of each Employee. Upon conclusion of each investigation, the City issued a written corrective action determination to each Employee, setting forth a summary of the evidence gathered during the investigation and the disciplinary action being taken by the City as a result. Each of the Employees was suspended for five days without pay. ¶6 On August 24, 2012, the Gazette requested copies of “all written reprimands or records of other disciplinary actions affecting employees of the City Attorney’s office between February 1, 2012 and August 24, 2012.” On August 28, 2012, the Gazette requested the City provide a list of all city employees who had been disciplined within the prior six months. On August 31, 2012, the Gazette requested “documentation of the searches/filtering that indicated a pattern of attempts to access blocked sites in the cases involving the five city workers suspended for accessing (or attempting to access) inappropriate websites[;] any reports by [the City’s Chief Information Office] regarding such searches; any communications between city employees . . . [and] any due process letters resulting from these incidents.” The City denied the first two requests, citing the employees’ privacy rights but, in response to the third request, provided copies of its investigative documents relating to the Internet activity of the Employees and email correspondence sent in connection with the City’s internal investigation of the Employees. These documents were redacted to omit the names and other identifying 4 information of the Employees and uninvolved third persons. The City did not provide copies of the disciplinary corrective action forms for any of the Employees. ¶7 The Gazette filed a Petition for Declaratory Relief and Writ of Mandamus. The Gazette asserted the documentation compiled by the City during and as a result of the investigation into unauthorized computer usage by disciplined City employees was subject to release under the “right to know” provision of Article II, Section 9 of the Montana Constitution and § 2-6-102, MCA, and that any privacy interest the disciplined employees may have in the information being requested did not clearly exceed the public’s right to know. The Gazette also requested its attorney fees incurred in enforcing its constitutional rights, pursuant to §§ 2-3-221 and 27-8-313, MCA. ¶8 The City filed a Motion for in camera inspection of the demanded documents to determine whether the demands of privacy outweighed the public’s right to know under these circumstances. On December 5, 2012, following the inspection, the District Court entered its Order and Decision granting the Gazette’s petition for declaratory judgment but denying its request for attorney fees. The District Court ordered the City to turn over the corrective action forms and all other requested documents, with redactions only for identifying information concerning uninvolved third parties. ¶9 The City simultaneously filed this appeal and a motion before the District Court to stay the order pending appeal to prevent the issues from being rendered moot. The District Court granted the motion to stay with regard to redactions for names and identifying information of the Employees, but found that the Gazette was entitled to 5 redacted copies of the corrective action forms. The District Court attached redacted copies of the corrective action forms to its order granting a stay. STANDARD OF REVIEW ¶10 A district court’s interpretation of law is reviewed to determine whether the court’s interpretation of the law is correct. Jefferson Co. v. Mont. Stand., 2003 MT 304, ¶ 9, 318 Mont. 173, 79 P.3d 805. We review a district court’s findings of fact to determine whether they are clearly erroneous. In re M.A.L., 2006 MT 299, ¶ 17, 334 Mont. 436, 148 P.3d 606. We review a district court’s award or denial of attorney fees for an abuse of discretion. A district court abuses its discretion when it acts arbitrarily without conscientious judgment or exceeds the bounds of reason. Disability Rights Mont. v. State, 2009 MT 100, ¶ 13, 350 Mont. 101, 207 P.3d 1092. DISCUSSION ¶11 1. Did the District Court err by ordering that identifying information for five City employees disciplined for accessing pornography on their government computers be released to the Gazette? ¶12 Montana’s right to privacy is established in Article II, Section 10 of the Montana Constitution: Right of privacy. The right of individual privacy is essential to the well- being of a free society and shall not be infringed without the showing of a compelling state interest. ¶13 Often at issue with this provision is the public right to know, also established in the Montana Constitution. Article II, Section 9 of the Montana Constitution provides: Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies 6 of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits. [Emphasis added.] ¶14 We have held that these competing interests must be balanced “in the context of the facts of each case, to determine whether the demands of individual privacy clearly exceed the merits of public disclosure. Under this standard, the right to know may outweigh the right of individual privacy, depending on the facts.” Missoulian v. Bd. of Regents of Higher Educ., 207 Mont. 513, 529, 675 P.2d 962, 971 (1984) (emphasis in original). ¶15 An examination of a request under the public right to know provision of the Montana Constitution requires a three-step process: First, we consider whether the provision applies to the particular political subdivision against whom enforcement is sought. Second, we determine whether the documents in question are “documents of public bodies” subject to public inspection. Finally, if the first two requirements are satisfied, we decide whether a privacy interest is present, and if so, whether the demand of individual privacy clearly exceeds the merits of public disclosure. Becky v. Butte-Silver Bow Sch. Dist. No. 1, 274 Mont. 131, 136, 906 P.2d 193, 196 (1995). No single rule or policy can be used to determine what information may be released upon public request because each request requires a fact specific, case-by-case analysis of the interests at issue and a balancing of the demands of individual privacy and the merits of public disclosure. Havre Daily News v. Havre, 2006 MT 215, ¶ 17, 333 Mont. 331, 142 P.3d 864. 7 ¶16 The City does not dispute that it is subject to Article II, Section 9 of the Montana Constitution. The City argues that the inquiry should end with the second prong of the test: whether the investigative records and corrective action forms at issue are “documents of public bodies.” Though not raised by the Gazette, mootness is a threshold issue the Court must resolve before the merits of the dispute can be decided. Havre Daily News, ¶ 31. “‘A matter is moot when, due to an event or happening, the issue has ceased to exist and no longer presents an actual controversy.’” Havre Daily News, ¶ 31 (quoting Shamrock Motors, Inc. v. Ford Motor Co., 1999 MT 21, ¶ 19, 293 Mont. 188, 974 P.2d 1150). ¶17 We decline to address the issue of whether the documents requested by the Gazette are public documents because all of the requested documents have already been disclosed. The investigative records were voluntarily released to the Gazette with only Employee and third-party names and identifying information redacted. Additionally, the corrective actions forms with redactions only for Employee identifying information (name, job title, and department) have been turned over to the Gazette. Though the corrective action forms were disclosed by the District Court in its order granting a stay, rather than by the City, the forms have nevertheless been disseminated and any further discussion as to whether these forms are considered public documents has been rendered moot. Thus the only remaining issue is whether the Employees had a reasonable expectation of privacy in their identifying information in relation to the internal disciplinary proceedings that outweighs the public’s right to know. 8 A. Constitutionally Protected Privacy Interest ¶18 To determine whether a person has a constitutionally protected privacy interest, we consider (1) whether the person has a subjective or actual expectation of privacy, and (2) whether society is willing to recognize that expectation as reasonable. Mont. Human Rights Div. v. Billings, 199 Mont. 434, 442, 649 P.2d 1283, 1287 (1982). Actual expectation of privacy is necessarily a question of fact that requires a determination of whether the individual whose privacy is at issue had notice of possible disclosure. Havre Daily News, ¶ 23; Disability Rights Mont., ¶ 22. ¶19 The District Court found “the Employees did expect the fact they were disciplined for having misused public computers and the specifics regarding that misuse would be and remain private.” The Gazette counters that no actual expectation of privacy could exist here because the City’s Internet use policy for employees provides that “[u]sers using City-provided Internet accounts should not assume they are provided any degree of anonymity.” Additionally, the policy states that “[u]se of the Internet may be monitored by the City.” ¶20 The precise question is whether the Employees had an actual expectation of privacy in their identities in relation to internal disciplinary proceedings, not as to their employer’s knowledge of their Internet usage. Only the latter is addressed by the City’s policy. If the question was whether they held an actual expectation that the City would not monitor their usage, clearly the answer would be no. However, the City’s Internet usage policy alone is insufficient to render clearly erroneous the District Court’s finding 9 that the Employees had an actual expectation that “the fact they were disciplined for having misused public computers . . . would be and remain private.” ¶21 Having concluded the Employees had an actual or subjective expectation of privacy, we next must determine whether society would be willing to recognize that expectation as reasonable. Whether society is willing to accept an expectation of privacy as reasonable is a determination of law that requires reasoned consideration of the specific facts underlying the dispute. To provide but a few examples, the following inquiries may prove relevant in evaluating the reasonableness of an individual’s expectation of privacy: (1) attributes of the individual . . . and whether the individual holds a position of public trust; (2) the particular characteristics of the discrete piece of information; and (3) the relationship of that information to the public duties of the individual. Havre Daily News, ¶ 23 (citations omitted). The reasonableness of an expectation of privacy “may vary, even regarding the same information and the same recipient of that information.” Mont. Human Rights Div., 199 Mont. at 443, 649 P.2d at 1288. ¶22 In order to examine this fact specific question of law, it is important to undertake a review of our prior decisions relating to the reasonableness of public employees’ expectations of privacy when balanced against the public’s right to know. ¶23 In Montana Human Rights Division, the Human Rights Commission (HRC) requested personnel records of complainants and certain other employees in order to investigate allegations of discrimination based on sex, race, marital status, and/or union membership. 199 Mont. at 436, 649 P.2d at 1284-85. The City refused to release non- complainant files, citing those individuals’ right to privacy. Mont. Human Rights Div., 10 199 Mont. at 437, 649 P.2d at 1285. We noted that employment records reasonably contain references to family, health, or substance abuse problems, employer criticisms, test scores, prison or military records, and many other things an employee would reasonably expect to be confidential. Mont. Human Rights Div., 199 Mont. at 442, 649 P.2d at 1287-88. ¶24 We ultimately held that, though the information being requested was subject to the right to privacy, the right was nevertheless outweighed by other considerations, including the right to equal protection and the HRC’s authority to investigate claims of discrimination. Mont. Human Rights Div., 199 Mont. at 442-44, 649 P.2d at 1287-89. We rejected the City’s argument that redaction of the names could reduce the intrusion on the non-complainants’ privacy because the names alone could be indicators of sex, race, or even marital status, information which may not be available in the rest of the file. Mont. Human Rights Div., 199 Mont. at 446, 649 P.2d at 1289. Though we found that the right to privacy was outweighed by the HRC’s right to know, we required a protection order to restrict release of identifying information to the public. Mont. Human Rights Div., 199 Mont. at 449, 649 P.2d at 1291. ¶25 Two years later, in Missoulian, we held that the individual privacy interests of six university presidents in confidential job performance evaluations clearly exceeded the merits of public disclosure. 207 Mont. at 533, 675 P.2d at 973. The Missoulian had sought access to a meeting of the Board of Regents (Board) and the Commissioner of Higher Education (Commissioner) where the presidents’ job performance was discussed, 11 as well as evaluation documents considered by the Board. Missoulian, 207 Mont. at 517, 675 P.2d at 964-65. The request was denied by the Board due to privacy concerns. Missoulian, 207 Mont. at 517, 675 P.2d at 964-65. ¶26 We held that “time, place and status are factors in the reasonableness determination. . . . [T]he determination should include consideration of all relevant circumstances, including the nature of the information sought.” Missoulian, 207 Mont. at 523, 675 P.2d at 968 (emphasis in original). “[M]ere status does not control the determination. University presidents do not waive their constitutional protections by taking office.” Missoulian, 207 Mont. at 526, 675 P.2d at 969. Confidentiality in personnel records and evaluations is especially important because such records include subjective opinions of the employee’s performance that will vary with the person evaluating the employee, public disclosure could impede candid communication between employer and employee, and a supervisor could use the public nature of evaluations or ratings as a vindictive mechanism against employees she disliked. Missoulian, 207 Mont. at 527, 675 P.2d at 970 (citing Trenton Times Corp. v. Bd. of Educ., 351 A.2d 30, 33 (N.J. Super. App. Div., 1976)). We found it reasonable to expect that information that has a “‘lack of objective criteria, the potential for vindictiveness, the lack of an opportunity for the employee to rebut statements . . . and a substantial potential for abuse’” will be kept confidential. Missoulian, 207 Mont. at 527, 675 P.2d at 970 (quoting Trenton Times, 351 A.2d at 33). We concluded the presidents’ right to privacy clearly outweighed general assertions that public disclosure would “foster[ ] public 12 confidence in public institutions, maintain[ ] the accountability of public officials, assur[e] public access to information to allow evaluation of public expenditures, and prevent[ ] the secret conduct of government and usurping of the people’s sovereignty,” without a showing of how any of these interests would be furthered or hindered by public disclosure. Missoulian, 207 Mont. at 532, 675 P.2d at 972. ¶27 In Great Falls Tribune v. Cascade County Sheriff, 238 Mont. 103, 107, 775 P.2d 1267, 1269 (1989), we held that the privacy interests in the identity of law enforcement officers disciplined for unlawful acts while on duty did not clearly exceed the merits of public disclosure. City police officers and county sheriff’s deputies were involved in a chase to apprehend a suspect. Great Falls Tribune, 238 Mont. at 104, 775 P.2d at 1267. A deputy sheriff ran his car up onto a city sidewalk and struck the suspect, then on foot, but did not take him for medical treatment. Great Falls Tribune, 238 Mont. at 104, 775 P.2d at 1267. An investigation into the suspect’s injuries resulted in one deputy being suspended, one police officer being fired, and two other police officers resigning when given the option to resign or be discharged. Great Falls Tribune, 238 Mont. at 104, 775 P.2d at 1267. The Great Falls Tribune sought the names of the disciplined officers. Great Falls Tribune, 238 Mont. at 104, 775 P.2d at 1268. ¶28 We affirmed the District Court’s conclusion that society would not recognize a very strong expectation of privacy in the identity of law enforcement officers disciplined for serious misconduct while in the line of duty. Great Falls Tribune, 238 Mont. at 107, 775 P.2d at 1269. Law enforcement officers occupy positions of public trust because the 13 “public health, safety, and welfare are closely tied to an honest police force. The conduct of our law enforcement officers is a sensitive matter so that if they engage in conduct resulting in discipline for misconduct in the line of duty, the public should know.” Great Falls Tribune, 238 Mont. at 107, 775 P.2d at 1269. ¶29 In Flesh v. Board of Trustees of Joint School Dist. No. 2, 241 Mont. 158, 166, 786 P.2d 4, 9 (1990), we concluded that an assistant school administrator had a reasonable expectation of privacy in a meeting to discuss allegations of wrongdoing that outweighed the public’s right to know. Robert Flesh (Flesh) filed a complaint to void any decision made during the closed portion of a meeting where the school board heard a grievance filed by Flesh alleging that the assistant school administrator had maliciously made false statements against him. Flesh, 241 Mont. at 160, 786 P.2d at 6. Over Flesh’s objections, the school board closed the presentation and deliberation portions of the meeting to the public. Flesh, 241 Mont. at 161, 786 P.2d at 6. ¶30 We noted that the grievance specifically asked the school board to take disciplinary action against the administrator, a request that would necessitate a review of his personnel record. Flesh, 241 Mont. at 166, 786 P.2d at 9. We held that “society is willing to recognize a privacy interest in a public employer’s consideration of allegations involving an employee’s character, integrity, honesty, and personality.” Flesh, 241 Mont. at 165, 786 P.2d at 9. Since there was no showing of any public interest to be served by opening the meeting to the public, the privacy interest of the employee clearly outweighed the public’s right to know. Flesh, 241 Mont. at 166, 786 P.2d at 9. 14 ¶31 In Citizens to Recall Mayor Whitlock v. Whitlock, 255 Mont. 517, 522-23, 844 P.2d 74, 77-78 (1992), we held that a mayor, as an elected official, has no reasonable expectation of privacy in regard to an investigation of allegations of “sexually harassing public employees or of other misconduct related to the performance of his official duties.” Then-Mayor James Whitlock of Hamilton had been accused by City Judge Martha Bethel of sexual harassment and discrimination. A citizens group filed suit seeking release of the investigatory report. Whitlock, 255 Mont. at 519-20, 844 P.2d at 76. ¶32 In affirming the District Court’s order to release the report, we noted two important reasons that the mayor could not allege a reasonable expectation of privacy. Whitlock, 255 Mont. at 522-23, 844 P.2d at 77-78. First, an elected official must be subjected to public scrutiny because it is the public that has the responsibility for “hiring, disciplinary action, and supervision.” Whitlock, 255 Mont. at 522, 844 P.2d at 77. Second, we noted that the nature of the information being sought was the result of an investigation into misconduct related to the performance of his official duties, rather than general performance evaluations or discussion of Whitlock’s character, integrity, honesty, or personality. Whitlock, 255 Mont. at 523, 844 P.2d at 78. We held that sexual harassment allegations went directly to Whitlock’s ability to properly carry out his public duties, and the report was therefore properly disclosed. Whitlock, 255 Mont. at 522, 844 P.2d at 77-78. 15 ¶33 In Bozeman Daily Chronicle v. Bozeman Police Department, 260 Mont. 218, 220, 859 P.2d 435, 436 (1993), a cadet at the Law Enforcement Academy in Bozeman made an allegation of sexual intercourse without consent against an off-duty Bozeman city police officer. Following investigation, no criminal charges were filed, but the special prosecutor opined that “[the police officer] should not be allowed to continue working as a law enforcement officer because of inappropriate use of his position in relation to his contacts with women.” Bozeman Daily Chronicle, 260 Mont. at 220, 859 P.2d at 436-37. The officer resigned the next day. Bozeman Daily Chronicle, 260 Mont. at 220, 859 P.2d at 437. The Bozeman Daily Chronicle (Chronicle) sought the name of the officer and the investigative documents. Bozeman Daily Chronicle, 260 Mont. at 221, 859 P.2d at 437. ¶34 We upheld the District Court’s order to release the name, and reversed its order shielding the investigative documents. Bozeman Daily Chronicle, 260 Mont. at 221, 229, 859 P.2d at 437, 442. Though the officer had been off duty at the time of the alleged misconduct, and had resigned by the time of the Chronicle’s request, we noted that “the nature of the alleged misconduct ran directly counter to the police officer’s sworn duty to uphold the law, to prevent crime, and to protect the public. . . . [S]uch alleged misconduct went directly to the police officer’s breach of his position of public trust [and] therefore, this conduct is a proper matter for public scrutiny.” Bozeman Daily Chronicle, 260 Mont. at 227, 859 P.2d at 440. ¶35 In Jefferson County, ¶¶ 4-5, the Montana Standard sought information regarding the arrest for DUI of Beaverhead County Commissioner Donna Sevalstad (Sevalstad). 16 Sevalstad pled guilty to driving under the influence of alcohol and driving with an expired license. Jefferson Co., ¶ 4. We cited our decision in Whitlock in affirming the District Court’s order to release the requested information. Jefferson Co., ¶ 16. Because Sevalstad was an elected official, the public had the responsibility in hiring, supervising and disciplining her actions, which requires that the public be informed of her actions and conduct. Jefferson Co., ¶¶ 16-17 (citing Whitlock, 255 Mont. at 522, 844 P.2d at 77). Even though her driving habits didn’t pertain directly to her duties as County Commissioner, “her decision to violate the law directly relate[d] to her ability to effectively perform her job duties. That is, Sevalstad’s decision to violate the law questions her judgment.” Jefferson Co., ¶ 17. ¶36 We have also held that teachers hold positions of public trust because they are entrusted with the care and instruction of children. Svaldi v. Anaconda-Deer Lodge Co., 2005 MT 17, ¶ 31, 325 Mont. 365, 106 P.3d 548. Antoinette Svaldi (Svaldi), a teacher in the Anaconda public school system for approximately 25 years, was alleged by several parents to have assaulted or verbally abused their children. Svaldi, ¶ 5. Svaldi filed an action against the County alleging that her right to privacy was violated when the County Attorney informed a reporter from a local paper that his office was discussing a deferred prosecution agreement with Svaldi’s attorney in exchange for Svaldi’s promise to resign from teaching. Svaldi, ¶¶ 10-11. We affirmed the District Court’s grant of summary judgment in favor of the County, even though no criminal charges were ultimately filed and no deferred prosecution agreement was ever entered, because she was in a position of 17 public trust and the allegations of assault against her students “went directly to her ability to properly carry out her duties.” Svaldi, ¶ 31. ¶37 In Yellowstone County v. Billings Gazette, 2006 MT 218, ¶¶ 22-23, 333 Mont. 390, 143 P.3d 135, we held that an interim chief public defender did not have a reasonable expectation of privacy in his deposition testimony for an employment discrimination lawsuit that outweighed the public right to know. Following the resignation of the Yellowstone County Chief Public Defender, Curtis Bevolden (Bevolden) was hired as the interim chief. Yellowstone Co., ¶ 4. Bevolden fired the Deputy Chief Defender, Roberta Drew (Drew), who had also applied for the interim chief position, but an internal grievance proceeding resulted in Drew’s reinstatement. Yellowstone Co., ¶ 4. Drew filed a federal discrimination suit against the County, Bevolden, and other officials. Yellowstone Co., ¶ 4. The Gazette requested Bevolden’s unredacted deposition transcript from the suit. Yellowstone Co., ¶ 7. ¶38 In holding that the public right to know was not clearly outweighed by any privacy interest Bevolden may have in the redacted information, we noted that public defenders have the duty to safeguard the constitutional rights to counsel and a fair and speedy trial, and are essential to preserving public trust in our judicial system. Yellowstone Co., ¶ 22. We also held that the redacted information of the transcript “bears directly on Bevolden’s professional judgment, the management decisions he made as Interim Chief Public Defender, and his official conduct.” Yellowstone Co., ¶ 23. Because the information 18 being sought related directly to the official duties of a person in a position of public trust, Bevolden could not assert a right to privacy that outweighed the public’s right to know. ¶39 In 2011, we decided Billings Gazette v. Billings, 2011 MT 293, 362 Mont. 522, 267 P.3d 11. Deanna Anthony (Anthony), a Police Department Senior Administrative Coordinator authorized to use a police department credit card, was investigated for allegations that she had made thousands of dollars of personal purchases using the card. Billings Gazette, ¶¶ 3, 25. Following the investigation, Anthony was issued a 16-page “due process letter” notifying her of a due process hearing to respond to the allegations against her, and detailing the evidence gathered during the investigation. Billings Gazette, ¶ 4. The City denied the Gazette’s request for the letter. Billings Gazette, ¶ 5. ¶40 We held that even though she was an administrative employee, Anthony held a position of public trust because she was in a job that “allowed her to spend large amounts of public monies.” Billings Gazette, ¶ 22. Because the information being sought related directly to an investigation for allegations of misappropriating public funds, “the very aspect of her job that render[ed] it a ‘position of public trust,’” the due process letter was properly subject to public disclosure. Billings Gazette, ¶ 22. However, we also pointed out that not “every public employee with purchasing power can have no expectation of privacy in her personnel matters.” Billings Gazette, ¶ 27. Based on the facts of the case (“the alleged embezzlement of large sums of [public] money over a protracted period of time”), we held that information relating to a public employee’s violation of the public trust implicit in her duties should be released to the public. Billings Gazette, ¶ 27. 19 ¶41 Having reviewed our prior cases, we turn to the case at bar. The information at issue in this case is limited to the identity of the Employees, including identifying information such as job title and department, as all other aspects of the misconduct, including the nature of the misconduct, the websites visited, the investigation process, and the discipline issued, has been disclosed to the Gazette. Initially, we note that the specific allegations of misconduct, accessing adult or pornographic websites, are not a focus of this analysis. We have held that a public employee is not entitled to heightened privacy protections simply because the information at issue was sexual in nature. Harris v. Smartt, 2002 MT 239, ¶ 66, 311 Mont. 507, 57 P.3d 58 (Justice of the Peace not entitled to heightened privacy rights in pornography downloaded to his county-owned computer). However, neither is a public employee given less of a privacy right due to the sexual nature of the information. The fact that the images viewed on the Employees’ computers “had sexual content does not influence the privacy analysis.” Harris, ¶ 67. ¶42 The City averred that the Employees were not elected officials, department heads, or high management. After in-camera review of the unredacted Corrective Action Forms, the District Court did not make any finding that any of the Employees hold any particular position of trust with regard to public spending or public safety. Our review of the unredacted forms does not convince us otherwise. Additionally, the Internet usage of the Employees was not related to their public duties. The Gazette has not argued to this Court that disclosure of the Employees’ positions or titles, separate and distinct from the 20 Employees’ names, was necessary in order to analyze their respective expectations of privacy. ¶43 Rather, the Gazette argues that there can be no reasonable expectation of privacy in the identity of any public employee if the employee was disciplined for misconduct. The Gazette argues that this holding follows from our decision in Great Falls Tribune where we stated: “it is not good public policy to recognize an expectation of privacy in protecting the identity of a law enforcement officer whose conduct is sufficiently reprehensible to merit discipline.” Great Falls Tribune, 238 Mont. at 107, 775 P.2d at 1269. We reiterated this in Bozeman Daily Chronicle, 260 Mont. at 225, 859 P.2d at 439. However, there are key distinctions between those cases and this one. ¶44 First, in both prior cases the discipline was severe. See Great Falls Tribune, 238 Mont. at 104, 775 P.2d at 1267 (one officer was fired and two others were given the option to resign or be terminated); Bozeman Daily Chronicle, 260 Mont. at 220, 859 P.2d at 436-37 (officer resigned after it was recommended that he not be allowed to continue in law enforcement). Here the employees were given a five-day suspension without pay, a far cry from being discharged or forced to resign. If we were to give the statement from Great Falls Tribune the meaning urged by the Gazette, any disciplinary action, no matter how trivial, would trump an employee’s right to privacy. ¶45 Other important distinctions in the case here are the positions held by the disciplined Employees and the relation of their positions to the alleged misconduct. In Great Falls Tribune, the employees whose identities were being sought were law 21 enforcement officers who had engaged in misconduct in the line of their official duties. We held that law enforcement officers hold a particular position of public trust due to their sworn duty to protect the public health, safety, and welfare. Great Falls Tribune, 238 Mont. at 107, 775 P.2d at 1269. Allegations of misconduct in apprehending a suspect and failing to seek medical attention for his injuries clearly violate this duty. Similarly, in Bozeman Daily Chronicle, we noted that allegations of criminal conduct, even while off duty, ran directly counter to the officer’s duty to uphold the law and prevent crime. Bozeman Daily Chronicle, 260 Mont. at 227, 859 P.2d at 440. Also, the officer’s position was implicated by the victim’s status as a police cadet. No similar connection can be made with regard to the Employees in this case. ¶46 The Dissent argues that the Employees’ actions could be considered illegal conduct under the Computer Fraud and Abuse Act, as well as Montana’s Unlawful Computer Use, Theft, and Official Misconduct statutes. Dissent, ¶ 68. However, no criminal charges have been filed or are contemplated in this case. Notably, the Ninth U.S. Circuit Court of Appeals has held that an employee’s misuse of an employer’s computer is not a crime under the Computer Fraud and Abuse Act. U.S. v. Nosal, 676 F.3d 854, 860 (9th Cir. 2012) (refusing to read the CFAA as policing employer personnel policies through criminal law). In any event, the misconduct in this case does not rise to the level of illegal conduct that was present in Great Falls Tribune, Bozeman Daily Chronicle, or Billings Gazette. 22 ¶47 Additionally, we have previously held that matters relating to employee misconduct can be protected from the public right to know. In Montana Human Rights Division, we held that public employees possess a privacy right in their personnel files. 199 Mont. at 443, 649 P.2d at 1288. The Court noted that personnel files can include sensitive information such as drug and alcohol problems, prison records, poor work performance, and tardiness—all forms of wrongful conduct. Mont. Human Rights Div., 199 Mont at 442, 649 P.2d at 1288. “A discussion regarding an employee’s alleged wrongful conduct constituted precisely the type of communication that frequently occurred between the employer and employee.” Billings Gazette, ¶ 48 (Morris, Rice, Baker, JJ., dissenting) (citing Mont. Human Rights Div., 199 Mont at 442, 649 P.2d at 1288). The Court in Montana Human Rights Division recognized the fact that there is frequently pressure upon an employee to “communicate these matters to his employer in the privacy of his boss’s office . . . .” Mont. Human Rights Div., 199 Mont at 442, 649 P.2d at 1288. Even without any assurance of confidentiality, the Court nevertheless concluded that “employees would reasonably expect such communication normally would be kept confidential.” Mont. Human Rights Div., 199 Mont at 442, 649 P.2d at 1288. Thus, an allegation of misconduct by a public employee does not summarily end the privacy analysis. ¶48 The Gazette also argues, and the District Court agreed, that the City’s Acceptable Use Policy demonstrates that the public placed its trust in the Employees with respect to Internet usage. It further argues that misuse of the Internet, a City resource, while at 23 work is a violation of that public trust that relates directly to their fitness to perform a public duty. However, evident from the above discussion of our cases, not all public employees hold the same level of privacy in all disciplinary matters simply on the basis of having a public employer. We are not prepared to say that providing public employees with access to a computer on which to do their work itself “evinces a public trust” that can be breached by a violation of an Internet use policy. Nor are we prepared to hold that any violation of office policy by any government employee results in a violation of public trust simply because tax dollars pay that employee’s salary. To do so would be tantamount to a holding that all citizens lose their constitutionally guaranteed right to privacy on the day they enter public employment. If university presidents do not automatically lose their constitutional protections by taking office, Missoulian, 207 Mont. at 526, 675 P.2d at 969, the same would certainly be true for the thousands of other public employees. ¶49 Our past cases have held, and we reaffirm today, that the “‘right of privacy turns on the reasonableness of the expectation, which may vary, even regarding the same information and the same recipient of that information’. . . [T]ime, place and status are factors in the reasonableness determination.” Missoulian, 207 Mont. at 523, 675 P.2d at 968 (quoting Montana Human Rights Div., 199 Mont. at 443, 649 P.2d at 1288). Where the status of the employee necessitates a high level of public trust, such as an elected official or high level employee, the expectation of privacy in misconduct may be found to be significantly lower than for an administrative employee. Similarly, an employee may 24 have a lower expectation of privacy in misconduct related to a duty of public trust, such as responsibility for spending public money or educating children. ¶50 Here, the Employees are not elected officials, high-level management, or department heads, nor is there evidence that any specific duty alleged to have been violated related to the performance of a public trust function. The information being sought is merely their identities in relation to internal disciplinary action for a violation of office policy. We hold that society would be willing to accept as reasonable a public employee’s expectation of privacy in his or her identity with respect to internal disciplinary matters when that employee is not in a position of public trust, and the misconduct resulting in the discipline was not a violation of a duty requiring a high level of public trust. ¶51 The Dissent employs a Fourth Amendment analysis and concludes that the Employees had no reasonable expectation of privacy in their computer misuse. Dissent, ¶¶ 74, 75. The Fourth Amendment protects persons from unreasonable searches and seizures in the criminal context. The misconduct in this case involved no criminal conduct. Further, the civil cases cited by the Dissent, including the extensive quote from Muick v. Glenarye Electronics, 280 F.3d 741 (7th Cir. 2002), involve employee privacy claims raised against employers who sought information. Rejection of such claims by the courts in these cases was appropriately premised upon the employees’ lack of an expectation of privacy as to their employers. Unlike these cases, there is here no privacy claim by the Employees against the City. The City obtained the information from the 25 Employees’ computers pursuant to the computer use policy, and proceeded to discipline the Employees. The question is whether the Gazette—a third party—is entitled to the identifying information about the Employees. ¶52 Montanans are provided a “heightened expectation of privacy” under the Montana Constitution in comparison to the U.S. Constitution, State v. 1993 Chevrolet Pickup, 2005 MT 180, ¶ 9, 328 Mont. 10, 116 P.3d 800, and Article II, Sections 9 and 10 of the Montana Constitution explicitly require that a balancing of the right to know and the right to privacy be conducted in this case. This Court’s precedent provides the appropriate analysis of the particular state constitutional provisions that govern here, without regard to Fourth Amendment jurisprudence or federal approaches to the issue. ¶53 Having found that the Employees had an actual or subjective expectation of privacy that society is willing to find reasonable, we must balance the Employees’ right to privacy against the merits of public disclosure. B. Balancing Privacy with the Public Right to Know ¶54 The City argues that the risks mentioned in Missoulian with respect to performance evaluations are present in this case and necessitate a need for confidentiality in internal disciplinary matters. Specifically, it asserts that it has an interest in the confidentiality of disciplinary measures in order to effectively address and react to misconduct without fear that employer criticisms and disciplinary actions will be publicly disseminated. It argues that honest and critical communications between employers and employees will suffer, and there could be a risk of vindictive use of the discipline 26 process, which lacks an opportunity for the employee to rebut the alleged misconduct, if disciplinary actions are subjected to public scrutiny. ¶55 The only argument offered by the Gazette in favor of public disclosure is that “[o]penness promotes fairness and thwarts cronyism.” It argues that without knowing the name and status of each disciplined Employee, the public cannot determine why each Employee was given the same punishment, or why an employee of a different public agency was given a harsher punishment for similar conduct. The District Court agreed, holding that public disclosure of the corrective action forms and identifying information would “foster[ ] a public confidence in public institutions and maintain[ ] the accountability of public officers.” ¶56 However, as we held in Missoulian, general assertions that public disclosure will foster public confidence in public institutions and maintain accountability for public officers are not sufficient to establish a strong public interest. Missoulian, 207 Mont. at 532, 675 P.2d at 972. The Gazette has already received information regarding the misconduct of the Employees, the investigation by the City, and the discipline meted out to each Employee. If the public is dissatisfied with the discipline chosen by the City, it has all the information it needs to voice its opinions and objections to the City Council, the Mayor, or the newspaper. Public knowledge of the names of the individuals disciplined will not provide the public with any greater opportunity to participate in the internal employment decisions of the City. 27 ¶57 Unlike public officials, over whom the public has responsibilities regarding “hiring, disciplinary action, and supervision,” Whitlock, 255 Mont. at 522, 844 P.2d at 77, it is the responsibility of the City to hire, fire, and discipline its employees. Such decisions necessarily involve a subjective determination on the part of the supervisor. The nature of the work to be done, the alleged misconduct, and the person making the disciplinary decision will all affect the type of discipline meted out, even for the exact same violation. As we noted in Flesh, these disciplinary decisions necessitate a review of the employee’s entire personnel file. Flesh, 241 Mont. at 166, 786 P.2d at 9. ¶58 Finally, to hold that the general interests of “fairness and prevention of cronyism,” absent any allegations that such has occurred, is sufficient to outweigh an employee’s privacy interest would open all public employment decisions to public scrutiny. Decisions of whom to hire, promote, discipline, or terminate are all decisions that require a subjective evaluation by supervisors based upon past performance, personality, character, test scores, etc. Our past cases preclude such an expansive holding. ¶59 We conclude that the Employees’ reasonable expectation of privacy in their identities with regards to internal disciplinary proceedings clearly outweighs the limited merits of public disclosure. “This information may make interesting or sensational news copy, but we conclude that public disclosure is not in the public interest.” Missoulian, 207 Mont. at 532, 675 P.2d at 972. ¶60 2. Did the District Court err by denying the Gazette’s request for attorney fees and costs? 28 ¶61 Having concluded that the District Court’s order to disclose the Employees’ identities was entered in error, we decline to address the Gazette’s request for attorney fees. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ BRIAN MORRIS Justice Laurie McKinnon, dissenting. ¶62 In my view, a City employee has no reasonable expectation of privacy in viewing pornographic materials over the Internet using a City computer during work hours— particularly when there is a policy in place which specifically advises employees that use of the Internet is not anonymous and may be monitored. Moreover, placement of a final disciplinary report (the Corrective Action Form) into an employee’s personnel file does not transform the employee’s open and pervasive access to pornographic material over the Internet into a private activity. The Court, by misstating the question as “whether the Employees had an actual expectation of privacy in their identities in relation to internal disciplinary proceedings, not as to their employer’s knowledge of the Internet usage,” Opinion, ¶ 20 (emphasis added), redefines the inquiry in order to recognize a privacy 29 interest that other courts have uniformly held to be unreasonable. After finding that the Employees were “not in a position of public trust” and that “the misconduct resulting in the discipline was not a violation of a duty requiring a high level of public trust,” Opinion, ¶ 50, the Court concludes that the name, position, and department of a City employee accessing pornography may not be disclosed to the public. In my view, it is not necessary to decide whether the Employees are in positions of “public trust,” because the Employees do not have an expectation of privacy, which Montanans are willing to accept as reasonable, in the fact that they accessed, posted, and enjoyed pornographic material while working for a public employer with an Internet use policy. ¶63 All City employees are subject to the City’s “Acceptable Use” policy, which applies to “all equipment, systems and tools used for electronic communication, local area networks, computer networks, the Internet and e-mail.” Among other things, the policy prohibits use of City computers to access or store “offensive graphical images.” It also prohibits “[u]sing any means to defeat security systems on any computer network” and the “propagation of computer worms and viruses.” Employees are advised that “[u]se of the Internet may be monitored by the City.” Moreover, the policy states: The City’s Internet hosts are traceable to the City. Users using City- provided Internet accounts should not assume they are provided any degree of anonymity. Outside users who want to identify machines associated with the City can do so easily. [Emphasis added.] ¶64 In the spring of 2012, the City conducted internal investigations into the Internet activity of five City employees on City-provided computers and ultimately issued written 30 Corrective Action Forms suspending each employee for five days without pay. The nature of the violations were set forth in the Corrective Action Forms as follows: 1. Daily logs of each of the five employees showed a pattern of “[s]eeking out pictures of women on the internet that were sexual in nature.” These images included “nude adults,” “pictures that were pornographic in nature,” and “scantily clad adults that were inappropriate for the workplace.” 2. Daily logs also showed a pattern of “[e]xcessive amounts of time being spent on non-work related searches while . . . being compensated to perform . . . assigned duties.” 3. One of the employees had conducted “[s]earches on blog, foreign country and image hosting sites. Specifically, links were found to a Polish site with adult content that contained file sharing functionality, subsequently increasing the potential of a virus threat to the City’s computer network.” 4. Another employee had saved four images of “scantily clothed and nude adults and pictures that were pornographic in nature.” 5. Yet another employee had sought out “pictures of women associated with escort services.” As noted, the City disciplined the Employees by imposing five days of suspension on each. Although the suspensions were without pay, the City did not dock any pay of the employees for the “excessive” amount of work time they had spent viewing pornography. ¶65 As the Court observes, the documents requested by the Gazette have already been disclosed. Opinion, ¶¶ 9, 17. However, certain information has been redacted from those documents—information that the Gazette contends the public has a constitutional right to know. Specifically, the information redacted in the Corrective Action Forms includes the employee’s name, the employee’s position, the employee’s department, and the name of the employee’s supervisor. 31 ¶66 Despite this Court’s knowledge—acquired through our in-camera review of the unredacted Corrective Action Forms—that some of the disciplined employees held upper-level positions and/or were involved in law enforcement, we refuse to apply that knowledge and analysis in resolving this case. We avoid the analysis by stating: “The City averred that the Employees were not elected officials, department heads, or high management.” Opinion, ¶ 42 (emphasis added). But the Court knows what positions the Employees held because we, like the District Court, reviewed the documents, which are part of the record on appeal. We nevertheless ignore the Employees’ positions in spite of our precedent and the Gazette’s argument that the public has a constitutional right to assess whether the City meted out discipline fairly. We avoid an analysis that incorporates consideration of the Employees’ specific positions by determining that the Gazette did not advance this argument (How could it, given that the Gazette was not privy to that information?) and that “the District Court did not make any finding that any of the Employees hold any particular position of trust with regard to public spending or public safety.” Opinion, ¶ 42. In failing to recognize the significance of the redacted information to the Gazette’s investigation, we have subjectively limited the Gazette’s inquiry and decided the direction the Gazette’s investigation and reporting should take. Montana’s constitutional provision embracing the citizenry’s right to know is premised on the right to have information disseminated and available so that the public—not this Court—may draw its own inferences and conclusions from the information and thereby make informed decisions regarding their governmental bodies. The unfiltered 32 dissemination of information is fundamental to the exercise of Montana’s constitutional right to know and is limited only where an individual has a reasonable privacy interest that “clearly exceeds” the merits of public disclosure. Mont. Const. art. II, § 9. ¶67 Although the Court states that “[t]he only argument offered by the Gazette in favor of public disclosure is that ‘[o]penness promotes fairness and thwarts cronyism,’ ” Opinion, ¶ 55 (second brackets in original), the Gazette has actually advanced several arguments in support of its request for disclosure—arguments which the Court fails to acknowledge. First, the Gazette has argued that in violating the City’s Acceptable Use policy, the Employees acted to defeat the security system on the City’s computer network and potentially compromised the City’s workplace by breaching security devices and introducing viruses from international pornography websites. While the Court states that “the specific allegations of misconduct, accessing adult or pornographic websites, are not a focus of this analysis,” Opinion, ¶ 41, the Gazette argues that the pornographic nature of the material and the potential for security breaches are relevant in determining what society recognizes as a reasonable expectation of privacy. We are required to examine the privacy interest “ ‘in the context of the facts of each case.’ ” Associated Press, Inc. v. Mont. Dept. of Revenue, 2000 MT 160, ¶ 24, 300 Mont. 233, 4 P.3d 5 (emphasis omitted) (quoting Missoulian v. Bd. of Regents of Higher Educ., 207 Mont. 513, 529, 675 P.2d 962, 971 (1984)). Accordingly, we cannot avoid examining the content of the material at issue and the security threats posed by the individuals’ actions when assessing whether society would recognize the privacy interest as reasonable. I thus do not agree that “[t]he 33 fact that the images viewed on the Employees’ computers ‘had sexual content does not influence the primary analysis.’ ” Opinion, ¶ 41. I seriously question whether society is willing to protect the privacy of a public employee who breaches security devices, thus exposing the City’s computer network to damage from viruses and other malware, in order to view pornography on a public computer during work hours. The pornographic nature of the material is important, in the context of all other factors. ¶68 Second, the Gazette maintains that the public has an interest in knowing whether public employees are violating the law. The Gazette argues that although no charges have been filed, the Employee’s conduct can be characterized as illegal under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. The Gazette points to several court decisions which have held that violating the terms of an “acceptable use” policy may constitute a federal offense. See e.g. U.S. v. John, 597 F.3d 263, 271-73 (5th Cir. 2010); U.S. v. Rodriguez, 628 F.3d 1258, 1263 (11th Cir. 2010); cf. U.S. v. Teague, 646 F.3d 1119, 1122 (8th Cir. 2011). Significantly, Montana has its own criminal offenses relating to the unlawful use of a computer. Section 45-6-311(1)(a), MCA, prohibits a person from knowingly or purposely “obtain[ing] the use of any computer, computer system, or computer network without consent of the owner.” The City’s Acceptable Use policy clearly establishes that employees are not authorized to use City computers to access pornographic materials over the Internet. Arguably, Montana’s theft statute is likewise implicated by the Employees’ conduct. Pursuant to § 45-6-301(2)(a), MCA, a person commits the offense of theft when the person purposely or knowingly obtains, by 34 deception, control over another’s property (money paid in the form of wages) with the purpose of depriving the owner (the City) of that property. Montana additionally has an “official misconduct” statute that makes it unlawful for a “public servant” to “knowingly perform[ ] an act in an official capacity that the public servant knows is forbidden by law.” Section 45-7-401(1)(b), MCA. “Public servant” means “an officer or employee of government.” Section 45-2-101(64)(a), MCA (emphasis added). This Court’s precedent establishes that the public has the right to know about unlawful activity of public employees. Great Falls Tribune Co. v. Cascade Co. Sheriff, 238 Mont. 103, 107, 775 P.2d 1267, 1269 (1989); Bozeman Daily Chron. v. City of Bozeman Police Dept., 260 Mont. 218, 227, 859 P.2d 435, 440-41 (1993). Furthermore, our constitutional right to know protects the right to receive information about decisions of government officials to prosecute or commence a criminal investigation. The fact that “no criminal charges have been filed or are contemplated,” Opinion, ¶ 46, puts the cart before the horse—this is precisely the information the public has the right to know in order to evaluate the conduct of public officials. ¶69 Third, the Gazette also maintains that the public has the right to scrutinize whether the discipline the City imposed on the Employees was fair. While the Court seemingly finds it significant that the punishment meted out in other cases was “severe” while the punishment meted out in the present case was less so, Opinion, ¶ 44, I believe such an assessment of government discipline is best left for citizens to determine after being presented with adequate information. The Gazette specifically argued before the District 35 Court that during the same timeframe when the Employees here were given five-day suspensions, five employees with the City landfill also received five-day suspensions for taking trash outside the City during off-work hours. The Gazette maintained that the public has a right to scrutinize the discipline imposed and to question whether there is “some distinction between high-level employees” who got the same punishment “as the people in the landfill.” Likewise, on appeal, the Gazette again questions whether “the status of the employees” accounts for the punishments that the City imposed— information which the Gazette maintains the public has a constitutional right to know. ¶70 Lastly, the Gazette argues that a substantial amount of taxpayer money was wasted on time the Employees spent accessing pornographic materials and that the investigation likewise has cost taxpayers money and public resources. The Gazette maintains that the public has an interest in how their government spends public funds, just as the public had a right to know the identity of the police department employee who misappropriated public funds in Billings Gazette v. City of Billings, 2011 MT 293, ¶¶ 22-27, 362 Mont. 522, 267 P.3d 11. ¶71 In light of the foregoing, the Gazette’s arguments for public disclosure cannot be dismissed as merely seeking to promote fairness and thwart cronyism. Opinion, ¶ 51. Rather, in my opinion, the Gazette has set forth these particular arguments as components of a more general argument that disclosure fosters public confidence in public institutions and maintains accountability of public officers. 36 ¶72 Determining whether public documents must be disclosed requires a balancing of the public’s right to know with any competing privacy interests.1 Mont. Const. art. II, §§ 9, 10. Again, the balancing must be done in the context of the facts of each case. Yellowstone Co. v. Billings Gazette, 2006 MT 218, ¶ 20, 333 Mont. 390, 143 P.3d 135. A person has a constitutionally protected privacy interest when (1) the person has an actual or subjective expectation of privacy and (2) society is willing to recognize that privacy expectation as reasonable. Yellowstone Co., ¶ 20 (citing Lincoln Co. Commn. v. Nixon, 1998 MT 298, ¶ 16, 292 Mont. 42, 968 P.2d 1141). ¶73 In this case, the District Court observed that neither party had disputed the first prong of the test—actual or subjective expectation of privacy—and the District Court thus found that “the Employees did expect the fact they were disciplined for having misused public computers and the specifics regarding that misuse would be and remain private.” The District Court further determined, however, that the Employees’ subjective expectations of privacy were unreasonable in light of their knowledge that the City had the right to monitor their Internet usage and that they had no anonymity with respect to 1 The Court declines to address the threshold issue of whether the documents requested by the Gazette are public documents for purposes of Article II, Section 9, “because all of the requested documents have already been disclosed” and “any further discussion as to whether these forms are considered public documents has been rendered moot.” Opinion, ¶ 17. The entire contents of the requested documents have not been disclosed, however. Moreover, under our caselaw, our analysis requires a three-step process that includes consideration of whether the documents are public. Becky v. Butte-Silver Bow Sch. Dist., 274 Mont. 131, 136, 906 P.2d 193, 196 (1995). Finally, the City has raised and argued the question whether the documents are public. For all of these reasons, I believe we are obliged to address the issue. Doing so, I would hold that the Corrective Action Forms are the result of an investigation conducted by a public employer and are public documents within the meaning of Article II, Section 9, pursuant to Great Falls Tribune, 238 Mont. at 107, 775 P.2d at 1269-70; Becky, 274 Mont. at 138, 906 P.2d at 197; and Billings Gazette, 2011 MT 293, ¶ 29. 37 the sites they visited. In my judgment, the District Court’s conclusion was not only correct, but also consistent with that of numerous courts which have considered a public employee’s expectation of privacy and decided that an Internet use policy negates any such expectation. ¶74 In U.S. v. Angevine, 281 F.3d 1130 (10th Cir. 2002), a university professor did not have a reasonable expectation of privacy in the contents of his computer given that the university had a computer policy explaining appropriate computer use and stating that usage could be monitored. The defendant could not have a reasonable expectation of privacy because reasonable university computer users should have been aware that network administrators and others were free to view data downloaded from the Internet. Angevine, 281 F.3d at 1134. In U.S. v. Simons, 206 F.3d 392 (4th Cir. 2000), government employees did not have a reasonable expectation of privacy in the information stored on their computers where a policy stated that the employer could audit, inspect, and/or monitor employees’ use of the Internet. “This policy placed employees on notice that they could not reasonably expect that their Internet activity would be private.” Simons, 206 F.3d at 398. In Muick v. Glenayre Elecs., 280 F.3d 741 (7th Cir. 2002), an employee did not have a reasonable expectation of privacy in a laptop provided by his employer where the employer had notified the employee that it could inspect the laptop. The rationale set forth in the court’s opinion is useful: Muick had no right of privacy in the computer that Glenayre had lent him for use in the workplace. Not that there can’t be a right of privacy . . . in employer-owned equipment furnished to an employee for use in his place of employment. If the employer equips the employee’s office with a safe or 38 file cabinet or other receptacle in which to keep his private papers, he can assume that the contents of the safe are private. But Glenayre had announced that it could inspect the laptops that it furnished for the use of its employees, and this destroyed any reasonable expectation of privacy that Muick might have had . . . . The laptops were Glenayre’s property and it could attach whatever conditions to their use it wanted to. They didn’t have to be reasonable conditions; but the abuse of access to workplace computers is so common (workers being prone to use them as media of gossip, titillation, and other entertainment and distraction) that reserving a right of inspection is so far from being unreasonable that the failure to do so might well be thought irresponsible. Muick, 280 F.3d at 743 (citations omitted). ¶75 Additional authority finding that a public employer’s computer policy precludes a reasonable expectation of privacy includes Wasson v. Sonoma Co. Junior College Dist., 4 F. Supp. 2d 893, 905-06 (N.D. Cal. 1997) (policy giving employer right to access all information stored on employees’ computers extinguished any reasonable expectation of privacy in files stored on the computers); Bohach v. City of Reno, 932 F. Supp. 1232, 1234-35 (D. Nev. 1996) (police officers did not have a reasonable expectation of privacy in their use of a pager system because the police chief had issued an order notifying all users that their messages would be logged); U.S. v. Hamilton, 778 F. Supp. 2d 651, 653-54 (E.D. Va. 2011) (public school employee lacked a reasonable expectation of privacy in emails that were stored on his work computer because the computer use policy stated that the contents of the computer were subject to inspection); cf. Am. Postal Workers Union v. U.S. Postal Serv., 871 F.2d 556, 560 (6th Cir. 1989) (postal employees had no reasonable expectation of privacy in their lockers because postal regulations and 39 collective bargaining agreements both stated that the lockers were subject to examination and inspection at any time). ¶76 Although the above-cited authority is largely in the context of Fourth Amendment jurisprudence, the reasonableness of an expectation of privacy—that is, what society will recognize as legitimate—does not vary depending upon whether the argument is made under the Fourth Amendment or under Montana’s constitutional provision regarding an individual’s right of privacy.2 Our precedent recognizes the validity of federal caselaw in the context of a right-to-know analysis, regarding whether a privacy interest is one that society is willing to recognize as reasonable. In Mont. Human Rights Div. v. City of Billings, 199 Mont. 434, 442-43, 649 P.2d 1283, 1287-88 (1982), we applied the standard set forth by the Supreme Court in Katz v. U.S., 389 U.S. 347, 88 S. Ct. 507 (1967), to evaluate what constituted a reasonable expectation of privacy in relation to the right to know. Katz was the landmark case that defined a constitutionally protected expectation of privacy, under the Fourth Amendment, as consisting of a subjective component and a reasonableness component. This Court has applied that test in search-and-seizure cases, see e.g. State v. Hill, 2004 MT 184, ¶ 24, 322 Mont. 165, 94 P.3d 752; State v. Allen, 2010 MT 214, ¶ 47, 357 Mont. 495, 241 P.3d 1045, in right-to-know cases, see e.g. Mont. Human Rights Div., 199 Mont. at 442-43, 649 P.2d at 1287-88; Great Falls Tribune, 238 Mont. at 105, 775 P.2d at 1268; Billings Gazette, 2011 MT 293, ¶ 12, and in pure privacy 2 It is well established that Montana’s Constitution affords individuals broader protection of privacy than does the federal constitution. Gryczan v. State, 283 Mont. 433, 448-49, 942 P.2d 112, 121-22 (1997); State v. Malkuch, 2007 MT 60, ¶ 12, 336 Mont. 219, 154 P.3d 558. 40 cases, see e.g. Hastetter v. Behan, 196 Mont. 280, 282-83, 639 P.2d 510, 512-13 (1982); State v. Nelson, 283 Mont. 231, 239-42, 941 P.2d 441, 446-48 (1997); Gryczan, 283 Mont. at 449-50, 942 P.2d at 122. ¶77 I cannot accept that Montana citizens would recognize as reasonable, under Katz, Mont. Human Rights Div., or any other precedent, this Court’s willingness to shield the identities, positions, departments, and supervisors of public employees who access pornographic material on their work computers during work hours after having been warned that their computer usage would be monitored and that they cannot expect anonymity. I also am not willing to carve out an exception to the well-established test for determining a constitutionally protected expectation of privacy because we want to protect particular employees from embarrassment. The reasonableness of an expectation of privacy depends on what society deems is legitimate, and such a test cannot logically depend on whether a claim is asserted pursuant to search-and-seizure jurisprudence or precedent interpreting the right to know. ¶78 Contrary to the Court’s reasoning, see Opinion, ¶ 47, the City’s placement of the final disciplinary report in each Employee’s personnel file does not give the document protections that it otherwise would not have. The Employee’s privacy expectation has been extinguished by the Acceptable Use policy and is not resurrected by placing the Corrective Action Form into a personnel file. Actions of the Employees in choosing to access websites at work on a City computer with an Internet use policy in effect, for which there was no reasonable expectation of privacy, cannot subsequently be made 41 private through actions of the City in placing the disciplinary report into the protective confines of the Employees’ personnel files. To allow a public employer to potentially subvert the right to know by concealing the contents of the objectionable material in a personnel file would undermine the public’s ability to evaluate the functioning of government and whether it is meting out discipline fairly and evenhandedly. ¶79 The rationale for protecting from disclosure the contents of a personnel file does not exist in this case. Arguably, the Corrective Action Form is more akin to the “due process letter” in Billings Gazette, 2011 MT 293, which we noted was different from the job performance evaluations of university presidents in Missoulian, 207 Mont. 513, 675 P.2d 962, and the employment applications in Mont. Human Rights Div., 199 Mont. 434, 649 P.2d 1283. As we stated in Mont. Human Rights Div., 199 Mont. at 442, 649 P.2d at 1287-88: Employment records would reasonably contain, among less sensitive information, references to family problems, health problems, past and present employers’ criticism and observations, military records, scores from IQ tests and performance tests, prison records, drug or alcohol problems, and other matters, many of which most individuals would not willingly disclose publicly. Some testing and disclosure (e.g., past employment records, prison records, drug or alcohol use) is a necessary part of many applications for employment; other information may be compiled by present employers or may be submitted by an employee in explanation of absence from work or poor performance on the job. It is clear that there is frequently pressure upon an employee to communicate these matters to his employer in the privacy of his boss’s office or on an application for employment or promotion. And while, as far as we know, respondents gave their employees no specific assurances of confidentiality, we believe that employees would reasonably expect such communication normally would be kept confidential. 42 ¶80 Significant to our decision in Missoulian was a written policy that provided for confidentiality of self-evaluations. We noted that the Board’s written evaluation policy stated that the self-evaluations would be confidential and the evaluation meetings would be conducted in “executive session.” The anonymous interviewees who commented on the presidents’ performance were promised confidentiality. It is undisputed that the six university presidents actually expected that the job performance evaluations would be private. [They] submitted their self-evaluations expecting confidentiality. Missoulian, 207 Mont. at 523, 675 P.2d at 968. We held that these expectations of privacy were reasonable. Missoulian, 207 Mont. at 527, 675 P.2d at 970. ¶81 In contrast, the Acceptable Use policy here specifically advises that there is no confidentiality in the materials and the activities conducted on an employee’s computer. Furthermore, nothing in the Corrective Action Form contains sensitive information akin to an employment record, such as family references, health problems, prison records, or drug and alcohol issues. The Corrective Action Form is the final report of the discipline a public employer has imposed on its employee. The Gazette is not requesting the Employees’ entire personnel files, employment records, or performance evaluations; it is requesting the final report—the end product—of the City’s investigation into misconduct of its employees. ¶82 “Government offices are provided to employees for the sole purpose of facilitating the work of an agency. The employee may avoid exposing personal belongings at work by simply leaving them at home.” O’Connor v. Ortega, 480 U.S. 709, 725, 107 S. Ct. 1492, 1501-02 (1987) (plurality). Likewise, a public employee who is paid by taxpayers 43 does not have a reasonable expectation of privacy in viewing pornography during work hours on a City computer, particularly when he/she has been advised by the City that computer use is not anonymous. ¶83 The District Court concluded that because “the Employees’ privacy expectations were unreasonable under these circumstances, their privacy rights do not clearly exceed the merits of public disclosure.” Mont. Const. art. II, § 9. I agree with this conclusion. Although public humiliation may be an unfortunate consequence of disclosure, it is not a defense to disclosure. To the extent the Court holds otherwise, I strongly disagree. /S/ LAURIE McKINNON Justice Patricia O. Cotter joins the Dissent of Justice Laurie McKinnon. /S/ PATRICIA COTTER | November 8, 2013 |
bba1ca78-c3f9-4a73-adf6-c784bff32a47 | State Farm Fire & Cas. Co. v. Schwan | 2013 MT 216 | DA 12-0641 | Montana | Montana Supreme Court | DA 12-0641 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 216 STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff and Appellant, v. DARYL and PATRICIA SCHWAN, individually and as co-personal representatives of the ESTATE OF WHITNEY SCHWAN, Defendants and Appellees. APPEAL FROM: District Court of the Twelfth Judicial District, In and For the County of Hill, Cause No. DV 08-128 Honorable Karen Townsend, Presiding Judge COUNSEL OF RECORD: For Appellant: Martha Sheehy; Sheehy Law Firm; Billings, Montana For Appellee: Norman L. Newhall, III; Linnell, Newhall, Martin & Schulke, PC; Great Falls, Montana Submitted on Briefs: May 15, 2013 Decided: August 6, 2013 Filed: __________________________________________ Clerk August 6 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 State Farm Fire and Casualty Company (State Farm Fire) sought a declaration that its homeowners policy excluded coverage for the vehicular death of Whitney Schwan (Whitney). Daryl Schwan and Patricia Schwan (Schwans), Whitney’s parents and the co-personal representatives of her estate, counterclaimed that State Farm Fire was estopped from denying coverage because it had breached its duty to defend under the policy. The Twelfth Judicial District Court, Hill County, granted summary judgment to the Schwans. The District Court ordered State Farm Fire to pay the Schwans’ claims and awarded them attorney fees and costs. State Farm Fire appeals and raises three issues. We address only the following issue, and reverse and remand for further proceedings: ¶2 Did the District Court err in concluding that State Farm Fire breached its duty to defend? FACTUAL AND PROCEDURAL BACKGROUND ¶3 On the night of June 19, 2004, Whitney was a passenger in a vehicle being driven by Travis Turner (Travis) on a road just south of Havre. Travis was driving his mother’s Dodge Stratus, and lost control of the vehicle. The vehicle left the highway and overturned. Whitney and Travis were both thrown from the vehicle and sustained injuries that resulted in their tragic deaths. ¶4 Marvin and Cheri Turner (Turners), Travis’s parents, had two State Farm insurance policies relevant to this matter. Turners had an automobile liability policy on the Dodge Stratus with State Farm Mutual Automobile Insurance Company (State Farm Auto). They also had a homeowners policy with State Farm Fire. 3 ¶5 In 2007, Schwans sued both Travis’s estate and the Turners (the Underlying Action). The complaint alleged that Travis was negligent in his operation of the vehicle and that Turners were negligent in entrusting Travis with the vehicle, failing to stop him from driving, providing him with alcohol on the night of the accident, and failing to warn Whitney of Travis’s poor driving record.1 State Farm Auto retained Billings attorney Calvin Stacey (Stacey) to defend the Turners in this action. ¶6 Several months later, Stacey notified State Farm Fire’s in-house legal counsel, David Bauer (Bauer), of the Underlying Action. Stacey advised Bauer that Schwans had demanded payment of policy limits under both the State Farm automobile policy and the State Farm homeowners policy. While the homeowners policy generally excluded coverage for automobile accidents, the Schwans contended that the alleged facts triggered coverage pursuant to Pablo v. Moore, 2000 MT 48, 298 Mont. 393, 995 P.2d 460 (the term “arising out of” clearly excluded claims for negligent operation of a vehicle but did not clearly exclude coverage for the negligent hiring, training, and supervision of a driver who caused injury while driving). ¶7 Discussions regarding the status of the case were undertaken by Bauer, State Farm Auto Team Manager, Beth Corbin (Corbin), State Farm Fire Claim Team Manager, Jennifer McKenzie (McKenzie), and Stacey. State Farm Fire acknowledged a potential duty to defend the Turners under the homeowners policy and confirmed with Stacey that 1 Travis’s license was suspended at the time of the accident because of traffic violations and he was expressly excluded from coverage on the Dodge Stratus insurance policy. 4 he was defending the Turners on all claims in the Underlying Action. Stacey further advised that additional counsel was not necessary to assist in defending the Turners. Upon receipt of this information, State Farm Fire sent a letter to the Turners discussing the Schwan suit and Stacey’s representation of them. The letter further stated, in part: It is also our understanding that you are not tendering defense of this lawsuit to State Farm Fire & Casualty Company at this time. . . . If we do not hear from you to the contrary, we will assume that it is acceptable for us to continue handling the case on these terms. Based on its determination that Stacey was defending the Turners on all claims, State Farm Fire did not hire a separate attorney to defend the Turners in the Underlying Action. ¶8 However, State Farm Fire maintained contact with State Farm Auto and Stacey throughout the duration of the Underlying Action. Bauer advised Stacey that if State Farm Auto’s defense of the Turners would terminate for any reason, State Farm Fire would assume responsibility for Stacey’s continued defense of the Turners. Corbin agreed with Bauer and McKenzie’s proposal for State Farm Fire to take over paying for Stacey’s services if it became necessary. ¶9 Shortly thereafter, in January 2008, State Farm Fire filed an action (the Declaratory Action) seeking a declaration that it owed no duty to defend or indemnify the Turners under the homeowners policy for claims arising out of the subject auto accident. State Farm Fire retained an attorney of Turners’ choosing to defend the Turners in the Declaratory Action. With the assistance of Stacey, Turners requested and obtained the representation of Michael Young (Young) for that matter. 5 ¶10 In September 2008, a court-ordered mediation for the Underlying Action was held. Stacey attended with the Turners. Schwans’ counsel, Norman Newhall, made a request to Stacey that Young also attend the mediation. Stacey contacted Young on this request, and also requested that a representative of State Farm Fire attend the mediation. Young attended in his capacity as Turners’ counsel in the declaratory matter, and in-house counsel Bauer also attended. Although continuing to maintain that the homeowners policy excluded all of Schwans’ claims against the Turners, Bauer offered “some money” in an unsuccessful attempt to settle the matter. Ultimately, the mediation concluded with an alternative settlement that included a consent judgment against the Turners for $750,000 and assignment of all of Turners’ rights and claims under the homeowners’ policy to the Schwans. In return, Schwans agreed not to execute the judgment against the Turners. The District Court entered judgment in favor of the Schwans pursuant to these terms. ¶11 Pursuant to the assignment of rights, the Schwans replaced Turners in the Declaratory Action. The District Court initially denied summary judgment on the coverage issue, and in December 2010, the Schwans filed a counterclaim alleging that State Farm Fire had breached its duty to defend the Turners by not retaining counsel to “appear and defend” the Turners in the Underlying Action. The District Court granted summary judgment to the Schwans on this issue, reasoning that language in the homeowners policy that State Farm Fire would “provide a defense at our expense by counsel of our choice” had been breached because State Farm Firm had not retained 6 separate counsel for Turners in the Underlying Action or contributed financially to payment of Stacey’s legal fees: Under the facts of this case, the Court determines that in the underlying [ ] case, State Farm Fire and Casualty had to either provide separate counsel for the Turners, or authorize and pay for Mr. Stacey’s services for the potential claims implicating the homeowners policy. The court then concluded that because State Farm Fire had breached its duty to defend, it was estopped from denying coverage and was liable for the full amount of the stipulated judgment of $750,000, as well as Schwans’ attorney fees and costs. STANDARD OF REVIEW ¶12 A district court’s grant of summary judgment is reviewed de novo, applying the same criteria as the district courts. Kaufman Bros v. Home Value Stores, Inc., 2012 MT 121, ¶ 6, 365 Mont. 196, 279 P.3d 157. When the material facts are undisputed, the question of whether an insurer breached its duty to defend is a question of law. Travelers Cas. & Sur. Co. v. Ribi Immunochem Research Inc. (Ribi), 2005 MT 50, ¶ 14, 326 Mont. 174, 108 P.3d 469. We review a district court’s conclusions of law for correctness. Ribi, ¶ 14. DISCUSSION ¶13 Did the District Court err in concluding that State Farm Fire breached its duty to defend? ¶14 State Farm Fire argues that it satisfied its duty to defend the Turners, and that the District Court’s determination that it breached the contract was error. The Schwans counter that State Farm Auto’s hiring of Stacey to defend the Turners did not relieve 7 State Farm Fire of its equal duty to defend the Turners. Quoting from Jane M. Draper, Performance by One Insurer of its Duty to Defend as Excusing Failure of Other Insurers Equally Obligated to Defend, 90 A.L.R.3d 1199, 1200-01 (1979), the Schwans offer that “courts have answered unequivocally that performance by one insurer of its duty to defend does not excuse the failure of other insurers equally obligated to defend.” However, State Farm Fire has never taken the position that it did not have its own obligation to defend the Turners. The question here is whether State Farm Fire fulfilled that duty by the actions it took. ¶15 Initially, we note that an insurer’s duty to defend is independent from and broader than its duty to indemnify. Farmers Union Mut. Ins. Co. v. Staples, 2004 MT 108, ¶ 21, 321 Mont. 99, 90 P.3d 381. Unlike the insurer’s duty to indemnify, which arises only if there is coverage under the policy, the duty to defend is triggered when “a complaint against an insured alleges facts, which if proven, would result in coverage.” Staples, ¶ 21 (citing St. Paul Fire & Marine Ins. Co. v. Thompson, 150 Mont. 182, 188, 433 P.2d 795, 799 (1967) and Grindheim v. Safeco Ins. Co., 908 F. Supp. 794, 800 (D. Mont. 1995)). When determining whether the duty to defend has been triggered, all “factual disputes must be resolved in favor of coverage.” Staples, ¶ 24. ¶16 Montana follows what other courts have termed the “mixed-action” rule, see Buss v. Superior Ct., 939 P.2d 766, 774-75 (Cal. 1997), which requires an insurer to defend all counts in a complaint so long as one count potentially triggers coverage, even if the remaining counts would not be covered. See Newman v. Scottsdale Ins. Co., 2013 MT 8 125, ¶ 40, 370 Mont. 133, 301 P.3d 348 (“a duty to defend is triggered where one portion of the complaint alleges facts which, if proven, would result in coverage, even if the remaining counts of the complaint would not be covered.”); Home Ins. Co. v. Pinski Bros, Inc., 160 Mont. 219, 227, 500 P.2d 945, 950 (1972) (“Inasmuch as there is coverage for the first count in Home’s complaint against the architects, denial of coverage and defense was unjustified even though there was no coverage for the second and third counts in Home’s complaint.”).2 ¶17 The significance of the rule to this case is that State Farm Auto was obligated under its duty to defend Turners in the Underlying Action to defend them against all claims in Schwans’ complaint, even if some claims were not covered by the State Farm 2 Buss v. Superior Ct., 939 P.2d 766, 775 (Cal. 1997) is the seminal case in this regard, wherein the California Supreme Court explained the practical necessity of requiring an insurer to fully defend a “mixed-action”: To defend meaningfully, the insurer must defend immediately. To defend immediately, it must defend entirely. It cannot parse the claims, dividing those that are at least potentially covered from those that are not. To do so would be time consuming. It might also be futile: The “plasticity of modern pleading” allows the transformation of claims that are at least potentially covered into claims that are not, and vice versa. The fact remains: As to the claims that are potentially covered, the insurer gives, and the insured gets, just what they bargained for, namely, the mounting and funding of a defense. But as to the claims that are not, the insurer may give, and the insured may get, more than they agreed, depending on whether defense of these claims necessitates any additional costs. (Internal citations omitted.) The Buss Court tempered an insurer’s duty to defend an entire “mixed action” by its conclusion that principles of restitution entitle an insurer to reimbursement from its insured for claims that are not even potentially covered by the policy: “An insurer may obtain reimbursement only for defense costs that can be allocated solely to the claims that are not even potentially covered.” Buss, 939 P.2d at 776 (emphasis in original). 9 Auto policy. Consistent therewith, Stacey averred that he represented Turners against all claims: From July of 2007 through the settlement of the case with Mr. and Mrs. Turner, I continually represented Mr. and Mrs. Turner. During that time, State Farm Mutual Automobile Insurance Company paid for all legal fees and expenses incurred in the defense of the case involving Mr. and Mrs. Turner. At no time were Mr. and Mrs. Turner unrepresented by counsel in regard to the claims brought against them by the Estate of Whitney Schwan. (Emphasis added.) Thus, at all times, Turners were fully defended against Schwans’ claims. This does not mean that State Farm Fire’s duty to defend the Turners was extinguished by the defense provided by State Farm Auto, but only that Turners were fully defended in the litigation. ¶18 The duty to defend commonly requires the hiring of legal counsel, but may not in every case. In Farmers Ins. Exch. v. Johnson, 2009 MT 442, ¶ 12, 354 Mont. 192, 224 P.3d 613, Johnson was involved in a bar fight with Ogden. Johnson, ¶ 3. Ogden was injured during the fight and sent a demand letter to Johnson. Johnson, ¶ 4. Johnson tendered the demand to Farmers Insurance, and the parties set up a pre-litigation settlement conference. Johnson, ¶ 4. Farmers claims adjuster Stevens attended the conference, in which a settlement was reached releasing Johnson of all claims. Johnson, ¶¶ 4-5. Johnson subsequently sued Farmers for breaching its duty to defend “by sending an insurance adjuster instead of an attorney to defend the insured at the mediation[.]” Johnson, ¶ 9. Noting that, while the insurer’s duty to defend “certainly encompasses functions which can only be fulfilled by a licensed attorney,” we nonetheless rejected the 10 argument that retention of counsel was required and held that the duty was fulfilled under the circumstances because litigation had not yet been initiated and Stevens properly fulfilled an adjuster’s duty to “investigate[] and negotiate[] the settlement of claims arising under insurance contracts,” and obtained a release of claims against Johnson. Johnson, ¶ 12 (citing § 33-17-102(1)(a), MCA). ¶19 Here, upon notification of the claim, State Farm Fire, by Bauer and Corbin, initiated discussions with State Farm Auto and Stacey concerning the posture of the Underlying Action. They confirmed with Stacey that Turners were being defended against all claims made against them in the litigation. They received assurance that Stacey did not need the assistance of additional counsel in defending the Turners. They wrote to Turners about the litigation, noting Stacey’s representation of Turners and the fact that Turners had not tendered defense of the Underlying Action to State Farm Fire, and stating they would proceed on this basis unless they heard further from Turners. They committed to undertake all responsibility for Turners’ defense in the event State Farm Auto discontinued its defense. State Farm Fire retained Young, an attorney of Turners’ choosing, to represent the Turners in the declaratory action, which it was not required to do. Pursuant to Stacey’s requests, State Farm Fire paid Young to participate in the settlement conference to give counsel on coverage issues and Bauer also participated in the settlement conference to represent State Farm Fire. Bauer attempted to resolve the suit by offering some money for settlement, despite believing there was no coverage. 11 ¶20 We conclude that State Farm Fire gave the necessary substance to the duty to defend and fulfilled its contractual duty to the Turners under the policy. It would make little sense for State Farm Fire to provide other legal counsel when such a need was not demonstrated. Although Schwans argue that State Farm Fire’s mere “participation” in Turners’ defense, without hiring separate counsel for them, fostered an “unavoidable conflict of interest,” we fail to see how Turners were left unprotected or were prejudiced by State Farm Fire’s actions. Indeed, in their District Court briefing that sought to justify Turners’ failure to tender defense of the action to State Farm Fire, the Schwans implicitly acknowledged that fully duplicative actions by the State Farm companies was unnecessary: Turners have no reason to tender defense of the underlying action to State Farm because State Farm is already defending the action. Calvin Stacey, insurance defense attorney for State Farm has been defending the Turners in the underlying action since September 4, 2007 . . . . It makes no sense for the Turners to perform a useless act by making a second tender of defense to State Farm. (Emphasis in original.) ¶21 Other jurisdictions that have considered the question have concluded that it is not necessary for co-insurers to provide duplicative counsel for the insured, as long as the insured is fully defended. See Ceresino v. Fire Ins. Exch., 215 Cal. App. 3d 814, 823 (1989) (second lawyer not needed because insured was fully defended (citing Mullen v. Glens Falls Ins. Co., 73 Cal. App. 3d 163, 174 (1977))); Horace Mann Ins. Co. v. Barbara B., 61 Cal. App. 4th 158, 164 (1998) (Horace Mann did not breach a duty because insured had been fully defended during the entirety of the lawsuit by his 12 homeowner’s policy); Keene Corp. v. Ins. Co. of North America, 667 F.2d 1034, 1051 (D.C. Cir. 1981) (where Keene had multiple insurers, “only the insurer that Keene selects will defend Keene”); accord Allan D. Windt, Insurance Claims & Disputes: Representation of Insurance Companies & Insureds, § 4:10 at 322-23 (West Publg., 4th ed., 2001) (“Although the insured, having already been provided a defense, cannot assert a claim against the nondefending insurer based on its defense obligation, the insurer that provides the defense should be able to assert a claim . . . [for] contribution or subrogation from such other insurer.”). ¶22 The cases cited by the Schwans do not support the District Court’s holding that a co-insurer must hire an additional attorney or insist on paying a portion of defense costs for an insured that is already defended. Rather, the insurers were found to have broadly breached its duty to defend by failing to assist or participate in the defense. See Nielsen v. TIG Ins. Co., 442 F. Supp. 2d 972, 975 (D. Mont. 2006) (insurer breached duty to defend because it sent numerous letters stating that it had no duty to defend insured and did not participate in settlement conference); Signature Dev. Co., Inc., v. Royal Ins. Co., 230 F.3d 1215, 1220 (10th Cir. 2000) (applying Colorado law) (insurer breached its duty because it “was nonresponsive to settlement overtures, failed to communicate with its insured, and failed to fully cooperate in settlement negotiations.”); Aetna Cas. & Sur. Co. v. Coronet Ins. Co., 358 N.E.2d 914, 916-18 (Ill. App. 1976) (insurer “refused” to provide defense or take any part in settlement negotiations); Lujan v. Gonzales, 501 P.2d 673, 676-77 (N.M. App. 1972) (insurer breached duty to defend when it refused to 13 “assist” defense in any manner). Although the insurers in these cases also failed to hire counsel, that was not the basis for their holdings that the duty to defend had been breached.3 ¶23 Neither does the failure of State Farm Fire to pay for Stacey’s fees constitute a breach of the duty to defend in these circumstances. First, that failure did not affect the Turners—defense counsel and a full defense were provided to them. State Farm Fire further notes that a request for payment of Stacey’s fees has not been made to it. As noted above, payment of counsel in this context is a matter of contribution between insurers. See e.g. Horace Mann, 61 Cal. App. 4th at 164; Windt, Insurance Claims & Disputes, § 4:10 at 322-23. As they remained fully defended, Turners (now the Schwans) cannot be heard to complain. ¶24 The District Court erred by concluding that State Farm Fire had breached its duty to defend under the policy. State Farm Fire did ensure a full defense was provided to Turners, even though its decisions regarding counsel did not include hiring additional counsel. 3 The Schwans also cite U.S. Fid. & Guar. v. Fed. Rural Elec. Ins. Corp., 78 F. Supp. 2d 1176 (D. Kan. 1999) (applying Oklahoma law) and U.S. Fire Ins. Co. v. Green Bay Packaging, Inc., 66 F. Supp. 2d 987, (E.D. Wis. 1999) (applying Wisconsin law). However, these cases are not pertinent to the question presented here. U.S. Fid. & Guar. did not decide whether the insurer breached its duty to its insured, but concluded that Federated Insurance was obligated, under “principles of equitable subrogation” to reimburse U.S. Fidelity & Guaranty one-half of the total defense costs expended defending the insured. U.S. Fid. & Guar., 78 F. Supp. 2d at 1181. In U.S. Fire Ins. Co., 66 F. Supp. 2d at 997-98, the court held that the insurer breached its duty to defend because it failed to comply with the “proper procedure” of intervening and staying the underlying liability trial until the coverage issue was resolved, as required by Wisconsin law. 14 ¶25 Accordingly, we reverse the grant of summary judgment to the Schwans that was based upon breach of the duty to defend, and vacate the District Court’s attendant award of the $750,000 judgment, attorneys fees, and costs. We remand to the District Court to determine, in the first instance, whether the Schwans’ claims are covered by the Turners’ homeowners policy. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH BAKER /S/ MICHAEL E WHEAT | August 6, 2013 |
95ffd9e3-f280-4f82-bf58-4d61d1676e78 | Caldwell v. Sabo | 2013 MT 240 | DA 12-0766 | Montana | Montana Supreme Court | DA 12-0766 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 240 VERNON L. CALDWELL and LAURA J. CALDWELL, individually and by and through their attorney-in-fact CARRIE HELLER, Plaintiffs and Appellees, v. CLIFFORD CODY SABO, also known as CODY SABO, individually and doing business as SABO BROTHERS CONSTRUCTION, INC., a Montana Corporation, Defendants and Appellants. APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Richland, Cause No. DV-12-111 Honorable Katherine M. Bidegaray, Presiding Judge COUNSEL OF RECORD: For Appellant: Arthur V. Wittich, Margaret M. Reader; Wittich Law Firm, P.C.; Bozeman, Montana For Appellee: Loren J. O’Toole, Brad W. Fjeldheim; O’Toole Law Firm; Plentywood, Montana Submitted on Briefs: July 10, 2013 Decided: August 27, 2013 Filed: __________________________________________ Clerk August 27 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Clifford Cody Sabo and Sabo Brothers Construction (collectively “the Sabos”) appeal from the order entered by the Seventh Judicial District Court, Richland County, granting a preliminary injunction against them in favor of Vernon L. and Laura J. Caldwell (“the Caldwells”). We reverse and remand for further proceedings consistent with this Opinion. ¶2 The Sabos present two issues on appeal: ¶3 1. Did the District Court err in granting a preliminary injunction pursuant to § 27-19-201, MCA? ¶4 2. Did the District Court err in waiving a written undertaking pursuant to § 27-19-306, MCA? ¶5 We will not address the Sabo’s second issue because we have determined that the District Court erred in granting the Caldwells a preliminary injunction. Factual and Procedural Background ¶6 The Caldwells own real property in Richland County which contains a rock substance known as scoria. Scoria is located in a relatively small portion of the United States including eastern Montana, northern Wyoming, and western North Dakota. See Farley v. Booth Bros. Land & Livestock Co., 270 Mont. 1, 4, 890 P.2d 377, 379 (1995). Although it is not considered a mineral, scoria is valuable in road construction— particularly roads used for oil and gas exploration. Farley, 270 Mont. at 5-8, 890 P.2d at 379-80. 3 ¶7 On May 1, 2011, the Caldwells and the Sabos entered into a written lease agreement (“Lease”) for the excavation of scoria on the Caldwells’ land. Specifically, the agreement granted the Sabos an exclusive “Right and Lease” to enter the Caldwells property to “strip, develop, process, explore, excavate, crush, stockpile and store, remove, and sell for its own account Scoria from the [Caldwells’] lands.” The Sabos agreed to pay the Caldwells “a royalty rate of $3.00 per yard for all Scoria sold from [the Caldwells’] land.” The Lease terminated on May 1, 2014, and was silent as to when royalty payments were to be made. ¶8 Until January 2012, the Sabos made periodic royalty payments to the Caldwells depending upon when the Sabos were able to sell the scoria and when their company was paid. The payments were neither monthly nor at regular intervals. Since entering into the Lease in May of 2011, the Caldwells have been paid more than $300,000 in royalties. However, between January 12, 2012, and August 9, 2012, the Caldwells did not receive any royalty payments at all. Cody Sabo testified that during this period scoria sales were either substantially decreased or non-existent. ¶9 On July 13, 2012, counsel for the Caldwells sent Cody Sabo a letter demanding payment for any mined scoria. Included with the letter was an addendum to the Lease which would require monthly royalty payments to the Caldwells. The Sabos did not sign the addendum; however, the Sabos made royalty payments to the Caldwells of $12,000 on August 9, 2012, $5,000 on August 19, 2012, and $8,000 in September 2012. ¶10 On September 17, 2012, the Caldwells filed their Complaint alleging that the Sabos breached the Lease by failing to pay royalties in a timely manner. The Complaint 4 alleged that the Sabos sold 136,328 yards of crushed scoria as of June 11, 2012, for which the Sabos owe the Caldwells $408,984. The Caldwells acknowledged in their Complaint that they received payments totaling $268,678 from March 2011, to January 2012, and that they received payments of $12,000 on August 9, 2012, $5,000 on August 19, 2012, and $5,000 in late August 2012. Thus, the total amount of royalty payments received by the Caldwells from the Sabos was $290,678. The Caldwells claimed, however, that the Sabos still owe them an additional $118,306. The Caldwells have asserted claims of breach of contract, unjust enrichment, and conversion. The Caldwells request monetary damages and a permanent injunction against the Sabos to prevent the Sabos from removing scoria from their property. ¶11 In their Answer, the Sabos denied that they have not paid the Caldwells for the scoria sold. The Sabos asserted that the Lease was silent as to when and how royalties were to be paid and that they are not in breach of the Lease. The Sabos specifically contested the amount of royalties that the Caldwells claim is past due and owing. ¶12 On the same day the Caldwells filed their Complaint, they filed an application for a temporary restraining order and preliminary injunction to prevent the Sabos from entering the Caldwells’ property and removing scoria. On September 27, 2012, the District Court issued a temporary restraining order and scheduled a show cause hearing. The order was subsequently modified to allow the Sabos to access the property for the limited purpose of removing their equipment. 5 ¶13 The court conducted a show cause hearing on October 25, 2012. During the hearing, the unrefuted testimony of Vernon Caldwell was that the lawsuit was only about money. Specifically, Vernon Caldwell testified as follows: Q: And isn’t it also true that you filed this lawsuit because you believe that you haven’t been paid all the royalties due you? A: All the royalties have not been paid. Q: And so isn’t it true that’s why you filed this lawsuit? A: Yes. . . . Q: So this lawsuit is about the payment of money, correct? A: Yes. ¶14 Cody Sabo testified that, at the time the temporary restraining order was issued, there were stockpiles on the Caldwells’ property of approximately 20,000 cubic yards of crushed scoria valued at $320,000, and 30,000 cubic yards of processed sand valued at $300,000. Sabo further testified that he has been unable to access and sell these stockpiles because of the court’s restraining order. Sabo described for the court the nature of a crushing/mining operation, characterizing his business as having significant “upfront” costs required to get a pit “up and running,” with benefits not acquired until near the end of the operation. Sabo testified that the operation was nearing the end on the Caldwells’ property when the temporary restraining order was issued. Sabo also explained what some of the “upfront” costs of a scoria operation are: A: Sir, you have to pay engineers for permitting; you have to pay a reclamation bond to the DEQ; you have to have all of your insurance in place which includes Unemployment, Worker’s Comp, General Commercial Liability and other types of specialty crushing insurance; you have to have MSHA compliance. The list goes on and on. Q: And you also have to get some equipment out there? 6 A: Yes, sir. We haven’t even talked about the crushing equipment, the large scale heavy equipment. The diesel cost alone can be $70,000 a month sometimes. Q: So this is basically a mining operation with a crushing operation as well? A: Yes, sir. Q: And heavy equipment is needed. A: Yes, sir. Sabo further testified that he can only pay the royalties from his sales: Q: And when would you pay them? A: I like to pay them when I can so that the company doesn’t go bankrupt. I have a lot of bills to pay; I pay them all and keep the business operating and get them all of their money. I enjoy giving them money; it makes me happy. Q: So do you have to wait until you actually sell the scoria? A: Yes, sir; not only wait for that, but I also have to wait until the company has paid us, which at sometimes it’s been as long as 10 months before we’ve received payment. ¶15 According to Sabo’s testimony, the demand for scoria is very seasonal and the mining and production of scoria is accordingly “[e]xtremely competitive” and “opportunistic.” Sabo also testified that when “the oil companies release their bid packs, the location builders bid on that and thereby buy the scoria from us. So when they call, it’s extremely seasonal. You have to be able to grab a sale when you can so to speak.” ¶16 The District Court determined that the Caldwells had made a prima facie case that the Sabos had not paid them for all the scoria sold. The District Court further found that the Caldwells would suffer irreparable injury, “for which money damages could not compensate,” and that restoration of the status quo once the scoria was removed would be unlikely. Although recognizing that the Lease “is silent as to when the Sabos are to pay the Caldwells,” the District Court concluded that “the Sabos are violating the Caldwells’ 7 rights by prima facie selling scoria from the Caldwells’ lands without paying the Caldwells the agreed-upon $3.00/yard of ‘all Scoria sold.’ ” ¶17 Applying the criteria in § 27-19-201, MCA, and the four-factor test set forth in Van Loan v. Van Loan, 271 Mont. 176, 895 P.2d 614 (1995), the District Court concluded that money damages would not adequately compensate the Caldwells and that enjoining the alleged unpaid depletion of the Caldwells’ scoria was an appropriate remedy. The District Court thereupon entered its written order enjoining the Sabos from hauling or selling any scoria from the Caldwells’ land and, “in the interest of justice,” waived the requirement that the Caldwells file a written undertaking. The Sabos appeal. Standard of Review ¶18 An order granting an injunction is immediately appealable, notwithstanding that the merits of the controversy remain to be determined. M. R. App. P. 6(3)(e). District courts are vested with a high degree of discretion to grant or deny preliminary injunctive relief. Pinnacle Gas Res. v. Diamond Cross Prop., 2009 MT 12, ¶ 12, 349 Mont. 17, 201 P.3d 160 (citing Yockey v. Kearns Properties, LLC, 2005 MT 27, ¶ 12, 326 Mont. 28, 106 P.3d 1185; Shammel v. Canyon Resources Corp., 2003 MT 372, ¶ 11, 319 Mont. 132, 82 P.3d 912). We will only disturb a district court’s decision regarding a preliminary injunction upon a showing of a manifest abuse of discretion. Sandrock v. DeTienne, 2010 MT 237, ¶ 13, 358 Mont. 175, 243 P.3d 1123 (citing Cole v. St. James Healthcare, 2008 MT 453, ¶ 9, 348 Mont. 68, 199 P.3d 810; Sweet Grass Farms v. Board of County Com’rs, 2000 MT 147, ¶ 20, 300 Mont. 66, 2 P.3d 825). “A manifest abuse of discretion is one that is obvious, evident, or unmistakable.” Shammel, ¶ 12. 8 ¶19 Further, “[i]n determining the merits of a preliminary injunction, it is not the province of either the District Court or this Court on appeal to determine finally matters that may arise upon a trial on the merits.” Yockey, ¶ 18 (citing Sweet Grass, ¶ 38). “[O]ur analysis ‘is not intended to express and does not express any opinion about the ultimate merits’ of the underlying case.” Sandrock, ¶ 13 (quoting Benefis Healthcare v. Great Falls Clinic, 2006 MT 254, ¶ 19, 334 Mont. 86, 146 P.3d 714). In addition, where a district court issues an injunction based on conclusions of law, we review those conclusions for correctness. Cole, ¶ 9; Yockey, ¶ 12; Sweet Grass, ¶ 21. Discussion ¶20 Did the District Court err in granting a preliminary injunction pursuant to § 27-19-201, MCA? ¶21 The Caldwells argue that they have made a prima facie showing that they have not been paid for all the scoria sold from their property. According to the Caldwells, this prima facie showing supports all three of their claims, which would include monetary damages for breach of the Lease and injunctive relief to prevent performance of the Lease. The Caldwells maintain that they are likely to suffer irreparable injury through the removal of scoria by the Sabos and that their injury outweighs the damage to the Sabos. ¶22 The Sabos argue that the facts of this case do not warrant a departure from the longstanding rule that injunctive relief is not appropriate in the context of contract claims for money damages. The Sabos maintain that the Lease specifies the amounts to be paid and that monetary damages can be easily determined. Lastly, the Sabos argue that the 9 District Court incorrectly applied the criteria of § 27-19-201, MCA, and the Van Loan factors. ¶23 Preliminary injunctions may be issued by a district court when a party establishes any one of the five subsections set forth in § 27-19-201, MCA. The subsections of the statute are disjunctive, thus only one subsection need be met for an injunction to issue, and “findings that satisfy one subsection are sufficient.” Stark v. Borner, 226 Mont. 356, 359-60, 735 P.2d 314, 317 (1987). Although it is not exactly clear upon which subsection the District Court issued its preliminary injunction, the parties have argued subsections (1) and (2), and the District Court has additionally analyzed subsection (3). We will, therefore, discuss these three subsections. ¶24 The relevant subsections provide that a preliminary injunction may be granted in the following cases: (1) when it appears that the applicant is entitled to the relief demanded and the relief or any part of the relief consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually; (2) when it appears that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the applicant; (3) when it appears during the litigation that the adverse party is doing or threatens or is about to do or is procuring or suffering to be done some act in violation of the applicant’s rights, respecting the subject of the action, and tending to render the judgment ineffectual . . . . Section 27-19-201, MCA. ¶25 As to subsection (1), it does not appear that the Caldwells are entitled to the final injunctive relief demanded. Section 27-19-102, MCA, provides that final injunctive relief may only be granted in an action for breach of an obligation if pecuniary 10 compensation would not afford adequate relief; if it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief; if the restraint is necessary to prevent multiple proceedings; or if the obligation arises from a trust. It is well established that, generally, relief for a breach of contract is limited to monetary damages. “A party to a contract may choose to breach the contract and to pay damages for that breach.” American Music Co. v. Higbee, 1998 MT 150, ¶ 13, 289 Mont. 278, 961 P.2d 109. Section 27-1-311, MCA, provides that “[f]or the breach of an obligation arising from contract, the measure of damages, except when otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment which was proximately caused thereby . . . .” Further, “[t]he detriment caused by the breach of an obligation to pay money only is deemed to be the amount due by the terms of the obligation with interest thereon.” Section 27-1-312, MCA. ¶26 Here, the Caldwells entered into the Lease for the purpose of earning money from the sale of scoria mined and produced from their property. Pecuniary compensation for the removal of the scoria was what the Caldwells initially contemplated. It thus is evident that monetary damages will provide the full relief to which the Caldwells are entitled. This conclusion is further supported by a careful examination of the testimony provided at the hearing, allegations contained in the Caldwells’ Complaint, and the relief the Caldwells have requested. ¶27 It cannot be reasonably argued that the underlying action, and all requested relief emanating therefrom, is anything other than a contract dispute. That the Caldwells have requested injunctive relief to prevent terms of the contract from being enforced, does not 11 transform this action into one of equity. The testimony provided by Vernon Caldwell unquestionably makes clear that the Caldwells are interested in receiving monetary damages only. They have not indicated that they want to keep the scoria on their property and not have it mined. In fact, it appears that the Caldwells are looking at other competitive bids for removal of the scoria. Moreover, counsel for the Caldwells, in their final remarks to the District Court, suggested that the District Court could continue to allow the Sabos to enter the Caldwells’ property and remove the scoria if the court were to oversee sales and income from the operation. This was not agreeable to the Sabos. The Sabos maintained that having sale proceeds deposited with the court, while the parties argued about amounts owing, would be too onerous for the Sabos. ¶28 Based upon the foregoing, it is clear that these proceedings emanate from an alleged breach of contract and, in the absence of circumstances justifying otherwise, warrant only monetary damages. ¶29 Subsection (2) provides that a preliminary injunction may issue when it appears that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the applicant. Section 27-19-201(2), MCA. The Caldwells allege, and the District Court found, that the Caldwells would be caused irreparable injury by the “unpaid depletion of scoria from [their] property . . . .” However, the depletion or removal of scoria from their property is exactly what the Caldwells agreed to when they entered into the Lease. In return for the removal of scoria, the Caldwells were to receive certain pecuniary compensation. Thus, the Caldwells themselves contemplated that pecuniary compensation was adequate relief pursuant to the terms of the Lease. 12 They cannot now consistently advance a position that they will be irreparably harmed if scoria is removed. Additionally, it is well established that “[m]oney damages are not considered irreparable harm, because money damages may be recovered in an action at law without resort to equity.” American Music, ¶ 15 (citing Dicken v. Shaw, 255 Mont. 231, 236, 841 P.2d 1126, 1129 (1992)). Significantly, there has been no allegation made that the Sabos are insolvent or that the Sabos are dissipating their assets, fraudulently or otherwise. See Van Loan, 271 Mont at 182-83, 895 P.2d at 619. ¶30 Finally, we reach a similar conclusion with respect to subsection (3). That section provides that a party is entitled to a preliminary injunction when an adverse party is doing or threatening to do an act in violation of the applicant’s rights which would tend to render the judgment ineffectual. Section 27-19-201(3), MCA. Although the Caldwells have not demonstrated or argued that this section applies, the District Court determined that “[i]t appears that the Sabos are violating the Caldwells’ rights by prima facie selling scoria from the Caldwells’ lands without paying the Caldwells’ [sic] the agreed-upon $3.00/yard of ‘all Scoria sold.’ ” The provisions of the Lease, however, allowed for the removal of scoria from the Caldwells’ property. Further, the record is devoid of any facts which would support a conclusion that the Sabos are threatening to not pay for the scoria sold. It is important to recall that the Sabos contend they have not breached the terms of the Lease and that all monies owing the Caldwells under the terms of the Lease have been paid. Moreover, as has previously been discussed, money damages would be effectual to compensate the Caldwells for any breach. 13 ¶31 In conclusion, we observe that the District Court applied the four-factor test set forth by this Court in Van Loan. Van Loan initiated a tort action against his father to recover damages for his father’s sexual abuse of Van Loan when Van Loan was a child. Van Loan sought an injunction to prohibit his father from distributing his assets and thereby render any judgment ineffectual. We established a four-part, conjunctive test “to determine whether a preliminary injunction should issue when a party’s monetary judgment may be made ineffectual by the actions of the adverse party thereby irreparably injuring the applicant.” Van Loan, 271 Mont at 182, 895 P.2d at 617. We cautioned that “our analysis is to be narrowly interpreted. The courts cannot countenance routine, meritless, or vindictive petitions for preliminary injunctions of this sort. An injunction is to be issued only under the most clear facts that fully satisfy the four-part test . . . .” Van Loan, 271 Mont. at 183, 895 P.2d at 618. ¶32 It is not necessary for resolution of the instant proceedings to assess the merits of applying Van Loan to a breach of contract action. We observe, nevertheless, that the Caldwells have not alleged that the Sabos are dissipating assets or that any judgment obtained against the Sabos may be rendered ineffectual absent the granting of equitable relief. We have already determined that the Caldwells are not able to demonstrate irreparable injury. They therefore could not establish a basis for injunctive relief pursuant to Van Loan. ¶33 We hold that the District Court erred in granting the Caldwells a preliminary injunction in a breach of contract action when pecuniary compensation was contemplated and would afford adequate relief. In so doing, we have determined that the District 14 Court’s conclusions of law were incorrect and there was, consequently, a manifest abuse of discretion. ¶34 Reversed and remanded for further proceedings consistent with this Opinion. /S/ LAURIE McKINNON We Concur: /S/ BRIAN MORRIS /S/ BETH BAKER /S/ PATRICIA COTTER /S/ JIM RICE | August 27, 2013 |
d8d5167d-35d3-49d9-8840-17b519d0a887 | Marriage of Julson | 2013 MT 252N | DA 12-0749 | Montana | Montana Supreme Court | DA 12-0749 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 252N IN RE THE MARRIAGE OF: ROSS JULSON, Petitioner and Appellee, and MARCI LYNN JULSON, Respondent and Appellant. APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DR 11-84 Honorable James B. Wheelis, Presiding Judge COUNSEL OF RECORD: For Appellant: Douglas C. Allen; Attorney at Law; Cut Bank, Montana For Appellee: Heather McDougall; Attorney at Law; Troy, Montana Submitted on Briefs: August 14, 2013 Decided: September 3, 2013 Filed: __________________________________________ Clerk September 3 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Marci Lynn Julson (Marci) appeals from the October 16, 2012 order of the Nineteenth Judicial District Court granting the motion of Ross Julson (Ross) to hold Marci in contempt for her failure to pay interim child support as previously ordered by the District Court, and imposing attorney fees. Marci likewise challenges the court’s subsequent order of November 13, 2012, adjusting the total amount of fees to be paid. ¶3 The parties were married on August 28, 1992, and had three children together. They separated on May 31, 2011. Ross filed a petition for dissolution on June 7, 2011, and Marci filed a response and counterclaim on June 27, 2011. Ross filed a motion for an interim parenting plan and child support on August 18, 2011, alleging that the children had been living with him since the parties’ separation and requesting that Marci pay $1,329 per month in child support. After a hearing on the motion, the District Court entered an order on December 19, 2011, stating “[t]he court believes that Ross has been the major caretaker and has taken more interest in and spent more time with the children’s various athletic and social activities. . . . All told, the best interest of the children is for Ross to be the major caretaker.” 3 ¶4 Noting Ross’s child support request and calculations,1 the District Court found “that child support should be paid according to the child support guidelines as the parties’ incomes and expenses stand for 2012, insofar as that can be calculated now. . . . Child support should be calculated as of January 1, 2012.” The court ordered that “[c]hild support shall commence as calculated for the parties’ income after January 1, 2012.” ¶5 A hearing on final determination of the dissolution issues was conducted on January 11, 2012, and the District Court entered findings of fact, conclusions of law, a final parenting plan, and a decree of dissolution on April 30, 2012. In its findings, the court noted that “[a]s ordered in the December 19, 2011, order adopting an Interim Parenting Plan, Marci shall begin to pay child support commencing January 1, 2012.” The court also ordered Marci to make permanent child support payments of $1,257 per month, commencing May 1, 2012, and adjusted that amount downward effective on future dates to reflect the cessation of support for the parties’ children as they graduated from high school. The court permitted Marci to reduce these payments by $750 per month “to offset the additional property settlement amounts due her.” The court again noted that Marci “was earlier ordered to pay child support commencing January 1, 2012.” ¶6 Ross filed a motion for contempt and for attorney fees in September 2012, stating that Marci had failed to pay “child support as ordered for January 1, 2012 to April 30, 2012.” Marci filed a response asserting that the interim order was superseded by the final 1 The court stated that Ross’s calculations at the hearing indicated that Marci should pay $1,314 per month in child support. 4 judgment and was of no further force and effect, arguing that Ross “simply has no basis to seek the temporary child support.” Ross filed a reply to Marci’s response, and thereafter the court entered an order on October 16, 2012, ordering Marci to pay $5,028 “for child support from January 1, 2012 to April 30, 2012.” On November 13, 2012, the court entered an order revising the amount owed to $5,256. ¶7 On appeal, Marci argues that the District Court erred and violated her due process rights by failing to convene a hearing to give her to a reasonable opportunity to meet the contempt charge and be represented by counsel, to permit her to deduct $750 per month from the interim support obligation, and by awarding attorney fees to Ross. Ross argues that the contempt order is not appealable, that Marci had a reasonable opportunity to respond and did not request a hearing, that Marci did not raise the $750 offset before the District Court, and that attorney fees were proper. He requests that we award him fees on appeal. ¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. Contempt orders in family law cases involving ancillary orders affecting the substantial rights of a party are appealable. Lee v. Lee, 2000 MT 67, 299 Mont. 78, 996 P.2d 389. Marci was represented by counsel and filed a response to the contempt motion. She did not request a hearing prior to the court’s order or seek an offset, but rather contested the validity of the interim child support order. The issues in this case are ones of judicial discretion and there clearly was not an abuse of discretion, including the award of 5 attorney fees. Any legal issues are controlled by settled law and were correctly interpreted by the District Court. Ross’s request for attorney fees on appeal is denied. ¶9 Affirmed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ BRIAN MORRIS | September 3, 2013 |
42a9b26d-006c-494e-8a22-3e5ddb51c086 | In re Marriage of Parker | 2013 MT 194 | DA 12-0639 | Montana | Montana Supreme Court | DA 12-0639 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 194 IN RE THE MARRIAGE OF BETH M. PARKER, Petitioner and Appellant, and JAMES G. PARKER, Respondent and Appellee. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DR-11-18 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Terry Wallace, Attorney at Law, Missoula, Montana For Appellee: Jamie J. McKittrick, Wells & McKittrick, Missoula, Montana Submitted on Briefs: May 29, 2013 Decided: July 16, 2013 Filed: __________________________________________ Clerk July 16 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Beth Parker appeals from an Order of the District Court for the Fourth Judicial District, Missoula County, upholding the Standing Master’s Findings of Fact and Conclusions of Law in the parties’ dissolution action. We affirm. ¶2 The parties raise the following issues on appeal: ¶3 1. Whether the District Court abused its discretion by excluding Jim’s interest in his mother’s trust from the marital estate. ¶4 2. Whether the parties entered into a post-nuptial agreement. ¶5 3. Whether the District Court equitably distributed the marital estate pursuant to § 40-4-202, MCA. ¶6 4. Whether Jim is entitled to attorney’s fees and costs on appeal in this matter. Factual and Procedural Background ¶7 The parties were legally married on June 18, 1999. At the time of the parties’ marriage, Beth owned her own home and lived there with her two minor children from a previous marriage. Beth contends that the parties were actually married by common law one year earlier, on or about July 1, 1998, when she claims Jim moved into her home. Jim claims, however, that he did not move into Beth’s home until after their June 1999 marriage. No children were born to the parties during their marriage. ¶8 In December 2001, the parties decided to move into a home that Jim had purchased in the Rattlesnake area of Missoula, and to sell Beth’s home. The proceeds from the sale of Beth’s home were used to pay bills and for other expenses. 3 ¶9 Both Beth and Jim worked throughout their marriage. Beth originally worked at Mountain Press Publishing, but she left that position and returned to school. She obtained a graduate degree that allowed her to provide professional counseling services. Beth is now a counselor in private practice. Jim owns his own company, Westridge Creative, LLC. He also worked part-time for the nonprofit organization Tamarack Grief Resource Center. Both parties testified that they contributed to Jim’s business over the course of their marriage. And, both parties testified that they used their credit cards to take various trips and to pay for marital expenses. ¶10 Jim received an inheritance from his godfather during the marriage. Jim testified that some of this money was used to pay off part of the parties’ credit card debt, and the remainder was used for “household needs and goods.” In addition, Jim’s mother gifted him money at regular intervals. Jim testified that this money went toward “household uses and expenses.” Also, Jim’s mother had a trust entitled the Elizabeth G. Parker Trust which originally provided that after her death, any remaining trust property should go to her husband, or, if he did not survive her, then to her issue—i.e., Jim and his brother. ¶11 The parties lived together in the Rattlesnake home until the date of their separation, January 2010, when Beth moved out. Beth filed a Petition for Dissolution of Marriage on January 7, 2011, and the matter was referred to Standing Master Susan Leaphart on February 17, 2011. ¶12 Jim continued to live in the Rattlesnake home paying the mortgage, maintenance and all other expenses related to the home until September 2011. Jim testified that at that time, he and Beth agreed that neither party would live in the home, that they would share 4 the cost of the mortgage, and that they would sell the home. Beth and Jim listed the home with a realtor for $325,000. They reduced the listing price several times until it was finally listed at $275,000. Jim testified that there was a mortgage on the home in the amount of $130,000. In November 2011, Beth decided to move back into the Rattlesnake home, and advised the realtor to take the home off the market. ¶13 On December 14, 2011, the District Court issued an Order denying Beth’s motion for inclusion of Jim’s mother’s trust in the marital estate. The court determined that any interest Jim might receive from the trust did not impact the marital estate because Jim’s interest had not vested. Instead, the court determined that Jim’s interest in the trust was contingent because the trust could be modified by his mother at any time. ¶14 An evidentiary hearing was held before the Standing Master on April 27, 2012. Thereafter, the Standing Master filed her Findings of Fact and Conclusions of Law on June 5, 2012, wherein she determined that the Rattlesnake home should be sold, and that the parties pay from the proceeds of the sale the underlying note, the realtor’s fees, the parties’ credit card debt and the back taxes. After payment of all of these items, the parties would split the remainder. The Standing Master also determined that each party should be responsible for their own student loan debt and business loans. ¶15 Beth filed her objections to the Standing Master’s findings and conclusions on June 18, 2012. She specifically objected to the conclusion that the marital home should be sold and the proceeds split between the parties. She argued that she has no ability to acquire future income and assets, and that pursuant to § 40-4-202, MCA, the home should be awarded to her. Beth also argued that the findings and conclusions favored Jim 5 at her expense because the back taxes owing were Jim’s share of the parties’ tax obligation, and that Jim stopped paying for his share of the credit card debt several months prior to the hearing in this matter leaving Beth to make all of the payments. Thus, Beth complained that under the Standing Master’s findings and conclusions, Beth would be assuming a larger portion of the parties’ debt than Jim. ¶16 Jim responded to Beth’s objections arguing that the Standing Master, after considering all of the evidence, equitably distributed all assets and liabilities of both parties and chose not to award the marital home to Beth. In addition, Jim pointed out that Beth did not provide any evidence to indicate that the back taxes were Jim’s obligation exclusively. ¶17 A hearing on Beth’s objections was held on September 10, 2012. On September 17, 2012, Beth moved to reopen the evidentiary hearing to permit discovery and presentation of evidence regarding Jim’s interest in his mother’s trust. Beth argued that because there had already been some distribution of the trust to Jim, at least some part of the trust had vested in Jim. Thus, according to Beth, the District Court must consider all information about the trust to insure an equitable distribution of the marital estate. ¶18 On September 26, 2012, the District Court issued an Order denying Beth’s request to include Jim’s mother’s trust in the marital estate. In addition, the court denied Beth’s objections and upheld the Standing Master’s Findings of Fact and Conclusions of Law. ¶19 Beth appeals. Standard of Review 6 ¶20 We review a district court’s findings of fact in a dissolution proceeding to determine whether they are clearly erroneous. In re Marriage of Crilly, 2009 MT 187, ¶ 9, 351 Mont. 71, 209 P.3d 249. A finding is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if our review of the record convinces us that the district court made a mistake. Crilly, ¶ 9 (citing Bock v. Smith, 2005 MT 40, ¶ 14, 326 Mont. 123, 107 P.3d 488). ¶21 Absent clearly erroneous findings, we will affirm a district court’s division of property unless we identify an abuse of discretion. Crilly, ¶ 9 (In re Marriage of Payer, 2005 MT 89, ¶ 9, 326 Mont. 459, 110 P.3d 460). “A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S. Ct. 2447, 2461, 110 L. Ed. 2d 359 (1990); see also Jacobsen v. Allstate Ins. Co., 2009 MT 248, ¶ 17, 351 Mont. 464, 215 P.3d 649 (our review is plenary to the extent that a discretionary ruling is based on a conclusion of law). Wohl v. City of Missoula, 2013 MT 46, ¶ 28, 369 Mont. 108, 300 P.3d 1119. ¶22 In addition, we review conclusions of law de novo, to determine whether a district court’s interpretation of the law is correct. Schwartz v. Harris, 2013 MT 145, ¶ 15, 370 Mont. 294, ___ P.3d ___ (citing In re Marriage of Williams, 2009 MT 282, ¶ 14, 352 Mont. 198, 217 P.3d 67). Issue 1. ¶23 Whether the District Court abused its discretion by excluding Jim’s interest in his mother’s trust from the marital estate. 7 ¶24 On December 14, 2011, the District Court issued an Order denying Beth’s motion to include Jim’s mother’s trust in the marital estate. The court determined that any interest Jim might receive from the trust was contingent because the terms of the trust could be modified by Jim’s mother at any time. Consequently, the court concluded that Jim’s interest in the trust had not vested. ¶25 Beth argues that the District Court abused its discretion by excluding Jim’s mother’s trust from the parties’ marital estate. Beth maintains that by doing so, the court refused to enforce the parties’ post-nuptial agreement regarding the parties’ credit card debt, skewed the final financial disclosures, and failed to consider Beth’s opportunity to acquire future capital assets and income. Thus, Beth contends that the resulting marital distribution was inequitable. ¶26 Jim argues on the other hand that the expectation of an inheritance, such as his potential inheritance of a portion of his mother’s trust, is not to be included in the marital estate. Jim maintains that his interest in his mother’s trust is contingent upon future events such as Jim surviving his mother, and his mother not exercising her power to revoke or amend the trust to delete Jim’s interest. Thus, contrary to Beth’s assertions, Jim contends that his interest in the trust is merely an expectation of an inheritance, nothing more. ¶27 Beth relies on § 40-4-202, MCA, in support of her contention that the trust must be included in the marital estate. This statute provides, in pertinent part: Division of property. (1) In a proceeding for dissolution of a marriage . . . the court, without regard to marital misconduct, shall . . . finally equitably apportion between the parties the property and assets 8 belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both. In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit. In dividing property acquired . . . by gift, bequest, devise, or descent . . . the court shall consider those contributions of the other spouse to the marriage, including: (a) the nonmonetary contribution of a homemaker; (b) the extent to which such contributions have facilitated the maintenance of this property; and (c) whether or not the property division serves as an alternative to maintenance arrangements. [Emphasis added.] ¶28 When interpreting the language of a statute, we first look to the plain meaning of the words it contains. In re D.B.J., 2012 MT 220, ¶ 40, 366 Mont. 320, 286 P.3d 1201 (citing In re L.M.A.T., 2002 MT 163, ¶ 18, 310 Mont. 422, 51 P.3d 504; City of Great Falls v. DPHHS, 2002 MT 108, ¶ 16, 309 Mont. 467, 47 P.3d 836). When the language is clear and unambiguous, the statute speaks for itself and we will go no further. D.B.J., ¶ 40 (citing Clarke v. Massey, 271 Mont. 412, 416, 897 P.2d 1085, 1088 (1995)). Determining plain meaning requires that courts logically and reasonably interpret language by giving words their usual and ordinary meaning. D.B.J., ¶ 40 (citing Werre v. David, 275 Mont. 376, 385, 913 P.2d 625, 631 (1996)). ¶29 Contrary to Beth’s assertions, a plain reading of this statute clearly indicates that it refers to property already acquired by the parties that is titled in the name of either or both spouses. It does not contemplate the consideration of a possible future inheritance. 9 ¶30 In In re Marriage of Beadle, we held that “a spouse’s possible inheritance is never properly included in the marital estate nor considered in dividing the marital estate . . . .” Beadle, 1998 MT 225, ¶ 43, 291 Mont. 1, 968 P.2d 698 (emphasis added). In Beadle, this Court excluded the revocable living trusts of the husband’s parents from the marital estate noting that the husband’s interest in the trusts was contingent and could not be ascertained until the deaths of his parents. Beadle, ¶ 43. ¶31 In the case before us on appeal, Jim’s parents created the Henry M. Parker Trust and the Elizabeth G. Parker Trust in 1994. These trusts provided for the distribution of the trust assets to the surviving spouse upon the death of the first spouse. Jim’s mother received the trust assets from the Henry M. Parker Trust when Jim’s father passed away. Article I of the Elizabeth G. Parker Trust provided that Elizabeth, Jim’s mother, reserved the right “to revoke or amend this trust or to withdraw, mortgage, pledge or assign the assets of the trust at any time during my life by written instrument signed by me and delivered to the Trustees.” ¶32 In September 2009, Jim’s mother resigned as Trustee of the Elizabeth G. Parker Trust, and her sons, Jim and David, became the successor Trustees of the trust. Beth argues that because Jim became a Trustee of the trust in 2009, his mother no longer has any power of appointment. Instead, Beth claims that that power passed to Jim and his brother before this action commenced. ¶33 As Donor of the trust, Jim’s mother may make amendments to the instrument and remove its beneficiaries despite relinquishing her role as Trustee. Furthermore, if Jim’s mother should use up the corpus of the trust during her lifetime, Jim will not receive 10 anything from the trust. In fact, in March 2011, Jim’s mother exercised her right to amend the trust and executed a “First Amendment to the Elizabeth G. Parker Trust.” The amended trust, like the original trust before it, provided that Elizabeth “may at any time revoke, alter or amend this instrument in whole or in part by a written notice addressed to the Trustee . . . .” ¶34 In the original trust, Elizabeth named her husband as the beneficiary, and if he died before her or disclaimed any interest in the trust, the property was to be distributed to “my issue who survive me.” In addition, Elizabeth provided in her original trust document that if no issue survived her, the Trustee was to distribute her remaining property to certain charitable organizations. In the amended trust, Elizabeth named her two sons as the principal beneficiaries of the trust, but if either or both of her sons did not survive her, Elizabeth named several other individuals as beneficiaries under the trust. Elizabeth also changed the charitable organizations that would benefit under the trust if any property remained undistributed to her other named beneficiaries. ¶35 Thus, even though Jim is a Trustee of his mother’s trust, Jim’s interest under the trust may be revoked or amended by his mother at any time. Consequently, Jim’s interest is not a vested remainder1 as Beth claims. Not until Jim’s mother dies—assuming she had not removed Jim as a beneficiary under the trust prior to her death—will the trust 1 A vested remainder is a remainder “which is limited to an ascertained person in being, whose right to the estate is fixed and certain, and which does not depend upon the happening of any future event, but whose enjoyment of the estate is postponed to some future time.” Steven H. Gifis, Law Dictionary 507 (Barron’s Educational Services, Inc., 2d ed., 1984) (brackets omitted). 11 become irrevocable and Jim’s interest will be vested. Jim will not know the extent of his inheritance, if any, until his mother’s death. ¶36 Beth relies on this Court’s decision in In re Marriage of Foreman, 1999 MT 89, 294 Mont. 181, 979 P.2d 193, to support her contention that Jim’s interest in his mother’s trust must be included in the marital estate. However, Foreman is distinguishable from the instant case because the inherited interest at issue in Foreman was already fixed and certain. In that case, Ronald Foreman’s father passed away leaving a one-third interest in the family farm to each of his children subject to a life estate granted to Ronald’s mother. Unlike the instant case where Jim’s interest in his mother’s trust could be amended or revoked at any time, Ronald’s one-third interest in the family farm could not be amended or revoked. As we indicated in ¶ 30 of this Opinion, “a spouse’s possible inheritance is never properly included in the marital estate nor considered in dividing the marital estate . . . .” Beadle, ¶ 43 (emphasis added). ¶37 Accordingly, we hold that the District Court did not abuse its discretion by excluding Jim’s interest in his mother’s trust from the marital estate. Issue 2. ¶38 Whether the parties entered into a post-nuptial agreement. ¶39 Beth contends that the parties entered into a post-nuptial agreement, the terms of which were that if Beth would assume the parties’ credit card debt in her name for everyday expenses, Jim would repay her from the proceeds of his mother’s trust. On the other hand, Jim contends that Beth failed to present any evidence establishing the existence of a post-nuptial agreement. 12 ¶40 Beth cites § 40-2-301, MCA, in support of her contention that a post-nuptial agreement existed between the parties. Section 40-2-301, MCA, provides: Husband and wife may contract. Either husband or wife may enter into any engagement or transaction with the other or with any other person respecting property which either might, if unmarried, subject in transactions between themselves to the general rules which control the actions of persons occupying confidential relations with each other, as defined by the provisions of this code relative to trusts. ¶41 The Standing Master took into consideration the varying viewpoints of the parties regarding the existence of any post-nuptial agreement when she pointed out in her Findings of Fact and Conclusions of Law that “Jim cannot have participated in the accumulation of credit card debt over the years, consistently assured Beth the debt could be paid, and then, unilaterally, stop contributing to any payment on that credit card debt.” The Standing Master also stated: “Beth cannot claim to have been a part of this marriage since 1998 and then ask, almost fourteen years later to be reimbursed for all of the financial effort she put into the marriage.” ¶42 It is unnecessary, however, for this Court to determine whether a post-nuptial agreement existed between the parties because any such agreement was contingent upon Jim inheriting under his mother’s trust. Jim testified that [w]e couldn’t make a promise as [Beth] alleges that it would be paid off through money I’m going to get from my mother because we had both read these documents, we both understood that there’s no guarantee that anybody, myself, my brother will ever receive any money from that. If my mother . . . dies without spending it down, then maybe there’s money, maybe there’s not, but it has – there’s no guarantee that there’s ever going to be any money. 13 ¶43 Had the parties remained married, the alleged statements by Jim to the effect that the credit card debt would be paid out of his inheritance from his mother’s trust may have come to pass. However, as we set forth in the previous issue, Jim has only a possibility of inheriting under the trust. Any such future inheritance is not fixed or certain since Jim’s interest under the trust may be revoked or amended by his mother at any time. And, as testified to by Jim, if Jim’s mother should use up the corpus of the trust during her lifetime, Jim will not receive anything from the trust. Issue 3. ¶44 Whether the District Court equitably distributed the marital estate pursuant to § 40-4-202, MCA. ¶45 Beth contends that the factors listed in § 40-4-202, MCA, must be considered and referred to in the District Court’s findings and conclusions. She maintains that the District Court abused its discretion when it failed to make any findings or conclusions to the effect that Beth would never have any opportunity for future acquisition of capital assets and income unless she was allowed to retain the Rattlesnake house. ¶46 A district court is vested with broad discretion to apportion a marital estate in a manner equitable to each party under the circumstances. In re Marriage of Tummarello, 2012 MT 18, ¶ 23, 363 Mont. 387, 270 P.3d 28 (citing In re Marriage of Bartsch, 2007 MT 136, ¶ 9, 337 Mont. 386, 162 P.3d 72; In re Marriage of Clark, 2003 MT 168, ¶ 20, 316 Mont. 327, 71 P.3d 1228). The specific factors the court must consider are set forth in § 40-4-202(1), MCA, which provides: In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; the age, health, station, 14 occupation, amount and sources of income, vocational skill, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income. ¶47 Based upon these factors, the statute directs the district court to “finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both.” Tummarello, ¶ 23 (quoting § 40-4-202(1), MCA). However, an equitable division does not require that every marital asset or liability be split evenly. In re C.W., 2012 MT 212, ¶ 18, 366 Mont. 278, 291 P.3d 1092. ¶48 In this case, we conclude that the Standing Master’s Findings of Fact and Conclusions of Law did set forth all of the pertinent factors enumerated in § 40-4-202(1), MCA. The Standing Master discussed the duration of the parties’ marriage, including the discrepancy regarding the actual date of their marriage; the age, station, occupation, amount and sources of income, vocational skills and employability of both Beth and Jim; Jim’s health problems; each parties’ liabilities; and each parties’ needs. As to the factor regarding “future acquisition of capital assets and income,” Beth fails to note that the statute requires that the court consider the opportunity of each party for said future acquisition. ¶49 The Standing Master noted at Finding of Fact No. 28 that “Beth now does not wish the house to be sold and argues that it is her last chance to acquire a home. She wishes to be awarded the home in the distribution of the marital estate . . . .” In addition, the District Court pointed out in its September 26, 2012 Order that Beth objected to the 15 Standing Master’s Conclusion of Law No. 10 regarding the sale of the home. The court stated in its Order: According to [Beth], “the Court rejected evidence given by Beth that the only way she has any chance of accumulating future income and assets is if the house is not sold but awarded to her [and that she] has no chance of future acquisition of income and assets unless she is awarded the Rattlesnake house.” Nevertheless, the court denied Beth’s objections to the Standing Master’s findings and conclusions, stating that it had reviewed the tape of the April 27, 2012 hearing before the Standing Master and concluded that “the Standing Master carefully considered the evidence and testimony and arrived at a fair and equitable distribution of the debts and assets of the marriage.” ¶50 It is clear from both the Standing Master’s findings and conclusions and the District Court’s Order that the factor enumerated in § 40-4-202(1), MCA, regarding the “future acquisition of capital assets and income,” was carefully considered by both the Standing Master and the District Court. “When a trial court’s findings reflect that it properly considered the various factors enumerated in the statute, it will not be held in error.” Tummarello, ¶ 25 (citing In re Petition of Fenzau, 2002 MT 197, ¶ 36, 311 Mont. 163, 54 P.3d 43). ¶51 Accordingly, we hold that the District Court equitably distributed the marital estate pursuant to § 40-4-202, MCA. Issue 4. ¶52 Whether Jim is entitled to attorney’s fees and costs on appeal in this matter. 16 ¶53 Jim contends that he is entitled to his attorney’s fees and cost on appeal because Beth’s arguments “lack merit, and are frivolous and lacking in good faith.” Jim argues that the issues Beth raises on appeal are “groundless” since they “were fully analyzed and addressed in the detailed, complete and accurate” findings of the District Court. Beth argues on the other hand that Jim’s claim for attorney’s fees and costs is without merit because he does not consider the possibility of “a good faith disagreement on the law.” ¶54 This Court may award sanctions on appeal, including attorney’s fees and costs, “where the claim for relief is ‘frivolous, vexatious, filed for purposes of harassment or delay, or taken without substantial or reasonable grounds.’ ” Tummarello, ¶ 42 (quoting M. R. App. P. 19(5)). Although we have determined that Beth’s claims lack merit, we cannot conclude that they were entirely frivolous or lacking in good faith. See Tummarello, ¶ 42 (citing In re Marriage of Chamberlin, 2011 MT 253, ¶ 26, 362 Mont. 226, 262 P.3d 1097). ¶55 Accordingly, we decline to award Jim his attorney’s fees and costs on appeal in this matter. ¶56 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ MICHAEL E WHEAT /S/ JIM RICE | July 16, 2013 |
bc752805-d011-401a-953d-75d1da3c114d | Guill v. Guill | 2013 MT 262N | DA 12-0772 | Montana | Montana Supreme Court | DA 12-0772 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 262N DOUGLAS JAMES GUILL, Petitioner and Appellant, v. CANDACE KATHLEEN GUILL, Respondent and Appellee. APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DR 06-101 Honorable James B. Wheelis, Presiding Judge COUNSEL OF RECORD: For Appellant: Scott G. Hilderman, Law Offices of Scott G. Hilderman, P.C.; Kalispell, Montana For Appellee: Amy S. Rubin, Rubin and Ries Law Offices, PLLC; Missoula, Montana Submitted on Briefs: August 21, 2013 Decided: September 10, 2013 Filed: __________________________________________ Clerk September 10 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Appellant Douglas James Guill (Douglas) appeals the orders of the Nineteenth Judicial District Court, Lincoln County, that entered judgments in favor of Douglas’s former wife, Candace Kathleen Guill (Candace). We affirm. ¶3 The parties divorced in 2007. The District Court awarded Candace $564,900 for her share of the parties’ marital estate. The court directed Douglas to pay this amount to Candace within sixty days. Douglas’s failure to pay within the sixty days would require him to deed real property located at 97 Golden Pond Drive, Heron, Montana, to Candace. Candace was to sell the property and receive the $564,900 from the proceeds. Douglas would receive the balance if any. The court further directed that if the 97 Golden Pond Drive property failed to generate the $564,900, Douglas was required to deed to Candace the property located at 131 Lower Mosquito Creek in Clark Fork, Idaho for the same process to be followed, until Candace had received her share of the marital estate. This Court affirmed. Guill v. Guill, 2008 MT 279N, 346 Mont. 546, 210 P.3d 701. ¶4 Four years later Douglas moved the court to award certain items of property to him, including fixtures, appliances, furnishings, building materials, and tools that Douglas, through his agent, Rick Christensen (Christensen), had removed from the real property at 97 3 Golden Pond Drive. The District Court determined instead that the contents of the houseand the fixtures belonged to Candace. ¶5 Douglas and Christensen failed to comply with the District Court’s order to return the personal property or pay replacement costs. Candace sought a judgment against Douglas and Christensen in the amount of $104,552 to compensate for the personal property. The District Court entered this judgment on October 5, 2012. ¶6 The sale proceeds from Candace’s earlier sale of the 97 Golden Pond Drive property had not satisfied Candace’s share of the marital estate. Candace sought to join Christensen as a necessary party to the dissolution proceeding after Christensen, acting as Douglas’s power of attorney, had transferred the Lower Mosquito Creek Property in Idaho into his own name by signing quit claim deeds in April 2012 as both the grantor and grantee. The District Court agreed. The District Court eventually granted a judgment to Candace on November 15, 2012, that ordered the transfer of the Mosquito Creek Property to her to satisfy the terms of the decree of dissolution. The court also granted a judgment to Candace for the transfer of other real property contained in the marital estate, including additional lots in Clark Fork, Idaho, to satisfy the judgment entered on October 5, 2012, of $104,552, for the lost personal property. Douglas appeals. ¶7 Douglas argues on appeal that the District Court lacked jurisdiction to order the return of the 97 Golden Pond Drive personal property because the District Court improperly had modified the dissolution decree. Douglas contends for the same reason that the District Court lacked jurisdiction to order the transfer of the other real property in Clark Fork, Idaho to satisfy the $104,552 judgment that Candace obtained against Douglas and Christensen. 4 ¶8 We review for abuse of discretion of the distribution of a marital estate and the evaluation of their distributions. Bock v. Smith, 2005 MT 40, ¶ 14, 326 Mont. 123, 107 P.3d 488. We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our 1996 Internal Operating Rules, as amended in 2006, that provides for memorandum opinions. It is manifest on the face of the briefs and the record before us that the District Court did not abuse discretion when it awarded real property to Candace to satisfy the terms of the 2007 decree of dissolution and the separate judgment of October 5, 2012. We will tolerate no further efforts by Douglas and Christensen to delay Candace’s receipt of her fair share of the marital estate. ¶9 Affirmed. /S/ BRIAN MORRIS We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ JIM RICE | September 10, 2013 |
664166bc-894a-47a1-865b-b070cee3b71c | State v. Champagne | 2013 MT 190 | DA 12-0159 | Montana | Montana Supreme Court | DA 12-0159 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 190 STATE OF MONTANA, Plaintiff and Appellee, v. CLARENCE EDWARD CHAMPAGNE, Defendant and Appellant. APPEAL FROM: District Court of the Twelfth Judicial District, In and For the County of Hill, Cause No. DC 10-50 Honorable Laurie McKinnon, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General; Helena, Montana Gina Dahl, Hill County Attorney; Havre, Montana Submitted on Briefs: May 15, 2013 Decided: July 16, 2013 Filed: __________________________________________ Clerk July 16 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Clarence Edward Champagne (Champagne) appeals his conviction from the Twelfth Judicial District, Hill County. We affirm in part, reverse in part, and remand. ¶2 We address the following issues on appeal: ¶3 Whether the District Court abused its discretion in denying Champagne’s for-cause challenge of a prospective juror? ¶4 Whether Champagne’s counsel provided ineffective assistance? ¶5 Whether the District Court abused its discretion in admitting the forensic interviewer’s opinion testimony? ¶6 Whether the District Court properly admitted J.B.’s prior consistent statements? ¶7 Whether the District Court imposed an illegal sentence? PROCEDURAL AND FACTUAL BACKGROUND ¶8 J.B. stayed at her grandmother’s house one night in 2010. Nobody remembers the exact date. J.B. was ten years old at the time. J.B.’s grandmother, Ramona, previously had been married to Champagne. Champagne came to Ramona’s house late that night. J.B. had known Champagne for most of her life. J.B. referred to him as “Papa.” ¶9 J.B. was awakened the next morning by Champagne touching her inside her vagina. J.B. immediately told Ramona what had happened. Ramona asked Champagne about the incident. Champagne denied any inappropriate touching. Ramona told J.B. that Champagne probably just had given J.B. a hug. Ramona instructed J.B. not to tell her mother about the incident. 3 ¶10 J.B. told her mother, Farrah Falcon (Falcon), about the incident several months later. Falcon alerted the police. The police initiated an investigation. J.B. talked with a forensic interviewer, Holly Matkin, about the incident. The State charged Champagne with felony sexual assault. The case proceeded to trial. ¶11 Prospective juror Pete Lamere (Lamere) replied during voir dire when asked by Champagne’s counsel that he had “some reservations” about a defendant who did not testify. Lamere further admitted that he “probably” would become suspicious if a defendant chose not to testify. Champagne challenged Lamere for cause. ¶12 The District Court instructed Lamere on the presumption of innocence, the State’s burden of proof, a defendant’s right not to testify, and the idea that a jury should not draw any negative inference from the defendant’s election not to testify. The State questioned Lamere. Lamere agreed with the State that many reasons existed why a person would not want to testify that were unrelated to trying to hide something. Lamere agreed that he would follow the law and that he would not draw any negative inferences. The District Court denied Champagne’s motion to remove Lamere for cause. Champagne used a peremptory challenge to remove Lamere. Champagne exhausted all of his peremptory challenges. ¶13 Another prospective juror, Andrew Herdina (Herdina), filed an Affidavit for Excusal with the clerk of court that requested permanent exclusion from jury service. Herdina stated, “I am a federal law enforcement officer and feel I may be biased in a criminal trial.” The clerk of court advised Herdina to discuss his potential bias with the lawyers in the case to which he would be assigned. The record does not reflect whether Champagne’s defense 4 counsel had knowledge of Herdina’s affidavit. Herdina did not raise the issue of his potential bias during voir dire. Champagne’s defense counsel did not question Herdina about his law enforcement background or his claimed bias. Herdina served on Champagne’s jury. ¶14 Champagne alleged at trial that J.B. had made up the story. Champagne claimed that J.B.’s accusations against Champagne arose from a family feud. Champagne alternatively claimed that J.B. sought to protect her actual abuser by blaming Champagne. ¶15 Matkin testified for the State. The State failed to qualify Matkin as an expert. The District Court nevertheless permitted Matkin to testify that her training as a forensic interviewer included whether a witness had been coached. The District Court further permitted Matkin to testify that she had seen no indications that J.B. had been coached. Matkin and J.B.’s mother, Falcon, also repeated J.B.’s earlier statements to them regarding what Champagne had done to her. The jury convicted Champagne of felony sexual assault. ¶16 The District Court imposed a sentence of 40 years at the Montana State Prison. The District Court imposed a restitution obligation in an initial amount of $1,583, with an ongoing obligation to the extent that J.B. requires additional or ongoing treatment. The District Court’s judgment enumerated several recommendations for the Department of Corrections. These recommendations included that Champagne be required to pay $3,478.09 for legal fees and expenses, plus the costs of jury service, prosecution and pretrial, probation, or community service supervision. STANDARD OF REVIEW 5 ¶17 We review for abuse of discretion a district court’s denial of a challenge for cause of a prospective juror. State v. Jay, 2013 MT 79, ¶ 15, 369 Mont. 332, 298 P.3d 396. We review de novo a claim of ineffective assistance of counsel. State v. Upshaw, 2006 MT 341, ¶ 13, 335 Mont. 162, 153 P.3d 579. We review for abuse of discretion rulings on the admissibility of evidence, including oral testimony. State v. Henderson, 2005 MT 333, ¶ 8, 330 Mont. 34, 125 P.3d 1132. We review for legality a sentence involving incarceration of a year or more. State v. Heafner, 2010 MT 87, ¶ 1, 356 Mont. 128, 231 P.3d 1087. DISCUSSION ¶18 Whether the District Court abused its discretion in denying Champagne’s for-cause challenge of a prospective juror? ¶19 A potential juror may be removed for cause if he possesses a state of mind that would prevent him from acting with entire impartiality and without prejudice to the substantial rights of either party. Section 46-16-115(2)(j), MCA; Jay, ¶ 19. A court must look at the totality of the circumstances of the potential juror’s voir dire examination. Jay, ¶ 19. A court gives more weight to a prospective juror’s “spontaneous statements” than to “coaxed recantations” elicited by counsel. Jay, ¶ 19. ¶20 A juror should not be removed merely because he voices a concern about being impartial. Every person comes to jury duty with preconceptions. Jay, ¶ 20. It falls within the discretion of the district court to decide whether a juror will be able to be impartial when a juror makes comments that suggest a fixed opinion, but later says he can set that opinion aside and follow the law. Jay, ¶ 20. 6 ¶21 We reversed the district court in State v. Freshment, 2002 MT 61, 309 Mont. 154, 43 P.3d 968, for failing to dismiss two jurors for cause. The State charged Freshment with two counts of sexual intercourse without consent that involved two girls under age 16. The law provided that if Freshment reasonably had believed that the girls were 16 years old, the jury should acquit him of the charges. Defense counsel asked the potential jurors whether they could acquit Freshment if he had reasonably believed that the 15-year-old girls were actually 16 years old. ¶22 Juror Paula Porter admitted that she would “lean towards not following the law” if the law required acquittal under those circumstances. Porter also admitted that she “really couldn’t” acquit under any circumstances. Freshment, ¶ 8. Juror James Hansen similarly stated that he did not know if he would acquit Freshment even if Freshment reasonably had believed that the girls were 16 years old. Freshment, ¶ 9. Both jurors stated an actual bias when they testified that they could not follow the law and acquit Freshment even if they found that Freshment reasonably had believed that the victims were 16 years old. Freshment, ¶ 16. ¶23 Champagne challenged potential juror Lamere for cause. Lamere had responded “yes” to a jury questionnaire that asked whether he preferred that a person charged with a crime prove his innocence. Lamere stated during voir dire that he would have reservations about a defendant not testifying. Defense counsel asked Lamere, “do you think if the Defendant didn’t testify and chose not to, that suspicion arises? Do you think that maybe 7 that could happen?” Lamere responded, “[p]robably, yeah.” Champagne moved to dismiss Lamere for cause. ¶24 The District Court responded to this motion by instructing Lamere on the law. [T]here is a presumption of innocence and the State has a burden of proving their case beyond a reasonable doubt. Part of that burden means that the Defendant does not have to testify. And if the Defendant does not testify I will instruct the jury that they are not to make any presumption or inference from that failure to testify. You have to decide whether the case has been proven based on the evidence that has been presented and not draw any negative inference from the Defendant’s failure to testify. That is the law. Now, with that said, would you be able to follow the law, sir? Lamere responded, “yes, ma’am.” The District Court asked Lamere, “[a]nd you could follow the law and not draw any inference as to the Defendant’s election not to testify?” Lamere responded, “I have never sat [on] a jury like that before, so I guess, you know, I’m not sure what to say. But I will follow the law, you know, not that I would go against the law. I don’t understand a lot about the law, I guess.” ¶25 The State asked Lamere whether he understood the presumption of innocence and a defendant’s right not to testify. Lamere responded that he understood. Lamere also agreed with the State that there could be many reasons, unrelated to a person’s guilt, that a person may choose not to testify. The District Court denied Champagne’s motion to dismiss Lamere for cause. ¶26 The District Court possesses the ability to “look into the eyes of the juror in question” and to consider his responses in the context of the courtroom. Jay, ¶ 20. Lamere made comments to suggest that he would prefer that a defendant prove his innocence and that he 8 may draw a negative inference if a defendant chose not to testify. The District Court explained the presumption of innocence to Lamere and a defendant’s right not to testify. Unlike the jurors in Freshment, who admitted that they may be unable to follow the law, Lamere readily admitted that he had been unfamiliar with the trial process and that he would follow the law as instructed by the court. See Freshment, ¶¶ 8-9. The District Court determined that Lamere’s responses demonstrated his ability to remain impartial. We cannot say that the District Court abused its discretion under these circumstances. ¶27 Whether Champagne’s counsel provided ineffective assistance? ¶28 Champagne argues that his trial counsel’s failure to question Herdina about Herdina’s affidavit constitutes ineffective assistance of counsel. Herdina stated in his affidavit that his employment as a law enforcement officer may affect his ability to remain impartial in a criminal case. ¶29 We first must determine whether Champagne properly presents allegations of ineffective assistance of counsel before this Court on direct appeal. Upshaw, ¶ 33; § 46-21- 105(2), MCA. We look to whether the record contains an answer as to “why” counsel took, or failed to take, action in providing a defense. Upshaw, ¶ 33. Post-conviction proceedings represent the appropriate avenue for relief if the record does not fully explain “why” counsel acted or failed to act. Upshaw, ¶ 33. An exception to the requirement for a record-based answer arises when “no plausible justification” exists to counter a claim of ineffective assistance on appeal. Upshaw, ¶ 34. 9 ¶30 The record provides no explanation as to “why” Champagne’s counsel failed to inquire about Herdina’s affidavit. Champagne argues that “no plausible justification” exists for this oversight. Upshaw, ¶ 34. The record does not establish whether Champagne’s counsel even knew of the existence of Herdina’s affidavit. Herdina did not mention any potential bias during voir dire. In fact, Herdina stated during voir dire that he felt that he could be fair to both the State and to Champagne. ¶31 Champagne’s counsel’s possible lack of knowledge regarding the affidavit creates a potential plausible justification for Champagne’s counsel’s failure to ask Herdina about his employment related bias. See Upshaw, ¶ 34. Further, Herdina explicitly stated during voir dire that he was not biased. We cannot say that “no plausible justification” exists for Champagne’s counsel not to have questioned Herdina regarding his affidavit. See Upshaw, ¶ 34. A post-conviction proceeding represents the appropriate avenue for Champagne to bring his ineffective assistance of counsel claim. ¶32 Whether the District Court abused its discretion in admitting the forensic interviewer’s opinion testimony? ¶33 Champagne argues that the District Court improperly allowed Matkin to offer an expert opinion although she was not qualified as an expert. The State argues that Matkin provided a lay opinion, rather than an expert opinion, that the District Court properly admitted under M. R. Evid. 701. ¶34 Champagne implied during cross-examination that J.B.’s testimony may have been coached. Matkin testified after J.B. Matkin testified that she had received training to 10 recognize whether a victim had been coached. The State asked Matkin, “[d]id you observe any indications of coaching in [J.B.’s] interview?” The District Court overruled Champagne’s objection. Matkin responded, “[n]o, I did not.” ¶35 A lay witness may testify to opinions or inferences that rationally relate to the perception of that witness and are helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. M. R. Evid. 701. A witness’s training can provide a sufficient foundation for them to provide lay opinion testimony. For instance, in State v. Frasure, 2004 MT 305, ¶¶ 17-18, 323 Mont. 479, 100 P.3d 1013, we recognized that a police officer may testify as a lay witness to matters to which he has extensive training and experience. The police officer’s training and experience in Frasure provided a sufficient foundation for the police officer to testify as to his lay opinion that the criminal defendant possessed drugs with the intent to sell the drugs. Frasure, ¶¶ 17-18. ¶36 The State elicited testimony from Matkin to demonstrate that Matkin had training to identify whether a victim had been coached. The State asked Matkin whether she had seen any indication that J.B. had been coached. The District Court properly allowed Matkin to testify about a matter to which she had training and experience: whether a victim had been coached. See Frasure, ¶¶ 17-18. ¶37 Whether the District Court properly admitted J.B.’s prior consistent statements? ¶38 Champagne further argues that the District Court improperly allowed Matkin and Falcon to testify about J.B.’s prior consistent statements. Montana Rule of Evidence 801(d)(1) provides that a party may admit a declarant’s prior consistent statement if the party 11 offers it to rebut an express or implied charge that the declarant had fabricated her testimony or had acted from an improper influence or motive in testifying. ¶39 Four requirements must be met to admit a statement as a prior consistent statement. State v. McOmber, 2007 MT 340, ¶ 13, 340 Mont. 262, 173 P.3d 690. First, the declarant must have testified at the trial. McOmber, ¶ 13. Second, the declarant must have been subject to cross-examination concerning her statement. McOmber, ¶ 13. Third, the prior statements to which the witness testifies must be consistent with the declarant’s testimony at trial. McOmber, ¶ 13. Finally, the prior statement must rebut an express or implied charge of subsequent fabrication or subsequent improper influence or motive. McOmber, ¶ 13. In order to rebut a charge of subsequent fabrication or subsequent improper influence, the consistent statement must have been made before the motivation to fabricate a story arose, or before the improper influence occurred. McOmber, ¶ 15. ¶40 The parties agree that J.B. testified at trial and that Champagne subjected J.B. to cross-examination. The parties also agree that Falcon’s and Matkin’s testimony of J.B.’s prior statements comported with the testimony that J.B. had given at trial. The parties further agree that Champagne had opened the door to prior consistent evidence testimony when he attempted to impeach J.B. by claiming that she possessed a motive to fabricate her story or that she was subjected to improper influence. Champagne argues, however, that J.B. had made no prior consistent statements before the existence of the alleged motivation to fabricate. 12 ¶41 J.B. testified that her mother had taken her to a doctor to see “if I still had my virginity.” Champagne’s counsel implied during cross-examination that J.B.’s testimony had been coached. Champagne’s counsel suggested that “virginity” was a word that a twelve-year-old girl would not normally have in her vocabulary. Champagne’s counsel asked J.B. whether she had spoken with a number of people about what had happened. J.B. admitted that she had talked to Falcon, to Matkin, to the County Attorney, and to her friend Brittany. ¶42 Champagne’s counsel next inquired whether the County Attorney had told J.B. what to say. J.B. denied that the County Attorney had told her what to say. J.B. admitted that she and the County Attorney had gone over questions to be asked during her direct examination. J.B. further admitted that the County Attorney had told J.B. what to expect at the trial and on cross-examination by Champagne’s counsel. ¶43 Champagne’s counsel also asked J.B. whether Falcon, Matkin, or Brittany had told J.B. what to say. J.B. denied that any of them had told her what to say. Champagne’s counsel pressed J.B. on her use of the word “virginity.” Champagne’s counsel stated, “I never heard you use that word in any of your other interviews. Did somebody tell you what that was?” J.B. responded, “No.” Champagne’s counsel remarked, “[o]kay. You have a good vocabulary then. Okay.” ¶44 The District Court determined that Champagne had opened the door to prior consistent statement evidence. Champagne had suggested on cross-examination that the County Attorney, Matkin, or Falcon, had coached J.B. in her trial testimony. Falcon testified 13 about what J.B., then ten years old, had told her regarding the incident. Falcon’s testimony of J.B.’s prior statements comported with J.B.’s testimony at trial. See McOmber, ¶ 13. The conversation between Falcon and J.B. took place before J.B. had spoken with either Matkin or the County Attorney. See McOmber, ¶ 15. J.B.’s statements to Falcon took place before any alleged coaching by Matkin or by the County Attorney could have occurred. See McOmber, ¶ 15. ¶45 Matkin also testified about what J.B., then ten years old, had told her. Matkin’s testimony regarding J.B.’s prior statement comported with J.B.’s testimony at trial. See McOmber, ¶ 13. The conversation between Matkin and J.B. took place before J.B. had spoken with the County Attorney. See McOmber, ¶ 15. J.B.’s statements to Matkin took place before any alleged coaching by the County Attorney could have occurred. See McOmber, ¶ 15. The District Court properly admitted both Matkin’s and Falcon’s testimony of J.B.’s description of what had happened to her under M. R. Evid. 801(d)(1)(B), due to the fact that J.B. had made her statements to Matkin and Falcon before the alleged “improper influence” by the County Attorney. See McOmber, ¶ 15. ¶46 Whether the District Court imposed an illegal sentence? ¶47 Champagne argues that the District Court improperly considered Champagne’s denial of guilt when it sentenced Champagne. We will not uphold a sentence where a district court draws a negative inference of lack of remorse as a result of a defendant’s invocation of his constitutional right to remain silent and refusal to admit guilt. State v. Morris, 2010 MT 259, ¶ 22, 358 Mont. 307, 245 P.3d 512; State v. Shreves, 2002 MT 333, ¶ 24, 313 Mont. 252, 60 14 P.3d 991. The district court must have based its decision “in large part” on the defendant’s lack of remorse or failure to take responsibility for this Court to reverse the sentence. Shreves, ¶ 24; see also Morris, ¶ 23. ¶48 The district court in Morris provided eight valid reasons for the sentences, none of which relied on lack of remorse or lack of accountability. Morris, ¶ 23. The district court in Shreves, in contrast, based its sentence and parole restriction, in large part, on his failure to show remorse or to take responsibility for the deliberate homicide for which he had been convicted. Shreves, ¶¶ 7, 24. ¶49 Here the District Court announced in the judgment that, “Defendant has no empathy for the victim and he has even projected blame on to the victim.” The District Court further pointed to Champagne’s four prior felony convictions, his “extensive chemical dependency history,” and Champagne’s diagnosis as a psychopath. The District Court noted that Champagne “possesses several psychopathic qualities; he is callous and predatory, deceptive and manipulative, he lacks empathy and does not feel genuine remorse for his socially deviant and criminal acts. [Champagne’s] prospects at rehabilitation are slim.” The District Court further noted that Champagne had been supervised by the Department of Corrections “in one form or another almost his entire adult life.” We cannot say that the District Court based its sentencing decision “in large part” on Champagne’s denial of guilt under these circumstances. See Shreves, ¶ 24; Morris, ¶ 23. ¶50 Further, a district court may sentence a defendant based on lack of remorse so long as affirmative evidence of the lack of remorse exists. Morris, ¶ 22. The District Court noted 15 that Dr. Michael Scolatti’s psychological evaluation portrayed Champagne as a person who is “lacking in empathy and does not feel genuine remorse for socially deviant and criminal acts. He usually does not feel guilt when he hurts, takes advantage of, or otherwise abuses other people.” Dr. Scolatti further opined that Champagne “evidences little or no empathy for the victim.” The record does not support Champagne’s claim that the District Court improperly drew a negative inference from Champagne’s denial of guilt. See Shreves, ¶ 14; Morris, ¶ 22. ¶51 Champagne next argues that the District Court’s imposition of unspecified restitution costs represents an illegal sentence. The District Court required Champagne to pay restitution to J.B. The District Court recognized that J.B. may need additional and ongoing treatment. The District Court ordered Champagne to cover these future, unknown costs. The State admits that Montana law requires restitution obligations to be imposed in “a specified amount.” Heafner, ¶ 13. We remand to the District Court to set a specified amount for restitution for future costs. See Heafner, ¶ 13. ¶52 Champagne also challenges the District Court’s recommended conditions “[f]or any term of community supervision.” The District Court possesses authority to make non- binding recommendations to the Department of Correction’s Board of Pardons and Parole as part of its judgment. Heafner, ¶ 13. Champagne admits that this Court need not determine the legality of the District Court’s order if the District Court merely made non-binding recommendations. ¶53 We affirm in part, reverse in part, and remand. 16 /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT | July 16, 2013 |
5f98cffb-7145-4efb-b2e9-4276115f9341 | Fisher v. State Farm Mut. Auto. Ins. Co. | 2013 MT 208 | DA 12-0346 | Montana | Montana Supreme Court | DA 12-0346 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 208 KATHLEEN C. FISHER, a Limited Conservator for the Estate of SHARON McCARTNEY, a protected person, SHARON McCARTNEY, and LESLIE D. McCARTNEY, Plaintiffs and Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Delaware Corporation, and STATE FARM FIRE AND CASUALTY COMPANY, Defendants, Cross-claim Defendants and Appellants. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV 09-584B Honorable Mike Salvagni, Presiding Judge COUNSEL OF RECORD: For Appellants: Robert F. James; Cathy J. Lewis (argued); Ugrin, Alexander, Zadick & Higgins, P.C.; Great Falls, Montana For Appellees Kathleen Fisher and Sharon McCartney: Travis W. Kinzler (argued); Julieann McGarry; Cok Kinzler, PLLP; Bozeman, Montana For Appellee Leslie McCartney: William R. Bieler (argued); Burk, Lee & Bieler, PLLC; Choteau, Montana Lyman H. Bennett, III; Attorney at Law; Bozeman, Montana For Amicus Property Casualty Insurers Association of America and National Association of Mutual Insurance Companies: Martha Sheehy (argued); Sheehy Law Firm; Billings, Montana July 30 2013 2 For Amicus Montana Trial Lawyers Association: Amy Poehling Eddy; Bottomly Eddy & Sandler, PLLP; Kalispell, Montana Gregory S. Munro; Attorney at Law; Missoula, Montana Argued and Submitted: February 20, 2013 Decided: July 30, 2013 Filed: __________________________________________ Clerk 3 Justice Jim Rice delivered the Opinion of the Court. ¶1 Sharon McCartney (Sharon) and Leslie McCartney (Les), wife and husband, sought declaratory relief that Les’s umbrella policy with State Farm Fire and Casualty Company (State Farm) provided coverage for injuries sustained by Sharon as a result of Les’s negligent driving. State Farm answered that there was no coverage for Sharon’s claim due to a family member exclusion in the umbrella policy. The Eighteenth Judicial District Court, Gallatin County, concluded that the policy was not ambiguous, did not violate the McCartneys’ reasonable expectations, and did not violate Montana public policy, but that the exclusion was unconscionable. The District Court entered summary judgment in favor of the McCartneys. ¶2 State Farm appeals. In their arguments, both State Farm and the McCartneys challenge portions of the District Court’s orders.1 State Farm argues that the District Court’s unconscionability determination is erroneous and should be reversed, and summary judgment be entered in its favor. McCartneys argue that the District Court’s entry of summary judgment in their favor should be affirmed, but that this Court should “reverse the District Court’s ruling regarding ambiguity and direct it to enter an order declaring that the family member exclusion at issue . . . . is ambiguous and violates the McCartneys’ reasonable expectations,” thus arguing that the District Court erred by not entering judgment in their favor on additional grounds. To address the parties’ 1 The District Court entered separate summary judgment orders for Les and Sharon. The McCartneys have filed separate briefs on appeal. We refer herein to the McCartneys’ arguments as made jointly. 4 arguments, and because the issues are interrelated, we take up the issues in the following order: ¶3 1. Did the District Court err by concluding that the Umbrella Policy unambiguously excluded Sharon’s claim from coverage and that the Family Member Exclusion did not violate the McCartneys’ reasonable expectations? ¶4 2. Did the District Court err by concluding that the Family Member Exclusion did not violate Montana public policy? ¶5 3. Did the District Court err by concluding that the Family Member Exclusion was unconscionable? ¶6 Upon review of these issues, we reverse the judgment of the District Court. FACTUAL AND PROCEDURAL BACKGROUND ¶7 On December 30, 2007, Les and Sharon were involved in a motor-vehicle accident near Townsend. Les was driving his vehicle when he negligently struck a vehicle parked on the side of the road. Sharon, a passenger in Les’s car, sustained serious injuries. ¶8 Les has two insurance policies pertinent to this dispute. The first is Les’s State Farm Automobile Liability Policy (Auto Policy), which provided bodily injury limits of $250,000 per person and $500,000 per accident. Les paid an annual premium of $289.16 for this coverage. The second policy is Les’s State Farm Personal Liability Umbrella Policy (Policy or Umbrella Policy), with a stated limit of $2,000,000. Les paid an annual premium of $201 for this coverage. ¶9 State Farm paid Sharon the full per-person bodily injury liability limit of $250,000 under the Auto Policy for the injuries she received as a result of the accident. State Farm denied Sharon’s claim to additional coverage for her injuries under the Umbrella Policy 5 because that policy excluded claims brought by Les’s relatives who lived with him pursuant to an exclusion denominated by the parties as the Family Member Exclusion. ¶10 Sharon sought a declaratory judgment that she was entitled to coverage for her injuries under the Umbrella Policy. Les sought the same relief. The McCartneys argued that the exclusion was unenforceable because it was ambiguous, violated Montana public policy, violated their reasonable expectations of coverage, and was unconscionable. State Farm answered that Sharon’s claim was properly excluded by the Family Member Exclusion. The District Court granted summary judgment to the McCartneys, holding the Exclusion was unconscionable because it denied coverage to family members, a class of victims the District Court reasoned was most likely to need coverage: “[This innocent class of victims] is exposed to negligent operation of the covered vehicle more than included victims, because typical family relations require family members to ride together on the way to work, church, school, social functions, or family outings. Thus, these individuals cannot practically avoid exposure to the risk for which they [are] uninsured. [This is unconscionable.]” (Quoting Safeco Ins. Co. of Ill. v. Auto. Club Ins. Co., 31 P.3d 52, 54-55 (Wash. App. 2001)) (brackets in District Court Order). STANDARD OF REVIEW ¶11 We review de novo a district court’s grant or denial of summary judgment, applying the same criteria as the district court. Modroo v. Nationwide Mut. Fire Ins. Co., 2008 MT 275, ¶ 19, 345 Mont. 262, 191 P.3d 398. The District Court’s interpretation of an insurance contract is a question of law this Court reviews de novo. Stutzman v. Safeco Ins. Co. of Am., 284 Mont. 372, 376, 945 P.2d 32, 34 (1997). 6 DISCUSSION ¶12 1. Did the District Court err by concluding that the Umbrella Policy unambiguously excluded Sharon’s claim from coverage and that the Family Member Exclusion did not violate the McCartneys’ reasonable expectations? ¶13 When interpreting an insurance contract, we accord the usual meaning to the terms and the words used, and we construe them using common sense. Modroo, ¶ 23. The Umbrella Policy contains the following pertinent policy provisions, with bolded words defined: COVERAGE L — PERSONAL LIBIABILITY If a claim is made or suit is brought against an insured for damages of a loss for which the insured is legally liable and to which this policy applies, we will pay on behalf of the insured, the damages that exceed the retained limit. . . . EXCLUSIONS There is no coverage under this policy for any: 13. bodily injury or personal injury to any insured as defined in part a . . . . of the definition of insured[.] Thus, the Policy generally covers claims in excess of the insured’s primary insurance but does not cover claims brought by an insured. The Policy defines who is an insured: DEFINITIONS “insured” means: a. you and your relatives whose primary residence is your household[.] . . . “relative” means any person related to you by blood, adoption, or marriage. . . . “you” and “your” mean the person or persons shown as the “Named Insured” on the declarations page. If a named insured shown on the declarations page is a human being then you and your includes the spouse of the first person listed as the named insured if the spouse resides primarily with that named insured. 7 Les was issued the Umbrella Policy and is named on the declarations page. Applying the definitions of “you” and “your,” he is an insured. “Relative” is defined by the policy as “any person related to you by blood, adoption, or marriage.” Sharon is related to Les by marriage. See also Stutzman, 284 Mont. at 379-80, 945 P.2d at 36 (“In accordance with prevailing case law, and applying a common sense interpretation of the terms at issue, we conclude that the average consumer of insurance would, in reading the [policy], conclude that the term ‘relative’ includes reference to his or her spouse.”).2 Sharon is an “insured” by virtue of being Les’s relative who primarily resides with him. The Umbrella Policy excludes Sharon’s claim because, under the Family Member Exclusion, there is no coverage for bodily injury sustained by an insured. ¶14 Having determined that the Umbrella Policy facially excludes coverage for Sharon’s bodily injuries, we next consider if public policy or principles of contract interpretation prohibit the enforcement of the exclusion. See Augustine v. Simonson, 283 Mont. 259, 264, 940 P.2d 116, 119 (1997). We first address principles of contract interpretation under this issue, and then turn to principles of public policy under Issue 2. ¶15 The interpretation of an insurance contract is a question of law. Modroo, ¶ 23. “We accord the usual meaning of the terms and the words in an insurance contract, and we construe them using common sense.” Modroo, ¶ 23. An insurance contract is ambiguous if it is “‘reasonably subject to two different interpretations.’” Modroo, ¶ 23 2 In Stutzman, Justices Leaphart and Hunt dissented from the majority’s conclusion that the term “relative” includes one’s spouse. Stutzman, 284 Mont. at 382, 945 P.2d at 38 (Leaphart & Hunt, JJ., dissenting). Here, the Umbrella Policy avoids this issue by specifying that “relative” includes relationships of both consanguinity (by blood) and affinity (by marriage). 8 (quoting Mitchell v. State Farm Ins. Co., 2003 MT 102, ¶ 26, 315 Mont. 281, 68 P.3d 703). Whether a provision of an insurance contract is “reasonably susceptible to two different interpretations,” is determined from “the viewpoint of a consumer with average intelligence, but untrained in the law or the insurance business.” Modroo, ¶ 23. However, a provision is not ambiguous “just because a claimant says so or just because the parties disagree as to [its] meaning . . . .” Giacomelli v. Scottsdale Ins. Co., 2009 MT 418, ¶ 32, 354 Mont. 15, 221 P.3d 666 (internal citations omitted); Johnson v. Eq. Fire & Mar. Ins. Co., 142 Mont. 128, 131, 381 P.2d 778, 789 (1963). “Courts should not . . . ‘seize upon certain and definite covenants expressed in plain English with violent hands, and distort them so as to include a risk clearly excluded by the insurance contract.’” Travelers Cas. & Sur. Co. v. Ribi Immunochem Research, Inc., 2005 MT 50, ¶ 17, 326 Mont. 174, 108 P.3d 469 (internal citation omitted). Because insurers draft the language of insurance contracts and the object of an insurance contract is to give protection to the insured, we construe ambiguous provisions “against the insured and in favor of extending coverage.” Modroo, ¶ 23. ¶16 The McCartneys first argue that the Umbrella Policy is ambiguous because, although it excludes claims brought by relatives of the person(s) listed as a “named insured” on the declaration page, the term “named insured” itself does not also appear on the declaration page. While the McCartneys are correct that the term “named insured” does not appear on the declaration page, “named insured” has a common sense meaning: it refers to the party the insurance policy was issued to cover. The policy refers to that 9 party by name. See 6C Appleman, Insurance Law & Practice, § 4354, at 51 (West Publishing Co., 1979) (“Whenever the term ‘named insured’ is employed, it refers only to the person specifically designated upon the face of the contract[.]”); Waller v. Rocky Mt. Fire & Cas. Co., 535 P.2d 530, 534 (Or. 1975) (“Wherever the description ‘named insured’ is used, the only person named in the declarations of the policy is meant.”). Here, the Umbrella Policy was issued to Les E. McCartney and Frances D. McCartney.3 The Policy further directs that the named insureds are the person(s) listed on the declaration page, and the names of Les E. McCartney and Frances D. McCartney are listed there. Thus, Les E. McCartney and Frances D. McCartney are clearly the “named insureds” under the Umbrella Policy, and there is no ambiguity. ¶17 The McCartneys also argue the Family Member Exclusion is ambiguous because the Policy uses the term “spouse” in the definition of “you and your,” but does not likewise use “spouse” in the definition of “relative.” McCartneys argue that this discrepancy could lead an average person to believe that a “spouse” is not a “relative” within the meaning of the Umbrella Policy. However, the Policy’s definition of “relative” is “any person related to you by blood, adoption, or marriage.” Here again, the terms are clear. Although the term “spouse” is not included within the definition of “relative,” a common sense reading of this provision leaves only one reasonable meaning: that one related by “marriage” is also a “spouse.” See Merriam-Webster’s Collegiate Dictionary, Tenth Edition 1138 (Merriam-Webster, Inc. 1998) (spouse: 3 Frances is Les’s mother. 10 “married person: husband, wife”). Under the Policy’s definitions, Sharon is both Les’s “spouse” and his “relative,” and there is no ambiguity. ¶18 McCartneys further contend the District Court erred by holding the Umbrella Policy did not violate their reasonable expectations. The District Court concluded that, because the exclusion “clearly” excluded Sharon from coverage, any expectation that a claim brought by Sharon would be covered was not “objectively reasonable.” The McCartneys argue that the Exclusion is not sufficiently “clear” because an average person reading the policy would not be able to navigate the Umbrella Policy and the declaration page to effectively discern that Sharon was excluded from coverage. ¶19 The question of whether a provision is sufficiently “clear” to render the reasonable expectations doctrine inapplicable is a different question than whether a provision is ambiguous. If the reasonable expectations doctrine only applied when a provision was ambiguous, there would be no need for the doctrine, as Montana law independently construes ambiguous provisions against the insurer and in favor of coverage. C.f. Bailey v. Lincoln Gen. Ins. Co., 255 P.3d 1039, 1050 (Colo. 2011) (en banc) (“[T]he doctrine of reasonable expectations applies when policy coverage-provisions may not be ambiguous in a technical sense, and hence subject to the rule that ambiguities must be construed against the drafter . . . .”). However, a finding that a provision “unambiguously precludes coverage” is a factor to be considered in determining whether it violates reasonable expectations. Am. Family Mut. Ins. Co. v. Livengood, 1998 MT 329, ¶ 38, 292 Mont. 244, 970 P.2d 1054. 11 ¶20 We first recognized the reasonable expectations doctrine in Transamerica Ins. Co. v. Royle, 202 Mont. 173, 656 P.2d 820 (1983): “‘The objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations.’” Royle, 202 Mont. at 180-81, 656 P.2d at 824 (quoting Robert E. Keeton, Insurance Law Rights Variance with Policy Provisions, 83 Harvard L. Rev. 961, 967 (1970)). However, “the reasonable expectations doctrine is inapplicable where the terms of the policy at issue clearly demonstrate an intent to exclude coverage.” Livengood, ¶ 33 (citing Wellcome v. Home Ins. Co., 257 Mont. 354, 359, 849 P.2d 190, 194 (1993)). “The reason, of course, is that ‘expectations which are contrary to a clear exclusion from coverage are not “objectively reasonable.”’” Livengood, ¶ 33 (quoting Wellcome, 257 Mont. at 359, 849 P.2d at 194). ¶21 In Livengood, a coverage exclusion in an automobile liability policy was challenged as violating the reasonable expectations doctrine. Henninger was driving her roommate’s vehicle when she negligently caused an accident, injuring the Livengoods. Henninger’s automobile liability policy on her own vehicle contained a nonowned automobile/household exclusion that excluded coverage for injuries arising from her use of a vehicle “owned by or furnished or available for regular use by you or any resident of your household.” Livengood, ¶¶ 16-17. Livengoods argued the exclusion violated the reasonable expectations of Henninger, the insured. This Court unanimously upheld the exclusion, reasoning that the provision “clearly demonstrate[d] an intent to exclude 12 coverage while Henninger was using a vehicle owned by . . . a resident of her household, and any expectation by Henninger to the contrary would not be objectively reasonable.” Livengood, ¶ 38 (citing Stutzman, 284 Mont. at 381, 945 P.2d at 37). ¶22 The Family Member Exclusion here is similarly clear. The Umbrella Policy exclusion provides that “no coverage” is available for “bodily injury or personal injury to any insured.” As demonstrated above, Sharon is an “insured” under the Policy. These provisions “clearly demonstrate an intent to exclude coverage” for Sharon’s claim. Livengood, ¶ 33. ¶23 McCartneys urge that necessary clarity would have been provided had State Farm simply stated: “NOTICE: THIS POLICY PROVIDES NO LIABILITY COVERAGE TO YOUR SPOUSE.” However, this simple proposed clarification is incorrect. The Policy does provide liability coverage to Sharon. She is an insured, and the Policy provides excess liability protection to Sharon “if a claim is made or suit is brought against” her by a third party. See Rowe, 245 Mont. at 417, 800 P.2d at 160 (“excess coverage of an umbrella or catastrophe policy protects an insured . . . against liability from third parties”). Regarding McCartneys’ arguments about having to navigate the Policy, there is nothing unusual about a policy that requires the insured to read the exclusion section, the definition section, and the declaration page to determine the scope of coverage. See e.g. Meyer v. State Farm Mut. Auto. Ins., 2000 MT 233, ¶¶ 8-11, 303 Mont. 1, 15 P.3d 899 (upholding exclusion in auto liability policy that required insured to review the definition section, the exclusion section, and the declaration page). A person of average 13 intelligence would be able to determine that claims made by Sharon against Les were excluded by a review of these provisions of the Policy, and any expectation of coverage to the contrary was not objectively reasonable, as the District Court correctly concluded. ¶24 2. Did the District Court err by concluding that the Family Member Exclusion did not violate Montana public policy? ¶25 Insurance agreements are contracts that are subject to general rules of contract law. Ribi Immunochem, ¶ 17. Unambiguous insurance provisions are to be enforced unless the provision violates public policy or is against good morals. Hein v. Fox, 126 Mont. 514, 520, 254 P.2d 1076, 1079 (1953); Youngblood v. Am. States Ins. Co., 262 Mont. 391, 395, 866 P.2d 203, 205 (1993); Modroo, ¶ 49. “As a general rule, the Montana public policy is prescribed by the legislature through its enactment of statutes.” Hardy v. Progressive Specialty Ins. Co., 2003 MT 85, ¶ 32, 315 Mont. 107, 67 P.3d 892 (citing Duck Inn, Inc. v. Mont. St. Univ., 285 Mont. 519, 523-24, 949 P.2d 1179, 1182 (1997)). Insurance provisions which “violate express statutes” are contrary to public policy and void. Mont. Petroleum Tank Release Comp. Bd. v. Crumleys, Inc., 2008 MT 2, ¶ 55, 341 Mont. 33, 174 P.3d 948. ¶26 The McCartneys argue that the Family Member Exclusion violates public policy because it is inconsistent with §§ 61-6-103 and 301, MCA. McCartneys argue that these statutes insure protection for “innocent victims of automobile accidents,” citing Iowa Mut. Ins. Co. v. Davis, 231 Mont. 166, 752 P.2d 166 (1988), and that § 61-6-301, MCA, requires further identification of those who are “named insureds” than that provided 14 under the Umbrella Policy. However, McCartneys read “public policy” into these statutes that go far beyond their wording or meaning. ¶27 In Davis, at issue was the validity of a “named driver exclusion,” which removed from coverage persons expressly excluded on an automobile liability policy. Davis, 231 Mont. at 167, 752 P.2d at 167. The Davises requested that their children be excluded from their policy to lower their premiums. Davis, 231 Mont. at 167, 752 P.2d at 167. Nonetheless, one of their sons drove the Davises’ vehicle and crashed it, injuring his passenger. Davis, 231 Mont. at 167, 752 P.2d at 167. Iowa Mutual denied all coverage for the passenger’s injuries under the exclusion. Davis, 231 Mont. at 168, 752 P.2d at 167. This Court struck down the exclusion as against public policy because it left the passenger in the insured vehicle without any coverage, in violation of the mandatory liability insurance statute. Davis, 231 Mont. at 170, 752 P.2d at 168. Our general statement in Davis that the liability insurance law protects “innocent victims of automobile accidents” was made in the context of our holding that the minimum coverage limits required by §§ 61-6-103, MCA, and 61-6-301, MCA, are applicable to all vehicles insured under an automobile policy. Davis, 231 Mont. at 170, 752 P.2d at 169. We further explained that this public policy did not prevent insurers and insureds from limiting coverage to the mandatory minimum levels required by the statute: Our decision does not, however, read the named driver exclusionary endorsement out of the contract entirely. Rather, contracting parties are free to limit coverage in excess of the minimum required limits, and the exclusion found in the contract is valid in relation to any coverage exceeding the minimum amounts. 15 Davis, 231 Mont. at 172-73, 752 P.2d at 170 (emphasis added) (quoting Allstate Ins. Co. v. U.S. Fid. & Guar., 619 P.2d 329, 333 (Utah 1980)). ¶28 Voiding the Family Member Exclusion in the Umbrella Policy at issue here pursuant to an expansive public policy of protecting “innocent victims of automobile accidents,” as proposed by the McCartneys, could potentially invalidate any number of coverage exclusions without the necessity of conducting a critical analysis of Montana’s public policy. Our cases contain numerous examples of claims to coverage that were denied because of valid exclusions. See e.g. Livengood, ¶¶ 6, 9, 27 (no insurance coverage to injured party because tortfeasor driver was excluded by “nonowned automobile exclusion”); Rowe, 245 Mont. at 414, 418, 800 P.2d at 158, 161 (denying underinsured motorist coverage to estate of “fatally injured” man because umbrella policy excluded such coverage); Stutzman, 284 Mont. at 375, 945 P.2d at 33 (no underinsured coverage for wife injured in accident because of policy exclusion that defined “underinsured motor vehicle” not to include vehicles owned by named insured or any “relative”); Newbury v. State Farm Fire & Cas. Ins. Co., 2008 MT 156, ¶¶ 6, 9, 49, 343 Mont. 279, 184 P.3d 1021. Indeed, all policy exclusions operate to deny coverage in some way, but not necessarily in violation of Montana public policy. ¶29 Section 61-6-301(1)(a), MCA, requires all motor vehicles to have a minimum level of liability insurance: [A]n owner of a motor vehicle that is registered and operated in Montana by the owner or with the owner’s permission shall continuously provide insurance against loss resulting from liability imposed by law for bodily injury or death or damage to property suffered by any person caused by 16 maintenance or use of a motor vehicle in an amount not less than that required by 61-6-103[.]4 Section 61-6-103(1)(b)(i)-(iii), MCA, requires motorists to obtain automobile liability insurance covering, at a minimum, bodily injury limits of $25,000 per person and $50,000 per accident, and a property damage limit of $10,000 per accident. ¶30 Our cases illustrate the reach of these provisions to void coverage exclusions. In Royle, a woman sued her parents for injuries she sustained while a passenger in a vehicle driven by her mother. Royle, 202 Mont. at 174, 656 P.2d at 821. The automobile liability policy excluded coverage for “‘bodily injury to any person who is related by blood, marriage, or adoption to the insured, if that person resides in the insured’s household at the time of loss.’” Royle, 202 Mont. at 174, 656 P.2d at 821 (original brackets omitted). Under this household exclusion, the daughter was not covered. We struck down the exclusion as contravening the requirements of § 61-6-301(1)(a), MCA, that vehicle owners “continuously” provide minimum liability coverage for bodily injury to “any person,” which included household members. Royle, 202 Mont. at 177-79, 656 P.2d at 823-24. ¶31 Conversely, in Stutzman, we upheld a household exclusion within underinsured motorist coverage as not inconsistent with §§ 61-6-301 and 61-6-103, MCA. After she was injured as a passenger in her husband’s vehicle, Stutzman sought payment under the liability and underinsured motorist coverages. Stutzman, 284 Mont. at 375, 945 P.2d at 4 Section 61-6-301, MCA, does not govern the identification of “named insureds” in an automobile liability policy. 17 33. Safeco paid under the liability coverage but denied Stutzman’s demand for payment of underinsured motorist coverage based on an exclusion that removed from the definition of “underinsured motor vehicle” any vehicle “‘owned by or furnished for the regular use of the named insured or any relative . . . .’” Stutzman, 284 Mont. at 378, 945 P.2d at 35. Stutzman asked the court to void the exclusion on public policy grounds, arguing that under Royle, all “household exclusion clauses in bodily injury liability policies are void.” Stutzman, 284 Mont. at 380, 945 P.2d at 37. We rejected such a broad application of Royle and upheld the exclusion, reasoning that: Although this Court may indeed invalidate a household exclusion clause which violates Montana’s mandatory insurance law, there is no statutory mandate for underinsured motorist coverage in Montana. Pursuant to § 61- 6-103(8), MCA, optional underinsured motorist coverage is not subject to the provisions of Montana’s Motor Vehicle Safety Responsibility Act. Therefore, the parties may freely contract to produce exclusions or limitations on underinsured motorist coverage. Stutzman, 284 Mont. at 380-81, 945 P.2d at 37. Because the exclusion in the underinsured coverage did not nullify the mandatory liability limits, the exclusion did not violate public policy and the parties were free to contract for this policy limitation. Stutzman, 284 Mont. at 380-81, 945 P.2d at 37. ¶32 Sections 61-6-301 and 61-6-103, MCA, thus prohibit exclusions that result in failure to provide the minimum coverage required under the statutes. We have voided exclusions as against public policy when they contravene these mandatory statutory minimums. See Davis, supra (invalidating “named driver exclusion” that removed entirely from coverage those expressly excluded in auto policy as violating § 61-6- 18 301(1)); Royle, 202 Mont. at 181, 656 P.2d at 824 (invalidating household exclusion in auto policy as violating § 61-6-301(1) because it removed all coverage to household members); Bill Atkinson Volkswagon v. McClafferty, 213 Mont. 99, 104, 689 P.2d 1237, 1240 (1984) (holding § 61-6-301(1), MCA, requires an automotive dealership to maintain the statutory minimum insurance on the dealership’s “loaner” vehicles); Swank v. Chrysler Ins. Corp., 282 Mont. 376, 383, 938 P.2d 631 (1997) (voiding exclusion in liability policy for vehicle dealership that provided coverage for customers only if the customer was uninsured or underinsured). We have upheld exclusions as not violative of public policy and subject to the parties’ freedom to negotiate when they limited other, nonmandatory coverages. See Stutzman, supra (exclusion of family member vehicles from definition of “underinsured motor vehicle” upheld because the parties were free to “contract to produce exclusions or limitations on [optional] underinsured motorists coverage.”); Livengood, ¶ 27 (“nonowned automobile exclusion” did not violate Montana public policy because the policy at issue provided the “mandatory liability coverage required by §§ 61-6-301(1) and 61-6-103(2)(b)”). The Family Member Exclusion within Les’s optional Umbrella Policy does not violate §§ 61-6-103 and 61-6-301(1), MCA. Because the Exclusion does not “violate express statutes,” Crumleys, ¶ 55, it does not contravene public policy in that way. See Newbury, ¶ 36 (“In Montana, parties to an insurance contract may include provisions that exclude coverage without violating public policy if the exclusion applies to optional, rather than mandatory coverage.”). 19 ¶33 We have also voided insurance clauses as against public policy in other situations. We have voided a subrogation clause in a policy if it undermines the judicially recognized made-whole doctrine. See Youngblood, 262 Mont. at 400, 866 P.2d at 208 (voiding medical payment subrogation clause because it contradicted the made-whole doctrine); Allstate Ins. Co. v. Reitler, 192 Mont. 351, 355, 628 P.2d 667, 670 (1981) (same). Also, we have voided provisions that render coverage “illusory” by “defeat[ing] coverage for which the insurer has received valuable consideration.” Bennett v. State Farm Mut. Auto. Ins. Co., 261 Mont. 386, 389, 862 P.2d 1146, 1148 (1993); Hardy, ¶¶ 25-29 (holding as violative of Montana public policy anti-stacking provision in a policy that permitted insurer to receive valuable consideration for coverage not provided); Mitchell v. State Farm Ins. Co., 2003 MT 102, ¶ 42, 315 Mont. 281, 68 P.3d 703 (same). These situations do not exist here. There is no subrogation clause, and exclusion of Sharon’s claim does not render coverage under the Umbrella Policy illusory. The Policy provides the liability coverage for which the premium was paid, protecting Sharon from third-party automobile claims as well as farm, residential, business and office premises liability, watercraft liability, false arrest, defamation, invasion of privacy and other tort claims. As demonstrated here, umbrella policies are written to provide broad coverage for numerous risks against third parties. ¶34 The McCartneys cite three cases from other jurisdictions that voided household exclusions in umbrella policies as against public policy when applied to automobile accident victims. See State Farm Mut. Auto. Ins. Co. v. Marley, 151 S.W.3d 33 (Ky. 20 2004); Safeco Ins. Co. v. Auto. Club Ins. Co., 31 P.3d 52 (Wa. App. Ct. 2001); GEICO Ins. Co. v. Welch, 90 P.3d 471 (N.M. 2004). However, the reasoning of these courts is inapposite with Montana law and public policy. First, unlike Montana, where the mandatory insurance laws provide minimum coverage for the purpose of protecting victims of automobile accidents, the Washington, Kentucky, and New Mexico courts cited by the McCartneys interpret their mandatory insurance laws to require full compensation to injured victims. Safeco, 31 P.3d at 55-56; Welch, 90 P.3d at 474; Marley, 151 S.W.3d at 36. ¶35 Second, these courts reasoned that the distinction between mandatory coverage (primary automobile liability policies) and optional coverage (umbrella policies) was “irrelevant” to the question of whether public policy voided the household exclusion. Marley, 151 S.W.3d at 36 (internal citation omitted); accord Safeco, 31 P.3d at 56; Welch, 90 P.3d at 474-76. In contrast, our precedent clearly distinguishes between mandatory coverage and optional coverages that fall outside the ambit of Montana’s mandatory insurance laws. Newbury, ¶ 35; Stutzman, 284 Mont. at 380-81, 945 P.2d at 37; Davis, 231 Mont. at 172, 752 P.2d at 170-71.5 5 It has been noted that imputation of mandatory insurance requirements on optional coverages is not without problems: [B]ecause of misunderstanding of the courts as to the nature of [umbrella] coverages, they have been held to fall within the definition of automobile liability insurance. . . . It should be recognized that the generosity of the courts confers no favor upon the insuring public. Such decisions result either in [umbrella] coverage being withdrawn from potential insureds or in premium rates being raised so substantially that they will become priced out of range of most buyers. 8C Appleman, Insurance Law & Practice, § 5071.65 at 107-08 (West Publ. Co. 1981). 21 ¶36 Finally, these courts found the household exclusion to be an “arbitrary” provision that denied coverage for “no legitimate reason.” Safeco, 31 P.3d at 56; accord Welch, 90 P.3d at 475; Marley, 151 S.W.3d at 36. Many other courts have found reasons to conclude such exclusions are not arbitrary. The exclusion helps keep umbrella policies affordable by avoiding “‘coverage for those in the family circle, who, on account of their close intimacy, may be expected to be riding at frequent intervals in the insured car.’” Alfa Ins. Co. v. Hasselle, 74 So.3d 371, 375-76 (Miss. App. 2011) (quoting Perry v. S. Farm Bur. Cas. Ins. Co., 170 So.2d 628, 630 (Miss. 1965)). This has allowed insurers to offer umbrella policies at a cost far less than auto policies: “[U]mbrella policies’ raison d’etre is to provide individuals with affordable protection against excess judgments of third parties, rather than provide individuals with automobile insurance. This fundamental difference is underscored by the difference in premiums that an insurance company charges for the two types of policies. Due to the relative risks associated with each, the premiums that insurance companies charge for umbrella policies are substantially lower than the premiums that insurance companies charge for automobile insurance.” Kromer v. Reliance Ins. Co., 677 A.2d 1224, 1228 (Pa. Sup. 1996) (rejecting argument that umbrella polices must conform to requirements of Pennsylvania’s mandatory auto insurance laws) (quoting Stoumen v. Pub. Ser. Mut. Ins. Co., 834 F. Supp. 140, 143 (E.D. Pa. 1993)). Consistent therewith, the record of this case indicates that Les paid $289 annually for $250,000 per person and $500,000 per occurrence liability protection under his automobile policy, but only $201 annually for $2,000,000 per occurrence liability protection under the Umbrella Policy. 22 ¶37 Other courts have noted the insurer’s interest in avoiding the risk of collusive claims amongst family members: The concept of a household exclusion is a common one which has long enjoyed judicial support. Its purpose is to prevent suspect inter-family legal actions which may not be truly adversary and over which the insurer has little or no control. Such an exclusion is a natural target for the insurer’s protection from collusive assertions of liability. Farmers Ins. Exch. v. Cocking, 628 P.2d 1, 4 (Cal. 1981) (en banc) (internal quotations omitted); accord Allstate Ins. Co. v. Feghali, 814 P.2d 863, 866 (Colo. 1991) (en banc).6 The McCartneys argue that because Montana has abolished inter-spousal tort immunity, see Miller v. Fallon County, 222 Mont. 214, 721 P.2d 342 (1986) and Royle, 202 Mont. 173, 656 P.2d 820, insurers may no longer justify exclusion of family members because of the threat of collusive claims. Abolishment of spousal immunity no doubt prompted insurers to exclude spousal claims from coverage, but upholding the Exclusion in this Policy does not frustrate the abolishment of such immunity. Nothing in this decision prevents Sharon from bringing a negligence claim against Les, and she did so successfully, collecting pursuant to Les’s automobile liability coverage. See Costello v. Nationwide Mut. Ins. Co., 795 A.2d 151, 159 n. 3 (Md. App. Ct. 2002). ¶38 In conclusion, the Family Member Exclusion does not contravene an express statute, undermine the made-whole doctrine, constitute illusory coverage that “defeats coverage for which the insurer has received valuable consideration,” or violate public 6 The McCartneys correctly point out that “[t]here is absolutely no evidence in this case of collusion or fraud on the part of Les.” However, consideration of public policy is an objective inquiry into the relevant principles in statutes and case law. 23 policy in any other way. Bennett, 261 Mont. at 389, 862 P.2d at 1148. We note that, in holding that a household exclusion in an umbrella policy does not violate public policy, we join the majority of jurisdictions that have addressed the issue.7 ¶39 3. Did the District Court err by concluding that the Family Member Exclusion was unconscionable? ¶40 In a very brief analysis, the District Court held that the Family Member Exclusion was unconscionable because it excluded from coverage a class of victims most likely to be exposed to injury, quoting Safeco’s statement that “typical family relations require family members to ride together on the way to work, church, school, social functions, or family outings.” Safeco, 31 P.3d at 54-55. We have discussed above the dispositive distinctions between Safeco and Montana law. ¶41 “Unconscionability requires a two-fold determination: that the contractual terms are unreasonably favorable to the drafter and that there is no meaningful choice on the part of the other party regarding acceptance of the provisions.” Summers v. Crestview Apartments, 2010 MT 164, ¶ 22, 357 Mont. 123, 236 P.3d 586 (citing Iwen v. U.S. West Direct, 1999 MT 63, ¶ 31, 293 Mont. 512, 977 P.2d 989). A provision “unreasonably favors the drafter” when it is “‘so one-sided as to be unconscionable under the 7 See e.g. Farm Bureau Mut. Ins. Co. v. Schrock, 252 P.3d 98, 105 (Idaho 2011); Costello v. Nationwide Mut. Ins. Co., 795 A.2d 151, 159-60 (Md. 2002); Bogas v. Allstate Ins. Co., 562 N.W.2d 236, 237 (Mich. App. 1997); Elec. Ins. Co. v. Rubin, 32 F.3d 814, 818-20 (3rd Cir. 1994) (applying Pennsylvania law); Walker v. State Farm Mut. Auto. Ins., 850 So.2d 882, 889 (La. App. 2003); Weitz v. Allstate Ins. Co., 642 A.2d 1040, 1041-42 (N.J. Supp. App. Div. 1994); State Farm Mut. Auto. Ins. Co. v. Daprato, 840 A.2d 595, 599 (Del. 2003); Schanowitz v. State Farm Mut. Auto. Ins. Co., 702 N.E.2d 629, 633 (Ill. App. 1998); State Farm Mut. Auto Ins. Co. v. Gengelbach, 1992 WL 88025, *4 (D. Kansas 1992) (applying Missouri law). 24 circumstances existing at the time of the making of the contract.’”8 All-States Leasing Co. v. Top Hat Lounge, Inc., 198 Mont. 1, 6, 649 P.2d 1250, 1252-53 (1982) (quoting official comment to U.C.C. § 2-302); Westlake v. Osborne, 220 Mont. 91, 96, 713 P.2d 548, 551 (1986) (same); Kelly v. Widner, 236 Mont. 523, 527, 771 P.2d 142, 145 (1989) (same). ¶42 It is the burden of the party seeking to void a provision to raise facts sufficient to demonstrate the provision is “so one-sided as to be unconscionable.” Westlake, 220 Mont. at 96, 713 P.2d at 552. In Leibrand v. Natl. Farmers Union Prop. & Cas. Co., 272 Mont. 1, 12, 898 P.2d 1220, 1227 (1995), we declined to address the conscionability of a household exclusion because “based on the record before us, we ha[d] an insufficient factual basis” to determine if the provision unreasonably favored the insurer. ¶43 Likewise, we cannot conclude, based upon the factual record here, that the Family Member Exclusion is “so one-sided as to be unconscionable.” Westlake, 220 Mont. at 96, 713 P.2d at 552. The McCartneys have not demonstrated that the coverages provided by the Umbrella Policy in exchange for the premium paid were rendered oppressive because Sharon’s excess liability claim against Les was excluded. Nor have they shown, by statistics or otherwise, that the exclusion of family members enabled State Farm to reap a benefit from an oppressive term or from illusory coverage. They have not shown that 8 This test is consistent with the early enunciations of unconscionability. See Hume v. U.S., 132 U.S. 406, 415, 10 S. Ct. 134, 137 (1889) (an unconscionable bargain is “such as no man in his senses and not under delusion would make on the one hand, and no honest and fair man would accept on the other[.]”). 25 higher liability coverage for injuries suffered by family members was not available on the open insurance market.9 ¶44 The only argument offered by McCartneys to demonstrate that the Family Member Exclusion unreasonably favors State Farm is that “it allows State Farm to arbitrarily deny coverage to any family member.” As discussed above, however, ¶¶ 36- 37, the Family Member Exclusion is not arbitrary in this manner. The exclusion makes it possible to make broad excess coverage available at an economical cost by excluding from coverage “those in the family circle, who, on account of their close intimacy, may be expected to be riding at frequent intervals in the insured car,” Perry, 170 So.2d at 630, and by “prevent[ing] suspect inter-family legal actions which may not be truly adversary and over which the insurer has little to no control.” Cocking, 628 P.2d at 4. The McCartneys’ premiums for $2,000,000 in umbrella coverage were more economical than the premiums for $500,000 in automobile liability coverage. Permitting frequent family passengers to turn economical excess coverage into expensive liability coverage would be contrary to the Umbrella Policy’s purpose and undermine its viability. We conclude that McCartneys have not carried the burden of establishing that the Family Member Exclusion is unconscionably one-sided, and the District Court erred in so concluding. We need not address the second unconscionability prong. 9 The parties disputed in their briefing whether Les had purchased the highest limits of liability insurance available to him from State Farm. During oral argument, counsel for State Farm stated the record did not support Les’s contention and that Les could have purchased higher liability limits, but that State Farm had not been given the opportunity to submit evidence of this fact for the record. McCartneys did not dispute this position at oral argument. As noted above, it was McCartneys’ burden to establish the factual record necessary to support their unconscionability claim. Westlake, 220 Mont. at 96, 713 P.2d at 552. 26 ¶45 We reverse the District Court’s entry of summary judgment in favor of McCartneys and remand for entry of judgment in favor of State Farm. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ DEBORAH KIM CHRISTOPHER District Court Judge Kim Christopher sitting for Justice Mike E Wheat | July 30, 2013 |
af7a4028-2636-449e-b1bc-37d29c6eb16d | Jacobsen v. Allstate | 2013 MT 244 | DA 12-0130 | Montana | Montana Supreme Court | DA 12-0130 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 244 ROBERT JACOBSEN, and all others similarly situated, Plaintiff and Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADV 03-201(D) Honorable Dirk M. Sandefur, Presiding Judge COUNSEL OF RECORD: For Appellant: Dennis Tighe (argued); Paul R. Haffeman; Davis, Hatley, Haffeman & Tighe, P.C., Great Falls, Montana Robert H. King, Jr., SNR Denton US LLP, Chicago, Illinois For Appellee: Lawrence A. Anderson (argued), Attorney at Law, P.C., Great Falls, Montana Daniel P. Buckley, Buckley Law Office, P.C., Bozeman, Montana David J. Berardinelli, Berardinelli Law Firm, Santa Fe, New Mexico For Amici Curiae: Bradley J. Luck, Garlington, Lohn & Robinson, PLLP, Missoula, Montana Robin S. Conrad, National Chamber Litigation Center, Washington, D.C. Gene C. Schaerr, Winston & Strawn, LLP, Washington, D.C. (Chamber of Commerce of the United States of America) Amy Poehling Eddy, Bottomly Eddy & Sandle, PLLP, Kalispell, Montana, William F. Merlin, Jr., Merlin Law Group, P.A., Tampa, Florida August 29 2013 2 Leslie Anne Scalley, Attorney at Law, Tampa, Florida (United Policyholders) Argued: May 8, 2013 Submitted: May 15, 2013 Decided: August 29, 2013 Filed: __________________________________________ Clerk 3 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Defendant Allstate Insurance Company (Allstate) appeals the order of the Eighth Judicial District Court, Cascade County, granting Plaintiff Robert Jacobsen’s (Jacobsen) motion for class certification. We affirm the class certification but modify the certified class relief on remand. ISSUES ¶2 We restate the issues on appeal as follows: ¶3 1. Whether the District Court abused its discretion by finding that the proposed class met the requirements of M. R. Civ. P. 23(a)? ¶4 2. Whether the District Court abused its discretion by certifying a M. R. Civ. P. 23(b)(2) class action lawsuit? ¶5 3. Whether the District Court erred by holding that the Montana Rules of Evidence do not apply to class action proceedings? FACTUAL AND PROCEDURAL BACKGROUND ¶6 This interlocutory appeal arises from the District Court’s order certifying a class in Jacobsen’s class action against Allstate. Jacobsen’s class action claim in turn arose out of our remand of his initial non-class third-party claim against Allstate in Jacobsen v. Allstate Ins. Co., 2009 MT 248, 351 Mont. 464, 215 P.3d 649 (Jacobsen I). As we recounted in Jacobsen I, Jacobsen suffered bodily injuries and property damage in an automobile accident caused by Allstate’s insured in 2001. Allstate admitted liability and negotiated a settlement with Jacobsen while he was unrepresented by counsel. Allstate’s adjuster, Chuck Conners 4 (Conners) used Allstate’s Claim Core Process Redesign (CCPR) program to process Jacobsen’s claim. The CCPR is a system of claims adjusting guidelines that Allstate implemented in 1995 to fast track settlements and reduce the amount paid out on claims. Conners utilized the general outlines of the CCPR in settling Jacobsen’s claim. The program facilitated a quick, unrepresented settlement six days after the accident for $3,500 and 45 days of “open” medical payment. As part of the settlement, Jacobsen signed a release. ¶7 Roughly three weeks later, Jacobsen began experiencing significant pain. Jacobsen contacted Conners and asked him to reconsider the release and provide additional assistance. Conners refused because Jacobsen had signed a release. Jacobsen retained counsel, who successfully persuaded Allstate to rescind the release and re-open Jacobsen’s claim. Due to the efforts of Jacobsen’s newly-hired attorney, Allstate settled Jacobsen’s claim for $200,000 on November 27, 2002, roughly 18 months after his initial, unrepresented settlement for $3,500. ¶8 Thereafter, Jacobsen retained new counsel and filed a complaint against Allstate seeking compensatory damages for various violations of the Montana Unfair Trade Practices Act (UTPA), common law bad faith, intentional and negligent infliction of emotional distress (IIED and NIED respectively), and also seeking punitive damages pursuant to § 27-1-221, MCA. Jacobsen ultimately sought compensatory damages based on the attorney fees he incurred in pursuing his underlying claim and punitive damages based on Allstate’s alleged malicious conduct. 5 ¶9 The jury returned a verdict in favor of Jacobsen on October 19, 2006, finding Allstate liable for common law and statutory bad faith and awarding Jacobsen $68,372.38 in compensatory damages. The jury specifically found that Allstate violated the UTPA by misrepresenting pertinent facts regarding the claim and neglecting to attempt in good faith to promptly, fairly, and equitably settle a claim in which liability was reasonably clear. The jury also awarded Jacobsen $350,000 in punitive damages based on its finding that Allstate acted with actual malice. ¶10 Following the verdict, both Jacobsen and Allstate appealed various rulings by the District Court. Our resolution of these appeals comprises Jacobsen I. One issue under consideration in Jacobsen I concerned the discovery of what were termed the “McKinsey documents.” The McKinsey documents consist of around 12,500 PowerPoint slides produced by McKinsey & Company (McKinsey), a management consulting firm, for Allstate. The CCPR program is a distillation of the studies and recommendations contained in the McKinsey documents, and they consequently provide a more complete understanding of the program. However, Jacobsen was unaware of the existence of the McKinsey documents at the time of his initial discovery request or motion to compel production of the CCPR. When he became aware of them, Jacobsen sought leave of the court to assert new individual and class action claims against Allstate and to pursue additional discovery. The District Court denied these requests, finding that they would “cause substantial prejudice and undue delay, burden, and expense[.]” Jacobsen I, ¶ 55. 6 ¶11 In his pre-remand appeal, Jacobsen argued that the District Court erred by denying his request for further discovery. We found that because “the issue before the District Court was not whether to re-open discovery, but whether to compel Allstate to produce documents that were within Jacobsen’s original discovery request,” it was “unnecessary to determine whether Jacobsen demonstrated due diligence or excusable neglect[.]” Jacobsen I, ¶ 57. We concluded “[t]he McKinsey documents were indeed critical to Jacobsen’s theory that Allstate’s policies regarding unrepresented claimants constituted bad faith” and reversed the District Court’s decision. Jacobsen I, ¶ 58. ¶12 We ultimately remanded the case for a new trial, finding that the jury’s award of compensatory damages could not be based solely on Jacobsen’s incurred attorney costs and fees and that there could be no punitive damages following this reversal of the compensatory damages award. We also ordered the court to allow the jury to consider Jacobsen’s emotional distress damages and directed the District Court to compel the production of the McKinsey documents. Jacobsen I, ¶ 67. ¶13 On remand, bolstered by the production of the McKinsey documents, Jacobsen filed a motion for leave to file a Fourth Amended Complaint that added class action claims concerning Allstate’s CCPR program. Count Four of Jacobsen’s Fourth Amended Complaint, filed May 6, 2010, contained the newly-added class action claims. Jacobsen based the class claims on his prior individual theories asserting violations of the UTPA1 and 1 Jacobsen specifically alleged Allstate’s CCPR violated §§ 33-18-201(1) & (6), MCA. Section 33-18-201(1), MCA, prohibits misrepresenting “pertinent facts or 7 common law bad faith. Specifically, Count Four alleged that Allstate’s CCPR program violated the UTPA “and/or common law bad faith laws” by intentionally misrepresenting that unrepresented claimants generally received more compensation than represented claimants and by settling unrepresented claims via an inadequate “fast track” component of the CCPR that resulted in unfair settlements. Count Four asserted these claims on behalf of “all unrepresented individuals who had either third party claims or first party claims against Allstate whose claims were adjusted by Allstate in Montana using its CCPR program.” ¶14 Count Five presented a claim for a common fund recovery of attorney fees incurred in pursuing the class action, and Count Six presented a claim for attorney fees as a “Private Attorney General” by asserting that the State of Montana had failed to enforce §§ 33-18- 201(1) and (6), MCA. Regarding class relief, Jacobsen requested class certification, injunctive relief prohibiting Allstate from using the CCPR program in Montana, an injunction requiring Allstate to “re-open all claims in which liability was reasonable [sic] clear in which the Defendant applied the CCPR paradigm in settling such cases,” an injunction requiring Allstate to disgorge unlawful profits, the award of punitive damages, and attorney fees. ¶15 Jacobsen filed a motion for class certification on May 7, 2010, proposing a class definition encompassing “all unrepresented individuals who had either third-party claims or insurance policy provisions relating to coverages at issue.” Section 33-18-201(6) prohibits neglecting “to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear.” 8 first-party claims against Allstate whose claims were adjusted by Allstate in Montana using its CCPR program.” ¶16 The District Court certified a Rule 23(b)(2) class in its methodical June 30, 2012 Order. In the course of its analysis, the Court noted the United States Supreme Court’s admonition in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011), to conduct a “rigorous” Rule 23 analysis. The Court also construed the substantive essence of Plaintiff’s asserted class claim to be, irrespective of individual outcomes, that the CCPR’s settlement practices “constitute a common pattern and practice in violation of §§ 33-18-201(1) and (6), MCA, as generally applied to the class as a whole, thereby resulting in indivisible harm to the class as a whole . . . .” The court accordingly certified the following class claim: (A) the Casualty CCPR’s unrepresented segment adjusting practices are a common pattern and practice in violation of §§ 33-18-201(1) and (6), MCA, as generally applied to the class of unrepresented claimants as a whole; (B) Allstate’s common, systematic use of this pattern and practice in Montana caused indivisible harm to the class as a whole by operation of its zero-sum economic theory and the resulting inversely proportional relationship between Allstate profit increases and corresponding decreases in the total amount of compensation paid to the class of unrepresented claimants as a whole; and (C) Allstate acted with “actual malice,” as defined by § 27-1-221(2), MCA, by intentionally, deliberately, and consciously creating and disregarding a high probability that the net effect of its Casualty CCPR’s unrepresented segment practices would result in net settlement payouts to the class as a whole less than the net amount previously sufficient to fully and fairly settle unrepresented claims under Montana law[.] As support, the Court found that Jacobsen had proffered “substantial credible evidence” that Allstate systematically adjusted unrepresented first and third-party claims involving bodily 9 injury or property damage “in the same general manner” under the CCPR program. The Court thus rejected Allstate’s claim that Jacobsen could not establish that all unrepresented claimant’s settlements were unfair by reasoning that Jacobsen’s claims concerned the “preliminary manner, means, and course of adjustment systematically applied to the class as a whole in the context of the insurer’s duties under §§ 33-18-201(1) and (6), MCA,” and not the “ultimate outcomes” of individual claims. ¶17 The Court restructured Jacobsen’s class definition as follows: (1) all unrepresented claimants who made first-party or third-party claims to Allstate; (2) for an amount in excess of the applicable policy deductible; (3) for bodily injury or property damage related to an underlying motor vehicle incident or occurrence; and (4) whose claims were adjusted by Allstate in Montana to an unrepresented settlement since deployment in Montana of the various versions of the Casualty CCPR (CCPR Implementation Manual (Tort States)). The Court considered this reformed definition to be “sufficiently precise and homogenous for purposes of Rule 23.” Using this reformed class definition the Court determined that Jacobsen’s class claim satisfied Rule 23(a)’s four prerequisites—numerosity, commonality, typicality, and adequacy. The Court certified Jacobsen’s claim as a Rule 23(b)(2) class action and certified the following class action remedies as available upon proof of the certified class claim: (A) [a] declaratory judgment adjudicating the constituent assertions of the certified class claim [which we have recounted in ¶ 16]; (B) [a] mandatory injunction requiring Allstate to: 10 (1) give all class members court-appointed notice of the right and opportunity to obtain re-opening and re-adjustment of their individual claims by timely returning a proof of claim form; and (2) re-open and re-adjust each individual claim upon receipt of a timely filed proof of claim; (C) class-wide punitive damages pursuant to §§ 27-1-220 and 27-1-221(2), MCA (actual malice), predicated on the above-referenced class-wide conduct; and (D) common fund recovery of class action attorney fees and costs upon a class-wide punitive damages award[.] Allstate appeals the court’s certification of Jacobsen’s class claims pursuant to Rule 232 as well as the court’s consideration of what Allstate argues was inadmissible evidence during the certification proceedings. Allstate’s CCPR Program and the McKinsey Documents. ¶18 Due to Jacobsen’s contention that Allstate’s application of the CCPR program to unrepresented claimants amounts to statutory and common law bad faith, a brief summary of the program, and the related McKinsey documents, is in order. ¶19 Allstate hired McKinsey in the early 1990’s to help redesign its claims process. This redesign was prompted by Allstate’s recognition that while claims expenses were low, total payouts were increasing at a pace above the industry average. The McKinsey documents outlined a claim settlement process, like the CCPR program, to lower claims payouts by increasing claimant contact and reducing attorney involvement. McKinsey essentially 2 A more thorough analysis of the District Court’s application of Rule 23(a) and (b) will be provided in the course of our legal discussion. 11 advocated “increasing the number of early unrepresented settlements” while “holding the line” on represented claims. This focus flowed from research showing that represented claims settled for 2-3 times more than unrepresented claims, that Allstate claims adjusters were not effectively initiating early contact or communicating with claimants, and that this failure to promptly and effectively communicate with claimants made claimants more likely to hire lawyers. The McKinsey documents ultimately styled claims adjusting as a “zero sum” economic game where if Allstate gains by reducing settlements, others—including “medical providers, plaintiff attorneys, and claimants”—“must lose.” ¶20 Allstate’s CCPR program consequently strives to reduce overall claims payouts by establishing a more centralized, regimented claims adjusting process focused on quick claimant contact, building rapport, reducing claimant representation rates, and shuttling certain claims into a “fast track” system. Allstate applies the CCPR to both third and first- party claimants. ¶21 Here, Allstate’s adjuster, Conners, utilized the CCPR program to obtain a fast track, unrepresented, reduced payment settlement of Jacobsen’s claim. Jacobsen alleges that the CCPR program systematically violates the rights of unrepresented claimants as provided to them by the UTPA. Jacobsen specifically takes issue with the application of the CCRP’s “fast track” system, “9-step process,” and “attorney economics script” to his claim. ¶22 First, the “fast track” system seeks to promote settlement with claimants within 12 days of the accident. Jacobsen alleges that the system promotes quick settlements at the expense of fair settlements. A “Fast Track Evaluation Worksheet” controls whether a claim 12 is amenable to “fast track” processing and requires: the claimant is unrepresented, there are no coverage questions, there are only soft tissue injuries and a good prognosis, no residuals, no aggravation of preexisting conditions, and treatment for less than 60 days. In this case, after Jacobsen accepted the initial $3,500 settlement, Conners processed Jacobsen’s claim under the CCPR’s “fast track” guidelines for unrepresented claims. ¶23 Second, Conners generally utilized the “9-step process” for unrepresented claimant contact. The CCPR’s Initial Claimant Contact Outline for unrepresented claimants directs adjusters to: (1) establish empathy and gather injury facts; (2) confirm Allstate’s customer service pledge; (3) gather loss facts; (4) confirm Allstate’s liability decision; (5) discuss payment of medical bills and lost wages; (6) assist with car repairs; (7) assist with alternate transportation; (8) explain the bodily injury settlement process and discuss attorney economics; and (9) close the claim and follow-up. Jacobsen alleges the 9-step process increases Allstate’s profits at the expense of good faith settlements. ¶24 Third, in accordance with the CCPR, Conners discussed attorney economics with Jacobsen. The CCPR process explicitly seeks to reduce the number of represented claims to reduce claims payouts. This goal was motivated by Allstate’s determination that represented claimants typically settled for 2-3 times (and perhaps up to 5 times) the amount unrepresented claimants received. To reduce attorney involvement, the CCPR aims to build rapport with claimants though quick, empathetic contact, and directs adjusters to utilize an “attorney economics script.” The script states: 13 [q]uite often our customers ask if an attorney is necessary to settle a claim. Some people choose to hire an attorney, but we would really like the opportunity to work directly with you to settle the claim. Attorneys commonly take between 25-40% of the total settlement you receive . . . plus expenses incurred. If you settle directly with Allstate, however, the total amount of the settlement is yours. At any time in the process you may choose to hire an attorney. I would, however, like to make an offer to you first. This way, should you go to an attorney, you would be able to negotiate with the attorney so his/her fees would only apply to amounts over my offer to you. The script’s instructions counsel against improperly dissuading claimants from seeking representation and instruct adjusters to remind claimants that they are free to hire an attorney at any time and discuss the relevant statute of limitations. However, the script does not contain information advising that Allstate found that represented claimants generally received higher settlements. Jacobsen alleges Allstate’s portrayal of “attorney economics” induced him into believing unrepresented claimants generally received more compensation for injuries and resulted in an initially unfair settlement. STANDARD OF REVIEW ¶25 We afford trial courts the broadest discretion when reviewing a decision on class certification. Sieglock v. Burlington Northern & Santa Fe Ry. Co., 2003 MT 355, ¶ 8, 319 Mont. 8, 81 P.3d 495. This is because the trial court “is in the best position to consider the most fair and efficient procedure for conducting any given litigation.” Chipman v. Northwest Healthcare Corp., 2012 MT 242, ¶ 17, 366 Mont. 450, 288 P.3d 193. We will 14 therefore not upset the District Court’s decision without finding an abuse of discretion. In conducting this review we do not ask whether we would have reached the same decision, but instead ask whether the district court acted arbitrarily without conscientious judgment or exceeded the bounds of reason. Newman v. Lichfield, 2012 MT 47, ¶ 22, 364 Mont. 243, 272 P.3d 625. However, ‘ “[t]o the extent that the ruling on a Rule 23 requirement is supported by a finding of fact, that finding, like any other finding of fact, is reviewed under the ‘clearly erroneous’ standard. And to the extent that the ruling involves an issue of law, review is de novo.” ’ Mattson v. Mont. Power Co., 2012 MT 318, ¶ 17, 368 Mont. 1, 291 P.3d 1209 (Mattson III) (quoting Miles v. Merrill Lynch & Co., 471 F.3d 24, 40-41 (2d Cir. 2006)). DISCUSSION ¶26 1. Whether the District Court abused its discretion by finding that the proposed class met the requirements of M. R. Civ. P. 23(a)? A. Rule 23(a) ¶27 Initially, a class action claim is “ ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ ” Mattson III, ¶ 18 (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S. Ct. 2545 (1979)). Departure 15 from the usual rule is justified if the class representative is part of the class and possesses the same interest and suffers the same injury as the class members. East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S. Ct. 1891 (1977). In this way, class action suits save the resources of courts and parties “ ‘by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23.’ ” Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 155, 102 S. Ct. 2364 (1982) (quoting Califano, 442 U.S. at 701). ¶28 Rule 23 of the Montana Rules of Civil Procedure governs certification of a class action and ensures that the named plaintiffs are appropriate representatives of the class. Because the Montana version of Rule 23 is identical to the corresponding federal rule, federal authority is instructive, but Montana courts are not required to march lockstep with federal interpretations of Fed. R. Civ. P. 23. Chipman, ¶ 43. The four requirements found in Rule 23(a) provide the threshold inquiry courts engage in when considering a putative class. Specifically, Rule 23(a) requires that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. These prerequisites are intended to protect the due process rights of absent class members, Hansberry v. Lee, 311 U.S. 32, 42-43, 61 S. Ct. 115 (1940), and failure to establish any element of Rule 23(a) is fatal to class certification. Chipman, ¶ 43. 16 ¶29 Moreover, we have recently adopted the following guidelines in an attempt to provide further clarification of Rule 23’s proper standard of review: (1) a district judge may certify a class only after making determinations that each of the Rule 23 requirements has been met; (2) such determinations can be made only if the judge resolves factual disputes relevant to each Rule 23 requirement and finds that whatever underlying facts are relevant to a particular Rule 23 requirement have been established and is persuaded to rule, based on the relevant facts and the applicable legal standard, that the requirement is met; (3) the obligation to make such determinations is not lessened by overlap between a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule 23 requirement; (4) in making such determinations, a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement; and (5) a district judge has ample discretion to circumscribe both the extent of discovery concerning Rule 23 requirements and the extent of a hearing to determine whether such requirements are met in order to assure that a class certification motion does not become a pretext for a partial trial of the merits. Mattson v. Mont. Power Co., 2009 MT 286, ¶ 67, 352 Mont. 212, 215 P.3d 675 (Matson II). Our application of these guidelines to the District Court’s certification order in this case leads us to the conclusion that the District Court did not abuse its discretion by certifying Jacobsen’s proposed class. The District Court based its class certification on a meticulous review of the evidence behind the pleadings. As class certification requires that the plaintiff satisfy all four requirements of Rule 23(a), we will address each requirement in turn. i. Numerosity—Rule 23(a)(1) ¶30 As noted, Rule 23(a)(1) requires that the proposed class be “so numerous that joinder of all members is impracticable.” Here, the Court found that Jacobsen, using the deposition of Allstate Agent Conners, “reasonably estimated the size of the first proposed class [in Jacobsen I] at around 600 members.” Because Jacobsen had enlarged the class post-remand 17 by adding first-party claimants and automobile-related property damage claims, the Court concluded that the post-remand class met Rule 23(a)(1)’s numerosity requirement. Allstate does not challenge this conclusion on appeal. ii. Commonality—Rule 23(a)(2) ¶31 Allstate does contest the Court’s finding that the proposed class satisfied the commonality requirement of Rule 23(a)(2). Rule 23(a)(2) requires “questions of law or fact common to the class.” Because the requirements of the rule are disjunctive, a party seeking class certification must have either common questions of law or fact, and total commonality is not required. Sieglock, ¶ 11. The commonality requirement has therefore generally been seen as a relatively low burden for plaintiffs. See Diaz v. Blue Cross & Blue Shield, 2011 MT 322, ¶ 32, 363 Mont. 151, 267 P.3d 756 (quoting LaBauve v. Olin Corp., 231 F.R.D. 632, 667-68 (S.D.Ala. 2005)) (commonality requirement is met when a single issue is common to all class members); Ferguson v. Safeco Ins. Co. of Am., 2009 MT 109, ¶ 26, 342 Mont. 380, 180 P.3d 1164 (citing LaBauve, 231 F.R.D. at 668) (commonality “is not a stringent threshold and does not impose an unwieldy burden on plaintiffs.”); McDonald v. Washington, 261 Mont. 392, 401, 862 P.2d 1150 (quoting Jordan v. County of Los Angeles, 669 F.2d 1311, 1320 (9th Cir. 1982)). ¶32 As these cases indicate, we have a “long history of relying on federal jurisprudence when interpreting the class certification requirements of Rule 23.” Chipman, ¶ 52. Federal Rule 23(a)(2) jurisprudence was further developed in 2011 by the U.S. Supreme Court in Wal-Mart v. Dukes. The Wal-Mart decision has raised the dual questions of whether it plots 18 a new course for “commonality” analysis and if this course materially differs from our own. We first considered Wal-Mart’s treatment of Rule 23(a)(2) in Chipman. There, we recognized that the Wal-Mart decision had departed from our heretofore “minimal standard” and had “significantly tightened the commonality requirement.” Chipman, ¶¶ 47-48. We then applied the Wal-Mart decision’s “reasoning” concerning Rule 23(a)(2) and upheld the class certification order. Chipman, ¶¶ 47, 52. We next considered Rule 23(a)(2) and Wal- Mart two months later in our Mattson III decision. There, we again referenced the Supreme Court’s apparent tightening of Federal Rule 23(a)(2)’s requirements and noted “a recent divergence between the federal approach and Montana’s approach to the commonality requirement.” Mattson III, ¶ 35. However, despite our application of Wal-Mart’s “reasoning” in Chipman, the Mattson III decision portrayed our decision to follow Wal- Mart’s interpretation of Rule 23(a)(2) as an open question best left for some “future case.” Mattson III, ¶ 37. Despite disclaiming our adoption of Wal-Mart’s commonality reasoning, Mattson III still analyzed, and upheld, the District Court’s class certification pursuant to the supposedly “more stringent” federal standard. Mattson III, ¶ 37. ¶33 As Justice Baker observed in her dissenting opinion in Mattson III, our varying embrace of Wal-Mart in Chipman and Mattson III perhaps “introduce[d] confusion into our class certification standards . . . .” Mattson III, ¶ 45 (J. Baker, dissenting). Our opinion in Mattson III recognized this, and we determined that “[i]t may be necessary in a future case— where the issue is properly briefed and argued, and the choice of one standard over the other is dispositive of the commonality inquiry—to decide whether Montana will retain its more 19 permissive approach or instead adopt the Wal-Mart majority’s approach.” Mattson III, ¶ 37. This, however, is not that future case. Neither Jacobsen’s nor Allstate’s arguments hinge on the potential differences between Wal-Mart’s and Montana’s approaches to commonality. Moreover, the District Court applied Wal-Mart in its order certifying the class. Because we affirm the District Court’s certification of the class decision under Wal-Mart, the choice of one standard over the other is not dispositive. We therefore need not decide whether Montana will retain its approach to commonality or how these approaches differ, and we will proceed with a discussion of Jacobsen’s proposed class in the context of Wal-Mart. a. Wal-Mart and F. R. Civ. P. 23(a) ¶34 In Wal-Mart, the U.S. Supreme Court considered a proposed class of 1.5 million current and former female Wal-Mart employees “who [alleged] that the company discriminated against them on the basis of their sex by denying them equal pay or promotions ....” Wal-Mart, 131 S. Ct. at 2547.3 There, as here, the Court dealt with the requirements of the identical Federal Rule 23(a)(2). To satisfy the commonality requirement, the plaintiffs had proffered statistical evidence about pay and promotion 3 We must note that the unusual size of the Wal-Mart class presented unique challenges that may make the case inapposite to the classes generally proposed in Montana. See Mattson III, ¶ 20 (at least 3,000 class members); Pallister v. Blue Cross & Blue Shield of Mont., Inc., 2012 MT 198, ¶ 7, 366 Mont. 175, 285 P.3d 562 (3,000 class members); Chipman, ¶ 46 (1,254 class members); Diaz, ¶ 31 (“hundreds” of class members); Gonzales v. Mont. Power Co., 2010 MT 117, ¶ 6, 356 Mont. 351, 233 P.3d 328 (117 class members); Ferguson, ¶ 39 (“at least” 239 class members); McDonald, 261 Mont. at 400, 863 P.2d at 1155 (35,360 individual class members). The unique need in Wal-Mart to find some sort of common contention that would bind 1.5 million disparate individuals prompted a level of skepticism towards class certification that would likely never arise in Montana. 20 disparities between genders, anecdotal reports of discrimination from female employees, and the expert testimony of a sociologist. The District Court reviewed this evidence and certified the proposed class. Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 145, 2004 U.S. Dist. LEXIS 11297 (N.D. Cal. 2004). In the course of its Rule 23(a) analysis, the District Court noted that “the party seeking certification must provide certain facts sufficient to satisfy Rule 23(a),” that “the court’s analysis [of Rule 23] must be rigorous,” and that “ ‘the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.’ ” Dukes, 222 F.R.D. at 143-44. Wal-Mart opposed the commonality finding largely by advancing the unique nature of individual stores and its practice of giving local managers substantial discretion in pay and promotion decisions. Dukes, 222 F.R.D. at 151. ¶35 Wal-Mart appealed the class certification, contesting, inter alia, the District Court’s conclusion that the class met the commonality requirement. The Ninth Circuit affirmed after granting a re-hearing en banc. See Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010). Wal-Mart again appealed and the U.S. Supreme Court granted certiorari, issuing its opinion in 2011. The majority considered the decision on commonality to be the “crux” of the case and engaged in an analysis of Federal Rule 23(a)(2)’s requirements. The Court attempted to clarify the application of Rule 23(a)(2)’s language and establish the proper standard of Rule 23(a)(2) adjudication. For our purposes, this clarification produced two important holdings, the first concerning the sufficiency of a plaintiff’s common contentions 21 and the second regarding the proper, “rigorous” level of Rule 23(a) analysis. We will examine these clarifications in turn. ¶36 First, the majority cautioned that the language of the commonality rule is “easy to misread, since ‘[a]ny competently crafted class complaint literally raises common ‘questions.’ ” Wal-Mart, 131 S. Ct. at 2551 (citation omitted). Thus, the majority sought to clarify what sort of common questions of law or fact satisfy Rule 23(a)(2). The majority emphasized that plaintiffs may not merely raise droves of superficial common questions (providing “Do all of us plaintiffs indeed work for Wal-Mart?” as an example). Instead, the plaintiffs’ common legal or factual contentions must “demonstrate that the class members ‘have suffered the same injury’ ” by asserting a common contention “of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal- Mart, 131 S. Ct. at 2551. 4 This emphasis logically flows from the Court’s prior justification of the class-action device’s departure from the usual rule of individual litigation: “permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23.” Falcon, 457 U.S. at 155 (quoting Califano, 442 U.S. at 700-01). ¶37 Second, the Supreme Court sought to clarify what it saw as an inconsistent, and inadequate, level of Rule 23(a) review in the lower federal courts. In doing so, the Wal-Mart decision embraced what has been termed a “rigorous” form of Rule 23(a) analysis. A 4 It should be noted that the majority retained the permissive recognition that “for purposes of Rule 23(a)(2) ‘[e]ven a single [common] question’ will do.” Wal-Mart, 131 22 “rigorous” level of Rule 23(a) analysis was previously adopted by a majority of the federal Circuit Courts, and the “more rigorous” approach adopted by the Second, Fourth, Fifth, Seventh, and Ninth Circuits requires district courts to make specific findings that each requirement of Rule 23(a) has actually, not presumably, been met. Dukes, 603 F.3d at 583. The Wal-Mart decision adopted the “more rigorous” approach, as district courts may certify a class “only if” they are satisfied that the prerequisites of Rule 23(a) have actually been satisfied. Wal-Mart, 131 S. Ct. at 2551. Further, in the course of making the required determination that Rule 23(a) has actually been satisfied, “ ‘sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.’ ” Wal-Mart, 131 S. Ct. at 2551 (quoting Falcon, 457 U.S. at 160). Thus, to the Wal-Mart majority, a proper “rigorous” Rule 23(a) analysis specifically requires that the district court determine each requirement of Rule 23(a) has been actually met and allows, but does not require, the district court to probe beyond the pleadings and touch aspects of the merits to make this determination. See Wal-Mart, 131 S. Ct. at 2551. ¶38 The Wal-Mart majority’s application of the clarified commonality requirement provides some further insight into its Rule 23(a)(2) analysis. Because the plaintiffs’ class action alleged a company-wide policy of gender discrimination in violation of Title VII, the Supreme Court recognized that “proof of commonality necessarily overlaps with respondents’ merits contentions that Wal-Mart engages in a pattern or practice of discrimination.” Wal-Mart, 131 S. Ct. at 2552. The majority viewed the size of the class S. Ct. at 2556. 23 and disparate nature of Wal-Mart’s employment decisions as particular problems, and determined that “[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial questions why was I disfavored.” Wal- Mart, 131 S. Ct. at 2552. To provide this glue, the majority required the plaintiffs to prove that a company-wide policy existed. The majority accordingly reviewed the plaintiffs’ proffered evidence and concluded that it could not prove that a company-wide policy existed. Wal-Mart, 131 S. Ct. at 2553-57. Thus, the Supreme Court probed beyond the pleadings to determine a merits issue—whether Wal-Mart even had a company-wide pay or promotion policy—to determine if the plaintiffs could present a common contention amenable to classwide resolution. Unlike the present case, because the plaintiffs could not prove a uniform plan or policy, they could not present the question of whether they, and the proposed class members, had suffered a common injury as a result.5 5 Moreover, the U.S. Supreme Court recently rejected the propriety of a merits inquiry at the class certification stage for a Rule 23(b)(3) class. The case, Amgen Inc., et al. v. Connecticut Retirement Plans and Trust Funds,133 S. Ct. 1184, 185 L. Ed. 2d 308 (2013), involved a securities fraud Rule 23(b)(3) class action. To prove securities fraud and recover damages under § 10(b) of the Securities Exchange Act of 1934, a plaintiff must prove, inter alia, a material misrepresentation or omission by the defendant. Matrixx Initiatives, Inc. v. Siracusano, 568 U.S. __, __, 131 S. Ct. 1309, 1317 (2011). Materiality is key in a § 10(b) class action suit because it is an essential predicate for the fraud-on-the-market theory that supports the presumption of “classwide reliance on those misrepresentations and omissions through the information- processing mechanism of the market price.” Amgen, 568 U.S. at __, 133 S. Ct. at 1194. Without this presumption, the plaintiffs could not prove that the class as a whole relied on the misrepresentation and present a common question suitable for Rule 23(b)(3). However, the Supreme Court held that proof that a defendant’s misrepresentations or omissions materially affected their stock price was not required at the Rule 23(b)(3) class certification stage. Amgen, 563 U.S. at __, 2013 LEXIS at 8. While Wal-Mart recognized that courts may intrude on merits issues, like materiality, to certify a class, the Amgen majority held that Rule 23(b)(3) “requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class.” Amgen, 568 U.S. at __, 2013 LEXIS at 8. As the Amgen decision emphasized, “the office of a Rule 23(b)(3) certification ruling is not to adjudicate the case; rather, it 24 b. Jacobsen’s Proposed Class and the District Court’s Rule 23(a)(2) Decision ¶39 Here, the District Court applied the Wal-Mart decision’s reasoning that the asserted class claim must depend upon a common contention that will resolve an issue that is central to the validity of each member’s claim. In applying this standard, the District Court looked beyond the allegations of Jacobsen’s pleadings to find: (1) that Jacobsen had produced “significant proof” that Allstate intentionally and systematically failed to disclose that represented claimants received settlements 2-3 times larger than unrepresented claimants; (2) that Allstate developed the CCPR with the intent that it would reduce the net sum of unrepresented settlements; (3) that Allstate hid this profit motive by developing the facially neutral CCPR; (4) that Allstate consciously disregarded a high probability that the net effect of the CCPR would result in less than a full and fair settlement; and (5) that the CCPR program had resulted in “a substantial, objectively measurable reduction in the total amount of compensation paid to the class of unrepresented claimants as a whole . . . .” The Court concluded that these factual showings united Jacobsen and the class member’s claims and supported the following common questions of law and fact, asking whether: (1) the Casualty CCPR’s unrepresented segment adjusting practices are a common pattern and practice in violation of §§ 33-18-201(1) and (6), MCA, as generally applied to the class of unrepresented claimants as a whole; is to select the ‘metho[d]’ best suited to adjudication of the controversy ‘fairly and efficiently.’ ” Amgen, 568 U.S. at __, 133 S. Ct. at 1191. Amgen accordingly supports our recognition that the focus of the class action device is the fair and efficient adjudication of common claims. Further, both Amgen and Wal-Mart dealt with questions concerning what sort of merits inquiry was appropriate. The Amgen decision limited merits inquiries in the context of a Rule 23(b)(3) securities fraud claim, supporting the view that Wal-Mart’s more- skeptical level of Rule 23 analysis is not universally applicable. 25 (2) Allstate’s common, systematic use of this pattern and practice in Montana caused indivisible harm to the class as a whole by operation of its zero-sum economic theory and the resulting inversely proportional relationship between Allstate profit increases and corresponding decreases in the total amount of compensation paid to the class of [sic] as a whole; and6 (3) Allstate has consciously disregarded a high probability that the net effect of its Casualty CCPR’s unrepresented segment practices would result in net settlement payouts to the class as a whole less than the net amount previously sufficient to fully and fair[ly] settle unrepresented claims under Montana law. Despite potential factual disputes, the Court determined that Jacobsen’s proposed class action would provide the sort of “common answers” concerning the CCPR program that Wal-Mart encouraged. See Wal-Mart, 131 S. Ct. at 2551. Indeed, because the presence of a common pattern and practice is undisputed, Jacobsen’s common contentions do not suffer from the same defect as did the plaintiffs’ contentions in Wal-Mart. ¶40 On appeal, Allstate first argues that because Jacobsen’s claim is not predicated upon an assertion that his third-party bodily injury or property damage claims were ultimately settled unfairly or underpaid, there is no commonality between his claim and the alleged class claims. However, this argument misses the thrust of Jacobsen’s class claim on remand. While Jacobsen’s requested relief and alleged bases for damages are not entirely clear, the District Court determined that his claim asserts, in part, that Allstate’s application of the CCPR to unrepresented claims is a per se violation of the UTPA and results in actual harm in 6 As discussed below, however, we believe it is necessary to revise the second certified class claim in light of our holding reversing the certification of a class-wide punitive damages award. 26 the form of an alleged zero-sum economic plan systematically reducing claims payments to increase profits. This contention does not merely allege that the proposed class members suffered a violation of the same provision of law “in many ways.” See Wal-Mart, 131 S. Ct. at 2551. Here, the presence of a “general business practice,” the CCPR, is undisputed. Whether this general practice, as applied to unrepresented claimants, violates §§ 33-18- 201(1) or (6), MCA, is just the sort of question that may efficiently drive the resolution of the litigation. See Wal-Mart, 131 S. Ct. at 2551 (commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury.”). This determination would not turn on the countless discretionary decisions that troubled the Wal-Mart majority, and would not be hampered by a variety of unique defenses and circumstances. Jacobsen’s assertion that the CCPR, as applied to the class members, represents a per se violation of the UTPA would resolve a necessary, central question applicable to all class members. ¶41 Judge Richard Posner’s treatment of the Rule 23(b)(2) class certification at issue in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012) supports this conclusion. There, plaintiffs filed a class action suit alleging that Merrill Lynch engaged in a system of racial discrimination by utilizing a company policy that allowed brokers to form teams and that then rewarded team performance with increased broker account distributions. McReynolds, 672 F.3d at 483, 489-90.7 The plaintiffs asked that the 7 Essentially, the plaintiffs contended that the teams were “little fraternities” that, intentionally or not, chose members largely from similar racial groups. McReynolds, 672 F.3d at 489. Brokers did not have to join teams, but being accepted by a successful team generally increased performance. Account distributions were made when a broker left Merrill Lynch to distribute his clients’ accounts and they were based on the past success of the brokers. Thus, if a broker wasn’t selected by a successful team, he may miss out on future 27 class be certified to determine whether the defendant had engaged in discriminatory practices and to provide injunctive relief. The plaintiffs also wanted compensatory and punitive damages. McReynolds, 672 F.3d at 483. The district court denied class certification and the plaintiffs appealed. On appeal, Judge Posner considered the denied certification in the context of Wal-Mart. McReynolds, 672 F.3d at 488. Judge Posner found that, unlike the Wal-Mart plaintiffs, Merrill Lynch’s policies were an employment decision by the top management that was appropriate for a class-wide determination as to whether the challenged policies had a disparate racial impact. McReynolds, 672 F.3d at 489. ¶42 Judge Posner reversed the district court’s denial of class certification despite his recognition that a final resolution of the class’s claims would require hundreds of separate trials to determine compensatory and punitive damages. As Judge Posner noted, [o]bviously a single proceeding, while it might result in an injunction, could not resolve class members’ claims. Each class member would have to prove that his compensation had been adversely affected by the corporate policies, and by how much. So should the claim of disparate impact prevail in the class-wide proceeding, hundreds of separate trials may be necessary to determine which class members were actually adversely affected by one or both of the practices and if so what loss he sustained—and remember that the class has 700 members. But at least it wouldn’t be necessary in each of those trials to determine whether the challenged practices were unlawful. McReynolds, 672 F.3d at 490-91 (emphasis added). To Judge Posner, “[t]he kicker is whether ‘the accuracy of the resolution’ would be ‘unlikely to be enhanced by repeated account distributions, which would cause him to not be selected by the successful teams, and a vicious cycle could ensue. The plaintiffs argued that minority brokers at Merrill Lynch found it hard to join good teams “and as a result don’t generate as much revenue or attract and retain as many clients as white brokers do.” McReynolds, 672 F.3d at 490. 28 proceedings.’ ” McReynolds, 672 F.3d at 491. As the Seventh Circuit previously said in Mejdrech v. Met-Coil Systems Corp., 319 F.3d 910 (7th Cir. 2003), If there are genuinely common issues, issues identical across all the claimants, issues moreover the accuracy of the resolution of which is unlikely to be enhanced by repeated proceedings, then it makes good sense, especially when the class is large, to resolve those issues in one fell swoop while leaving the remaining, claimant-specific issues to individual follow-on proceedings. Mejdrech, 319 F.3d at 911. A single class trial for injunctive relief that determines the legality of a commonly applied procedure or policy is not only economical and attractive, but, in the alternative, “[t]here isn’t any feasible method . . . for withholding injunctive relief until a series of separate injunctive actions has yielded a consensus for or against the plaintiffs.” McReynolds, 672 F.3d at 491; see also Wal-Mart, 131 S.Ct at 2557 (“[T]he key to the (b)(2) class is the, indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them,”). ¶43 Regarding the class’s requested monetary relief, Judge Posner recognized “there may be no common issues,” and determined “in that event the next stage of the litigation, should the class-wide issue be resolved in favor of the plaintiffs, will be hundreds of separate suits for backpay (or conceivably for compensatory damages and even punitive damages as well . . . .).” McReynolds, 672 F.3d at 492. The Court approved of this bifurcated approach, determining declaratory and injunctive relief in a class trial and individual monetary relief in later individual trials, because “the lawsuits will be more complex if, until issue or claim preclusion sets in, the question whether Merrill Lynch has violated the antidiscrimination 29 statutes must be determined anew in each case.” McReynolds, 672 F.3d at 492. As the D.C. Circuit recently noted, “[t]he pututative [sic] class in McReynolds was appropriate post-Wal- Mart because the economic harm alleged by each class member was the result of the same corporate-wide policies and if the policies were held unlawful then a question central to the validity of each class member’s claim would be resolved in one stroke.” DL v. District of Columbia, 713 F.3d 120, __, 2013 U.S. App. LEXIS 7375, 22 (D.C. Cir. 2013). This recognition aligns with the Wal-Mart majority’s interest in certifying classes that will drive the resolution of litigation and it supports affirming the certification of Jacobsen’s class to determine the certified declaratory and injunctive relief. See Ferguson, ¶ 28 (finding a common fact issue existed concerning whether Safeco programmatically breached insured’s made whole rights); McDonald, 261 Mont. at 401 (concluding that commonality was satisfied, despite class members living in different areas with different water sources, because the common theory was that the defendant breached a duty owed to all class members); M. R. Civ. P. 23(c)(4) (“When appropriate, an action may be brought or maintained as a class action with respect to particular issues.”); see also Williams v. Mohawk Indus., 568 F.3d 1350, 1360 (11th Cir. 2009) (“ ‘Since in theory there should be no hard requirement that (b)(2) be mutually exclusive, and since subpart (c)(4)(A) allows an action to be maintained ‘with respect to particular issues,’ the fact that damages are sought as well as an injunction or declaratory relief should not be fatal to a request for a (b)(2) suit, as long as the resulting hybrid case can be fairly and effectively managed.’ ”). 30 ¶44 Indeed, federal courts applying Wal-Mart’s commonality analysis have focused on the presence of just this sort of common contention alleging that a defendant’s programmatic conduct violates the law. See DL, 713 F.3d at 127 (vacating class certification after Wal- Mart because “the district court identified no single or uniform policy or practices that bridges all [the putative class members’] claims.”); Wang v. Chinese Daily News, 709 F.3d 829, 834 (9th Cir. 2013) (vacating and remanding class certification following Wal-Martand requiring that the plaintiff show “significant proof that [the defendant] operated under a general policy of [violating California labor laws]” to satisfy commonality); Forte v. Wal- Mart Stores, Inc., 2012 Dist. LEXIS 97435 5-6 (S.D. Tex.) (noting that if the lease agreement provision plaintiffs were contesting was a per se violation of the Texas Optometry Act, “commonality would be met.”); Khaliel v. Norton Health Care, Inc., 287 F.R.D. 511, 517 (W.D. Ky. 2012) (affirming class certification post-Wal-Mart where “it is the appropriateness of that [employment benefit calculation] methodology that will be determined when the court reaches the merits of the case, and such a question is indeed ‘capable of classwide resolution’. . . and does not turn on the validity of countless individual discretionary decisions.”); Kingsbury v. U.S. Greenfiber, LLC, 2012 U.S. Dist. LEXIS 94854, 18-19 (C.D. Ca.) (concluding Wal-Mart did not alter the Court’s decision to certify a class based on common questions including whether a standard purchase agreement was deceptive under California’s Unfair Competition Law); Creely v. HCR ManorCare, Inc., 2011 U.S. Dist. LEXIS 77170, 4-5 (N.D. Ohio) (reconsidering class certification in light of Wal-Mart and concluding the concerns raised in Wal-Mart “simply do not exist here” 31 because “the crux of this case is whether the company-wide policies, as implemented, violated Plaintiffs’ statutory rights.”). ¶45 Allstate also asserts that the common questions identified by the District Court do not demonstrate that the proposed class members have all “suffered the same injury.” See Wal- Mart, 131 S. Ct. at 2551. Allstate specifically argues that the first proposed common question—whether the CCPR as applied to unrepresented claimants violates the UTPA—“is precisely the type of generalized question that Wal-Mart identified as insufficient.” However, as discussed above, the determination of whether Allstate’s common application of the CCPR to the proposed class violated the UTPA is the sort of “common scheme of deceptive conduct” that necessarily presents common questions of law and/or fact. See Ferguson, ¶ 28; McReynolds, 672 F.3d at 491. ¶46 Allstate further contends that this question cannot be answered as a class question because an independent cause of action for a UTPA violation or common law bad faith requires a showing of actual damages. Because Allstate argues a showing of actual damages would require case-specific, individual inquiries, it asserts that the first common question cannot be answered for the class as a whole. However, as discussed above, individualized damage inquiries generally do not preclude class certification. See Mattson III, ¶ 38 (citing McDonald, 261 Mont. at 403-04). Damages claims may be determined in later individual trials after a class trial has determined the availability of the requested injunctive and declaratory relief. McReynolds, 672 F.3d at 491. 32 ¶47 Allstate argues the second proposed common question is deficient because whether Allstate’s profit increased while total compensation paid to the class decreased does not provide a common answer demonstrating a violation of §§ 33-18-201(1) or (6), MCA. Jacobsen responds that the second common question would answer whether the CCPR caused indivisible “legal injury” to the class as a whole “through the use of a dishonest system, whether or not the monetary value of each settlement ultimately was unfair.” We agree that the second certified class claim question is deficient, but only insofar as it conflicts with our conclusion that the Court’s certification of a class-wide punitive damages award was improper. As framed by the District Court, the second class claim asks the class jury to determine whether Allstate’s systematic use of the CCPR caused indivisible harm to the class as a whole by operation of a zero-sum economic theory and an inversely proportional relationship between Allstate profits and compensation paid to unrepresented claimants. The Court formulated this claim so as to justify the entry of a class-wide punitive damages award. We believe that the second certified class claim must be revised in light of our conclusion that punitive damages must be determined on an individualized basis, to be awarded only if the claimant can demonstrate compensatory loss. We consequently modify the second certified claim as follows: (B) Allstate’s common, systematic use of this pattern and practice in Montana resulted in damages to the members of the class by operation of its zero-sum economic theory and the resulting inversely proportional relationship between Allstate profit increases and corresponding decreases in the total amount of compensation paid to the class of unrepresented claimants as a whole; and [. . .] 33 See Section 3-2-204, MCA (entitling us to “affirm, reverse, or modify any judgment or order appealed from[.]”). The District Court considered the second common contention as proposing whether the CCPR’s alleged pursuit of profits at the expense of unrepresented claimants harmed the class by potentially violating the unrepresented claimants’ rights to good faith adjusting of their claims under the UTPA. Answering this question, as revised, would presumably help determine whether the CCPR was an intentional, programmatic effort to produce unfair settlements in violation of the UTPA. While an increase in profits concurrent with a decrease in total payments to the class as a whole may not prove a violation of the UTPA by itself, the District Court did determine that significant proof existed that Allstate developed the CCPR program “with the knowledge and intent” that its implementation would reduce the net sum of unrepresented settlements. This revised inquiry would help advance the determination of the legality of the CCPR while avoiding our concerns with a class-wide award of punitive damages, as discussed below. ¶48 The third common contention asks whether Allstate consciously disregarded a high probability that the net effect of the CCPR would result in decreased settlements to the class as whole. Thus, an affirmative answer to the second question, determining that the CCPR was an intentional effort to engage in unfair settlement practices to increase profits, would likely advance the resolution of the third question and could support a finding of actual malice pursuant to § 27-1-221(2), MCA. However, Allstate claims that the third common question is deficient because Jacobsen does not assert his claim was underpaid. Jacobsen responds that the harm at issue is insufficient class-wide settlement payouts due to the 34 CCPR’s zero-sum economic focus. Because Jacobsen argues that Allstate implemented the CCPR with the intention of implementing a zero-sum economic game to systematically produce unfair settlements and increase profits, this contention would resolve an issue central to each class member’s claim: whether Allstate acted maliciously by applying the CCPR with the intent of lowering payouts to increase profits. ¶49 It is important to note that district courts have “broad power and discretion vested in them by” Rule 23 “with respect to matters involving the certification and management of potentially cumbersome or frivolous class actions.” Reiter v. Sonotone Corp., 442 U.S. 330, 345, 99 S. Ct. 2326 (1979); accord Sieglock, ¶ 8 (“Trial courts have the broadest discretion when deciding whether to certify a class.”). Here, class-wide resolution of the proposed common contentions “will drive the resolution of the litigation.” Chipman, ¶ 52. Such potentially illuminating questions are the focus of Rule 23(a)(2) and, as discussed above, resolving whether the CCPR violates the UTPA would set the stage for later individual trials. Moreover, as we require, the District Court examined the evidence behind the pleadings to determine that the proposed class actually satisfied the commonality prerequisite. We therefore conclude that the District Court did not abuse its discretion by determining that Jacobsen’s common contentions, as construed by this Court, satisfy the commonality requirements of Rule 23(a)(2). ¶50 Again, both Jacobsen and Allstate have claimed that Wal-Mart presents a heightened commonality standard when compared with our previous conception of the rule, and both applied Wal-Mart to the case on appeal. Because of this, and because we affirm the District 35 Court’s class certification (also based on Wal-Mart), we need not address whether Wal-Mart presents a different standard and if we intend to adopt it. Mattson III, ¶ 37. Instead, as we did in Chipman and Mattson III, we simply conclude that Jacobsen satisfies the Wal-Mart commonality standard because the certified class claims depend upon a common contention concerning a programmatic course of conduct that is “of such a nature that it is capable of classwide resolution,” i.e., that “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 131 S. Ct. at 2551. iii. Typicality—Rule 23(a)(3) ¶51 Regarding typicality, we have previously explained that this requirement “is designed to ensure that the interests of the named representative are aligned with the interests of the class members, the rationale being that a named plaintiff who vigorously pursues his or her own interests will necessarily advance the interests of the class.” Mattson III, ¶ 21 (citing Chipman, ¶ 53). Thus, “ ‘[t]he premise of the typicality requirement is simply stated: as goes the claim of the named plaintiff, so go the claims of the class.’ ” Arlington Video Prods. v. Fifth Third Bancorp, 2013 U.S. App. LEXIS 3355, 42 (6th Cir. 2013). The commonality and typicality requirements “tends to merge,” Falcon, 457 U.S. 147, at 158 n. 13, and typicality generally “prevents plaintiffs from bringing a class action against defendants with whom they have not had any dealings.” Diaz, ¶ 35. Typicality is not a demanding requirement, and it “is met if the named plaintiff’s claim ‘stems from the same event, practice, or course of conduct that forms the basis of the class claims and is based upon the 36 same legal or remedial theory.’ ” Diaz, ¶ 35 (quoting McDonald, 261 Mont. at 402). The underlying event, practice, or course of conduct “need not be identical.” Diaz, ¶ 35. In addition, because Wal-Mart’s discussion of Rule 23(a) hinged on an analysis of commonality, the opinion did not consider the requirements of typicality and did not purport to establish a heightened level of review. ¶52 The District Court found that the nature of Jacobsen’s claim was typical of those of the proposed class because “significant proof [exists] that Allstate subjected the class as a whole, including but not limited to Plaintiff, to the same systematic violation of §§ 33-18- 201(1) and (6), MCA, through the pattern and practice of the Casualty CCPR’s unrepresented segment adjusting practices.” Specifically, the Court found that: Jacobsen and each proposed class member are members of the above-defined class; Jacobsen and each class member were at a minimum subjected to the same allegedly unlawful conduct generally; and the allegedly unlawful conduct caused harm to the class as a whole by operation of the CCPR and its alleged zero-sum economic theory. Thus, as required by our opinion in Mattson II, the District Court probed behind the pleadings to actually determine whether Jacobsen met the typicality prerequisite. ¶53 On appeal, Allstate argues that the District Court erred because “Jacobsen is not even a member of the class.” Allstate supports this contention by claiming that Jacobsen lacks individual standing because his initial release, obtained after his claim was adjusted to an unrepresented settlement pursuant to the CCPR, was rescinded, citing Hop v. Safeco Ins. Co., 2011 MT 215, 361 Mont. 510, 261 P.3d 981. Allstate further attempts to distinguish 37 Jacobsen’s claim from those of the class members by arguing that he does not contend his property damage claim was improperly handled and that he only seeks damages due to alleged emotional distress. Jacobsen in turn claims that the application of the CCPR is a per se violation of the UTPA, that the application of the CCPR to the class as a whole resulted in systemic economic injury, and that both he and the class suffered emotional distress from the application of the CCPR to their claims. Jacobsen essentially asserts that typicality isn’t destroyed if class members display some uniqueness in the character of their individual injuries. ¶54 First, our opinion in Hop can be distinguished. There, we declined to find typicality based on the named representative’s lack of individual standing for failing to meet the procedural requirements of § 33-18-242(6), MCA. Hop, ¶ 20. The named representative did not lack individual standing because of any factual differences in the substantive details of his claim, but for bringing a claim under § 33-18-201, MCA, despite the absence of any judgment in, or settlement of, his underlying claim as required by § 33-18-242(6), MCA. This holding is therefore inapplicable to Allstate’s argument that Jacobsen’s claim is not typical because of the specific facts of the application of the CCPR to his unrepresented claim. ¶55 Second, Allstate’s arguments miss the aim of the typicality requirement by raising issues with the specific facts of Jacobsen’s claim and the specific relief he seeks. See Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (1992) (“Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose 38 or the relief sought.”). Jacobsen is a member of the class as defined by the District Court. He was an unrepresented third-party claimant bringing claims for property damage and bodily injury following a motor vehicle accident with an Allstate insured. Allstate applied the CCPR to Jacobsen while he was unrepresented, and, at base, Jacobsen’s class claim alleges that Allstate systematically applies the CCPR to violate the rights of unrepresented claimants under the UTPA. Jacobsen’s claim stems from the same course of conduct, the application of the CCPR to unrepresented claimants, as the proposed class members’ claims and both Jacobsen’s and the class members’ claims are based on the same legal theory, that this application of the CCPR violates the UTPA. The injuries that allegedly resulted among class members, whether economic or emotional, are not sufficiently dissimilar to render Jacobsen’s claim atypical of those of the class regarding this core allegation. ¶56 Indeed, we have previously determined that the common application of an insurance practice to a proposed class constitutes an event, practice, or course of conduct sufficient to satisfy the typicality requirement. See Diaz, ¶ 36; Ferguson, ¶¶ 26-28 (finding the related commonality requirement satisfied by an allegedly programmatic breach of a duty). In Chipman, we considered claims that the named plaintiffs’ claims were atypical from those of the class in the context of a suit over the discontinuation of a sick leave buy-back program. Chipman, ¶ 54. The defendant employers argued that the named plaintiffs’ claims were atypical because they worked for the employers for a longer period and may or may not have attended a meeting with management. Chipman, ¶ 54. The plaintiff employees argued that the class members’ disputes were typical because they were triggered by the same underlying 39 cancellation of the buy-back program. Chipman, ¶ 54. We determined that because the claims of the named plaintiffs and class members all arose from the same event, the plaintiffs were able to establish “the necessary nexus between the injuries alleged by named Plaintiffs and class members.” Chipman, ¶ 56. We based this decision on an analysis of Cates v. Cooper Tire & Rubber Co., 253 F.R.D. 422 (N.D. Ohio 2008). There, the named plaintiffs sought class certification in a suit against their employer over the imposition of a cap on post-retirement health benefits. Cates, 253 F.R.D. at 424. The district court determined that typicality was satisfied despite the fact that the benefit plans of the named plaintiffs varied from those of the class members because all of the claims arose from the same event or practice and the class members relied on the same legal theory. Cates, 253 F.R.D. at 429. Jacobsen’s and the class’s claims arise from the CCPR and all are proceeding under the legal theory that the CCPR was implemented to lower claims payments to the class by violating the rights afforded claimants under the UTPA. ¶57 In addition, as we discuss below, our reformation of the requested class relief will cause the specifics of Jacobsen’s injuries to be aired in a later, individual suit for damages if the court awards the requested class injunctive and declaratory relief. Jacobsen’s injunctive and declaratory claims arise from the same course of conduct as those of the putative class members, the application of the CCPR to his unrepresented claim for bodily injury and property damage following a motor vehicle incident. A class trial may efficiently, and appropriately, determine the legality of this program as applied to the class as a whole. See McReynolds, 672 F.3d at 490-91. Allstate’s concerns over Jacobsen’s typicality, centered on 40 the details of his injury and the availability of certain defenses, will be obviated if the specifics of Jacobsen’s injuries will not be addressed in a class trial that considers only the proposed injunctive and declaratory relief. Thus, despite Allstate’s contentions, the specifics of Jacobsen’s alleged injuries do not render him atypical of the class because his claim “stems from the same event, practice, or course of conduct that forms the basis of the class claims and is based upon the same legal or remedial theory,” McDonald, 261 Mont. at 402 (quoting Jordan v. County of Los Angeles, 669 F.2d 1311, 1321 (9th Cir. 1982) (emphasis in original). This satisfies the typicality requirement and we affirm the District Court’s decision. iv. Adequacy—Rule 23(a)(4) ¶58 The fourth prerequisite of Rule 23(a) allows certification only where the representative parties will fairly and adequately protect the interests of the class. M. R. Civ. P. 23(a)(4). “‘This requires that the named representative’s attorney be qualified, experienced, and generally capable to conduct the litigation, and that the named representative’s interests not be antagonistic to the interests of the class.’ ” McDonald, 261 Mont. at 403, 862 P.2d at 1156 (quoting Jordan, 669 F.2d at 1323). Adequacy is therefore closely related to commonality and typicality. Regarding potential antagonistic interests, the District Court determined that because Jacobsen’s asserted class claims satisfied the commonality and typicality requirements, Allstate had failed to show a compelling reason why Jacobsen’s individual interests would conflict with the common interests of the class. 41 The court also took notice that Jacobsen’s class counsel are competent and experienced in complex class action litigation. ¶59 Allstate argues that Jacobsen’s claims will be subject to unique defenses that are likely to become the focus of any trial. However, “perfect symmetry of interest is not required and not every discrepancy among the interests of class members renders a putative class action untenable.” Matamoros v. Starbucks Corp, 699 F.3d 129, 138 (1st Cir. 2012). When we apply this recognition to the adequacy requirement of Rule 23(a)(4), it is clear that “ ‘[o]nly conflicts that are fundamental to the suit and that go to the heart of the litigation prevent a plaintiff from meeting the Rule 23(a)(4) adequacy requirement.’ ” Matamoros, 699 F.3d at 138 (quoting 1 William B. Rubenstein, Newberg on Class Actions § 3:58 (5th ed. 2012)). The potential intra-class conflicts that Allstate cites—which include Jacobsen’s desire for an early settlement, that he may have initially decided to not hire an attorney, and the cause of his emotional distress—are not “so substantial as to overbalance the common interests of the class members as a whole.” Matamoros, 699 F.3d at 138. As a third party claimant contesting the legality of the CCPR, Jacobsen has incentive to vigorously pursue the requested injunctive and declaratory relief. In view of this, the limited scope of the class trial on remand, and the District Court’s considerable discretion in class certification decisions, we conclude that the District Court did not abuse its discretion by concluding that Jacobsen’s interests are not antagonistic to those of the proposed class. ¶60 2. Whether the District Court abused its discretion by certifying a M. R. Civ. P. 23(b)(2) class action lawsuit? 42 ¶61 Once the Rule 23(a) prerequisites are satisfied, the analysis shifts to Rule 23(b). Mattson III, ¶ 18. To be certified, a class must fit within one of the three types described in Rule 23(b). Wal-Mart, 131 S. Ct. at 2548-49. At the District Court, Jacobsen argued that his proposed class qualified under Rule 23(b)(2), or alternatively, as a “hybrid-type class” combining elements of Rule 23(b)(2) and Rule 23(b)(3). Rule 23(b)(2) allows a class action to be maintained if, having met the requirements of Rule 23(a), “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]” M. R. Civ. P. 23(b)(2). As the Wal-Mart decision noted, “[t]he key to the [Rule 23](b)(2) class is, the indivisible nature of the injunctive or declaratory remedy warranted-- the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them,” Wal-Mart, 131 S. Ct. at 2557 (internal citation omitted). ¶62 Rule 23(b)(3) allows a class action if the court finds that the common questions of law or fact predominate over individual questions. The District Court declined to address Jacobsen’s alternative claim for Rule 23(b)(3) relief because of the “cursory” briefing and “logical inconsistency” of a hybrid Rule 23(b)(2) and (b)(3) class. Jacobsen does not challenge this decision on appeal. ¶63 The District Court specifically found that “significant proof” existed that Allstate, the party opposing the class, had acted on grounds that generally applied to the class through its 43 use of the CCPR program.8 Following this determination, the Court examined whether Jacobsen sought appropriate forms of injunctive and declaratory relief and whether Jacobsen’s requested monetary relief was permissible under Rule 23(b)(2). After denying Jacobsen’s claims for equitable disgorgement and a vague prohibitive injunction,9 the Court certified the following class action remedies under Rule 23(b)(2): (A) declaratory judgment adjudicating the constituent assertions of the certified class claim [quoted at ¶ 16]; (B) mandatory injunction requiring Allstate to: (1) give all class members court-approved notice of the right and opportunity to obtain re-opening and re-adjustment of their individual claims by timely returning a proof of claim form; (2) re-open and re-adjust each individual claim upon receipt of a timely filed proof of claim; (C) class-wide punitive damages pursuant to §§ 27-1-220 and 27-1-221(2), MCA (actual malice), predicated on the above-referenced class-wide conduct; and 8 The District Court based this finding on its construction of Jacobsen’s class claim, which is quoted at ¶ 16, supra. The Court essentially determined that Jacobsen claimed that the CCPR was a common practice in violation of §§ 33-18-201(1) and (6), MCA, as applied to the class as a whole, that the CCPR caused economic harm to the class as a whole, and that Allstate consciously disregarded the high probability that the CCPR would result in insufficient net settlement payouts. 9 The Court found that that a mandatory injunction compelling disgorgement of unlawful profits was not appropriate in addition to punitive damages and denied its availability as a Rule 23(b)(2) remedy. The Court also found that Jacobsen’s requested prohibitive injunction enjoining Allstate from engaging in unlawful conduct as found by the jury was fatally vague because it failed to articulate a specific prohibition that would provide relief to the class as a whole. Jacobsen does not appeal either decision. 44 (D) common fund recovery of class action attorney fees and costs upon a class-wide punitive damages award[.]10 Allstate generally contests the appropriateness of the certified class remedies as applied to both the class and Allstate, and further asserts various violations of both its, and the class members’, right to due process. ¶64 As we explain below, we affirm the Court’s certification of a Rule 23(b)(2) class asserting the above class declaratory (“(A)”) and injunctive (“(B)”) relief, but we reverse the certification of a potential class-wide punitive damages award (“(C)”). We accordingly remand with direction to determine the availability of the above declaratory and injunctive relief in a class trial. Further, instead of considering class-wide punitive damages, the class trial will determine whether Allstate’s implementation of the CCPR involved either actual fraud or actual malice pursuant to § 27-1-221, MCA. See § 33-18-242(4), MCA; Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 91, 345 Mont. 12, 192 P.3d 186. Thus, the class trial will initially determine if the CCPR violates the UPTA according to the certified declaratory relief. If so, the Court will issue a mandatory injunction requiring Allstate to give all class members notice of the right to re-open and re-adjust their individual claims. Last, the class trial will determine if Allstate engaged in actual fraud or actual malice in implementing the CCPR. If so, the trier of fact in the later individual cases may determine the amount of 10 Allstate does not challenge the certification of common fund attorney fees on appeal. 45 individual punitive damages to be awarded if individual actual damages are also established. We will discuss the certified class remedies in turn. A. The Declaratory and Injunctive Relief i. Class Cohesiveness ¶65 Allstate first argues that a Rule 23(b)(2) class is inappropriate because the class lacks cohesiveness. This is essentially a restatement of Allstate’s arguments against commonality and typicality. However, because a Rule 23(b)(2) class action is considered “mandatory,” see Wal-Mart, 131 S. Ct. at 2558,11 a class that lacks homogeneity could unjustly bind absent class members to a negative decision. See Barnes v. Am. Tobacco Co., 161 F.3d 127, 143 (3d Cir. 1998). Because the relief sought must be able to affect the entire class at once, we will examine the cohesiveness of the class in the context of a mandatory Rule 23(b)(2) class. ¶66 Allstate claims the proposed class is inappropriate as a Rule 23(b)(2) class because it “would necessarily include many individuals who suffered no injury and thus could have no UTPA claim . . . .” Allstate claims both that these dissimilar class members would be unjustly bound by the action and that the lack of homogeneity would involve the adjudication of significant individual issues. However, these arguments are premised on a misunderstanding of the nature of Jacobsen’s asserted class claims and are precluded by the scope of the class trial on remand. The individual context of any one settlement is not relevant to the adjudication of the certified declaratory and injunctive relief and our 11 Rule 23(b)(2) classes are considered “mandatory” because the rule does not provide an opportunity for class members to opt out and does not require a district court 46 reformation of the punitive damages portion of the certified relief removes the consideration of individual circumstances in the class trial. Thus, Allstate’s claim that not all class members have suffered actual harm or an unfair adjustment misses the point. The certified class claims on remand are not intended to resolve individual cases of unfair settlement or payment. Instead, they are aimed at adjudicating the initial legality of the CCPR as applied to the class. The later individual trials would allow Allstate to present evidence that individual class members suffered no injury. But, the initial legality of the CCPR would not need to be re-litigated in each subsequent individual trial. See DL, 2013 U.S. App. at 22; McReynolds, 672 F.3d at 491; Mejdrech, 319 F.3d at 911. ¶67 As the District Court noted, our decision in Ferguson supports certifying Jacobsen’s requested declaratory and injunctive relief as part of a Rule 23(b)(2) class. There, as part of a Rule 23(b)(2) class, the plaintiff sought a declaration that the insurer, Safeco, had breached its adjustment duties through a “programmatic assertion of subrogation without first investigating and determining whether insureds had received their ‘made-whole’ rights.” Ferguson, ¶ 33. Facing a similar claim that the requested declaratory relief would require the adjudication of individual “made-whole” entitlements, we determined that the plaintiff’s claim did not raise issues with Safeco’s application of the “made-whole” rule to any one insured. Ferguson, ¶¶ 34, 39. Instead, we concluded that the plaintiff’s claim contested “the procedures of a program of subrogation which systematically deprives all class members of any consideration of their ‘made-whole’ rights.” Ferguson, ¶ 34. Thus, like Jacobsen, the to afford them notice. Wal-Mart, 131 S. Ct. at 2558. 47 plaintiff in Ferguson sought a declaration requiring Safeco to follow a statutory duty prior to any consideration of the actual harm the violation of this standard caused to any individual class member. These “class claims do not seek a determination of entitlements for each class member and the payment of damages; rather [both] class claims seek a declaratory ruling that will be enforced to compel [the insurer] to follow the legal standard . . . .” Ferguson, ¶ 34; see also Diaz, ¶ 47. ¶68 Here, as in Ferguson, the plaintiff seeks “an order compelling [the insurer] to properly perform its statutory adjustment duties.” Ferguson, ¶ 36. Because Jacobsen presents a common question alleging a common injury, an answer will determine whether the CCPR will be “enjoined or declared unlawful only as to all of the class members or as to none of them.” See Wal-Mart, 131 S. Ct. at 2557. The potential later individualized determinations of underpayment are not necessary to answer Jacobsen’s class claims and do not render the class overbroad. ii. Class Injunctive and Declaratory Relief is “Final” ¶69 Allstate contends that Rule 23(b)(2) requires “final” relief, and contends the certified relief is not final because “it only serves as a basis to present damage claims later.” Allstate largely cites federal precedent as support for this proposition. However, we have never construed M. R. Civ. P. 23(b)(2)’s use of “final” to impose a substantive obligation on plaintiffs, and it is not clear that Allstate’s citations to authority recommend that we do so. See Richards v. Delta Air Lines, Inc., 453 F.3d 525, 530 (D.C. Cir. 2006) (“Subsection (b)(2) was not intended to ‘extend to cases in which the appropriate final relief relates exclusively 48 or predominantly to monetary damages.’”). Moreover, Allstate’s preferred citations are distinguishable from the present case. See Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883 (7th Cir. 2011) (contesting the failure to implement a uniform program); Jamie S. v. Milwaukee Public Schools, 668 F.3d 481 (7th Cir. 2012) (finding proof of an illegal policy was “entirely absent here.”). We have not recognized a substantive “finality” requirement in Rule 23(b)(2) and we address Allstate’s complaints concerning monetary relief below. iii. Injunctive and Declaratory Relief is not Amorphous ¶70 As noted, Jacobsen seeks declaratory relief declaring the application of the CCPR to the class to be a violation of the UTPA and a mandatory injunction requiring Allstate to re- open and re-adjust claims. Allstate complains that this relief “is so amorphous and vague that it cannot support class certification,” citing Shook v. Bd. of County Comm’rs, 543 F.3d 597, 605 (10th Cir. 2008) and Kartman. ¶71 Allstate specifically argues that the requested declaratory relief would provide an inappropriately abstract or advisory opinion that failed to provide further direction on the process to be used if claims are to be re-adjusted. However, our rule against issuing advisory opinions is based in the concept of justiciability. Plan Helena, Inc. v. Helena Reg’l Airport Auth. Bd., 2010 MT 26, ¶¶ 8-9, 355 Mont. 142, 226 P.3d 567. The various doctrines of justiciability seek to ensure that courts provide specific relief in concrete, actual controversies instead of opinions advising what the law or rule would be based upon a hypothetical set of facts or abstract proposition. Plan Helena, Inc., ¶ 9. This prohibition does not mean that the Court’s potential determination that the CCPR violates the law also 49 needs to be accompanied by a judicial proposal for a legal claims adjusting program. Our statutory requirement that an order granting an injunction be specific in its terms, § 27-19- 105(2), MCA, does not require this level of specificity either. See Guthrie v. Hardy, 2001 MT 122, ¶¶ 61-62, 305 Mont. 367, 28 P.3d 467 (faulting an injunction which failed to indicate which named party carried the obligation of maintaining a road). Insurance adjusting is squarely within Allstate’s area of expertise, not the judicial branch’s, and where we have previously faulted injunctions for a lack of specificity, we have not required the level of detail Allstate now requests. ¶72 Allstate’s citations to authority do not support enlisting the judiciary to draft claims adjusting policies either. For example, in Shook, plaintiffs sought to certify a class containing all present and future mentally ill inmates in a Colorado jail. Shook, 543 F.3d at 600. The plaintiffs sought a Rule 23(b)(2) class with declaratory and injunctive relief addressing jail conditions. However, the plaintiffs suffered from a wide variety of mental illnesses and were subjected to a correspondingly wide range of treatments by the jail staff. Shook, 543 F.3d at 601. The plaintiffs sought a broad injunction “establishing standards across a wide range of areas affecting mentally ill inmates,” touching upon staffing, training, inmate housing, safety, psychiatric care, and the proper use of force. Shook, 543 F.3d at 602. The district court denied Rule 23(b)(2) certification because plaintiffs could not show that the defendants acted on grounds generally applicable to the whole class and because the variety within the class precluded class-wide injunctive relief. Shook, 543 F.3d at 603. The Court of Appeals affirmed the decision, noting that “the relief plaintiffs seek would require 50 the district court to craft an injunction that distinguishes—based on individual characteristics and circumstances—between how prison officials may treat class members[.]” Shook, 543 F.3d at 605 (emphasis in original). Moreover, an injunction that took the opposite tack and merely required “adequate” services would fail to describe just what, in light of the variety of the inmates’ needs, must be done. Shook, 543 F.3d at 606. Shook therefore does not stand for the proposition that Rule 23(b)(2) requires a certain specificity of injunctive relief, but for the general recognition that Rule 23(b)(2) classes must be sufficiently cohesive so that the injunctive relief applies to the class as a whole. ¶73 In Kartman, plaintiffs brought a class claim alleging, in part, that State Farm’s failure to use a uniform, objective criteria while assessing their hail-damaged roofs amounted to breach of contract, bad faith, and unjust enrichment. Kartman, 634 F.3d at 887. As relief, plaintiffs requested compensatory and punitive damages and an injunction requiring State Farm to reinspect all class members’ roofs pursuant to a uniform and objective standard. The district court judge certified a Rule 23(b)(2) class to adjudicate the request for an injunction and to assess State Farm’s liability. Kartman, 634 F.3d at 888. The appellate court reversed, finding that plaintiffs’ only cognizable injury was for underpayment of their claims and that the requested injunctive relief was not the proper remedy. Kartman, 634 F.3d at 889-90. This finding was largely based on the court’s conclusion that State Farm had no duty to use an objective, uniform standard to determine hail-damage. Kartman, 634 F.3d at 890. Thus, the plaintiffs’ failing was that the court determined State Farm had no duty to use a particular method to evaluate hail-damage claims, let alone a duty to use the method 51 the plaintiffs sought to impose with an injunction. Kartman, 634 F.3d at 890. This situation is distinct from the present case, where Jacobsen seeks a declaration that Allstate’s CCPR violates the UTPA and an injunction requiring notice to the class of the right to reopen their claims. Jacobsen, unlike the plaintiffs in Kartman, is not contesting the lack of a program or seeking to outline the contours of a legal program to be imposed on Allstate. ¶74 Unlike Shook and Kartman, the certified class at issue has been subjected to a common practice and has allegedly suffered a common injury to statutorily conferred rights. This common contention, as discussed, is amenable to class-wide relief. This does not mean, however, that the court must go beyond an injunction addressing tortious conduct to affirmatively dictate proper adjusting practices. See Rodriguez v. Countrywide Home Loans, Inc. (In re Rodriguez), 695 F.3d 360, 368-69 (5th Cir. 2012) (holding that injunctions are problematic when they order a defendant to obey the law and do not indicate what law the defendant needs to obey). B. Punitive Damages in a Rule 23(b)(2) Claim ¶75 The District Court certified the availability of class-wide punitive damages pursuant to § 27-1-220 and § 27-1-221(2), MCA. The District Court determined that monetary relief is available in a Rule 23(b)(2) class under Wal-Mart if it is incidental to the declaratory and injunctive relief, affords indivisible, non-individualized relief in a single stroke, and comports with due process by not prejudicing the rights of the class members and defendant to contest specific cases. The Court also noted that punitive damages are generally not available without a predicate award of compensatory damages, but reasoned that an award of 52 punitive damages based on actual malice does not require an award of compensatory damages if the evidence shows that the predicate tort caused actual harm or damage. The Court then determined that Jacobsen’s claim was capable of showing that Allstate’s alleged zero-sum economic theory visited a form of indivisible, actual economic harm upon the entire class, which it reasoned “would constitute a sufficient predicate for a class-wide punitive damages award in this case.” The Court further concluded that a class-wide punitive damages award did not implicate the due process concerns addressed in Wal-Mart because it was not an individualized monetary remedy and did not litigate any claim-specific issues. ¶76 Allstate initially contests the basic appropriateness of monetary damages under Rule 23(b)(2), claiming that “one possible reading” of Rule 23(b)(2) is that it does not authorize certification of monetary claims at all. The majority opinion in Wal-Mart did not go so far as to foreclose the availability of monetary relief in Rule 23(b)(2) classes, however, and it left open the possibility that incidental monetary claims could be certified under Rule 23(b)(2). Wal-Mart, 131 S. Ct. at 2557. However, we need not decide the matter in this case, because we reverse the District Court’s certification of a class-wide punitive damages award based on our concerns over the award’s potential effect on the due process rights of Allstate. i. The Class-Wide Punitive Damages and Due Process ¶77 Allstate also claims that the District Court’s certification of class-wide punitive damages violates Allstate’s right to due process because Allstate would be precluded from raising case-specific defenses to an individual class member’s entitlement to punitive 53 damages (e.g. that individual class member’s claims were handled appropriately or paid fairly). Conversely, Allstate argues that the potential class trial would “inappropriately devolve into a series of mini-trials “if the Court were to allow Allstate to present defenses to class member’s entitlement to punitive damages. Jacobsen counters that our decision in Gonzales established that punitive damages class claims can be maintained for systematic wrongdoing without individualized proof of harm. Jacobsen also asserts that Allstate’s proffered federal precedent does not apply in the class action context. ¶78 Given the nature of the requested relief as part of a Rule 23(b)(2) class, we agree that Allstate should be able to establish defenses to individual claims to ensure that punitive damages are not awarded to claimants that were not actually damaged by the adjustment of their claims under the CCPR. See Philip Morris USA v. Williams, 549 U.S. 346, 353, 127 S. Ct. 1057 (2007) (“[T]he Due Process Clause prohibits a State from punishing an individual without first providing that individual with ‘an opportunity to present every available defense.’ ”); Seltzer v. Morton, 2007 MT 62, ¶ 145, 336 Mont. 225, 154 P.3d 561. It is true that our Gonzales opinion considered the constitutionality of a class-wide punitive damages award. However, Gonzales did not consider a class-wide punitive damages award in the context of a Rule 23(b)(2) class and we did not consider the defendant’s right to present a defense to each class member’s entitlement to a punitive damages award. Gonzales, ¶ 15. Gonzales instead approved class-wide punitive damages in a combination Rule 23(b)(1) and (3) class suit where the district court certified a Rule 23(b)(3) compensatory damages class. Gonzales, ¶¶ 17-19. Thus, the Gonzales class members’ entitlement to compensatory 54 damages would be established during the class trial and would support an award of punitive damages. Here, adjudicating the requested injunctive and declaratory relief would not involve a similar determination of compensatory damages. Potentially granting class-wide punitive damages before determining whether individual class members suffered actual damages, as Jacobsen suggests, raises serious concerns about fairness. See Jacobsen I, ¶ 67; Stipe v. First Interstate Bank-Polson, 2008 MT 239, ¶ 23, 344 Mont. 435, 188 P.3d 1063. “Due process requires that there be an opportunity to present every available defense.” Lindsey v. Normet, 405 U.S. 56, 66, 92 S. Ct. 862 (1972). Permitting a class-wide recovery of punitive damages before sending notice to the class and determining the extent of the class members’ actual harm would allow the punitive award to be potentially based on non-injured parties. Allstate should be allowed to contest class members’ entitlement to punitive damages. Philip Morris USA, 549 U.S. at 353-54. We accordingly conclude that the District Court abused its discretion by certifying the requested class-wide punitive monetary relief. ii. The Second Certified Class Claim ¶79 Again, our conclusion that the Court abused its discretion by certifying a class-wide punitive damages award requires us to revise the second certified class claim. Our reformation of the second claim is discussed in paragraph 47, supra. 55 ¶80 3. Whether the District Court erred by holding that the Montana Rules of Evidence do not apply to class action proceedings? ¶81 Last, Allstate entered several objections before the District Court concerning the Court’s consideration of what Allstate argued was inadmissible evidence during the certification proceedings. In a footnote, the Court determined that the evidence Jacobsen presented in the Rule 23 certification proceedings did not need to be “in a trial-admissible form,” and denied Allstate’s objections to “the ultimate trial-admissible evidentiary sufficiency of Plaintiff’s preliminary Rule 23 factual showings in this case.” ¶82 On appeal, Allstate maintains that the District Court erroneously based its class certification order on evidence that “was clearly inadmissible under the Rules of Evidence.” Allstate argues this allegedly inadmissible evidence included opinions and statements in an expert report, an article written by the Consumer Federation of America, an affidavit by one of Jacobsen’s attorneys, a power point presentation referred to as the “Liddy slides,” an incentive compensation plan, and affidavits and testimony from a New Mexico case that considered the CCPR. Jacobsen counters that his case “was grounded on dozens of McKinsey documents” that Allstate produced on remand and that all other evidence was properly considered. However, because the Court did not make a ruling on the admissibility of any of the evidence in question, the specific admissibility of a particular piece of evidence is not presented to this Court on appeal. Rather, we must consider the Court’s contention that evidence need not be in a “trial admissible form” for the purposes of class certification proceedings. 56 ¶83 Allstate specifically contends that the District Court’s determination that “a rigorous Rule 23 analysis” does not necessarily require a preliminary factual showing in “a trial- admissible form” was error in light of our decision in Mattson II and the Montana Rules of Evidence. In Mattson II, the District Court refrained from engaging in an analysis of the merits of the plaintiffs’ claims and stated it was required to take the plaintiffs’ allegations in support of the class action as true. Mattson II, ¶ 61. The District Court thereafter certified the class. On appeal, the defendant argued that the court erred in its Rule 23 analysis by taking the plaintiffs’ allegations as true and asserted that the court should have made its determination “based upon the evidence.” Mattson II, ¶ 62. We held that the court erred by determining it must take the plaintiffs’ allegations as true and noted a district court “certainly may look past the pleadings” when determining if Rule 23’s requirements have been met. Mattson II, ¶ 65. Quoting the Supreme Court’s decision in Falcon, we held “ ‘sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question’ ” to determine actual conformance with Rule 23(a). Mattson II, ¶ 65 (quoting Falcon, 457 U.S. at 160, 102 S. Ct. at 2372). Therefore, while this “probe behind the pleadings” may necessitate allowing discovery and hearing evidence, Mattson II also determined “there is no absolute requirement that a hearing be held” if “the paper record before the court” is adequate. Mattson II, ¶ 66. The applicability of the Montana Rules of Evidence was not addressed by this Court and was not a basis of our decision. Thus, despite Allstate’s argument to the contrary, Mattson II does not stand for the proposition that courts must apply the Rules of Evidence in Rule 23 proceedings. 57 ¶84 Allstate also argues that the Montana Rules of Evidence require their application to Rule 23 proceedings. In support, Allstate cites M. R. Evid. 101(a) and 104(a). Rule 101(a) states that “[t]hese rules govern all proceedings in all courts in the state of Montana with the exceptions stated in this rule.” Rule 101(c) lists the situations in which the rules do not apply, including preliminary questions of fact, grand juries, miscellaneous proceedings like those for extradition or the issuance of warrants for arrest, “summary” proceedings, and other miscellaneous proceedings like ex parte matters. Allstate contends that because the exceptions listed under Rule 101(c) do not include class certification proceedings, the rules must apply. Rule 104 governs “[p]reliminary questions of admissibility” and Rule 104(a) specifically covers “[q]uestions of admissibility generally.” While Rule 104(a) notes further situations where the rules of evidence do not apply, it is not relevant to this case. ¶85 In response, Jacobsen cites federal authority stating that courts in Rule 23 proceedings “may consider evidence that may not be admissible at trial.” Alonzo v. Maximus, Inc., 275 F.R.D. 513, 519 (C.D. Cal. 2011); see also Fisher v. Ciba Specialty Chemicals Corp, 238 F.R.D. 273, 279 n. 7 (S.D. Ala. 2006) (“The Federal Rules of Evidence are not stringently applied at the class certification stage because of the preliminary nature of such proceedings.”). Indeed, federal courts do not generally require the application of the rules of evidence in class certification proceedings. See Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 603 n. 22 (9th Cir. 2010) (“We are not convinced by the dissent’s argument that Daubert has exactly the same application at the class certification stage as it does to expert testimony relevant at trial.”) (reversed on other grounds by Wal-Mart Stores, Inc. v. Dukes, 58 131 S. Ct. 795 (2011)); Ellis v. Costco Wholesale Corp, 240 F.R.D. 627, 635 (N.D. Cal. 2007) (“At this early stage, robust gatekeeping of expert evidence is not required; rather, the court should ask only if expert evidence is ‘useful in evaluating whether class certification requirements have been met.’ ”); Kelly v. Montgomery Lynch & Assocs., 2007 U.S. Dist. LEXIS 93656, 3-4 (N.D. Ohio 2007) (“The Court declines to grant the Plaintiff’s motion to strike, however, because the Federal Rules of Evidence do not strictly apply in evaluating a Rule 23 motion for class certification.”); Bell v. Addus Healthcare, Inc., 2007 U.S. Dist. LEXIS 78950, 5-6 (W.D. Wash. 2007) (Thus, “Fed. R. Civ. Pro. 23 does not require admissible evidence in support of a motion for class certification and the Court will not create that standard.”). ¶86 Importantly, the federal cases that hold that the Federal Rules of Evidence do not necessarily apply to class certification proceedings do not base their decisions on an application of F. R. Evid. 1101, which, like M. R. Evid. 101(c), enumerates theexceptions to the general applicability of the rules of evidence.12 Instead, these federal courts based their conclusions on the requirements of the identical F. R. Civ. P. 23, and, as noted, we consider such federal precedent to be instructive. Specifically, these courts have determined that Rule 12 Like Montana Rule 101, Federal Rule 1101 specifically enumerates the situations in which the evidentiary rules do not apply. These situations are: preliminary questions of fact regarding admissibility under Rule 104(a), grand-jury proceedings, and miscellaneous proceedings like extradition or rendition, issuing a warrant or summons, sentencing, granting or revoking probation, or bail. Thus, just like the Montana Rules, the Federal Rules neither address their applicability in class certification proceedings nor except the proceedings from 59 23 does not require specific proceedings or trial admissible evidence because of the preliminary nature of class certification and trial courts’ broad discretion in certification decisions. See e.g., Rhodes v. E.I. Dupont De Nemours & Co., 2008 U.S. Dist. LEXIS 46159, 37 (S.D. W. Va. 2008) (Rule 23 “does not specifically provide for, require, or prohibit specific proceedings,” including those that apply the Federal Rules of Evidence). Indeed, “class certification is not a dispositive motion [like Fed. R. Civ. P. 56] that requires [a] Plaintiff to submit admissible evidence” in support of their arguments for certification, and federal courts have been reluctant to create that requirement. Bell, 2007 U.S. Dist. at 5- 6. ¶87 Because of the preliminary, discretionary nature of class certification questions, every federal circuit but the Seventh13 has declined to require that a district court must conclusively decide what evidence may be ultimately admissible at trial during the class certification stage. See Cox v. Zurn Pex, Inc., 644 F.3d 604, 611 (8th Cir. 2011). “A court’s rulings on class certification issues may evolve” through the course of discovery. Cox, 644 F. 3d at 613. The “inherently tentative” nature of these decisions may make final evidentiary decisions unnecessary or inappropriate. Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n.11, 98 S. Ct. 2454 (1978). their application. 13 The Seventh Circuit only requires a conclusive ruling on any challenge to an expert’s qualifications or submissions when the expert’s report or testimony is “ ‘critical to class certification.’ ” See e.g., Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 812 (7th Cir. 2012). 60 ¶88 Importantly, the Wal-Mart decision did not dispose of the federal courts’ varying application of the Federal Rules of Evidence to class certification proceedings. The Wal- Mart Court considered the plaintiffs’ production of the testimony of Dr. William Bielby, a sociological expert, as the only proffered evidence of Wal-Mart’s alleged “general policy of [gender] discrimination.” Wal-Mart, 131 S. Ct. at 2553-54. The expert testified that Wal- Mart’s corporate culture was “vulnerable” to gender bias, but he could not specifically determine how regularly gender stereotypes played a meaningful role in employment decisions. Wal-Mart, 131 S. Ct. at 2553. The parties disputed whether this testimony met the standards for the admission of expert testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), and the District Court concluded Daubert didn’t apply to class certification proceedings. The Supreme Court’s opinion did not squarely address this contention, merely offering “We doubt” that “Daubert did not apply to expert testimony at the certification stage” in dicta while concluding “even if properly considered, Bielby’s testimony does nothing to advance respondent’s case.” Wal-Mart, 131 S. Ct. at 2554. Thus, the Wal-Mart majority failed to address the application of the Rules of Evidence to class action certification proceedings and the Court’s doubt was aimed only at the application of Daubert, a question not presented here. ¶89 Because the District Court’s inquiry into a motion for class certification is tentative, preliminary, and limited to a determination of only whether the litigation may be conducted on a class basis, “the court’s analysis is necessarily prospective and subject to change . . . and 61 there is bound to be some evidentiary uncertainty.” Cox, 644 F.3d at 613. A decision on a motion to certify a class is not a conclusive judgment on the merits of the case, and is “not accompanied by the traditional rules and procedure applicable to civil trials.” Eisen, 417 U.S. at 178, 94 S. Ct. at 2153. We therefore conclude that the District Court did not err by determining that evidence considered for the purposes of class certification need not be in trial admissible form. CONCLUSION ¶90 We accordingly conclude that the District Court did not abuse its discretion by certifying a Rule 23(b)(2) class action. We do, however, conclude that the certification of class-wide punitive damages was inappropriate in the context of a Rule 23(b)(2) class. According to our reformation of the requested relief, we remand for a class trial to determine whether the application of the CCPR to the class violated the UTPA, and, if so, to determine whether the District Court should enter an order requiring Allstate to provide notice to the class members of their right to re-open and re-adjust their claims. The trier of fact in the class trial will also make a determination as to whether Allstate’s implementation of the CCPR program involved actual fraud or actual malice, such as could justify the entry of punitive damages following a finding of actual damages in the ensuing individual cases. If the trier of fact determines that Allstate did not engage in either actual fraud or actual malice, the class members would be entitled to only the compensatory damages they can prove in the individual cases. Following the class trial, the Court shall determine whether there should be a common fund recovery of class-action attorney fees and costs. 62 ¶91 We also conclude that the District Court did not err in its determination that class certification proceedings do not require evidence to be in “trial admissible” form. ¶92 We affirm the class certification, but modify the class claim and the certified class relief as herein set forth. /S/ MICHAEL E WHEAT We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BRIAN MORRIS _______________________ Justice Beth Baker, dissenting. ¶93 I agree that the District Court erred in certifying class-wide punitive damages relief under M. R. Civ. P. 23(b)(2). The Court’s attempt to preserve the class certification order is flawed, however, because it still leaves in place a class claim that cannot meet the requirements of Rule 23(b)(2). ¶94 As a preliminary matter, regarding Rule 23(a), I disagree with the Court’s statement that Wal-Mart has raised “dual questions” that require some future case for our clarification. Opinion, ¶¶ 32-33. First, no party in this case has disputed that Wal-Mart’s analysis of the commonality element of Rule 23(a)(2) imposed a heightened threshold for class certification. Second, counsel for both parties agreed during oral argument that Wal-Mart’s commonality analysis established a different standard from that used in our prior cases. We already have 63 recognized explicitly these points. Chipman, ¶ 47. Further, we did not state in Chipman, as the Court implies (Opinion, ¶ 28 (citing Chipman, ¶ 43)), that Montana courts “are not required to march lockstep with federal interpretations of Fed. R. Civ. P. 23.” While that statement in the Court’s Opinion today is not untrue, we invoked in Chipman “this Court’s long history of relying on federal jurisprudence when interpreting the class certification requirements” and did not consider the standards we had applied “prior to Wal-Mart.” Mattson III, ¶ 53 (Baker, J., dissenting) (quoting Chipman, ¶¶ 47, 52). By perpetuating confusion over whether Wal-Mart changed the law—a point I do not believe is reasonably open to dispute—the Court disserves prospective class plaintiffs and defendants, as well as the district courts that seem to be called upon with increasing frequency to decide class certification issues. ¶95 Our October 2011 adoption of comprehensive amendments to the Rules of Civil Procedure, in fact, came in response to the recommendation of the Court’s Advisory Commission on the Rules of Civil and Appellate Procedure to bring more uniformity between the Montana and Federal Rules of Civil Procedure. Rule 23 of the Montana Rules is now identical in all substantive respects with Rule 23 of the Federal Rules, with two exceptions not applicable here.1 No party has argued that there is a legitimate basis in this case for this Court to part company with its federal counterparts on the standard for 1 Montana’s Rule 23, unlike its federal counterpart, allows appeal of right from an order granting or denying class action certification or an order finally and definitively rejecting a proposed class settlement. Compare M. R. Civ. P. 23(f) and Fed. R. Civ. P. 23(f). The federal rule also contains a provision specific to referral of certain matters to a United States Magistrate Judge. Fed. R. Civ. P. 23(h)(4). 64 commonality. The Court should refrain from interjecting speculation that it may someday choose to do so if the right case comes along. Since the Court in any event applies the Wal- Mart commonality standard (Opinion, ¶ 50), its discussion on this point is not necessary. ¶96 Even assuming that all four factors of Rule 23(a) are met in this case, there is nonetheless a serious flaw in the Court’s analysis of Rule 23(b)(2). 2 “Failure to establish each requisite element of Rule 23 is fatal to class certification.” Chipman, ¶ 43. The Court’s dismissal of Rule 23(b)(2)’s “finality” requirement not only departs from our consistent reliance on federal authorities regarding class certification, but fails to apply the language of our own rule. M. R. Civ. P. 23(b)(2), identical to its federal counterpart, provides that if Rule 23(a) is satisfied, a class action may be maintained if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]” (Emphasis added.) The Court summarily rejects Allstate’s arguments about the “final injunctive relief” language by declaring that we “have not recognized a substantive ‘finality’ 2 I harbor reservations about whether Jacobsen meets the requirements of Rule 23(a)(3) and (a)(4), since he already has obtained the relief he seeks for the class—reopening and readjustment of an unrepresented claim. See Gary Plastic Packaging Corp. v. Merrill Lynch, 903 F.2d 176, 180 (2d Cir. 1990) (unique defenses may preclude both 23(a)(3) typicality and 23(a)(4) adequacy of representation) (citing 7A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1764 at 259-60 (2d ed. 1986) and 3B J. Moore & J. Kennedy, Moore’s Federal Practice para. 23.07[1] at 23-192 (2d ed. 1987)). My concern is heightened by the Court’s determination that Jacobsen’s claims satisfy typicality because “the specifics of [his] injuries [will] be aired in a later, individual suit for damages if the court awards the requested class injunctive and declaratory relief.” Opinion, ¶ 57. Since that concern relates primarily to the requirements of Rule 23(b)(2), I do not further discuss typicality here. 65 requirement in Rule 23(b)(2)” and suggesting that the federal cases on which Allstate relies are “not clear” that we should do so. Opinion, ¶ 69. ¶97 While this Court has not had occasion to consider the question, the history of the rule and the federal cases interpreting it leave little room for doubt as to the meaning of the “finality” requirement in Rule 23(b)(2). The Advisory Committee notes to subsection (b)(2) state that it was intended to reach situations where “final relief of an injunctive nature or of a corresponding declaratory nature, settling the legality of the behavior with respect to the class as a whole, is appropriate.” This subsection of the rule does not, however, “extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Fed. R. Civ. P. 23 Advisory Committee Notes to 1966 Amendment.3 The “corresponding declaratory relief,” likewise, should be equivalent to an injunction. . . . A request for a declaration that a . . . statute is unconstitutional[, for example,] would qualify as “corresponding declaratory relief” because the resulting judicial directive would have the effect of “enjoining” the enforcement of the . . . statute. . . . On the other hand, an action seeking a declaration concerning defendant’s conduct that appears designed simply to lay the basis for a damage award rather than injunctive relief would not qualify under Rule 23(b)(2). . . . Monetary relief that may be deemed equitable in nature or ancillary to the declaratory relief may be allowed, however. 7AA C. Wright, A. Miller, M. Kane, Federal Practice and Procedure, § 1775 at 58-60 (3d ed. 2005) (emphasis added; footnotes and citations omitted); see also Rubenstein, Newberg 3 The Wal-Mart Court questioned whether “even a ‘predominating request’” for injunctive relief would support Rule 23(b)(2) certification if accompanied by a claim for damages, but left open the possibility that some incidental monetary relief might still be allowed in such an action. 131 S. Ct. at 2559-60. 66 on Class Actions § 4:31, 112-13 (“In short, declaratory relief under (b)(2) cannot simply turn a (b)(3) damages action into an action under (b)(2).”). ¶98 Actions for money damages are the province of Rule 23(b)(3), which imposes additional requirements for notice and opt-out rights for the class members and requires findings that a class action would be superior to individual litigation and that common questions predominate over individual ones. See Mattson III, ¶ 19. “If recovery of damages is at the heart of the complaint, individual class members must have a chance to opt out of the class and go it alone – or not at all – without being bound by the class judgment.” Richards, 453 F.3d at 530. “Thus, when the relief sought would simply serve as a foundation for a damages award, . . . or when the requested injunctive or declaratory relief merely attempts to reframe a damages claim, . . . the class may not be certified pursuant to Rule 23(b)(2).” Richards, 453 F.3d at 530 (citations omitted); see also Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 499 (7th Cir. 2012) (Rule 23(b)(2) certification improper when remedial order merely establishes a system for eventually providing individualized relief); Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 979 (5th Cir. 2000) (declaratory relief must, as a practical matter, serve to afford injunctive relief or serve as a basis for later injunctive relief; certification under Rule 23(b)(2) improper where, “for most of the class, damages will be the only meaningful relief obtained”); DWFII Corp. v. St. Farm Mut. Auto. Ins. Co., 271 F.R.D. 676, 685 (S.D. Fla. 2010) (declining to certify Rule 23(b)(2) class where alleged damages for State Farm's underpayment or nonpayment of reimbursements for health care services of its insureds based on State Farm’s application of 67 the Centers for Medicare and Medicaid Services’ National Correct Coding Initiative was “not a group injury requiring a group remedy” but “would require individual resolution of [factual] questions relevant to each claim for reimbursement”); Cholakyan v. Mercedes-Benz USA, LLC, 281 F.R.D. 534, 561 (C.D. Cal. 2012) (denying Rule 23(b)(2) class certification where injunctive relief to create a reimbursement program “would merely ‘initiate a process’ through which individual class members could receive a monetary award” rather than grant classwide relief in the form of an injunction); Mogel v. UNUM Life Ins. Co. of Am., 646 F. Supp. 2d 177, 184 (D. Mass. 2009) (despite satisfying all requirements of Rule 23(a), class certification denied under Rule 23(b) because “[a]ny harm suffered as a result” of insurer’s alleged ERISA violations “has already occurred” and class members’ primary objective was to obtain monetary relief). ¶99 The Court’s brief attempt to distinguish this authority (Opinion, ¶ 69) falls short. The first certified class claim requires the District Court to declare whether the CCPR violates Montana’s unfair claims settlement practices laws. Opinion, ¶ 64. If the answer is “yes,” the District Court is to “issue a mandatory injunction requiring Allstate to give all class members notice of the right to re-open and re-adjust their individual claims.” Then, if the class trial determines that Allstate engaged in fraudulent or malicious conduct, “the trier of fact in the later individual cases may determine the amount of individual punitive damages to be awarded if individual actual damages are also established.” Opinion, ¶ 64 (emphases added). The Court expressly acknowledges, as a basis for its commonality holding, that “resolving whether the CCPR violates the UTPA would set the stage for later individual 68 trials.” Opinion, ¶ 49. Thus, the decision today makes clear that the class trial is to occur for the purpose of establishing a foundation for individualized damage awards. Simply stated, this is not a Rule 23(b)(2) class. ¶100 The difficulty here is that the District Court already considered and denied, as part of a comprehensive, sixty-page order prior to Jacobsen’s first appeal, his motion to certify a class under M. R. Civ. P. 23(b)(3). Jacobsen did not appeal that ruling following its issuance in 2005 and would be barred from now challenging the District Court’s determination. Bragg v. McLaughlin, 1999 MT 320, ¶ 21, 297 Mont. 282, 993 P.2d 662 (overruled on other grounds, Essex Ins. Co. v. Moose’s Saloon, Inc., 2007 MT 202, ¶ 16, 338 Mont. 423, 166 P.3d 451). Nor did Jacobsen cross-appeal the District Court’s refusal, in its January 30, 2012, class certification order, to address his “fall-back Rule 23(b)(3) theory” because of the “cursory nature of Plaintiff’s briefing and logical inconsistency of this theory with his primary Rule 23(b)(2) theory.” He similarly fails on appeal to develop his arguments or to address the separate Rule 23(b)(3) requirements of predominance and superiority. ¶101 In conclusion, because Jacobsen cannot establish all of the requirements of the rule, I dissent from the Court’s decision to uphold Rule 23(b)(2) class certification. /S/ BETH BAKER Justice Jim Rice joins in the dissenting Opinion of Justice Baker. /S/ JIM RICE 69 Justice Laurie McKinnon, dissenting. ¶102 I dissent from the Court’s decision. As explained below, the case the Court decides today is not the case that was presented to us. This class action, as argued by Jacobsen and certified by the District Court, is one for declaratory relief under the Uniform Declaratory Judgments Act (Title 27, chapter 8, MCA). The class remedies are a declaratory judgment, an injunction, punitive damages, and attorney’s fees. The injunction gives class members the option of returning to the position they were in when they initially filed their claims, i.e., before Allstate applied the CCPR to them. This is not a class action to determine liability for damages under the Unfair Trade Practices Act (UTPA; Title 33, chapter 18, MCA). Jacobsen did not frame the class claim pursuant to Rule 23(b)(2) as one that would lead to compensatory damages; to the contrary, he conceded from the outset that some of the putative class members may have suffered no individual harm from Allstate’s use of the CCPR. All he requested was an injunction “to prohibit Allstate from using its CCPR program, to re-open improperly settled claims, and for disgorgement of illicit profits from the unlawful program.” The District Court, correspondingly, did not certify any claims or remedies under the UTPA. ¶103 This Court, however, proceeds to repackage this case as a UTPA action. One facet of Allstate’s liability is to be decided in a class trial, after which further liability determinations and assessments of damages are to be made in ensuing individual trials. I disagree with this 70 sua sponte reworking of the case. Aside from being improper appellate practice, the scheme the Court has devised here distorts the rules for certifying a class under Rule 23(b)(2) and infringes class members’ due process rights. ¶104 The ensuing discussion relates primarily to my disagreement with the Court’s remaking of the case and the Court’s approach to Rule 23(b)(2) certification. However, like Justice Baker, I also harbor reservations about whether the threshold requirements of Rule 23(a) have been met. I address those concerns at the end of this Dissent. I. The District Court’s Construction of the Class Claim and Remedies ¶105 Jacobsen’s Fourth Amended Complaint is far from a model of clarity. In fact, the District Court noted in its class-certification Order that there is “considerable pleading imprecision on [the] face” of the complaint. This Court, likewise, acknowledges that “Jacobsen’s requested relief and alleged bases for damages are not entirely clear.” Opinion, ¶ 40. ¶106 Faced with this pleading imprecision, the District Court liberally “construed” Jacobsen’s Fourth Amended Complaint and his arguments supporting class certification so as to arrive at class claims and remedies that could “minimally” satisfy the criteria of Rule 23. Jacobsen certainly benefitted from the District Court’s efforts in this regard, and it must be noted that, just as he has not contested other aspects of the District Court’s decision (see e.g. Opinion, ¶ 62, ¶ 63 n. 9), Jacobsen also has not cross-appealed from the District Court’s ultimate determination of the class claim and the class remedies. 71 ¶107 The District Court perceived both individual and class claims in the Fourth Amended Complaint. In identifying the class claim, the District Court found as follows: Separate and apart from the individual claims asserted in this case, the court construes the substantive essence of Plaintiff’s asserted class claim to be that, irrespective of individual outcomes, the unrepresented segment adjustment practices specified in Allstate’s CCPR Implementation Manual (Tort States) (hereinafter Casualty CCPR) constitute a common pattern and practice in violation of §§ 33-18-201(1) and (6), MCA, as generally applied to the class as a whole, thereby resulting in indivisible harm to the class as a whole by operation of Allstate’s own zero-sum economic theory and the resulting inversely proportional relationship between Allstate’s profit increases and corresponding decreases in the total amount of compensation paid to the class of unrepresented claimants as a whole. A critical term in this construction of the class claim is “indivisible harm to the class as a whole.” This language is important because, as explained below, it reflects the limited claim and remedies that the District Court had in mind, and because this Court’s revision of the District Court’s language dramatically alters the nature of this case. ¶108 Jacobsen requested class certification pursuant to Rule 23(b)(2). “ ‘The key to the [Rule 23](b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’ ” Diaz v. Blue Cross & Blue Shield of Mont., 2011 MT 322, ¶ 42, 363 Mont. 151, 267 P.3d 756 (brackets in original) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___, 131 S. Ct. 2541, 2557 (2011)). As the Supreme Court further explained: In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member 72 would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages. Wal-Mart, 131 S. Ct. at 2557 (emphasis in original). ¶109 The District Court construed Jacobsen’s substantive arguments mindful of these principles, correctly recognizing that Rule 23(b)(2) requires an indivisible remedy and does not permit class certification for purposes of individualized awards of monetary damages. The court construed Jacobsen’s requested class relief under Rule 23(b)(2) to consist of “a claim for class-wide declaratory, injunctive, and incidental monetary relief (equitable disgorgement and punitive damages).” The District Court declined to certify the equitable disgorgement remedy on the ground that it was cumulative to the injunctive relief, but the court otherwise certified the class relief Jacobsen sought. Specifically, the District Court certified the following claim and remedies: (2) Class Action Claim. The certified class claim is that: (A) the Casualty CCPR’s unrepresented segment adjusting practices are a common pattern and practice in violation of §§ 33-18-201(1) and (6), MCA, as generally applied to the class of unrepresented claimants as a whole; (B) Allstate’s common, systematic use of this pattern and practice in Montana caused indivisible harm to the class as a whole by operation of its zero-sum economic theory and the resulting inversely proportional relationship between Allstate profit increases and corresponding decreases in the total amount of compensation paid to the class of unrepresented claimants as a whole; and (C) Allstate acted with “actual malice,” as defined by § 27-1-221(2), MCA, by intentionally, deliberately, and consciously creating 73 and disregarding a high probability that the net effect of its Casualty CCPR’s unrepresented segment practices would result in net settlement payouts to the class as a whole less than the net amount previously sufficient to fully and fair[ly] settle unrepresented claims under Montana law; (3) Class Action Remedies. The certified class remedies available as a matter of law on proof of the certified class claim are: (A) declaratory judgment adjudicating the constituent assertions of the certified class claim; (B) mandatory injunction requiring Allstate to: (1) give all class members court-approved notice of the right and opportunity to obtain re-opening and re-adjustment of their individual claims by timely returning a proof of claim form; and (2) re-open and re-adjust each individual claim upon receipt of a timely filed proof of claim; (C) class-wide punitive damages pursuant to §§ 27-1-220 and 27-1-221(2), MCA (actual malice), predicated on the above- referenced class-wide conduct; and (D) common fund recovery of class action attorney fees and costs upon a class-wide punitive damages award[.] ¶110 With respect to establishing the “indivisible harm” asserted in the Class Action Claim, the District Court explained that the occurrence and extent of the actual harm common to the class as a whole is ascertainable and at least generally measurable on an indivisible class-wide basis without consideration of individual outcomes by comparative analysis of relevant industry performance data and internal Allstate performance data. Jacobsen’s theory is that if Allstate outperformed industry norms (in terms of profits and 74 reduced payouts) due to the CCPR, then the class members were indivisibly harmed.1 ¶111 Accordingly, setting aside the punitive damages and the common fund recovery,2the District Court certified only two class remedies. The first remedy is a declaration that the CCPR constitutes a per se prohibited claim settlement practice under § 33-18-201(1) and (6), MCA.3 The class trial must determine, therefore, that applying the CCPR was unlawful as to all class members or, conversely, to no class members. In a sense, this is analogous to deciding a facial challenge to a statute: to prevail on such a challenge, the plaintiff must show that “no set of circumstances exists under which the [statute] would be valid, i.e., that the law is unconstitutional in all of its applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S. Ct. 1184, 1190 (2008) (internal quotation marks omitted); see also Caldwell v. MACo Workers’ Comp. Trust, 2011 MT 162, ¶ 69, 361 Mont. 140, 256 P.3d 923 (Baker & Rice, JJ., dissenting). That is, in essence, what the certified class claim asserts regarding the CCPR: that no set of circumstances exists under which the CCPR would be valid. The CCPR is unlawful in all of its applications—as the theory goes—because the “attorney economics script” misrepresents facts and because the “fast 1 Jacobsen proffered several studies of Allstate’s performance. One such study—a 2007 report from the Consumer Federation of America—asserts that Allstate has been able “to outperform the industry by 20 percent” due to the CCPR. 2 I agree with the Court that the certification of classwide punitive damages was inappropriate. Not only would such an award implicate due process, Opinion, ¶¶ 77-78, but the District Court did not certify compensatory damages as a class remedy and, thus, there can be no award of classwide punitive damages, see Jacobsen v. Allstate Ins. Co., 2009 MT 248, ¶ 67, 351 Mont. 464, 215 P.3d 649. 3 “A person may not . . . (1) misrepresent pertinent facts or insurance policy provisions relating to coverages at issue; . . . [or] (6) neglect to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear; . . . .” Section 75 track” system and the “9-step process” are inherently incompatible with good-faith effectuation of fair and equitable settlements. If the class prevails on this claim, then the second remedy the District Court certified is an injunction requiring Allstate to allow each class member to return to square one, i.e., go back to the point when his or her claim was first filed, before Allstate applied the CCPR. ¶112 Importantly, the District Court did not certify any class claim or remedies under the UTPA itself. The UTPA recognizes “an independent cause of action [by an insured or a third-party claimant] against an insurer for actual damages caused by the insurer’s violation of subsection (1), (4), (5), (6), (9), or (13) of 33-18-201.” Section 33-18-242(1), MCA. In such action, “the court or jury may award such damages as were proximately caused by the violation of subsection (1), (4), (5), (6), (9), or (13) of 33-18-201,” as well as “[e]xemplary damages.” Section 33-18-242(4), MCA. That is not the nature of the class action certified by the District Court here. The parties’ arguments in the District Court, and the District Court’s ensuing analysis in its Order, confirm this conclusion. They also provide insight into the precise nature of the class claim, as follows. ¶113 First, in his briefs supporting class certification, Jacobsen asserted that this case is “squarely governed” by Ferguson v. Safeco Ins. Co. of Am., 2008 MT 109, 342 Mont. 380, 180 P.3d 1164. Of relevance, he quoted the following passage from that decision: The challenge here is not to an error in Safeco’s application of the “made-whole” rule to any given insured. Rather, this case challenges the procedures of a program of subrogation which systematically deprives all class 33-18-201, MCA. 76 members of any consideration of their “made-whole” rights. Thus, as Ferguson points out in her brief on appeal, her class claims do not seek a determination of entitlements for each class member and the payment of damages; rather, her class claims seek a declaratory ruling that will be enforced to compel Safeco to follow the legal standard in its subrogation program. Ferguson, ¶ 34. Jacobsen indicated that he was seeking the same sort of relief: a declaratory ruling that will be enforced to compel Allstate to stop using the CCPR. He further asserted that the “vehicle for class relief” under his Rule 23(b)(2) theory is an injunction requiring Allstate either to re-open and re-adjust the claims, or to disgorge the profits it made as a result of the CCPR. (As noted, the District Court chose the former.) Jacobsen did not assert any entitlement to compensatory damages for class members. ¶114 Second, in its brief seeking dismissal of the class claim, Allstate argued that Jacobsen had compromised the interests of class members by not seeking compensatory damages on their behalf. In response, Jacobsen argued that he was not required to assert claims for compensatory damages. He cited Lebrilla v. Farmers Group, Inc., 16 Cal. Rptr. 3d 25 (Cal. App. 4th Dist. 2004), for the proposition that there is no rule requiring a class representative to seek certification of all causes of action available to every member of the class. See Lebrilla, 16 Cal. Rptr. 3d at 40 (“Farmers is essentially asking us to hold a class cannot be certified anytime the class representative fails to seek certification of fewer than all causes of action. Of course there is currently no such rule.”). ¶115 Third, in its Order, the District Court recognized that there are “case-specific issues peculiar to individual claims” here. The court noted, for example, that whether liability for a 77 given claim had become “reasonably clear,” see § 33-18-201(6), MCA, is “a highly individualized, case-specific criteri[on].”4 The court noted the same thing with regard to “whether and to what extent individual class members ultimately received fair settlements.” The existence of such factual variations among claimants subjected to the CCPR would preclude classwide adjudication of Allstate’s liability for damages under § 33-18-242(1), MCA. But the District Court did not construe this case as such an action. The court instead construed Jacobsen’s class claim to be that Allstate’s use of the CCPR violated § 33-18-201(1) and (6), MCA, “irrespective of outcomes in individual cases.” The court observed that “the class-wide matter at issue is the indivisible net effect of the Casualty CCPR unrepresented segment practices on the class as a whole, irrespective of individual outcomes.” Accordingly, setting aside the statute’s case-specific criteria, the District Court reasoned that “§§ 33-18-201(1) and (6), MCA, essentially require Allstate to promptly, accurately, truthfully, fairly, and in good faith adjust bodily injury and property damage claims.” The court construed the class claim to be that Allstate’s use of the CCPR violates these general principles of § 33-18-201(1) and (6), MCA. ¶116 Fourth, the District Court recognized that Rule 23(b)(2) does not authorize class certification when each class member would be entitled to an individualized award of monetary damages. The court thus framed “the dispositive Rule 23(b)(2) issues” as “(1) whether the asserted class claim seeks permissible forms of injunctive relief that will 4 Again, § 33-18-201(6), MCA, prohibits an insurer from “neglect[ing] to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become 78 benefit the class as a whole and (2) whether as a matter of law the requested forms of monetary relief, however characterized, are permissible forms of Rule 23(b)(2) relief incidental to the predicate declaratory and injunctive relief from which they flow.” I discuss the meaning of “incidental” monetary relief below. See ¶ 134, infra. For present purposes, it suffices to note that it does not include individual claims for compensatory damages. The District Court expressly rejected Allstate’s contention that the class action here would “serve only to facilitate the award of damages.” ¶117 Finally, consistent with the foregoing points, the District Court cited Title 27, chapter 8, MCA (the Uniform Declaratory Judgments Act), as authority for the first certified class remedy and Title 27, chapter 19, MCA (authorizing injunctions), as authority for the second certified class remedy. The court did not rely on § 33-18-242, MCA, as authority for the class claim or the class remedy. In fact, the District Court rejected the proposition that Jacobsen’s class action is one that seeks “damages” under the UTPA: Here, as construed by the court, Plaintiff’s asserted UTPA-based class claim neither constitutes nor is tantamount to a claim for compensatory damages –it merely encompasses first and third-party . . . claims for declaratory relief and related equitable and punitive relief predicated on asserted class-wide violations of §§ 33-18-201(1) and (6), MCA. Allstate had pointed out in its brief opposing class certification that § 33-18-242, MCA, specifically authorizes damages—compensatory and punitive—for an insurer’s violation of the UTPA, not the equitable remedies that Jacobsen sought. See § 33-18-242(4), MCA. Allstate argued, therefore, that injunctive relief was not available to remedy the asserted reasonably clear.” 79 classwide violations of § 33-18-201(1) and (6), MCA. The District Court, however, interpreted our decision in Ferguson as approving a class action “distinct from an independent UTPA claim for damages under §§ 33-18-242(1) and (3), MCA.” The court concluded that this case was such an action, i.e., “a UTPA-based Rule 23(b)(2) class action claim for declaratory and derivative non-compensatory injunctive relief.” ¶118 In sum, the District Court attempted to construe Jacobsen’s filings to assert a class claim and class remedies that “minimally” satisfy the criteria of Rule 23(b)(2). The court recognized that Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class, and that Rule 23(b)(2) does not authorize class certification when each class member would be entitled to an individualized award of monetary damages. Diaz, ¶ 42; Wal-Mart, 131 S. Ct. at 2557. Construing Jacobsen’s filings, the District Court found that his “asserted UTPA-based class claim neither constitutes nor is tantamount to a claim for compensatory damages”; rather, what Jacobsen was asserting was “a UTPA-based Rule 23(b)(2) class action claim for declaratory and derivative non- compensatory injunctive relief.” The District Court observed that this claim is “distinct from an independent UTPA claim for damages under §§ 33-18-242(1) and (3), MCA.” ¶119 The class claim asserts what is in essence a facial challenge to the CCPR, alleging that the CCPR is per se unlawful as to all unrepresented claimants and that Allstate’s use of the CCPR caused “indivisible harm to the class as a whole” as shown “by comparative analysis of relevant industry performance data and internal Allstate performance data.” Jacobsen explained in the District Court that the claim “challenges Allstate’s systematic attempt to 80 settle claims below fair value.” In his view, “Allstate systematically promoted bad-faith adjusting and sought to undervalue claims.” Whether class members’ claims were, in fact, undervalued or settled unfairly is not the issue; the challenge is to Allstate’s alleged “systematic attempt” to settle claims below fair value. As Jacobsen further explains this theory in his brief on appeal, Allstate used “settlement guidelines below the level needed to fairly compensate claimants” which caused class members “indivisible legal injury”; i.e., “[a]ll members suffered legal injury through the use of a dishonest system, whether or not the monetary value of each settlement ultimately was unfair.” ¶120 Jacobsen and the District Court employ § 33-18-201(1) and (6), MCA, as the legal standard for judging the CCPR’s validity, but without consideration of the case-specific criteria contained in the statute (such as whether liability in a particular class member’s claim was “reasonably clear”). Under this approach, the issues to be determined at the class trial are: whether the “attorney economics script” misrepresents facts; whether the “fast track” system and the “9-step process” are inherently incompatible with good-faith effectuation of prompt, fair, and equitable settlements; and whether use of these programs caused indivisible harm to the class as a whole. If using the CCPR enabled Allstate to outperform the industry, and if the CCPR is facially unlawful, then class members suffered an indivisible legal injury. The proper remedy for this injury, the District Court determined, is injunctive relief “restoring interested class members and Allstate to the pre-settlement status quo.” This is the class action that the District Court certified and that Allstate appealed to this Court. II. This Court’s Remaking of the Class Claim and Remedies 81 ¶121 The Court, on its own initiative, fundamentally revises this framework. The Court begins with the erroneous premise that the District Court formulated the class claim using the “indivisible harm to the class as a whole” language “so as to justify the entry of a class-wide punitive damages award.” Opinion, ¶ 47. That is simply incorrect. The District Court used this language because indivisibility is what is needed to certify a class under Rule 23(b)(2), Diaz, ¶ 42; Wal-Mart, 131 S. Ct. at 2557, and because that is what Jacobsen had asserted in his pleadings and arguments. ¶122 Nevertheless, based on its mistaken assumption about the District Court’s intent, the Court proceeds to revise the class claim as follows (underlining added): As originally certified: “(B) Allstate’s common, systematic use of this pattern and practice in Montana caused indivisible harm to the class as a whole by operation of its zero-sum economic theory and the resulting inversely proportional relationship between Allstate profit increases and corresponding decreases in the total amount of compensation paid to the class of unrepresented claimants as a whole.” As revised by the Court: “(B) Allstate’s common, systematic use of this pattern and practice in Montana resulted in damages to the members of the class by operation of its zero-sum economic theory and the resulting inversely proportional relationship between Allstate profit increases and corresponding decreases in the total amount of compensation paid to the class of unrepresented claimants as a whole.” Opinion, ¶ 47. The Court then, on its own initiative, augments the relief available to the class members. In addition to the declaratory and injunctive remedies certified by the District Court, the Court announces that the class trial will “set the stage” for “individual monetary relief” in “later individual trials.” Opinion, ¶¶ 43, 46, 49, 90. The Court explains that the class trial will determine Allstate’s liability for a UTPA violation, and the later individual trials will 82 determine class members’ “compensatory damages.” Opinion, ¶¶ 49, 57, 66, 90. The Court also announces that class members may seek relief for both “economic” and “emotional” injury, Opinion, ¶ 55—something that Jacobsen never asserted, and that the District Court never certified, in the Rule 23(b)(2) class claim and remedies. ¶123 This gratuitous reworking of the case is in direct contradiction to the District Court’s certification of this case as a class action “distinct from an independent UTPA claim for damages under §§ 33-18-242(1) and (3), MCA.” It also contradicts the District Court’s statement that, “as construed by the court, Plaintiff’s asserted UTPA-based class claim neither constitutes nor is tantamount to a claim for compensatory damages.” In fact, the only monetary relief that Jacobsen discussed in his argument supporting class certification was “disgorgement of illicit profits from the unlawful [CCPR] program.” Acknowledging the limitations of Rule 23(b)(2) certification, Jacobsen did not propose that the class action would result in monetary damages under § 33-18-242, MCA. His theory, rather, was unjust enrichment—that Allstate had unjustly enriched itself at the expense of class members by using patently unlawful claim settlement practices, as evidenced by Allstate’s ability to outperform the industry. The District Court accepted this theory, but found that an injunction allowing class members to return to square one, rather than an injunction requiring Allstate to “disgorge illicit profits,” would be the proper remedy. The Court thus errs in reframing Jacobsen’s class claim as a springboard for future individual trials on damages. The class claim, as construed and certified by the District Court, does not determine whether Allstate is liable for actual damages under the UTPA. The District Court did not certify a 83 class action under § 33-18-242, MCA; it certified a class action under Title 27, chapters 8 and 19, MCA. ¶124 “[A]ppellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” NASA v. Nelson, 562 U.S. ___, 131 S. Ct. 746, 756 n. 10 (2011) (internal quotation marks omitted). The Court’s choice to remake this class action disregards this fundamental premise of our adversarial system. The Court’s citation to § 3-2-204(1), MCA—see Opinion, ¶ 47— is clearly misplaced. That provision simply grants this Court authority to “affirm, reverse, or modify any judgment or order appealed from.” Section 3-2-204(1), MCA. It does not give this Court authority to fundamentally remake the case to state claims and remedies that the appellee neither asserted in the district court nor raised in a cross-appeal before this Court. Ironically, the Court uses the arguments of the appellant (Allstate) opposing class certification as justification to revise the class claim and remedies in a way that exposes the appellant to significantly greater liability. III. Flaws in the Court’s Remade Class Claim and Remedies ¶125 Besides the questionable procedural aspect of the Court’s action, the remade class claim and class remedies are flawed for additional reasons. ¶126 First, as an initial matter, the Court’s Opinion is internally inconsistent. Pursuant to the District Court’s Order, the class is seeking a declaratory judgment as to three issues: (A) that the CCPR violates § 33-18-201(1) and (6), MCA, as applied to the class of unrepresented claimants as a whole; (B) that Allstate’s systematic use of the CCPR “caused 84 indivisible harm to the class as a whole”; and (C) that Allstate acted with actual malice. See ¶ 109, supra. Now, under the Court’s rewording of issue (B), the class is seeking a declaratory judgment that Allstate’s systematic use of the CCPR “resulted in damages to the members of the class.” Opinion, ¶ 47. At the same time, however, the Court states repeatedly that whether class members suffered damages is to be determined in later individual trials. See Opinion, ¶ 46 (“Damages claims may be determined in later individual trials after [the] class trial . . . .”), ¶ 57 (the specifics of a class member’s injuries will “be aired in a later, individual suit for damages”), ¶ 66 (“The later individual trials would allow Allstate to present evidence that individual class members suffered no injury.”), ¶ 78 (“Here, adjudicating the requested injunctive and declaratory relief would not involve a . . . determination of compensatory damages.”), ¶ 90 (“the class members would be entitled to only the compensatory damages they can prove in the individual cases”). Our Opinion leaves the District Court and the parties guessing as to how the fact-finder in the class trial is to determine whether Allstate’s use of the CCPR “resulted in damages to the members of the class” when, under this Court’s decision, damages to the members of the class are to be determined in “later individual trials” at which Allstate may “present evidence that individual class members suffered no injury.” The Court offers no explanation for this incongruity—an incongruity that arose out of the Court’s decision to insert “damages” into the class claim. ¶127 Second, the question whether Allstate’s use of the CCPR “resulted in damages to the members of the class” cannot be answered on a classwide basis in any event. A claimant is 85 not damaged under § 33-18-201(6), MCA, unless the insurer’s liability for the claim was “reasonably clear.” A claimant is not damaged under § 33-18-201(1), MCA, unless the misrepresented facts were “pertinent” to coverages “at issue.” A claimant is not entitled to damages under the UTPA unless the alleged damages were “proximately caused” by the UTPA violation. Section 33-18-242(4), MCA. A claimant is not entitled to damages under the UTPA “if the insurer had a reasonable basis in law or in fact for contesting the claim or the amount of the claim.” Section 33-18-242(5), MCA. These are all highly individualized, case-specific criteria. ¶128 Third, under the legal authority discussed above and in Justice Baker’s Dissent, class certification under Rule 23(b)(2) is improper where the requested injunctive or declaratory relief would simply serve as a basis for eventually providing monetary relief. Dissent, ¶¶ 97-99; Wal-Mart, 131 S. Ct. at 2557 (“[Rule 23(b)(2)] does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.”). I agree with Justice Baker’s analysis and conclusion that the Rule 23(b)(2) class trial which the Court conceives in today’s Opinion is for the purpose of laying a foundation for individualized awards of monetary damages. Dissent, ¶ 99. This approach is wholly inconsistent with Rule 23(b)(2)’s history and purpose.5 As the Supreme Court explained: 5 Prior to 1962, a form of class action was permitted in Montana under § 93-2821, RCM (1947). This statute, originally enacted by the first territorial Legislature in 1864 as part of the Bannack Statutes, simply provided that “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before 86 Because Rule 23 “stems from equity practice” that predated its codification, Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997), in determining its meaning we have previously looked to the historical models on which the Rule was based, Ortiz v. Fibreboard Corp., 527 U.S. 815, 841-845 (1999). As we observed in Amchem, “[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of what (b)(2) is meant to capture. 521 U.S., at 614. In particular, the Rule reflects a series of decisions involving challenges to racial segregation—conduct that was remedied by a single classwide order. In none of the cases cited by the Advisory Committee as examples of (b)(2)’s antecedents did the plaintiffs combine any claim for individualized relief with their classwide injunction. Wal-Mart, 131 S. Ct. at 2557-58 (brackets in original). ¶129 Fourth, using class certification under Rule 23(b)(2) to “set the stage” for later individual trials on compensatory damages, Opinion, ¶¶ 46, 49, 90, presents due process problems. Classes certified under Rule 23(b)(1) and (b)(2) are “mandatory classes: The Rule provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action.” Wal-Mart, 131 S. Ct. at 2558; see also M. R. Civ. P. 23(c)(2). Rule 23(b)(3), on the other hand, the court, one or more may sue or defend for the benefit of all.” In 1961, the Legislature repealed § 93-2821, RCM, and various other statutes and replaced them with the Montana Rules of Civil Procedure, which took effect on January 1, 1962. See Laws of Montana, 1961, ch. 13. Montana’s Rule 23 was identical in all material respects to then-existing Rule 23 of the Federal Rules of Civil Procedure. In 1966, several of the federal rules were amended, including Rule 23. See 39 F.R.D. 69, 94-98 (1966). Correspondingly, this Court issued an order in 1967 adopting amendments to the Montana Rules of Civil Procedure. In re Montana Rules of Civil Procedure, No. 10750-7 (Sep. 29, 1967, filed Oct. 10, 1967). As noted in our order, the amendments to the Montana Rules were “patterned after either the 1963 or the 1966 amendments to the Federal Rules,” the rationale being that it “would be desirable to maintain uniformity with the Federal Rules insofar as they are suitable to Montana practice.” In this regard, we adopted Federal Rule 23 in its entirety. In light of this background, the history of Federal Rule 23 is directly applicable and relevant to Montana Rule 23. See also Sieglock v. Burlington N. Santa Fe Ry. Co., 2003 MT 355, ¶ 10, 319 Mont. 8, 81 P.3d 495 (because Montana Rule 23 is identical to federal Rule 23, “federal authority is instructive on the issue of class certification”). 87 allows class certification in a much wider set of circumstances but with greater procedural protections. Its only prerequisites are that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3). And unlike (b)(1) and (b)(2) classes, the (b)(3) class is not mandatory; class members are entitled to receive “the best notice that is practicable under the circumstances” and to withdraw from the class at their option. See Rule 23(c)(2)(B). Wal-Mart, 131 S. Ct. at 2558; see also M. R. Civ. P. 23(b)(3), (c)(2)(B). ¶130 The absence of such procedural protections in a class action predominantly for monetary damages violates due process. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 987 (9th Cir. 2011) (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985)).6 According to the Supreme Court, [t]he procedural protections attending the (b)(3) class—predominance, superiority, mandatory notice, and the right to opt out—are missing from (b)(2) not because the Rule considers them unnecessary, but because it considers them unnecessary to a (b)(2) class. When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Predominance and superiority are self-evident. But with respect to each class member’s individualized claim for money, that is not so—which is precisely why (b)(3) requires the judge to make findings about predominance and superiority before allowing the class. Similarly, (b)(2) does not require that class members be given notice and opt-out rights, presumably because it is thought (rightly or wrongly) that notice has no purpose when the class is mandatory, and that depriving people of their right to sue in this manner complies with the Due Process Clause. In the context of a class action 6 Phillips Petroleum held that an absent plaintiff is entitled to procedural due process protection before he may be bound concerning a claim for money damages or similar relief at law. The plaintiff must be given “notice,” “an opportunity to be heard and participate in the litigation,” and “an opportunity to remove himself from the class by executing and returning an ‘opt out’ or ‘request for exclusion’ form to the court.” 472 U.S. at 811-12, 105 S. Ct. at 2974. 88 predominantly for money damages we have held that absence of notice and opt-out violates due process. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). While we have never held that to be so where the monetary claims do not predominate, the serious possibility that it may be so provides an additional reason not to read Rule 23(b)(2) to include the monetary claims here. Wal-Mart, 131 S. Ct. at 2558-59 (emphasis in original). ¶131 That is precisely the problem the Court has created by transforming this case into a class action under § 33-18-242, MCA. Apparently, Allstate’s liability to class members under § 33-18-242(1), MCA, will be determined in a class trial, which will “set the stage” for later individual trials on damages under § 33-18-242(4), MCA. Opinion, ¶¶ 49, 90. Because this class action is certified under Rule 23(b)(2), the class is mandatory and the predominance, superiority, notice, and opt-out protections of Rule 23(b)(3) do not apply. If Jacobsen loses on the merits, then the class members’ individual claims for damages will be seriously compromised, if not totally barred. See Randall v. Rolls-Royce Corp., 637 F.3d 818, 820 (7th Cir. 2011). This approach of “depriving people of their right to sue” by approving a mandatory class absent notice and opt-out rights violates the Due Process Clause. Wal-Mart, 131 S. Ct. at 2559. ¶132 The fact that the class trial may also result in injunctive relief (in addition to the compensatory damages the Court envisions in later individualized trials), Opinion, ¶ 90, does not alter this conclusion. Even if injunctive relief is the “predominant” remedy, [t]he mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify elimination of Rule 23(b)(3)’s procedural protections: It neither establishes the superiority of class adjudication over individual adjudication nor cures the notice and opt-out problems. We fail to see why the Rule should 89 be read to nullify these protections whenever a plaintiff class, at its option, combines its monetary claims with a request—even a “predominating request”—for an injunction. Wal-Mart, 131 S. Ct. at 2559 (emphases in original); see also Ellis, 657 F.3d at 986-87. ¶133 For all of the foregoing reasons, the Court errs in remaking this class action into one that determines liability for damages under § 33-18-242, MCA. Before concluding this discussion, it is necessary to address McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012), upon which the Court relies heavily. See Opinion, ¶¶ 41, 42, 43, 45, 46, 57, 66. The plaintiffs in that case sought certification, under Rule 23(b)(2), to determine whether Merrill Lynch was engaged in practices that had a disparate impact on members of the class in violation of federal antidiscrimination law, and to provide corresponding injunctive relief. McReynolds, 672 F.3d at 483. The plaintiffs also sought certification, under Rule 23(b)(3), for compensatory and punitive damages; however, such certification was not at issue on appeal. McReynolds, 672 F.3d at 483. The issues were whether the plaintiffs could obtain interlocutory review of the district court’s certification decision and whether, under Wal-Mart, Merrill Lynch’s delegation of decision-making authority to local managers precluded certification of a classwide claim for injunctive relief. McReynolds, 672 F.3d at 484-91. The Court of Appeals (speaking through Judge Posner) noted that “the only issue of relief at present is whether to allow the plaintiffs to seek class- wide injunctive relief” under Rule 23(b)(2). McReynolds, 672 F.3d at 491. He concluded that certification for this purpose was appropriate. McReynolds, 672 F.3d at 491-92. Then, near the end of the opinion, Judge Posner opined that if the classwide issue were ultimately 90 resolved in the plaintiffs’ favor (i.e., with a finding that Merrill Lynch’s policies cause racial discrimination and are not justified by business necessity), then there could be hundreds of separate suits for back pay. McReynolds, 672 F.3d at 492. He did not hold, however, as the Court implies, that Rule 23(b)(2) may be used as an integral component of a larger damages action. Indeed, such a holding would have been inconsistent with Seventh Circuit precedent. ¶134 In Randall, the Court of Appeals (again speaking through Judge Posner) rejected the plaintiffs’ attempt to cloak a damages action in a Rule 23(b)(2) certification. Judge Posner observed that “[c]lass action lawyers like to sue under [Rule 23(b)(2)] because it is less demanding, in a variety of ways, than Rule 23(b)(3) suits, which usually are the only available alternative. Of particular significance, plaintiffs may attempt to shoehorn damages actions into the Rule 23(b)(2) framework, depriving class members of notice and opt-out protections.” Randall, 637 F.3d at 825 (citations and internal quotation marks omitted). Judge Posner noted that it may be permissible in a Rule 23(b)(2) action to grant monetary relief that is incidental to the injunctive or declaratory relief, but he cautioned that “incidental” here means “requiring only a mechanical computation,” Randall, 637 F.3d at 825; in other words, “the calculation of monetary relief will be mechanical, formulaic, a task not for a trier of fact but for a computer program,” Johnson v. Meriter Health Servs. Employee Ret. Plan, 702 F.3d 364, 372 (7th Cir. 2012).7 See also Lemon v. Intl. Union, 216 F.3d 577, 581 (7th Cir. 2000) (incidental damages do not depend in any significant way on 7 Judge Posner, writing for the court in Johnson, 702 F.3d at 372, opined that Wal-Mart “left intact the authority to provide purely incidental monetary relief in a (b)(2) class action,” but he 91 the intangible, subjective differences of each class member’s circumstances and do not require additional hearings to resolve the disparate merits of each individual’s case). Judge Posner explained in Randall that the plaintiffs’ monetary claims for back pay were not “incidental” under this definition because calculating the amount of back pay to which the members of the class would be entitled if the plaintiffs prevailed would require 500 separate hearings. The monetary tail would be wagging the injunction dog. An injunction thus “would not provide ‘final’ relief as required by Rule 23(b)(2). An injunction is not a final remedy if it would merely lay an evidentiary foundation for subsequent determinations of liability.” 637 F.3d at 826 (quoting Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 893 (7th Cir. 2011)). ¶135 Kartman likewise undercuts this Court’s reliance on McReynolds. In the remade class action devised by the Court, the class trial is to determine whether Allstate violated the UTPA, and if a violation is found, then “compensatory damages” for “economic” and “emotional” injuries and “underpayment” of benefits is to be adjudicated in later individual trials. Opinion, ¶¶ 49, 55, 68, 90. In the later individual trials, Allstate may present evidence that individual class members suffered no injury. Opinion, ¶ 66. Thus, it may turn out that Allstate is liable in damages to some class members and not others. Under this scheme, “[Allstate’s] liability cannot be determined on a class-wide basis, but instead requires individualized factual inquiries into the merits of each [class member’s] claim.” Kartman, acknowledged that the Ninth Circuit has expressed doubt about this in Ellis, 657 F.3d at 986. 92 634 F.3d at 893. That is not a proper use of Rule 23(b)(2). Reviewing a similar scheme, the Kartman court observed: The [district court] judge said he would use the Rule 23(b)(2) proceeding to assess State Farm’s “liability” on the damages claims. Perhaps by this the judge meant that he intended to use the Rule 23(b)(2) class proceeding to adjudicate only those common issues pertaining to State Farm’s liability for breach of contract and bad faith, while reserving the more claimant-specific issues—such as the calculation of damages—for subsequent individual adjudication. However, as we have explained, Rule 23(b)(2) governs class claims for final injunctive or declaratory relief and is not appropriately invoked for adjudicating common issues in an action for damages. A damages class may be certified under Rule 23(b)(3) and particular issues identified for resolution on a class-wide basis pursuant to Rule 23(c)(4). Or, in an appropriate case, a Rule 23(b)(2) class and a Rule 23(b)(3) class may be certified where there is a real basis for both damages and an equitable remedy. As we have explained, that is not the case here; neither Rule 23(b)(3) nor Rule 23(c)(4) is implicated. Kartman, 634 F.3d at 895 (emphases in original, citations omitted); see also e.g. Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 499 (7th Cir. 2012) (“a claim for class-wide injunctive and declaratory relief does not satisfy Rule 23(b)(2) if as a substantive matter the relief sought would merely initiate a process through which highly individualized determinations of liability and remedy are made”). McReynolds did not overrule these precedents, and this Court misreads the McReynolds opinion in suggesting otherwise. ¶136 For the reasons noted by the Court and Justice Baker, Rule 23(b)(3) is unavailable to Jacobsen as a basis for certifying a class action. Opinion, ¶ 62; Dissent, ¶ 100. His class claim is valid, if at all, under Rule 23(b)(2) only. In this regard, setting aside my concerns about commonality, typicality, and adequacy (discussed below), the District Court construed Jacobsen’s filings to assert a plausible Rule 23(b)(2) class action—one that determines 93 whether the program at issue (the CCPR) is per se invalid as to all class members, and that provides a single injunction allowing all class members (in the event the CCPR is found unlawful) to have their claims re-opened and re-adjusted. Jacobsen’s class claim, the District Court found, is “a UTPA-based Rule 23(b)(2) class action claim for declaratory and derivative non-compensatory injunctive relief”; it “neither constitutes nor is tantamount to a claim for compensatory damages.” Seventh Circuit precedent, including McReynolds, does not support our converting this Rule 23(b)(2) action for narrow injunctive relief into a broad Rule 23(b)(3) action for compensatory damages—particularly without the procedural protections that attend a Rule 23(b)(3) certification. If anything, the cases cited above repudiate this approach. ¶137 In sum, the Court’s remade class claim and class remedies are, in my view: contrary to the District Court’s construction of Jacobsen’s claim; internally inconsistent; incapable of being determined on a classwide basis; not proper for certification under Rule 23(b)(2); and violative of class members’ due process rights. For all of these reasons, I cannot join the Court’s Opinion. IV. Rule 23(a) Requirements ¶138 As a final matter, I briefly discuss my concerns relating to the requirements of Rule 23(a). ¶139 First, I believe the Court should definitively state what standard is to be applied when assessing commonality under Rule 23(a)(2). Opinion, ¶¶ 33, 50 (declining to resolve this question). The Court, and Justice Baker in her Dissent, acknowledge confusion in our 94 caselaw regarding this issue. Despite “this Court’s long history of relying on federal jurisprudence when interpreting the class certification requirements of Rule 23,” Chipman v. N.W. Healthcare Corp., 2012 MT 242, ¶ 52, 366 Mont. 450, 288 P.3d 193, we stated in Mattson v. Mont. Power Co. (Mattson III), 2012 MT 318, ¶ 37, 368 Mont. 1, 291 P.3d 1209, that “[t]he question arises as to whether Montana . . . should abandon its ‘permissive’ approach to Rule 23(a)(2)’s commonality requirement in favor of the Wal-Mart majority’s more stringent standard.” We have not yet answered that question. We have avoided the issue here, as we did in Mattson III, by indicating that the more stringent Wal-Mart standard was satisfied in any event. Opinion, ¶¶ 33, 50; Mattson III, ¶ 37. Yet, evaluating the propriety of the District Court’s decision pursuant to Wal-Mart, and conducting our own exhaustive analysis under the Wal-Mart standard, without definitively setting forth our standard of review, emphasizes the need for us to provide direction in this area of law. Without guidance, this issue will likely be raised repeatedly in the district courts. And, absent our directive to the contrary, it is likely that district courts will continue to assess commonality under the more stringent Wal-Mart standard, as fewer issues are left to be raised on appeal. The District Court here analyzed the facts and law pursuant to Wal-Mart. The Court today has similarly conducted its analysis pursuant to Wal-Mart. The question still remains, however, as to whether the Wal-Mart standard is the controlling standard in Montana. While I understand the necessity for robust adversarial argument and briefing, as well as an appropriate factual scenario, I think litigants and the trial courts need a definitive 95 statement from this Court as to what standard is to be used. I believe the Court does the bench and bar a disservice in neglecting to address the appropriate standard to apply. ¶140 Second, I do not believe that the class claim here—neither the one certified by the District Court nor the one remade by this Court—satisfies the commonality requirement of Rule 23(a)(2). In my view, there are no questions of law or fact common to the class. Jacobsen’s class claim is that the CCPR is per se invalid under subsections (1) and (6) of § 33-18-201, MCA. These two subsections, however, demand consideration of highly individualized, case-specific criteria. The District Court recognized this, but concluded that a common question of law or fact could be formulated for the class by essentially setting aside the case-specific criteria of subsections (1) and (6) and evaluating the CCPR’s validity based on the general principles embodied in these two provisions. As discussed, the District Court reasoned that “§§ 33-18-201(1) and (6), MCA, essentially require Allstate to promptly, accurately, truthfully, fairly, and in good faith adjust bodily injury and property damage claims.” The District Court construed the class claim to be that Allstate’s use of the CCPR violates these general principles, “irrespective of individual outcomes.” This Court apparently adopts the same analysis. Opinion, ¶ 40. ¶141 I question this approach of evaluating the validity of the CCPR—or any other settlement practice, for that matter—under § 33-18-201, MCA, based on certain criteria that are selectively plucked from the statute, while ignoring other criteria in the statute. It strikes me that this approach violates the cardinal rule that, “[i]n the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance 96 contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. The Legislature crafted the various subsections of § 33-18-201, MCA, to address specific settlement practices. Subsection (1) states that an insurer may not “misrepresent pertinent facts or insurance policy provisions relating to coverages at issue.” Subsection (6) states that an insurer may not “neglect to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear.” I do not subscribe to the view that the fact-finder in a class trial can determine whether the CCPR is per se invalid under subsections (1) and (6)—as to all class members— by simply disregarding the individualized inquiry plainly required by the statute as to such questions as whether liability had become reasonably clear, whether the allegedly misrepresented facts were pertinent to coverages at issue, and whether Allstate had a reasonable basis in law or in fact for contesting the claim or the amount of the claim (see § 33-18-242(5), MCA). ¶142 I do not mean to suggest that no class action is possible under § 33-18-201, MCA. I do believe, however, that the supposed common question here—whether Allstate’s use of the CCPR violates § 33-18-201(1) and (6), MCA—cannot be answered for an entire class of claimants. Whether Allstate deliberately crafted the CCPR in such a way as to avoid review on a classwide basis (an allegation that surfaced in the District Court proceedings) is beside the point. Our duty here is to ascertain whether, under the criteria of § 33-18-201(1) and (6), MCA, there is a question of law or fact that “is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the 97 validity of each one of the claims in one stroke.” Wal-Mart, 131 S. Ct. at 2551. In my view, there is no such common question, and I thus would hold that commonality, under Rule 23(a)(2), is not met. ¶143 Third, I also share Justice Baker’s concerns about whether Jacobsen meets the typicality and adequacy requirements of Rule 23(a)(3) and (4). Dissent, ¶ 96 n. 2. The named plaintiff’s claim will be typical of the class where there is a nexus between the injury suffered by the plaintiff and the injury suffered by the class. McDonald v. Washington, 261 Mont. 392, 402, 862 P.2d 1150, 1156 (1993). Such nexus normally exists where proving the named plaintiff’s claim will necessarily prove all class members’ claims. McDonald, 261 Mont. at 402, 862 P.2d at 1156. ¶144 Here, Jacobsen does not contend that the amount of his settlement was unfair or inequitable or that his claim was not promptly resolved. Section 33-18-201(6), MCA. Moreover, he cannot claim that Allstate, through the CCPR’s “attorney economics script,” misrepresented pertinent facts or insurance policy provisions relating to coverages at issue to Jacobsen’s detriment, § 33-18-201(1), MCA, given that he actually consulted and retained counsel who assisted him with settling his claim. Jacobsen’s claim was adjusted to a represented settlement. He therefore is not a member of the class, which is defined as all unrepresented claimants “whose claims were adjusted by Allstate in Montana to an unrepresented settlement since deployment” of the CCPR. Jacobsen has already had his claim re-opened and re-adjusted for payment of additional settlement amounts for his bodily injury claim. Consequently, he cannot have his claim re-opened. Further, Jacobsen no 98 longer pursues a property damage claim, which is included in the class definition, and he is a third-party claimant seeking emotional distress damages. He thus would not be representative of first-party claimants or those claimants with property damage. Lastly, Jacobsen’s claims will be subject to unique defenses, not the least of which are: different statutes of limitations for first- and third-party claims; his admission that he spoke to an attorney but chose not to hire one; the basis of his emotional distress; and his desire to have an early settlement. I thus would hold that Jacobsen’s claims are not typical and that he is not an adequate representative of the class under Rule 23(a)(3) and (4), respectively. V. Conclusion ¶145 In conclusion, I believe the Court has wrongly remade this case into an action for damages under the UTPA (§ 33-18-242, MCA) and, in so doing, has distorted the rules for certifying a class under Rule 23(b)(2) and jeopardized class members’ due process rights. I further believe that the Rule 23(a) requirements of commonality, typicality, and adequacy are not met here. For all of the reasons set forth above, I respectfully dissent. /S/ LAURIE McKINNON | August 29, 2013 |
5b744b5c-19b1-4bb0-8ab9-55c21c911ebb | Daniel Woods v. State | 2013 MT 212N | DA 12-0558 | Montana | Montana Supreme Court | DA 12-0558 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 212N DANIEL J. WOODS, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 12-930 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Daniel J. Woods (self-represented), Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant Attorney General, Helena, Montana Fred R. Van Valkenberg, Missoula County Attorney; Susan E. Boylan, Deputy County Attorney, Missoula, Montana Submitted on Briefs: July 10, 2013 Decided: July 30, 2013 Filed: __________________________________________ Clerk July 30 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Daniel J. Woods appeals the District Court’s August 13, 2012, Opinion and Order dismissing his petition for postconviction relief. We affirm. ¶3 In 2010 Woods agreed to plead guilty to incest (§ 45-5-507, MCA) in return for a recommended sentence of 40 years with 15 years suspended. The District Court’s sentence provided that Woods would not be eligible for parole during the first 25 years as provided in § 45-5-507(5), MCA, and that the exceptions to mandatory minimum sentences in § 46-18- 222, MCA, did not apply. Woods appealed and this Court affirmed. State v. Woods, 2012 MT 11N, 364 Mont. 549. Woods subsequently moved to withdraw his guilty plea. The District Court denied that motion and Woods did not appeal. ¶4 In August 2012, Woods filed a petition for postconviction relief asserting that his attorney had provided ineffective assistance during the plea and sentencing proceedings. Woods contends that his attorney failed to contact persons who could testify to his good character; failed to advise him of the statutory 25-year restriction on parole eligibility; told him he would be eligible for parole after serving one-quarter of the sentence; failed to request a hearing on inaccuracies in the presentence report; and failed to request additional time to respond to the State’s sentencing memorandum. As in his prior direct appeal and his 3 motion to withdraw the guilty plea, Woods seeks to overturn the restriction on his parole eligibility. ¶5 The District Court found that Woods had ample opportunity to respond to the State’s sentencing memorandum; that when Woods changed his plea to guilty he was expressly informed that the District Court could restrict his parole eligibility; and that Woods’ attorney did challenge information in the presentence report. Further, the District Court determined that Woods’ claims had either been addressed on direct appeal, or could have been addressed on direct appeal, and were therefore barred by § 46-21-105(2), MCA (barring postconviction relief claims that were or could have been raised on direct appeal). Last, Woods’ allegations were supported only by his own conclusory statements, which are insufficient to support a petition for postconviction relief. Kelly v. State, 2013 MT 21, ¶ 9, 368 Mont. 309, 300 P.3d 120. ¶6 Woods did not meet the heavy burden of establishing that his attorney was ineffective, and has not established that the District Court erred in denying his petition for postconviction relief. Baca v. State, 2008 MT 371, ¶ 16, 346 Mont. 474, 197 P.3d 948; Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. ¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for memorandum opinions. The issues in this case are controlled by settled Montana law, which the District Court correctly interpreted. ¶8 Affirmed. /S/ MIKE McGRATH 4 We concur: /S/ LAURIE McKINNON /S/ PATRICIA COTTER /S/ BETH BAKER /S/ BRIAN MORRIS | July 30, 2013 |
2f6e79bf-5e30-4686-b186-5038a81aa684 | State v. Lee | 2013 MT 183N | DA 12-0556 | Montana | Montana Supreme Court | DA 12-0556 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 183N STATE OF MONTANA, Plaintiff and Appellee, v. SHANE ALAN LEE, Defendant and Appellant. APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Richland, Cause No. DC 09-51 Honorable Katherine M. Bidegaray, Presiding Judge COUNSEL OF RECORD: For Appellant: Jeffrey S. Weikum, Pagel Weikum, PLLP, Bismarck, North Dakota For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana Mike Weber, Richland County Attorney, T.R. Halvorson, Deputy County Attorney, Sidney, Montana Submitted on Briefs: May 29, 2013 Decided: July 9, 2013 Filed: __________________________________________ Clerk July 9 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 On September 29, 2009, an Information was issued charging Shane Alan Lee with three criminal counts—felony burglary, misdemeanor theft, and felony forgery, occurring between July 20 and July 28, 2009. Lee allegedly entered his sister’s home while she was on vacation, stole her checkbook, and forged multiple checks. Counsel was assigned to Lee and he was released on bail with instructions to comply with specific release terms and conditions. In May 2010, Lee entered a plea of guilty to all counts. The District Court scheduled a sentencing hearing for August 10, 2010. Lee failed to appear and a bench warrant was issued. Lee was arrested on November 9, 2010. ¶3 A sentencing hearing was held on January 27, 2011, at which time testimony was presented on whether to sentence Lee to the Montana Department of Corrections (DOC) or Montana State Prison (MSP). Subsequently, Lee was sentenced as follows: felony burglary: DOC for 15 years, with 10 suspended, fined $1,000; misdemeanor theft: 6 months in the Richland County jail, all suspended; felony forgery: DOC for 15 years, with 10 suspended, fined $1,000. The three sentences were to run concurrently with one another but consecutively to Lee’s sentence in another criminal case. In July 2011, Lee was transferred to MSP. 3 ¶4 In October 2011, Lee filed a petition to amend judgment arguing that he had received a DOC sentence and he should not be in MSP. The State opposed the petition but the District Court granted it, declaring the first sentence null and void. Lee was released on bail to await resentencing. On July 4, 2012, while out on bail, Lee was arrested and charged with multiple felony and misdemeanor charges. ¶5 On July 17, 2012, the District Court conducted a second sentencing hearing. Lee was sentenced to 20 years with DOC with 15 suspended for felony burglary, and 15 years with DOC with 10 suspended for felony forgery, to run concurrently. He was fined $1,000 for each felony. No sentence was imposed for the misdemeanor theft charge as the earlier sentence had been discharged. The District Court expressly recommended that DOC place Lee where he could receive chemical dependency treatment. The court also asked if the parties had any questions regarding the new sentence. Lee had no questions nor did he object to the increased burglary sentence. Lee appeals. We affirm. ¶6 On appeal, Lee argues that the District Court erroneously lengthened his felony burglary sentence based upon the July 4 charges despite the court having issued an order expressly excluding the July 4 events and charges from consideration at the resentencing hearing. The State responds that Lee waived appellate review of this claim by failing to raise the issue with the District Court at sentencing. ¶7 This Court generally refuses to review issues that are raised for the first time on appeal. State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892. However, in State v. Lenihan, 184 Mont 338, 602 P.2d 997 (1979), we announced an exception to this “contemporaneous objection” rule. We stated that we will review a criminal sentence 4 that “is alleged . . . [to be] illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.” Lenihan, 184 Mont. at 343, 602 P.2d at 1000. In this case, Lee does not allege that his lengthened sentence was illegal or that it exceeded statutory mandates; he argues instead that the District Court lengthened his sentence based upon events the court stated it would not consider in resentencing. Consequently, the Lenihan exception does not apply. Because Lee failed to raise a contemporaneous objection to his sentence during his second sentencing hearing, he has waived the right to raise this issue for the first time on appeal. Kotwicki, ¶ 8. ¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The issue in this case is legal and is controlled by settled Montana law which the District Court correctly interpreted. We therefore affirm the District Court. /S/ PATRICIA COTTER We Concur: /S/ BETH BAKER /S/ LAURIE McKINNON /S/ JIM RICE | July 9, 2013 |
934a18fd-eb8a-4132-99fe-18f49377e689 | State v. Cline | 2013 MT 188 | DA 12-0492 | Montana | Montana Supreme Court | DA 12-0492 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 188 STATE OF MONTANA, Plaintiff and Appellee, v. CURTIS DONALD CLINE, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDC 2011-306 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender; Koan Mercer, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant Attorney General, Helena, Montana Leo J. Gallagher, Lewis and Clark County Attorney; Melissa Broch, Deputy County Attorney, Helena, Montana Submitted on Briefs: March 13, 2013 Decided: July 15, 2013 Filed: __________________________________________ Clerk July 15 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 The State of Montana (State) charged Curtis Cline (Cline) with theft by common scheme, in violation of § 45-6-301(a), MCA. Cline filed a motion to dismiss the charge. Cline argued that the charge violated his right not to be subject to double jeopardy under § 46-11-504, MCA. The District Court denied Cline’s motion to dismiss. Cline appeals. We affirm. ¶2 Cline presents the following issue on appeal: ¶3 Whether the theft by common scheme charge subjected Cline to double jeopardy? PROCEDURAL AND FACTUAL BACKGROUND ¶4 Cline stole numerous firearms and other merchandise from his employer, Bob Ward & Sons, between December 2010 and June 2011. The United States charged Cline with theft of firearms from a federal licensee, in violation of 18 U.S.C. § 922(u), and possession of stolen firearms, in violation of 18 U.S.C. § 922(j). Cline entered a guilty plea to these federal charges. ¶5 The State separately charged Cline with the theft of the firearms and the non-firearm merchandise that Cline had stolen from Bob Ward & Sons. Cline filed a motion to dismiss for violation of his statutory double jeopardy rights. The State amended its complaint to include only the non-firearm merchandise. Cline argued that this amendment did not cure the double jeopardy violation. The District Court denied the motion to dismiss. Cline entered a conditional guilty plea that preserved his right to appeal the District Court’s denial of his statutory double jeopardy motion to dismiss. 3 STANDARD OF REVIEW ¶6 A district court’s decision to grant or deny a defendant’s motion to dismiss a charge on the basis of double jeopardy presents a question of law that we review for correctness. State v. Neufeld, 2009 MT 235, ¶ 10, 351 Mont. 389, 212 P.3d 1063. DISCUSSION ¶7 Whether the theft by common scheme charge subjected Cline to double jeopardy? ¶8 Section 46-11-504(1), MCA, sets forth Montana’s statutory protection against double jeopardy. This statute provides that when conduct constitutes an offense within a different jurisdiction, a prosecution in that different jurisdiction bars a subsequent prosecution in Montana for an offense that arose out of the same transaction. We have interpreted this statute as providing criminal defendants with greater protection against double jeopardy than the United States Constitution. State v. Cech, 2007 MT 184, ¶ 13, 338 Mont. 330, 167 P.3d 389. ¶9 We apply a three part test to determine whether double jeopardy bars a subsequent prosecution. State v. Fox, 2012 MT 172, ¶ 19, 336 Mont. 10, 285 P.3d 454. We look first to whether the defendant’s conduct constitutes an equivalent offense within the jurisdiction of the court where the first prosecution occurred and within the jurisdiction of the court where the subsequent prosecution is pursued. We next look at whether the first prosecution resulted in an acquittal or a conviction. Finally, we look at whether the second jurisdiction based the subsequent prosecution on an offense that arose from the same transaction. All three factors must be met to bar a subsequent prosecution. Fox, ¶ 19. 4 ¶10 The State admits that Cline’s first prosecution resulted in a conviction. The State further admits that it based the subsequent prosecution on an offense that arose out of the same transaction as Cline’s federal prosecution. We must determine, therefore, whether Cline’s conduct constitutes an equivalent offense within both jurisdictions. ¶11 We described the equivalent offense requirement in Fox. “[T]he same conduct must subject a defendant to the possibility that he could be convicted of an ‘equivalent offense’ in each jurisdiction.” Fox, ¶ 21. The two offenses need not be identical to be considered equivalent. Further, the equivalent offense requirement can be met even if the defendant is not charged with the offense in both jurisdictions. A defendant can meet the equivalent offense requirement as long as his conduct constitutes “an equivalent offense in both jurisdictions.” Fox, ¶ 21. ¶12 Cline’s conduct resulted in two distinct types of offenses: theft of firearms and theft of non-firearm items. Theft of firearms qualifies as an equivalent offense as it constitutes an offense under both federal and Montana law. See 18 U.S.C. § 922(u); § 45-6-301(a), MCA. Cline argues that the fact that one of his offenses constitutes an “equivalent offense” should bar the subsequent prosecution for any of the other offenses that he committed as part of that same transaction. The State counters that the equivalent offense requirement should be offense specific. The State admits that theft of firearms represents an equivalent offense under federal and state law, and, therefore, it cannot prosecute Cline for theft of the firearms. The State argues, however, that Cline’s theft of the non-firearm items does not represent an 5 equivalent offense. The State points out that the United States could not have prosecuted Cline for the non-firearm related offenses. ¶13 We have considered whether double jeopardy bars a subsequent prosecution when multiple offenses arise out of the same conduct. When the first jurisdiction could prosecute a defendant for both offenses, but chooses to prosecute only one offense, the second jurisdiction cannot then prosecute the second offense. For example, the State of Washington successfully prosecuted Casey Cech (Cech) for possession of stolen property. Cech, ¶ 5. Cech had stolen a vehicle in Montana and had driven the vehicle to Washington. Montana later attempted to prosecute Cech for theft of the vehicle. We determined that Washington law included an “equivalent offense” to theft of the vehicle. We further determined that Washington could have prosecuted Cech for theft of the vehicle when it prosecuted Cech for possession of the stolen vehicle. Washington’s exercise of its prosecutorial discretion not to prosecute Cech for theft of the vehicle barred Montana under double jeopardy principles from prosecuting Cech separately for theft of the vehicle. Cech, ¶ 18. ¶14 Double jeopardy does not bar prosecution of two separate offenses in the two jurisdictions when a defendant’s conduct constitutes an offense in one jurisdiction and a separate offense in a second jurisdiction. John Gazda (Gazda) shot and killed Bronson Smith in Montana. State v. Gazda, 2003 MT 350, ¶ 2, 318 Mont. 516, 82 P.3d 20. The United States charged Gazda, a felon, with possession of a weapon and possession of ammunition. Gazda, ¶ 2. Montana later charged Gazda with deliberate homicide. Gazda, ¶ 3. Montana’s prosecution did not violate Gazda’s right against double jeopardy. The United States did not 6 have authority to prosecute Gazda for deliberate homicide. No equivalent offense existed under federal law that would capture Gazda’s misconduct. As a result, double jeopardy did not bar Montana from prosecuting Gazda for deliberate homicide. Gazda, ¶ 17. ¶15 Cline argues that double jeopardy bars a second prosecution when any overlap of jurisdiction exists. Cline points out that Montana could not have prosecuted Gazda for having been a felon in possession and that the United States could not have prosecuted Gazda for homicide. Cline argues that this lack of overlap underpinned the Court’s conclusion that double jeopardy did not bar Montana’s subsequent prosecution. Cline contends that Montana could not have prosecuted Gazda for homicide if Montana had an equivalent offense to felon in possession. ¶16 Cline cites State v. Sword, 229 Mont. 370, 747 P.2d 206 (1987), to support his interpretation of the equivalent offense requirement. Phil Sword (Sword) shot and killed a grizzly bear in the Great Bear Wilderness in Montana. Both federal and state law banned the shooting of grizzly bears in the Great Bear Wilderness. Sword obtained a trophy license in Montana by stating falsely that he had shot the bear in the Bob Marshall Wilderness, which was open to grizzly bear hunting at the time. An informant alerted authorities that Sword had lied on his trophy license and that Sword actually had shot the grizzly bear in the Great Bear Wilderness. The United States prosecuted Sword for violation of the Endangered Species Act for having shot the grizzly bear. Sword, 229 Mont. at 371, 747 P.2d at 207. Montana later sought to prosecute Sword for having made a material misstatement on the 7 trophy license. The Court determined that such a prosecution would submit Sword to double jeopardy. Sword, 229 Mont. at 376, 747 P.2d at 210. ¶17 Cline argues that the issue of whether any equivalent offense existed that arose out of the same transaction distinguishes the outcomes in Sword and Gazda. No equivalent offense existed in Gazda. Montana did not criminalize felon in possession and the United States did not criminalize homicide. An equivalent offense existed in Sword. Both the United States and Montana criminalized the taking of an endangered species. Cline argues that Sword demonstrates that when any equivalent offense exists, Montana cannot charge any other offense that may have arose out of the same transaction, even if the second offense does not represent an equivalent offense. ¶18 Cline misplaces reliance on Sword. The United States prosecuted Sword for knowingly having possessed and transported an unlawfully taken grizzly bear. The “knowingly” mental state proved essential to the United States’ prosecution. See United States v. St. Onge, 676 F. Supp. 1044, 1045 (Dist. Mont. 1988) (discussing evidence relevant to “knowingly” element of taking a grizzly bear). Sword’s misstatement on the trophy license represented proof that he had knowledge that he unlawfully had taken the grizzly bear by shooting it in the Great Bear Wilderness rather than in the Bob Marshall Wilderness. Sword’s misstatement on the trophy license formed the basis of his first conviction. Indeed, the federal prosecutor told the federal court that the United States had based its charges on Sword’s misstatement that he had taken the bear in the Great Bear Wilderness rather than in the Bob Marshall Wilderness. This Court noted that “when Mr. Sword killed the bear, 8 transported it from the mountain, made false statements on the trophy application, and stored the hide, his conduct was a violation of 16 U.S.C. Section [1538](a)(1)(G) in that he possessed, carried, and transported a grizzly bear taken unlawfully.” Sword, 229 Mont. at 373-74, 747 P.2d at 208. To subject Sword to a second prosecution for his misstatement on the trophy license would have placed him in jeopardy twice and punished him twice for the same offense. Sword, 229 Mont. at 376, 747 P.2d at 210. ¶19 Cline’s theft of non-firearm items, in contrast, did not form the basis of his conviction for theft of firearms. Cline never has been punished, or put in jeopardy, for his theft of the non-firearm items. Further, Cline’s interpretation of the equivalent offense requirement would make Montana’s double jeopardy protection dependent on what conduct Montana criminalizes, rather than on whether a defendant previously had been put in jeopardy for his offense. As applied to the facts of this case, Cline argues that the State could prosecute Cline for his theft of non-firearm items only if it did not criminalize the theft of firearms. Thus, under Cline’s reasoning, Montana’s decision to criminalize the theft of firearms would leave Montana unable to prosecute Cline for the theft of non-firearm items. ¶20 The proper application of Montana’s double jeopardy law does not depend on whether Montana chooses to criminalize conduct for which another jurisdiction already has charged a defendant. Montana’s double jeopardy law instead focuses on whether a defendant already has been put in jeopardy for an offense equivalent to the offense with which Montana now charges him. Washington could have prosecuted Cech for theft of the vehicle, as well as possession of the stolen vehicle. Washington chose to charge Cech only with possession of 9 the stolen vehicle. Washington’s exercise of prosecutorial discretion placed Cech in a position in which double jeopardy barred Montana later from charging Cech for theft. Cech, ¶ 18. The United States made no calculated decision whether to prosecute Gazda for homicide. The United States did not prosecute Gazda for the homicide due to the fact that it lacked jurisdiction over the offense of homicide. Montana’s prosecution of Gazda for homicide posed no double jeopardy bar. Gazda, ¶ 17. ¶21 Cline next asks this Court to overrule our interpretation of § 46-11-504, MCA. This Court has required the offense prosecuted in the first jurisdiction and the offense to be prosecuted in Montana to be “equivalent” offenses. See Fox, ¶ 21; Cech, ¶ 17; Gazda, ¶ 14. Cline argues that the legislature did not include the “equivalent” offense requirement in the statute. Cline contends that this Court should not require an “equivalent offense,” but rather double jeopardy should preclude a second prosecution if a defendant has been prosecuted for any offense that arose out of the same transaction. ¶22 We declined to adopt this interpretation in Cech. See Cech, ¶ 28 (Nelson, J., concurring). We again decline to adopt this interpretation of § 46-11-504, MCA. We presume that the legislature is aware of our decisions interpreting this statute. Fox, ¶ 21; Cech, ¶ 17; Gazda, ¶ 14. We further presume that if the legislature disagreed with the interpretation set forth in our decisions, it would have amended the statute accordingly. See Musselshell Ranch Co. v. Seidel-Joukova, 2011 MT 217, ¶ 14, 362 Mont. 1, 261 P.3d 570. ¶23 The United States prosecuted Cline for his theft of firearms from Bob Ward & Sons. The United States lacked jurisdiction to prosecute Cline for his theft of non-firearm items 10 from Bob Ward & Sons. No equivalent offense existed under federal law. Cline never has been subject to jeopardy for theft of the non-firearm items. Montana’s protection against double jeopardy does not bar the State’s prosecution of Cline for his theft of non-firearm items under these circumstances. ¶24 Affirmed. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ JIM RICE Justice Patricia O. Cotter dissents. ¶25 I dissent from the Court’s decision. I would conclude that under the clear language of § 46-11-504, MCA, Cline’s conviction in federal court barred his subsequent prosecution in the District Court. ¶26 Section 46-11-504, MCA, provides in pertinent part: When conduct constitutes an offense within the jurisdiction of any state or federal court, a prosecution in any jurisdiction is a bar to a subsequent prosecution in this state if: (1) the first prosecution resulted in an acquittal or in a conviction and the subsequent prosecution is based on an offense arising out of the same transaction . . . . 11 ¶27 We err in interpreting the foregoing statute to require that the offense prosecuted in the first jurisdiction and the offense to be prosecuted in Montana must be “equivalent” offenses. See ¶ 21. Our error dates back to the 1993 version of § 46-11-504, MCA, which was in effect when we decided State v. Tadewaldt, 277 Mont. 261, 922 P.2d 463 (1996). Unfortunately, we have perpetuated the Tadewaldt test, notwithstanding the fact that § 46- 11-504, MCA, was substantively revised in 1997. ¶28 As Justice Nelson cogently pointed out in his concurring Opinion in State v. Cech, 2007 MT 184, 338 Mont. 330, 167 P.3d 389, there is absolutely no language in the double jeopardy statute, as revised, which imposes the requirement that the offenses in question be “equivalent.” Cech, ¶ 34 (Nelson, J., concurring). The statute very plainly requires that “an offense” be prosecuted in the first jurisdiction, that there be an acquittal or conviction, and that the subsequent prosecution be based upon “an offense arising out of the same transaction.” The straightforward language of the revised statute could not be clearer. ¶29 Given the clarity of the statutory language in question, it is unnecessary to consult the legislative history, to which we typically resort “only if legislative intent cannot be determined from the plain wording of the statute.” Clarke v. Massey, 271 Mont. 412, 416, 897 P.2d 1085, 1088 (1995). Here, however, the legislative history of the 1997 revisions is instructive. SB 145 was introduced with the following preamble: “WHEREAS, the Montana Supreme Court has suggested in State v. Pierce, 199 Mont. 57 (1982), State v. Sword, 229 Mont. 370, and State v. Tadewaldt, 53 St. Rep. (1996), that the concurrent jurisdiction provisions of section 46-11-504, MCA, be clarified.” Thus, it is clear that the 12 Legislature was aware of our interpretations of the previous version of the statute, and specifically intended a modification of the statute in response to those cases. Had the Legislature intended that the test applied in Tadewaldt be perpetuated, it would not have taken the trouble to revise the language of the statute. “The legislature does not perform useless acts. Section 1-3-223, MCA.” American Linen Supply Co. v. Dept. of Revenue, 189 Mont. 542, 545, 617 P.2d 131, 133 (1980). ¶30 I authored the Court’s Opinion in State v. Fox, 2012 MT 172, 366 Mont. 10, 285 P.3d 454. Although the portion of the analysis in Fox that invoked Tadewaldt is not critical to the outcome of our decision there, we erred in Fox in continuing to rely upon Tadewaldt. We similarly erred in doing so in State v. Gazda, 2003 MT 350, 318 Mont. 516, 82 P.3d 20. See Gazda, ¶¶ 14, 21. I therefore agree with Justice Nelson’s conclusion in Cech that to the extent that Gazda relies upon Tadewaldt, it should be overturned. I would further urge us to overturn Fox and Cech to the same limited extent. Cech, ¶ 39. ¶31 The foregoing Opinions having embraced the “equivalent offense” standard, it might fairly be asked why this “plain language” analysis is just now being interposed in a dissent. The answer is that Cline is the first of these defendants to squarely present this argument, and we are therefore bound to consider it. Justice Nelson’s concurrence in Cech raised the exact point I raise here, but Cech himself did not challenge application of the Tadewaldttest. Justice Nelson concluded that the Tadewaldt test did not square with the language of the statute, but he otherwise concurred with the Court’s conclusion on other grounds that the subsequent prosecution of Cech in Montana was barred. 13 ¶32 Turning to the matter before us, and applying the plain language of § 46-11-504, MCA, Cline’s conviction of theft by common scheme cannot stand. As the Court correctly notes at ¶ 10, the State admits that Cline’s federal prosecution resulted in a conviction, and that the subsequent prosecution at issue here arose out of the same transaction as Cline’s federal prosecution. These two admissions end the inquiry, as the statute requires only that the conduct constitutes an offense within the other court, that the prosecution in the other court result in a conviction, and that the subsequent prosecution be “based on an offense arising out of the same transaction.” Section 46-11-504(1), MCA. ¶33 This Court has repeatedly invoked § 1-2-101, MCA, which provides that “[i]n the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” City of Bozeman v. Cantu, 2013 MT 40, ¶ 17, 369 Mont. 81, 296 P.3d 461; In re D.B.J., 2012 MT 220, ¶ 40, 366 Mont. 320, 286 P.3d 1201; State v. Hafner, 2010 MT 233, ¶ 24, 358 Mont. 137, 243 P.3d 435; State v. Maki, 2008 MT 379, ¶ 17, 347 Mont. 24, 196 P.3d 1281; State v. Brown, 2008 MT 115, ¶ 24, 342 Mont. 476, 182 P.3d 75. The Court disregards this statute by reading into the current version of our double jeopardy statute language which it does not contain. If the State disagrees with the clear language of our current version of § 46-11-504, MCA, then the State should ask the Legislature to change the statute. It is not up to this Court to do so. ¶34 I therefore dissent from the Court’s Opinion. 14 /S/ PATRICIA COTTER Justice Laurie McKinnon joins in the Dissent of Justice Patricia O. Cotter. /S/ LAURIE McKINNON | July 15, 2013 |
c81cc23a-18d0-4a81-b1af-ed9cc924aec6 | Dvorak v. State Fund | 2013 MT 210 | DA 12-0655 | Montana | Montana Supreme Court | DA 12-0655 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 210 DIANNE DVORAK, Petitioner and Appellant, v. MONTANA STATE FUND, Respondent and Appellee. APPEAL FROM: Montana Workers’ Compensation Court, WCC No. 2011-2793 Honorable James Jeremiah Shea, Presiding Judge COUNSEL OF RECORD: For Appellant: William P. Joyce, Joyce, Johnston & MacDonald, Butte, Montana For Appellee: William D. Blackaby, Special Assistant Attorney General, Montana State Fund, Helena, Montana Submitted on Briefs: May 1, 2013 Decided: July 30, 2013 Filed: __________________________________________ Clerk July 30 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 At some point, Dianne Dvorak contracted an occupational disease arising from her employment with Wheat Montana. She first sought medical treatment in 2006 and periodically thereafter until 2011 when her doctor recommended that she leave her employment because it was worsening her condition. In May 2011, Dvorak initiated a workers’ compensation claim. Montana State Fund (State Fund) denied her claim as untimely filed. The Workers’ Compensation Court granted summary judgment in favor of State Fund. Dvorak appeals. We reverse and remand. ISSUE ¶2 A restatement of the issue is: ¶3 Did the Workers’ Compensation Court err in granting summary judgment to State Fund after concluding that Dvorak’s claim for occupational disease benefits was barred by the statute of limitations? FACTUAL AND PROCEDURAL BACKGROUND ¶4 Dianne Dvorak began working at Wheat Montana in Three Forks, Montana, in 2002. She was 52 years old at the time. Initially, she worked in the deli but within six months was transferred to the kitchen, working primarily as a sandwich maker. She frequently worked 10-hour shifts and was on her feet most of the time. On February 28, 2006, Dvorak went to Dr. Terry Reiff, an osteopathic doctor who had been her primary care physician since 1995. At this visit, she complained of headaches and pain in her right shoulder, neck, upper back and ribs. She told Reiff that she had to look upwards and lift her arms above her head multiple times per day at work in order to reach for the 3 bread to make sandwiches. She said the movement had begun to cause her “quite a bit of back pain.” Reiff subsequently prescribed Tylenol 3 for the pain which Dvorak refilled regularly through 2011. He also performed cervical and thoracic manipulation which reduced the restrictions and diminished the pain. Dvorak saw Reiff again in November 2007. This visit was for a routine checkup and not for work-related pain. She stated that she occasionally used the Tylenol 3 for pain but did not report pain at that time. ¶5 On December 10, 2007, Dvorak saw Reiff for back pain after she fell on her back while putting up Christmas lights. Reiff performed manipulation of her upper and lower spine and relieved some of the pain. He prescribed anti-inflammatory medications as well. The following week, Dvorak reported to Reiff that she experienced severe right hip and sciatic pain after a 10-hour work shift. Reiff again performed a manipulation on the affected area and injected medications to alleviate the pain. Dvorak continued taking and refilling the various medications Reiff had prescribed, including Tylenol 3. ¶6 Dvorak saw Reiff again on January 20, 2009. She did not complain of back or shoulder pain at this appointment but did report, when discussing her medications, that in addition to the other unrelated medications she took regularly, she took one Tylenol 3 per day. At an August 4, 2009 appointment, Dvorak told Reiff that the repetitive motion at work was again causing pain in her back and shoulders. She said that taking one Tylenol 3 every day helped her get through her long work shifts. At her physical exam with Reiff on October 19, 2010, Dvorak reported again that she continued to take a daily Tylenol 3 but otherwise did not report any acute problems with her neck and back. 4 ¶7 On December 13, 2010, Dvorak saw Reiff and reported that she was in “severe pain in the upper thoracic area” on her right side. Reiff performed manipulation and was able to identify acute pain trigger points in Dvorak’s thoracic spine for the first time. He treated those points with injections which relieved much of the pain. This was the first occasion upon which Reiff concluded that Dvorak had a site-specific pathological condition that was not going to resolve with treatment and that her work was placing stress on her upper spine to the extent that it was incapacitating her. ¶8 Dvorak returned to Reiff in March 2011 with intense pain in her right shoulder blade. Again, Reiff manipulated the area and injected the trigger point, providing almost immediate relief. In April 2011, Dvorak saw Reiff twice with continued pain in her back and shoulder. Again, she received manipulation and injections. Also, in light of Dvorak’s recent intense localized symptoms, Reiff took spinal x-rays for the first time. On May 3, 2011, with Reiff’s assistance, Dvorak completed a Blue Cross/Blue Shield of Montana form indicating that she had seen Reiff on April 12, 2011, for “a work aggravated injury of T6-T7 facet & rib articulation. First began 2/28/06.” ¶9 On May 6, 2011, she reported to Reiff that she was in “severe pain in her back.” She stated she was unable to work more than two hours without pain medication. Reiff referred her to Dr. Pyette, an orthopedic specialist, and told her she could not work until after she saw Pyette and Pyette had evaluated Dvorak’s condition. On this same day, Dvorak filed a First Report of Injury with Wheat Montana reporting the pain she was experiencing in her spine, shoulder and ribs. Notably, Dvorak did not state a claim for benefits for any conditions suffered or treatment incurred prior to December 2010. 5 ¶10 On May 17, 2011, Dvorak saw Pyette who recommended a cervical spine MRI. His impressions were (1) thoracic strain/over use [sic] secondary to industrial injury, and (2) possible exacerbation of cervical spondylolytic myelopathy secondary to industrial injury. On June 20, 2011, State Fund denied Dvorak’s claim asserting that she had not filed it within the time allotted under § 39-71-601(3), MCA. Because State Fund denied her claim, Dvorak did not undergo the recommended cervical MRI. ¶11 Dvorak did not return to work at Wheat Montana after May 6. ¶12 On August 15, 2011, Dvorak’s counsel filed a Petition for Hearing with the Workers’ Compensation Court (WCC). In December 2011, State Fund moved for summary judgment, noting that Dvorak had been treated for her work-related pain by Reiff beginning in February 2006, and had continued such treatment through 2011. State Fund asserted that the 12-month statute of limitations set forth in § 39-71-601(3), MCA, applied and that given these five years of treatment, Dvorak knew or should have known that she had a work-related occupational disease long before she filed her claim in May 2011. ¶13 Dvorak countered that her condition prior to October 20101 was generalized and would arise and resolve. Additionally, Reiff submitted an affidavit in which he stated that Dvorak’s pre-October 2010 work-related injury had reached maximum medical improvement long before the permanent aggravation she experienced in October 2010. Dvorak argued that her work activities in late 2010 and early 2011 were the leading cause 1 Dvorak and Reiff both state that Dvorak’s condition changed in October 2010 but the medical records clearly indicate that Dvorak returned to Reiff with new and severe symptoms on December 13, 2010. 6 of the permanent aggravation, resulting in a “new” occupational disease for which she timely filed for benefits in May 2011. ¶14 The WCC held a summary judgment hearing on the matter on April 16, 2012, during which it heard oral arguments from counsel but did not take testimony. On July 18, 2012, the WCC judge notified counsel that he would grant State Fund’s motion for summary judgment. The court issued its final order on October 23, 2012, applying the 12-month statute of limitations and concluding Dvorak had failed to timely file her claim. Dvorak appeals this ruling. STANDARD OF REVIEW ¶15 We review the grant of summary judgment de novo, using the same M. R. Civ. P. 56 criteria used by the trial court. Summary judgment is appropriate when the moving party demonstrates both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. Once the moving party has met its burden, the non-moving party must present substantial evidence essential to one or more elements of the case to raise a genuine issue of material fact. We further review a question of law to determine if the district court’s legal conclusions are correct. Harris v. State, 2013 MT 16, ¶ 11, 368 Mont. 276, 294 P.3d 382. (Internal citations omitted.) DISCUSSION ¶16 Did the Workers’ Compensation Court err in granting summary judgment to State Fund after concluding that Dvorak’s claim for occupational disease benefits was barred by the statute of limitations? ¶17 The Montana Legislature adopted the State’s first Workers’ Compensation Act (WCA) in 1915. Since that time, the WCA has undergone numerous revisions and 7 additions. The Montana Legislature enacted the Occupational Disease Act (ODA) in 1959. These acts remained separate until 2005 when the Legislature repealed the ODA and amended several sections of the WCA to incorporate occupational disease coverage. Mont. State Fund v. Grande, 2012 MT 67, ¶ 24, 364 Mont. 333, 274 P.3d 728. ¶18 As claims for occupational disease benefits arose, it became necessary for the courts to determine which ODA statute controlled the claim: (1) the statute in effect on the last day of the claimant’s employment; (2) the statute in effect at the time the claimant discovered the occupational disease, or (3) the statute in effect at the time the claim was filed. This Court concluded that the statute in effect on the claimant’s last day of employment controls. Gidley v. W.R. Grace & Co., 221 Mont. 36, 37-38, 717 P.2d 21, 22 (1986). Dvorak’s last day of work was May 6, 2011; consequently, the 2009 WCA controls. Statutory references in this Opinion will be to the 2009 MCA. ¶19 A primary objective of the Montana workers’ compensation system “is to provide, without regard to fault, wage-loss and medical benefits to a worker suffering from a work-related injury or disease.” Section 39-71-105(1), MCA. Occupational diseases are considered to arise out of employment or be contracted in the course and scope of employment if the disease is established by objective medical findings and the events occurring on more than a single day or work shift are the major contributing cause of the occupational disease in relation to other factors contributing to the occupational disease. Section 39-71-407(9)(a)-(b), MCA. Recognizing the difference between a work-related injury and a work-related occupational disease, the Legislature specified: 8 [F]or occupational disease claims, because of the nature of exposure, workers should not be required to provide notice to employers of the disease as required of injuries and that the requirements for filing of claims reflect consideration of when the worker knew or should have known that the worker’s condition resulted from an occupational disease. Section 39-71-105(6)(b), MCA. ¶20 Given the language of § 39-71-105(6)(b), MCA, the statute of limitations for an occupational disease set forth in § 39-71-601(3), MCA, provides, in relevant part: “When a claimant seeks benefits for an occupational disease, the claimant’s claims . . . must be . . . presented . . . within 1 year from the date that the claimant knew or should have known that the claimant’s condition resulted from an occupational disease.” The question before the WCC, therefore, was when Dvorak knew or should have known that she was suffering from an occupational disease. ¶21 The 2009 MCA defines “occupational disease” in part as “harm, damage, or death arising out of or contracted in the course and scope of employment caused by events occurring on more than a single day or work shift.” Section 39-71-116(20)(a), MCA. The WCC surmised in Corcoran v. Montana Schools Group Ins. Auth., 2000 MTWCC 30, ¶ 52, that the “harm” and “damage” references in the definition of occupational disease must mean something more than suffering mere pain, otherwise, every ache and pain a worker suffers after a hard day at work would constitute an occupational disease. That . . . construction . . . would be absurd and contrary to common sense. Rather, the terms indicate something more significant, such as a condition requiring medical diagnosis and treatment. The WCC further stated that the statute of limitations for an occupational disease commences when the claimant “has some specific knowledge of a specific pathological 9 condition stemming from employment and requiring diagnosis and treatment.” Corcoran, ¶ 53. ¶22 On appeal, State Fund maintains that Dvorak sought medical diagnosis and treatment for work-related pain in February 2006, and that she embarked on a continuous regimen of pharmaceutical treatment thereafter. It notes that she refilled her pain prescription every month for five years and saw her doctor periodically for osteopathic treatments. Based upon these facts, State Fund argues that the one-year statute of limitations was triggered at the time Dvorak first saw her doctor and complained of repetitive motion work-related pain, i.e., February 2006. It asserts that Dvorak knew, or should have known, of the occupational disease at that time. ¶23 Dvorak counters that the WCC mischaracterized her position and ignored the medical evidence and her doctor’s affidavit in which he stated that the “major contributing cause” of Dvorak’s debilitating condition was Dvorak’s work between December 2010 and May 2011. She maintains that during these months she suffered an aggravation of her pre-existing resolved condition which constituted a new compensable occupational disease. She also asserts that by filing her claim in May 2011—within seven months of the exacerbation—she timely filed for compensable benefits. ¶24 The medical records in this case reveal that Reiff diagnosed Dvorak in February 2006 with a work-related “injury” with which there was no associated impairment and that promptly resolved with osteopathic manipulations and medication. The record also shows that between February 28, 2006, and October 19, 2010—a period of four years and eight months—Dvorak saw Reiff eight times for various conditions. Six of these 10 appointments addressed private medical issues wholly unrelated to this case. Only two of the visits referenced work-related upper back and shoulder pain, those being the appointments of February 28, 2006, and August 4, 2009. ¶25 The record establishes that both Dvorak and Reiff believed that Dvorak’s original complaint was the result of a work-related strain or injury which resolved itself satisfactorily over time with minor treatment. Neither considered the prospect of an occupational disease until Reiff first undertook diagnostic testing in April 2011. Until that time, when x-rays were taken and she was referred to an orthopedic specialist, Dvorak clearly had no intention of seeking more complex treatment, altering her employment duties or hours, or making a claim for workers’ compensation benefits. ¶26 In contrast, between December 13, 2010, and May 6, 2011—a period of less than five months—Dvorak saw Reiff five times with severe thoracic and right shoulder pain. According to Reiff’s deposition testimony, it was not until December 2010 that he identified a specific pathological condition related to her upper thoracic and right shoulder area. Additionally, Reiff testified that it was in March or April 2011 that he told Dvorak for the first time that she had an “occupational disease” and she should consider filing a workers compensation benefit claim. However, despite the availability of this undisputed evidence, the WCC did not reference Reiff’s deposition or his affidavit in its order granting summary judgment to State Fund. We conclude this was error in that Reiff’s testimony raised genuine issues of material fact as to when Dvorak knew or should have known she was suffering from an occupational disease. See Siebken v. Voderberg, 2012 MT 291, ¶¶ 20-24, 367 Mont. 344, 291 P.3d 572 (Conflicting evidence 11 was presented as to when Siebken discovered the origin of his work-related injury; therefore, whether his tort claim was barred by the three-year statute of limitations should not have been decided on summary judgment.). ¶27 State Fund places heavy emphasis on Dvorak’s continued use of medication. However, the use of the medication cuts both ways. Dvorak could well have assumed that because the medication alleviated her symptoms and allowed her to continue working 10-hour shifts for the ensuing four years, she did not have a disease. Surely, many persons who have not been diagnosed with an occupational disease—and in particular middle-aged persons with a long work history—take pain medications on a daily basis to help them make it through the work day. We have never held that ingestion of pain medication by a full-time employee constitutes proof of the existence of an occupational disease. ¶28 We are concerned that the practical implication of the WCC ruling could be that any worker in Montana who suffers pain at the end of a workday for which she seeks a prescription will be required to file a benefits claim, even if she has every intention of continuing to work and no intention of seeking occupational disease benefits, simply in order to preserve a possible claim that may or may not ripen in the future. We note that the WCC expressed this same concern during the hearing. ¶29 As noted in ¶ 20, the question before the WCC was when Dvorak knew or should have known that she was suffering from an occupational disease. While the Dissent posits that this issue was not raised by Dvorak or questioned by the parties, this was in fact the central issue raised in the State Fund’s motion for summary judgment in the 12 WCC, it was the sole basis for the WCC’s ruling that is now before us on appeal, and, as State Fund argues on appeal, “the interpretation of the phrase ‘. . . knew or should have known . . .’ is determinative of the issue before the Court.” There is therefore no basis for the Dissent’s contention that the Court has remade the case. ¶30 Given the facts before us here, the answer to the question of when Dvorak knew or should have known that she was suffering from an occupational disease is not amenable to a summary determination. Reiff expressly testified that he did not conclude Dvorak had a specific pathological condition until December 2010 and did not conclude she had an occupational disease until March or April 2011, at which time he informed Dvorak and she acted accordingly. However, the WCC did not take this testimony into account when it concluded that “[t]he undisputed facts demonstrate that . . . [Dvorak] knew or should have known that she was suffering from an occupational disease” as early as 2006. If her doctor did not conclude she had an occupational disease until March or April 2011, a material question of fact arises as to when Dvorak—who is not trained in medicine—should have known she was suffering from an occupational disease. This being so, summary judgment on this issue was not appropriate. CONCLUSION ¶31 We therefore reverse the entry of summary judgment and remand for a trial to determine when Dvorak knew or should have known she was suffering from an occupational disease. /S/ PATRICIA COTTER 13 We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS Justice Rice, dissenting. ¶32 In my view, the Court has deftly remade the case. It determines an issue that is neither raised by Dvorak nor contested by the parties. ¶33 The Court states the issue to be decided by the WCC and this Court is simply “when Dvorak knew or should have known that she was suffering from an occupational disease.” Opinion, ¶¶ 20, 29. The Court reasons that this issue is “not amenable to summary determination,” reversing the WCC and remanding. Opinion, ¶ 30. ¶34 To the contrary, the issue actually raised, as stated by Dvorak, is whether her “claim for occupational disease benefits was barred by the statute of limitations when she was working up to ten (10) days before she filed her claim and her treating physician opined that her work within the last year of her employment was the major contributing cause of her condition.” (Emphasis added.) In her briefing, Dvorak makes admissions that contradict the Court’s reasoning: Dvorak concedes she knew she was suffering, not just from “a work-related strain or injury,” Opinion, ¶ 25, but from an occupational disease, since February 2006. Her First Report of Injury explained that she had suffered from a “repetitive motion” back and shoulder condition since that date. Dvorak explains her legal position as being that Dr. Reiff determined she had “reached maximum medical 14 improvement for any injury or occupational disease to her cervical or thoracic spine she may have suffered in February 2006 significantly before October 2010,” and she argues that she “suffered an aggravation of her pre-existing condition by her ongoing work activities within a year of her filing and hence suffered a new compensable occupational disease which was timely filed.” (Emphasis added.) Thus, the issue Dvorak has raised is whether she sustained a new occupational disease that was distinct from her earlier disease, thereby initiating a new one-year statutory filing period. The parties do not contest that Dvorak knew she had suffered from a prior condition that was actionable— the question is whether something new occurred to trigger a separate and additional filing period. While I wish it was so, this case is not as straightforward as the Court has stated it to be. ¶35 Dvorak posits that she sustained an aggravation of her previously-acknowledged condition that constitutes a new claim. She contends that her work did not become the “major contributing cause” of her current condition until October of 2011, citing the definition of that term in § 39-71-407(9), MCA, which determines the work-relatedness of a disease. However, as the WCC correctly analyzed, the problem with Dvorak’s legal position “is that the major contributing cause analysis goes to whether a condition is compensable as an occupational disease—not whether a worker knew or should have known that she is suffering from an occupational disease.” A further problem is that the evidentiary record simply does not support Dvorak’s claim that she suffered a new occupational disease. 15 ¶36 The WCC was careful to emphasize that “awareness of pain, and awareness that the pain is a result of work” does not alone constitute the necessary knowledge that a worker suffers from an occupational disease. Such requisite knowledge, the court explained, “must mean something more than suffering mere pain, but indicate something more significant, such as a condition requiring medical diagnosis and treatment.” Clearly, Dvorak had an abundance of such knowledge. As the WCC explained: The undisputed facts demonstrate that although she may not have had a formal diagnosis, Petitioner understood that her condition was caused by “repetitive motion” in her job duties and she received medical treatment, including prescription medication, for approximately five years before she filed her first report of injury or occupational disease. By the time Petitioner began taking prescription medication to alleviate her symptoms, she knew or should have known that she was suffering from an occupational disease. Her claim is therefore untimely . . . . ¶37 The Court discounts the evidence of Dvorak’s long term use of narcotic pain medication prescribed by Dr. Reiff. Opinion, ¶ 27. However, the Court overlooks the symbiotic correlation between the prescription and Dvorak’s work. The medication was sought by Dvorak in March-April 2006 for work pain and was prescribed for that sole purpose, more specifically, to alleviate problems Dvorak experienced during what she described in her deposition as the “lunch rush.” As the WCC noted, “Dvorak testified that the only time she experienced pain was while performing overhead activity at work, and that she did not experience pain with other non-work activities.” For all the years thereafter, the medication was renewed on a monthly basis for Dvorak’s back and shoulder pain, and was increased in strength in January 2009, due to an increase in her work-related symptoms. 16 ¶38 The record demonstrates that Dvorak received a continuing course of medical treatment for a work-related, repetitive motion-caused condition to her back and shoulder that worsened over time, but was the same condition. She did not suffer a new occupational disease. ¶39 I acknowledge the Court’s policy concerns about workers who deal with pain during the course of their work, but fail to file a claim. Opinion, ¶ 28. Indeed, it could be questioned whether a one-year statute of limitation has a logical correlation at all to occupational disease claims, which can arise over a long course of time. Of course, it could also be countered that this Court cast that die by striking down the ODA on equal protection grounds for differing from the WCA. See Stavenjord v. Mont. State Fund, 2003 MT 67, 314 Mont. 466, 67 P.3d 229. Regardless of this debate, the Court’s policy concerns were fully addressed by the WCC when it explained that “awareness of pain, and awareness that the pain is a result of work” is alone insufficient to trigger the requirement to file an occupational disease claim. Here, however, Dvorak experienced and knew much more. The law required her to file a claim years before she did. ¶40 The WCC decided the case that was filed before it based upon the issue raised and the applicable evidence. We should do the same. I would affirm. /S/ JIM RICE Justice Laurie McKinnon joins in the dissenting Opinion of Justice Rice. /S/ LAURIE McKINNON | July 30, 2013 |
a34ee5e1-bef6-4473-bb99-85b8a0ff65c9 | Ellenburg v. State | 2013 MT 226N | DA 12-0767 | Montana | Montana Supreme Court | DA 12-0767 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 226N MICHAEL ELLENBURG, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 97-12940 Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD: For Appellant: Michael Ellenburg (self-represented), Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana Submitted on Briefs: July 24, 2013 Decided: August 13, 2013 Filed: __________________________________________ Clerk August 13 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Michael Ellenburg appeals from the District Court’s Order of November 20, 2012, denying his request for additional credit against time to be served in prison. We affirm. ¶3 In 1999 Ellenburg pled guilty to two counts of felony theft and one count of felony forgery. The District Court sentenced Ellenburg to a 10-year suspended sentence on each of the theft convictions and to 20 years with five years suspended on the forgery sentence. The three sentences were to run consecutively to each other. ¶4 In 2006 the State filed a petition to revoke Ellenburg’s suspended sentences for violations of his conditions of probation. The District Court found that Ellenburg had violated the conditions and revoked the suspended sentences. In March 2006, the District Court sentenced Ellenburg to 10 years in prison for each of the felony theft convictions and to five years on the felony forgery conviction, with the sentences to run consecutively. The District Court gave Ellenburg credit for 53 days spent in jail in 2005 and 2006, but specifically declined to grant any other credit against the sentences because of Ellenburg’s “failure to comply with the terms and conditions of his suspended sentence while under the supervision of the Department of Probation and Parole.” ¶5 Ellenburg now contends that the District Court should give him additional credit for 3 “elapsed time” that he spent in the Intensive Supervision Program for other prior offenses in 1996 and 1997, and for 183 days of “elapsed time” he spent on probation for the theft and forgery convictions in 2005 and 2006. ¶6 Ellenburg relies upon § 46-18-203(7)(b), MCA, which requires that a judge revoking a suspended sentence must consider “any elapsed time” and decide whether to credit some, all, or none of it to the sentence imposed upon revocation. That statute did not entitle Ellenburg to credit for any “elapsed time,” but only required that the District Court consider whether to allow credit for any elapsed time. It is clear that the District Court here considered whether to credit Ellenburg for elapsed time. The District Court granted Ellenburg credit for time spent in jail, and declined to grant credit for any additional time. That is all that is required. ¶7 Ellenburg has failed to show any legal basis that he is entitled to any additional consideration for credit against his sentences. State v. Baker, 1999 MT 251, ¶ 14, 296 Mont. 253, 989 P.3d 335 (there must be a statutory basis for a district court to modify an existing sentence). Ellenburg also previously exhausted his remedies with regard to the revocation of his suspended sentences and his subsequent sentences to prison. He appealed his initial sentences for theft and forgery and this Court affirmed (State v. Ellenburg, 2000 MT 232, 301 Mont. 289, 8 P.3d 801); he appealed the District Court’s denial of his petition for postconviction relief and this Court affirmed (Ellenburg v. Chase, 2004 MT 66, 320 Mont. 315, 87 P.3d 473); and this Court denied two subsequent petitions for writ of habeas corpus (Ellenburg v. State, 333 Mont. 553, 143 P.3d 704, 2006 Mont. LEXIS 780 (September 20, 4 2006) and Ellenburg v. State, 175 P.3d 304, 2007 Mont. LEXIS 722 (October 31, 2007)). Ellenburg’s request for credit, if deemed a petition for postconviction relief, is barred by the one-year statute of limitations in § 46-21-102, MCA, and is additionally barred by § 46-21- 105, MCA, precluding postconviction claims that could have been raised on direct appeal. ¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for memorandum opinions. The issues in this case are legal and are controlled by settled Montana law that the District Court correctly interpreted and applied. ¶9 Affirmed. /S/ MIKE McGRATH We concur: /S/ LAURIE McKINNON /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ JIM RICE | August 13, 2013 |
15d88857-4e7c-427e-bfb8-3053802b9df3 | State v. Hammer | 2013 MT 203 | DA 12-0297 | Montana | Montana Supreme Court | DA 12-0297 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 203 STATE OF MONTANA, Plaintiff and Appellee, v. FLOYD DENNIS HAMMER, Defendant and Appellant. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DC 11-38 Honorable Deborah Kim Christopher, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender, Nicholas C. Domitrovich, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Lynn Ployhar, Assistant Attorney General; Helena, Montana Mitchell A. Young, Lake County Attorney; Polson, Montana Submitted on Briefs: May 8, 2013 Decided: July 23, 2013 Filed: __________________________________________ Clerk July 23 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Floyd Hammer (Floyd) appeals his conviction for Criminal Possession with Intent to Distribute by the Twentieth Judicial District Court, Lake County. Floyd specifically challenges the District Court’s treatment of his pre-trial complaint concerning his trial counsel’s failure to contact a certain witness, the Court’s denial of his motion for a new trial, and the Court’s assessment of fees, costs, and surcharges in the written judgment that were not included in the oral pronouncement of his sentence. We affirm the conviction but we also conclude that it is necessary to remand this case to the District Court with instructions to enter an amended judgment in conformance with its oral pronouncement of sentence and this Opinion. ISSUES ¶2 1. Was the District Court’s pre-trial inquiry into Hammer’s complaint about his counsel sufficient? ¶3 2. Did the District Court err in denying Hammer’s motion for a new trial? ¶4 3. Did the District Court err in assessing fees, costs, and surcharges when these amounts were not orally pronounced? FACTUAL AND PROCEDURAL BACKGROUND ¶5 Floyd was charged with criminal possession of dangerous drugs (methamphetamine) with intent to distribute by information on April 7, 2011. Floyd was appointed counsel. Two weeks before trial, Floyd sent a letter to the District Court stating that he was unhappy that his counsel had not contacted a potential witness named Cheryl Combs. The letter consequently requested that the Court appoint him new counsel. The Court held a meeting in 3 chambers the morning of trial, September 26, 2011, to discuss the letter and Floyd’s concerns. At the meeting, the following discussion took place between the Court, Lake County Attorney Mitchell Young and Floyd’s counsel, Steven Eschenbacher (Eschenbacher): MR. YOUNG: Your Honor, it appears that the Court received a letter from the defendant on September 12th of this year, 2011. Copies of that letter were sent to myself and the Public Defender’s Office. The defendant expressed some dissatisfaction with his attorney over the calling of or failure to contact a witness named Sheryl Combs. And I spoke with Mr. Eschenbacher. Apparently that issue has been resolved. But I wanted to make a record of the fact that the defendant is not any longer complaining about the services of his attorney before we go forward with the trial. MR. ESCHENBACHER: And I think that’s appropriate, Your Honor, if you would go ahead and question Mr. Hammer. THE COURT: Mr. Hammer, have you had enough time to talk with Mr. Eschenbacher in preparation for this case? THE DEFENDANT: Yes, we have. THE COURT: Does the information that’s contained in this letter apply any longer? THE DEFENDANT: No. THE COURT: You’re satisfied? THE DEFENDANT: Yes, I am. MR. YOUNG: Your Honor, I do want to make one further record and that is, to the best of my knowledge going through my file I have not received notice of witness Sharon [sic] Combs has not been noticed up as a witness. MR. ESCHENBACHER: Your Honor, I filed a notice of witnesses that was just [sic] listed the State’s witnesses and any exhibits they had. I’m planning on just attacking their case. I had talked to Ms. Combs and she wouldn’t be – 4 would only be required if there was a question of someone’s testimony that needs to be corroborated or reviewed. THE COURT: So it would be a rebuttal witness. MR. ESCHENBACHER: If it’s necessary. MR. YOUNG: Surrebuttal. Because the defendant doesn’t do rebuttal. THE COURT: Okay. Well, it depends on who’s calling when. But, yeah, you’re really not supposed to do your own witnesses or attack them. All right, gentlemen, anything else? MR. YOUNG: Not from the State, Your Honor. THE COURT: Very well. Then we’ll go on the record at nine o’clock. This exchange was the only time that the Court addressed Floyd’s concerns regarding Ms. Combs’s use as a witness for his defense. At trial, Floyd’s counsel did not call any witnesses. Instead, Eschenbacher attacked the State’s case through the cross-examination of the State’s witnesses. The jury subsequently found Floyd guilty of criminal possession with intent to distribute on September 27, 2011. ¶6 The day after trial, September 28, 2011, Floyd sent the Court another letter. Floyd’s second letter requested that the Court appoint him a new attorney for an upcoming trial in another matter, DC 11-78. Hammer explained that he wanted a different attorney “[b]ecause of the out turn [sic] of my last trial, I strongly feel it is important that I receive a fair trial. I also Feel that if I had (Cheryl Combs) [sic] to testify at my last trial, it would of turned out Different.” This letter was apparently attached to DC 11-78, and not the present case, DC 11-38. 5 ¶7 Benjamin Anciaux (Anciaux) was subsequently substituted as Floyd’s counsel on October 31, 2011. Anciaux filed a motion for a new trial pursuant to § 46-16-702, MCA, on December 9, 2011. The motion claimed that Eschenbacher’s failure to call Ms. Combs denied Floyd the opportunity to present “a major defense” because Ms. Combs would have testified that other people had actually possessed the dangerous drugs in question. The motion also alleged that the failure to call Ms. Combs amounted to ineffective assistance of counsel. ¶8 The District Court denied Floyd’s motion for a new trial in a January 18, 2012 order. The Court found that the motion was untimely because it was filed after the 30 day statutory limit. See § 46-16-702(2), MCA, (“The motion must be filed by the defendant within 30 days following verdict or finding of guilty and be served upon the prosecution.”). The Court also determined that Floyd acquiesced to Eschenbacher’s trial strategy when he stated that he was satisfied with his communication with Eschenbacher and indicated that the concerns contained in his first letter no longer applied. The Court concluded that it could “go no further in a review of ‘ineffective counsel’ ” in light of these prior representations, and denied the motion. ¶9 Floyd was sentenced on January 26, 2012. At the hearing, defense counsel objected to several of the recommended conditions contained in the presentence investigation (PSI) report. Most relevant for our purposes are defense counsel’s objections to the recommended imposition of various fees and costs. Defense counsel specifically objected to the recommended imposition of a $50 presentence investigation fee and a $2244.39 fee for jury 6 costs, explaining that Floyd “has absolutely no assets; clothes on his back basically and maybe a few mementos[.]” The Court thereafter orally pronounced a sentence of 20 years in the Montana State Prison. The Court also stated that “with regard to paragraph 13 [the section of the PSI report recommending imposition of fees and costs] the Court suspended those unless the defendant can work given his age and the sentence of the Court.” ¶10 The Court signed the written judgment on March 19, 2012. The judgment ordered Floyd to be sentenced to Montana State Prison for 20 years, with no time suspended. The Court also recommended that “all the conditions recommended by Probation and Parole” in the PSI “should be conditions of the Defendant’s parole.” These conditions provided for the assessment of the fees and fines that the Court had suspended in its oral pronouncement of sentence. However, the written judgment did not reflect the oral pronouncement’s conditioning of the assessment of fees and costs on Floyd’s later ability to find work. ¶11 Floyd filed a notice of appeal on May 10, 2012, appealing the Court’s final written judgment entered March 19, 2012. STANDARD OF REVIEW ¶12 We review a district court’s denial of a request for the appointment of new counsel for an abuse of discretion. State v. Holm, 2013 MT 58, ¶ 16, 369 Mont. 227. A district court’s denial of a motion for a new trial is also reviewed for an abuse of discretion. State v. Stewart, 2012 MT 317, ¶ 23, 367 Mont. 503, 291 P.3d 1187. Last, this Court reviews a district court’s imposition of a sentence for legality only. State v. Kroll, 2004 MT 203, ¶ 12, 322 Mont. 294, 95 P.3d 717. 7 DISCUSSION ¶13 1. Was the District Court’s pre-trial inquiry into Hammer’s complaint about his counsel sufficient? ¶14 On appeal, Floyd contends that the District Court erred by failing to adequately inquire into his pre-trial letter requesting that he be appointed new counsel. Criminal defendants have a fundamental constitutional right to the effective assistance of counsel. U.S. Const. amend. VI; Mont. Const. art. II, § 24; State v. Meredith, 2010 MT 27, ¶ 50, 355 Mont. 148, 226 P.3d 571. However, indigent defendants cannot demand substitution of counsel if their appointed counsel has been providing effective assistance. State v. Dethman, 2010 MT 268, ¶ 15, 358 Mont. 384, 245 P.3d 30. Instead, when a defendant complains about ineffective assistance of appointed counsel and requests new counsel, a district court must make “adequate initial inquiry” as to whether the defendant’s allegations are “seemingly substantial.” Dethman, ¶ 16; Holm, ¶ 19; State v. Gallagher, 1998 MT 70, ¶ 15, 288 Mont. 180, 955 P.2d 1371. A district court conducts “adequate initial inquiry” “when it considers the defendant’s factual complaints together with counsel’s specific explanations and makes some sort of critical analysis of the complaint.” Dethman, ¶ 16. Conversely, a court’s initial inquiry may be inadequate if it fails to make “ ‘even a cursory inquiry’ ” into the defendant’s complaints. Gallagher, ¶ 15. If the trial court determines that the defendant has presented a “seemingly substantial” complaint, the court must hold a hearing to address the validity of the complaint. Gallagher, ¶ 15. However, no further inquiry is required if the 8 court determines that the defendant has failed to present a “seemingly substantial” complaint. Gallagher, ¶ 15. ¶15 Floyd argues that the Court’s pre-trial discussion of his letter was inadequate because it never addressed the substance of his complaint. As discussed above, the Court held an in- chambers meeting before trial to discuss Floyd’s complaint that Eschenbacher had failed to adequately pursue using Ms. Combs as a defense witness. At this meeting, the Court asked Floyd whether he had problems communicating with his counsel and whether his complaint regarding Ms. Combs still applied. Floyd responded that there were no communication problems and answered that his concerns involving Ms. Combs no longer applied. Mr. Eschenbacher then explained that he had planned on potentially calling Ms. Combs as a surrebuttal witness, and the parties proceeded to trial. ¶16 We conclude that the District Court conducted an adequate initial inquiry. The Court directly questioned Floyd about his pre-trial letter and Floyd denied that the concerns he expressed therein still applied. Mr. Eschenbacher explained the strategy behind not including Ms. Combs in the defense’s witness disclosure. The Court explicitly afforded Floyd the opportunity to address the complaints contained in his letter. Floyd chose to instead deny that his concerns still applied. The record therefore reflects that the District Court possessed sufficient information to determine whether Floyd had raised substantial complaints about Eschenbacher’s alleged failure to contact Ms. Combs. The District Court accordingly conducted an adequate initial inquiry into Floyd’s pre-trial complaint. See Holm, ¶¶ 20-22; Dethman, ¶¶ 18-19. 9 ¶17 We similarly conclude that the District Court did not abuse its discretion by declining to further consider Floyd’s complaints in a hearing. Such a hearing is only necessary when the defendant presents a “seemingly substantial” complaint about inadequate counsel during the initial inquiry. Holm, ¶ 19; Gallagher, ¶ 15. Floyd’s letter expressed concern over Eschenbacher’s alleged failure to contact Ms. Combs and claimed that Eschenbacher had misled him into believing that Ms. Combs would be used as a witness. Floyd denied that these concerns still applied when the Court conducted an initial inquiry into his request for new counsel, belying the seeming substantiality of his complaint. However, even if we were to disregard Floyd’s answer, Floyd’s letter presented the same sort of complaints regarding trial strategy that we dismissed in Holm and Dethman. ¶18 Holm claimed that his counsel’s trial strategy had been inadequate because he had failed to subpoena witnesses and did not hire or call certain expert witnesses. Holm, ¶ 20. We applied the “ ‘time-honored rule that courts must accord great deference to defense counsel’s exercise of judgment in determining appropriate defense and trial strategy’ ” to conclude that the District Court did not abuse its discretion when it determined that Holm’s complaints were not “seemingly substantial.” Holm, ¶ 23. This ruling was based on our similar conclusion in Dethman. Dethman also disagreed with his trial counsel’s strategy, specifically complaining of his counsel’s refusal to present witnesses, testimony, and evidence that he requested. Dethman, ¶ 6. We concluded, however, that vague assertions of a difference in opinion as to how to proceed with the case could not overcome the “great deference” that courts afford counsel in determining appropriate defenses and trial strategy. 10 Dethman, ¶ 19 (citing State v. Kaske, 2002 MT 106, ¶ 33, 309 Mont. 445, 47 P.3d 824). Our review of the record presented in this case leads us to the conclusion that additional hearings into the concerns Floyd raised in his pre-trial letter were unnecessary. The District Court conducted an adequate initial inquiry into Floyd’s request for new counsel. This inquiry did not uncover “seemingly substantial” complaints about Eschenbacher’s trial strategy given the “great deference” we afford counsel. Dethman, ¶ 19. We consequently hold that the District Court did not abuse its discretion by denying Floyd’s request for new counsel. ¶19 2. Did the District Court err in denying Hammer’s motion for a new trial? ¶20 Floyd next contends that the District Court erred by failing to grant a new trial. Floyd specifically argues that his second, September 28, 2011 letter to the Court should have been construed as a timely motion for a new trial, or that, in the alternative, the District Court should have exercised its “inherent power to order a new trial sua sponte when required in the interest of justice.” The State responds that Floyd’s second letter addressed the appointment of counsel in a different case, DC 11-78, and did not ask the Court to grant a new trial or take any action in this case, DC 11-38. The State also asserts that Floyd’s motion for a new trial is barred by the 30-day deadline found in § 46-16-702, MCA. ¶21 Floyd first claims that his September 28, 2011 letter should have been construed as a motion for a new trial. Floyd relies on State v. Finley, 276 Mont. 126, 915 P.2d 208 (1996), to argue that the legal effect of a motion should be measured by its content, rather than its title. However, the letter in question neither clearly addressed the proceedings in DC 11-38 11 nor asked the Court for any sort of relief in that matter. In the letter, Floyd stated that he was: writing this letter to you requesting that you apoint [sic] me another attorny [sic] for my upcomeing [sic] trial which is due to start on 10-24-2011. Because of the out turn of my last trial, I strongely [sic] feel it is important that I receive a fair trial. I also feel that if I had (Cheryl Combs) [sic] to testify at my last trial, it would of turned out different. The letter’s reference to his prior complaints about the use of Ms. Combs in DC 11-38 is an attempt to justify his request for a new attorney in a different matter, and do not suggest that Floyd is requesting a new trial. ¶22 This distinguishes Floyd’s letter from the motion considered in Finley. There, the defendant filed a pro se motion titled as a motion for a change of venue. Finley, 276 Mont. at 142. We considered whether the District Court erred by not conducting a hearing on complaints about the effectiveness of counsel that Finley included in the change of venue motion. Of the six reasons Finley listed in his motion to change venue, three complained of ineffective assistance of counsel. Finley, 126 Mont. at 142. We determined that the motion consequently contained “sufficient indicia that it was in substance a motion complaining of ineffective assistance of counsel” and construed it as such. Finley, 126 Mont. at 142. Here, the Court was faced with a letter referencing a different case that made a vague assertion that the defendant believed a previous trial would have turned out differently if a certain witness had been called. The content of Floyd’s letter most clearly indicates that its intended legal effect was to spur the appointment of new counsel in an upcoming trial in another matter. The letter contained no indicia that Floyd desired a new trial in this case. The decision to 12 deny a motion for a new trial shall not be disturbed absent an abuse of judicial discretion, which occurs when the court acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. State v. Fadness, 2012 MT 12, ¶ 18, 363 Mont. 322, 268 P.3d 17. Declining to construe Floyd’s second letter as a motion for a new trial did not exceed the bounds of reason. We conclude that the District Court did not err by declining to treat Floyd’s September 28, 2011 letter as a motion for a new trial. ¶23 Second, the Court did not abuse its discretion by dismissing Floyd’s motionfor a new trial. Section 46-16-702(2), MCA, clearly provides that “[t]he motion [for a new trial] must be filed by the defendant within 30 days following a verdict or finding of guilty and must be served upon the prosecution.” Floyd filed his motion for a new trial on December 9, 2011, 73 days after the September 27, 2011 guilty verdict. Floyd now attempts to circumvent the 30-day deadline by appealing to the power of a court to grant a new trial in the interests of justice. See § 46-16-702(1), MCA. While Floyd is correct that a district court may grant a new trial sua sponte if justice so requires, we have strictly adhered to the 30-day deadline where defendants moved for a new trial pursuant to § 46-16-702(2), MCA. As we explained in State v. Baker, 2013 MT 113, 370 Mont. 43, 300 P.3d 696, “while [State v. Brummer] recognizes a district court’s inherent power to grant a new trial, it does not excuse a defendant from filing a motion for a new trial within 30 days of the verdict as required by § 46-16-702, MCA.” Baker, ¶ 38. There is no provision for extending the 30-day time limit of § 46-16-702(2), MCA. State v. McCarthy, 2004 MT 312, ¶ 42, 324 Mont. 1, 101 P.3d 13 288. Thus, “ ‘so far as the defendant is concerned, he may move for a new trial, and if he so moves, his motion must be in writing and filed within 30 days of the verdict[.]’ ” Baker, ¶ 38 (quoting Brummer, ¶ 46). In light of the above, it was not an abuse of discretion for the District Court to deny Floyd’s motion for a new trial. ¶24 3. Did the District Court err in assessing fees, costs, and surcharges in the written judgment when these amounts were not orally pronounced? ¶25 Floyd finally argues that the District Court erred both by imposing fees and costs in the written judgment that were not included in the oral pronouncement of sentence and by failing to inquire into his ability to pay these costs. We will first address Floyd’s claim challenging the Court’s inquiry into Floyd’s ability to pay the suspended costs. ¶26 Floyd claims that the Court erred during the sentencing hearing by failing to determine Floyd’s ability to pay costs pursuant to § 46-18-232(2), MCA. This claim is contradicted by a review of the record. Indeed, the Court suspended the imposition of costs due to its determination, based on Floyd’s age (65), the length of the sentence imposed, and defense counsel’s representations of Floyd’s financial resources, that Floyd lacked a present or future ability to pay the costs unless he could find employment. Section 46-18-232(2), MCA, states that: [t]he court may not sentence a defendant to pay costs unless the defendant is or will be able to pay them. In determining the amount and method of payment of costs, the court shall take into account the financial resources of the defendant, the future ability of the defendant to pay costs, and the nature of the burden that the payment of costs will impose. 14 The Court suspended the assessment of fees because it took Floyd’s present financial resources and future ability to pay into account. We conclude that this inquiry into Floyd’s wherewithal satisfied the requirements of § 46-18-232(2), MCA. ¶27 Regarding the discrepancy between the Court’s oral pronouncement of sentence and the written judgment, we have repeatedly held that the oral pronouncement of a sentence controls where a conflict exists between the oral and written judgments. State v. Clark, 2008 MT 317, ¶ 10, 346 Mont. 80, 193 P.3d 934; Kroll, ¶ 18. While the written judgment does not suspend the imposition of costs, the oral pronouncement indicated that the Court intended to suspend costs unless Floyd was able to find employment on parole. This case presents a situation similar to that addressed in State v. Goff, 2011 MT 6, 356 Mont. 548, 228 P.3d 450. There, the District Court did not specifically state in its written judgment that the conditions it imposed for probation or parole applied only to one sentence. Goff, ¶ 29. This distinction was made, however, at the oral pronouncement of sentence. We applied the rule that the oral pronouncement of sentence is the legally effective sentence and concluded that it was “necessary that we remand this cause to the District Court with instructions to enter an amended judgment in conformance with its oral pronouncement of sentence and this Opinion.” Goff, ¶¶ 31-33. Like in Goff, Floyd’s written sentence “does not conform entirely to the oral pronouncement of sentence.” Goff, ¶ 32. Because the oral pronouncement is the legally effective sentence, the suspension of costs announced by the Court at the sentencing hearing controls. Clark, ¶ 10. To prevent confusion, however, we similarly conclude that it 15 is necessary to remand this cause to the District Court with instructions to enter an amended judgment in conformance with its oral pronouncement of sentence. See Goff, ¶ 33. ¶28 However, Floyd argues, for the first time on appeal, that a remand to the District Court to reform the written judgment to include the suspension of costs would go beyond the powers afforded to the Department of Corrections in Title 46, chapter 23 of the Montana code. While we will not review issues where the defendant failed to make a contemporaneous objection to the alleged error at the trial court, we have created an exception to this rule where a defendant alleges that a sentence is illegal or exceeds statutory parameters. State v. Micklon, 2003 MT 45, ¶ 8, 314 Mont. 291, 65 P.3d 559; State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997 (1979). We conclude, however, that Floyd’s argument misapprehends the nature of the suspended costs. Here, the Court imposed a supervision fee pursuant to § 46-23-1031, MCA; a felony offense surcharge pursuant to § 46-18-236(1)(b), MCA; a victim and witness advocate program surcharge pursuant to § 46- 18-236(1)(c), MCA; a court information technology fee pursuant to § 3-1-317, MCA; a PSI report fee pursuant to § 46-18-111(3), MCA; and a jury trial fee pursuant to § 46-18-232, MCA. District courts may impose sentences that are authorized by a specific grant of statutory authority. State v. Burch, 2008 MT 118, ¶ 23, 342 Mont. 499, 182 P.3d 66. District courts also possess the ability to condition the suspension of the execution of all or part of a sentence. Section 46-18-201(4), MCA. At the oral pronouncement of sentence, the Court stated “And with regard to paragraph 13 [the paragraph of the PSI imposing costs] the Court suspended those unless the defendant can work given his age and the sentence of the 16 Court.” In State v. Heafner, we concluded that district courts have the power to impose conditions upon a sentence, including fines and surcharges, where specifically authorized by statute. State v. Heafner, 2010 MT 87, ¶¶ 5-6, 13, 356 Mont. 128, 231 P.3d 1087. Here, costs were imposed, and suspended pending the fulfillment of a specific condition, by the District Court at the oral pronouncement of sentence. This was within the Court’s power, Heafner, ¶¶ 6, 13, and the sentence imposed at the oral pronouncement controls. Clark, ¶ 10. Thus, on remand, the District Court should restate the costs listed in the written judgment at condition 13 as conditions of the sentence, suspended pending Floyd’s future ability to obtain work, to conform the written judgment to the oral pronouncement of sentence. Heafner, ¶ 13. CONCLUSION ¶29 The District Court performed an adequate inquiry into Floyd’s pre-trial complaints about his appointed counsel, and when questioned by the Court, Floyd indicated that his concerns no longer applied. We accordingly conclude that the Court performed a sufficient inquiry into Floyd’s complaints and did not abuse its discretion by denying Floyd’s request for new counsel. We similarly affirm the Court’s denial of Floyd’s untimely motion for a new trial. We remand the case so that the District Court may conform the written judgment to the oral pronouncement of sentence, which conditioned any assessment of fees upon Floyd’s future ability to obtain work if released on parole. _________________________________ /S/ MICHAEL E WHEAT 17 We concur: /S/ MIKE McGRATH /S/ JIM RICE /S/ BETH BAKER /S/ BRIAN MORRIS | July 23, 2013 |
734258b2-f953-4e0d-8d42-7249cb2d2b0b | Metro Aviation, Inc. v. United States | 2013 MT 193 | OP 12-0429 | Montana | Montana Supreme Court | OP 12-0429 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 193 METRO AVIATION, INC., et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. ORIGINAL PROCEEDING: Certified Question, United States District Court District of Utah, Central Division Honorable Tena Campbell, Presiding Judge COUNSEL OF RECORD: For Plaintiffs: Mark S. Northcraft (argued), James R. Morrison, Northcraft, Bigby & Biggs, P.C., Seattle, Washington Robert H. Bullock, Brian G. Martin, Strong & Hanni, Salt Lake City, Utah For Defendant: Stuart F. Delery, Acting Assistant Attorney General, U.S. Department of Justice, Washington, District of Columbia David B. Barlow, United States Attorney, Jeannette Swent, Assistant United States Attorney, District of Utah, Salt Lake City, Utah Steven A. Kirsch (argued), Jill Dahlmann Rosa, United States Department of Justice, Washington, District of Columbia For Amicus Montana Defense Trial Lawyers: Nicholas J. Pagnotta (argued), Williams Law Firm, Missoula, Montana Dale R. Cockrell, Moore, Cockrell, Goicoechea & Axelberg, P.C., Kalispell, Montana July 16 2013 2 For Amicus Montana Trial Lawyers Association: L. Randall Bishop (argued), Bishop & Heenan, Billings, Montana Lawrence A. Anderson, Attorney at Law, Great Falls, Montana Argued: May 14, 2013 Submitted: May 15, 2013 Decided: July 16, 2013 Filed: __________________________________________ Clerk 3 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 We accepted certified questions from the U.S. District Court for the District of Utah, which we have reformulated in accordance with M. R. App. P. 15(4) and our Order of July 31, 2012: ¶2 May a person who has settled a claim with a victim then bring an action for contribution against a joint tortfeasor under § 27-1-703, MCA, even though the victim never filed a court action? ¶3 Where a defendant in a pending action enters into a settlement with the plaintiff in advance of trial, does § 27-1-703, MCA (1997), allow the settling defendant to bring a subsequent contribution action against a person who was not a party in the tort action? ¶4 Does Montana recognize a common law right of indemnity where the negligence of the party seeking indemnification was remote, passive, or secondary, compared to that of the party from whom indemnity is sought? ¶5 We answer no to each of these certified questions. FACTUAL AND PROCEDURAL BACKGROUND ¶6 In February 2007, a small plane owned by Metro Aviation, Inc. (Metro) crashed near Bozeman, Montana. The pilot, who was an employee of Metro, and both passengers, Paul Erickson and Darcy Dengel, died in the crash. All three were Montana residents. Following the accident, Erickson’s estate filed a claim with Metro’s insurers. (Metro and its insurers will be referred to collectively as Metro.) Metro settled Erickson’s claim without litigation (Erickson claim). Dengel’s estate filed suit against Metro (Dengel action) and Metro settled with Dengel’s estate before trial. At no time 4 was the United States a party to the Dengel action nor was it involved in settlement negotiations with either Erickson’s or Dengel’s estates. ¶7 Metro then filed suit under the Federal Tort Claims Act against the United States in the U.S. District Court for the District of Montana, alleging negligence by the Federal Aviation Administration (FAA) air traffic controllers at the air traffic control center in Salt Lake City, Utah (where Montana air traffic is controlled). Metro asserted alternative claims of indemnity and contribution and sought to recover, among other losses, the settlement amounts paid to the Erickson and Dengel estates. The United States moved to have the case transferred to the U.S. District Court for the District of Utah and the court granted the motion. ¶8 The United States moved for partial summary judgment on Metro’s indemnity and contribution claims asserting that under both Utah and Montana law, these claims are barred. Metro concurred that Utah law bars these claims but argued that Montana law applies and allows the claims. The federal Utah court concluded that Montana law is applicable but that Montana law in this area is unsettled. For this reason, the court certified the above-referenced questions of law to the Montana Supreme Court. We accepted the court’s certified questions by Order dated July 31, 2012. Oral argument was held on May 14, 2013. STANDARD OF REVIEW ¶9 When answering a certified question as permitted by M. R. App. P. 15(3), this Court’s review is “purely an interpretation of the law as applied to the [pertinent] facts 5 underlying the action.” Thrivent Fin. v. Andronescu, 2013 MT 13, ¶ 6, 368 Mont. 256, 300 P.3d 117 (citation omitted). DISCUSSION ¶10 This case raises questions pertaining to the rights to contribution and indemnity. The right of contribution is established by statute, while the right to indemnity invokes equitable principles. State Farm Fire and Cas. Co. v. Bush Hog, LLC, 2009 MT 349, ¶ 6, 353 Mont. 173, 219 P.3d 1249. Contribution and indemnity are similar in that the essential purpose of both is to shift one’s losses to another. Bush Hog, ¶ 6. The objective of contribution is to allocate liability among all responsible parties. Bush Hog, ¶ 7. Contribution distributes loss among joint tortfeasors by requiring each tortfeasor to pay his or her proportionate share based upon his or her proportion of the negligence which proximately caused the plaintiff’s injuries. Durden v. Hydro Flame Corp., 1999 MT 186, ¶ 25, 295 Mont. 318, 983 P.2d 943. Conversely, indemnity “shifts the entire loss from the one who has been required to pay it to the one who should bear the loss.” Durden, ¶ 25. (Emphasis added.) With these principles in mind, we first address the certified questions pertaining to contribution. ¶11 May a person who has settled a claim with a victim then bring an action for contribution against a joint tortfeasor under § 27-1-703, MCA, even though the victim never filed a court action? ¶12 Section 27-1-703, MCA, entitled “Multiple defendants—determination of liability,” provides in relevant part: (1) Except as provided in subsections (2) and (3), if the negligence of a party to an action is an issue, each party against whom recovery may be allowed is jointly and severally liable for the amount that may be awarded 6 to the claimant but has the right of contribution from any other person whose negligence may have contributed as a proximate cause to the injury complained of. (2) A party whose negligence is determined to be 50% or less of the combined negligence of all persons described in subsection (4) is severally liable only and is responsible only for the percentage of negligence attributable to that party, except as provided in subsection (3). The remaining parties are jointly and severally liable for the total less the percentage attributable to the claimant and to any person with whom the claimant has settled or whom the plaintiff has released from liability. (3) A party may be jointly liable for all damages caused by the negligence of another if both acted in concert in contributing to the claimant’s damages or if one party acted as an agent of the other. (4) On motion of a party against whom a claim is asserted for negligence resulting in death or injury to person or property, any other person whose negligence may have contributed as a proximate cause to the injury complained of may be joined as an additional party to the action. For purposes of determining the percentage of liability attributable to each party whose action contributed to the injury complained of, the trier of fact shall consider the negligence of the claimant, injured person, defendants, and third-party defendants. The liability of persons released from liability by the claimant and persons with whom the claimant has settled must also be considered by the trier of fact, as provided in subsection (6). The trier of fact shall apportion the percentage of negligence of all persons listed in this subsection. Nothing contained in this section makes any party indispensable pursuant to Rule 19, Montana Rules of Civil Procedure. (5) If for any reason all or part of the contribution from a party liable for contribution cannot be obtained, each of the other parties shall contribute a proportional part of the unpaid portion of the noncontributing party’s share and may obtain judgment in a pending or subsequent action for contribution from the noncontributing party. A party found to be 50% or less negligent for the injury complained of is liable for contribution under this section only up to the percentage of negligence attributed to that party. . . . 7 (6)(c) Except for persons who have settled with or have been released by the claimant, comparison of fault with any of the following persons is prohibited: (i) a person who is immune from liability to the claimant; (ii) a person who is not subject to the jurisdiction of the court; or (iii) any other person who could have been, but was not, named as a third party. ¶13 Acknowledging that the Erickson claim was settled without any litigation having been filed, Metro urges this Court to broadly interpret the word “action” contained in § 27-1-703, MCA, to include the “process and procedure of a third party making an insurance claim for damages and the settlement thereof prior to the commencement of a lawsuit.” In other words, Metro argues that the term “action” in the statute should encompass the Erickson claim despite the fact that Erickson’s estate did not file a lawsuit against Metro prior to settling the claim. Metro further asserts that the language of § 27-1-703, MCA, grants to a “party” a right of contribution from “any other person” except in the circumstances set forth in subsections (2) and (3). Under Metro’s proposed interpretation, the Erickson estate’s insurance claim constitutes an “action,” and the United States need not have been a “party” to that “action” for Metro to subsequently seek contribution from the United States. ¶14 The United States counters that the statute, its legislative history and Montana case law support a conclusion that “a right of contribution exists for parties to a court action only, and must take place within the original plaintiff’s cause of action.” It maintains that the only method provided by the Legislature for exercising the right of contribution against a nonparty is for a defendant to join the “other person” as a party to a case. The 8 United States submits that because Metro settled with the Erickson estate without the commencement of any litigation, Metro was never made “a party to an action” as required by § 27-1-703(1), MCA, and enjoys no right of contribution stemming from Metro’s settlement with the Erickson estate. ¶15 Though there have been many revisions to Montana’s comparative negligence statute,1 § 27-1-703, MCA, as noted by both parties to this appeal, we focus on the language of the current statute. As it pertains to Certified Question No. 1, § 27-1-703(1), MCA, is dispositive: “[I]f the negligence of a party to an action is an issue, each party against whom recovery may be allowed . . . has the right of contribution from any other person whose negligence may have contributed . . . to the injury complained of.” (Emphasis added.) We find no legal support for Metro’s argument that we should interpret “action” to include the filing of an insurance claim as opposed to the filing of a lawsuit, nor does Metro provide us with any such authority. The body of case law addressing contribution among joint tortfeasors under § 27-1-703, MCA, involves negligence lawsuits in which one party has sued another party in a court of law. We have never applied § 27-1-703, MCA, in a situation where there was no litigation. ¶16 An “action” is defined as “[a] civil or criminal judicial proceeding” in Black’s Law Dictionary 28 (Bryan A. Garner ed., 7th ed., West 1999). Moreover, among Montana’s statutes, “action” is defined in various ways including, (1) “a judicial proceeding or 1 Section 27-1-703, MCA, was enacted in 1977 and amended in 1981, 1987, 1995, and 1997. In Plumb v. Fourth Judicial Dist. Court, 279 Mont. 363, 927 P.2d 1011 (1996), superseded by statute, we provided a detailed discussion of § 27-1-703, MCA, from its enactment through the 1995 amendment. We do not repeat this historic review here. 9 arbitration in which a payment in money may be awarded or enforced with respect to a foreign-money claim” (§ 25-9-702(1), MCA); (2) “a special proceeding of a civil nature” (§ 27-2-101, MCA); and (3) “any civil lawsuit or action in contract or tort for damage or indemnity brought against a construction professional to assert a claim . . . for damage or the loss of use of real or personal property caused by a defect in the construction or remodeling of a residence” (§ 70-19-426(1)(a), MCA). Further, Black’s Law Dictionary defines “party” as “one by or against whom a lawsuit is brought.” Black’s Law Dictionary at 1144. Metro neither qualifies as a “party,” nor does an insurance settlement qualify as an “action” under these well-established definitions. Lastly, M. R. Civ. P. 3 provides that a civil “action” is commenced by the filing of a complaint with the court. There having been no action to which Metro was a party, Metro may not now seek contribution against the United States under § 27-1-703, MCA. We therefore answer no to Certified Question No. 1. Metro may not seek contribution from the United States with respect to the Erickson settlement. ¶17 Where a defendant in a pending action enters into a full settlement with the plaintiff in advance of trial, does § 27-1-703, MCA (1997), allow the settling defendant to bring a subsequent contribution action against a person that was not a party in that action? ¶18 We next turn to the question presented with respect to the Dengel action. As noted above, the Dengel estate filed a negligence action against Metro, and therefore Metro was a party to a lawsuit as contemplated under § 27-1-703, MCA. However, Metro settled with the Dengel estate prior to trial without ever joining the United States as a party. Metro then sought to bring a separate contribution action against the United States. 10 Metro insists that the statute permits a separate and subsequent contribution action, while the United States asserts that the statute contemplates only one method for exercising the right of contribution against a nonparty, and that is by way of joinder in the original action. ¶19 As noted above, the right to contribution is a strictly statutory right. Section 27-1-703(4), MCA, spells out how a party goes about seeking contribution from another person whose negligence may have contributed to the injury. It provides in pertinent part that “[o]n motion of a party against whom a claim is asserted for negligence . . . any other person whose negligence may have contributed as a proximate cause to the injury complained of may be joined as an additional party to the action.” It further provides that “[t]he trier of fact shall apportion the percentage of negligence of all persons listed in this subsection.” Clearly, a single action is contemplated. The sole circumstance under which a subsequent action for contribution is permitted is that set forth in § 27-1-703(5), MCA. This section of the statute permits a subsequent action for contribution from the noncontributing party only where “for any reason all or part of the contribution from a party liable for contribution cannot be obtained.” Clearly, this provision assumes that liability for contribution has already been determined in the preceding single action referenced in § 27-1-703(4), MCA. ¶20 The problem with accepting Metro’s premise that a stand-alone contribution claim is permitted under the statute is that the statute does not provide how such a claim would be undertaken. As is obvious from a review of § 27-1-703, MCA, constructing a procedure and remedy in matters involving multiple defendants is a complicated 11 business. Were we to allow a separate action for contribution, what would be the parameters? Unlike here—where the plaintiff decedent as a passenger was not capable of comparative fault—what if the third party named in the stand-alone contribution claim contended that the plaintiff in the original action was partly at fault? Would this bring the plaintiff back into a new separate action, after he has already secured his judgment or settlement and presumably brought finality to the process? What of other settling parties? These questions call for answers that this Court does not have. It is not the province of this Court to read into a statute a proceeding that the statute does not contemplate, nor is it our function to then fashion a procedure for how that case would be tried. Section 1-2-101, MCA (In statutory construction, courts may “not insert what has been omitted or . . . omit what has been inserted.”). See also Swanson v. Hartford Ins. Co., 2002 MT 81, ¶ 22, 309 Mont. 269, 46 P.3d 584. ¶21 Had the Legislature intended to provide a defendant in a pending action the option to bring a separate subsequent contribution action against a third party, it would have done so. It did not. We will not presume to do so either. Therefore, we answer the second question, as reformulated above, no. ¶22 Does Montana recognize a common law right of indemnity where the negligence of the party seeking indemnification was remote, passive, or secondary, compared to that of the party from whom indemnity is sought? ¶23 Unlike contribution, indemnity “shifts the entire loss from the one who has been required to pay it to the one who should bear the loss.” Durden, ¶ 25. Metro seeks indemnity from the United States, claiming that its own negligence, if any, was remote, passive, or secondary while the negligence of the FAA was active. It argues that 12 “fundamental fairness” dictates that because it is not in pari delicto with the United States, the United States should bear responsibility for the entire amount of the settlements it paid to Dengel and Erickson. ¶24 We reject this argument. In State ex rel. Deere & Co. v. District Court, 224 Mont. 384, 730 P.2d 396 (1986), we observed that fixing responsibility in indemnity actions premised upon active versus passive conduct, was neither “sensible” nor “practical.” Deere, 224 Mont. at 398, 730 P.2d at 405-06. In State v. Butte-Silver Bow County, 2009 MT 414, 353 Mont. 497, 220 P.3d 1115, we held that the State could not obtain common law indemnity from the County, because the State was negligent in part; it lacked “clean hands.” Butte-Silver Bow County, ¶ 33. ¶25 Again, the premise of indemnity is that the other party should bear the entire loss. Indemnity would not be fair or appropriate where both parties allegedly are negligent in causing the plaintiff’s injuries. We have prohibited claims for indemnity between or among joint tortfeasors. Deere; Consolidated Freightways Corp. v. Osier, 185 Mont. 439, 605 P.2d 1076 (1979); see also Panasuk v. Seaton, 277 F. Supp. 979 (D. Mont. 1968). At common law, “if the concurrent negligence of two or more persons causes an injury to a third person, they are jointly and severally liable, and the injured person may sue them jointly or severally, and recover against one or all.” Jones v. Northwestern Auto Supply Co., 93 Mont. 224, 231, 18 P.2d 305, 307 (1932) (quoting Black v. Martin, 88 Mont. 256, 265, 292 P. 577, 580 (1930)). As Judge Jameson observed in Panasuk, we recognized the general rule that, in such circumstances, “one of the several wrongdoers cannot recover against another wrongdoer although he may have been compelled to pay 13 all the damages for the wrong done.” Panasuk, 277 F. Supp. at 980-81 (quoting Variety, Inc. v. Hustad Corp., 145 Mont. 358, 368, 400 P.2d 408, 414 (1965)). The Legislature has crafted a mechanism for allocation of responsibility where a plaintiff is injured by the acts or omissions of multiple tortfeasors. Section 27-1-703, MCA. In such circumstances, the statute applies, not the common law remedy of indemnity. Section 1-1-108, MCA. ¶26 By law, the pilot in command of an aircraft is directly responsible for the operation of that aircraft and may take immediate action to meet an in-flight emergency, notwithstanding deviation from otherwise applicable rules. 14 C.F.R. § 91.3 (1-1-07 edition). Metro acknowledged in its opening brief “that the pilot . . . may have experienced either a black hole illusion or other type of illusion just prior to the accident.” It further alluded during oral argument to this problem and to a possible electrical failure. It thus allowed that there could have been at least some degree of negligence on the part of Metro. Metro’s claim for indemnity against the United States must fail under these circumstances in light of the foregoing authorities. ¶27 For the foregoing reasons, we conclude that Metro is not entitled to indemnity from the United States. We therefore answer the third of the certified questions, no. /S/ PATRICIA COTTER 14 We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ JIM RICE /S/ LAURIE McKINNON | July 16, 2013 |
8c20929b-41fc-49f0-814d-b0d5ed7e244c | Kelly Olsen v. State | 2013 MT 206N | DA 12-0723 | Montana | Montana Supreme Court | DA 12-0723 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 206N KELLY L. OLSEN, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-07-402 Honorable Ed McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Kelly L. Olsen (Self-Represented), Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Fred R. Van Valkenberg, Missoula County Attorney, Susan E. Boylan, Deputy County Attorney, Missoula, Montana Submitted on Briefs: June 26, 2013 Decided: July 23, 2013 Filed: __________________________________________ Clerk July 23 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Olsen appeals from the District Court’s denial of his motion to amend judgment. ¶3 During August and early September 2007, Kelly Olsen violated an order of protection by repeatedly contacting his wife by telephone and leaving messages. He was subsequently charged with 34 felony counts of Violation of Order of Protection—3rd (or subsequent) Offense. On October 24, 2007, he entered pleas of not guilty to all charges. On December 9, 2007, Olsen was released from the Missoula County Detention Center and transported to the Montana Chemical Dependency Center where he had a December 10, 2007 bed date. ¶4 On February 6, 2008, the District Court conducted a change of plea hearing at which Olsen entered guilty pleas to Counts I-VII and the State dismissed Counts VIII-XXXIV. Olsen was sentenced on March 26, 2008, as follows: Counts I-III sentence deferred for one year but to run concurrent with each other; Counts IV-VII two years suspended for each count at Montana State Prison (MSP) to run consecutive with each other but concurrent with Counts I-III. ¶5 On May 28, 2008, Olsen was arrested for violating the protection order again. On June 23, 2008, the State filed a Petition to Revoke and on June 25, 2008, the court 3 conducted a hearing on the State’s petition. The hearing was continued to July 16, 2008, however, because Olsen and his counsel had not yet received a copy of the State’s petition. On July 16, 2008, Olsen, appearing via video conferencing from the detention center, denied the alleged violations. ¶6 On January 9, 2009, Olsen, also via video conferencing, withdrew his previous denials and admitted to two allegations in the report of violation. The District Court revoked Olsen’s probationary sentence. On February 6, 2009, the District Court sentenced Olsen to two years at MSP for each Count I-III to run consecutively with each other and two years at MSP for each Count IV-VII to run consecutively with each other and concurrently with Counts I-III. He was given credit for 353 days for time served. ¶7 In September 2012, Olsen, no longer represented by counsel and representing himself, moved to amend his judgment on the ground that the State’s petition to revoke was untimely. He alleged that he had been in custody for 26 days before the petition to revoke was filed and that this delay was a clear violation of § 46-23-1012, MCA, which requires the State to file a report of violation within 10 days of the arrest of the probationer. The State agreed that Olsen had been in custody for 26 days before the petition to revoke was filed but argued that Olsen was not in custody for that period of time on a probation violation in this criminal case. Rather, the State asserted that Olsen was arrested on May 28, 2008, for both a probation violation in this case and a new felony charge in another criminal case. The Missoula County Detention Facility booking report indicated that Olsen was “released” on the probation violation on May 28, 2008, and was thereafter held on the felony charge in a separate criminal case. The District 4 Court denied Olsen’s motion to amend. Continuing to represent himself, Olsen filed this appeal in December 2012 challenging the District Court’s denial of his motion to amend the judgment. ¶8 On appeal, Olsen maintains that because he was detained more than 10 days in the Missoula County Detention Center in violation of § 46-23-1012, MCA, the District Court illegally revoked and then illegally sentenced him. The State, however, correctly asserts that because the District Court had no authority to “amend” Olsen’s sentence after it was pronounced, Olsen’s motion to amend would be better characterized and analyzed as a request for postconviction relief. ¶9 Section 46-23-1012, MCA, controls revocation proceedings for a probationer’s alleged violation. Among other things, § 46-23-1012, MCA, states: (3) A probation and parole officer may authorize a detention center to hold a probationer arrested under this section without bail for 72 hours. Within 72 hours following the probationer’s detention, the probation and parole officer shall: (a) authorize the detention center to release the probationer; . . . (4) If the probationer is detained and bond is set, the probation and parole officer shall file a report of violation within 10 days of the arrest of the probationer. ¶10 In the case before us, the record clearly indicates that Olsen’s probationary hold lasted a matter of hours, not days as alleged by Olsen. When Olsen was arrested on May 28, 2008, for a new felony offense, a $50,000 warrant was issued in the felony matter. Olsen was subsequently detained under this new warrant. The record is clear that his 26-day detention was not an unlawful probationary hold. 5 ¶11 Given that Olsen was released on his alleged probation violation within hours of his detention, there is nothing in the statute or our case law that precludes a subsequent report of violation to be issued 26 days later. See State v. Maynard, 2012 MT 115, 356 Mont. 333, 233 P.3d 331. ¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The issue in this case is legal and is controlled by settled Montana law which the District Court correctly interpreted. We therefore affirm the District Court. /S/ PATRICIA COTTER We Concur: /S/ MICHAEL E WHEAT /S/ JIM RICE /S/ BETH BAKER /S/ BRIAN MORRIS | July 23, 2013 |
cee92bad-06a0-4e84-a125-78a73b7da8c1 | City of Helena v. Detienne | 2013 MT 225N | DA 12-0696 | Montana | Montana Supreme Court | DA 12-0696 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 225N CITY OF HELENA, Plaintiff and Appellee, v. SHAWN OWEN DETIENNE, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDC 2012-171 Honorable Jeffrey M. Sherlock, Presiding Judge COUNSEL OF RECORD: For Appellant: Palmer A. Hoovestal, Hoovestal Law Firm, PLLC; Helena, Montana For Appellee: Tinothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General; Helena, Montana Jeffrey Hindoien, Helena City Attorney, Todd D. Baker, Deputy City Attorney; Helena, Montana Submitted on Briefs: July 17, 2013 Decided: August 13, 2013 Filed: __________________________________________ Clerk August 13 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Appellant Shawn Detienne (Detienne) appeals the order of the First Judicial District Court, Lewis and Clark County, denying his motion to suppress. We affirm. ¶3 Helena Police Officer Tim Coleman (Coleman) noticed a car in the parking lot next to Valley Bank on September 11, 2011, at approximately 2:45 a.m. The engine was running and the car’s lights were on. The driver, who was later identified as Detienne, was in the driver’s side seat lying against the door. ¶4 Officer Coleman decided to conduct a welfare check due to his concern that the “individual inside the vehicle was having medical [issues] or was highly intoxicated.” Coleman knocked on the car several times, but was unsuccessful in awakening the person. ¶5 Coleman opened the door to turn the car off when he noticed “a really strong odor of alcohol coming from the vehicle.” Coleman proceeded to conduct a DUI investigation. Coleman arrested Detienne for driving under the influence. ¶6 Detienne filed a motion with the Municipal Court to suppress the evidence of his intoxication after he was unlawfully seized. The Municipal Court denied the motion after holding an evidentiary hearing. Detienne appealed the denial of his motion to suppress to the District Court. 3 ¶7 The District Court held an oral argument on October 23, 2012. The District Court affirmed. The District Court determined that Officer Coleman possessed sufficient objective evidence to justify opening the door to the vehicle. The District Court further determined that the circumstances supported the likelihood that the person inside the car could be committing the offense of DUI. Detienne appeals. ¶8 Detienne argues on appeal that Coleman’s action of opening the car to remove the keys after Coleman was no longer concerned about Detienne’s welfare constitutes an unlawful seizure. Detienne further argues that his vehicle was properly parked with no damage or evidence of foul play. We review a district court’s grant or denial of a motion to suppress to determine whether the court’s findings are clearly erroneous and whether those findings were applied correctly as a matter of law. State v. Gill, 2012 MT 36, ¶ 10, 364 Mont. 182, 272 P.3d 60. ¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. It is manifest on the face of the briefs and the record before us that substantial evidence supports the District Court’s findings regarding Detienne’s motion to suppress and that the District Court correctly applied well settled Montana law. ¶10 Affirmed. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH 4 /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT /S/ JIM RICE | August 13, 2013 |
0f33199a-6da0-4520-b630-bdc74ecf48bf | Alfson v. Allstate | 2013 MT 326 | DA 13-0096 | Montana | Montana Supreme Court | DA 13-0096 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 326 JOHNATHAN ALFSON, Plaintiff and Appellee, v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 12-38 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Gregory G. Smith, Smith Oblander, PC; Great Falls, Montana For Appellee: Martin W. Judnich, Vincent J. Pavlish, Judnich Law Office; Missoula, Montana Submitted on Briefs: October 2, 2013 Decided: November 5, 2013 Filed: __________________________________________ Clerk November 5 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Allstate Property and Casualty Insurance Company (Allstate) appeals from the Order of the Montana Fourth Judicial District Court, Missoula County, granting declaratory judgment to Johnathon Alfson (Alfson) that required Allstate to advance pay wages Alfson lost due to injuries he alleges were caused by Allstate’s insured. We reverse. ISSUE ¶2 We review the following issue: ¶3 Did the District Court err in granting summary judgment in Alfson’s favor. FACTUAL AND PROCEDURAL BACKGROUND ¶4 On November 2, 2011, Allstate’s insured, Jack McCoy (McCoy) rear-ended Alfson’s pickup truck. Alfson declined medical treatment at the scene, but sought medical treatment following the collision. Dr. Rochelle Wolfe (Wolfe) wrote several short, unsworn letters advising that Alfson should not return to work due to his ongoing injuries. Since he could not return to work, Alfson demanded that Allstate pay his lost wages in advance of any settlement, supporting his request with Wolfe’s letters.1 He also submitted to Allstate a letter from his employer, Montana Rail Link, setting forth his wages for the month preceding the accident. Before paying the claimed lost wages, Allstate requested additional information, including medical records and tax returns. Alfson refused to produce this information. 1 Although Alfson’s request for advance payment does not appear in the record, Allstate’s response, dated January 6, 2012, does. Based on Allstate’s response, we assume that Alfson’s letter exists and was supported by the documents Allstate claims it was in its brief. 3 ¶5 On January 12, 2012, Alfson filed the instant action, seeking a declaration requiring Allstate to issue advance payments for lost wages in the amount of $24,117.09. In early March, just after Allstate had filed its Answer and discovery requests, Alfson moved for summary judgment and supported his motion with the accident report, as well as the same letters from Wolfe and from Montana Rail Link. He did not submit any sworn affidavits. ¶6 In late March, Allstate moved for a continuance, pursuant to M. R. Civ. P. 56(f)(2), so it could conduct additional discovery before responding to Alfson’s motion for summary judgment. Allstate argued additional discovery was required, including a physical examination pursuant to M. R. Civ. P. 35; and objected to Alfson’s unsworn documentation. On April 25, 2012, Allstate made a specific motion seeking a physical examination pursuant to M. R. Civ. P. 35. On April 27, 2012, the District Court denied Allstate’s Rule 56(f) motion and request for a Rule 35 examination, and granted summary judgment in Alfson’s favor. In granting summary judgment, the Court permitted Alfson to submit supplemental wage loss documentation from his employer. ¶7 On June 28, 2012, the District Court ordered that its order granting summary judgment be held in abeyance to allow Allstate to file a responsive brief in opposition to Alfson’s motion for summary judgment. Allstate filed its opposing brief, along with supporting affidavits. On August 17, 2012, the District Court reinstated and reaffirmed its April 27 award of summary judgment to Alfson and denial of Allstate’s request for Rule 56(f) relief. The District Court also denied Alfson’s motion to compel. In reinstating its original summary judgment order, the District Court relied on Wolfe’s letters. On December 4 4, 2012, the District Court issued a declaratory judgment requiring Allstate to advance pay Alfson’s lost wages. On January 7, 2013, the District Court also issued an order requiring Allstate to pay costs and attorney’s fees in the amount of $3,000.00. ¶8 Allstate appealed. STANDARD OF REVIEW ¶9 This Court reviews a district court’s grant of summary judgment de novo, applying the M. R. Civ. P. 56, criteria as applied by the district court. In re Estate of Harmon, 2011 MT 84, ¶ 14, 360 Mont. 150, 253 P.3d 821. Rule 56 provides that a party may move for summary judgment “with or without supporting affidavits.” M. R. Civ. P. 56(a). It also provides that the district court should grant summary judgment if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(2). ¶10 “This Court reviews a district court’s interpretation of law pertaining to a declaratory judgment ruling for correctness.” Med. Marijuana Growers Ass’n v. Corrigan, 2012 MT 146, ¶ 14, 365 Mont. 346, 281 P.3d 210. DISCUSSION ¶11 If a party moves for summary judgment without supporting affidavits, a court may only consider the pleadings and the discovery and disclosure materials on file in granting summary judgment. See M. R. Civ. P. 56(c)(2) (“The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that 5 there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”); Frenchtown Rural Fire District v. Ross, No. DV-11-734, 2011 Mont. Dist. LEXIS 57, **20-21 (4th Jud. Dist. Nov. 1, 2011) (in weighing a motion for summary judgment, the court would only consider the pleadings and relevant affidavits). A court need only consider admissible evidence in deciding whether summary judgment is an appropriate remedy. N. Cheyenne Tribe v. Roman Catholic Church, 2013 MT 24, ¶ 21, 368 Mont. 330, 296 P.3d 450; see Hiebert v. Cascade County, 2002 MT 233, ¶ 35, 311 Mont. 471, 56 P.3d 848 (excluding several exhibits supporting a summary judgment brief on the basis that they constituted “inadmissible hearsay”). Authentication, or setting forth “evidence sufficient to support a finding that the matter in question is what its proponent claims,” is a “condition precedent to admissibility.” M. R. Evid. 901(a). ¶12 In Disler v. Ford Motor Credit Co., 2000 MT 304, ¶¶ 11, 13, 302 Mont. 391, 15 P.3d 864, we determined that, where three loan documents were simply attached to the non- movant’s brief opposing summary judgment, we would not consider them on review of the district court’s decision. We reasoned that “without an affidavit or sworn discovery response of [an individual] . . . with personal knowledge of the genuineness, relevance and contents of the documents [(as required by M. R. Civ. P. 56(e)(1))], the attachments . . . were little more than inadmissible hearsay.” Disler, ¶ 11. Because no such sworn authentication for the documents’ contents existed, we based our decision only on the pleadings, answers to interrogatories, and admissions on file in the case and in the public record. Disler, ¶ 13. 6 ¶13 For items not enumerated in Rule 56 to be properly considered in support of a summary judgment motion, they must be authenticated by a sworn affidavit or discovery response. See M. R. Evid. 901 (authentication is a condition precedent to admissibility; describing means by which evidence may be authenticated); see also M. R. Civ. P. 56(e)(1) (“If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit.”); see also Disler, ¶¶ 11, 13. In Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550-51 (9th Cir. 1990), the Ninth Circuit stated: “It is well established that unauthenticated documents cannot be considered on a motion for summary judgment . . . . A document which lacks a proper foundation to authenticate it cannot be used to support a motion for summary judgment.” (Citations omitted.) We expressly adopted this rule in Smith v. Burlington Northern & Santa Fe Ry., 2008 MT 225, ¶¶ 47-48, 344 Mont. 278, 187 P.3d 639. We explained that exhibits may be submitted in support of an affidavit only “so long as they are accompanied by an affidavit or sworn discovery response of an individual with personal knowledge of their genuineness, relevance, and contents, or there is a foundation laid for such exhibits based on any exception to the rule excluding hearsay evidence.” Smith, ¶ 39 (citing Hiebert, ¶¶ 30-32; Disler, ¶ 11) (internal quotation omitted). Here, having filed the declaratory action and then seeking summary judgment, Alfson was obligated to comply with our rules governing summary judgment by submitting in support of his motion only properly authenticated supporting documents. He failed to do so. 7 ¶14 The District Court incorrectly granted summary judgment to Alfson. In granting summary judgment, the District Court considered and relied upon Wolfe’s letters, as well as the letter from Montana Rail Link. These informal letters were not supported by sworn affidavits or discovery responses. Alfson submitted no evidence of their genuineness, relevance, or the qualifications of their preparers. Without supporting affidavits “made on personal knowledge, [that] set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated,” M. R. Civ. P. 56(e)(1), these items lack the authentication for admissibility. It was, therefore, improper for the court to consider them in granting summary judgment. The District Court’s grant of summary judgment in Alfson’s favor, and declaratory judgment based on that summary judgment grant, are legally infirm and must be reversed. ¶15 Because we reverse the District Court’s grant of summary judgment and a declaratory judgment in Alfson’s favor, we remand this matter to the District Court. We decline to address the other issue Allstate raises in its appeal. ¶16 Reversed and remanded for proceedings consistent with this Opinion. /S/ MICHAEL E WHEAT We concur: /S/ BRIAN MORRIS /S/ PATRICIA COTTER 8 /S/ BETH BAKER /S/ JIM RICE | November 5, 2013 |
ef41630d-238d-4157-ad86-7cb104c1a1aa | Harris v. St Vincent Healthcare | 2013 MT 207 | DA 12-0602 | Montana | Montana Supreme Court | DA 12-0602 and DA 12-0661 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 207 DOROTHY J. HARRIS, Plaintiff and Appellant, v. ST. VINCENT HEALTHCARE, Defendant and Appellee, ****************************************** DOROTHY J. HARRIS and TEDEEN HOLBERT, Plaintiffs and Appellants, v. BILLINGS CLINIC, Defendant and Appellee. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV-12-0060 Honorable Gregory R. Todd, Presiding Judge Cause No. DV-12-0059 Honorable Russell C. Fagg, Presiding Judge COUNSEL OF RECORD: For Appellant: Alexander (Zander) Blewett, III, Andrew (Drew) Blewett, Hoyt & Blewett, Great Falls, Montana Jim Edmiston, Shane Colton, Joe Cook, Edmiston & Colton, Billings, Montana July 25 2013 2 For Appellee St. Vincent Healthcare: Brendon J. Rohan, Poore, Roth & Robinson, P.C., Butte, Montana For Appellee Billings Clinic: Ian McIntosh, Kenneth K. Lay, Crowley Fleck, PLLP, Bozeman, Montana Submitted on Briefs: May 28, 2013 Decided: July 25, 2013 Filed: __________________________________________ Clerk 3 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Dorothy J. Harris (Harris) and Tedeen Holbert (Holbert) appeal from orders in two separate cases from Montana’s Thirteenth Judicial District Court, Yellowstone County, dismissing Harris and Holbert’s breach of contract and constructive fraud claims against Billings Clinic, and Harris’ similar claims against St. Vincent Healthcare. We affirm both District Court decisions in this consolidated appeal. ISSUES ¶2 Harris and Holbert raise four issues on appeal. Ultimately, all of these issues can be addressed in the following inquiry: ¶3 1. Did the District Courts err in dismissing Harris and Holbert’s breach of contract and constructive fraud claims pursuant to M. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted? FACTUAL AND PROCEDURAL BACKGROUND ¶4 On November 9, 2008, Holbert was involved in an automobile accident caused by another driver. The at-fault driver carried a Farmers automobile insurance policy. Holbert received medical treatment at Billings Clinic on 30 occasions from the date of the accident to December 17, 2009. Billings Clinic billed Holbert for medical expenses related to the accident, which totaled $6,073.60. Farmers, as the at-fault driver’s insurer, remitted payment for Holbert’s medical expenses in full. ¶5 On February 25, 2010, Harris was injured in an unrelated automobile accident caused by a different third-party tortfeasor. The other driver carried a State Farm automobile insurance policy. Harris received medical treatment at St. Vincent Healthcare 4 on the day of the accident and on March 22, 2010. St. Vincent Healthcare billed Harris for medical expenses totaling $777.52. The third-party tortfeasor’s insurance carrier, State Farm, paid for Harris’ medical expenses incurred at St. Vincent Healthcare. Harris also received medical treatment at Billings Clinic for injuries sustained in the accident on nine occasions between April 26, 2010, and July 19, 2011. State Farm paid Harris’ $8,993.34 Billings Clinic bill. ¶6 During the relevant period of time when Holbert and Harris were patients of Billings Clinic and St. Vincent Healthcare, both Holbert and Harris were members of health plans administered by Blue Cross Blue Shield of Montana (BCBS). BCBS entered into a preferred provider agreement (PPA) with Billings Clinic and St. Vincent Healthcare. The pertinent terms of the PPAs are the same for both providers. Pursuant to the PPA, Billings Clinic and St. Vincent Healthcare agreed to accept payment from BCBS at a discounted reimbursement rate for certain medical services provided to BCBS insureds. ¶7 On January 13, 2012, Harris filed her complaint in District Court against Billings Clinic. Harris filed an amended complaint that added Holbert as a plaintiff on April 9, 2012. The amended complaint alleged individual and class claims of breach of contract and constructive fraud, and requested compensatory damages equal to the difference between the amount the third-party insurers paid to Billings Clinic and the reduced reimbursement rates under the PPA with BCBS. Judge Fagg presided in the case against Billings Clinic. 5 ¶8 On May 17, 2012, Billings Clinic filed a M. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. After the matter was fully briefed, the District Court granted Billings Clinic’s motion to dismiss on July 3, 2012. The District Court determined that an insured plaintiff is entitled to recover only the amount of medical expenses paid and accepted as payment in full by the medical provider, not the amount billed for such medical services. Otherwise, a plaintiff would receive a windfall because he would recover amounts he never incurred and would never have had to pay. Next, the District Court determined that Harris and Holbert did not show that they suffered any detriment or legally cognizable damages based on their claims. The District Court concluded that Harris and Holbert did not owe Billings Clinic any additional amount and therefore had been made whole. The District Court reasoned that even if Billings Clinic had charged the third-party insurers at the reduced rate pursuant to the PPA, Harris and Holbert would essentially have been in the same exact position had the alleged breach never occurred. The District Court noted that Harris and Holbert’s amended complaint did not contain any allegations that they had been deprived of settlement or insurance proceeds as a result of Billings Clinic’s conduct. ¶9 On January 13, 2012, Harris also filed a complaint against St. Vincent Healthcare. This case was assigned to Judge Todd. Harris filed her second amended complaint on April 3, 2012, in which she asserted the same individual and class claims as she did against Billings Clinic. On August 2, 2012, Harris filed a motion for class certification. St. Vincent Healthcare filed a M. R. Civ. P. 12(b)(6) motion to dismiss on August 3, 6 2012. The District Court held oral argument on the motion for class certification and the motion to dismiss. ¶10 On October 16, 2012, the District Court granted St. Vincent Healthcare’s motion to dismiss. The District Court determined that St. Vincent Healthcare was only contractually obligated to bill or collect discounted rates as set forth in the PPA when a patient received services that were paid for under a BCBS health plan. Under these circumstances, the District Court concluded that St. Vincent Healthcare did not breach any contractual obligation by billing State Farm according to its usual rates. Next, the District Court examined Harris’ constructive fraud claim and determined that St. Vincent Healthcare had no legal duty under the PPA to charge a third-party insurer at the BCBS reimbursement rate. Accordingly, the District Court concluded that Harris failed to state a claim upon which relief could be granted. ¶11 The cases against Billings Clinic and St. Vincent Healthcare present common questions for this Court. Harris and Holbert appeal both District Court orders dismissing their claims against Billings Clinic and St. Vincent Healthcare in this consolidated appeal. STANDARD OF REVIEW ¶12 We review de novo a district court’s ruling on a motion to dismiss for failure to state a claim pursuant to M. R. Civ. P. 12(b)(6). Meagher v. Butte-Silver Bow City-County, 2007 MT 129, ¶ 13, 337 Mont. 339, 160 P.3d 552; Plouffe v. State, 2003 MT 62, ¶ 8, 314 Mont. 413, 66 P.3d 316. The determination of whether a complaint states a claim is a conclusion of law, and the district court’s conclusions of law are 7 reviewed for correctness. Farmers Coop. Ass’n v. Amsden, 2007 MT 287, ¶ 9, 339 Mont. 452, 171 P.3d 684; Guest v. McLaverty, 2006 MT 150, ¶ 2, 332 Mont. 421, 138 P.3d 812. DISCUSSION ¶13 Did the District Courts err in dismissing Harris and Holbert’s breach of contract and constructive fraud claims pursuant to M. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted? ¶14 A motion to dismiss under M. R. Civ. P. 12(b)(6) allows the district court to examine only whether “a claim has been adequately stated in the complaint.” Meagher, ¶ 15. The court is limited to an examination of the contents of the complaint in making its determination of adequacy. Meagher, ¶ 15. The effect of a M. R. Civ. P. 12(b)(6) motion to dismiss is that all of the well-pleaded allegations in the complaint are admitted as true, and the complaint is construed in the light most favorable to the plaintiff. Amsden, ¶ 9; Plouffe, ¶ 8. The Court has no obligation, however, to accept as true legal conclusions or allegations that lack factual basis. Western Sec. Bank v. Eide Bailly LLP, 2010 MT 291, ¶ 55, 359 Mont. 34, 249 P.3d 35; Cowan v. Cowan, 2004 MT 97, ¶ 14, 321 Mont. 13, 89 P.3d 6. We will affirm the district court’s dismissal only if we conclude that the plaintiff would not be entitled to relief based on any set of facts that could be proven to support the claim. Guest, ¶ 2; Plouffe, ¶ 8. ¶15 It is important to note, at the outset, a recent decision of this Court involving similar issues to those presented in the instant case. In Conway v. Benefis Health Sys., 2013 MT 73, 369 Mont. 309, 297 P.3d 1200, Conway was injured in a car accident and received medical treatment at Benefis. Conway, ¶ 6. Conway had healthcare coverage through TRICARE and also had medical payments coverage through Kemper, his 8 automobile insurance carrier. Conway, ¶ 6. BCBS served as the network subcontractor for TRICARE and entered into a PPA with Benefis. Conway, ¶ 6. Benefis billed multiple insurers and first received payment from TRICARE at the reduced reimbursement rate agreed upon in the PPA. Conway, ¶ 7. Subsequently, Benefis received payment from Kemper at the undiscounted billing rate, and therefore refunded the earlier payment made by TRICARE in full because TRICARE functions as a secondary payer. Conway, ¶ 7. Conway filed a lawsuit against Benefis claiming that he was entitled to the additional amount that Benefis received from Kemper over and above the TRICARE reimbursement rate established by the PPA. Conway, ¶ 8. ¶16 This Court determined that while Benefis was required under the PPA to accept the TRICARE rates for “Covered Services,” nothing in the PPA prohibited Benefis from accepting the full amount from the responsible insurer. Conway, ¶ 32. The PPA did not dictate the rates at which Kemper must reimburse Benefis. Conway, ¶ 32. Further, we rejected Conway’s argument that he was entitled to receive the difference between the TRICARE reimbursement rate and the amount that Kemper paid Benefis. Conway, ¶ 33. We reasoned that Conway did not owe Benefis any additional amount since Benefis accepted the payment from Kemper as payment in full for the medical treatment rendered. Conway, ¶ 35. This Court concluded that medical payments coverage was only available for the payment of the actual cost of medical treatment, so if Conway were allowed to pocket the additional sums at issue, the result would be a windfall to Conway. Conway, ¶ 35. 9 ¶17 Our decision in Conway is instructive as we turn to the instant case. Harris and Holbert argue that the District Courts erred in multiple ways in dismissing their claims. Harris and Holbert’s first contention of error centers on the meaning of the term “Covered Services” in the PPA. The PPA defines “Covered Services” as “those Health Care Services furnished to a Member by the Hospital which will be paid for as set forth under the terms of the applicable Health Plan.” “Health Plan” is defined in the PPA as plans offered, administered, or coordinated by BCBS using BCBS networks. ¶18 Our interpretation of the meaning of the term “Covered Services” is essential to the outcome of this case because St. Vincent Healthcare and Billings Clinic’s obligation to bill and collect at the reduced reimbursement rate in the PPA applies only to “Covered Services.” The PPA provides as follows: Compensation by BCBSMT. This Article applies to the payment to Hospital for Medically Necessary “Covered Services” provided to Members whose Health Plans access those provider networks established under this Contract in which the Hospital is agreeing to participate. In a separate section titled “Non-Covered Services,” the PPA explains that BCBS will only pay for services covered by the PPA and the Health Plan. ¶19 The District Courts determined that healthcare providers are only contractually obligated to bill or collect discounted rates where a plaintiff receives services that are paid for under a BCBS health plan. The District Courts noted that this interpretation of the term “Covered Services” was consistent with the underlying purpose of the PPA. Healthcare providers benefit from the PPA because it guarantees payment of bills, supports efficient claims processing, and encourages BCBS insureds to seek out certain 10 providers when they are in need of medical care. The District Courts reasoned that these benefits to healthcare providers are what in turn justified the reduced reimbursement rates established by the PPA. ¶20 The District Courts also looked to the language of Montana’s Preferred Provider Agreements Act, § 33-22-1702, MCA, which explains that the purpose of a PPA is to allow an insurer to “enter into agreements in which the participating providers accept negotiated fees as payment in full for health care services the health care insurer is obligated to provide or pay for under the health benefit plan.” Relying on the language in the PPA and the purposes behind such agreements, the District Courts concluded that in situations where a person or entity other than BCBS is liable for the cost of the services, such as State Farm or Farmers, those benefits are not in play and St. Vincent Healthcare and Billings Clinic are not obligated to bill and collect at the reduced reimbursement rates set forth in the PPA. ¶21 Harris and Holbert argue that the District Courts focused too narrowly when surmising the meaning of the term “Covered Services.” Harris and Holbert maintain that pursuant to the rules of contract interpretation, § 28-3-202, MCA, when the whole of the PPA is taken together so as to give effect to every part of the contract, the meaning of “Covered Services” is not restricted to only those services paid for by BCBS. In support of their expansive definition of the term “Covered Services,” Harris and Holbert point to different sections of the PPA where the term is used and piece together a contrary interpretation of “Covered Services.” 11 ¶22 First, Harris and Holbert cite to a section titled “Continued Care after Termination.” Harris and Holbert argue that since this provision requires healthcare providers to continue to furnish “Covered Services” to members for a period of time even after BCBS is insolvent and cannot pay, the term “Covered Services” is not restricted to only those services paid for by BCBS. Second, Harris and Holbert look to the definition of “Health Plan,” which mentions providing, delivering, and arranging for “Covered Services.” Harris and Holbert contend that this definition is inconsistent with the District Courts’ ruling that “Covered Services” means only services paid for by BCBS. Next, they attempt to conflate the definition of “Covered Services” with the separately defined term “Health Care Services.” Harris and Holbert further argue that a provision allowing BCBS to pay a member directly for “Covered Services” from a non-participating provider renders the term ambiguous. Finally, Harris and Holbert reference the definitions of “Covered Medical Expense” and “Covered Services” from their health plans to assert that “Covered Services” means all services mentioned in the health plans which are not excluded. ¶23 Harris and Holbert maintain that the allegedly inconsistent use of the term “Covered Services” in different sections of the PPA creates an ambiguity. Citing Mitchell v. State Farm Ins. Co., 2003 MT 102, 315 Mont. 281, 68 P.3d 703, Harris and Holbert urge this Court to construe the alleged ambiguity in their favor and apply the “reasonable expectations doctrine” to find that the term “Covered Services” does not mean that the services must be paid by BCBS. We reject Harris and Holbert’s attempt to 12 import our rules regarding interpretation of an insurance policy into our construction of the PPA. ¶24 “An ambiguity exists where the language of a contract, as a whole, reasonably is subject to two different interpretations.” West v. Club at Spanish Peaks LLC, 2008 MT 183, ¶ 53, 343 Mont. 434, 186 P.3d 1228; Wurl v. Polson Sch. Dist. No. 23, 2006 MT 8, ¶ 17, 330 Mont. 282, 127 P.3d 436. However, the mere fact that the parties disagree on the proper interpretation of a contract does not automatically create an ambiguity. Wurl, ¶ 17. “The language of a contract is to govern its interpretation if the language is clear and explicit and does not involve an absurdity.” Section 28-3-401, MCA. This Court has consistently refused to “seize upon certain and definite covenants expressed in plain English with violent hands, and distort them.” Steadele v. Colony Ins. Co., 2011 MT 208, ¶ 19, 361 Mont. 459, 260 P.3d 145; Travelers Cas. & Sur. Co. v. Ribi Immunochem Research, 2005 MT 50, ¶ 17, 326 Mont. 174, 108 P.3d 469; Johnson v. Equitable Fire & Marine Ins. Co., 142 Mont. 128, 131, 381 P.2d 778, 779 (1963). ¶25 We agree with the District Courts’ interpretation of the term “Covered Services.” The PPA sets forth a clear definition of “Covered Services,” that by its plain language, contractually obligates a medical provider to bill or collect discounted rates only where a plaintiff receives services that are paid for under a BCBS health plan. As this Court discussed in Conway, where third party coverage is available and responsible for paying the medical expenses, the medical services are not “Covered Services” under the PPA. Conway, ¶ 32. The tortured, piecemeal approach to interpreting the PPA undertaken by Harris and Holbert is unpersuasive. Their approach fails to overcome the plainly stated 13 definition of the term or demonstrate that its use throughout the contract created an ambiguity. None of the other sections of the PPA cited by Harris and Holbert support their broad definition of “Covered Services.” Accordingly, we conclude that the term “Covered Services” applies to those medical services which will be paid for by a BCBS health plan. ¶26 Next, we turn to Harris and Holbert’s contention that the District Court erred in determining that Billings Clinic and St. Vincent Healthcare were entitled to collect from third-party insurers payment for the full amount of the billed charges for the medical treatment provided to Harris and Holbert. Pertinent to our discussion here, the PPA provides as follows: Payment in Full. (a) Hospital shall accept the amounts set forth on the appropriate compensation schedule as payment in full, for Covered Services provided with respect to each Member. . . . (b) Hospital shall not bill, charge, collect a deposit from, seek remuneration from, or have any recourse against a Member or persons acting on their behalf for Covered Services provided under this Contract . . . . Harris and Holbert argue that based on the language of these “hold harmless” provisions, BCBS agreed to never collect payment from a member in excess of the PPA reimbursement rate. The District Courts determined that Harris and Holbert failed to demonstrate that St. Vincent Healthcare and Billings Clinic breached the PPA by billing State Farm and Farmers at the usual rate for medical services instead of at the PPA reimbursement rate. We agree with the District Courts. 14 ¶27 As we have previously discussed, the obligation to bill and collect payment at the PPA reimbursement rate applies only to “Covered Services.” Harris and Holbert never alleged that BCBS was billed for the medical services at issue or made any payment whatsoever to the providers. Instead, the third-party insurers paid for the medical treatment. State Farm and Farmers were not parties to the PPA and were therefore not obligated to comply with its terms. In Conway, we similarly determined that the hospital was not precluded from accepting payment for the full amount of the billed services from the medical payments carrier, who was a stranger to the PPA. Conway, ¶ 32. Under these circumstances, St. Vincent Healthcare and Billings Clinic did not commit a breach of contract by accepting payment from third-party liability insurers in excess of the reimbursement rates set forth in the PPA. ¶28 Based on our holding that St. Vincent Healthcare and Billings Clinic were entitled to bill and collect at the usual rate from State Farm and Farmers and that no conduct occurred to support Harris and Holbert’s breach of contract claims, it is unnecessary to address the District Courts’ determinations that Harris and Holbert did not suffer any detriment or legally cognizable damages necessary to support their claims. ¶29 Finally, we examine Harris and Holbert’s constructive fraud claims. The District Courts determined that St. Vincent Healthcare and Billings Clinic had no legal duty under the PPA to charge a third-party insurer at the BCBS reduced reimbursement rates. Harris and Holbert argue on appeal that they relied on St. Vincent Healthcare and Billings Clinic’s promise to never collect payment from them in excess of the BCBS reimbursement rate. Harris and Holbert contend that St. Vincent Healthcare and Billings 15 Clinic acted in a misleading and deceptive way that sufficiently supports a constructive fraud claim. ¶30 We affirm the District Courts’ dismissal of Harris and Holbert’s constructive fraud claims. Section 28-2-406, MCA, defines constructive fraud as follows: (1) any breach of duty that, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under the person in fault by misleading another person to that person’s prejudice or to the prejudice of anyone claiming under that person; or (2) any act or omission that the law especially declares to be fraudulent, without respect to actual fraud. “The presence of a legal duty is an essential element of a claim for constructive fraud.” H-D Irrigating, Inc. v. Kimble Props., Inc., 2000 MT 212, ¶ 25, 301 Mont. 34, 8 P.3d 95; Mattingly v. First Bank of Lincoln, 285 Mont. 209, 218, 947 P.2d 66, 71 (1997). The existence of a legal duty is a question of law for the court’s determination. H-D Irrigating, ¶ 25. ¶31 Based on our earlier discussion of the PPA terms, we conclude that St. Vincent Healthcare and Billings Clinic had no legal duty to charge State Farm or Farmers at the BCBS reduced reimbursement rates. Since Harris and Holbert failed to establish the requisite duty element of their constructive fraud claim, we affirm the District Courts’ dismissal of their claims. CONCLUSION ¶32 For the foregoing reasons, we affirm the District Courts’ dismissal of all of Harris and Holbert’s claims. 16 /S/ PATRICIA COTTER We Concur: /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ JIM RICE /S/ BRIAN MORRIS Justice Laurie McKinnon, concurring. ¶33 I agree with the Court’s analysis and conclusion that St. Vincent Healthcare and Billings Clinic did not breach the PPA by accepting payment from Farmers and State Farm in excess of the discounted rates set forth in the PPA. Opinion, ¶ 27. I also agree with the Court’s conclusion that Harris and Holbert failed to state a claim for constructive fraud. Opinion, ¶ 31. In reaching these conclusions, the Court relies on its interpretation of the PPA—in particular, the term “Covered Services”—and declines to address other aspects of Harris and Holbert’s claims. See Opinion, ¶¶ 27-28, 31. While I appreciate the Court’s decision in this regard, I write separately because I believe it is important to acknowledge two other deficiencies in Harris and Holbert’s breach of contract claim. ¶34 First, a threshold question in any breach of contract action is whether the plaintiff has standing to enforce the contract. As we have explained, “[s]tanding is a doctrine involving justiciability and, as such, it is a threshold requirement in every case which we must address and decide sua sponte even if it is not raised by a litigant.” Dick Anderson Constr., Inc. v. Monroe Constr. Co., LLC, 2009 MT 416, ¶ 46, 353 Mont. 534, 221 P.3d 675. We have recognized, moreover, that a stranger to a contract lacks standing to bring an action for breach of that 17 contract unless he or she is an intended third-party beneficiary of the contract. Dick Anderson Constr., ¶ 46; Diaz v. Blue Cross & Blue Shield of Mont., 2011 MT 322, ¶ 18, 363 Mont. 151, 267 P.3d 756; Palmer v. Bahm, 2006 MT 29, ¶ 13, 331 Mont. 105, 128 P.3d 1031. ¶35 Here, Harris and Holbert have failed to allege any facts demonstrating that they have standing to enforce the PPA contracts. Harris and Holbert are not parties to those contracts. The parties to the contracts, rather, are St. Vincent Healthcare and BCBS, and Billings Clinic and BCBS. Moreover, as St. Vincent Healthcare and Billings Clinic point out in their appellate briefs, Harris and Holbert are not intended third-party beneficiaries of the contracts. In fact, the PPA contracts contain a provision which states: 13.3 No Third Party Beneficiary. Hospital and BCBSMT do not intend to create in any third party a right to enforce this Contract or to claim losses or damages under the Contract, except as may be applicable to HCAs.[1] Similar to our analysis of the contract at issue in Dick Anderson Constr., the PPA “clearly precludes anyone . . . from claiming third-party beneficiary status under the contract.” Dick Anderson Constr., ¶ 49. Accordingly, since Harris and Holbert are not parties to the PPA contracts and are not intended third-party beneficiaries of those contracts, they do not have standing to enforce the contracts. Dick Anderson Constr., ¶ 50. ¶36 Second, I agree with the District Courts that Harris and Holbert did not allege any detriment or legally cognizable damages necessary to support their claim. St. Vincent Healthcare and Billings Clinic billed Harris and Holbert for their medical expenses arising out of the automobile accidents. State Farm and Farmers, in turn, paid those medical expenses in full. As a result, neither Harris nor Holbert have any further liability to St. Vincent Healthcare or Billings Clinic. What Harris and Holbert claim to be aggrieved about in this lawsuit is the fact 1 “HCA” or “Health Care Administrator” is defined elsewhere in the PPA to mean “BCBSMT or a BCBSMT Joint Venture.” 18 that St. Vincent Hospital and Billings Clinic billed the medical expenses at customary rates, rather than the discounted rates that would have applied under the PPA had BCBS (rather than State Farm and Farmers) been paying the bills. Harris and Holbert claim they have been damaged in the amount that State Farm and Farmers paid to St. Vincent Healthcare and Billings Clinic in excess of the discounted rates in the PPA—i.e., the difference between the customary rates and the PPA rates. In essence, Harris and Holbert seek a windfall: not only to have their medical expenses paid in full by the third-party liability insurers, but also to receive monetary compensation above and beyond those expenses. ¶37 As the District Courts correctly noted, this is precisely the type of recovery that we found to be impermissible in Newbury v. State Farm Fire & Cas. Ins. Co., 2008 MT 156, 343 Mont. 279, 184 P.3d 1021. As in Newbury, what Harris and Holbert paid valuable consideration for was to have their medical expenses paid, and it is undisputed that their medical expenses were paid. “To allow [Harris and Holbert] to receive in excess of the total amount of [their] medical expenses would result in a windfall.” Newbury, ¶ 47. Under § 27-1-202, MCA, “[e]very person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefor in money, which is called damages.” A “detriment” is “a loss or harm suffered in person or property.” Section 27-1-201, MCA. Harris and Holbert have suffered no “detriment” for which recovery may be had. ¶38 I note that in their motion to alter or amend the judgment, Harris and Holbert asserted that they had, in fact, suffered a compensable injury. Specifically, they asserted that Farmers’ and State Farm’s payments of their medical expenses at customary rates, rather than the discounted rates, effectively reduced their settlement proceeds. Their theory went as follows: since Farmers and State Farm agreed to pay the policy limits, and since a higher proportion of 19 those proceeds were applied to medical expenses billed at the full rate than would have been applied to medical expenses billed at the discounted rate, there consequently was less left over for Harris’s and Holbert’s general damages. The District Courts agreed that such allegations might set forth a claim for a compensable injury; however, no such facts had been alleged in the amended complaints. The District Courts noted that Harris and Holbert could have sought leave to amend their amended complaints or could have asked the court to consider new facts and convert the motions to dismiss into motions for summary judgment, yet Harris and Holbert had done neither. I agree with the District Courts that a motion to alter or amend a judgment under Rule 59(e) of the Montana Rules of Civil Procedure is not a proper vehicle for amending a complaint. ¶39 Accordingly, in summary, Harris and Holbert do not have standing to enforce the PPA. Moreover, they have not pleaded any detriment for which recovery may be had. Finally, as the Court holds, the PPA did not require St. Vincent Healthcare and Billings Clinic to bill and collect at the discounted rate from Farmers and State Farm. For all of these reasons, it is fortunate, in my view, that this matter was resolved early in the proceedings through a motion to dismiss. In this manner, the parties have been spared the costly expenses of litigating a class action involving contract claims that the plaintiffs have no factual or legal grounds for pursuing. ¶40 Before concluding, I note one nuance in the Court’s resolution of the constructive fraud claim. For purposes of the instant case, constructive fraud requires the breach of a duty. Opinion, ¶ 30; § 28-2-406(1), MCA. As the Court explains, Harris and Holbert contend that they relied on a “promise” by St. Vincent Healthcare and Billings Clinic never to collect payment from them in excess of the BCBS reimbursement rate, and that St. Vincent Healthcare and Billings Clinic acted in a misleading and deceptive manner. Opinion, ¶ 29. Initially, one might 20 assume that this alleged “promise” was made to Harris and Holbert directly, and that St. Vincent Healthcare and Billings Clinic thus had a freestanding duty to Harris and Holbert to bill the discounted rates regardless of which liability insurer would be paying the bill. Such facts would make this a different case. Thus, it is important to be clear that the so-called “promise” to which Harris and Holbert are referring is St. Vincent Healthcare and Billings Clinic’s agreement in the PPA to bill and collect at the discounted rate where a claimant has received services that are paid for by BCBS. This “promise” was made to BCBS, not Harris and Holbert. Moreover, as the Court explains, the “promise” does not impose a legal duty to bill insurers other than BCBS at the discounted rates. Opinion, ¶ 31. Hence, there can be no constructive fraud. ¶41 With the foregoing observations, I concur in the Court’s decision. /S/ LAURIE McKINNON | July 25, 2013 |
a19d836e-e953-4aad-9749-3348fe60914e | State v. Adams | 2013 MT 189 | DA 12-0443 | Montana | Montana Supreme Court | DA 12-0443 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 189 STATE OF MONTANA, Plaintiff and Appellee, v. KRISTOPHER RONALD ADAMS, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 06-506 Honorable Edward P. McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender; Eileen A. Larkin, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman, Assistant Attorney General; Helena, Montana Submitted on Briefs: May 1, 2013 Decided: July 15, 2013 Filed: __________________________________________ Clerk July 15 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Kristopher R. Adams (Adams) received a suspended sentence for the offense of felony theft in 2007 that was ordered to run consecutively “to Defendant’s revocation” in another proceeding, wherein Adams was serving probation after being transferred from juvenile to adult supervision. Adams appeals the denial by the Fourth Judicial District Court, Missoula County, of his motion to dismiss the State’s 2012 petition to revoke his 2007 suspended sentence. We affirm. ¶2 We address the following issue on appeal: ¶3 Did the District Court err by denying Adams’ motion to dismiss the State’s petition to revoke? FACTUAL AND PROCEDURAL BACKGROUND ¶4 In 2005, while Adams was a juvenile, he committed numerous offenses that would have constituted criminal offenses if committed by an adult, including burglaries, thefts, criminal mischief, unauthorized use of a motor vehicle, possession of drug paraphernalia, and obstructing a police officer. These offenses were the subject of multiple delinquency petitions filed in Youth Court by the State and were ultimately adjudicated under cause number DJ 04-88. Judge Harkin found Adams to be a delinquent youth on October 25, 2005, and committed him to the Department of Corrections (DOC) until age 18, with a recommendation for placement at the Pine Hills Youth Correctional Facility (2005 Disposition or DJ 04-88). Adams was placed at Pine Hills until he was released to juvenile probation in September 2006. In the two months following his release, Adams committed several probationary violations. On November 28, 2006, Judge Harkin 3 ordered a transfer of jurisdiction of Adams’ case to the district court and transfer of supervisory responsibility to adult probation services pursuant to § 41-5-208, MCA (2005).1 Adams, then age 18, was placed on adult probation supervision until his 21st birthday. ¶5 The same day, November 28, 2006, Adams stole a vehicle from the Safeway parking lot in Missoula. Several new DVDs were in the backseat of the car, which Adams sold for cash. Two days later, when the stolen car ran out of gas, Adams stole a second vehicle from a residential area in Missoula. Adams was apprehended and charged by information with one count of felony theft and two counts of misdemeanor theft in cause number DC 06-509, presided over by District Court Judge McLean. The State also filed a petition to revoke Adams’ probation in DJ 04-88 based upon the new charges. ¶6 Adams and the State entered a plea bargain agreement to resolve the charges. In exchange for Adams’ plea of guilty to felony theft, the State agreed to dismiss the two misdemeanor charges. Pursuant to § 46-12-211(1)(b), MCA, the plea bargain included the parties’ agreement that a three-year commitment to DOC, all suspended, would be an “appropriate disposition” for the offense. The parties further agreed that this sentence would not commence until Adams discharged his disposition in DJ 04-88 or, in the words of the plea agreement, “[t]his case shall run consecutive to Defendant’s revocation in DJ- 04-88.” In his interview with the author of the presentence investigation report, Adams 1 Unless otherwise noted, all references to Titles 45 and 46, Montana Code Annotated, are to the 2005 version. “[T]he applicable sentencing statutes are those in effect at the time the underlying offense was committed.” State v. Seals, 2007 MT 71, ¶ 8, 336 Mont. 416, 156 P.3d 15. 4 said, “I believe I should be sentenced to what is recommended in the plea-agreement.” Adams thereafter entered a guilty plea to the felony theft charge. ¶7 At the sentencing hearing on March 26, 2007, Judge McLean accepted the terms of the plea agreement and committed Adams to the DOC for three years, all suspended, for the felony theft offense (2007 Sentence). Pursuant to the plea bargain agreement, the District Court ordered the 2007 Sentence to run consecutively to the disposition to be imposed in the revocation proceeding pending in DJ 04-88. Consistent with his negotiation of the plea agreement, Adams offered no objection to the sentence, and did not appeal or otherwise challenge the 2007 Sentence. ¶8 On April 10, 2007, Judge Harkin presided over the revocation hearing in DJ 04- 88. Judge Harkin revoked the disposition and committed Adams to the DOC until his 21st birthday, with no time suspended. Adams did not object to the commitment and did not appeal. Adams entered the Treasure State Correctional Training Center, or “boot camp,” on August 15, 2007. Adams failed to successfully complete boot camp and he was transferred by the DOC to Montana State Prison on October 5, 2007. Adams remained at the prison until he completed the commitment and was released on his 21st birthday in November 2009 to begin serving his 2007 Sentence. ¶9 Adams’ supervision was transferred to Washington state pursuant to the Interstate Compact for Adult Offender Supervision to permit Adams to reside there. He violated the terms of his supervision and was returned to Montana for his failure to abide by conditions. In January 2012, less than three years after he discharged his commitment in 5 DJ 04-88, the State filed a petition to revoke Adams’ 2007 Sentence. Adams filed a motion to dismiss the petition to revoke, arguing the District Court did not have authority in 2007 to order his adult criminal sentence to run consecutively to the disposition in DJ 04-88. The District Court denied the motion. ¶10 Adams entered admissions to the petition to revoke, requesting inpatient chemical dependency treatment and reserving his right to appeal. The District Court revoked Adams’ 2007 Sentence and committed him to the DOC for three years with credit for 170 days served (2012 Revocation Sentence). Adams appeals. STANDARD OF REVIEW ¶11 “We review a district court’s revocation of a suspended sentence for abuse of discretion.” State v. Tirey, 2010 MT 283, ¶ 19, 358 Mont. 510, 247 P.3d 701. We review a criminal sentence for legality to determine whether the sentence is within statutory parameters. State v. Seals, 2007 MT 71, ¶ 7, 336 Mont. 416, 156 P.3d 15. Such a determination of legality is a question of law, which is reviewed de novo. Seals, ¶ 7. DISCUSSION ¶12 Did the District Court err by denying Adams’ motion to dismiss the State’s petition to revoke? ¶13 Adams argues that an adult sentence cannot be ordered to run consecutively to a juvenile disposition, which is civil in nature. Adams asserts that “[b]ecause a youth court’s disposition is not a sentence, it does not fall within the statutory requirement that ‘separate sentences for two or more offenses must run consecutively unless the court otherwise orders,’” citing § 46-18-401(4), MCA. Adams essentially argues that an adult 6 sentence can never run consecutively to a juvenile disposition and, therefore, as a matter of law, his 2007 Sentence ran concurrently with the 2005 Disposition. Thus, his 2007 Sentence expired prior to the State’s filing of the revocation petition and the petition was untimely. ¶14 The State responds that Adams waived his right to challenge his sentence because he affirmatively asked the District Court to impose this sentence and thus acquiesced in it, citing State v. Micklon, 2003 MT 45, 314 Mont. 291, 65 P.3d 559, and he also failed to appeal. The State alternatively argues that § 46-18-401(1)(b), MCA, “operated as a matter of law to require the suspended sentence in this case to run consecutively to the period still to be served on the probationary term that was imposed as a result of the § 208 transfer order.” Consequently, the petition to revoke was timely filed. ¶15 We must first consider Adams’ ability to challenge his sentence given his failure to appeal its imposition. A defendant has 60 days from the entry of the judgment to file an appeal challenging a sentence. M. R. App. P. 4(5)(b)(i).2 If a defendant does not appeal, he is generally precluded from later challenging the legality of the sentence. State v. Muhammad, 2002 MT 47, ¶ 22, 309 Mont. 1, 43 P.3d 318. ¶16 Muhammad was sentenced in May 1999 for sexual intercourse without consent, pursuant to a plea bargain agreement. Muhammad, ¶¶ 8, 11. He received a six-year deferred imposition of sentence, subject to probationary conditions. He did not appeal. 2 Formerly M. R. App. P. 5(b). See Or., In Re: Rules of Appellate Procedure, (Mont. July 3, 2007) (No. AF 07-0016). 7 Muhammad, ¶¶ 11, 22. In January 2000, the State filed a petition to revoke Muhammad’s sentence for violating conditions. Muhammad, ¶ 14. After a hearing, the District Court revoked the sentence and imposed a 20-year commitment to the DOC, with 15 years suspended, and imposed conditions. Muhammad, ¶ 15. Muhammad then appealed, challenging both his 1999 sentence and his 2000 revocation sentence. Muhammad, ¶¶ 15-16, 23. We held that, because Muhammad had failed to timely appeal from his 1999 sentence, we were “without jurisdiction to review” it,3 although we were able to review Muhammad’s timely appeal of his 2000 revocation sentence. Muhammad, ¶ 22. See also State v. White, 2008 MT 464, ¶ 20, 348 Mont. 196, 199 P.3d 274 (overruled on other grounds) (citing Muhammad, ¶ 22, “White may not, within the context of the [2007] revocation proceeding, challenge the legality of the conditions imposed on her 1997 suspended sentence, as such a challenge is untimely.”); In re M.W., 2012 MT 44, ¶ 12, 364 Mont. 211, 272 P.3d 112 (citing Muhammad, ¶ 22, “M.W. did not appeal from the order imposing the registration requirement entered by the Youth Court in July 2009. . . . the challenge he now attempts to make to the original imposition of the requirement has been forfeited.”). ¶17 As he did in his motion to dismiss before the District Court, Adams is here challenging his 2007 Sentence as illegal, arguing that “the sentence contained in the [2007] plea agreement was not authorized by law.” However, Adams did not challenge the 2007 Sentence until the State filed a petition to revoke in 2012, and his challenge is 3 We have since sought to be more circumspect in our use of the term “jurisdiction.” See State v. Garrymore, 2006 MT 245, ¶ 10 n. 1, 334 Mont. 1, 145 P.3d 946. 8 untimely. He is now limited to challenging the 2012 Revocation Sentence. Muhammad, ¶ 22; White, ¶ 20. ¶18 In Seals, we held that a previously imposed illegal sentence may be corrected during a revocation proceeding under certain circumstances. Seals, ¶ 15. As relevant to this case, we explained: [A] sentencing court’s authority to re-sentence a criminal defendant based upon an illegal sentence depends upon when the illegal sentence is discovered and challenged. If the illegal sentence is challenged while the defendant is serving the sentence, the court has the authority to correct the sentence by imposing a sentence that was statutorily authorized . . . If, however, the illegal sentence is challenged during a revocation proceeding held while the defendant is serving the suspended portion of the illegal sentence, the court, upon sentencing in the revocation proceeding, is constrained by the particulars of § 46-18-203(7), MCA. Seals, ¶ 15 (emphasis added). Thus, for a sentence—like Adams’—that is challenged as illegal while the defendant is serving the suspended portion, the revocation court cannot resentence the defendant under the general sentencing statutes, but is “constrained by the particulars” of the revocation sentencing provisions when correcting any illegality. Seals, ¶ 15. ¶19 Application of these principles demonstrates that Adams’ revocation challenge to the consecutive nature of his 2007 Sentence is unavailing. As we explained in Seals, § 46-18-401, MCA, which governs the designation of a sentence as consecutive or concurrent, is not part of the revocation sentencing provisions. Seals, ¶ 15 (“§ 46-18-401, MCA, is not applicable to the revocation matter before us because sentencing upon the revocation of a suspended or deferred sentence is particularly and expressly governed by 9 § 46-18-203, MCA, and not § 46-18-401, MCA, which is a general provision governing sentencing.”).4 The general authority to designate a sentence to run concurrently is not within “the particulars” of the revocation statutes and is not an issue that could be addressed or “corrected” during the 2012 revocation proceeding. Seals, ¶ 15. ¶20 Further, by the time of the 2012 revocation proceeding, Adams’ 2005 Disposition had already been served and discharged, and thus there was no earlier disposition with which the 2012 Revocation Sentence could be coordinated. Adams’ 2012 Revocation Sentence does not address the issue of its concurrent or consecutive nature. Because the 2012 Revocation Sentence is the only sentence Adams can now challenge, Muhammad, ¶ 22, the consecutive designation of the 2007 Sentence is not properly raised here. ¶21 As the State notes, we generally “will not put a district court in error for an action in which the appealing party acquiesced or actively participated.” Micklon, ¶ 10 (citations omitted); see also State v. Walker, 2007 MT 205, ¶ 14, 338 Mont. 529, 167 P.3d 879. The wisdom of that principle is well illustrated here. In 2007, after a run of criminal behavior, Adams actively sought and bargained for a probationary sentence that would avoid his commitment to a correctional facility. He asked to be sentenced to, and he received, a probationary sentence that would run consecutively to his 2005 Disposition. Years later, after obtaining the benefit of that bargain, including probation 4 We reversed the provision in Seals’ revocation sentence that required it to run consecutively and ordered it to run concurrently. Seals, ¶ 20. However, we did so, not by reason of § 46-18- 401, MCA, but because the District Court had violated § 46-18-203(7), MCA, the revocation sentencing provision requiring the District Court to impose “the [original] sentence imposed or any lesser sentence.” See Seals, ¶ 19. 10 and dismissal of other charges, Adams now seeks to overturn the bargain because he once again faces prison for failing to follow the terms of his probationary sentence. Further, had Adams timely objected to the consecutive nature of the 2007 Sentence, the District Court would have had the opportunity to fashion a sentence to run concurrently with the 2005 Disposition. However, Adams did not raise the issue. ¶22 The District Court properly denied Adams’ motion to dismiss the petition. ¶23 Affirmed. /S/ JIM RICE We concur: /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ LAURIE McKINNON /S/ PATRICIA COTTER | July 15, 2013 |
eded121a-7dee-4df5-8b55-7c8996833d1a | Jonas v. Jonas | 2013 MT 202 | DA 12-0620 | Montana | Montana Supreme Court | DA 12-0620 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 202 LINDA B. JONAS, Plaintiff and Appellee, v. EDWIN R. JONAS, III, Defendant and Appellant. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DV 09-388 Honorable C.B. McNeil, Presiding Judge COUNSEL OF RECORD: For Appellant: Ronald F. Waterman, Gough, Shanahan, Johnson & Waterman, PLLP; Helena, Montana For Appellee: Quentin Rhoades, Robert D. Erickson, Sullivan, Tabaracci & Rhoades, PC; Missoula, Montana Submitted on Briefs: April 3, 2013 Decided: July 23, 2013 Filed: __________________________________________ Clerk July 23 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 This is the third appeal brought by Edwin R. Jonas, III (Edwin) in this matter. Edwin appeals the denial of his August 1, 2012 motion to set aside a charging order and appointment of a receiver entered by the Twentieth Judicial District Court, Lake County. Linda B. Jonas (Linda) requests an order, pursuant to M. R. App. P. 19(5), directing Edwin and his former counsel, Ronald F. Waterman (Waterman) to personally satisfy the costs, expenses, and attorney fees she reasonably incurred from their pursuit of these proceedings We affirm the District Court’s denial of Edwin’s motion and also conclude that Linda is entitled to the requested award of fees and costs, to be imposed on Edwin. ISSUES ¶2 The issues on appeal are: ¶3 1. Did the District Court err by denying Edwin’s motion to set aside the charging order and the appointment of the receiver? ¶4 2. Is Linda entitled to an award of fees and costs pursuant to M. R. App. P. 19(5)? FACTUAL AND PROCEDURAL BACKGROUND ¶5 Edwin’s third appeal to this court follows years of protracted litigation in several states. Linda and Edwin were married for 26 years and have three children together. Linda filed for divorce in 1988 and their marriage was dissolved in 1990. On December 4, 2009, Linda filed a Notice of Filing of Foreign Judgment in Lake County, Montana, to domesticate a 2006 New Jersey state court judgment entered against Edwin. See § 25-9-501 to -508, MCA. The New Jersey judgment had ordered Edwin to pay $243,000.00 in unpaid alimony, $18,000.00 in unpaid child support, $4,759.50 in medical insurance and medical expenses 3 for Linda and Edwin’s children, and $103,991.05 in attorney fees and costs. The total judgments entered against Edwin amounted to $695,476.97, plus interest, which itself totaled $147,205.35 as of December 31, 2005. The judgments were affirmed by the Superior Court of New Jersey, Appellate Division, and Edwin did not appeal to the New Jersey Supreme Court. Jonas v. Jonas, 2008 N.J. Super Unpub. LEXIS 1006, 2008 WL 239069 (N.J. Super A.D. January 30, 2008). ¶6 On December 29, 2009, Linda filed a motion seeking to satisfy the New Jersey judgment with Edwin’s interest in Blacktail Mountain Ranch Co., LLC (BMR). BMR is a Nevada limited liability corporation licensed to do business in Montana with assets, including real property, located in Lake County. Linda’s motion asserted that Edwin was the sole and managing member of BMR. She specifically sought a charging order, the appointment of a receiver, the foreclosure of Edwin’s distributional interest in BMR, and the judicial dissolution, and winding up, of BMR. The motion explained that Linda sought to dissolve and wind up BMR and stated the legal bases for her claims. Linda also filed a notice of lis pendens on December 29, 2009, noticing Waterman and BMR that she sought a charging order, the appointment of a receiver, the foreclosure of the lien on Edwin’s distributional interest, and an order compelling the sale of specified BMR property. ¶7 Edwin filed a response to Linda’s December 29, 2009 motion on January 13, 2010. Edwin’s response essentially argued that Linda had received money and property “which more than fully satisfied all of the obligations owing or owed to the Plaintiff [Linda].” The response did not raise specific issues with the requested charging order, appointment of a 4 receiver, or dissolution and winding up of BMR and it did not deny Linda’s allegation that Edwin was the sole managing member of BMR. ¶8 A Writ of Execution was issued against Edwin in the amount of $1,091,391.21 on February 1, 2010. The District Court thereafter issued a charging order and an order for the appointment of a receiver, foreclosure of the lien, and for the sale of BMR’s property on February 3, 2010. The charging order was granted against Edwin’s distributional interest in BMR and the resulting lien on Edwin’s interest in BMR was ordered to be immediately foreclosed. The Court’s order also directed Linda to appoint a receiver to wind up BMR, receive Edwin’s share of the distributions, and to transfer the proceeds from the distributions and sale of BMR to Linda until the judgments against Edwin, plus interest and costs, were satisfied. The Court’s order noted that Edwin had failed to challenge Linda’s entitlement to a charging order, the Court’s authority to appoint a receiver, the foreclosure of his interest in BMR, or the dissolution of BMR. ¶9 Edwin filed a Motion for Reconsideration on February 12, 2010 regarding the District Court’s February 3, 2010 order. No supporting brief was filed. A receiver was appointed by the District Court on February 18, 2010, and Edwin renewed his Motion for Reconsideration on February 23, 2010. Again, no supporting brief was filed. The District Court denied both Motions for Reconsideration because neither was supported by a brief and because such a motion does not exist under Montana law. Edwin appealed this decision and we affirmed. Jonas v. Jonas, 2010 MT 240N, 2010 Mont. LEXIS 397. Edwin subsequently filed a petition for reconsideration, which we denied. 5 ¶10 Edwin filed a M. R. Civ. P. 60 motion for relief from the 2006 New Jersey Judgment on May 27, 2011. The accompanying brief again argued that the charging order should be set aside because the 2006 judgment had been satisfied by the transfer of various properties. A later supplemental brief argued that the District Court’s application of the doctrine of res judicata to his arguments that Linda had received transfers sufficient to satisfy the 2006 judgment had been erroneous. Edwin’s Rule 60 motion was denied by the District Court on July 14, 2011. He again appealed, and we again affirmed the District Court’s decision. Jonas v. Jonas, 2012 MT 109N, 2012 Mont. LEXIS 112. ¶11 Edwin filed a motion for relief from the charging order and order for the appointment of the receiver foreclosure of the lien, and the sale of BMR on August 1, 2012, after our resolution of his second appeal to this Court. This motion advanced new arguments for setting aside the charging order and the order appointing the receiver, including that they were entered ex parte, that the receiver was not statutorily eligible, and that the seizure and sale of BMR assets is against Montana and Nevada law governing limited liability corporations. The motion appeared to advance Rule 60(b) as a possible basis for relief, but it did so without any citation to a specific subsection of the Rule and without any substantive legal analysis, or application, of the Rule. The District Court denied the motion in an August 27, 2012 order. The Court applied the “law of the case” doctrine to hold that Edwin’s arguments were “waived” because he had foregone earlier opportunities to challenge the charging order or appointment of the receiver on these bases. Thus, the Court determined that the orders had “become the law of the case for the future course of this litigation.” 6 ¶12 The August 27 order also found that Jonas and his counsel filed the August 1, 2012 motion without good cause and had multiplied the proceedings “unreasonably and vexatiously.” The Court accordingly required both Jonas and Waterman to personally satisfy the costs, expenses, and attorney fees Linda reasonably incurred in opposing the motion. See § 37-61-421, MCA. However, the District Court later issued an order withdrawing this holding in light of a stipulation by the parties. ¶13 Edwin appeals the portion of the court’s August 27, 2012 order denying his August 1, 2012 motion to set aside the charging order, appointment of a receiver, foreclosure of the lien, and sale of BMR. STANDARD OF REVIEW ¶14 Our review of a district court’s conclusion of law is plenary and we must determine if the Court’s interpretation of the law is correct. McCormick v. Brevig, 2007 MT 195, ¶ 31, 338 Mont. 370, 169 P.3d 352 (McCormick III). DISCUSSION ¶15 1. Did the District Court err by denying Edwin’s August 1, 2012 motion? ¶16 The District Court denied Edwin’s August 1, 2012 motion by applying the “law of the case” doctrine. This Court’s jurisprudence regarding this doctrine has deep roots. See Carlson v. Northern Pac. Ry. Co., 86 Mont. 78, 281 P. 913 (1929). The doctrine essentially refers to the practice of courts “generally to refuse to reopen what has been decided” in the 7 service of judicial economy. Messenger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739 (1912). As our Carlson decision stated: The rule is well established and long adhered to in this state that where, upon an appeal, the supreme court in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal[.] Carlson, 86 Mont at 81, 281 P. at 914. ¶17 Our decision in McCormick III articulated another application of the doctrine. There, we considered an analogous third appeal in a dispute between siblings Joan McCormick and Clark Brevig. Joan sued Clark and their partnership seeking an accounting and dissolution. Clark counterclaimed for fraud, deceit, negligent misrepresentation, and to quiet title. McCormick III, ¶ 2. The first appeal before this Court affirmed the entry of a partial summary judgment for Joan on Clark’s counterclaim and determined that the district court had erred when it granted summary judgment to some third-party defendants. McCormick v. Brevig, 1999 MT 86, 294 Mont. 144, 980 P.2d 603 (McCormick I). ¶18 The district court held a bench trial on remand, which resulted in findings of fact, conclusions of law, and an order dissolving and winding up the partnership. Joan appealed an order requiring her to sell her interest in the partnership to Clark and determining what her interest was worth. McCormick III, ¶ 3. In the second appeal, we determined that the court erred in ordering Joan to sell her interest to Clark and by not requiring a complete accounting to determine the value of each partner’s interest. McCormick v. Brevig, 2004 MT 179, 322 Mont. 112, 96 P.3d 697 (McCormick II). 8 ¶19 On remand for a second time, the district court appointed a Special Master to prepare a complete accounting. Both Joan and Clark objected to the resulting report. The district court held a hearing and issued its Findings of Fact, Conclusions of Law, and Order. McCormick III, ¶ 4. Clark appealed and Joan cross-appealed. ¶20 The first issue Clark appealed concerned in part whether the district court had erred in ordering that Joan and Clark each owned 50% of the partnership assets. McCormick III, ¶ 32. Joan responded that the district court had previously determined that she and Clark were 50/50 owners of the partnership and that Clark had not appealed this determination when he had an opportunity to do so during the second appeal. She argued that this failure to appeal the determination of the 50/50 ownership split made it the law of the case and it was therefore not subject to further appellate review. McCormick III, ¶ 37. ¶21 The district court had indeed made an earlier determination that, as a matter of law, Joan would be treated as a 50% partner upon dissolution of the partnership. Neither Joan nor Clark had appealed this decision in McCormick II, we did not consider it, and we did not disturb it on remand. McCormick III, ¶ 39. Considering Joan’s “law of the case” argument, we noted that “[f]requently law-of-the-case terminology is used by courts when deciding whether to deny appellate review of an issue that has not been properly preserved for appeal in the trial court or otherwise has not been presented to an appellate court properly.” McCormick III, ¶ 38 (citing Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure vol. 18B, § 4478.6, 815 (2d ed., West 1990)). Following this, we stated that: 9 Under the doctrine of the law of the case, a legal decision made at one stage of litigation which is not appealed when the opportunity to do so exists, becomes the law of the case for the future course of that litigation and the party that does not appeal is deemed to have waived the right to attack that decision at future points in the same litigation. McCormick III, ¶ 38 (citing Aviall, Inc. v. Ryder Sys., Inc., 110 F.3d 892, 897 (2d Cir. 1997)). Because neither Joan nor Clark had appealed the decision that they were 50/50 owners when presented with the opportunity to do so in an earlier appeal, we held that the Court’s decision was the law of the case and concluded that the parties were bound thereby. McCormick III, ¶ 39. ¶22 Our decision in McCormick III is directly applicable to the present case. Here, as the District Court noted, “[d]uring none of this lengthy and involved litigation did [Edwin] ever raise any of the issues he now relies on in contesting the Charging Order’s validity.” This includes foregoing opportunities to challenge the charging order and appointment of a receiver in his answer brief opposing the motions, in his first appeal, in his first Rule 60(b) motion, and in his second appeal. McCormick III’s conclusion that “the party that does not appeal is deemed to have waived the rights to attack that decision at future points in the same litigation” is directly on point. McCormick III, ¶ 38. Edwin failed to avail himself of several opportunities to challenge the charging order and the appointment of a receiver on the grounds he now raises. Foregoing such opportunities to appeal a legal decision renders it the law of the case, binding Edwin thereby. McCormick III, ¶ 38. The law of the case doctrine is based on the principles of judicial economy and the finality of judgments. In re Estate of Snyder, 2009 MT 291, ¶ 6, 352 Mont. 264, 217 P.3d 1027. The District Court correctly 10 upheld these principles by applying the law of the case doctrine to deny Edwin’s August 1, 2012 motion. ¶23 2. Is Linda entitled to an award of fees and costs pursuant to M. R. App. P. 19(5)? ¶24 Edwin has engaged in a course of drawn-out, vexatious litigation in New Jersey, Florida, and Montana. This, his third appeal in Montana, is just the latest round in a divorce battle stretching back over 20 years. Linda has consequently requested that this Court impose sanctions upon Edwin and Waterman pursuant to M. R. App. P. 19(5) in the form of the fees and costs incurred by her in opposing this latest appeal. Rule 19(5) of the Montana Rules of Appellate Procedure states that this Court may, on a request included in brief, award sanctions to the prevailing party in an appeal “determined to be frivolous, vexatious, filed for purposes of harassment or delay, or taken without substantial or reasonable grounds.” Available sanctions include costs, attorney fees, or other monetary or non-monetary penalties that we deem proper. M. R. App. P. 19(5). ¶25 The District Court previously warned Edwin that the further delay or multiplication of this litigation without good cause would result in the imposition of sanctions. Edwin’s latest, third, appeal appears to have been largely pursued to further delay Linda’s efforts to enforce the New Jersey judgment. We accordingly conclude that Edwin’s appeal is vexatious and was filed for the purposes of delay. Moreover, because Edwin is now pursuing this appeal pro se, we conclude that the costs and fees assessed should be solely levied against Edwin. We therefore remand for a determination and assessment of costs and attorney fees reasonably incurred on appeal. 11 CONCLUSION ¶26 We affirm the District Court’s denial of Edwin’s August 1, 2012 motion and we remand for a determination of costs and reasonable attorney’s fees incurred on appeal to be charged to Edwin. _________________________________ /S/ MICHAEL E WHEAT We concur: /S/ MIKE McGRATH /S/ JIM RICE /S/ LAURIE McKINNON /S/ BRIAN MORRIS | July 23, 2013 |
c66664cc-fee7-4719-adc0-4a6494fa13ac | Fisher v. State Farm | 2013 MT 208 | DA 12-0346 | Montana | Montana Supreme Court | DA 12-0346 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 208 KATHLEEN C. FISHER, a Limited Conservator for the Estate of SHARON McCARTNEY, a protected person, SHARON McCARTNEY, and LESLIE D. McCARTNEY, Plaintiffs and Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Delaware Corporation, and STATE FARM FIRE AND CASUALTY COMPANY, Defendants, Cross-claim Defendants and Appellants. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV 09-584B Honorable Mike Salvagni, Presiding Judge COUNSEL OF RECORD: For Appellants: Robert F. James; Cathy J. Lewis (argued); Ugrin, Alexander, Zadick & Higgins, P.C.; Great Falls, Montana For Appellees Kathleen Fisher and Sharon McCartney: Travis W. Kinzler (argued); Julieann McGarry; Cok Kinzler, PLLP; Bozeman, Montana For Appellee Leslie McCartney: William R. Bieler (argued); Burk, Lee & Bieler, PLLC; Choteau, Montana Lyman H. Bennett, III; Attorney at Law; Bozeman, Montana For Amicus Property Casualty Insurers Association of America and National Association of Mutual Insurance Companies: Martha Sheehy (argued); Sheehy Law Firm; Billings, Montana July 30 2013 2 For Amicus Montana Trial Lawyers Association: Amy Poehling Eddy; Bottomly Eddy & Sandler, PLLP; Kalispell, Montana Gregory S. Munro; Attorney at Law; Missoula, Montana Argued and Submitted: February 20, 2013 Decided: July 30, 2013 Filed: __________________________________________ Clerk 3 Justice Jim Rice delivered the Opinion of the Court. ¶1 Sharon McCartney (Sharon) and Leslie McCartney (Les), wife and husband, sought declaratory relief that Les’s umbrella policy with State Farm Fire and Casualty Company (State Farm) provided coverage for injuries sustained by Sharon as a result of Les’s negligent driving. State Farm answered that there was no coverage for Sharon’s claim due to a family member exclusion in the umbrella policy. The Eighteenth Judicial District Court, Gallatin County, concluded that the policy was not ambiguous, did not violate the McCartneys’ reasonable expectations, and did not violate Montana public policy, but that the exclusion was unconscionable. The District Court entered summary judgment in favor of the McCartneys. ¶2 State Farm appeals. In their arguments, both State Farm and the McCartneys challenge portions of the District Court’s orders.1 State Farm argues that the District Court’s unconscionability determination is erroneous and should be reversed, and summary judgment be entered in its favor. McCartneys argue that the District Court’s entry of summary judgment in their favor should be affirmed, but that this Court should “reverse the District Court’s ruling regarding ambiguity and direct it to enter an order declaring that the family member exclusion at issue . . . . is ambiguous and violates the McCartneys’ reasonable expectations,” thus arguing that the District Court erred by not entering judgment in their favor on additional grounds. To address the parties’ 1 The District Court entered separate summary judgment orders for Les and Sharon. The McCartneys have filed separate briefs on appeal. We refer herein to the McCartneys’ arguments as made jointly. 4 arguments, and because the issues are interrelated, we take up the issues in the following order: ¶3 1. Did the District Court err by concluding that the Umbrella Policy unambiguously excluded Sharon’s claim from coverage and that the Family Member Exclusion did not violate the McCartneys’ reasonable expectations? ¶4 2. Did the District Court err by concluding that the Family Member Exclusion did not violate Montana public policy? ¶5 3. Did the District Court err by concluding that the Family Member Exclusion was unconscionable? ¶6 Upon review of these issues, we reverse the judgment of the District Court. FACTUAL AND PROCEDURAL BACKGROUND ¶7 On December 30, 2007, Les and Sharon were involved in a motor-vehicle accident near Townsend. Les was driving his vehicle when he negligently struck a vehicle parked on the side of the road. Sharon, a passenger in Les’s car, sustained serious injuries. ¶8 Les has two insurance policies pertinent to this dispute. The first is Les’s State Farm Automobile Liability Policy (Auto Policy), which provided bodily injury limits of $250,000 per person and $500,000 per accident. Les paid an annual premium of $289.16 for this coverage. The second policy is Les’s State Farm Personal Liability Umbrella Policy (Policy or Umbrella Policy), with a stated limit of $2,000,000. Les paid an annual premium of $201 for this coverage. ¶9 State Farm paid Sharon the full per-person bodily injury liability limit of $250,000 under the Auto Policy for the injuries she received as a result of the accident. State Farm denied Sharon’s claim to additional coverage for her injuries under the Umbrella Policy 5 because that policy excluded claims brought by Les’s relatives who lived with him pursuant to an exclusion denominated by the parties as the Family Member Exclusion. ¶10 Sharon sought a declaratory judgment that she was entitled to coverage for her injuries under the Umbrella Policy. Les sought the same relief. The McCartneys argued that the exclusion was unenforceable because it was ambiguous, violated Montana public policy, violated their reasonable expectations of coverage, and was unconscionable. State Farm answered that Sharon’s claim was properly excluded by the Family Member Exclusion. The District Court granted summary judgment to the McCartneys, holding the Exclusion was unconscionable because it denied coverage to family members, a class of victims the District Court reasoned was most likely to need coverage: “[This innocent class of victims] is exposed to negligent operation of the covered vehicle more than included victims, because typical family relations require family members to ride together on the way to work, church, school, social functions, or family outings. Thus, these individuals cannot practically avoid exposure to the risk for which they [are] uninsured. [This is unconscionable.]” (Quoting Safeco Ins. Co. of Ill. v. Auto. Club Ins. Co., 31 P.3d 52, 54-55 (Wash. App. 2001)) (brackets in District Court Order). STANDARD OF REVIEW ¶11 We review de novo a district court’s grant or denial of summary judgment, applying the same criteria as the district court. Modroo v. Nationwide Mut. Fire Ins. Co., 2008 MT 275, ¶ 19, 345 Mont. 262, 191 P.3d 398. The District Court’s interpretation of an insurance contract is a question of law this Court reviews de novo. Stutzman v. Safeco Ins. Co. of Am., 284 Mont. 372, 376, 945 P.2d 32, 34 (1997). 6 DISCUSSION ¶12 1. Did the District Court err by concluding that the Umbrella Policy unambiguously excluded Sharon’s claim from coverage and that the Family Member Exclusion did not violate the McCartneys’ reasonable expectations? ¶13 When interpreting an insurance contract, we accord the usual meaning to the terms and the words used, and we construe them using common sense. Modroo, ¶ 23. The Umbrella Policy contains the following pertinent policy provisions, with bolded words defined: COVERAGE L — PERSONAL LIABILITY If a claim is made or suit is brought against an insured for damages of a loss for which the insured is legally liable and to which this policy applies, we will pay on behalf of the insured, the damages that exceed the retained limit. . . . EXCLUSIONS There is no coverage under this policy for any: 13. bodily injury or personal injury to any insured as defined in part a . . . . of the definition of insured[.] Thus, the Policy generally covers claims in excess of the insured’s primary insurance but does not cover claims brought by an insured. The Policy defines who is an insured: DEFINITIONS “insured” means: a. you and your relatives whose primary residence is your household[.] . . . “relative” means any person related to you by blood, adoption, or marriage. . . . “you” and “your” mean the person or persons shown as the “Named Insured” on the declarations page. If a named insured shown on the declarations page is a human being then you and your includes the spouse of the first person listed as the named insured if the spouse resides primarily with that named insured. 7 Les was issued the Umbrella Policy and is named on the declarations page. Applying the definitions of “you” and “your,” he is an insured. “Relative” is defined by the policy as “any person related to you by blood, adoption, or marriage.” Sharon is related to Les by marriage. See also Stutzman, 284 Mont. at 379-80, 945 P.2d at 36 (“In accordance with prevailing case law, and applying a common sense interpretation of the terms at issue, we conclude that the average consumer of insurance would, in reading the [policy], conclude that the term ‘relative’ includes reference to his or her spouse.”).2 Sharon is an “insured” by virtue of being Les’s relative who primarily resides with him. The Umbrella Policy excludes Sharon’s claim because, under the Family Member Exclusion, there is no coverage for bodily injury sustained by an insured. ¶14 Having determined that the Umbrella Policy facially excludes coverage for Sharon’s bodily injuries, we next consider if public policy or principles of contract interpretation prohibit the enforcement of the exclusion. See Augustine v. Simonson, 283 Mont. 259, 264, 940 P.2d 116, 119 (1997). We first address principles of contract interpretation under this issue, and then turn to principles of public policy under Issue 2. ¶15 The interpretation of an insurance contract is a question of law. Modroo, ¶ 23. “We accord the usual meaning of the terms and the words in an insurance contract, and we construe them using common sense.” Modroo, ¶ 23. An insurance contract is ambiguous if it is “‘reasonably subject to two different interpretations.’” Modroo, ¶ 23 2 In Stutzman, Justices Leaphart and Hunt dissented from the majority’s conclusion that the term “relative” includes one’s spouse. Stutzman, 284 Mont. at 382, 945 P.2d at 38 (Leaphart & Hunt, JJ., dissenting). Here, the Umbrella Policy avoids this issue by specifying that “relative” includes relationships of both consanguinity (by blood) and affinity (by marriage). 8 (quoting Mitchell v. State Farm Ins. Co., 2003 MT 102, ¶ 26, 315 Mont. 281, 68 P.3d 703). Whether a provision of an insurance contract is “reasonably susceptible to two different interpretations,” is determined from “the viewpoint of a consumer with average intelligence, but untrained in the law or the insurance business.” Modroo, ¶ 23. However, a provision is not ambiguous “just because a claimant says so or just because the parties disagree as to [its] meaning . . . .” Giacomelli v. Scottsdale Ins. Co., 2009 MT 418, ¶ 32, 354 Mont. 15, 221 P.3d 666 (internal citations omitted); Johnson v. Eq. Fire & Mar. Ins. Co., 142 Mont. 128, 131, 381 P.2d 778, 789 (1963). “Courts should not . . . ‘seize upon certain and definite covenants expressed in plain English with violent hands, and distort them so as to include a risk clearly excluded by the insurance contract.’” Travelers Cas. & Sur. Co. v. Ribi Immunochem Research, Inc., 2005 MT 50, ¶ 17, 326 Mont. 174, 108 P.3d 469 (internal citation omitted). Because insurers draft the language of insurance contracts and the object of an insurance contract is to give protection to the insured, we construe ambiguous provisions “against the insurer and in favor of extending coverage.” Modroo, ¶ 23. ¶16 The McCartneys first argue that the Umbrella Policy is ambiguous because, although it excludes claims brought by relatives of the person(s) listed as a “named insured” on the declaration page, the term “named insured” itself does not also appear on the declaration page. While the McCartneys are correct that the term “named insured” does not appear on the declaration page, “named insured” has a common sense meaning: it refers to the party the insurance policy was issued to cover. The policy refers to that 9 party by name. See 6C Appleman, Insurance Law & Practice, § 4354, at 51 (West Publishing Co., 1979) (“Whenever the term ‘named insured’ is employed, it refers only to the person specifically designated upon the face of the contract[.]”); Waller v. Rocky Mt. Fire & Cas. Co., 535 P.2d 530, 534 (Or. 1975) (“Wherever the description ‘named insured’ is used, the only person named in the declarations of the policy is meant.”). Here, the Umbrella Policy was issued to Les E. McCartney and Frances D. McCartney.3 The Policy further directs that the named insureds are the person(s) listed on the declaration page, and the names of Les E. McCartney and Frances D. McCartney are listed there. Thus, Les E. McCartney and Frances D. McCartney are clearly the “named insureds” under the Umbrella Policy, and there is no ambiguity. ¶17 The McCartneys also argue the Family Member Exclusion is ambiguous because the Policy uses the term “spouse” in the definition of “you and your,” but does not likewise use “spouse” in the definition of “relative.” McCartneys argue that this discrepancy could lead an average person to believe that a “spouse” is not a “relative” within the meaning of the Umbrella Policy. However, the Policy’s definition of “relative” is “any person related to you by blood, adoption, or marriage.” Here again, the terms are clear. Although the term “spouse” is not included within the definition of “relative,” a common sense reading of this provision leaves only one reasonable meaning: that one related by “marriage” is also a “spouse.” See Merriam-Webster’s Collegiate Dictionary, Tenth Edition 1138 (Merriam-Webster, Inc. 1998) (spouse: 3 Frances is Les’s mother. 10 “married person: husband, wife”). Under the Policy’s definitions, Sharon is both Les’s “spouse” and his “relative,” and there is no ambiguity. ¶18 McCartneys further contend the District Court erred by holding the Umbrella Policy did not violate their reasonable expectations. The District Court concluded that, because the exclusion “clearly” excluded Sharon from coverage, any expectation that a claim brought by Sharon would be covered was not “objectively reasonable.” The McCartneys argue that the Exclusion is not sufficiently “clear” because an average person reading the policy would not be able to navigate the Umbrella Policy and the declaration page to effectively discern that Sharon was excluded from coverage. ¶19 The question of whether a provision is sufficiently “clear” to render the reasonable expectations doctrine inapplicable is a different question than whether a provision is ambiguous. If the reasonable expectations doctrine only applied when a provision was ambiguous, there would be no need for the doctrine, as Montana law independently construes ambiguous provisions against the insurer and in favor of coverage. C.f. Bailey v. Lincoln Gen. Ins. Co., 255 P.3d 1039, 1050 (Colo. 2011) (en banc) (“[T]he doctrine of reasonable expectations applies when policy coverage-provisions may not be ambiguous in a technical sense, and hence subject to the rule that ambiguities must be construed against the drafter . . . .”). However, a finding that a provision “unambiguously precludes coverage” is a factor to be considered in determining whether it violates reasonable expectations. Am. Family Mut. Ins. Co. v. Livengood, 1998 MT 329, ¶ 38, 292 Mont. 244, 970 P.2d 1054. 11 ¶20 We first recognized the reasonable expectations doctrine in Transamerica Ins. Co. v. Royle, 202 Mont. 173, 656 P.2d 820 (1983): “‘The objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations.’” Royle, 202 Mont. at 180-81, 656 P.2d at 824 (quoting Robert E. Keeton, Insurance Law Rights Variance with Policy Provisions, 83 Harvard L. Rev. 961, 967 (1970)). However, “the reasonable expectations doctrine is inapplicable where the terms of the policy at issue clearly demonstrate an intent to exclude coverage.” Livengood, ¶ 33 (citing Wellcome v. Home Ins. Co., 257 Mont. 354, 359, 849 P.2d 190, 194 (1993)). “The reason, of course, is that ‘expectations which are contrary to a clear exclusion from coverage are not “objectively reasonable.”’” Livengood, ¶ 33 (quoting Wellcome, 257 Mont. at 359, 849 P.2d at 194). ¶21 In Livengood, a coverage exclusion in an automobile liability policy was challenged as violating the reasonable expectations doctrine. Henninger was driving her roommate’s vehicle when she negligently caused an accident, injuring the Livengoods. Henninger’s automobile liability policy on her own vehicle contained a nonowned automobile/household exclusion that excluded coverage for injuries arising from her use of a vehicle “owned by or furnished or available for regular use by you or any resident of your household.” Livengood, ¶¶ 16-17. Livengoods argued the exclusion violated the reasonable expectations of Henninger, the insured. This Court unanimously upheld the exclusion, reasoning that the provision “clearly demonstrate[d] an intent to exclude 12 coverage while Henninger was using a vehicle owned by . . . a resident of her household, and any expectation by Henninger to the contrary would not be objectively reasonable.” Livengood, ¶ 38 (citing Stutzman, 284 Mont. at 381, 945 P.2d at 37). ¶22 The Family Member Exclusion here is similarly clear. The Umbrella Policy exclusion provides that “no coverage” is available for “bodily injury or personal injury to any insured.” As demonstrated above, Sharon is an “insured” under the Policy. These provisions “clearly demonstrate an intent to exclude coverage” for Sharon’s claim. Livengood, ¶ 33. ¶23 McCartneys urge that necessary clarity would have been provided had State Farm simply stated: “NOTICE: THIS POLICY PROVIDES NO LIABILITY COVERAGE TO YOUR SPOUSE.” However, this simple proposed clarification is incorrect. The Policy does provide liability coverage to Sharon. She is an insured, and the Policy provides excess liability protection to Sharon “if a claim is made or suit is brought against” her by a third party. See Rowe, 245 Mont. at 417, 800 P.2d at 160 (“excess coverage of an umbrella or catastrophe policy protects an insured . . . against liability from third parties”). Regarding McCartneys’ arguments about having to navigate the Policy, there is nothing unusual about a policy that requires the insured to read the exclusion section, the definition section, and the declaration page to determine the scope of coverage. See e.g. Meyer v. State Farm Mut. Auto. Ins., 2000 MT 233, ¶¶ 8-11, 303 Mont. 1, 15 P.3d 899 (upholding exclusion in auto liability policy that required insured to review the definition section, the exclusion section, and the declaration page). A person of average 13 intelligence would be able to determine that claims made by Sharon against Les were excluded by a review of these provisions of the Policy, and any expectation of coverage to the contrary was not objectively reasonable, as the District Court correctly concluded. ¶24 2. Did the District Court err by concluding that the Family Member Exclusion did not violate Montana public policy? ¶25 Insurance agreements are contracts that are subject to general rules of contract law. Ribi Immunochem, ¶ 17. Unambiguous insurance provisions are to be enforced unless the provision violates public policy or is against good morals. Hein v. Fox, 126 Mont. 514, 520, 254 P.2d 1076, 1079 (1953); Youngblood v. Am. States Ins. Co., 262 Mont. 391, 395, 866 P.2d 203, 205 (1993); Modroo, ¶ 49. “As a general rule, the Montana public policy is prescribed by the legislature through its enactment of statutes.” Hardy v. Progressive Specialty Ins. Co., 2003 MT 85, ¶ 32, 315 Mont. 107, 67 P.3d 892 (citing Duck Inn, Inc. v. Mont. St. Univ., 285 Mont. 519, 523-24, 949 P.2d 1179, 1182 (1997)). Insurance provisions which “violate express statutes” are contrary to public policy and void. Mont. Petroleum Tank Release Comp. Bd. v. Crumleys, Inc., 2008 MT 2, ¶ 55, 341 Mont. 33, 174 P.3d 948. ¶26 The McCartneys argue that the Family Member Exclusion violates public policy because it is inconsistent with §§ 61-6-103 and 301, MCA. McCartneys argue that these statutes insure protection for “innocent victims of automobile accidents,” citing Iowa Mut. Ins. Co. v. Davis, 231 Mont. 166, 752 P.2d 166 (1988), and that § 61-6-301, MCA, requires further identification of those who are “named insureds” than that provided 14 under the Umbrella Policy. However, McCartneys read “public policy” into these statutes that go far beyond their wording or meaning. ¶27 In Davis, at issue was the validity of a “named driver exclusion,” which removed from coverage persons expressly excluded on an automobile liability policy. Davis, 231 Mont. at 167, 752 P.2d at 167. The Davises requested that their children be excluded from their policy to lower their premiums. Davis, 231 Mont. at 167, 752 P.2d at 167. Nonetheless, one of their sons drove the Davises’ vehicle and crashed it, injuring his passenger. Davis, 231 Mont. at 167, 752 P.2d at 167. Iowa Mutual denied all coverage for the passenger’s injuries under the exclusion. Davis, 231 Mont. at 168, 752 P.2d at 167. This Court struck down the exclusion as against public policy because it left the passenger in the insured vehicle without any coverage, in violation of the mandatory liability insurance statute. Davis, 231 Mont. at 170, 752 P.2d at 168. Our general statement in Davis that the liability insurance law protects “innocent victims of automobile accidents” was made in the context of our holding that the minimum coverage limits required by §§ 61-6-103, MCA, and 61-6-301, MCA, are applicable to all vehicles insured under an automobile policy. Davis, 231 Mont. at 170, 752 P.2d at 169. We further explained that this public policy did not prevent insurers and insureds from limiting coverage to the mandatory minimum levels required by the statute: Our decision does not, however, read the named driver exclusionary endorsement out of the contract entirely. Rather, contracting parties are free to limit coverage in excess of the minimum required limits, and the exclusion found in the contract is valid in relation to any coverage exceeding the minimum amounts. 15 Davis, 231 Mont. at 172-73, 752 P.2d at 170 (emphasis added) (quoting Allstate Ins. Co. v. U.S. Fid. & Guar., 619 P.2d 329, 333 (Utah 1980)). ¶28 Voiding the Family Member Exclusion in the Umbrella Policy at issue here pursuant to an expansive public policy of protecting “innocent victims of automobile accidents,” as proposed by the McCartneys, could potentially invalidate any number of coverage exclusions without the necessity of conducting a critical analysis of Montana’s public policy. Our cases contain numerous examples of claims to coverage that were denied because of valid exclusions. See e.g. Livengood, ¶¶ 6, 9, 27 (no insurance coverage to injured party because tortfeasor driver was excluded by “nonowned automobile exclusion”); Rowe, 245 Mont. at 414, 418, 800 P.2d at 158, 161 (denying underinsured motorist coverage to estate of “fatally injured” man because umbrella policy excluded such coverage); Stutzman, 284 Mont. at 375, 945 P.2d at 33 (no underinsured coverage for wife injured in accident because of policy exclusion that defined “underinsured motor vehicle” not to include vehicles owned by named insured or any “relative”); Newbury v. State Farm Fire & Cas. Ins. Co., 2008 MT 156, ¶¶ 6, 9, 49, 343 Mont. 279, 184 P.3d 1021. Indeed, all policy exclusions operate to deny coverage in some way, but not necessarily in violation of Montana public policy. ¶29 Section 61-6-301(1)(a), MCA, requires all motor vehicles to have a minimum level of liability insurance: [A]n owner of a motor vehicle that is registered and operated in Montana by the owner or with the owner’s permission shall continuously provide insurance against loss resulting from liability imposed by law for bodily injury or death or damage to property suffered by any person caused by 16 maintenance or use of a motor vehicle in an amount not less than that required by 61-6-103[.]4 Section 61-6-103(1)(b)(i)-(iii), MCA, requires motorists to obtain automobile liability insurance covering, at a minimum, bodily injury limits of $25,000 per person and $50,000 per accident, and a property damage limit of $10,000 per accident. ¶30 Our cases illustrate the reach of these provisions to void coverage exclusions. In Royle, a woman sued her parents for injuries she sustained while a passenger in a vehicle driven by her mother. Royle, 202 Mont. at 174, 656 P.2d at 821. The automobile liability policy excluded coverage for “‘bodily injury to any person who is related by blood, marriage, or adoption to the insured, if that person resides in the insured’s household at the time of loss.’” Royle, 202 Mont. at 174, 656 P.2d at 821 (original brackets omitted). Under this household exclusion, the daughter was not covered. We struck down the exclusion as contravening the requirements of § 61-6-301(1)(a), MCA, that vehicle owners “continuously” provide minimum liability coverage for bodily injury to “any person,” which included household members. Royle, 202 Mont. at 177-79, 656 P.2d at 823-24. ¶31 Conversely, in Stutzman, we upheld a household exclusion within underinsured motorist coverage as not inconsistent with §§ 61-6-301 and 61-6-103, MCA. After she was injured as a passenger in her husband’s vehicle, Stutzman sought payment under the liability and underinsured motorist coverages. Stutzman, 284 Mont. at 375, 945 P.2d at 4 Section 61-6-301, MCA, does not govern the identification of “named insureds” in an automobile liability policy. 17 33. Safeco paid under the liability coverage but denied Stutzman’s demand for payment of underinsured motorist coverage based on an exclusion that removed from the definition of “underinsured motor vehicle” any vehicle “‘owned by or furnished for the regular use of the named insured or any relative . . . .’” Stutzman, 284 Mont. at 378, 945 P.2d at 35. Stutzman asked the court to void the exclusion on public policy grounds, arguing that under Royle, all “household exclusion clauses in bodily injury liability policies are void.” Stutzman, 284 Mont. at 380, 945 P.2d at 37. We rejected such a broad application of Royle and upheld the exclusion, reasoning that: Although this Court may indeed invalidate a household exclusion clause which violates Montana’s mandatory insurance law, there is no statutory mandate for underinsured motorist coverage in Montana. Pursuant to § 61- 6-103(8), MCA, optional underinsured motorist coverage is not subject to the provisions of Montana’s Motor Vehicle Safety Responsibility Act. Therefore, the parties may freely contract to produce exclusions or limitations on underinsured motorist coverage. Stutzman, 284 Mont. at 380-81, 945 P.2d at 37. Because the exclusion in the underinsured coverage did not nullify the mandatory liability limits, the exclusion did not violate public policy and the parties were free to contract for this policy limitation. Stutzman, 284 Mont. at 380-81, 945 P.2d at 37. ¶32 Sections 61-6-301 and 61-6-103, MCA, thus prohibit exclusions that result in failure to provide the minimum coverage required under the statutes. We have voided exclusions as against public policy when they contravene these mandatory statutory minimums. See Davis, supra (invalidating “named driver exclusion” that removed entirely from coverage those expressly excluded in auto policy as violating § 61-6- 18 301(1)); Royle, 202 Mont. at 181, 656 P.2d at 824 (invalidating household exclusion in auto policy as violating § 61-6-301(1) because it removed all coverage to household members); Bill Atkinson Volkswagon v. McClafferty, 213 Mont. 99, 104, 689 P.2d 1237, 1240 (1984) (holding § 61-6-301(1), MCA, requires an automotive dealership to maintain the statutory minimum insurance on the dealership’s “loaner” vehicles); Swank v. Chrysler Ins. Corp., 282 Mont. 376, 383, 938 P.2d 631 (1997) (voiding exclusion in liability policy for vehicle dealership that provided coverage for customers only if the customer was uninsured or underinsured). We have upheld exclusions as not violative of public policy and subject to the parties’ freedom to negotiate when they limited other, nonmandatory coverages. See Stutzman, supra (exclusion of family member vehicles from definition of “underinsured motor vehicle” upheld because the parties were free to “contract to produce exclusions or limitations on [optional] underinsured motorists coverage.”); Livengood, ¶ 27 (“nonowned automobile exclusion” did not violate Montana public policy because the policy at issue provided the “mandatory liability coverage required by §§ 61-6-301(1) and 61-6-103(2)(b)”). The Family Member Exclusion within Les’s optional Umbrella Policy does not violate §§ 61-6-103 and 61-6-301(1), MCA. Because the Exclusion does not “violate express statutes,” Crumleys, ¶ 55, it does not contravene public policy in that way. See Newbury, ¶ 36 (“In Montana, parties to an insurance contract may include provisions that exclude coverage without violating public policy if the exclusion applies to optional, rather than mandatory coverage.”). 19 ¶33 We have also voided insurance clauses as against public policy in other situations. We have voided a subrogation clause in a policy if it undermines the judicially recognized made-whole doctrine. See Youngblood, 262 Mont. at 400, 866 P.2d at 208 (voiding medical payment subrogation clause because it contradicted the made-whole doctrine); Allstate Ins. Co. v. Reitler, 192 Mont. 351, 355, 628 P.2d 667, 670 (1981) (same). Also, we have voided provisions that render coverage “illusory” by “defeat[ing] coverage for which the insurer has received valuable consideration.” Bennett v. State Farm Mut. Auto. Ins. Co., 261 Mont. 386, 389, 862 P.2d 1146, 1148 (1993); Hardy, ¶¶ 25-29 (holding as violative of Montana public policy anti-stacking provision in a policy that permitted insurer to receive valuable consideration for coverage not provided); Mitchell v. State Farm Ins. Co., 2003 MT 102, ¶ 42, 315 Mont. 281, 68 P.3d 703 (same). These situations do not exist here. There is no subrogation clause, and exclusion of Sharon’s claim does not render coverage under the Umbrella Policy illusory. The Policy provides the liability coverage for which the premium was paid, protecting Sharon from third-party automobile claims as well as farm, residential, business and office premises liability, watercraft liability, false arrest, defamation, invasion of privacy and other tort claims. As demonstrated here, umbrella policies are written to provide broad coverage for numerous risks against third parties. ¶34 The McCartneys cite three cases from other jurisdictions that voided household exclusions in umbrella policies as against public policy when applied to automobile accident victims. See State Farm Mut. Auto. Ins. Co. v. Marley, 151 S.W.3d 33 (Ky. 20 2004); Safeco Ins. Co. v. Auto. Club Ins. Co., 31 P.3d 52 (Wa. App. Ct. 2001); GEICO Ins. Co. v. Welch, 90 P.3d 471 (N.M. 2004). However, the reasoning of these courts is inapposite with Montana law and public policy. First, unlike Montana, where the mandatory insurance laws provide minimum coverage for the purpose of protecting victims of automobile accidents, the Washington, Kentucky, and New Mexico courts cited by the McCartneys interpret their mandatory insurance laws to require full compensation to injured victims. Safeco, 31 P.3d at 55-56; Welch, 90 P.3d at 474; Marley, 151 S.W.3d at 36. ¶35 Second, these courts reasoned that the distinction between mandatory coverage (primary automobile liability policies) and optional coverage (umbrella policies) was “irrelevant” to the question of whether public policy voided the household exclusion. Marley, 151 S.W.3d at 36 (internal citation omitted); accord Safeco, 31 P.3d at 56; Welch, 90 P.3d at 474-76. In contrast, our precedent clearly distinguishes between mandatory coverage and optional coverages that fall outside the ambit of Montana’s mandatory insurance laws. Newbury, ¶ 35; Stutzman, 284 Mont. at 380-81, 945 P.2d at 37; Davis, 231 Mont. at 172, 752 P.2d at 170-71.5 5 It has been noted that imputation of mandatory insurance requirements on optional coverages is not without problems: [B]ecause of misunderstanding of the courts as to the nature of [umbrella] coverages, they have been held to fall within the definition of automobile liability insurance. . . . It should be recognized that the generosity of the courts confers no favor upon the insuring public. Such decisions result either in [umbrella] coverage being withdrawn from potential insureds or in premium rates being raised so substantially that they will become priced out of range of most buyers. 8C Appleman, Insurance Law & Practice, § 5071.65 at 107-08 (West Publ. Co. 1981). 21 ¶36 Finally, these courts found the household exclusion to be an “arbitrary” provision that denied coverage for “no legitimate reason.” Safeco, 31 P.3d at 56; accord Welch, 90 P.3d at 475; Marley, 151 S.W.3d at 36. Many other courts have found reasons to conclude such exclusions are not arbitrary. The exclusion helps keep umbrella policies affordable by avoiding “‘coverage for those in the family circle, who, on account of their close intimacy, may be expected to be riding at frequent intervals in the insured car.’” Alfa Ins. Co. v. Hasselle, 74 So.3d 371, 375-76 (Miss. App. 2011) (quoting Perry v. S. Farm Bur. Cas. Ins. Co., 170 So.2d 628, 630 (Miss. 1965)). This has allowed insurers to offer umbrella policies at a cost far less than auto policies: “[U]mbrella policies’ raison d’etre is to provide individuals with affordable protection against excess judgments of third parties, rather than provide individuals with automobile insurance. This fundamental difference is underscored by the difference in premiums that an insurance company charges for the two types of policies. Due to the relative risks associated with each, the premiums that insurance companies charge for umbrella policies are substantially lower than the premiums that insurance companies charge for automobile insurance.” Kromer v. Reliance Ins. Co., 677 A.2d 1224, 1228 (Pa. Sup. 1996) (rejecting argument that umbrella polices must conform to requirements of Pennsylvania’s mandatory auto insurance laws) (quoting Stoumen v. Pub. Ser. Mut. Ins. Co., 834 F. Supp. 140, 143 (E.D. Pa. 1993)). Consistent therewith, the record of this case indicates that Les paid $289 annually for $250,000 per person and $500,000 per occurrence liability protection under his automobile policy, but only $201 annually for $2,000,000 per occurrence liability protection under the Umbrella Policy. 22 ¶37 Other courts have noted the insurer’s interest in avoiding the risk of collusive claims amongst family members: The concept of a household exclusion is a common one which has long enjoyed judicial support. Its purpose is to prevent suspect inter-family legal actions which may not be truly adversary and over which the insurer has little or no control. Such an exclusion is a natural target for the insurer’s protection from collusive assertions of liability. Farmers Ins. Exch. v. Cocking, 628 P.2d 1, 4 (Cal. 1981) (en banc) (internal quotations omitted); accord Allstate Ins. Co. v. Feghali, 814 P.2d 863, 866 (Colo. 1991) (en banc).6 The McCartneys argue that because Montana has abolished inter-spousal tort immunity, see Miller v. Fallon County, 222 Mont. 214, 721 P.2d 342 (1986) and Royle, 202 Mont. 173, 656 P.2d 820, insurers may no longer justify exclusion of family members because of the threat of collusive claims. Abolishment of spousal immunity no doubt prompted insurers to exclude spousal claims from coverage, but upholding the Exclusion in this Policy does not frustrate the abolishment of such immunity. Nothing in this decision prevents Sharon from bringing a negligence claim against Les, and she did so successfully, collecting pursuant to Les’s automobile liability coverage. See Costello v. Nationwide Mut. Ins. Co., 795 A.2d 151, 159 n. 3 (Md. App. Ct. 2002). ¶38 In conclusion, the Family Member Exclusion does not contravene an express statute, undermine the made-whole doctrine, constitute illusory coverage that “defeats coverage for which the insurer has received valuable consideration,” or violate public 6 The McCartneys correctly point out that “[t]here is absolutely no evidence in this case of collusion or fraud on the part of Les.” However, consideration of public policy is an objective inquiry into the relevant principles in statutes and case law. 23 policy in any other way. Bennett, 261 Mont. at 389, 862 P.2d at 1148. We note that, in holding that a household exclusion in an umbrella policy does not violate public policy, we join the majority of jurisdictions that have addressed the issue.7 ¶39 3. Did the District Court err by concluding that the Family Member Exclusion was unconscionable? ¶40 In a very brief analysis, the District Court held that the Family Member Exclusion was unconscionable because it excluded from coverage a class of victims most likely to be exposed to injury, quoting Safeco’s statement that “typical family relations require family members to ride together on the way to work, church, school, social functions, or family outings.” Safeco, 31 P.3d at 54-55. We have discussed above the dispositive distinctions between Safeco and Montana law. ¶41 “Unconscionability requires a two-fold determination: that the contractual terms are unreasonably favorable to the drafter and that there is no meaningful choice on the part of the other party regarding acceptance of the provisions.” Summers v. Crestview Apartments, 2010 MT 164, ¶ 22, 357 Mont. 123, 236 P.3d 586 (citing Iwen v. U.S. West Direct, 1999 MT 63, ¶ 31, 293 Mont. 512, 977 P.2d 989). A provision “unreasonably favors the drafter” when it is “‘so one-sided as to be unconscionable under the 7 See e.g. Farm Bureau Mut. Ins. Co. v. Schrock, 252 P.3d 98, 105 (Idaho 2011); Costello v. Nationwide Mut. Ins. Co., 795 A.2d 151, 159-60 (Md. 2002); Bogas v. Allstate Ins. Co., 562 N.W.2d 236, 237 (Mich. App. 1997); Elec. Ins. Co. v. Rubin, 32 F.3d 814, 818-20 (3rd Cir. 1994) (applying Pennsylvania law); Walker v. State Farm Mut. Auto. Ins., 850 So.2d 882, 889 (La. App. 2003); Weitz v. Allstate Ins. Co., 642 A.2d 1040, 1041-42 (N.J. Supp. App. Div. 1994); State Farm Mut. Auto. Ins. Co. v. Daprato, 840 A.2d 595, 599 (Del. 2003); Schanowitz v. State Farm Mut. Auto. Ins. Co., 702 N.E.2d 629, 633 (Ill. App. 1998); State Farm Mut. Auto Ins. Co. v. Gengelbach, 1992 WL 88025, *4 (D. Kansas 1992) (applying Missouri law). 24 circumstances existing at the time of the making of the contract.’”8 All-States Leasing Co. v. Top Hat Lounge, Inc., 198 Mont. 1, 6, 649 P.2d 1250, 1252-53 (1982) (quoting official comment to U.C.C. § 2-302); Westlake v. Osborne, 220 Mont. 91, 96, 713 P.2d 548, 551 (1986) (same); Kelly v. Widner, 236 Mont. 523, 527, 771 P.2d 142, 145 (1989) (same). ¶42 It is the burden of the party seeking to void a provision to raise facts sufficient to demonstrate the provision is “so one-sided as to be unconscionable.” Westlake, 220 Mont. at 96, 713 P.2d at 552. In Leibrand v. Natl. Farmers Union Prop. & Cas. Co., 272 Mont. 1, 12, 898 P.2d 1220, 1227 (1995), we declined to address the conscionability of a household exclusion because “based on the record before us, we ha[d] an insufficient factual basis” to determine if the provision unreasonably favored the insurer. ¶43 Likewise, we cannot conclude, based upon the factual record here, that the Family Member Exclusion is “so one-sided as to be unconscionable.” Westlake, 220 Mont. at 96, 713 P.2d at 552. The McCartneys have not demonstrated that the coverages provided by the Umbrella Policy in exchange for the premium paid were rendered oppressive because Sharon’s excess liability claim against Les was excluded. Nor have they shown, by statistics or otherwise, that the exclusion of family members enabled State Farm to reap a benefit from an oppressive term or from illusory coverage. They have not shown that 8 This test is consistent with the early enunciations of unconscionability. See Hume v. U.S., 132 U.S. 406, 415, 10 S. Ct. 134, 137 (1889) (an unconscionable bargain is “such as no man in his senses and not under delusion would make on the one hand, and no honest and fair man would accept on the other[.]”). 25 higher liability coverage for injuries suffered by family members was not available on the open insurance market.9 ¶44 The only argument offered by McCartneys to demonstrate that the Family Member Exclusion unreasonably favors State Farm is that “it allows State Farm to arbitrarily deny coverage to any family member.” As discussed above, however, ¶¶ 36- 37, the Family Member Exclusion is not arbitrary in this manner. The exclusion makes it possible to make broad excess coverage available at an economical cost by excluding from coverage “those in the family circle, who, on account of their close intimacy, may be expected to be riding at frequent intervals in the insured car,” Perry, 170 So.2d at 630, and by “prevent[ing] suspect inter-family legal actions which may not be truly adversary and over which the insurer has little to no control.” Cocking, 628 P.2d at 4. The McCartneys’ premiums for $2,000,000 in umbrella coverage were more economical than the premiums for $500,000 in automobile liability coverage. Permitting frequent family passengers to turn economical excess coverage into expensive liability coverage would be contrary to the Umbrella Policy’s purpose and undermine its viability. We conclude that McCartneys have not carried the burden of establishing that the Family Member Exclusion is unconscionably one-sided, and the District Court erred in so concluding. We need not address the second unconscionability prong. 9 The parties disputed in their briefing whether Les had purchased the highest limits of liability insurance available to him from State Farm. During oral argument, counsel for State Farm stated the record did not support Les’s contention and that Les could have purchased higher liability limits, but that State Farm had not been given the opportunity to submit evidence of this fact for the record. McCartneys did not dispute this position at oral argument. As noted above, it was McCartneys’ burden to establish the factual record necessary to support their unconscionability claim. Westlake, 220 Mont. at 96, 713 P.2d at 552. 26 ¶45 We reverse the District Court’s entry of summary judgment in favor of McCartneys and remand for entry of judgment in favor of State Farm. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ DEBORAH KIM CHRISTOPHER District Court Judge Kim Christopher sitting for Justice Mike E Wheat | July 30, 2013 |
f7a93c60-5cf4-4e95-aaf5-a56204d7437b | State v. Sullivant | 2013 MT 200 | DA 12-0240 | Montana | Montana Supreme Court | DA 12-0240 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 200 STATE OF MONTANA, Plaintiff and Appellee, v. KEVIN RAYMOND SULLIVANT, Defendant and Appellant. APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause Nos. DC 00-108 & DC 00-133 Honorable Jeffrey H. Langton, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade M. Zolynski, Chief Appellate Defender; Kristen L. Larson, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman, Assistant Attorney General, Helena, Montana William E. Fulbright, Ravalli County Attorney; Angela Wetzsteon, Deputy County Attorney, Hamilton, Montana Submitted on Briefs: June 12, 2013 Decided: July 23, 2013 Filed: __________________________________________ Clerk July 23 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Kevin Raymond Sullivant appeals from the District Court’s judgment revoking his suspended sentence. We affirm in part, reverse in part, and remand to the District Court. PROCEDURAL AND FACTUAL BACKGROUND ¶2 In August 2000 and again in October 2000, the State charged Sullivant with felony DUI and associated offenses, including a felony and several misdemeanors. In November 2000, Sullivant pled guilty to both of the felony DUI offenses and to two of the misdemeanor offenses. The State dismissed the remaining charges. ¶3 In February 2001, the District Court sentenced Sullivant to the custody of the Department of Corrections for 13 months followed by four years of supervised probation on each of the DUI offenses. The District Court sentenced Sullivant to six months each for the offenses of obstructing a police officer and for driving with a suspended license, and suspended those sentences. The District Court ordered that all of the sentences would be consecutive to one another, for a total commitment of 26 months to the Department of Corrections, followed by nine years of supervised probation. The sentence also included a fee of $1450 and a fine of $1000, and a credit for 132 days served in jail prior to sentencing. ¶4 Sullivant served his commitment to the Department of Corrections and was discharged on June 13, 2002, to begin serving his period of probation. On August 14, 2003, the State filed a petition to revoke Sullivant’s probation based upon his violation of a number of the conditions of probation. The State alleged that Sullivant had been arrested in Butte for disorderly conduct and resisting arrest; his probation officer found him intoxicated at home; 3 he failed to appear for an appointment with his probation officer; and he was arrested for another DUI. The District Court issued a bench warrant for Sullivant’s arrest, and on December 4, 2003, the State notified the District Court that Sullivant had absconded from supervision. ¶5 Eight years later in July 2011, the State moved the District Court to quash the original arrest warrant and to issue a new warrant for Sullivant’s arrest. At that time Sullivant was in prison in Kansas, and when he was released from the Kansas sentence he was returned to Montana in August 2011. ¶6 The District Court held a probation revocation hearing in January 2012, and found that Sullivant had violated conditions of probation. Sullivant admitted that he absconded from supervision in 2003 to avoid going back to prison by leaving the State of Montana. The record before the District Court showed that after Sullivant absconded, he embarked upon a string of criminal offenses in other states, resulting in convictions for trespass, theft, disorderly conduct, battery, possession of marijuana, burglary, resisting arrest and shoplifting. The District Court sentenced Sullivant to the Department of Corrections for eight years, with no time suspended and with credit for 194 days served since his return from Kansas. The District Court denied credit for any time spent on probation and re-imposed the fines and fees set out in the original sentence. ¶7 Sullivant appeals contending that the eight-year delay between the initial arrest warrant and his actual arrest in 2011 violated his right to due process. He acknowledges that he did not raise this issue or object at the time of sentencing, and contends that this Court should consider his arguments as a matter of plain error. He also contends that his case 4 should be remanded to the District Court for an evidentiary hearing on the reasons for the delay. Sullivant further contends that the District Court could only revoke any remaining probation time left on his original sentence, and that by the time he was sentenced in 2012 the original probationary period had expired. Last, Sullivant contends that the re-imposition of the original fines and fees varied from the District Court’s oral pronouncement of sentence and should be stricken. STANDARD OF REVIEW ¶8 This Court exercises de novo plenary review of issues of statutory construction, to determine whether the district court correctly interpreted and applied the statute. State v. West, 2008 MT 338, ¶ 13, 346 Mont. 244, 194 P.3d 683. This Court reviews a criminal sentence that includes at least one year of incarceration for legality only, that is, whether the sentence is within statutory parameters. State v. Oie, 2007 MT 328, ¶ 8, 340 Mont. 205, 174 P.3d 937; State v. Classen, 2012 MT 313, ¶ 14, 367 Mont. 478, 291 P.3d 1176. This Court reviews a district court’s decision to revoke probation or a suspended sentence to determine whether the decision was supported by a preponderance of the evidence, and if so, whether the district court abused its discretion. State v. Senn, 2003 MT 52, ¶ 19, 314 Mont. 348, 66 P.3d 288. DISCUSSION ¶9 Issue One: Whether the District Court properly sentenced Sullivant to prison after revoking his probation. ¶10 Sullivant contends and the State agrees that upon the 2012 revocation of the 2001 probationary sentence, the District Court could only impose a prison term equal to the 5 remainder of his period of probation. The parties disagree, however, on how much if any of the probationary term remained when Sullivant was sentenced for the probation violation in 2012. Sullivant contends that he could not be sentenced to any prison time because more time elapsed between his release from prison in 2002 and the revocation hearing in 2012 than the period of probation he was originally sentenced to serve. The State contends that Sullivant is not entitled to any benefit of the years during which he absconded from probation and that 7 or more years were left on his probation at the time of the revocation hearing. ¶11 Sullivant was sentenced in 2002 for DUI offenses and other crimes. The parties agree that as to the DUI offenses, § 61-8-731(5), MCA (1999), applies because it was the statute that governed the revocation of a probationary sentence for DUI at the time of Sullivant’s probation violation. Oie, ¶ 17. That statute provided that upon proof of a violation of the conditions of probation for a DUI offense, the district court could sentence the defendant to confinement for “the remainder of the probation sentence.” The district court could also credit the time to be served “with all or part of the time already served on probation.” Section 61-8-731(5), MCA (1999). ¶12 Upon conviction for felony DUI, § 61-8-731(1), MCA (1999), required a period of imprisonment followed by a period of probation. Probation is an “act of grace” intended to give the offender a chance to rehabilitate outside the prison setting. State v. Boulton, 2006 MT 170, ¶ 15, 332 Mont. 538, 140 P.3d 482. The conditions and restrictions imposed upon probationers are intended to facilitate rehabilitation and to insure that the community is not harmed by the probationer during the period of release. State v. Moody, 2006 MT 305, ¶ 17, 6 334 Mont. 517, 148 P.3d 662. The probation officer is charged with supervising the probationer, enforcing the conditions and restrictions of probation, and “discerning any deception by the probationer.” Moody, ¶ 17; § 46-23-1001(4), MCA. A probation officer is required to “regularly advise and consult with the probationer to encourage the probationer to improve the probationer’s condition and conduct . . . .” Section 46-23-1011(3), MCA. A probation officer may visit the probationer’s home, and those visits are “an important check on a probationer’s rehabilitation efforts.” Moody, ¶ 16. ¶13 When a probationer absconds from supervision and fails to comply with the conditions imposed by the district court, none of these goals can be met and the purposes of probation are frustrated. A probationer who absconds and fails to cooperate in the probation process is no more “on probation” than an inmate who escapes is “in prison.” After a warrant has been issued for a probation violation, a probationer who cannot be found is “deemed a fugitive from or to have fled from justice.” Section 46-23-1014, MCA. Allowing a probationer to abscond, flee the state, commit criminal offences and still be given credit for years on probation would only serve to encourage probationers to become fugitives. ¶14 For these reasons, under § 61-8-731(5), MCA (1999), the phrase “remainder of the probation sentence” does not include any period of time during which the probationer absconds from the probation program and the supervision of the probation officer. In the present case, we deem that period to begin on December 4, 2003, when the State notified the District Court that Sullivant had absconded from supervision. Sullivant could therefore be sentenced to serve any probation time remaining between December 4, 2003, and the date his probation would have ended had he not absconded. Because the District Court may have 7 imposed a longer period of imprisonment than allowed under this decision, this matter is remanded to the District Court for resentencing. Upon remand, the District Court may determine the amount of probation left to be served in accordance with this opinion, and may then determine the appropriate sentence. ¶15 Issue Two: Whether this Court should remand to the District Court for an evidentiary hearing into the circumstances surrounding Sullivant’s absconding from probation supervision for eight years. ¶16 Sullivant concedes that he absconded from probation after a warrant for his arrest was issued based upon allegations of probation violations. He admitted that he absconded so that he could avoid returning to prison. He contends on appeal that the State had an obligation based on his right to due process to pursue his return to Montana to face probation revocation proceedings. Sullivant concedes that he did not raise any issue or objection in the District Court as to the circumstances of his absconding from probation supervision or his possible return to Montana between 2003 and 2011. He contends that this Court should undertake plain error review of this issue and that he is entitled to an evidentiary hearing in District Court concerning the circumstances surrounding his period as a fugitive. Sullivant relies upon State v. West, 2008 MT 338, 346 Mont. 244, 194 P.3d 683, to support his contention that he is entitled to an evidentiary hearing in District Court. ¶17 A party may raise on direct appeal only the issues and claims that were properly presented and preserved in the district court. West, ¶ 16. As an exception to this rule, plain error review is a discretionary matter that this Court undertakes sparingly, on a case by case basis, and only where failing to review may result in a manifest miscarriage of justice, may 8 leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process. West, ¶ 23. In West this Court considered a similar issue regarding a delay in a probation revocation hearing, undertook plain error review, and remanded to the district court for an evidentiary hearing on the reasons for the delay between the conduct supporting the probation revocation and the revocation hearing, and on whether West was prejudiced. ¶18 We decline to do so here. Not only did Sullivant fail to object in District Court, but he also failed to present a sufficient argument that demonstrates that a manifest miscarriage of justice occurred in this matter, or that there are any other adequate grounds for plain error review. ¶19 Issue Three: Whether Sullivant is subject to the fines and fees imposed in the original sentence, and, if so, whether he is entitled to credit against the fines and fees for time served in jail. ¶20 At the original sentencing in 2001, the District Court sentenced Sullivant to pay certain fines and fees. The District Court did not mention those fines and fees when announcing the oral judgment revoking Sullivant’s probation in 2012. Upon entry of the February 22, 2012, written Judgment on Revocation of Suspended Sentence, the District Court noted that all unpaid fines and fees were “reimposed.” Sullivant contends that because the fines and fees were not mentioned in the oral judgment revoking probation, they could not be “reimposed” in the written judgment. ¶21 In addition to the fines and fees, there were numerous parts, passages, restrictions and impositions contained in the original 2001 sentence, including sentencing for several 9 convictions in addition to the two DUIs. It cannot be doubted that any and all of those not specifically altered by the 2012 Judgment on Revocation of Suspended Sentence would remain in full force and effect. The issue under the applicable revocation statute, § 61-8- 731(5), MCA (1999), was whether to revoke the period of probation.1 The fines and fees were not in issue. Therefore, if the District Court had said nothing about the fines and fees in the 2012 Judgment on Revocation of Suspended Sentence, Sullivant would still be subject to those fines and fees. The fact that the District Court’s written Judgment noted the fines and fees did not in any way increase the punishment already imposed upon Sullivant in 2001, and did not invalidate the prior sentence to pay the fines and fees. State v. Johnson, 2000 MT 290, ¶ 24, 302 Mont. 265, 14 P.3d 480. ¶22 The State concedes that Sullivant is entitled to credit against the fine based upon the 132 days of time served prior to sentencing, as found by the District Court. This was expressly required by the applicable statute, § 46-18-403(2), MCA (1999), which required credit against a fine for each day of incarceration prior to conviction. At the pertinent time, that statute allowed Sullivant to receive credit against the $1000 fine. The Judgment on Revocation is silent on this point and the State does not oppose remand of the sentence for clarification. Upon remand the District Court may determine the number of days of incarceration and the credit applicable against the fine. 1 At that time the statute provided: “If a violation of the restrictions or conditions of the probation is established, the court may continue the period of probation or may require the defendant to serve the remainder of the probation sentence in one of the facilities set forth in subsection (2)(a) or (2)(b). The court may credit the remainder of the probation or the time to be served in a facility set forth in subsection (2)(a) or (2)(b) with all or part of the time already served on probation.” 10 ¶23 The decision of the District Court is affirmed in part, reversed in part, and remanded for re-sentencing in accordance with this opinion. /S/ MIKE McGRATH We concur: /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ BRIAN MORRIS | July 23, 2013 |
d1e3a5b3-ddfd-487e-97d4-edf978c23194 | In re Estate of Bennett | 2013 MT 228 | DA 13-0060 | Montana | Montana Supreme Court | DA 13-0060 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 228 IN THE MATTER OF THE ESTATE OF JEREMIAH BENNETT, Deceased. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Sanders, Cause No. DP 12-30 Honorable C.B. McNeil, Presiding Judge COUNSEL OF RECORD: For Appellant: Lon J. Dale; Michael D. Bybee; Milodragovich, Dale & Steinbrenner, P.C., Missoula, MT For Appellee: Robert Terrazas, Julia D. Goodkind, Terrazas Law Office, Missoula, MT Keith W. McCurdy, McCurdy Law Firm, P.C., Polson, MT Submitted on Briefs: June 26, 2013 Decided: August 13, 2013 Filed: __________________________________________ Clerk August 13 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Abel Robert Bennett appeals from the District Court’s December 19, 2012, Order Granting Petition for Formal Probate. We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶2 Jeremiah Bennett died intestate in September 2012, the victim of a motor vehicle accident caused by another driver. His two minor children survived the accident but sustained injuries. The children reside with their mother, Jeremiah’s ex-spouse Sabrina. Jeremiah and Sabrina were divorced in 2010. The District Court appointed Jeremiah’s ex- spouse Sabrina conservator and guardian for the children. ¶3 Jeremiah’s father Abel opened an informal probate of Jeremiah’s estate (§ 72-3-201, MCA) and on October 19, 2012, the Clerk of the Court appointed him personal representative (PR), § 72-3-225 , MCA. On November 14, 2012, Sabrina, through her attorney, filed a “Petition for Formal Adjudication of Intestacy, Determination of Heirs, Appointment of Personal Representative and For Supervised Administration.” She objected to the appointment of Abel as PR and nominated herself as PR of the estate in her capacity as guardian and conservator of the children. The District Court held a hearing on Sabrina’s motion on December 11, 2012, receiving testimony, exhibits and proposed findings from both sides. The District Court issued an order on December 19, 2012, granting Sabrina’s petition for supervised administration, removing Jeremiah’s father Abel as PR of the estate, and appointing Sabrina as PR. 3 ¶4 Abel petitioned for a writ of supervisory control, and this Court denied the petition by an order on February 6, 2013. A second petition for supervisory control by Abel is pending as of the time of this Opinion. Abel now appeals pursuant to M. R. App. P. 6(4), and the issue on appeal is whether the District Court properly ordered that Abel be removed and replaced by Sabrina as PR. Other matters concerning the Estate of Jeremiah Bennett are still pending before the District Court. STANDARD OF REVIEW ¶5 This Court reviews a district court’s decision regarding the removal of a personal representative to determine whether the district court abused its discretion. In re Estate of Zempel, 2000 MT 283, ¶ 12, 302 Mont. 183, 14 P.3d 441. A district court abuses its discretion when it acts arbitrarily without employing conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. Zempel, ¶ 12. A personal representative may be removed for cause under § 72-3-526, MCA, and “cause” includes anything that is in the best interests of the estate. In re Estate of Greenheck, 2001 MT 114, ¶ 19, 305 Mont. 308, 27 P.3d 42. ¶6 A district court’s appointment of a personal representative is reviewed to determine whether the district court correctly applied the law. In re Estate of Kuralt, 2001 MT 153, ¶ 11, 306 Mont. 73, 30 P.3d 345. DISCUSSION ¶7 It is clear that the District Court had wide discretion as to the appointment of a PR for Jeremiah’s estate. Zempel; Greenheck; § 72-3-526, MCA. The District Court determined that it was in the best interests of the estate to remove Abel and to appoint Sabrina. Upon 4 consideration of the District Court’s Order Granting Formal Probate, and the facts and applicable law, Abel has not demonstrated that the District Court failed to follow the law, or that it abused its discretion. Abel has not demonstrated that he has any claim of entitlement to the position of PR of the estate. ¶8 The principal point of contention between Abel and Sabrina concerns the proceeds of legal claims that have or may arise from Jeremiah’s death. Abel contends that Sabrina intends to exclude him from any monetary recovery for Jeremiah’s death. Under Montana law there can be only a single action to recover for a person’s death, and that action must be maintained by the PR of the estate. The PR does so on behalf of those who may have a claim to a share of the proceeds of any action, under the supervision of the district court. See Hern v. Safeco, 2005 MT 301, ¶¶ 35-36, 329 Mont. 347, 125 P.3d 597. Issues as to the claims or causes of action Sabrina pursues as PR, or the disposition of the proceeds, are not before this Court in this limited appeal. ¶9 Section 72-3-502, MCA, governs the priority of appointment of a PR for Jeremiah’s estate as among those persons who are not disqualified by § 72-3-501, MCA. The District Court determined that the first five priorities for appointment as PR under § 72-3-502, MCA, were inapplicable, and that the first applicable category was “other heirs of the decedent.” The District Court determined that Jeremiah’s two minor children are the sole heirs of his intestate estate under § 72-2-113(a), MCA. That statute provides that when, as here, there is no surviving spouse, the entire estate passes “to the decedent’s descendants.” Those descendants are Jeremiah’s children. 5 ¶10 Section 72-3-501(1), MCA, disqualifies the children themselves from serving as PRs of Jeremiah’s estate because they are under the age of 18. However, § 72-3-505, MCA, provides that a guardian “may exercise the same right to nominate, to object to another’s appointment . . . that the protected person or ward would have if qualified for appointment.” The District Court therefore concluded that Sabrina, in her capacity as guardian and conservator of the children, was entitled to act for the children to object to Abel’s appointment and to nominate herself as PR. ¶11 Abel argues that he is an “other heir” entitled to preference under § 72-3-502(6), MCA, because he claims to have a cause of action for wrongful death arising from Jeremiah’s death. However, we need not decide whether Abel is an “other heir” under the priority provided by § 72-3-502(6), MCA. There is no doubt that Jeremiah’s children are heirs entitled to object to Abel’s appointment. Section 72-3-526(2)(a), MCA, provides the District Court with the authority to remove a PR if it determines that doing so would be in the “best interests of the estate.” Here the District Court made that determination and was well within its discretion to remove Abel. Greenheck, ¶¶ 19-20. ¶12 In this case, it is both efficient and logical that Sabrina be the PR of Jeremiah’s estate. She is the natural mother of Jeremiah’s children, as well as their custodial parent and appointed guardian and conservator. Sabrina and the children are residents of Montana where the estate is being probated and where any claims or lawsuits arising from Jeremiah’s death will be resolved. Because of her representative status on behalf of her children, the heirs of the decedent, she is not precluded in that capacity for appointment as PR. 6 ¶13 Abel argues that under §§ 72-2-812 and -814, MCA, Sabrina is disqualified from serving as PR of Jeremiah’s estate because she and Jeremiah were divorced. Abel contends that she is therefore not a “surviving spouse” entitled to the priority of § 72-3-502(2), MCA, and that a divorced spouse is disqualified from any consideration for appointment as PR. The District Court held that at most §§ 72-2-812 and -814, MCA, would prohibit an ex- spouse from being appointed PR if nominated by a prior will. Nothing in either statute conflicts with the provisions of § 72-3-505, MCA, allowing guardians and conservators to nominate or object to the appointment of a PR, even if that guardian is an ex-spouse. Under our general rules of statutory construction, statutes should be read together and when possible giving meaning to both acts. Section 1-2-101, MCA; Spoklie v. Montana DFWP, 2002 MT 228, ¶ 24, 311 Mont. 427, 56 P.3d 349. ¶14 The District Court properly concluded that the cited statutes “contain no prohibition of a duly appointed guardian and conservator of minor heirs from serving as a personal representative of an intestate estate even though such conservator may also be an ex-spouse of the decedent.” ¶15 Since § 72-3-501(1), MCA, did not disqualify Sabrina from serving, once Abel had been removed as PR, the District Court had discretion under § 72-3-507, MCA, to appoint Sabrina as PR in this formal proceeding, whether or not she had priority. No party contends that any other person with priority should have been appointed. Under the facts and circumstances of this case, we conclude that the District Court did not abuse its discretion by deciding that the best interests of the estate supported removing Abel and appointing Sabrina as PR of Jeremiah’s estate. 7 ¶16 The District Court is affirmed. This Court declines to entertain Abel’s request for sanctions. /S/ MIKE McGRATH We concur: /S/ JIM RICE /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ LAURIE McKINNON /S/ BRIAN MORRIS Justice Jim Rice, concurring. ¶17 The appointment of a former spouse as personal representative seems to clearly contravene the general effort made in the probate code to ensure that a former spouse cannot take property from the decedent or his estate. To me, it is incongruent to prohibit a former spouse from taking property, yet permit her to administer the estate and presumably pay herself for doing so. Nonetheless, a former spouse is not expressly prohibited from serving under § 72-3-501, MCA, nor from serving on behalf of the children, who are heirs with priority under § 72-3-502, MCA, as their guardian and conservator. Section 72-3-505, MCA, grants guardians and conservators the right to “nominate,” “object,” and “participate” in determining the heirs’ preferences, which ostensibly includes the right to nominate herself, although says nothing about serving as personal representative on behalf of the protected person. After assessing these provisions, I cannot disagree with the Court’s decision. If the 8 result here is contrary to the intended objective of the probate code, that objective has not been obtained by the language of these provisions, and legislative revision may be necessary. /S/ JIM RICE | August 13, 2013 |
e2b11827-e198-435c-bdee-01da6fbe451e | Matter of S.M.G. N.M. M.M. and R. | 2013 MT 213N | DA 13-0091 | Montana | Montana Supreme Court | DA 13-0091 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 213N IN THE MATTER OF: S.M.G., N.M., M.M., R.M.G., Youths in Need of Care. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause Nos. DDN 11-054, -055, -056, -057 Honorable Julie Macek, Presiding Judge COUNSEL OF RECORD: For Appellant: Lucy Hansen, Hansen Law Firm; Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General; Helena, Montana John Parker, Cascade County Attorney, Jennifer I. Quick, Deputy County Attorney; Great Falls, Montana Submitted on Briefs: July 3, 2013 Decided: July 30, 2013 Filed: __________________________________________ Clerk July 30 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Appellant E.M. appeals the order of the Eighth Judicial District Court, Cascade County, terminating her parental rights. We affirm. ¶3 E.M. (Mother) is the biological mother of S.M.G., N.M., M.M., and R.M.G. (collectively “the children”). The Department of Public Health and Human Services (Department) removed the children from Mother’s care on May 11, 2011, when it received a report of the children’s home environment and Mother’s chemical dependency issues. The report claimed that Mother was “passed out drunk” while caring for the children. ¶4 Officers who arrived at Mother’s apartment had to awaken Mother. Mother seemed intoxicated while the children were running around unsupervised. The officers contacted Child Protective Services. ¶5 Child Protective Services found unsanitary conditions at the apartment, safety issues and neglect of the children. All the children reported to have medical issues that stem from neglect of health and sanitation, including head lice and scabies. Mother failed to treat these health issues. All of the children were under 10 years old at this time. 3 ¶6 Mother has a history with the Department. The Department had removed the children in 2006 after the Department discovered unsafe living conditions. The Department placed the children into foster care at that time. ¶7 The Department filed a petition for emergency protective services, temporary legal custody, and adjudication of the children as youths in need of care on May 18, 2011. The District Court held a hearing on the petition several months later. Mother stipulated at the hearing that the children were youths in need of care and agreed to work with the Department on a treatment plan. ¶8 Mother failed to complete the treatment plan and continued to deny that she had a chemical dependency problem. Mother was incarcerated in November 2011 for several days and then again in December for drug possession. Mother’s failure to follow the treatment plan and her arrests prompted the Department to extend temporary legal custody for another six months. ¶9 The Department filed a petition for permanent legal custody and termination of the mother’s parental rights pursuant to § 41-3-609(1)(f), MCA, on October 18, 2012. The District Court held a hearing. The District Court issued findings of fact, conclusions of law and an order terminating Mother’s parental rights. The District Court determined by clear and convincing evidence established that the conduct and condition rendering Mother unfit was unlikely to change within a reasonable time. The Court found that the children already had been in foster care for 18 months and that Mother had failed to follow the treatment plan. Mother appeals. 4 ¶10 Mother argues on appeal that the treatment plan was inappropriate. Mother further argues that the Department failed to establish by clear and convincing evidence that her conduct made her unfit and unlikely to change within a reasonable time. We review for an abuse of discretion a district court’s decision to terminate parental rights. In re R.M.T., 2011 MT 164, ¶ 26, 361 Mont. 159, 256 P.3d 935. ¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. It is manifest on the face of the briefs and the record before us that the treatment plan was appropriate, and that substantial evidence supports the District Court’s findings of fact and that the District Court correctly applied the law to these facts. ¶12 Affirmed. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BETH BAKER /S/ LAURIE McKINNON | July 30, 2013 |
738c2ed5-b22f-4219-ba48-3a33bdab8ff1 | State v. Case | 2013 MT 192 | DA 12-0546 | Montana | Montana Supreme Court | DA 12-0546 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 192 STATE OF MONTANA, Plaintiff and Appellee, v. LESTER JOE CASE, Defendant and Appellant. APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 12-83 Honorable James A. Haynes, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender; Jonathan King, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General; Helena, Montana William E. Fulbright, Ravalli County Attorney; John Bell, Deputy County Attorney; Hamilton, Montana Submitted on Briefs: May 15, 2013 Decided: July 16, 2013 Filed: __________________________________________ Clerk July 16 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Lester Joe Case (Case) appeals the Montana Twenty-First Judicial District Court’s order affirming the Ravalli County Justice Court’s denial of his motion to dismiss. We affirm. On appeal, we consider whether the District Court erred when it upheld the denial of Case’s motion to dismiss the charges against him for lack of speedy trial. PROCEDURAL AND FACTUAL BACKGROUND ¶2 Upon responding to a domestic assault call on the evening of July 23, 2011, Ravalli County Sheriff’s deputies found Case’s wife, Sherri, waiting outside of the couple’s home. Sherri told the deputies that she and Case began arguing after she returned home and found her belongings dumped on their living room floor. When Sherri walked into their kitchen during the argument, Case shoved her in the chest and knocked her into the edge of a kitchen counter, injuring her. ¶3 Two days later, the State charged Case with Partner or Family Member Assault (PFMA) in violation of § 45-5-206(3)(iv), MCA. The State alleged that, because Case had twice been convicted of PFMA, the pending charge against Case was a felony.1 On August 18, 2011, Case appeared before the District Court and entered a not guilty plea. Then, on October 26, 2011, the District Court dismissed the felony charge after the State conceded that one of Case’s prior PFMA charges had been dismissed. Later that day, the State filed with the Ravalli County Justice Court a misdemeanor PFMA charge against Case. 1 Under Montana law, a “first or second conviction of PFMA is considered a misdemeanor, while a third or subsequent conviction is considered a felony.” State v. Martz, 2008 MT 382, ¶ 2, 347 Mont. 47, 196 P.3d 1239 (citing § 45-5-206(3)(a), MCA). 3 ¶4 On November 15, 2011, Case appeared before the Justice Court and pled not guilty to the misdemeanor charge. The court set a trial date for May 5, 2012. Case filed a motion to dismiss on March 23, 2012 for failure to provide a speedy trial. He alleged that the State had failed to bring his case to trial within six months of his initial plea on the dismissed felony PFMA charge, as required by § 46-13-401(2), MCA. After the Justice Court denied his motion to dismiss, Case pled guilty to the reduced charge of disorderly conduct, a misdemeanor, in violation of § 45-8-101(1)(a), MCA. Case reserved the right to appeal the denial of his motion to dismiss to the District Court. The District Court affirmed the denial of Case’s motion to dismiss on July 26, 2012. Case appeals. STANDARD OF REVIEW ¶5 “When a district court acts in an appellate capacity, we review to determine whether the district court reached the correct conclusions under the appropriate standards of review.” State v. Finley, 2011 MT 89, ¶ 17, 360 Mont. 173, 252 P.3d 199. We review a district court’s denial of a motion to dismiss for lack of a speedy trial “to determine whether the district court’s findings of fact were clearly erroneous.” State v. Steigelman, 2013 MT 153, ¶ 10, 370 Mont. 352, ___ P.3d ___ (citing State v. Ariegwe, 2007 MT 204, ¶ 119, 338 Mont. 442, 167 P.3d 815). Whether a misdemeanor charge must be dismissed under the speedy trial statute requires an interpretation and application of § 46-13-401(2), MCA, a question of law reviewed for correctness. Martz, ¶ 17. 4 DISCUSSION Whether the District Court erred when it upheld the Justice Court’s rejection of Case’s speedy trial claim. ¶6 A criminal defendant’s right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article II, Section 24 of the Montana Constitution. Ariegwe, ¶ 20. In felony cases, we apply a four-part balancing test to determine whether a defendant’s constitutional right to a speedy trial has been violated. See Ariegwe, ¶ 113. We do not apply this balancing test to misdemeanors, however, because Montana’s statutory speedy-trial protections regarding misdemeanors are “more strict than [our] constitutional analysis[.]” State v. Ronnigen, 213 Mont. 358, 362, 691 P.2d 1348, 1350 (1984); see also State v. Belgarde, 244 Mont. 500, 507, 798 P.2d 539, 544 (1990). The Legislature has directed that: After the entry of a plea upon a misdemeanor charge, the court, unless good cause to the contrary is shown, shall order the prosecution to be dismissed, with prejudice, if a defendant whose trial has not been postponed upon the defendant's motion is not brought to trial within 6 months. Section 46-13-401(2), MCA. ¶7 The District Court concluded that Case had a right to be brought to trial “within 6 months after he first entered a not guilty plea to the misdemeanor PFMA” charge, which “occurred on November 15, 2011.” The court determined that the filing of the felony PFMA charge and the subsequent filing of the misdemeanor PFMA charge were “distinct and unrelated event[s].” It therefore concluded that “the timing of Case’s entry of a not guilty plea to the felony charge filed in the District Court appears to be irrelevant.” 5 ¶8 Before the District Court, the parties agreed that Case pled not guilty to a felony PFMA charge on August 18, 2011. On appeal, Case contends that although “the charge was a felony on paper,” it actually was a “misdemeanor under the law and therefore a misdemeanor for purposes of the speedy trial statute” because he had been convicted of PFMA only once prior. Consequently, he argues that the State was required to try him within six months of August 18, 2011. He proposes a “logical corollary” to our reasoning in State v. Martz: that § 46-13-401(2), MCA, “applies to a charge if the charge could result only in a misdemeanor conviction, even if the State labeled the charge a felony.” ¶9 The State points out that it requested the District Court to dismiss Case’s felony charge promptly upon learning that Case only had one prior PFMA conviction. The State then filed a new misdemeanor PFMA charge with the Justice Court. The State argues that after the District Court dismissed the felony charge against Case, the filing of a new misdemeanor charge began Case’s prosecution and started his “speedy trial clock . . . anew[.]” ¶10 Case’s reliance on Martz is misplaced. The “somewhat bizarre circumstances” in that case (Martz, ¶ 37) resulted in the defendant’s “fourth” PFMA charge proceeding to trial prior to trial on or conviction of his “second” and “third” PFMA offenses. Martz, ¶ 6. We held that the speedy trial statute could have applied because Martz was charged “with an offense that had the potential, depending on the outcome of the [second] trial,” of being reduced to a misdemeanor. Martz, ¶ 39. That is far from the factual scenario Case presents on appeal here. 6 ¶11 We agree with the State that our holding in State v. Topp, 2003 MT 209, 317 Mont. 59, 75 P.3d 330, instead disposes of Case’s appeal. In Topp, the defendant was charged with two misdemeanor offenses and later pled not guilty to both of them in justice court. Topp, ¶ 3. The prosecution later moved to dismiss the charges “because it intended to file charges in the District Court”; the justice court granted the motion. Topp, ¶ 3. The State then charged Topp with a felony, as well as the two previously-dismissed misdemeanor charges, in district court. Topp, ¶ 4. Topp pled not guilty on all counts before the district court. ¶12 On appeal, Topp argued that his motion to dismiss the misdemeanor charges filed against him in the district court should have been granted because he had not been tried within six months of pleading not guilty to the misdemeanors in justice court, as he argued was required by § 46-13-401(2), MCA. Topp, ¶ 10. We rejected that argument as being “totally without merit” because the misdemeanors charged in the justice court had been dismissed. Topp, ¶ 10. We reasoned that, because no charges were pending against Topp after the misdemeanor charges were dismissed in the justice court and before they were re-filed in district court, “no speedy trial ‘clock’ was running” during that time. Topp, ¶ 10. We held that the filing of new charges constituted the beginning of “an entirely new matter, in essence a case de novo, in the District Court” and thus concluded that the district court did not err when it denied Topp’s motion to dismiss for lack of a speedy trial. Topp, ¶¶ 20-21. ¶13 The facts of this case present the other side of the Topp coin—the charges against Case were dismissed by the District Court and re-filed in Justice Court—and the 7 principles underlying Topp are “equally applicable here.” Topp, ¶ 20. When the District Court dismissed Case’s felony PFMA charge, there were no charges pending against Case and thus, no speedy trial clock was running. See Topp, ¶ 10. Then, when the State filed a new misdemeanor PFMA charge against Case in the Justice Court, it marked the beginning of a new criminal proceeding and the beginning of a new “speedy trial clock” for that charge. Topp, ¶¶ 20-21. ¶14 The District Court correctly concluded that, under the circumstances of this case, Case’s not guilty plea to the felony PFMA charge, which the court subsequently dismissed, was “irrelevant” in determining whether Case’s right to a speedy trial had been violated. Pursuant to the plain language of § 46-13-401(2), MCA, the State was required to bring Case to trial within six months after he entered a plea to the misdemeanor PFMA charge. Case entered a not guilty plea to that charge on November 15, 2011. The District Court correctly concluded that Case’s right to a speedy trial had not been violated when he filed his motion to dismiss less than six months after pleading not guilty to the misdemeanor PFMA charge. The court properly upheld the Justice Court’s denial of Case’s motion to dismiss. ¶15 Affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ JIM RICE | July 16, 2013 |
b7ae8530-6c92-47ff-8cae-e4654c1f0980 | State v. Criswell | 2013 MT 177 | DA 12-0132 | Montana | Montana Supreme Court | 1 DA 12-0132 and DA 12 0133 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 177 STATE OF MONTANA, Plaintiff and Appellee, v. CHERYL LEE CRISWELL and EDWIN JAMES CRISWELL, Defendants and Appellants. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause Nos. DC-11-007(D) and DC-11-010(D) Honorable David M. Ortley, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender, Garrett R. Norcott, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Ed Corrigan, Flathead County Attorney, Kenneth R. Park, Lori Adams, Deputy Flathead County Attorneys, Kalispell, Montana Submitted on Briefs: February 13, 2013 Decided: July 2, 2013 Filed: __________________________________________ Clerk July 2 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Cheryl Lee Criswell and Edwin James Criswell were convicted in the Eleventh Judicial District Court, Flathead County, of aggravated animal cruelty. The Criswells appeal, raising two issues: (1) whether the State presented sufficient evidence to convict and (2) whether the District Court abused its discretion in denying the Criswells’ motion for a mistrial. We affirm as to both issues. PROCEDURAL BACKGROUND ¶2 On January 5, 2011, the State charged Cheryl and Edwin each with one count of aggravated cruelty to animals, a felony, in violation of § 45-8-217(2), MCA. In the Amended Information, the State alleged that on or about December 17 through December 25, 2010, the Criswells knowingly, and without justification, subjected ten or more animals (specifically, cats) to mistreatment or neglect by confining the animals in a cruel manner and/or by failing to provide the animals with food and water of sufficient quantity and quality to sustain the animals’ normal health. The two cases were consolidated for trial. Cheryl and Edwin were represented by separate counsel. ¶3 Prior to trial, the Criswells filed a motion in limine to exclude evidence of other crimes, wrongs, or acts—in particular, “any allegations, charges or bad acts regarding mistreatment of animals at the hands of the Defendants”—pursuant to Rule 404(b) of the Montana Rules of Evidence. The Criswells were concerned specifically about evidence of their alleged mistreatment of several hundred cats in Idaho some years earlier. They opined that the State intended to use the events in Idaho for “improper propensity” purposes. See State v. Stewart, 2012 MT 317, ¶ 61, 367 Mont. 503, 291 P.3d 1187. In 3 response, the prosecution explained that it sought to use the Idaho evidence to show knowledge (i.e., that the Criswells knew that keeping their cats in the manner they did would harm or injure the cats) and absence of mistake (i.e., that the Criswells’ alleged mistreatment of the cats in Montana was not inadvertent or accidental). The District Court held a hearing pursuant to State v. Eighteenth Jud. Dist. Ct., 2010 MT 263, ¶ 49, 358 Mont. 325, 246 P.3d 415, and thereafter ruled that the State could offer the evidence for the two limited uses proffered by the prosecution. ¶4 A three-day jury trial was held in September 2011. In their opening statements, the Criswells told the jury that they had operated an “animal rescue” in Idaho for several years, handling “hundreds and hundreds and hundreds of cats.” Eventually, however, the operation was shut down. The Criswells kept a number of their cats and relocated to northwest Montana. They initially moved around, living for awhile on Plum Creek land until the company asked them to leave, and thereafter staying at various campgrounds. Finally, they moved onto some land near Marion (west of Kalispell). ¶5 The Criswells acknowledged to the jury in their opening statements that their situation in December 2010 was desperate. “They got snowed in, they had no vehicle, they had no fuel, they had no food, they had no money, they got really desperate, things got really bad.” At that point, they had 116 cats. The Criswells told the jury that they loved their cats and did not set out to harm them. Rather, “tragedy” struck: “lack of funds, lack of assistance, a huge cold snap and storm, turned into a perfect storm for disaster.” The Criswells suggested that the evidence would show that their situation was not the result of criminal behavior, but was due to circumstances beyond their control. 4 ¶6 Deputy Flathead County Attorneys Kenneth R. Park and Lori Adams presented the State’s evidence, which is detailed below under Issue One. At the close of the State’s case-in-chief, the Criswells moved to dismiss for insufficient evidence. The District Court heard arguments and denied the motions as to both defendants. The Criswells then presented testimony from five defense witnesses, including the Criswells themselves, and the prosecution thereafter presented two rebuttal witnesses. ¶7 In closing arguments, prosecutor Park referred to the Criswells’ living situation as a “squatters camp” and characterized the Criswells as “professional freeloaders.” Park also asserted that the Criswells had been “run out” of Idaho for abusing animals, and he implied that the Criswells had spent money on medical marijuana in lieu of providing food for their cats. The Criswells jointly moved for a mistrial based on these remarks. While finding that Park’s remarks had been improper, the District Court also found that the remarks, considered within the context of the entire three-day trial, did not prejudice the Criswells’ right to a fair trial. The court thus denied their motion. ¶8 The jury found Cheryl and Edwin guilty. The District Court deferred imposition of sentence on Cheryl for a period of six years, and committed Edwin (who had a prior felony conviction) to the Department of Corrections for two years, with those two years suspended. Cheryl’s and Edwin’s sentences were made subject to various conditions, including that they each complete 200 hours of community service and that they pay restitution jointly and severally in the amount of $14,684.47 to the Flathead County Animal Shelter. The District Court also limited Cheryl and Edwin to possessing only one companion animal each, provided the animal is spayed or neutered. 5 ¶9 The Criswells now appeal, raising the same two issues. This Court has consolidated their appeals. DISCUSSION ¶10 Issue One. Did the State present sufficient evidence to convict? I. Standard of Review ¶11 Although the Criswells approach their sufficiency-of-the-evidence argument under two distinct theories, the governing legal standards are essentially the same. ¶12 On one hand, the Criswells contend that the State’s evidence was insufficient to send the case to the jury and, thus, the District Court should have granted their mid-trial motion to dismiss. A motion to dismiss for insufficient evidence may be made at the close of the prosecution’s evidence or at the close of all the evidence. Section 46-16-403, MCA. The motion should be granted only if, viewing the evidence in the light most favorable to the prosecution, there is not sufficient evidence upon which a rational trier of fact could find the essential elements of the offense beyond a reasonable doubt. State v. Rosling, 2008 MT 62, ¶ 35, 342 Mont. 1, 180 P.3d 1102. We review de novo a district court’s conclusion as to whether sufficient evidence exists to convict. State v. Swann, 2007 MT 126, ¶ 19, 337 Mont. 326, 160 P.3d 511. ¶13 On the other hand, the Criswells contend that the State’s evidence was insufficient to support the jury’s ultimate finding of guilt and, thus, this Court should reverse their convictions. A claim of insufficiency of the evidence to support a verdict may be raised for the first time on appeal. State v. Granby, 283 Mont. 193, 198-99, 939 P.2d 1006, 1009 (1997). In assessing whether sufficient evidence supports a conviction, we view the 6 evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. State v. Torres, 2013 MT 101, ¶ 16, 369 Mont. 516, 299 P.3d 804. II. Analysis ¶14 The District Court instructed the jury that to convict a person of aggravated animal cruelty, the State had to prove beyond a reasonable doubt that 1. The Defendant inflicted cruelty to animals on a collection, kennel, or herd of ten or more animals; and 2. The Defendant acted knowingly. See § 45-8-217(2), MCA. The District Court defined “cruelty to animals” as follows: Cruelty to animals means that without justification, a person knowingly subjects an animal to mistreatment or neglect by: 1. confining the animals in a cruel manner, or 2. failing to provide the animals in the person’s custody with food and water of sufficient quantity and quality to sustain the animal’s normal health. See § 45-8-211(1)(b), (1)(c)(i), MCA. Finally, the District Court instructed the jurors that they had to determine Cheryl’s guilt separately from Edwin’s guilt and that, “in order to find a Defendant guilty, you must unanimously agree upon the commission of the same specific act constituting the crime within the period alleged.” ¶15 On appeal, the Criswells challenge only the “without justification” element. They argue that the State failed to present sufficient evidence that the manner in which their cats were confined and nourished from December 17 to 25, 2010, was unjustified. The State, on the other hand, argues that the prosecution presented sufficient evidence from which a rational trier of fact could find that there was no justification for the cruelty the 7 Criswells inflicted. Given these arguments, we must review the trial record de novo, and in the light most favorable to the prosecution, to determine whether the State presented sufficient evidence on the “without justification” element. ¶16 According to the testimony of the State’s witnesses, the Criswells relocated from Idaho to Montana in July 2010. At that time, they had three travel trailers and roughly 100 cats. The Criswells initially moved around, staying at various campgrounds, but in early November 2010 they set up a campsite near Marion, about a half mile off Pleasant Valley Road, in a clearing where the forest had been cut back for power lines. Their campsite included an old Winnebago motor home, a yellow camper, and a green camper. ¶17 Upon arriving in Montana, the Criswells contacted Kate Borton, who operated a nonprofit livestock rescue near Marion. The Criswells told Borton that they were a nonprofit cat rescue, and they asked her about sources of funding and places where they could set up a mobile home. Borton referred them to several local organizations that had assisted Borton when she first started her rescue operation. ¶18 The Criswells had further communications with Borton over the next few months. She provided them with cat food when Edwin indicated they were running out. They continued to ask her about sources of funding for their “already active” nonprofit rescue and about a place to put their mobile home. Borton sensed, however, that the Criswells were “not forthcoming” and, in fact, were “evasive” with her about their living situation. ¶19 The Criswells also had contact with the Flathead Spay and Neuter Task Force in the summer and fall of 2010. They represented to Task Force personnel that they were an animal rescue group and that they had no money. The Criswells made appointments to 8 have a number of their cats altered at the Task Force’s spay-and-neuter clinics, which were held once a month. The Criswells were not always able to transport the cats to the Task Force facility, however, so Task Force volunteers drove out to pick the cats up. The Task Force also donated pet food to the Criswells. Notably, the Criswells always met Task Force personnel away from their campsite, and Task Force Director Mimi Beadles testified at trial (like Borton) that she felt the Criswells had been “evasive” about where they were living. She found it unusual that a “rescue group” would not have a website or a permanent facility where people could see the animals. ¶20 Task Force personnel observed medical issues in several of the Criswells’ cats. For example, the two pregnant females that were brought into the July clinic had upper respiratory infections, and three of the ten males brought into the September clinic had issues relating to their eyes. Beadles spoke with Edwin in October and expressed concerns about the welfare of the Criswells’ cats. Thereafter, the Criswells declined to have any of their cats spayed or neutered at the November clinic. ¶21 Sometime in the first half of December 2010, the Criswells contacted Beadles and admitted that they no longer could care for their cats. Beadles advised them to contact the Humane Society of the United States in Billings because that organization would be able to take in a large group of cats. Edwin expressly refused to follow through with this suggestion, however. ¶22 On December 16, Borton received a call from Edwin, who was at a gas station in Marion. He told her that his truck had broken down and that he and Cheryl were totally out of food, out of heating fuel, and out of money. He told Borton that “he was going to 9 walk back to the campsite where his wife was and his animals were, and he was done.” Borton immediately grabbed some bags of food and drove to the gas station. She bought some diesel fuel for the Criswells’ heater and helped Edwin get back to the campsite. ¶23 The next day, another individual who was camped near the Criswells gave them a ride to Borton’s ranch. As Borton later testified, Cheryl and Edwin appeared “in very bad shape.” They were “hungry, very thin, very dirty,” and “obviously cold to the core.” Borton noted that one of Cheryl’s feet was frostbitten. The Criswells’ demeanors “were very quiet, and they couldn’t look you in the eye”—except when Borton asked about the cats, at which point the Criswells became “very very defensive.” ¶24 Borton and a volunteer with the Spay and Neuter Task Force alerted Officer Paul Charbonneau of Flathead County Animal Control to the Criswells’ situation—i.e., that they were living near Marion with over 100 cats and were “in dire straits.” Charbonneau decided to conduct a welfare check that afternoon (Friday, December 17). He first drove to the Criswells’ campsite. Due to the amount of snow on the ground, he had to park on Pleasant Valley Road and walk to the campsite. Upon arriving, he knocked on the Winnebago and the green and yellow camper trailers, but no one answered. He could see through the windows that there were cats in both trailers. Charbonneau noted that he did not have a cell phone signal at the campsite. Even when he got back to Pleasant Valley Road, the coverage was “spotty” at best. ¶25 Charbonneau proceeded to Borton’s home after ascertaining that the Criswells were there. The Criswells admitted to him that they needed help and could not take care of themselves and the cats on their own. Yet, when Charbonneau suggested transporting 10 the cats to the Task Force facility, the Criswells indicated that they instead wanted to take the cats with them and find a shelter. Charbonneau tried to explain that they were not going to find a shelter able to take two people and a hundred cats. Borton offered to let the Criswells stay with her, but the Criswells elected to return to their campsite that evening. Charbonneau provided them with a bag of cat food. ¶26 Borton visited the Criswells’ campsite the next day (December 18). With “a lot of hesitancy,” they allowed her to enter the green and yellow trailers. Borton was surprised by the setup. Edwin had previously told her that the camper trailers were retrofitted with kennels for the cats, but Borton did not see any kennels. Rather, “there was a free-for-all. I walked in there . . . and I was jumped on by probably 15 or 20 cats. Had them on my head, my shoulders.” The trailers were “very small” and “cramped,” and there were “cats everywhere.” Borton even heard cats moving around in the ceilings. ¶27 At trial, Borton characterized the trailers as “uninhabitable” for both people and animals. “There was feces everywhere, and the smell of ammonia from the urine was so strong it burnt my eyes, made me cough.” In the yellow trailer, there was also a smell of diesel fuel that Borton found “so strong and vivid that I was afraid I was going to pass out.” Borton noted that many of the cats in the two trailers were emaciated, dehydrated, and visibly sick. She saw no water pans in either trailer, nor did she see any cat food in the yellow trailer, but she did note some dry cat food on the floor in the green trailer. ¶28 Charbonneau arrived at the campsite as Borton was leaving. He brought fuel and water, plus additional pet food. Charbonneau advised the Criswells that he had started making arrangements to have the road into the campsite plowed and the trailers towed to 11 the Task Force facility. As events ultimately unfolded, however, the process of removing the trailers was delayed for several days due to a number of logistical issues—most significantly, mechanical problems with the road grader. In the meantime, the trailers and the cats remained under the Criswells’ control. ¶29 Finally, on Wednesday, December 22, the road to the campsite was cleared and the trailers were towed (with the cats still inside) to the Task Force facility. Charbonneau testified that the Criswells did not exactly “relinquish” custody to him; rather, they “allowed” him to remove the trailers and the cats. The next day, he and Beadles made arrangements to transfer the cats into the clinic. Charbonneau entered the trailers to provide the cats with food and fresh water. At trial, he described the scene inside as a “free-for-all.” On the morning of December 24, Charbonneau began removing the cats. ¶30 Charbonneau and Beadles testified at trial about the conditions they had observed when they entered the trailers on December 23 and December 25, respectively. Their descriptions were similar to what Borton had seen on December 18. The trailers were still highly unsanitary. “[E]verything” was “entirely covered” with feces and urine. The cats themselves were also covered, to some extent, in feces, and some also had “some type of fuel oil” on them. Even with breathing apparatus, Charbonneau found the smell “overwhelming.” Due to the cold weather and the threat of predators (such as coyotes) in the vicinity of the Criswells’ campsite, the cats had been confined continually in this “filth[y]” environment. Other than what Charbonneau had provided on the 23rd, there was no actual cat food, no bowls of water, and no clean litter pans. 12 ¶31 Nearly all of the Criswells’ 116 cats had a medical issue of some kind. Dr. Terrance R. Yunker, the veterinarian who examined the cats following their removal from the trailers, summarized their conditions at trial. Twenty-one cats had eye issues, such as conjunctivitis, ruptured eye, sunken eye, corneal scarring, and ocular discharge. Nine of these cats had to have their eyes removed, and Dr. Yunker noted that one of the cats had been in “very severe pain.” Five cats had problems relating to their mouths, which required removal of their teeth. Twenty-five cats had respiratory conditions attributable to viral and bacterial causes. Forty-three cats suffered from dehydration. Three quarters of the cats were underweight, nine being severely emaciated. Fifty cats had ear mites. Two or three cats had skin lesions. An untold number had diarrhea. ¶32 Charbonneau, Beadles, and Dr. Yunker each testified that, in their professional opinions, the cats’ medical conditions were attributable to the manner in which they had been confined in the Criswells’ trailers. Dr. Yunker explained that “density” was one of the main problems. Cats, he explained, are not pack animals, and confining so many together in a small area not only put substantial stress on the animals, but also facilitated the transmission of diseases among them. The unsanitary conditions and lack of proper food and water only compounded the problem. ¶33 Eleven of the Criswells’ cats were less than six months old; roughly eighty-five of them were between six and eighteen months old; and the remainder were over three years old. Three of the cats were pregnant and two were nursing. Dr. Yunker testified that he believed most of these cats were genetically related to each other. He opined that the Criswells had rescued no more than half a dozen cats and had bred the rest. 13 ¶34 Dr. Yunker estimated that the cats’ medical conditions had been ongoing for several months before their rescue. Likewise, Charbonneau and Beadles indicated that the unsanitary conditions inside the trailers existed before the trailers were towed from the Criswells’ campsite. In this regard, Beadles testified that it required 20 volunteer hours per day to maintain sanitary living conditions for the Criswells’ cats following their transfer to the Task Force facility. Moreover, the cats consumed 25 pounds of cat food per day and 210 pounds of cat litter per week—at a weekly cost of $175, not to mention overhead expenses such as electricity. The Criswells had not been equipped to provide this minimal level of care. ¶35 Borton was questioned (on cross-examination and again on redirect examination) on the issue of funding. While acknowledging that it is not always easy for a nonprofit to obtain funds, she emphasized that a rescue organization must arrange proper funding before taking in the animals. She opined that “you don’t get the animal and go, oh, well, maybe in six months somebody will donate me a bag of dog food. You’ve got to have something in place, you’ve got to have a facility for them to live, you’ve got to have food, water, and shelter appropriate to that animal, you’ve got to have light, and veterinary care in place, absolutely.” The Criswells had not made such preparations. ¶36 The State’s final witness was Dr. Jeff Rosenthal, a veterinarian and the Executive Director of the Idaho Humane Society. The prosecution called Dr. Rosenthal to discuss events involving the Criswells several years earlier.1 He testified that in October 2005, 1 The District Court instructed the jury that this testimony was to be considered only for purposes of knowledge and absence of mistake, and not character or propensity. 14 he conducted an inspection of Voice of the Animals, a cat “rescue” that the Criswells were running on a fairly remote property in a rural area of northern Idaho. The operation consisted of eight trailers housing hundreds of cats. The trailers were “filled with feces and urine” and were “in poor repair.” Many of the cats showed signs of medical issues. ¶37 Dr. Rosenthal informed the Criswells during the October 2005 inspection that the conditions inside their trailers were unsanitary and were leading to illnesses among the cats. He told them that the animals needed to be segregated and that the Criswells should “divest themselves of as many of the cats as soon as they could, because the facility was unsuitable for the use it was being used for.” Nevertheless, when Dr. Rosenthal made an unannounced visit to the property eleven months later (in September 2006), conditions were even worse. There was “significantly more” fecal contamination and urine. While food and water were present, “much of the food was scattered among the feces, and much of the water wasn’t clean water.” With hundreds of cats confined together, Dr. Rosenthal testified that there would have been fights and competition for food, with the weak and sick cats not getting the nutrition they needed. The cats suffered “a great deal of stress” in this situation. Dr. Rosenthal diagnosed various medical problems, including upper respiratory disease, conjunctivitis, flea and ear mite infestation, and emaciation due to malnutrition or illness. He attributed these problems to the extreme number of cats, the extreme density of the cats, and the lack of proper food, water, and sanitation. In the end, 264 of the 400-plus cats removed from the trailers had to be euthanized. ¶38 Given the foregoing testimony from the State’s witnesses, we disagree with the Criswells’ contention that the State failed to present sufficient evidence that they acted 15 without justification. Again, viewing the evidence in the light most favorable to the prosecution, the Criswells knew of the problems that can (and ultimately did) result from attempting to house and care for a large number of cats without adequate funding and facilities. The Criswells knew that confining multiple cats together in cramped quarters, and failing to provide them with proper food, water, and sanitation, stresses the cats and leads to medical issues. Yet, despite this knowledge, and despite their lack of money and food, the Criswells chose to confine over 100 cats together in two camper trailers, which were wholly inadequate to house this number of cats. Moreover, they chose to situate themselves and their cats in a relatively remote location, a half mile off the county road, where there was no cell phone coverage and where vehicle access during winter months would be problematic. The unsanitary conditions of the trailers and the illnesses of the cats inside existed for weeks, perhaps even months, before the cats were rescued. Throughout this period, resources were available to help the Criswells and their cats, yet the Criswells maintained an intransigent attitude and persisted in concealing the true conditions of their facilities and their cats from those who could provide assistance. This included Borton, Beadles, and Charbonneau—who, upon learning of the severity of the Criswells’ situation, promptly rallied members of the community to effect a rescue. ¶39 Focusing on the specific dates charged in the Amended Information (December 17 to December 25), the Criswells contend that natural forces beyond their control—severe winter weather—dictated the manner in which the cats were confined and nourished from the 17th to the 21st, and that the cats were in the care and possession of the County from the 22nd to the 25th. Thus, they maintain that they could not have done anything to 16 improve the cats’ situation during this period. This argument, however, misses the mark. The issue before the jury was whether the Criswells, without justification, knowingly subjected animals to mistreatment or neglect. See ¶ 14, supra. Based on the testimony, a rational trier of fact could find: that the Criswells decided to keep a large number of cats, knowing that their finances and facilities were insufficient to sustain the animals; that the lack of proper food, water, sanitation, and medical care existed for several weeks, if not months; that the Criswells decided not to obtain meaningful assistance until December 16, at which point access to the campsite was hindered by snow; that the Criswells had no justification for their decisions to keep an unmanageable number of cats and to delay in obtaining assistance; and that the Criswells thereby subjected their animals to mistreatment or neglect, in the form of cruel confinement and/or inadequate nourishment, from December 17 to December 25. ¶40 For these reasons, we hold that the State presented sufficient evidence to support a “without justification” finding. ¶41 Issue Two. Did the District Court abuse its discretion in denying the Criswells’ motion for a mistrial? I. Standard of Review ¶42 We review a trial court’s grant or denial of a motion for a mistrial to determine whether the court abused its discretion. State v. Gladue, 1999 MT 1, ¶ 11, 293 Mont. 1, 972 P.2d 827. A court abuses its discretion when it acts arbitrarily without employing conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. State v. Bollman, 2012 MT 49, ¶ 23, 364 Mont. 265, 272 P.3d 650. The burden to 17 demonstrate an abuse of discretion is on the party seeking reversal of an unfavorable ruling. State v. Price, 2006 MT 79, ¶ 17, 331 Mont. 502, 134 P.3d 45. II. Background and the District Court’s Decision ¶43 As noted, the Criswells jointly moved for a mistrial based on remarks prosecutor Park made during closing arguments. The challenged remarks occurred in two portions of the prosecutor’s argument. First, in discussing whether the animals were confined in a cruel manner and whether the confinement was justified, Park stated: Now, let’s talk about the confining portion of this. You heard from Dr. Yunker, Dr. Rosenthal, and Paul Charbonneau about the way these cats were confined. You’ve seen the pictures. Any more than one or two cats in those confined trailers is cruel, especially if they are subjected to the diseases and viral infections that the confinement caused. What kind of animal deserves to be locked in its own filth for weeks to months at a time? The Defendants want you to believe that this was caused by a freak snowstorm that locked them in their squatters camp where they were trespassing. Well, it is northwest Montana, it snows, it started snowing a couple months before this happened. Further along in his argument, referring to the Criswells’ testimony that they had solicited and relied on donations to support their Idaho and Montana operations, Park asserted: The beauty of being a juror in this country is that you get to go back to that room and ask yourself what really makes sense in this case, what really happened here. The scenario that fits this is easy. The Criswells were run out of Idaho because they were claiming to be a no-kill cat rescue, yet their actions killed more cats than a kill shelter and they refused to listen to anybody there. The truth of the matter is that the Criswells, Edwin and Cheryl Criswell, are freeloaders, professional freeloaders at that. They even stepped up here and questioned Paul Charbonneau as to why he didn’t bring them cleaning supplies courtesy of the taxpayers of this county. The Criswells have taken freeloading to a whole new level. How many times in the past words [sic] have we heard the word “donate” or “give”? The Criswells have figured out that if they have a 501(c)(3) nonprofit animal rescue they can ask everyone else to give them stuff and they don’t have to go do the one thing that they need to do to survive, and that is work. 18 Dr. Ladanye even testified that Edwin has a medical marijuana card, yet he can cut wood and do yard work. We can afford marijuana but we can’t afford cat food. ¶44 The Criswells did not contemporaneously object to the “squatters camp,” “run out of Idaho,” and “freeloaders” remarks. Edwin did object, however, to the “marijuana” references. He argued that the prosecutor was “asking the jury to make a decision based on the nature of what [Edwin] is doing, not the facts of the charge.” The District Court sustained the objection and reiterated to the jurors that they were to disregard anything that was not in evidence and were to rely on their “own individual and collective recollection of what the evidence is in this case and not the argument of counsel.” ¶45 In his closing argument, Edwin’s counsel identified some of Park’s “inflammatory comments” and attempted to refute them. Then, after the jury had retired to deliberate, the Criswells made their motion for a mistrial. They argued that the prosecutor had tainted the jury by offering inadmissible character evidence and improper personal opinions regarding their credibility and culpability. They posited that the District Court’s curative instruction was insufficient to remedy the taint. In response, Park argued that the Criswells themselves had opened the door to his remarks and that their conduct met the definitions of “freeloader” and “squatter.” He maintained that his remarks had not been intended to inflame the jury or to comment on the Criswells’ characters. ¶46 The District Court recessed to research whether the challenged remarks warranted a mistrial. The court applied this Court’s two-step analysis for determining whether improper comments have prejudiced a defendant’s right to a fair and impartial trial. The first step is to determine whether the prosecutor made improper comments. If improper 19 comments were made, the second step is to assess whether those comments prejudiced the defendant’s right to a fair and impartial trial. State v. Lindberg, 2008 MT 389, ¶ 25, 347 Mont. 76, 196 P.3d 1252; Gladue, ¶¶ 11-12. Prejudice resulting from improper comments is not presumed; the burden is on the defendant to demonstrate that the prosecutor’s improper comments prejudiced his or her right to a fair and impartial trial. Lindberg, ¶ 25; Gladue, ¶ 27. In determining whether prejudice resulted, the improper comments must be viewed in the context of the case in its entirety. Lindberg, ¶ 25. ¶47 Applying this test, the District Court first found that Park’s remarks were improper in that they were inflammatory, unprofessional, or without any basis in the record. The District Court then determined, however, that the Criswells had not met their burden of demonstrating that the remarks, viewed in the context of the entire three-day trial, had prejudiced their right to a fair and impartial trial. The court noted that Edwin himself had been “loose with his speech” and often “spoke in a vernacular” during his testimony. III. Analysis ¶48 As noted, we review for abuse of discretion a trial court’s grant or denial of a motion for a mistrial. Gladue, ¶ 11. We apply this deferential standard because the trial judge is in the best position to gauge the effect that the event at issue—whether the introduction of inadmissible evidence, the presentation of questionable testimony, or the making of improper comments during closing argument—will have on the jury. State v. Seaman, 236 Mont. 466, 475-76, 771 P.2d 950, 956 (1989); State v. Long, 2005 MT 130, ¶ 27, 327 Mont. 238, 113 P.3d 290; State v. Dubois, 2006 MT 89, ¶ 61, 332 Mont. 44, 134 P.3d 82. Here, we conclude that the District Court did not abuse its discretion. 20 ¶49 As to the first prong of the analysis, we agree with the District Court that Park’s remarks were improper.2 There was no evidence in the record supporting the assertion that the Criswells had been “run out” of Idaho, and although there was evidence that Edwin had a medical marijuana card, there was no evidence that Edwin had actually purchased marijuana in lieu of providing cat food. It is improper for a prosecutor to comment on evidence not of record during closing argument. Gladue, ¶ 14; State v. Daniels, 2003 MT 247, ¶ 26, 317 Mont. 331, 77 P.3d 224. Furthermore, whether the Criswells met the definitions of “squatters” and “freeloaders” is beside the point. The Criswells’ financial situation was a legitimate issue to argue in relation to the “without justification” element, but labeling them as “squatters” and “freeloaders”—which are generally understood to be disparaging terms—was not necessary to achieve that end. We have “disapprove[d] of a prosecuting attorney using any derogatory epithets to refer to any defendant during the trial,” State v. White, 151 Mont. 151, 161, 440 P.2d 269, 275 (1968); see also e.g. State v. Kingman, 2011 MT 269, ¶ 58, 362 Mont. 330, 264 P.3d 1104, and we reaffirm that view here. A defendant must be tried for what he did, not for who he is. U.S. v. Foskey, 636 F.2d 517, 523 (D.C. Cir. 1980); M. R. Evid. 404. ¶50 That said, we are not persuaded by the Criswells’ argument under the “prejudice” prong of the analysis. They opine that because the Flathead Valley community took “a special interest” in the case, the jury was “already feeling pressure from the audience,” and Park’s remarks “served only to bias the jury’s feelings heading into deliberations.” 2 In its answer brief on appeal, the State notes that it “does not dispute the district court’s finding that the comments were ‘unprofessional, unnecessary, and inflammatory.’ ” 21 The trial judge considered this possibility and rejected it, and we do not believe the judge, in so doing, failed to employ conscientious judgment or exceeded the bounds of reason. First, after Edwin objected to Park’s marijuana references, the judge reminded the jurors that they were to rely on their own memories of the evidence and were to disregard any assertions by counsel of matters not in evidence. “The potential prejudicial effect of improper arguments may be cured when the jury has been admonished not to regard those statements as evidence.” Gladue, ¶ 31. Second, the judge gave careful consideration to the Criswells’ motion, recessing for over an hour to study the relevant legal standards under this Court’s cases. Third, in denying the motion, the judge noted that the jury had already been exposed to “loose” language and “vernacular” during Edwin’s testimony. While this does not excuse Park’s improper remarks in closing, it does tend to mitigate their prejudicial effect. Fourth, in asking us to find that Park’s remarks served “only” to bias the jury against them, the Criswells ignore the possibility that the remarks instead served to impugn Park’s credibility. After three days of testimony, the jurors already were well aware of the Criswells’ living situation and the fact that they had relied on donations. Rather than being biased against the Criswells by Park’s remarks, it is more plausible that the jurors saw those remarks for what they were: unprofessional and unnecessary disparagements of the defendants having no bearing on the question of guilt. ¶51 “Because the trial court is in the best position to observe the jurors and determine the effect of questionable statements made in closing argument, it is given a latitude of discretion in its rulings on motions for mistrial based on such statements.” Dubois, ¶ 61. Here, the trial judge determined that the prosecutor’s remarks—considered in the context 22 of the entire trial—were not so egregious as to render the jurors incapable of judging the evidence fairly. The Criswells have not shown an abuse of discretion in this ruling. CONCLUSION ¶52 The State presented sufficient evidence upon which a rational trier of fact could find beyond a reasonable doubt that the Criswells, without justification, knowingly subjected their animals to mistreatment or neglect from December 17 to December 25, 2010. The District Court did not abuse its discretion in denying the Criswells’ motion for a mistrial. ¶53 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ JIM RICE /S/ PATRICIA COTTER /S/ BETH BAKER /S/ BRIAN MORRIS Chief Justice Mike McGrath concurs. ¶54 While I concur with the decision of the Court, I write separately only to emphasize the serious nature of what I believe to be the prosecutor’s misconduct. I concur that, given the overwhelming evidence in this case, the comments did not prejudice the Criswells’ rights to a fair and impartial trial. Jurors, in my experience, tend to come to court grounded in common sense and good judgment and can generally overlook the 23 attorneys’ peculiarities or illogical missteps. Considering the District Court’s careful review of the prosecutor’s comments and the instructions that the court gave to the jury, there is little question that the proceedings were conducted fairly. The fact that we affirm the Criswells’ convictions, however, does not mean that we condone or tolerate the prosecutor’s improper remarks. ¶55 While not designed to be used as criteria for judicial evaluation of misconduct, the ABA Standards for Criminal Justice do provide an appropriate benchmark for professional conduct. Regarding the prosecution, Standard 3-5.8(c) provides that “[t]he prosecutor should not make arguments calculated to appeal to the prejudices of the jury.” ABA Standards for Criminal Justice, Prosecution Function and Defense Function, Standard 3-5.8(c), 106 (3d ed. 1993). The comments further explain: Unfortunately, some prosecutors have permitted an excess of zeal for conviction or a fancy for exaggerated rhetoric to carry them beyond the permissible limits of argument. [See e.g. Berger v. United States, 295 U.S. 78 (1935).] Of course, a prosecutor must be free to present arguments with logical force and vigor. Nonetheless, as the Supreme Court has remarked, “while he may strike hard blows, he is not at liberty to strike foul ones.” [Berger, 295 U.S. at 88.] . . . Remarks calculated to evoke bias or prejudice should never be made in a court by anyone, especially the prosecutor. Where the jury’s predisposition against some particular segment of society is exploited to stigmatize the accused or the accused’s witnesses, such argument clearly trespasses the bounds of reasonable inference or fair comment on the evidence. . . . ABA Standards at 107-08. 24 ¶56 The United States Supreme Court recently rejected a petition for certiorari in a case where the prosecutor made similar appeals to prejudices.1 Although the Court denied the petition, Justice Sotomayor issued a statement that was joined by Justice Breyer to ensure that the Court’s denial of the petition did not signal tolerance of the prosecutor’s improper remarks. In the statement, Justice Sotomayor quoted Judge Frank of the Second Circuit Court of Appeals: “If government counsel in a criminal suit is allowed to inflame the jurors by irrelevantly arousing their deepest prejudices, the jury may become in his hands a lethal weapon directed against defendants who may be innocent. He should not be permitted to summon that thirteenth juror, prejudice.” Calhoun, 133 S. Ct. at 1137 (quoting United States v. Antonelli Fireworks Co., 155 F.2d 631, 659 (2d Cir. 1946) (J. Frank dissenting) (footnote omitted)). Justice Sotomayor, a former prosecutor, further remarked, “[s]uch conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice.” Calhoun, 133 S. Ct. at 1138. ¶57 In his explanation to the District Court, the prosecutor maintained that his remarks had not been intended to inflame the jury or to comment on the Criswells’ characters. See Opinion, ¶ 45. Personally, I find that hard to believe. If not intended to inflame the jury or comment on the Criswells’ characters, then what were they intended to do? A 1 While questioning the defendant, who is African-American, the prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you–a light bulb doesn’t go off in your head and say, This is a drug deal?” Calhoun v. United States, 133 S. Ct. 1136, 1136 (2013). 25 prosecutor is an officer of the court. Prosecutors must strive to promote justice and the rule of law. By making these improper comments to the jury, the prosecutor undermined the respect for the criminal justice system. Although the prosecutor’s comments were not grounds for a mistrial in this case, it must be emphasized that this type of conduct is not to be tolerated. /S/ MIKE McGRATH | July 2, 2013 |
257bdc57-dd70-4c6d-a79b-25ff2b1ba90e | Brandon Burns v. State | 2013 MT 198N | DA 13-0029 | Montana | Montana Supreme Court | DA 13-0029 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 198N BRANDON BURNS, Petitioner/Defendant and Appellant, v. STATE OF MONTANA, Respondent/Plaintiff and Appellee. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 08-0701 Honorable Gregory R. Todd, Presiding Judge COUNSEL OF RECORD: For Appellant: Brandon James Burns, self-represented litigant; Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant Attorney General; Helena, Montana Submitted on Briefs: June 19, 2013 Decided: July 16, 2013 Filed: __________________________________________ Clerk July 16 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Brandon Burns entered a guilty plea on March 22, 2010, in the Thirteenth Judicial District Court to operating or being in actual physical control of a motor vehicle with blood alcohol level of .08 or more, a felony, in violation of § 61-8-406, MCA. The terms of the parties’ nonbinding plea agreement required the State to recommend a fifteen-year prison sentence with five years suspended. The agreement contained no provisions regarding recommendation or imposition of a fine. The subsequent presentence investigation report, however, recommended a $5,000 fine in addition to the prison sentence recommended by the State. On June 22, 2010, the District Court sentenced Burns to the prison term the State recommended and imposed a fine of $5,000. Burns did not object to the fine at the time of sentencing, nor did he raise the issue on direct appeal. State v. Burns, 2011 MT 167, ¶¶ 2-6, 361 Mont. 191, 256 P.3d 944 (Burns I). ¶3 Burns filed a motion with the sentencing court in September 2011, seeking to withdraw his plea on the ground that the State’s recommended imposition of a $5,000 fine violated the plea agreement. The District Court denied Burns’s motion and this Court affirmed. State v. Burns, 2012 MT 97, 365 Mont. 27, 278 P.3d 452 (Burns II). We 3 held that Burns had not shown good cause for withdrawing his plea where he failed to object either when the fine was recommended in the PSI report, when the State recommended it at sentencing, or on appeal, but waited nearly a year after imposition of sentence to raise any concern. Burns II, ¶¶ 16-18. ¶4 Burns filed in November 2012 a petition with the District Court for postconviction relief, raising two claims of ineffective assistance of counsel. First, Burns claimed that his trial counsel was ineffective for failing to cross-examine the investigating police officers on the police dispatch reports during the pre-trial hearing on Burns’s motion to suppress. Second, Burns claimed that his appellate counsel was ineffective for failing to appeal the recommendation of the fine as a violation of the plea agreement. In addition to these postconviction claims, Burns moved for recusal of the District Court judge on the ground that the judge was biased against him. In support of this claim, Burns alleged that the judge had entered numerous rulings against Burns and had allegedly coached the prosecutor during the pretrial motions hearing.1 The District Court denied both the postconviction petition and the motion for recusal in a single order on January 7, 2013. Burns appeals. ¶5 We review a district court’s denial of a petition for postconviction relief to determine whether its findings of fact are clearly erroneous and whether its legal 1 Neither Burns’s Motion for Recusal nor his Petition for Postconviction Relief is contained in the District Court file, nor does the file reflect a docket entry for either pleading. Burns has attached copies of both to his brief on appeal and we refer to those documents in discussing the issues and arguments raised in the District Court. 4 conclusions are correct. Rukes v. State, 2013 MT 56, ¶ 8, 369 Mont. 215, 297 P.3d 1195. To prevail on a claim of ineffective assistance of trial or appellate counsel, a petitioner must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Rogers v. State, 2011 MT 105, ¶¶ 15, 37, 360 Mont. 334, 253 P.3d 889 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052 (1984)). A district court’s determination of its jurisdiction is a conclusion of law that this Court reviews to determine whether the interpretation of law is correct. City of Dillon v. Warner, 2012 MT 17, ¶ 5, 363 Mont. 383, 272 P.3d 41. ¶6 We first address the motion for recusal of the presiding judge. Section 3-1-805(1), MCA, requires a party seeking disqualification for cause to “file an affidavit alleging facts showing personal bias or prejudice of the presiding judge.” Section 3-1-805(1)(b), MCA, provides that an affidavit for disqualification will be deemed not to have been made in good faith if it is based solely on rulings in the case that can be addressed in an appeal from the final judgment. Burns’s Motion to Request Judge’s Recusal contained nothing more than conclusory allegations that the District Judge was biased against him due to the numerous rulings he had made against Burns and that the Judge “had a vested interest in seeing his former rulings upheld.” Burns included no affidavit with his motion. ¶7 As the District Court correctly observed, Montana law specifically contemplates that “postconviction proceedings occur in front of the same judge who presided over sentencing.” Patrick v. State, 2011 MT 169, ¶ 16, 361 Mont. 204, 257 P.3d 365. Absent 5 an affidavit with facts supporting a claim of personal bias or prejudice, Burns’s motion did not meet the threshold requirements of the statute and the District Court did not err in denying it summarily and proceeding to exercise jurisdiction over the postconviction proceeding. ¶8 Turning to the merits of his petition, Burns argues that his first trial counsel provided ineffective assistance by failing to bring to light certain entries in the police dispatch reports that would have demonstrated pretext in the State’s claim that the investigating officers initiated their contact with Burns pursuant to the “community caretaker doctrine.” Burns takes issue with the District Court’s description of the entries as “relatively insignificant.” The incident reports, which Burns claims not to have seen until months later when he demanded a copy of all discovery, included references to “DUI” and “Drunk” in the “Incident Type” descriptions of the form. Burns claims that had these reports been brought out during the suppression hearing, it would have demonstrated that the officers were lying when they testified that they responded to a request for a welfare check. ¶9 The reports indicate that the caller reported that a man was “passed out in front of [the] address” reported, that his vehicle was running, and that the complainant did not “feel comfortable going up to the veh[icle].” The information contained in the reports is not at odds with the officers’ testimony. During the suppression hearing, “[Officer] Jensen testified that he was directed to go to Avenue C for a welfare check on a suspicious vehicle with a male occupant passed out in the driver’s seat. [Officer] 6 Lawrence testified that he remembered being dispatched to a possible drunk driver passed out in a vehicle.” Burns I, ¶ 8. The evidence on which Burns relies is as consistent with an investigation to check on the welfare of the driver as it is with a DUI investigation. We agree with the District Court that the deficiency prong of Strickland need not be addressed because Burns has not demonstrated prejudice by showing a reasonable likelihood that the outcome of the proceeding would have been different had the reports been admitted. ¶10 Burns next argues that his appellate counsel was ineffective for failing to raise on direct appeal the prosecutor’s alleged breach of the plea agreement. He represents that his counsel told him the breach could be dealt with by means other than direct appeal, through a later motion to withdraw the plea. The State counters that appellate counsel reasonably did not raise the issue on appeal, since there had been no objection. Burns protests the unfairness of the State’s position, arguing that this Court ruled previously that the claim should have been brought on direct appeal and thus there is no avenue to address the wrong. Burns claims that he would have gone to trial had he believed that the plea agreement allowed the State to argue for a fine. ¶11 Since Burns’s ineffective assistance of counsel claim arises out of a challenge to his guilty plea, Burns “must establish prejudice by showing ‘there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’” Hardin v. State, 2006 MT 272, ¶ 18, 334 Mont. 204, 146 P.3d 746 (citations omitted). The postconviction pleading requirements demand that 7 a petitioner “bring forward more evidence than a ‘self-serving statement.’” Kelly v. State, 2013 MT 21, ¶ 10, 368 Mont. 309, 300 P.3d 120 (citation omitted). Burns was facing a minimum sentence of five years and a maximum sentence of 100 years as a Persistent Felony Offender. The recommended fifteen-year sentence, with five years suspended, was a favorable offer for Burns, especially in light of the rejection of his pretrial motions. Burns acknowledged that the court was not bound by the parties’ plea agreement regarding sentencing. He raised no objection to the fine after it appeared as a recommendation in the PSI report and voiced no concern over the fine for nearly a year— as we observed previously, “a time period that corresponds with his receipt of a gift of money from a family member.” Burns II, ¶ 16. We are not persuaded by Burns’s conclusory statement that he would not have pleaded guilty had he known he would lose his right to later challenge the alleged breach of the plea agreement or the imposition of a fine. ¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The District Court correctly denied Burns’s petition for postconviction relief. ¶13 Affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ LAURIE McKINNON | July 16, 2013 |
e7e79e43-560d-42b0-b5f9-9d6bb7446850 | State v. Mottsman | 2013 MT 182N | DA 12-0578 | Montana | Montana Supreme Court | DA 12-0578 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 182N STATE OF MONTANA, Plaintiff and Appellee, v. HARRY PAUL MOTTSMAN, Defendant and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 09-253C Honorable Stewart E. Stadler, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade M. Zolynski, Chief Appellate Defender; Eileen A. Larkin, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant Attorney General, Helena, Montana Ed Corrigan, Flathead County Attorney, Kalispell, Montana Submitted on Briefs: June 19, 2013 Decided: July 9, 2013 Filed: __________________________________________ Clerk July 9 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Harry Paul Mottsman appeals from his July 2012 sentence following his conviction of the offense of felony theft, pursuant to a guilty plea. We affirm. ¶3 The District Court sentenced Mottsman to five years with the Department of Corrections, all suspended, and imposed conditions. One of those conditions was that Mottsman “deal with” outstanding charges against him in three other states. The District Court’s written judgment includes the condition that Mottsman “resolve any and all outstanding legal matters to the satisfaction of his Supervising Officer.” Mottsman argues on appeal that this condition concerning the charges in other states was illegal and was a violation of both State and Federal law concerning extradition. This Court reviews the legality of sentencing conditions de novo. State v. Corbin, 2008 MT 146, ¶ 4, 343 Mont. 211, 184 P.3d 287. ¶4 The District Court had the authority to impose reasonable conditions considered necessary for rehabilitation or for the protection of the victim or society. Sections 46-18-201 and -202, MCA; State v. Guill, 2011 MT 32, ¶ 58, 359 Mont. 225, 248 P.3d 826. The presentence investigation report on Mottsman showed that there were theft or forgery 3 charges, similar to the offense he was charged with in Montana, pending against him in other states. ¶5 Mottsman not only failed to object to the disputed condition in the District Court proceedings, he specifically agreed on the record to the sentence and its conditions, with some exceptions not relevant here. The statutory provisions on extradition that Mottsman relies upon for his argument are not applicable to his case. No other state is seeking Mottsman’s extradition, and he agreed to be responsible for resolving the charges outstanding against him in other jurisdictions. Mottsman was represented by counsel at sentencing and did not raise any challenge to the accuracy of the information about pending charges in other states. He has not demonstrated that his rights were infringed. State v. McLeod, 2002 MT 348, ¶¶ 23-26, 313 Mont. 358, 61 P.3d 126. The conditions imposed by the District Court were not illegal. ¶6 Because these issues are controlled by settled Montana law, we have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for memorandum opinions. ¶7 Affirmed. /S/ MIKE McGRATH We concur: /S/ BRIAN MORRIS /S/ LAURIE McKINNON /S/ JIM RICE | July 9, 2013 |
33efa16c-3103-47c5-b852-24d36c927ed0 | In re A.D.B. | 2013 MT 167 | DA 12-0219 | Montana | Montana Supreme Court | DA 12-0219 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 167 IN THE MATTER OF: A.D.B., A Youth in Need of Care. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DN-09-74 Honorable Karen S. Townsend, Presiding Judge COUNSEL OF RECORD: For Appellant Mother: Wade Zolynski, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana For Appellant Father: Jeanne M. Walker, Hagen & Walker, PLLC, Billings, Montana For Appellant A.D.B.: Lisa Kauffman, Attorney at Law, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Fred Van Valkenburg, Missoula County Attorney, Matthew Lowy, Deputy Missoula County Attorney, Missoula, Montana Submitted on Briefs: March 27, 2013 Decided: June 20, 2013 Filed: __________________________________________ Clerk June 20 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 The District Court for the Fourth Judicial District, Missoula County, terminated the parental rights of A.D.B.’s Mother and Father. Mother, Father and A.D.B. now appeal that decision. ¶2 Mother raised two issues on appeal which we have restated as follows: ¶3 1. Did the Montana Department of Public Health and Human Services (DPHHS) make reasonable efforts to reunite Mother with A.D.B.? ¶4 2. Did the District Court err in concluding that Mother’s drug addiction rendered her unfit to parent A.D.B. and that her condition was unlikely to change within a reasonable time? ¶5 Father raised three issues on appeal which we have restated as follows: ¶6 3. Did the District Court have jurisdiction to terminate Father’s parental rights? ¶7 4. Did Father’s attorney render ineffective assistance of counsel? ¶8 5. Did the District Court err in terminating Father’s parental rights based upon his incarceration for mitigated deliberate homicide? ¶9 A.D.B. raises one additional issue which we have restated as follows: ¶10 6. Did the District Court correctly conclude that termination of Mother’s and Father’s parental rights was in A.D.B.’s best interest? Factual and Procedural Background ¶11 A.D.B. was born in April 2009. Mother, who was 19 years old at the time of A.D.B.’s birth, has struggled with chemical dependency since she was 13 years old. On December 10, 2009, Mother was arrested for Driving Under the Influence while A.D.B. 3 was in the vehicle with her. The next day, Father was arrested and charged with deliberate homicide. A.D.B. was removed from her parents’ custody and placed with her maternal uncle. ¶12 On December 18, 2009, DPHHS filed a petition for temporary legal custody of A.D.B. The District Court appointed counsel for both parents and for A.D.B., and also appointed a guardian ad litem for A.D.B. At an adjudicatory hearing held on January 19, 2010, Mother did not contest that, based upon Mother’s conduct, A.D.B. was a youth in need of care. Mother stipulated to the court granting DPHHS temporary legal custody of A.D.B. for six months. The court granted Father’s request to continue the hearing as it related to him for an additional two weeks. At a subsequent hearing, Father also stipulated that A.D.B. was a youth in need of care as a consequence of Father’s conduct. DPHHS established treatment plans for both Mother and Father, and the District Court determined that both treatment plans were reasonable and appropriate. ¶13 On June 21, 2010, DPHHS moved the District Court to extend temporary legal custody of A.D.B. for an additional six months. Although Mother objected to a six-month extension, she informed the court that she would not object to a three-month extension. Father asked for a postponement of the hearing until after his criminal trial. ¶14 Father was convicted of mitigated deliberate homicide on July 16, 2010. He was sentenced to 40 years in the Montana State Prison with no possibility of parole. On July 20, 2010, Father appeared at a hearing in this case and informed the court that he did not object to the extension of A.D.B.’s temporary legal custody with DPHHS for an additional six months. 4 ¶15 Thereafter, Mother successfully completed her treatment plan. Thus, on November 8, 2010, the District Court dismissed her as a party to the proceedings. That same day, DPHHS filed a petition to terminate Father’s parental rights to A.D.B. based upon Father’s long-term incarceration for his conviction of mitigated deliberate homicide. ¶16 On December 7, 2010, Father filed a motion to dismiss DPHHS’s petition to terminate his parental rights arguing that since A.D.B. had been successfully reunited with her Mother, A.D.B. was no longer a youth in need of care, and DPHHS had no authority to petition the court to terminate Father’s parental rights. However, not long after Mother was dismissed from the youth-in-need-of-care proceedings, DPHHS received a referral that Mother had relapsed and was once again using drugs. On December 8, 2010, she tested positive for Methadone. Consequently, on December 21, 2010, DPHHS filed its “Renewed Petition for Immediate Protective Services, Adjudication as a Youth in Need of Care, and Temporary Legal Custody as a Consequence of the Mother’s Conduct.” Hence, the District Court awarded DPHHS emergency protective services over A.D.B. until the show cause hearing or further order of the court. In addition, because of the ongoing proceedings, DPHHS filed a notice of withdrawal of its petition to terminate Father’s parental rights stating that ruling on the termination petition was unnecessary at this time. A.D.B. was placed with her maternal grandparents. ¶17 On January 6, 2011, DPHHS filed a petition to extend temporary legal custody of A.D.B. for six months. And, on January 26, 2011, DPHHS filed a motion with the court 5 to approve a second treatment plan for Mother. At the May 4, 2011 dispositional hearing, both Mother and Father stipulated that temporary legal custody of A.D.B. should be transferred to DPHHS for six months. Hence, the District Court continued A.D.B.’s temporary custody with DPPHS until November 4, 2011, or further order of the court. The court also approved the second treatment plan for Mother. ¶18 On June 14, 2011, Mother tested positive for Opiates, Benzodiazepine, Methadone and Oxycodone. DPHHS moved to amend Mother’s treatment plan to include attendance at an inpatient drug treatment program. DPHHS wanted Mother in an inpatient program because Mother had completed outpatient drug treatment twice and relapsed both times. ¶19 At a November 1, 2011 status hearing, the parties informed the court that they were still trying to get Mother placed in an inpatient treatment facility. However, on November 3, 2011, Mother overdosed on illegal drugs. She was found unconscious on the floor at her grandmother’s home. Mother was transported to the hospital where she was stabilized and later released. As a result of this incident, Mother was charged with Criminal Possession of Dangerous Drugs, a felony, and Criminal Possession of Drug Paraphernalia, a misdemeanor. The following day, November 4, 2011, DPHHS filed a petition to extend its temporary legal custody of A.D.B. for an additional six months. ¶20 On December 6, 2011, the parties again appeared in the District Court. DPHHS advised the court of Mother’s recent drug overdose and that Mother had been charged with felony possession of dangerous drugs from that incident. DPHHS petitioned for Termination of both Mother’s and Father’s parental rights on December 20, 2011. 6 ¶21 Mother filed a motion to amend her treatment plan on December 27, 2011. She proposed in her motion that she apply for admission to Elkhorn Treatment Center in Boulder, Montana, and upon admission, she would attend and engage in chemical dependency treatment and successfully complete that treatment program. Elkhorn is a nine-month-long inpatient treatment program typically reserved for Department of Corrections’ commitments. Mother would not be allowed to have A.D.B. with her while at Elkhorn. DPHHS did not object to Mother’s motion, and the District Court issued an order to so amend the treatment plan. ¶22 On January 5, 2012, Mother appeared for an arraignment on the drug charges from November 2011. She was released on her own recognizance on the condition that she not use any drugs not prescribed by a physician. However, just two days later, law enforcement officers stopped a vehicle in which Mother was a passenger. After a consent search of the vehicle, officers found syringes and a spoon containing residue that tested positive for Morphine. A used syringe and cotton were also found in Mother’s purse. Mother admitted to acquiring Dilaudid and shooting it up earlier that day. ¶23 Mother was transported to the Missoula County Detention Center. During a videotaped interview at the detention center, when officers left the interview room, Mother removed a pill bottle from one of her bags and placed it in the left side of her bra. She also placed a call on her cell phone and asked the individual on the other end of the line to save her $30 worth of black-tar heroin. She promised to meet up with this individual in 30 minutes. Needless to say, Mother was not released from custody. That same day, Mother’s mother complained to law enforcement officers that Mother had 7 stolen $2,100 in jewelry from her home. Based on these incidents, Mother was charged on January 23, 2012, with Criminal Possession of Dangerous Drugs, a felony, Criminal Possession of Drug Paraphernalia, a misdemeanor, Theft, a felony, and Solicitation of Criminal Distribution of Dangerous Drugs—Narcotic or Opiate, a felony. On February 7, 2012, Mother entered pleas of guilty to all six of the criminal charges pending in the District Court. ¶24 The District Court held a hearing on the petition to terminate Mother’s and Father’s parental rights on February 15-17, 2012. After receiving testimony from various counselors and social workers who had worked with Mother over the past two years, along with testimony as to Father’s long-term imprisonment, the District Court terminated both Mother’s and Father’s parental rights to A.D.B. The District Court entered detailed findings of fact and conclusions of law on March 1, 2012, wherein the court stated that “Mother has not complied with any of the tasks of her most recent treatment plan” and that although she could not comply with the task requiring inpatient treatment at Elkhorn, “she was able to comply with all of the other tasks, and complied with none of them.” The court further stated that Mother “could have complied with other recommended inpatient drug treatment and chose not to do so.” ¶25 Thus, the District Court determined that pursuant to § 41-3-609(1)(f), MCA, the court was permitted to terminate the parent-child relationship between A.D.B. and her Mother “for the Mother’s failure to successfully complete her Court-ordered treatment plan and for the reason that her conduct or condition that renders her unfit . . . (her serious drug addiction and her unwillingness to engage in necessary treatment)” is 8 unlikely to change within a reasonable time. In addition, the court determined that § 41-3-609(1)(f), MCA, permitted the court to terminate the parent-child relationship between A.D.B. and her Father “because the conduct or condition of the Father rendering him unfit (incarceration) is unlikely to change within a reasonable time.” ¶26 Mother, Father, and A.D.B. all appeal the District Court’s termination order. Standard of Review ¶27 We review a district court’s decision to terminate parental rights for an abuse of discretion. In re E.Z.C., 2013 MT 123, ¶ 19, 370 Mont. 116, ___ P.3d ___ (citing In re T.W.F., 2009 MT 207, ¶ 17, 351 Mont. 233, 210 P.3d 174). A district court abuses its discretion when it acts arbitrarily, without employment of conscientious judgment or in excess of the bounds of reason, resulting in substantial injustice. E.Z.C., ¶ 19 (citing In re A.J.W., 2010 MT 42, ¶ 12, 355 Mont. 264, 227 P.3d 1012). In addition, we review a district court’s findings of fact to determine whether they are clearly erroneous, and its conclusions of law to determine whether they are correct. E.Z.C., ¶ 19 (citing T.W.F., ¶ 17). A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if this Court is left with a definite and firm conviction that the district court made a mistake. E.Z.C., ¶ 19 (citing T.W.F., ¶ 17). Issue 1. ¶28 Did DPHHS make reasonable efforts to reunite Mother with A.D.B.? ¶29 Mother contends that termination of the parent-child relationship just two months after Mother’s treatment plan was amended to include a nine-month, inpatient treatment 9 program violated good faith reunification efforts. Likewise, A.D.B.’s counsel argues that deeming a plan unsuccessful because of deficits known when the plan was developed and ordered violates the good faith requirement. ¶30 The State argues that DPHHS made every possible effort to reunite Mother with her daughter over the previous three years, but Mother persistently refused to participate in the level of treatment she needed and continued to engage in drug-addictive behavior. The State points out that it was Mother who moved to amend the treatment plan, not DPHHS, and Mother only did so after DPHHS filed its petition to terminate her parental rights. DPHHS did not object to Mother’s motion to amend the treatment plan because Mother’s DPHHS caseworker recognized that Mother was in desperate need of inpatient treatment as soon as possible. In fact, after Mother filed her motion to amend the treatment plan, Mother was arrested for more drug-related felony offenses to which she pled guilty. The State also points out that neither Mother nor counsel for A.D.B. argued that Mother’s treatment plans were not reasonable and appropriate. ¶31 A parent’s right to the care and custody of a child is a fundamental liberty interest which must be protected by fundamentally fair proceedings. E.Z.C., ¶ 21 (citing A.J.W., ¶ 15). Nevertheless, a court may terminate the parent-child legal relationship upon clear and convincing evidence that the parent has subjected the child to aggravated circumstances, “including but not limited to abandonment, torture, chronic abuse, or sexual abuse or chronic, severe neglect of a child.” E.Z.C., ¶ 21 (citing §§ 41-3-609(1)(d) and -423(2)(a), MCA). 10 Clear and convincing evidence is “[s]imply a requirement that a preponderance of the evidence be definite, clear, and convincing, or that a particular issue must be established by a preponderance of the evidence or by a clear preponderance of the proof. This requirement does not call for unanswerable or conclusive evidence. The quantity of proof, to be clear and convincing, is somewhere between the rule in ordinary civil cases and the requirement of criminal procedure—that is, it must be more than a mere preponderance but not beyond a reasonable doubt.” E.Z.C., ¶ 22 (quoting A.J.W., ¶ 5); see also In the Matter of E.K., 2001 MT 279, ¶ 32, 307 Mont. 328, 37 P.3d 690. “The paramount concern is the health and safety of the child, and the district court must give ‘primary consideration to the physical, mental and emotional conditions and needs of the child.’ ” E.Z.C., ¶ 22 (quoting A.J.W., ¶ 15; § 41-3-609(3), MCA). ¶32 Nevertheless, citing In re D.B., 2007 MT 246, ¶ 33, 339 Mont. 240, 168 P.3d 691 [hereinafter D.B. I], and § 41-3-423(1), MCA (requiring “reasonable efforts . . . to reunify families”), Mother points out in her brief on appeal that the State “has a duty to act in good faith in developing and executing a treatment plan to preserve the parent-child relationship and the family unit . . . and [the State’s] duty to act in good faith does not end once the court has approved a treatment plan.” Mother maintains that DPHHS did not act in good faith in this case when it followed through with terminating her parental rights only two months after her treatment plan was amended. ¶33 Mother and counsel for A.D.B. ignore all of DPHHS’s efforts over the years to reunite Mother and A.D.B. including compliance coaching, parenting classes, home visits, individual counseling and mentoring, subsidized childcare, and outpatient chemical dependency treatment. Moreover, even if we were to conclude that DPHHS did not act 11 in good faith in following through with terminating Mother’s parental rights before she had a chance to enter the Elkhorn treatment program, the fact remains that Mother did not successfully complete the remaining tasks of her treatment plan despite DPHHS and the court giving her many opportunities to do so. ¶34 The District Court determined in its March 1, 2012 Findings of Fact, Conclusions of Law, and Order that Mother failed in all of the following aspects of her treatment plan: Mother did not seek out an individual counselor after learning that her preferred choice of counselor was no longer accepting new patients; Mother did not engage in intensive outpatient treatment as previously ordered by the court; Mother did not participate in the Suboxone maintenance program through Turning Point; Mother tested positive for drugs 12 times in the period from June 14, 2011, to January 7, 2012; and Mother missed 28 drug tests during that same time period. ¶35 The District Court stated that “Mother’s continued drug use demonstrates that she is more concerned with getting her next fix than in what is best for her daughter. Thus, she presents a significant risk to her daughter rendering her unfit, unable or unwilling to provide adequate parental care . . . .” The court also determined that although Mother had not had the opportunity to attempt the Elkhorn treatment program, she previously had several opportunities to actively pursue inpatient treatment, but did not follow through. ¶36 Furthermore, at the time the treatment plan was amended to include inpatient treatment for Mother at Elkhorn, neither DPHHS nor the court knew that Mother would so blatantly reoffend just a few days later. Mother’s treatment plan was amended to include treatment at Elkhorn on December 29, 2011. Mother was arrested for additional 12 drug offenses—including her attempt to score black-tar heroin while waiting in the interview room at the Missoula County Detention Center—on January 7, 2012, just one week later. ¶37 Accordingly, we hold that DPHHS did make reasonable efforts to reunite Mother with A.D.B. Issue 2. ¶38 Did the District Court err in concluding that Mother’s drug addiction rendered her unfit to parent A.D.B. and that her condition was unlikely to change within a reasonable time? ¶39 Mother contends that the District Court erred in granting DPHHS’s petition to terminate her parental rights because DPHHS failed to prove by clear and convincing evidence that Mother’s chemical dependency was unlikely to change within a reasonable time through the court-ordered inpatient treatment program at Elkhorn. Similarly, A.D.B.’s counsel argued in A.D.B.’s brief on appeal that the District Court erred in finding that Mother’s history of relapsing into drug addiction rendered her unable to change within a reasonable period of time. ¶40 The State argues that based upon Mother’s long history of abusing drugs and her resistance to inpatient treatment, it is highly unlikely that her drug-addictive behavior will change within a reasonable time. The State points out that Mother had three years to become sober, but instead, she continued to use drugs and failed to successfully complete any part of her treatment plan. ¶41 Section 41-3-609, MCA, the statute setting forth the criteria for termination of parental rights, provides in pertinent part: 13 (1) The court may order a termination of the parent-child legal relationship upon a finding established by clear and convincing evidence . . . that any of the following circumstances exist: . . . (f) the child is an adjudicated youth in need of care and both of the following exist: (i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time. (2) In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court shall enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making the determinations, the court shall consider but is not limited to the following: . . . (c) excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent’s ability to care and provide for the child . . . . [Emphasis added.] ¶42 Thus, before terminating an individual’s parental rights, a district court must consider whether “an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful.” In re D.B., 2012 MT 231, ¶ 19, 366 Mont. 392, 288 P.3d 160 [hereinafter D.B. II] (quoting § 41-3-609(1)(f)(i), MCA). Hence, the court must first determine whether DPHHS has provided an “appropriate” treatment plan. D.B. II, ¶ 19. There is, however, no bright-line test for courts to determine whether a treatment plan is appropriate. Instead, courts should consider various factors, including whether the parent was represented by counsel, whether the parent stipulated to the plan, and whether the plan takes into consideration the particular problems facing both the parent and the child. D.B. II, ¶ 19. In addition, 14 since a natural parent’s right to the care and custody of a child is a fundamental liberty interest, DPHHS bears the burden of proving, by clear and convincing evidence, that a treatment plan is appropriate. In re A.N., 2000 MT 35, ¶ 24, 298 Mont. 237, 995 P.2d 427. ¶43 In this case, Mother was represented by counsel, she did stipulate to the treatment plan, and the plan did take into consideration Mother’s particular problem—her drug addiction. ¶44 In addition, a district court must determine whether the parent’s behavior will change within a reasonable amount of time. D.B. II, ¶ 25 (citing § 41-3-609(2), MCA). This determination requires that a district court “primarily consider the physical, mental, and emotional needs of the child. . . . That is, the court must be foremost concerned with the child’s best interest when evaluating whether to terminate parental rights.” D.B. II, ¶ 25 (citing § 41-3-609(3), MCA; In re B.S., 2009 MT 98, ¶ 32, 350 Mont. 86, 206 P.3d 565). ¶45 Determining whether a parent’s conduct is likely to change within a reasonable amount of time “requires a predictive assessment based upon past and present conduct of the parent” in question. In re C.M.C., 2009 MT 153, ¶ 25, 350 Mont. 391, 208 P.3d 809. A parent’s past behavior is considered in determining fitness to parent in the future. In re A.J.E., 2006 MT 41, ¶ 27, 331 Mont. 198, 130 P.3d 612. ¶46 In its February 9, 2012 order denying Mother’s motion to continue the termination hearing, the District Court pointed out that as of the date of the court’s order, A.D.B. had not been in Mother’s custody for eight months. The court also noted that a delay to allow 15 Mother to complete the Elkhorn treatment program would take another eleven months at least as Mother had not even been accepted into the program, and, even if she were accepted, the earliest she could start would be after her March 20, 2012 sentencing hearing. Elkhorn is a nine-month program and A.D.B. would not be allowed to be with Mother during Mother’s attendance in the program. ¶47 John Donald, one of Mother’s former chemical dependency counselors, testified that he had been recommending inpatient treatment for Mother since 2008, but she had been unwilling to participate in such treatment. Emily Zachariasen, A.D.B.’s court-appointed special advocate since April 2011, testified that even though she did not think Mother’s parental rights should be terminated, she was not convinced that Mother would maintain sobriety even after nine months at Elkhorn. Zachariasen further testified that Mother had passed up more than one opportunity to participate in inpatient treatment programs where A.D.B could have been with Mother. ¶48 In addition, Jo Coyer, a child protection specialist with DPHHS, testified that she was not optimistic about the likelihood of Mother’s successful treatment at Elkhorn. And, Jocelyn Nelson, a licensed clinical social worker who worked with Mother, testified that she did everything she could to offer support to Mother, but Mother never followed through with Nelson’s offers of help and support. Nelson also testified that between June 2011 and January 7, 2012, Mother tested positive for drugs 12 times and missed 28 of her scheduled tests. Nelson further testified that because a missed test is considered a positive test, this meant that Mother tested positive for drugs 40 times during this 6-month time period. Mother only tested negative twice. 16 ¶49 At the time of the termination hearing, Mother was not in treatment at Elkhorn. She was in jail awaiting sentencing on various drug charges, and there was no guarantee that Mother would be accepted at Elkhorn. Even assuming that Mother completed treatment at Elkhorn, she would still have to demonstrate the ability to maintain sobriety within the community for several months before it would be realistic to consider the possibility of Mother being able to resume parenting A.D.B. ¶50 Accordingly, we hold that the District Court did not err in concluding that Mother’s drug addiction rendered her unfit to parent A.D.B., and that her condition was unlikely to change within a reasonable time. Issue 3. ¶51 Did the District Court have jurisdiction to terminate Father’s parental rights? ¶52 Father argues that the District Court’s dispositional order granting DPHHS temporary legal custody of A.D.B. expired on November 4, 2011, and that the court never granted the State’s petition to extend temporary legal custody. Father also argues that when the order for temporary legal custody expired, the court’s adjudication that A.D.B. was a youth in need of care also expired. Consequently, Father contends that once the order for temporary legal custody expired, the court was without jurisdiction to entertain DPHHS’s petition to terminate Father’s parental rights. ¶53 The State contends that Father is confusing jurisdiction with statutorily created time limits. The State also points out that neither Father nor Mother objected to DPHHS’s November 4, 2011 petition for extension of temporary legal custody since, at the time, both parents were incarcerated. 17 ¶54 The Montana Constitution establishes the subject matter jurisdiction of the district courts. Miller v. Eighteenth Judicial Dist. Court, 2007 MT 149, ¶ 45, 337 Mont. 488, 162 P.3d 121 (citing Mont. Const. art. VII, § 4 (district courts have “original jurisdiction in all criminal cases amounting to felony and all civil matters and cases at law and in equity.”)). Subject matter jurisdiction involves the court’s fundamental authority to hear and adjudicate cases or proceedings. Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 57, 345 Mont. 12, 192 P.3d 186. “Subject matter jurisdiction ‘can never be forfeited or waived, nor can it be conferred by the consent of a party.’ ” Davis v. State, 2008 MT 226, ¶ 20, 344 Mont. 300, 187 P.3d 654 (quoting Miller, ¶ 44). Furthermore, we explained in BNSF Ry. Co. v. Cringle, 2010 MT 290, ¶ 13, 359 Mont. 20, 247 P.3d 706, that the Legislature does not deprive the courts of subject matter jurisdiction when it enacts filing or notice deadlines. ¶55 Father argues that pursuant to § 41-3-442, MCA, if DPHHS does not request an extension of temporary legal custody, the District Court has no discretion but to dismiss the case as its dispositional order for temporary legal custody cannot be in effect for longer than six months under § 41-3-442(2), MCA. Section 41-3-442, MCA, provides in pertinent part: (4) Before the expiration of the order for temporary legal custody, the county attorney, the attorney general, or an attorney hired by the county shall petition for one of the following: (a) an extension of temporary legal custody, not to exceed 6 months, upon a showing that: (i) additional time is necessary for the parent or guardian to successfully complete a treatment plan; or (ii) continuation of temporary legal custody is necessary because of the child’s individual circumstances . . . . 18 ¶56 Contrary to Father’s contentions, however, DPHHS did petition for an extension of temporary legal custody of A.D.B. within the six-month time limit specified in § 41-3-442(2), MCA. At the May 4 2011 dispositional hearing, both Mother and Father stipulated that temporary legal custody of A.D.B. should be transferred to DPHHS for six months. Thus, the court ordered that DPHHS’s custody of A.D.B. should continue until November 4, 2011, “or upon further Order of the Court.” On November 3, 2011, Mother overdosed on illegal drugs. The following day, November 4, 2011, DPHHS filed a petition to extend its temporary legal custody of A.D.B. for an additional six months. Thus, DPHHS filed its petition for extension within the six-month time limit. While Father contends that a district court must also act upon an extension petition within the six-month period that DPHHS has temporary legal custody of the child or lose jurisdiction of the case, no such provision appears in the statute. ¶57 Father also contends that because the District Court failed to grant a hearing on DPHHS’s petition, said petition must be deemed denied and the case dismissed. On the contrary, subsection (5) of the statute provides: “The court may continue an order for temporary legal custody pending a hearing on a petition provided for in subsection (2).” Section 41-3-442(5), MCA (emphasis added). The District Court held a status hearing in this case on December 6, 2011, at which time DPHHS represented that it would be filing a petition to terminate both Mother’s and Father’s parental rights to A.D.B. ¶58 Father is also mistaken that A.D.B. was not an adjudicated youth in need of care at the time DPHHS filed for termination of Father’s parental rights. To adjudicate a child a 19 youth in need of care, the State must prove, by a preponderance of the evidence, that the child has been abused, neglected or abandoned. In re M.J., 2013 MT 60, ¶ 19, 369 Mont. 247, 296 P.3d 1197 (citing § 41-3-437(2), MCA; In re I.B., 2011 MT 82, ¶ 20, 360 Mont. 132, 255 P.3d 56; In re B.S., 2009 MT 98, ¶ 22, 350 Mont. 86, 206 P.3d 565). ¶59 Here, the District Court adjudicated A.D.B. a youth in need of care by stipulation of Mother on January 19, 2010, and by stipulation of Father on March 23, 2010. After Father was incarcerated and after Mother relapsed into drug use in November and December 2010, DPHHS filed its “Renewed Petition for Immediate Protective Services, Adjudication as a Youth in Need of Care and Temporary Legal Custody.” The District Court granted DPHHS’s petition in an order dated March 31, 2011, wherein the court stated that A.D.B. “has been, and continues to be, adjudicated a Youth in Need of Care as defined in § 41-3-102 MCA.” ¶60 As the State pointed out in its brief on appeal, it would be absurd to conclude that the District Court’s failure to issue a written order granting DPHHS’s timely request for an extension of temporary legal custody resulted in the court losing jurisdiction of this case when neither parent was in a position to assume custody of A.D.B. since both parents were incarcerated, thus A.D.B. clearly remained a youth in need of care. ¶61 Accordingly, we hold that the District Court did have jurisdiction to terminate Father’s parental rights. Issue 4. ¶62 Did Father’s attorney render ineffective assistance of counsel? 20 ¶63 Father contends that his attorney rendered ineffective assistance of counsel when she failed to move to dismiss the case once temporary legal custody of A.D.B. expired, or to object to the termination petition when the State failed to demonstrate that A.D.B. was an adjudicated youth in need of care for purposes of termination under § 41-3-609(1)(f), MCA. Contrary to Father’s contentions, the State points out that a motion to dismiss this case by Father’s counsel would have been pointless since DPHHS would have simply re-filed a petition for temporary legal custody based on the overwhelming evidence that A.D.B. was a youth in need of care. Citing § 41-3-609(4)(c), MCA, which provides that “[a] treatment plan is not required under this part upon a finding by the court following hearing if . . . the parent is or will be incarcerated for more than 1 year and reunification of the child with the parent is not in the best interests of the child,” the State maintains that DPHHS then could have requested that the court excuse it from the requirement of developing a treatment plan for Father based upon his 40-year prison term, and proceeded directly to a petition to terminate Father’s parental rights. ¶64 The Due Process of Clause of the Montana Constitution (Article II, Section 17) provides a parent in a termination of parental rights proceeding with the right to the effective assistance of counsel. D.B. II, ¶ 30 (citing In re A.S., 2004 MT 62, ¶¶ 12, 20, 320 Mont. 268, 87 P.3d 408). However, a parent may not sustain an ineffective assistance of counsel claim when the parent cannot demonstrate prejudice as a result of the ineffective assistance. D.B. II, ¶ 30 (citing In re C.M.C., 2009 MT 153, ¶ 30, 350 Mont. 391, 208 P.3d 809). 21 ¶65 As we indicated in the previous issue, contrary to Father’s contentions, DPHHS’s temporary legal custody of A.D.B. did not “expire.” A timely-filed petition for extension of temporary legal custody was pending before the District Court. In addition, A.D.B. continued to be a youth in need of care pursuant to the court’s March 31, 2011 order. ¶66 Because we conclude that any objection by counsel to the alleged problems as perceived by Father would have been without merit, Father’s ineffective assistance of counsel claim must fail. ¶67 Accordingly, we hold that Father’s attorney did render effective assistance. Issue 5. ¶68 Did the District Court err in terminating Father’s parental rights based upon his incarceration for mitigated deliberate homicide? ¶69 Father contends that the District Court erred in terminating his parental rights when there was overwhelming evidence that a guardianship or other long-term custody arrangement would have preserved Father’s inherent obligation to support A.D.B. ¶70 Section 41-3-609, MCA, the statute setting forth the criteria for termination of parental rights, provides in pertinent part: (2) In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court shall enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making the determinations, the court shall consider but is not limited to the following: . . . (b) a history of violent behavior by the parent; . . . (d) present judicially ordered long-term confinement of the parent. [Emphasis added.] 22 ¶71 In this case, Father is unable to give A.D.B. adequate parental care both because of his history of violent behavior (i.e., his conviction for mitigated deliberate homicide) and his judicially ordered long-term confinement (i.e., his sentence of 40 years in prison without the possibility of parole). A.D.B. was only eight months old when Father was incarcerated. A.D.B. will be 40 years old by the time Father is released from prison. ¶72 Father points out that during the 11 months that he was detained at the Missoula County Detention Facility, he had weekly visits with A.D.B. and that he communicated with her as much as possible. However, he also pointed out that since his transfer to the detention facility in Great Falls, even though he continues to communicate with A.D.B. via telephone and the mail, he has only seen A.D.B. once. ¶73 Furthermore, under Father’s “financial obligation to support” theory, a district court would never have the authority to terminate parental rights no matter the circumstances of abuse and neglect. Even if there were some merit to Father’s theory, Father’s ability to financially support A.D.B. was significantly compromised by Father’s 40-year prison sentence. Father pointed out that he is only able to send $15 to $20 per month to help support A.D.B. While it is commendable that Father tries to send money from his meager earnings in prison, it is hardly a sufficient amount to cover the expenses of an active child. Nevertheless, there is nothing to prevent Father from continuing to send money for A.D.B.’s care and support even though Father’s parental rights have been terminated. 23 ¶74 Accordingly, we hold that the District Court did not err in terminating Father’s parental rights based upon his incarceration for mitigated deliberate homicide. Issue 6. ¶75 Did the District Court correctly conclude that termination of Mother’s and Father’s parental rights was in A.D.B.’s best interest? ¶76 Counsel for A.D.B. contends that DPHHS and the District Court provided no compelling state interest for severing the relationship between Mother and A.D.B. Counsel maintains that waiting for Mother to complete the inpatient treatment program at Elkhorn is reasonable and in A.D.B.’s best interests given the quality and attachment of A.D.B.’s particular relationship with Mother. Similarly, Father opposes the termination of both Mother’s and Father’s parental rights. Instead, Father would prefer to see a guardianship granted to A.D.B.’s maternal grandparents with the goal to reunite A.D.B. with Mother. ¶77 The State maintains that while Mother has been shown to be a good mother when she is sober, Mother has not been sober for the vast majority of A.D.B.’s life. The State argues that the District Court correctly concluded that it was not in A.D.B.’s best interest to wait any longer for a safe, stable home that would not be disrupted by Mother’s drug-induced behavior. ¶78 A.D.B. is now four years old. She has been the subject of a youth-in-need-of-care proceeding for almost three and a half of those four years. During the nine months that Mother would attend treatment at Elkhorn, Mother would have no contact with A.D.B. And, even assuming that Mother completed treatment at Elkhorn, she would still have to 24 demonstrate the ability to maintain sobriety within the community for several months before it would be realistic to consider the possibility of Mother parenting A.D.B. Thus, assuming Mother never again relapsed into her drug-addictive behavior, it would be at least a year from the time Mother enters Elkhorn until it could be shown that she has successfully overcome her addictions. ¶79 Jo Coyer, a child protection specialist with DPHHS, testified that it would be detrimental to A.D.B.’s well-being to disrupt the strong bond that has been developing between A.D.B. and her maternal grandparents for the remote possibility that Mother might be able to maintain sobriety when there is virtually no past evidence of her ability to do so. ¶80 As we have previously stated, “[c]hildren need not be left to ‘twist in the wind’ before neglect may be found chronic and severe.” In re M.N., 2011 MT 245, ¶ 29, 362 Mont. 186, 261 P.3d 1047. Father is in prison for 40 years and Mother is a drug addict with a long road of intensive treatment ahead of her and no guarantees of success. ¶81 Accordingly, we hold that the District Court correctly concluded that termination of Mother’s and Father’s parental rights was in A.D.B.’s best interests. ¶82 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ BETH BAKER /S/ JIM RICE /S/ BRIAN MORRIS 25 Chief Justice Mike McGrath specially concurs. ¶83 While I concur with the decision to affirm the termination of both parents’ parental rights, I maintain that the District Court abused its discretion by appointing an attorney for the child in this case. ¶84 Montana law provides for the appointment of a guardian ad litem (G.A.L.) in cases seeking termination of parental rights. By law, the G.A.L.’s role is to review the family situation and facts surrounding the case and advise the court as to the best interest of the child. See § 41-3-112(3), MCA. As a general rule, appointment of an attorney for a child is not required unless a G.A.L. is not appointed. Section 41-3-425, MCA. A G.A.L. is not required to be an attorney. In certain cases, the code provides the court with the discretion, “when appropriate” to appoint an attorney for the child even though a G.A.L. has been appointed.1 Section 41-3-425(3)(b), MCA. Such an appointment serves a logical purpose in situations where older children are involved – children above the age of reason who may be able to develop and express an opinion that would help the district court determine the best interest of that child. See e.g. In re J.J.S., 176 Mont. 202, 205- 06, 577 P.2d 378, 381 (1978); In re M.D.Y.R., 177 Mont. 521, 535, 582 P.2d 758, 766 (1978). The appointment of an attorney for an infant or child below the age of reason, however, is frankly absurd and serves no useful purpose other than to complicate the litigation. 1 Section 41-3-112, MCA, requires the appointment of a G.A.L. in every proceeding for any child alleged to be abused or neglected. The statute further prescribes training and duties for persons appointed as a G.A.L., including a requirement for specific training related to serving as a child’s court-appointed representative. 26 ¶85 In our society, parents are responsible for making decisions for children who are unable to decide for themselves. Consequently, parents have the right and responsibility to decide where a child lives, what a child eats, how a child is disciplined, whether and where a child goes to church, and where that child attends school. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000). However, in cases such as this, when the parents have abdicated their responsibility to care for that child, then the State has the responsibility to provide protective services as required in Title 41. See §§ 41-3-422(6)- (9) and (11), MCA; § 41-3-425, MCA. ¶86 In those circumstances, the court has the responsibility to determine whether the children are youths in need of care, § 41-3-437, MCA, and ultimately decide an appropriate disposition for that child, § 41-3-438, MCA. As parties, the parents, whose parental rights are being contested by the State, are entitled to be represented by counsel in these proceedings. Section 41-3-425, MCA; In re J.J.L., 2010 MT 4, ¶ 16, 355 Mont. 23, 223 P.3d 921. ¶87 However, nothing in the Montana Constitution, statutes, or case law provides a right to counsel for the child. The child is the subject of litigation but does not have the ability to provide direction for the attorney as to how to proceed. How does the attorney determine her client’s legal position? Should it be based on the personal view of the lawyer? That is not our proper role as attorneys. ¶88 The Montana Rules of Professional Conduct are instructive. Subsection (3) of the preamble, which defines a lawyer’s responsibilities, provides: 27 (3) As a representative of clients, a lawyer performs various functions. In performance of any functions a lawyer shall behave consistently with the requirements of honest dealings with others. As advisor, a lawyer endeavors to provide a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements under these Rules of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them. The Client-lawyer relationship is addressed in Rule 1.2, Scope of Representation and Allocation of Authority between Client and Lawyer: (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. . . . Finally, attorney-client communication is addressed in Rule 1.4 – Communication: (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(g), is required by these Rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. ¶89 None of the traditional attorney-client functions and responsibilities can be followed where the client is an infant or below the age of reason. While the G.A.L. has a role as an advocate for the child, the role of the attorney appointed to the child is unclear. 28 A G.A.L. is trained for that role and conducts an independent investigation to evaluate the facts and advise the court. That is not the role of the attorney. ¶90 The court has ably demonstrated the substantial evidence that supports the District Court’s decision in this case. Yet, the child’s counsel takes the position that termination was not in the child’s best interest; that the State should have made a better effort to reunite the child and mother and disputed the District Court’s conclusion that the mother’s condition was unlikely to change within a reasonable time. How did an attorney representing a three-year-old child reach this conclusion? Why is that position in the best interest of the child? What are the standards that should be applied by an attorney in taking a position without the guidance of a client? Who then decides what position to take or, for that matter, whether to appeal, and on what grounds? ¶91 Further, the majority opinion has summarized the pertinent timelines involved in this proceeding. After years of State and court involvement, the termination order was issued in March 2012. At that time the client was three years old. The parents appealed. The mother’s brief was filed on August 8, 2012; the father’s brief was filed on October 11, 2012. The attorney who had been appointed to represent the three-year-old child, after deciding sua sponte to appeal, filed a brief on December 6, 2012, further delaying a permanent placement for her client. ¶92 An attorney, acting alone, certainly has no authority to file and participate in an appeal to this Court. Attorneys appointed for a child below the age of reason do not have a client capable of making a knowing and intelligent decision. An attorney at law has no legal basis to make that decision for them. 29 ¶93 There are situations where an attorney’s presence is not helpful or appropriate and merely serves to unnecessarily complicate or delay the proceedings. This is one of those situations. In my view the court abused its discretion by making this appointment. ¶94 To the extent that this Court’s recent opinion in In re K.H., 2012 MT 175, 366 Mont. 18, 285 P.3d 474, provides otherwise, I would overrule it. /S/ MIKE McGRATH | June 20, 2013 |
f188303c-ae17-43cb-9e02-f95f5b369950 | In re Marriage of Steyh | 2013 MT 175 | DA 12-0599 | Montana | Montana Supreme Court | DA 12-0599 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 175 IN RE THE MARRIAGE OF: JULIE A. STEYH, Petitioner and Appellee, v. WILLIAM T. STEYH, Respondent and Appellant. APPEAL FROM: District Court of the Second Judicial District, In and For the County of Silver Bow, Cause No. DR-12-6-KK Honorable Kurt Krueger, Presiding Judge COUNSEL OF RECORD: For Appellant: Christopher J. Gillette, Attorney at Law, Bozeman, MT For Appellee: Bernard J. Everett; Knight, Dahood, Everett & Sievers, Anaconda, MT Submitted on Briefs: March 6, 2013 Decided: July 2, 2013 Filed: __________________________________________ Clerk July 2 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Julie Steyh (Julie) petitioned for dissolution of her marriage to William Steyh (William) in the Second Judicial District Court, Silver Bow County. After the District Court granted Julie’s petition and issued its Findings of Fact, Conclusions of Law and Final Decree of Dissolution, William filed a M. R. Civ. P. 60(b) motion to set aside the judgment, which the District Court denied. William appeals from the District Court’s denial of his Rule 60(b) Motion. We reverse. ¶2 The only issue presented for our review is whether the District Court properly denied William’s Rule 60(b) motion. PROCEDURAL AND FACTUAL BACKGROUND ¶3 Julie and William were married on March 20, 2010. On January 6, 2012, after less than two years of marriage, Julie filed a pro se dissolution petition with the District Court. Julie asserted that the marriage was irretrievably broken and that there was no reasonable prospect of reconciliation. ¶4 As part of her petition for dissolution, Julie submitted to the court a detailed proposed distribution of the marital assets. According to Julie’s equitable distribution, in addition to other assets and liabilities, William would be awarded ownership of a house and real property that the couple owned on Hobson Street in Butte. William accepted service of the petition by signing a Notice and Acknowledgment of Service on January 16, 2012. The Notice and Acknowledgment specifically advised William that the court would enter judgment against him consistent with the relief requested in the petition if he failed to 3 respond. The Summons also warned him that his failure to appear or answer would result in judgment being entered against him by default for the relief requested in the petition. Because he did not object to the dissolution of their marriage or Julie’s proposed distribution of assets, William elected to default, which the clerk entered on February 8, 2012. ¶5 After the Clerk of Court entered William’s default, Julie requested that a final hearing be set so that the court could be satisfied that the grounds for dissolution were met and that the proposed division of the marital assets was equitable as required by § 40-4-202, MCA. William and Julie both appeared pro se for the final hearing on March 16, 2012. Before holding the hearing, the District Court judge announced that he had several questions and ordered the parties to meet with a special master and court-appointed mediator before the hearing. After the parties met with the special master and mediator, the court held the final hearing. During the hearing the court focused its questions to the parties on the Hobson Street property. When the judge asked William what his basis was for asking for the Hobson Street property, William responded, “I didn’t ask for anything in the house. I was served papers.” William also told the court that he had consulted with an attorney after he had received Julie’s petition and proposed distribution of assets. ¶6 At the end of the Final Hearing, the District Court announced that it was going to dissolve the marriage and adopt Julie’s proposed distribution of assets with one amendment. The court agreed to award William ownership of the Hobson Street property but indicated that it was unfair that Julie would not be compensated for any of the equity in the home even though she had owned the property for thirteen years before the couple’s two-year marriage. Accordingly, the court adopted Julie’s proposed distribution of assets in its entirety but also 4 ordered William to pay Julie $30,000 over three years. On April 3, 2012, the court issued written Findings of Fact, Conclusions of Law and Final Decree of Dissolution. ¶7 Through newly enlisted counsel, William filed a Motion for Relief from Judgment on July 3, 2012. The court failed to rule on the motion within sixty days, so it was deemed denied pursuant to M. R. Civ. P. 60(c)(1). On September 12, 2012, after the motion had already been deemed denied, the court issued an order explaining why Julie’s proposed distribution of assets was inequitable. STANDARD OF REVIEW ¶8 A court has discretion to grant or deny a party’s application for default judgment after a party has defaulted. District courts also have discretion to set aside a final judgment under Rule 60(b). Because we strongly favor judgment on the merits, however, we review a district court’s denial of a Rule 60(b) motion only for a slight abuse of discretion. Ptarmigan Owner’s Assn. v. Alton, 2013 MT 69, ¶ 18, 369 Mont. 274, 298 P.3d 1140. DISCUSSION ¶9 William argues that the final decree should have been set aside as void under M. R. Civ. P. 60(b)(4) because the District Court awarded Julie more than she had prayed for in her original pleading in violation of M. R. Civ. P. 54(c). Rule 54(c) provides that: “A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.” ¶10 In all dissolution proceedings, even if the respondent defaults, the court has an independent obligation to ensure that the distribution of assets is equitable. Section 40-4- 5 202, MCA. The court can consider any relevant factor while determining whether a distribution of assets is equitable, but it must consider the factors specifically listed in § 40- 4-202, MCA. In re Marriage of Funk, 2012 MT 14, ¶ 34, 363 Mont. 352, 270 P.3d 39. ¶11 Under Rule 60(b), a court may set aside a final judgment because of: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. Although William argued that the judgment should be set aside as void under Rule 60(b)(4) or, alternatively 60(b)(6), the gravamen of his argument is actually that he was surprised by the court’s sua sponte $30,000 award to Julie that she had not specifically requested in her petition. A surprise is “an occurrence for which there is no adequate warning or that affects someone in an unexpected way.” Black’s Law Dictionary 1581 (Bryan A Garner ed., 9th ed., West 2009). ¶12 Everything that William had received from the court informed him that judgment would be entered against him for the relief that Julie had requested in her petition if he failed to defend. William was given notice of the final hearing, and the District Court did give the parties a chance to work out the issues on their own with the mediator and special master before the final hearing. But the record does not indicate that William was given notice that the court might award Julie more than she had specifically requested in her petition beforehe 6 appeared for the final hearing on March 16. William was not given adequate notice to prepare an argument regarding why the distribution of assets would be equitable as proposed in the petition, nor was he given the opportunity to hire an attorney to argue on his behalf. We also note that William informed the District Court at the final hearing that he had consulted with an attorney before electing to default. We thus conclude that the District Court surprised William by not giving him advanced notice that it might award Julie more than she had requested in her petition and by not giving William a meaningful opportunity to contest the distribution of assets before rendering a final judgment. Given William’s surprise, the court’s failure to set aside the judgment was a slight abuse of discretion. ¶13 To be clear, nothing in this opinion limits a district court’s broad discretion to distribute the marital assets in a manner that it deems equitable to both parties under § 40-4- 202, MCA. See In re Marriage of Swanson, 2004 MT 124, ¶ 12, 321 Mont. 250, 90 P.3d 418. Although the District Court clearly had authority to amend Julie’s proposed distribution of assets, given the warnings provided to William that judgment would be entered against him for the amount requested in the petition if he defaulted and the fact that he had advised the District Court that he had consulted an attorney before electing to default, the court should have set aside the judgment under Rule 60(b)(1) due to William’s surprise. After setting aside the judgment, the court should have rescheduled the hearing to provide William with a meaningful opportunity to be heard and present an argument. ¶14 For the reasons stated above, this matter is reversed and remanded for further proceedings regarding the distribution of the parties’ assets. 7 /S/ MIKE McGRATH We concur: /S/ JIM RICE /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ BETH BAKER | July 2, 2013 |
a501ab7f-47af-4890-bf33-d33a0c3e9025 | Matter of K.U. | 2013 MT 285N | DA 12-0524 | Montana | Montana Supreme Court | DA 12-0524 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 285N IN THE MATTER OF: K.U., A Youth. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDJ-2010-32 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellant: Jennifer A. Giuttari, Montana Legal Justice, PLLC; Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General; Helena, Montana Leo J. Gallagher, Lewis and Clark County Attorney, Tara Harris, Deputy County Attorney; Helena, Montana Submitted on Briefs: September 11, 2013 Decided: October 1, 2013 Filed: __________________________________________ Clerk October 1 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion. It shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 K.U. appeals from the Order of the First Judicial District Court, Lewis and Clark County, determining that statements a three-year-old made to her mother were properly admitted into evidence in the State’s sexual assault case against him. We affirm. ¶3 S.F., almost four years old, attended a daycare run by fourteen-year-old K.U.’s grandmother. On April 15, 2010, S.F.’s mother, H.M., picked S.F. up from daycare. S.F. said that she was hurt and that her “butt” hurt. H.M. asked her why and S.F. responded that somebody had tried to put something in her “butt.” When H.M. asked what it was, S.F. responded “the thing in his shorts.” S.F. typically called both her buttocks and her vaginal area her “butt.” H.M. asked S.F. if she could point out the boy who hurt her at the daycare, believing the perpetrator to be another small child. They returned to the daycare. At the daycare, S.F. identified K.U. as the assailant. The next morning H.M. took S.F. to the doctor. The doctor examined S.F. and reported the matter to the police. ¶4 The State filed a petition in Youth Court alleging that K.U. was a delinquent youth and had committed the offense of Sexual Assault, a felony, upon a three-year-old victim. The State originally planned to call S.F. to testify. S.F. was intimidated and generally unresponsive in the presence of the jury and the court excused her. Since H.M. had testified 3 about S.F.’s statements to her in a pretrial hearing, the State proposed to offer that testimony. The Youth Court admitted the statements after concluding that S.F. was unavailable and the statements fell within exceptions to the hearsay rule. K.U. contested that ruling. The jury was deadlocked and the court declared a mistrial. ¶5 During a second trial, K.U. again opposed admission of S.F.’s statements through H.M. The Youth Court determined that the statements were non-testimonial and were constitutionally admissible. This jury convicted K.U. K.U. alleges that the Youth Court erred in allowing H.M. to testify about S.F.’s statements to her. Because we conclude that the Youth Court did not abuse its discretion in admitting the non-testimonial statements, we do not reach the additional issues that K.U. raises on appeal. ¶6 We review a district court’s evidentiary decision to determine whether the court abused its discretion. State v. Mizenko, 2006 MT 11, ¶ 8, 330 Mont. 299, 127 P.3d 458. ¶7 The Montana Constitution, the U.S. Constitution and the Montana Code Annotated guarantee an accused in a Youth Court proceeding the right to confront the witnesses against him. Mont. Const. art. II, § 24; U.S. Const. amend. VI; § 41-5-1414, MCA. Only testimonial statements cause the declarant to be a “witness” within the meaning of the confrontation clause. Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 2273 (2006). We presume statements are non-testimonial when the declarant is not speaking to a government agent, unless the declarant had clear reason to believe that the statement would be used in court as substantive evidence. Mizenko, ¶ 23. A non-testimonial statement is 4 admissible if either (1) it fits into a firmly rooted hearsay exception; or (2) it bears independent guarantees of trustworthiness. Mizenko, ¶ 32. ¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our Internal Operating Rules, which provides for noncitable memorandum opinions. The District Court did not abuse its discretion when it concluded the statements were non- testimonial and admissible. As the District Court pointed out, the statements were made by a three-year-old child to her mother at the first opportunity after leaving the environment in which the alleged act occurred. The implication that S.F. “reflected” for purposes of “conjuring up a false allegation” is, as the District Court stated, unrealistic under these circumstances. H.M.’s questions to S.F. and her actions show that she acted out of care for her daughter and not from a desire to create evidence. H.M. did not call the police and instead took her daughter to the doctor for examination and treatment. The evidence supports the District Court’s determination that the statements were non-testimonial and could be properly admitted into evidence without implicating K.U.’s confrontation rights. ¶9 Affirmed. /S/ MICHAEL E WHEAT We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JIM RICE | October 1, 2013 |
30984ebb-8050-4891-a26c-7f6f261331b1 | State v. Bullplume | 2013 MT 169 | DA 12-0278 | Montana | Montana Supreme Court | DA 12-0278 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 169 STATE OF MONTANA, Plaintiff and Appellee, v. CHRISTOPHER NELS BULLPLUME, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDC-11-305 Honorable Kenneth R. Neill, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender, Sarah Chase Rosario, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana John Parker, Cascade County Attorney, Kory Larsen, Deputy County Attorney, Great Falls, Montana Submitted on Briefs: April 24, 2013 Decided: June 25, 2013 Filed: __________________________________________ Clerk June 25 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Christopher Nels Bullplume was convicted of failing to provide notice of his change of residence when required to do so as a sexual offender. The Eighth Judicial District Court, Cascade County, imposed a four-year suspended sentence. Bullplume appeals several conditions of that sentence. We affirm. ¶2 We restate the issues on appeal as follows: 1. Whether Bullplume has waived appellate review of the District Court’s requirement that he pay the costs of his court-ordered evaluations and treatment. 2. Whether the District Court abused its discretion in imposing conditions 26 through 40, which relate specifically to sexual offenders. FACTUAL AND PROCEDURAL BACKGROUND ¶3 In 1993, Bullplume was convicted of first-degree rape in the State of Washington. As a result of that conviction, he is required to register as a sexual offender. Bullplume has discharged the Washington sentence that was imposed. ¶4 On August 1, 2011, Bullplume was arrested in Great Falls for misdemeanor offenses of driving under the influence (DUI), disorderly conduct, driving without insurance, and driving while license suspended. Law enforcement officers ascertained that Bullplume was a registered sexual offender from Washington and that a warrant had been issued for his arrest in Washington because he had absconded from his last known address in June 2011. Officers further determined that Bullplume had not registered as a sexual offender in Great Falls. A detective spoke with Bullplume, who admitted that he 3 had left Washington approximately two months earlier and that he had been living in Great Falls for about two weeks. ¶5 On August 11, 2011, the State charged Bullplume with failing to register, a felony, in violation of §§ 46-23-505 and -507, MCA (2009). The State and Bullplume ultimately entered into a binding plea agreement under § 46-12-211(1)(b), MCA. In exchange for Bullplume’s guilty plea, the State agreed to recommend a four-year commitment to the Montana State Prison, with all time suspended. On November 1, 2011, Bullplume appeared in court and changed his plea to guilty. A presentence investigation report (PSI) was ordered. As required by § 46-18-111(1)(b), MCA, a psychosexual evaluation was prepared in conjunction with the PSI. ¶6 The PSI was filed with the District Court on February 22, 2012. It reflected that Bullplume, age 34 at the time, was unemployed and relied on family as a means of support. In addition to his 1993 conviction for rape, Bullplume had convictions for felony possession of heroin (1995) and felony unlawful possession of a firearm (2006). He also had two convictions for DUI (2001 and 2003) and had been arrested for his third DUI when the State charged him with failure to register. Additionally, Bullplume had a conviction for felony attempt to elude (2001), as well as two prior convictions of felony failing to register as a sexual offender in Washington (2001 and 2003). The PSI notes that Bullplume’s charge of failing to register in the instant case occurred not long after his release in 2010 from a four-year incarceration in Washington State Prison on a firearm offense. 4 ¶7 Dr. Donna M. Zook conducted the psychosexual evaluation and prepared a report for the District Court. Dr. Zook determined that “[t]he veracity and trustworthiness of Mr. Bullplume’s self-report is questionable” in that “[h]is account of events do not coincide with records.” Dr. Zook found that “[t]he most salient factor regarding Mr. Bullplume’s character is his lack of shame, guilt, or remorse regarding antisocial behaviors that he committed and the effects on others.” Dr. Zook provided the following summary of Bullplume: In summary Mr. Bullplume is a moderate risk for repeated sexual offending due to: (1) criminal history; (2) lack of honesty during the clinical interview portion of the evaluation; (3) invalid MMPI-2; (4) denial of sexual interests, fantasies, urges, or drive; (5) poor social adjustment and inability to cope with daily demands; (6) low empathy and callous and irresponsibility to family and others; (7) lacking insight and judgment due in part to cognitive processing at the level of a child; (8) extensive alcohol and drug history; (9) emotional detachment and lack of guilt, shame or remorse for his previous criminal behavior; (10) poor or inadequate pro-social support and influence; and (11) lacking distress and motivation for change. Dr. Zook concluded that Bullplume was a moderate risk to repeat a sexual offense and designated him a Level 2 offender. See § 46-23-509(2), MCA. ¶8 The District Court conducted a sentencing hearing on February 28, 2012. The State recommended that the court impose the four-year suspended sentence called for in the plea agreement. In addition, the State requested that the court impose all 41 of the probation conditions recommended in the PSI. Bullplume objected to conditions 26 through 40, which the PSI describes as “standard sexual offender conditions.” He argued (1) that failure to register is not a sexual offense which would necessitate conditions relating to sexual offenders and (2) that there was an insufficient nexus to impose the 5 conditions because the underlying rape conviction had occurred nearly 20 years earlier. Bullplume did not object to any of the other recommended conditions. ¶9 The District Court orally imposed a four-year suspended sentence and allowed the parties an opportunity to brief the applicability of conditions 26 through 40. In the subsequent written Sentence, issued March 8, 2012, the District Court affirmed the imposition of conditions 26 through 40 under the authority of State v. Malloy, 2004 MT 377, 325 Mont. 86, 103 P.3d 1064. ¶10 In his opening brief on appeal, Bullplume challenges the District Court’s imposition of not only conditions 26 through 40, but also conditions 11, 21, and 22, which prohibit him from gambling, entering bars, and entering casinos, respectively. Additionally, Bullplume argues, for the first time on appeal, that the District Court lacked authority to require him to pay the costs of his court-ordered evaluations and treatment. In his reply brief, however, Bullplume concedes the validity of the State’s argument that he may not obtain appellate review of conditions 11, 21, and 22 due to his failure to object to these conditions in the District Court. Bullplume maintains only his challenge to conditions 26 through 40, as well as his claim that the District Court lacked authority to impose the costs of court-ordered evaluations and treatment. With respect to the latter, the State notes that State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979), provides a basis for this Court to review whether the District Court had authority to require Bullplume to pay for his evaluations and treatment. ¶11 Conditions 26 through 40 may be summarized as follows: 6 • Bullplume shall enter and successfully complete sexual offender treatment at his own expense. He shall remain in Aftercare or Relapse Prevention Class for the entirety of his supervision unless released at the discretion of the probation and parole officer and the therapist. He shall reenter treatment at any time if deemed appropriate by the probation and parole officer and the therapist. (Conditions 26, 37, 38.) • Bullplume may not have contact with any individual under the age of 18 unless accompanied by an approved and appropriately trained, responsible adult. He may not reside in a residence where there are any children under the age of 18 without the written approval of the therapist and the probation and parole officer. He may not date, live with, or otherwise be aligned with any person with children under the age of 18 without the express prior approval of the therapist and the probation and parole officer. (Conditions 27, 34, 40.) • Bullplume shall not frequent places where children are present or reasonably expected to be present—including schools, parks, playgrounds, malls, movies, fairs, parades, swimming pools, carnivals, arcades, parties, family functions, and holiday festivities—unless accompanied by an approved and appropriately trained, responsible adult. He shall obtain permission from the probation and parole officer prior to going to any of these places. (Condition 28.) • Bullplume may not access or have in his possession or under his control any material that describes or depicts human nudity, the exploitation of children, consensual sexual acts, nonconsensual sexual acts, or sexual acts involving force or violence, without prior written approval of the probation and parole officer and the therapist. He may not frequent adult book stores, topless bars, or massage parlors, or use the services of prostitutes. He may not view television shows or motion pictures that are sexually stimulating, or access “900” telephone sex lines. (Conditions 29, 30, 35.) • Bullplume shall not have access to the Internet without prior permission from the probation and parole officer and the therapist. If Internet access is allowed, Bullplume must allow rating control software to be installed and random searches of the hard drive to be conducted for pornography or other inappropriate material. He may not have a cell phone or other such device with photo or Internet capabilities. (Conditions 31, 36.) • Bullplume shall be designated a Level 2 sexual offender. (Condition 32.) • Bullplume shall be subject to reasonable employment or occupational prohibitions and restrictions under § 46-18-255(1), MCA. (Condition 33.) 7 • Bullplume shall submit to annual polygraph testing. (Condition 39.) ¶12 The requirements that Bullplume pay the costs of evaluations and treatment are contained in conditions 17, 18, and 26, which provide as follows: 17. The Defendant shall obtain a chemical dependency evaluation by a state approved evaluator. The Defendant must pay for the evaluation and follow all of the evaluator’s treatment recommendations. 18. The Defendant shall obtain a mental health evaluation/assessment by a state approved evaluator. The Defendant must pay for the evaluation and follow all of the evaluator’s treatment recommendations. . . . 26. The Defendant will enter and successfully complete sexual offender treatment with a MSOTA clinical member or associate member with supervision, or equivalent, who is approved by the state and the Probation & Parole Officer and at the Defendant’s expense. The Defendant shall abide by all treatment rules and recommendations of the treatment provider. ¶13 With regard to conditions 26 through 40, Bullplume argues that, given “more than (19) nineteen years of living without committing a crime of violence or a sex crime, and a lifetime of never committing a crime involving children,” there is an insufficient nexus between the offense/offender and the conditions. With regard to conditions 17, 18, and 26, he asserts that the District Court was without statutory authority to require that he pay the costs of his evaluations and treatment. The State argues that the District Court did not abuse its discretion in imposing conditions 26 through 40 in light of Bullplume’s criminal history, the PSI, and the psychosexual evaluation. The State further argues that it was within the broad authority of the District Court to require Bullplume to pay the costs of his evaluations and treatment. 8 STANDARD OF REVIEW ¶14 We review restrictions or conditions on a criminal sentence for both legality and abuse of discretion. State v. Melton, 2012 MT 84, ¶ 16, 364 Mont. 482, 276 P.3d 900. DISCUSSION ¶15 Issue One. Whether Bullplume has waived appellate review of the District Court’s requirement that he pay the costs of his court-ordered evaluations and treatment. ¶16 As noted, Bullplume did not object to the District Court’s requirement that he pay the costs of his court-ordered evaluations and treatment as conditions of his probation. Generally, this Court will not review a claim where the defendant failed to object to the alleged error in the trial court. State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892; State v. Micklon, 2003 MT 45, ¶ 8, 314 Mont. 291, 65 P.3d 559. As the parties correctly point out, however, we have created an exception to this general rule where a defendant alleges that a sentence exceeds statutory parameters and is, therefore, illegal. Lenihan, 184 Mont. at 343, 602 P.2d at 1000; State v. Muhammad, 2002 MT 47, ¶ 23, 309 Mont. 1, 43 P.3d 318. Part of the rationale behind this exception “is that, as a practical matter, ‘a defendant often times must remain silent even in the face of invalid conditions’ to guard against the possibility that the sentencing court may forego a more lenient sentence if the defendant objects to one of the conditions.” Micklon, ¶ 9 (quoting Lenihan, 184 Mont. at 343, 602 P.2d at 1000). We have declined to apply the Lenihan exception, therefore, in a situation where the defendant “affirmatively agreed” at sentencing to the condition he now asserts as error on appeal. Micklon, ¶ 10. 9 ¶17 For purposes of applying Lenihan, we have held that a sentence which may be objectionable is, nevertheless, legal if it falls within statutory parameters. Kotwicki, ¶ 16. We explained that “a sentencing court’s failure to abide by a statutory requirement [such as consideration of the defendant’s ability to pay] rises to an objectionable sentence, not necessarily an illegal one that would invoke the Lenihan exception.” Kotwicki, ¶ 13 (citing State v. Nelson, 274 Mont. 11, 906 P.2d 663 (1995), and State v. Swoboda, 276 Mont. 479, 918 P.2d 296 (1996)). In Nelson and Swoboda, we held the Lenihan exception inapplicable despite allegations that the sentencing court had failed to abide by statutory requirements. Both cases involved situations where the trial court had failed to consider sentencing alternatives as required by § 46-18-225, MCA, before imposing a prison sentence upon a nonviolent offender. The defendants in each case had failed to object to the court’s error at the sentencing hearing and attempted to invoke the Lenihan exception on appeal. We observed, however, that the trial court, after considering the requirements of § 46-18-225, MCA, legally could have sentenced Nelson and Swoboda to prison, and thus their sentences failed to meet the illegality requirement for applying the Lenihan exception. Nelson, 274 Mont. at 20, 906 P.2d at 668; Swoboda, 276 Mont. at 482, 918 P.2d at 298. Accordingly, where the sentencing court, if provided the opportunity to consider the error now asserted on appeal, could nevertheless have imposed the same sentence, the illegality requirement of the Lenihan exception has not been met. Nelson, 274 Mont. at 20, 906 P.2d at 668; Swoboda, 276 Mont. at 482, 918 P.2d at 298; Kotwicki, ¶ 16. 10 ¶18 In considering the District Court’s requirement that Bullplume pay the costs of his evaluations and treatment as conditions of his probation, we note preliminarily that it is well established a court does not have the power to impose a sentence unless authorized by a specific grant of statutory authority. Melton, ¶ 17; State v. Burch, 2008 MT 118, ¶ 23, 342 Mont. 499, 182 P.3d 66. A sentencing judge is specifically authorized to impose on a suspended sentence various restrictions or conditions that the judge considers necessary to obtain the objectives of rehabilitation and the protection of the victim and society. Section 46-18-202(1), MCA. These include restrictions on the offender’s freedom of association and freedom of movement, plus “any other limitation reasonably related to the objectives of rehabilitation and the protection of the victim and society.” Section 46-18-202(1)(c), (d), (g), MCA (2011).1 Similar authority is provided in § 46-18-201(4)(o), MCA (2009),2 which authorizes a sentencing judge to impose on a suspended sentence any “reasonable restrictions or conditions considered necessary for rehabilitation or for the protection of the victim or society.” We have emphasized that a sentencing judge’s discretion under these statutes is broad and that our review is correspondingly deferential. Melton, ¶ 18; State v. Zimmerman, 2010 MT 44, ¶¶ 16-17, 355 Mont. 286, 228 P.3d 1109. As a general rule, we will affirm a condition of probation 1 The law in effect at the time an offense is committed controls as to the possible sentence. State v. Tracy, 2005 MT 128, ¶ 16, 327 Mont. 220, 113 P.3d 297. In 2011, the Legislature added a new subsection to § 46-18-202(1), MCA, and provided an effective date of July 1, 2011. See Laws of Montana, 2011, ch. 419, §§ 29, 40. Since Bullplume’s offense was committed between July 15 and August 1, 2011, we cite the 2011 version of § 46-18-202(1), MCA. 2 Although the 2011 Legislature also amended § 46-18-201(4), MCA, that amendment was made effective on October 1, 2011. See Laws of Montana, 2011, ch. 318, § 8; § 1-2-201(1), MCA. Thus, we cite the 2009 version of this statute. 11 imposed pursuant to this statutory authority so long as the restriction or condition has some correlation or connection—i.e., nexus—to the underlying offense or to the offender. Ashby, ¶¶ 13-15; Zimmerman, ¶ 17. But if the condition is “overly broad or unduly punitive,” or if the required nexus is “absent or exceedingly tenuous,” we will reverse. Melton, ¶ 18; Zimmerman, ¶ 17. ¶19 It is pursuant to the foregoing statutory authority that the State argues the District Court could impose the requirement that Bullplume pay for his own evaluations and treatment. Bullplume maintains that the court exceeded its statutory authority by imposing such a requirement; however, because he did not object to this requirement, our review is limited under Lenihan, as clarified in Kotwicki, Nelson, and Swoboda, to determining whether, had the District Court been presented with the challenge Bullplume now makes, the court still could have imposed the requirement. In so doing, we consider whether a condition requiring Bullplume to pay for his evaluations and treatment might be reasonably related to the objective of rehabilitation, thus providing the statutory authority for imposing the condition and correspondingly requiring that any objections to the condition be made at sentencing. This consideration is different from, for example, the unauthorized imposition of a fine, which relates to the imposition of a penalty and is thus punitive, rather than rehabilitative, in nature. If a condition of probation is reasonably related to the objective of rehabilitation, and not prohibited by some other provision of law, then the sentencing court has acted within statutory parameters and there is no further review under Lenihan. 12 ¶20 The District Court required Bullplume to obtain a chemical dependency evaluation, a mental health evaluation, and sexual offender treatment with a MSOTA qualified therapist. The court also required Bullplume to pay for these services. Had Bullplume made an objection at the time of sentencing, testimony may have been presented that, for example, payment for services by the offender has therapeutic value and is related to the offender’s rehabilitation.3 Had an objection been made at sentencing, the court may have considered whether Bullplume could have had services provided free of cost or on a sliding fee scale, based on his indigency and the service providers in his geographic area. Had an objection been made at sentencing, the court could have inquired of Bullplume and his counsel of other available options to address concerns of rehabilitation and public safety, such as treatment in an inpatient facility of the Department of Corrections which would be at no cost to Bullplume. Had the matter been properly raised and presented to the District Court, numerous areas could have been explored by the District Court and the parties to fully develop treatment options for Bullplume and how they were to be financed. A record would have been created and the matter would have been preserved for appeal, thereby enabling this Court to consider whether the condition was reasonably related to Bullplume’s rehabilitation. ¶21 In sum, the State has pointed to plausible authority for the imposition of a condition requiring Bullplume to pay for the costs of his evaluations and treatment— namely, § 46-18-201(4)(o), MCA (2009), and § 46-18-202(1)(g), MCA (2011). Due to 3 Many of Montana’s drug courts require payment for services based on the principle that the participant must be accountable for his or her treatment. 13 Bullplume’s failure to raise the issue in the District Court, however, the record before us contains no discussion, evidence, or consideration by the court regarding his paying for these services. On the basis of this silent record, and given the broad discretionary authority of the sentencing court to tailor sentences designed to rehabilitate the offender, we decline to address this issue any further. We conclude that Bullplume is precluded from raising it based upon his failure to object to the condition at sentencing. See Kotwicki, ¶ 21. ¶22 Issue Two. Whether the District Court abused its discretion in imposing conditions 26 through 40, which relate specifically to sexual offenders. ¶23 Bullplume objected in the District Court to conditions 26 through 40, and his challenge has, therefore, been properly raised on appeal. Bullplume argues that there is an insufficient nexus between the sexual offender conditions and either himself or his underlying offense. He argues that his rape conviction occurred when he was 15 years old and involved a 25-year-old woman, that he has not committed a “crime of violence” or a “sex crime” for nearly 20 years, and that he has not committed any crimes involving children. Bullplume argues that, given the totality of these facts, any nexus to conditions 26 through 40 is too isolated or stale to serve as justification for their imposition. ¶24 We declined to adopt as a categorical rule the position that a sufficient nexus could be established to the original sexual offense when imposing conditions of sentence for the offense of failing to register. Melton, ¶ 20. We stated that “a passing, isolated, or stale instance of behavior or conduct is insufficient to support a restrictive probation condition imposed in the name of offender rehabilitation.” Melton, ¶ 20 (citing Ashby, ¶ 15, State 14 v. Stiles, 2008 MT 390, ¶ 16, 347 Mont. 95, 197 P.3d 966, and State v. Jones, 2008 MT 440, ¶¶ 22-23, 347 Mont. 512, 199 P.3d 216). Thus, in some instances, the original offense underlying the registration requirement may have relevance, but in other cases, the original offense may be too isolated or stale to serve as justification for imposing the challenged condition. Melton, ¶ 20. We stated that “[e]ach case must turn on its specific facts.” Melton, ¶ 20. ¶25 Upon review of Bullplume’s PSI and psychosexual evaluation, we conclude that the District Court did not abuse its discretion in imposing the conditions related to sexual offenders. In fact, Bullplume presents a compelling case for needing treatment. His history demonstrates an inability to remain law abiding or to conform his conduct to the demands of sexual offender laws. This, combined with Bullplume’s significant chemical dependency concerns, leaves the public and society in danger should Bullplume not reform his behavior through treatment. Referring to Dr. Zook’s observations that Bullplume “tends to be non-conforming, resentful of authority[,] . . . erratic and unpredictable,” the PSI author noted that “[s]uch an assessment raises questions on how likely the Defendant will comply with any Court-ordered probation conditions.” Given Bullplume’s criminal history, moderate risk of reoffending, and excessive use of substances, Bullplume’s only chance of succeeding in the community is through his participation in treatment services. Treatment similarly is the only hope of protecting the public from Bullplume’s potential recidivism. Thus, imposition of conditions 26 through 40 has a sufficient nexus to Bullplume himself and establishes an offender nexus under 15 Ashby, ¶ 15. The District Court did not abuse its discretion in imposing these conditions related to sexual offenders as part of Bullplume’s probation. CONCLUSION ¶26 Based on the foregoing, we conclude that Bullplume has waived any objection to the requirement that he pay for the costs of his evaluations and treatment. We further conclude that imposition of the conditions relating to sexual offenders (conditions 26 through 40) was supported by a sufficient nexus to Bullplume himself. The District Court’s sentencing order is affirmed. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ BRIAN MORRIS /S/ JIM RICE | June 25, 2013 |
27b4f05c-ce67-4a97-aa40-44c607e052bd | State v. Woods | 2013 MT 195N | DA 13-0073 | Montana | Montana Supreme Court | DA 13-0073 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 195N STATE OF MONTANA, Plaintiff and Appellee, v. JEREMY CORD WOODS, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDC 1994-155 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellant: Jeremy Cord Woods, self-represented litigant; Shelby, Montana For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant Attorney General; Helena, Montana Leo Gallagher, Lewis and Clark County Attorney; Helena, Montana Submitted on Briefs: June 26, 2013 Decided: July 16, 2013 Filed: __________________________________________ Clerk July 16 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 This is Jeremy Cord Woods’s third appeal to this Court. In Woods I, we affirmed his October 1995 conviction of two counts of deliberate homicide. State v. Woods, 283 Mont. 359, 363, 942 P.2d 88, 91 (1997). In Woods II, we affirmed the District Court’s denial of his petition for postconviction relief. State v. Woods, 2005 MT 186, ¶ 1, 328 Mont. 54, 117 P.3d 152. Woods now appeals an order from the Montana First Judicial District Court, Lewis and Clark County, denying his motion to compel testimony from his former attorneys. We affirm. ¶3 Woods filed his motion to compel in October 2012. He stated his ultimate goal was to “file a petition for habeas corpus under the auspices of” Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (2012), challenging his conviction by arguing that his attorneys violated his right to counsel during plea bargaining when they failed to communicate any plea offers to him.1 Woods stated that he had written his trial attorneys, Randi Hood and James Obie, to ask whether they had received a plea offer, but neither replied. Unless the 1 We note that, under Montana law, the writ of habeas corpus “is not available to attack the validity of the conviction or sentence of a person who has been adjudged guilty of an offense in a court of record and has exhausted the remedy of appeal.” Section 46-22-101(2), MCA. 3 District Court compelled his former attorneys to answer his questions, Woods argued, he would be “prevented from pursuing this avenue of post conviction relief.” The District Court denied the motion, reasoning that Woods’s case had been closed since 2006 and that there was “no basis for granting a motion to compel.” ¶4 On appeal, Woods contests that conclusion. He argues that “a criminal case is never ‘closed’” and that a District Court has inherent power to compel testimony from any person residing within its jurisdiction. He also contends that the Supreme Court’s decision in Frye is “new evidence” that would allow him to file a second petition for postconviction relief pursuant to § 46-21-102(2), MCA. Woods acknowledges that he has no evidence to support his claim of uncommunicated plea offers; nonetheless, he posits that, given the seriousness of the charges and the fact that he confessed, it is only reasonable to infer that there had to have been a plea offer made. ¶5 Since there was no proceeding pending at the time it was filed, Woods’s motion is best viewed as a petition for postconviction relief. See State v. Laverdure, 212 Mont. 31, 32-33, 685 P.2d 375, 376 (1984). Postconviction relief proceedings “are not a discovery device” by which a petitioner may compel discovery or testimony. Smith v. State, 2000 MT 327, ¶ 28, 303 Mont. 47, 15 P.3d 395. We denied Woods’s first petition for postconviction relief and rejected his ineffective assistance of counsel claims. Woods II, ¶¶ 33-34. Montana law precludes him from asserting a second petition on grounds that could reasonably have been raised in that proceeding. Section 46-21-105(1)(b), MCA. Moreover, the Supreme Court’s decision in Frye does not allow Woods to file a second 4 petition for postconviction relief, because it is not “newly discovered evidence that . . . would establish that the petitioner did not engage in the criminal conduct for which the petitioner was convicted[.]” Section 46-21-102(2), MCA. ¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. Woods does not raise grounds sufficient to meet any exception to the statutory provisions that bar him from seeking relief so long after his conviction, and there was no basis upon which the District Court could have “assisted him” in his request. The District Court correctly applied the law in denying Woods’s motion to compel. ¶7 Affirmed. /S/ BETH BAKER We concur: /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ JIM RICE | July 16, 2013 |
bb80aafd-ca11-4ee3-9956-54d4486a2247 | Harrington v. Crystal Bar, Inc. | 2013 MT 209 | DA 12-0628 | Montana | Montana Supreme Court | DA 12-0628 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 209 DENNIS AND CATHY HARRINGTON, Plaintiffs and Appellants, v. THE CRYSTAL BAR, INC., CAPITAL INSURANCE COMPANIES, and Does 1-5, Defendants and Appellees. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV 08-313A Honorable Holly Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: John C. Doubek; Doubek, Pyfer & Fox LLP; Helena, Montana For Appellee: Mark A. Vucurovich; Henningsen, Vucurovich & Richardson, P.C.; Butte, Montana Submitted on Briefs: May 8, 2013 Decided: July 30, 2013 Filed: __________________________________________ Clerk July 30 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Dennis and Cathy Harrington appeal from the order entered by the Eighteenth Judicial District Court, Gallatin County, granting summary judgment to the Crystal Bar, Inc. on their negligence and liquor liability claims. We affirm in part, reverse in part, and remand for further proceedings. ¶2 We restate and consider the following issues: ¶3 1. Did the District Court err in granting summary judgment to the Crystal Bar on the negligence claims? ¶4 2. Did the District Court err in granting summary judgment to the Crystal Bar on the dram shop claim? FACTUAL AND PROCEDURAL BACKGROUND ¶5 The facts are presented as developed in discovery. During the late evening and early morning of October 6-7, 2007, Dennis Harrington (Harrington) visited the Crystal Bar in Bozeman with a group of friends. Harrington initiated an abrasive conversation with the front door bouncer Duane Aune (Aune), concerning the qualifications required to be a bouncer. To some extent, this conversation also involved Jason Howard (Howard), who was an acquaintance of Aune’s and employed as a bouncer at another local bar. Harrington used profanities and admits to the potentially offensive nature of this conversation. The exchange between these individuals escalated, bar manager John Saunders (Saunders) was advised, and Harrington was asked to leave the bar multiple times. Harrington then voluntarily left the bar through the open front door, followed by Howard about 15 or 20 seconds later, followed by Saunders closing the door. An 3 altercation ensued, with Howard hitting Harrington on the head and causing him to fall and strike his head on a car parked in front of the Crystal Bar. Harrington sustained a serious head injury, was rendered unconscious, and was hospitalized. Howard initially began to run, but upon seeing his girlfriend, walked with her around the end of the block and re-entered the Crystal Bar through the back door. A criminal investigation surrounding this incident was conducted. Further factual assertions are set forth below. ¶6 Harrington filed a complaint organized into various sections that set forth overlapping claims of negligence, liquor liability, spoliation of evidence, and punitive damages.1 The negligence counts generally alleged that the Crystal Bar failed to exercise proper care by adequately screening and training employees, promoted “the risk of conflict” between Harrington and Howard, failed to protect Harrington from Howard, and failed to contact law enforcement, damaging Harrington as a result. The liquor liability, or “dram shop” claim, alleged that the Crystal Bar had served alcohol “to visibly intoxicated patrons” on the night of the incident, increasing the risk of physical violence that ultimately caused harm to Harrington. ¶7 The Crystal Bar moved for summary judgment on the negligence and dram shop claims, relying on the deposition testimony of Howard and Saunders. Harrington filed a response in opposition with supporting affidavits. 1 Harrington also sought declaratory judgment regarding insurance coverage in a claim against Capital Insurance Companies. This claim was later dismissed. 4 ¶8 On the negligence claims, the District Court concluded that there were no conflicts in material facts and the Crystal Bar was entitled to judgment as a matter of law. The District Court reasoned: While Harrington and Howard present differing accounts of what might have been said between them, those statements are not material to disposition of the Motion. Harrington states “[t]here was no fight between me and Howard” and that he left when asked by Saunders. . . . Therefore by Harrington’s own account, there was no interaction between Harrington and Howard that should have alerted or warned the Crystal Bar employees that Howard posed any danger to Harrington. On the dram shop claim, the District Court determined it was uncontested that Howard was not intoxicated and had not been served at the Crystal Bar, concluding that the statutory requirements for the claim had not been established and the Crystal Bar was entitled to summary judgment. After receiving confirmation from the parties that all claims had been resolved by its order, the District Court entered final judgment. Harrington appeals. STANDARD OF REVIEW ¶9 A district court’s grant or denial of summary judgment is reviewed de novo. Steadele v. Colony Ins. Co., 2011 MT 208, ¶ 14, 361 Mont. 459, 260 P.3d 145 (citations omitted). “Under M. R. Civ. P. 56(c), summary judgment is proper only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.” Steadele, ¶ 14. The evidence must be analyzed in the light most favorable to the non-moving party, and all reasonable inferences must be drawn in favor of the non-moving party. Shattuck v. Kalispell Regl. Med. Ctr., 2011 MT 229, ¶ 8, 362 5 Mont. 100, 261 P.3d 1021 (citation omitted). “The party moving for summary judgment has the initial burden of establishing both the absence of genuine issues of material fact and entitlement to judgment as a matter of law. If this burden is met, the burden then shifts to the nonmoving party to establish that a genuine issue of material fact does exist. If the district court determines that no genuine issue of material fact exists, the court then determines whether the moving party is entitled to judgment as a matter of law.” Corporate Air v. Edwards Jet Ctr. Mont. Inc., 2008 MT 283, ¶ 25, 345 Mont. 336, 190 P.3d 1111 (internal citations omitted). We review a district court’s conclusions of law for correctness. Shattuck, ¶ 8 (citation omitted). ¶10 Summary judgment should be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3) (2011). “A material fact is a fact that involves the elements of the cause of action or defenses at issue to an extent that necessitates resolution of the issue by a trier of fact.” Corporate Air, ¶ 24 (citing Arnold v. Yellowstone Mountain Club, LLC, 2004 MT 284, ¶ 15, 323 Mont. 295, 100 P.3d 137). “Summary judgment is an extreme remedy that should never be a substitute for a trial on the merits if a controversy exists over a material fact.” Corporate Air, ¶ 24 (citing Mary J. Baker Revoc. Trust v. Cenex Harvest, 2007 MT 159, ¶ 17, 338 Mont. 41, 164 P.3d 851). “Ordinarily, questions of negligence are poorly suited to adjudication by summary judgment and are better left for jury determination at trial.” LaTray v. City of Havre, 2000 MT 119, ¶ 15, 299 Mont. 449, 6 999 P.2d 1010; see also i.e. Scott v. Henrich, 1998 MT 118, ¶ 13, 288 Mont. 489, 958 P.2d 709; Brown v. Demaree, 272 Mont. 479, 483, 901 P.2d 567, 570 (1995); Hendrickson v. Neiman, 204 Mont. 367, 371, 665 P.2d 219, 222 (1983) (overruled on other grounds). A cause of action in negligence consists of four elements: duty, breach of duty, causation, and damages. Brown, 272 Mont. at 482, 901 P.2d at 569, see also Cusenbary v. Mortenson, 1999 MT 221, ¶ 21, 296 Mont. 25, 987 P.2d 351. “[T]he existence of a duty is a question of law for determination by the court, whether that duty has been breached, is a question of fact to be decided by the finder of fact—in this case, the jury.” Brown, 272 Mont. at 482, 901 P.2d at 569 (emphasis in original). DISCUSSION ¶11 1. Did the District Court err in granting summary judgment to the Crystal Bar on the negligence claims? ¶12 Harrington argues that the District Court erred by concluding there were no genuine issues of material fact because the District Court “makes numerous assertions which are either inaccurate or directly contradicted by evidence in the record.” Harrington asserts there are conflicts within the record regarding the arrival and departure of Howard and Harrington at the Crystal Bar, Harrington’s conversation with Aune and Howard, and the Crystal Bar’s knowledge of the conflict between Harrington and Howard.2 In response, the Crystal Bar states that the factual issues raised by Harrington 2 Harrington’s argument includes the allegation that Howard was or appeared to be a bouncer employed by the Crystal Bar on the night of the assault. However, Harrington does not make a specific argument in support of an actual or ostensible agency relationship between Howard and the Crystal Bar supported by authority. Thus, to the extent that Harrington intended to state such a claim, it is not properly raised. 7 “are either speculative or do not involve the elements of the cause of action.” The Crystal Bar asserts that “[t]he evidence clearly established that the Crystal Bar never had any reason to suspect that Howard posed any danger to others” and “[t]he evidence is undisputed that the fight between Howard and Harrington occurred outside the Bar and that the Bar did not know about the fight until after it was over.” ¶13 In Kipp v. Wong, 163 Mont. 476, 480-81, 517 P.2d 897, 900 (1974), we held that the proprietor of an establishment that serves alcoholic beverages owes patrons “the duty of exercising reasonable care to protect them from injury at the hands of a fellow patron, and of seeing to it that a patron is not injured either by those in his employ or by drunken or vicious men whom he may choose to harbor.” Kipp, 163 Mont. at 481, 517 P.2d at 900 (citing Nevin v. Carlasco, 139 Mont. 512, 514, 365 P.2d 637, 638 (1961)). Continuing to quote from Nevin, the Court stated: Reviewing leading cases from other jurisdictions, [citing cases], we find the general rule to be that the duty of a tavern keeper to protect a patron from injury by another arises only when one or more of the following circumstances exist: (1) A tavern keeper allowed a person on the premises who has a known propensity for fighting. (2) The tavern keeper allowed a person to remain on the premises whose conduct had become obstreperous and aggressive to such a degree the tavern keeper knew or ought to have known he endangered others. (3) The tavern keeper had been warned of danger from an obstreperous patron and failed to take suitable measures for the protection of others. (4) The tavern keeper failed to stop a fight as soon as possible after it started. (5) The tavern keeper failed to provide a staff adequate to police the premises. (6) The tavern keeper tolerated disorderly conditions. 8 Kipp, 163 Mont. at 481, 517 P.2d at 900. These circumstances are assessed to determine whether a tavern keeper has breached the duty of reasonable care. See Kipp, 163 Mont. at 481-82, 517 P.2d at 900. ¶14 Citing Kipp, the District Court ruled that the Crystal Bar owed Harrington the duty of reasonable care to protect him from injury at the hands of a fellow patron. However, the court concluded that this duty would not extend to “acts of Howard after the parties left the Crystal Bar,” effectively limiting the duty to the interior of the building. While the care of patrons will normally be exercised within the bar, the Kipp duties are not stated as exclusively attached to the bar’s interior such that closing the bar door upon a potentially violent situation that has moved beyond the threshold cannot implicate the duty of care. Whether the Crystal Bar’s duty was breached under the circumstances surrounding Howard’s striking of Harrington in front of the bar is a question to be resolved by the jury.3 ¶15 Further, after review of the record, we cannot conclude that material facts are not in dispute. Harrington has marshaled evidence that, for purposes of summary judgment, could support a jury’s finding that one or more of the duties in Kipp have been violated, establishing negligence. 3 “[J]udges sometimes say that as danger increases, so does the duty. But judges do not mean by this that a duty of reasonable care suddenly becomes a duty of excessive care. Instead, they are using ‘duty’ in the sense of specific conduct and mean only that the duty remains the same— reasonable care under the circumstances—while circumstances of special danger show that reasonable care may be deemed by the trier of fact to require more precautions. In many such cases the words may be the words of duty, but the process of good decisionmaking requires a determination about what counts as ordinary care under the circumstances—the question of breach, not duty.” Dan B. Dobbs et al., The Law of Torts vol. 2, § 253, 7 (2d ed., West 2011). 9 a. Conversation among Harrington, Aune, and Howard ¶16 The District Court stated that “[u]pon entering the Crystal, Harrington was provocative.” However, the complaint states that Harrington “engaged in good natured, but arguably offensive, banter with employees of the Crystal Bar concerning ‘what qualifications it takes to be a bouncer,’ or words to that effect.” In his affidavit, Harrington adds that “I was never at any point aggressive or challenging to any employee of the Crystal Bar.” Howard’s recollection conflicts with Harrington’s: [Harrington] walked into the bar and the only reason that I remember him is because he kind of started talking to Duane [Aune] and I was there and I heard exactly what was going on. He kind of challenged Duane and asked him if he had to be a tough guy to work there and said if he could – see, I couldn’t tell you exactly what the words that were said, but I know that he was being – he was being provocative and he was being rude and he was challenging Duane, sort of. Howard also described Harrington as confrontational and responded affirmatively when asked, “[d]o you think he was trying to actually challenge Duane [Aune] to a fight?” Howard added, “[w]ell, he had challenged me after he challenged Duane. I kind of butted into the conversation, asked him what his problem was, and then he kind of focussed (sic) on me.” Saunders did not observe this encounter first hand, but offered that he observed Harrington using profanities. b. The Crystal Bar’s knowledge of the potential conflict ¶17 The District Court stated that because Harrington’s affidavit indicated that there “was no fight between me and Howard,” the Crystal Bar was not aware of a conflict 10 between Howard and Harrington. However, Saunders admitted in his deposition that there might be a “potential situation” and was questioned about it: [Harrington’s counsel]: [D]id you think there was any confrontation between Mr. Harrington and Mr. Howard in your bar? [Saunders]: There had—when [the other bouncer] came up to me, he said that—initially, the first thing he said was that [Harrington] had come and challenged the bouncers and then he had been aggressive or challenged or inappropriate to several customers, and I think he said that [Howard] was one of them. But it was—he had said names, not a name, but he said he was a problem with several people and primarily there was a problem with the bouncer at the front door. [Harrington’s counsel]: So did he reference Mr. Howard specifically? [Saunders]: Yes, I believe he did. Later, Harrington’s counsel asked “[b]ut you knew before Harrington left the bar that there had been some sort of difficulty between Harrington and Howard,” to which Saunders replied “Yeah.” The Crystal Bar’s counsel then asked additional questions on this point during cross examination: [Counsel for the Crystal Bar]: When he says, what do I need to do to get your job, beat you up? Is that something that you generally hear from somebody who comes into the Crystal? [Saunders]: No. [Counsel for the Crystal Bar]: Would somebody making that statement to you or one of your bouncers cause you concern? [Saunders]: Certainly. [Counsel for the Crystal Bar]: And he was intoxicated? [Saunders]: Yes. [Counsel for the Crystal Bar]: You have been trained to diffuse situations and see problems brewing before they ever start. [Saunders]: Yes. [Counsel for the Crystal Bar]: Would that be a clear indication of a problem for you? [Saunders]: Yes. 11 c. Harrington’s and Howard’s departure from the bar ¶18 Saunders testified that he asked Harrington to leave the bar, and after being asked several times, Harrington left voluntarily through the bar’s open door. Howard followed Harrington out 15 to 20 seconds later, as estimated by Saunders. Saunders testified after “watching [Howard] walk out to the right of the door and Mr. Harrington walk out to the left of the door,” that he “closed the door,” adding “I remember saying to the bouncer, You know, hey, look, make sure something, you know, that’s okay/okay, all right.” In response to Harrington’s counsel’s question, “[s]o you thought there might be a potential situation between the two of them as they were leaving the bar,” Saunders responded, “[a]fter I saw them depart different ways, I did not.” However, Harrington’s affidavit states that, upon exiting the Crystal Bar, “Howard [took] a slight step to the right and then turn[ed] 180 degrees and come right after me.” ¶19 The District Court’s statement that the Crystal Bar was not aware of the friction between Harrington and Howard seems at least partially inconsistent with its statement that “Saunders had been advised Harrington was a problem and Saunders witnessed him being disrespectful to the staff and saying profanities.” It is also directly contrary to Saunders’ deposition, in which Saunders acknowledged he suspected there was a problem between Harrington and Howard, at least before seeing them leave in opposite directions. Even then, Saunders told a bouncer to “make sure . . . that’s okay.” ¶20 Analyzing the evidence in the light most favorable to Harrington, Shattuck, ¶ 8, we believe there are genuine issues as to material facts about which reasonable minds could 12 differ. According to Harrington, he and Howard did not actually leave in opposite directions—Howard made only a “slight step” in the opposite direction, and “turn[ed] 180 degrees and come right after me.” And despite Saunders’ request to a bouncer, no one apparently acted to “make sure . . . that’s okay.” ¶21 The record ultimately contains conflicting accounts regarding the events leading up to the assault and whether the Crystal Bar had knowledge of the conflict between Harrington and Howard. Whether the Crystal Bar satisfied its duty of reasonable care under the circumstances should be resolved by a jury that is presented this evidence at trial. The Crystal Bar did not establish there were no genuine issues of material fact, Corporate Air, ¶ 25, and the District Court erred in granting the motion for summary judgment on Harrington’s negligence claims. ¶22 2. Did the District Court err in granting summary judgment to the Crystal Bar on the dram shop claim? ¶23 Harrington’s arguments that the District Court erred in granting summary judgment on his dram shop claim parallel his negligence arguments. He argues there are genuine issues of material fact regarding how much Howard had to drink and whether the Crystal Bar served Howard. The Crystal Bar responds that the District Court correctly granted summary judgment because it is uncontested that Howard was of legal drinking age, was not visibly intoxicated, and was not served at the Crystal Bar. ¶24 Section 27-1-710, MCA, commonly referred to as Montana’s Dram Shop Act, sets “statutory criteria governing the liability of a person or entity that furnishes an alcoholic beverage for injury or damage arising from an event involving the person who consumed 13 the beverage.” Section 27-1-710(1), MCA; see also Rohlfs v. Klemenhagen, LLC, 2009 MT 440, ¶¶ 16, 25, 354 Mont. 133, 227 P.3d 42. The Act reads in pertinent part: (3) Furnishing a person with an alcoholic beverage is not a cause of, or grounds for finding the furnishing person or entity liable for, injury or damage wholly or partly arising from an event involving the person who consumed the beverage unless: (a) the consumer was under the legal drinking age and the furnishing person knew that the consumer was underage or did not make a reasonable attempt to determine the consumer’s age; (b) the consumer was visibly intoxicated; or (c) the furnishing person forced or coerced the consumption or told the consumer that the beverage contained no alcohol. Section 27-1-710(3), MCA. As we have stated, “a tavern owner is liable for foreseeable injury-producing accidents of a patron if the tavern owner provided alcohol to a ‘visibly intoxicated’ patron.” Cusenbary, ¶ 22. ¶25 However, there is no evidence that Howard was served alcohol by the Crystal Bar prior to the altercation. Saunders’ deposition affirmatively states that Howard had not been served alcohol at that point. Howard testified at one point in his deposition that he “hadn’t even got (sic) a drink there when this whole thing happened,” but later stated that he “couldn’t be positive” if he had gotten a drink at the Crystal Bar. Howard’s uncertain memory cannot affirmatively establish the point. See Weaver v. Advanced Refrigeration, 2011 MT 174, ¶ 13, 361 Mont. 233, 257 P.3d 378 (internal citation omitted) (“To raise a genuine issue of material fact, the proffered evidence must be ‘material and of a substantial nature, not fanciful, frivolous, gauzy or merely suspicious.’”). The record contains no affirmative statements that Howard was served by the Crystal Bar prior to the altercation. Even analyzing the evidence in a light most favorable to Harrington, the 14 Crystal Bar has demonstrated “the absence of genuine issues of material fact” on a key point—Howard had not been served. Corporate Air, ¶ 25. ¶26 The District Court correctly granted summary judgment to the Crystal Bar on Harrington’s dram shop claim. ¶27 Affirmed in part, reversed in part, and remanded to the District Court for further proceedings. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ BRIAN MORRIS | July 30, 2013 |
cfc11647-39d8-40e7-8451-36d19282d640 | Cartwright v. Scheels All Sports, Inc. | 2013 MT 158 | DA 12-0299 | Montana | Montana Supreme Court | DA 12-0299 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 158 BRANDON W. CARTWRIGHT, Plaintiff and Appellant, v. SCHEELS ALL SPORTS, INC., Defendant and Appellee. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADV 08-1118(C) Honorable Kenneth R. Neill, Presiding Judge COUNSEL OF RECORD: For Appellant: Antonia P. Marra, Marra, Sexe, Evenson & Bell, P.C., Great Falls, Montana For Appellee: Carey E. Matovich, Jesse G. Myers, Matovich, Keller & Murphy, P.C., Billings, Montana Submitted on Briefs: March 6, 2013 Decided: June 18, 2013 Filed: __________________________________________ Clerk June 18 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Brandon W. Cartwright appeals from a judgment entered against him by the Eighth Judicial District Court, Cascade County, on his wrongful discharge complaint against Scheels All Sports, Inc. A jury found that Scheels did not wrongfully discharge Cartwright from employment, and the court entered judgment awarding Scheels the costs it incurred defending this action. We affirm. ¶2 The issues on appeal are: ¶3 1. Did the District Court err when it failed to grant summary judgment to Cartwright on liability and allowed Scheels to argue that it had “good cause” to discharge Cartwright? ¶4 2. Did the court err by failing to sanction Scheels for discovery abuse and destruction of evidence? ¶5 3. Did the court err when it failed to allow Cartwright to amend the pleadings to add a claim for punitive damages under § 39-2-905(2), MCA? ¶6 4. Did the court erroneously allow Scheels’ expert witness to testify as to ultimate issues of fact and law, invading the province of the jury? ¶7 5. Did the court err in allowing witnesses to testify to rumors heard at Scheels about Cartwright? BACKGROUND ¶8 Brandon Cartwright was employed at Scheels’ store located in Great Falls, Montana, from 1996 to 2007. During that time, Cartwright was promoted to the “lead” assistant manager position in the store. By all accounts, he was a good worker. 3 ¶9 Beginning in 2001 and continuing through the date of trial, Cartwright dated and lived with one of the nine other assistant managers at the Great Falls Scheels store. During the winter, spring, and early summer of 2007, he also had a “sexual fling” with J., another assistant manager at the Great Falls Scheels store. J. discussed the affair with several co-workers, some of whom then became uncomfortable working with Cartwright because his live-in girlfriend, also their co-worker, was unaware of what was going on. Darin Werner, the store manager, asked Cartwright about the situation in March and August of 2007, but Cartwright denied having a sexual relationship with J. In August of 2007, Cartwright and yet another assistant manager, Carri Blockyou, had a heated exchange concerning the situation. Shortly thereafter, Blockyou resigned. ¶10 On September 1, 2007, Werner called Cartwright and J. into his office for a meeting. Werner asked them about the rumors regarding their relationship. Both Cartwright and J. denied being involved in a romantic relationship, and Cartwright became angry. Werner fired both Cartwright and J. ¶11 Cartwright applied for and was found eligible to receive unemployment benefits. Scheels appealed to the Board of Labor Appeals, which affirmed. The eligibility decision included a determination that Cartwright had not been terminated due to his own misconduct. ¶12 In August of 2008, Cartwright filed this suit, in which he alleges that Scheels discharged him in violation of the Wrongful Discharge from Employment Act (WDEA), Title 39, chapter 2, part 9, MCA. Cartwright maintains he was fired because he had a relationship with J. and because he refused to discuss that relationship with Werner. In 4 response, Scheels contends Cartwright was fired (1) because of the effects his relationships were having on the assistant manager team’s ability to work together, (2) because the other assistant managers had lost trust in him, and (3) because he swore at Werner when Werner asked him about his relationship with J. ¶13 In the District Court, Cartwright moved for summary judgment on the issue of liability, based on having been found eligible for unemployment benefits. The District Court denied that motion, and also denied Scheels’ cross-motion for summary judgment on whether Cartwright was fired for good cause. However, the court granted Scheels’ motion for summary judgment on Cartwright’s claim that his discharge was based on his refusal to violate public policy. In a later order, the court denied Cartwright’s motion to amend the pleadings to add a claim for punitive damages. ¶14 This case was tried to a jury over the course of five days. At the end of trial, the jury found that Scheels did not wrongfully terminate Cartwright. Cartwright appeals. DISCUSSION ISSUE 1 ¶15 Did the District Court err when it failed to grant summary judgment to Cartwright on liability and allowed Scheels to argue that it had “good cause” to discharge Cartwright? ¶16 This Court reviews a summary judgment ruling de novo, using the same M. R. Civ. P. 56 criteria applied by the district court. Eastgate Village Water and Sewer v. Davis, 2008 MT 141, ¶ 18, 343 Mont. 108, 183 P.3d 873. Summary judgment should be rendered only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). 5 ¶17 In his motion for summary judgment, Cartwright argued to the District Court that, because he was found eligible for unemployment benefits, the question of whether he was wrongfully discharged is settled under the doctrines of issue preclusion and claim preclusion. He makes the same argument on appeal. ¶18 This argument is specifically prohibited by statute. Section 39-51-110, MCA, provides that a finding of fact or law, judgment, conclusion, or order made under the unemployment insurance law may not be conclusive or binding or used as evidence in any separate or subsequent action or proceeding in another forum, regardless of whether they involve the same or related parties or the same facts. ¶19 Even without § 39-51-110, MCA, the District Court was correct in denying Cartwright summary judgment on grounds of issue or claim preclusion. Issue preclusion and claim preclusion bar a party from relitigating an issue that already has been litigated and decided in a prior suit. We apply a four-element test to determine whether relitigation is barred: 1. Was the issue decided in the prior adjudication identical to the issue raised in the action in question? 2. Was there a final judgment on the merits in the prior adjudication? 3. Was the party against whom preclusion is asserted a party or in privity with a party to the prior adjudication? 4. Was the party against whom preclusion is asserted afforded a full and fair opportunity to litigate the issue that may be barred? 6 Rooney v. City of Cut Bank, 2012 MT 149, ¶ 17, 365 Mont. 375, 286 P.3d 241. Here, the District Court determined that “the issue decided in the administrative hearing [for unemployment benefits] is not identical to the issues surrounding ‘good cause.’ ” ¶20 The District Court was correct. In the unemployment benefits proceedings, the administrative agency determined whether Cartwright had been discharged for misconduct. See § 39-51-2303, MCA. “Misconduct” includes willful or wanton disregard of the rights, title, and interests of a fellow employee or the employer; deliberate violations or disregard of standards of behavior that the employer has the right to expect of an employee; carelessness or negligence that causes or is likely to cause serious bodily harm to the employer or a fellow employee; and carelessness or negligence to a degree or that reoccurs to a degree that shows an intentional or substantial disregard of the employer’s interest. Section 39-51-201(19), MCA. In a wrongful discharge action, in contrast, employer liability generally hinges upon whether the employer had good cause to terminate the plaintiff. See § 39-2-904, MCA. Under the WDEA, “good cause” is defined as “reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer’s operation, or other legitimate business reasons.” Section 39-2-903(5), MCA. ¶21 Cartwright also argues that he was entitled to summary judgment on the issue of liability because his conduct at issue was off-duty, out-of-office conduct. This is a misstatement of Scheels’ case. As stated above, Scheels’ position was that Cartwright’s semi-secret relationship with J., an assistant manager at the store, while he lived with and dated another assistant manager at the store, was causing disruption of the store’s 7 operations. Scheels’ justification for terminating Cartwright’s employment went beyond Cartwright’s off-duty, out-of-office conduct, and centered on the effects of that conduct in the workplace. ¶22 We hold that the District Court did not err when it failed to grant summary judgment on liability to Cartwright and allowed Scheels to proceed to trial on the question of whether it had good cause to discharge Cartwright under the WDEA. ISSUE 2 ¶23 Did the court err by failing to sanction Scheels for discovery abuse and destruction of evidence? ¶24 M. R. Civ. P. 37 allows a court to impose sanctions for a party’s failure to make discovery. We review sanction orders under a deferential abuse of discretion standard, because the trial court is in the best position to know whether the parties have disregarded the rights of opposing parties during litigation, and which sanctions for such conduct are most appropriate. Lewistown Propane Co. v. Moncur, 2002 MT 349, ¶ 22, 313 Mont. 368, 61 P.3d 780. ¶25 In this case, Cartwright learned during discovery that, by January of 2008, Scheels had deleted his emails and data on the computer he had used at work. Cartwright says this left him unable to impeach the testimony of assistant manager Carri Blockyou and deprived him of evidence that he was well-regarded by his co-workers up until the day he was fired. Citing Oliver v. Stimson Lumber Co., 1999 MT 328, ¶¶ 31-32, 297 Mont. 336, 993 P.2d 11, as authority for parties’ legal duty to preserve evidence that could possibly be relevant at trial, Cartwright asked the District Court to grant him default judgment as a 8 sanction for Scheels’ destruction of those electronic records, which he contended constituted discovery abuse. ¶26 Scheels’ response to Cartwright’s motion for sanctions included an affidavit signed by Ben Nichols, Scheels’ lead System Administrator. Nichols averred that Scheels’ standard practice is to deactivate a terminated employee’s electronic accounts upon notice of termination, so that the terminated employee will not have access to his or her accounts. Nichols further averred that, when Scheels’ Information Services Department is notified that an employee has been terminated, the employee’s email account is deleted and the employee’s emails are placed into a queue for at least 30 days, after which time they are destroyed. Any information left by a terminated employee on a desktop computer is eventually deleted when more room is needed on the computer for other uses. In Cartwright’s case, his emails were discarded before January of 2008, in compliance with Scheels’ standard practice. ¶27 The District Court denied Cartwright’s request for a sanction of default judgment. Although the court allowed that Cartwright may have been prejudiced by the destruction of the email and word processing documents, it determined that alone was not sufficient to impose a sanction of default judgment. The court found that the fact of the pending administrative proceeding for unemployment benefits during the fall of 2007 was not enough to put Scheels on notice that Cartwright’s files would become relevant to a civil proceeding (this one) that had not yet been filed. The court further found that Scheels did not actively conceal evidence from Cartwright, but that it failed to retain the records pursuant to a pre-existing policy. Finally, the court noted that Cartwright had not alleged 9 that the emails or documents which were deleted contained any “smoking gun” that would show Scheels’ “actual” reasons for Cartwright’s termination. ¶28 Cartwright has not made any showing of an attempt to conceal evidence or of bad faith when his electronic files were destroyed. Instead, the evidence was that the records were discarded pursuant to Scheels’ pre-existing and routine practice and that Scheels had no knowledge of potential litigation prior to destruction. Further, numerous trial witnesses testified to the subject that Cartwright has indicated would be shown in the electronic records: that he generally got along well with other employees at the store. ¶29 We hold that the District Court did not err when it declined to sanction Scheels for discovery abuse and destruction of evidence. ISSUE 3 ¶30 Did the court err when it failed to allow Cartwright to amend the pleadings to add a claim for punitive damages under § 39-2-905(2), MCA? ¶31 Grant or denial of a motion to amend a pleading is a discretionary ruling that we review for abuse of discretion. Denton v. First Interstate Bank of Commerce, 2006 MT 193, ¶ 17, 333 Mont. 169, 142 P.3d 797. ¶32 Under his proposed amendment to the pleadings, Cartwright would have added a claim that Scheels’ violation of his right to privacy under the Montana and United States Constitutions—as alleged in another of his claims against Scheels—justified an award of punitive damages under § 39-2-905(2), MCA. That provision of the WDEA allows a terminated employee to recover punitive damages otherwise allowed by law “if it is established by clear and convincing evidence that the employer engaged in actual fraud 10 or actual malice in the discharge of the employee in violation of § 39-2-904(1)(a), MCA,” which, in turn, prohibits discharge “in retaliation for the employee’s refusal to violate public policy.” ¶33 The District Court denied the motion to amend the pleadings. It reasoned that, in its rulings on the various motions for summary judgment, it already had rejected Cartwright’s claim that his discharge was in retaliation for his refusal to violate public policy. As a result, the court concluded it already had foreclosed the possibility of Cartwright recovering punitive damages. ¶34 We agree with the District Court. In its summary judgment order, the court had observed that § 39-2-903(7), MCA, defines “public policy” for purposes of the WDEA very narrowly, as “a policy in effect at the time of the discharge concerning the public health, safety, or welfare established by constitutional provision, statute, or administrative rule.” The court stated Cartwright had failed to address this statute, and that there was no indication Cartwright was invoking a policy concerning “the public health, safety, or welfare.” Accordingly, the court denied Cartwright’s motion for summary judgment and granted Scheels summary judgment on violation of § 39-2-904(1)(a), MCA. ¶35 Inasmuch as Cartwright’s claim for punitive damages would have been based on his claim that he was terminated as a result of his refusal to violate public policy, the District Court was correct that its order granting Scheels summary judgment on the violation of public policy claim foreclosed the possibility of Cartwright recovering punitive damages. We hold that the District Court did not abuse its discretion when it denied Cartwright’s motion to amend the pleadings. 11 ISSUE 4 ¶36 Did the court erroneously allow Scheels’ expert witness to testify as to ultimate issues of fact and law, invading the province of the jury? ¶37 Trial courts are vested with great latitude in ruling on the admissibility of expert testimony. Nelson v. Nelson, 2005 MT 263, ¶ 31, 329 Mont. 85, 122 P.3d 1196. We review a district court’s rulings on the admissibility of expert testimony for abuse of discretion. Weber v. BNSF Ry. Co., 2011 MT 223, ¶ 18, 362 Mont. 53, 261 P.3d 984. ¶38 Before trial, Cartwright moved in limine to exclude the testimony of Scheels’ human resource management expert, Linda Brown, on grounds that her opinions encompassed the ultimate facts and law. The District Court denied that motion. Specifically, in response to Cartwright’s argument that Brown should not be allowed to testify to whether Cartwright’s fellow assistant managers believed him to be truthful, the court ruled that the expected testimony would not speak to Cartwright’s propensity to tell the truth but, rather, to the perception of his credibility by the other assistant managers and by Scheels’ management. ¶39 At trial, Cartwright objected to portions of Brown’s testimony, claiming that testimony invaded the province of the jury. Specifically, he objected to the following testimony on direct examination of Brown: Q. Should those actions at that September 1st meeting have affected in any way the ultimate determination by Scheels? [CARTWRIGHT’S COUNSEL]: Objection, Your Honor; this is speculation. It goes beyond the expertise of the witness, and it answers the question for the jury. It invades province. THE COURT: Overruled. THE WITNESS: Well, I think it is very much related to some of the human resource practice that I get involved in, sadly, frequently, where that 12 unprofessional, inappropriate exchange with your boss, the president, that’s got to impact your judgment about that person’s continued leadership ability. Seeing that interaction that challenged the authority first of all, of your immediate manager, but then to me as the president, I mean, I’m putting myself in his shoes, and certainly that kind of anger, the profanity, those are all inappropriate behaviors. And in this case specifically behaviors that were identified in the Scheels policy manual that would be prohibited. So that had to—they had to apply their policies. Q. Would termination under these circumstances be consistent with generally accepted human resource practice? A. My— [CARTWRIGHT’S COUNSEL]: Objection, Your Honor; invades the province of the jury. THE COURT: Overruled. THE WITNESS: In my 30 some years in this profession, any—I’ve been thinking about this—any time that I have been involved in a situation where there has been that kind of insubordination, and I think this was an egregious example of insubordination, I’ve seen employees lose their jobs for less, it would be considered an appropriate response to terminate someone. ¶40 M. R. Evid. 702 provides that an expert who has specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue may testify in the form of an opinion or otherwise. M. R. Evid. 704 goes on to state that testimony in the form of an opinion otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. “However, those rules have limitations pursuant to case law,” says Cartwright. ¶41 Citing State v. Harris, 247 Mont. 405, 808 P.2d 453 (1991), Cartwright points out that an expert witness may not offer a determination of who is credible or truthful. He quotes a portion of Brown’s testimony in which she stated Cartwright had lost credibility with his coworkers after he repeatedly denied information J. had shared willingly with coworkers. This is the same line of argument Cartwright presented in his pretrial motion 13 in limine. He has not now cited to any trial testimony in which Brown offered an opinion on the credibility of any witness’ trial testimony. Rather, the testimony in question goes to the opinions of Cartwright’s co-workers, at the time of his discharge, regarding his credibility with them. ¶42 Cartwright also relies on Kizer v. Semitool, 251 Mont. 199, 824 P.2d 229 (1991), and Heltborg v. Modern Mach., 244 Mont. 24, 795 P.2d 954 (1990). His reliance on those cases is misplaced. In both Kizer and Heltborg, expert witnesses offered legal conclusions that the employers violated the implied covenant of good faith and fair dealing—the very issue to be decided by the juries—and we concluded that testimony was inadmissible. Kizer, 251 Mont. at 207, 824 P.2d at 233; Heltborg, 244 Mont. at 32-33, 795 P.2d at 959. Cartwright has pointed to no testimony offering a similar legal conclusion by expert witness Brown on the ultimate question presented to the jury in this case—whether Scheels terminated him without good cause. ¶43 Finally, Cartwright cites Young v. Horton, 259 Mont. 34, 855 P.2d 502 (1993), for the proposition that an expert may not invade the province of the jury by stating opinions that go to an ultimate issue of fact. But in Perdue v Gagnon Farms, Inc., 2003 MT 47, ¶ 28, 314 Mont. 303, 65 P.3d 570, we recognized that “an expert witness may properly testify as to an ultimate issue of fact.” What an expert cannot do is to render a legal conclusion or improperly apply the law to the facts. Perdue, ¶ 28. ¶44 Brown did not testify as to ultimate issues of law. Her testimony did not track the legal elements of wrongful discharge set forth at § 39-2-904, MCA. Cartwright’s briefs fail to point out any portion of the WDEA to which Brown testified. She did not offer an 14 opinion on whether Scheels had good cause for discharging Cartwright. Instead, the questions posed to Brown by Scheels’ counsel focused on Brown’s expert assessment of Werner’s and Cartwright’s actions in the context of accepted human resource practices. ¶45 We conclude Cartwright has failed to establish that Brown’s testimony constituted impermissible credibility determinations of witnesses regarding disputed facts, or improper or inadmissible legal conclusions. We hold that the District Court did not abuse its discretion by allowing Brown to testify as she did. ISSUE 5 ¶46 Did the court err in allowing witnesses to testify to rumors heard at Scheels about Cartwright? ¶47 A district court has broad discretion in determining whether evidence is relevant and admissible. Nelson, ¶ 31. We review rulings on evidentiary matters, including motions in limine, for abuse of discretion. Malcolm v. Evenflo Co., 2009 MT 285, ¶ 29, 352 Mont. 325, 217 P.3d 514. ¶48 Cartwright points out that M. R. Evid. 802 disallows the use of hearsay testimony, except as otherwise provided by statute or rule. Without identifying specific testimony to which he objects, he argues that his co-employees should not have been allowed to testify to the substance of specific rumors they heard about him. In the face of Scheels’ response that he failed to object to all such testimony at trial, he maintains this issue was preserved by his filing of a motion in limine on this subject prior to trial. ¶49 In denying Cartwright’s motion in limine, the District Court stated the motion could not be granted without knowing the specific testimony at issue; therefore, the 15 proper way to handle the matter would be through objections at trial. The court further stated that evidence concerning Cartwright’s conduct leading to the assistant managers’ loss of trust in him would be critical to Scheels’ defense of its termination decision. ¶50 A statement does not fit within the definition of hearsay if it is not offered to prove the truth of the matter asserted, but is offered instead to show the statement’s effect on the witness’ state of mind at the time the witness heard the statement. Murray v. Talmage, 2006 MT 340, ¶ 13, 335 Mont. 155, 151 P.3d 49; Moats Trucking Co. v. Gallatin Dairies, Inc., 231 Mont. 474, 479, 753 P.2d 883, 886 (1988). Our review of the transcript convinces us that the testimony of Cartwright’s co-workers regarding workplace rumors was not offered to prove that a sexual triangle including Cartwright existed, or that the rumors were true. Rather, that testimony was offered to show the effect the rumors had on the listeners and on Scheels’ workplace and business. For example, Scheels assistant manager Sarah Lawson testified that the rumors that were circulating caused her to feel a division between those who knew and those who did not know of the “fling.” Assistant manager Colin Pearson testified that those aware of the romantic triangle did not know who to trust or who to talk to, and that they spent a lot of time with rumors instead of doing their jobs. This testimony provided context for the concerns and actions on the part of Scheels’ management that followed. ¶51 We hold that Cartwright has not demonstrated any instances in which the District Court abused its discretion in admitting the testimony of witnesses as to rumors they heard at Scheels about Cartwright. CONCLUSION 16 ¶52 Cartwright has failed to establish error by the District Court under any of the issues he has raised on appeal. The judgment entered by the District Court is affirmed. /S/ LAURIE McKINNON We Concur: /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ JIM RICE /S/ BRIAN MORRIS | June 18, 2013 |
6e320795-d1d8-41da-90e3-9f73d961e526 | State v. Bonck | 2013 MT 205N | DA 11-0734 | Montana | Montana Supreme Court | DA 11-0734 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 205N STATE OF MONTANA, Plaintiff and Appellee, v. LUCIEN SIDNEY BONCK, III, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 09-0014 Honorable Gregory R. Todd, Presiding Judge COUNSEL OF RECORD: For Appellant: Matthew J. Wald, Wald Law Office, PLLC, Hardin, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana Scott Twito, Yellowstone County Attorney, Ann-Marie McKittrick, Juli Pierce, Deputy County Attorneys, Billings, Montana Submitted on Briefs: June 12, 2013 Decided: July 23, 2013 Filed: __________________________________________ Clerk July 23 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Lucien Sidney Bonck, III (Bonck) appeals from his conviction on three felony counts of sexual intercourse without consent, three felony counts of sexual assault, and one felony count of witness tampering, following a jury trial in Montana’s Thirteenth Judicial District Court, Yellowstone County. We affirm the District Court. ¶3 On January 8, 2009, the State brought charges against Bonck after a school counselor informed the Billings Police Department that a student had reported that Bonck had done inappropriate things to her. The student, C.B., reported three instances that occurred in 2002 when C.B. was seven years old where Bonck inserted his penis into her mouth and touched her vagina. A four-day jury trial was held from January 31 to February 3, 2011. The jury returned a guilty verdict on all counts. The District Court sentenced Bonck to life in prison without parole. ¶4 Bonck raises three issues on appeal. First, Bonck argues that he was denied the right to an impartial jury because a juror knew one of the prosecutors and failed to disclose this fact until the second day of trial. Deputy Yellowstone County Attorneys Ann-Marie McKittrick and Juli Pierce prosecuted Bonck’s case. On the second day of trial, Pierce informed Judge Todd in chambers that she knew one of the jurors and the 3 juror did not seem to recognize her and did not bring it up during the jury selection process. Pierce knew the juror’s daughter during high school and had seen him once in the last twelve years. In response, Bonck stated “I sure wouldn’t want him on as a juror.” Bonck’s counsel offered to conduct additional voir dire in chambers. ¶5 The juror was called into chambers. Pierce questioned the juror and the juror stated that he could be fair and impartial even in light of Pierce’s relationship with his daughter. Bonck’s counsel asked the juror why he failed to disclose his relationship to Pierce during voir dire. The juror responded, and the record confirms, that when McKittrick conducted the voir dire, she introduced Pierce but then asked the jurors only about whether they knew her, not whether they knew Pierce. After questioning the juror, Bonck’s counsel stated that he was satisfied and did not object to the juror remaining on the jury. This Court has consistently refused to put a district court in error for a ruling or procedure in which the appellant acquiesced, participated, or to which appellant made no objection. State v. Daniels, 2011 MT 278, ¶ 36, 362 Mont. 426, 265 P.3d 623; State v. English, 2006 MT 177, ¶ 71, 333 Mont. 23, 140 P.3d 454. By failing to object to the juror’s continued participation in the trial, Bonck failed to properly preserve his claim that his constitutional right to an impartial jury was violated. ¶6 In the alternative, Bonck argues that his counsel rendered ineffective assistance by not properly questioning or challenging the juror. The record demonstrates that Bonck’s counsel explored the relationship between the juror and the prosecutor, questioned the juror as to why he did not previously mention his connection to the prosecutor, and requested assurances that the juror could act impartially when hearing the case. When, as 4 here, a juror’s nondisclosure does not amount to intentional concealment and no further evidence of bias exists, there are no grounds for reversal. See State v. Rennaker, 2007 MT 10, ¶ 35, 335 Mont. 274, 150 P.3d 960; State v. Dunfee, 2005 MT 147, ¶ 16, 327 Mont. 335, 114 P.3d 217. Accordingly, we dismiss Bonck’s ineffective assistance of counsel claims with prejudice. ¶7 Second, Bonck asserts that the District Court erred by admitting evidence that Bonck sexually assaulted a young girl other than the named victim. Generally, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” M. R. Evid. 404(b). “It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” M. R. Evid. 404(b). ¶8 Prior to trial, the State filed a Notice of Intention to Use Evidence of Other Crimes, Wrongs, or Acts, as was required by State v. Just, 184 Mont. 262, 602 P.2d 957 (1979) and State v. Matt, 249 Mont. 136, 814 P.2d 52 (1991). The State sought to introduce evidence from nine other instances of child molestation involving Bonck dating back to 1981. Bonck objected. The District Court applied the four-prong, modified Just test and determined that evidence relating to K.M. and L.C. was admissible because it was sufficiently similar to the acts alleged by C.B., was not too remote in time, was offered for the purpose of demonstrating a common scheme, intent, or motive, and the probative value of the evidence outweighed the risk of prejudice to Bonck. The Court rejected the State’s request to introduce evidence from the other encounters. 5 ¶9 Both L.C. and K.M. testified at trial. After L.C. testified, Bonck realized that the District Court failed to read a limiting instruction prior to allowing the testimony. The District Court immediately read the limiting instruction to the jury, and repeated the limiting instruction before K.M. testified. Bonck moved for a mistrial based on the timing of the limiting instruction. Bonck also objected to the evidence on the basis that the conduct described by the witness was not similar enough to the charged acts to be admissible under the modified Just test set forth in Matt. The District Court denied Bonck’s request for a mistrial and overruled Bonck’s objection to the testimony because Just and Matt had been recently overruled by State v. Eighteenth Jud. Dist. Ct., 2010 MT 263, ¶ 56, 358 Mont. 325, 246 P.3d 415. ¶10 Bonck argues that the District Court’s failure to hold a pretrial hearing concerning the admission of the Rule 404(b) testimony violated his right to confront the witnesses against him. In Eighteenth Jud. Dist. Ct., we noted that a district court “should conduct a hearing and issue a written decision with appropriate findings of fact and conclusions of law.” Eighteenth Jud. Dist. Ct., ¶ 49. However, the District Court ruled on this matter before Eighteenth Jud. Dist. Ct. was decided. Moreover, Bonck never requested a hearing, did not object on the ground that no hearing was held, and failed to request reconsideration following this Court’s decision in Eighteenth Jud. Dist. Ct. Finally, Bonck failed to demonstrate that the proffered evidence was not relevant for the purpose of showing a plan or common scheme, motive or intent. Therefore, the District Court did not abuse its discretion in admitting the testimony and evidence pursuant to Rule 404(b). 6 ¶11 Next, Bonck argues that the District Court’s failure to provide the limiting instruction before L.C. testified constitutes reversible error. Bonck did not request that the District Court provide the limiting instruction before L.C. testified, and Bonck failed to demonstrate prejudice in light of the District Court’s issuance of the limiting instruction directly following the testimony. See State v. Stroud, 210 Mont. 58, 72-73, 683 P.2d 459, 466-67 (1984). ¶12 Third, Bonck contends that the District Court erred by concluding that Bonck’s speedy trial rights were not violated. On January 21, 2011, the District Court held a hearing on Bonck’s motion to dismiss for violation of his speedy trial rights. The District Court analyzed Bonck’s speedy trial claim by examining and balancing the following four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the accused’s responses to the delay; and (4) prejudice to the accused as a result of the delay. State v. Couture, 2010 MT 201, ¶ 46, 357 Mont. 398, 240 P.3d 987; State v. Ariegwe, 2007 MT 204, ¶¶ 106-112, 338 Mont. 442, 167 P.3d 815. The District Court orally denied Bonck’s motion to dismiss after determining that even if it was to accept that 347 days of delay were attributable to the State, Bonck failed to provide any evidence that he was prejudiced by the delay, especially in light of Bonck’s multiple motions to continue, and his waiver of speedy trial rights throughout the proceeding. ¶13 Though the 200-day trigger for a speedy trial analysis was clearly met and the presumption of prejudice increases with time, when the reasons for the delay are considered and balanced against the remaining factors, we agree with the District Court’s denial of Bonck’s motion to dismiss. Bonck asserted that he suffered anxiety and 7 depression due to the delay, but the State points out that Bonck’s symptoms were more likely due to other factors in his life. Furthermore, Bonck failed to cogently demonstrate that the delays caused any prejudice to his defense. As such, we affirm the District Court’s denial of Bonck’s motion to dismiss for violation of his speedy trial rights. ¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. With respect to the issues in this case involving judicial discretion, the District Court clearly did not abuse its discretion. The District Court’s factual findings are supported by substantial evidence and the legal issues in this case are controlled by settled Montana law, which the District Court correctly interpreted. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON /S/ JIM RICE | July 23, 2013 |
90df574f-42db-4405-9503-7c8640c917d5 | Plaintiff v. Defendant | 2013 MT 197N | DA 12-0674 | Montana | Montana Supreme Court | DA 12-0674 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 197N CITY OF LAUREL, Plaintiff and Appellee, v. DENNIS LINN HOWSON, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 12-0453 Honorable Gregory R. Todd, Presiding Judge COUNSEL OF RECORD: For Appellant: Benjamin J. LaBeau, Labeau Law Firm, LLC, Billings, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Tammy K Plubell, Assistant Attorney General, Helena, Montana Matt Wilcox, Laurel City Attorney, Laurel, Montana Submitted on Briefs: May 29, 2013 Decided: July 16, 2013 Filed: __________________________________________ Clerk July 16 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Dennis Linn Howson (Howson) appeals from the District Court’s order affirming the Justice Court’s denial of his motion to dismiss or, alternatively, to suppress evidence. The issue on appeal is whether the District Court correctly concluded that the police officer had a particularized suspicion that Howson was committing an offense before he had stopped Howson. We affirm. ¶3 On the evening of December 14, 2011, just before 9:00 p.m., a Laurel police officer observed Howson traveling between 21 and 25 miles per hour on East Main Street in Laurel; the speed limit was 45 miles per hour. The officer followed Howson and, after watching him cross over the center line while maneuvering through a curve, the officer pulled Howson over to conduct an investigatory stop. After investigating further, the officer arrested Howson for driving under the influence of alcohol. ¶4 Howson was charged in the Laurel Municipal Court, which is not a court of record, with driving under the influence of alcohol, having an open container in his vehicle, and violating the minimum speed regulation. On February 28, 2012, Howson filed a motion to dismiss or, alternatively, to suppress evidence. Howson argued in his motion that the officer 3 lacked a particularized suspicion to conduct an investigative stop and that the stop was, therefore, illegal. The Municipal Court denied Howson’s motion on June 1, 2012. ¶5 After the Municipal Court denied Howson’s motion, in accordance with a plea agreement, Howson pleaded guilty to misdemeanor DUI. Pursuant to the plea agreement, the other charges were dismissed and Howson reserved his right to appeal the denial of his motion. Howson appealed to the District Court, and the District Court affirmed the Municipal Court’s denial of Howson’s motion. The District Court found that the officer had pulled Howson over because of his slow speed and inability to maintain his lane of traffic. Based on all of the circumstances, the District Court concluded that the officer had the requisite particularized suspicion to justify an investigatory stop. Howson now appeals from the District Court order. ¶6 Howson argues that his slow speed did not give the officer a particularized suspicion because the speed limit on East Main Street changes from 45 miles per hour to 25 miles per hour and because no traffic built up behind him. He also argues that his inability to stay within his lane of traffic did not give the officer a particularized suspicion because he crossed over the centerline at a section of the road where most drivers navigate the curve by driving onto the yellow line of the turn lane. ¶7 A police officer may conduct an investigative stop to determine whether to arrest a person if the officer has a particularized suspicion that the person has committed, is committing, or is about to commit a crime. Section 46-5-401(1), MCA. To prove that the officer had a sufficient particularized suspicion to stop a vehicle, the State must show (1) 4 objective data from which an experienced officer can make certain inferences; and (2) a resulting suspicion that the vehicle’s occupant is or has been engaged in wrongdoing. State v. Reynolds, 272 Mont. 46, 50, 899 P.2d 540, 542 (1995). ¶8 Whether a particularized suspicion existed is based on the objective quantity, content, and reliability of information available to the officer. State v. Flynn, 2011 MT 48, ¶ 11, 359 Mont. 376, 251 P.3d 143. A defendant’s after-the-fact explanation of conduct that objectively appeared suspicious may affect his or her ultimate liability for a charged offense, but it has no bearing on whether the officer possessed a particularized suspicion to justify a stop. Flynn, ¶¶ 11-12. The officer does not have to consider every possible innocent explanation before concluding that particularized suspicion exists. Flynn, ¶ 11. ¶9 Howson’s after-the-fact explanation of his objectively suspicious behavior has no bearing on whether the officer had a particularized suspicion when he conducted the investigatory stop. The District Court found that the officer pulled Howson over because of his slow speed and inability to stay within his lane of traffic. That objective data was sufficient to give an experienced officer a resulting suspicion that Howson was engaged in wrongdoing. The District Court correctly concluded that the officer had a particularized suspicion sufficient to justify an investigative stop. ¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2006, which provides for memorandum opinions. The issues are clearly controlled by settled Montana law. We find no reason in fact or law to disturb the District Court’s order. 5 ¶11 Affirmed. /S/ MIKE McGRATH We concur: /S/ BRIAN MORRIS /S/ BETH BAKER /S/ LAURIE McKINNON /S/ JIM RICE | July 16, 2013 |
8df9372d-b47f-47e6-9a51-fc52f3c4ce23 | Estate of Bjornrud | 2013 MT 178N | DA 12-0473 | Montana | Montana Supreme Court | DA 12-0473 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 178N THE ESTATE OF VICTOR N. BJORNRUD, Deceased, Plaintiff and Appellant, v. WANITA COSTELLO, STELLA SHARP, SUE VAN BEMMEL, ERVIN OSLER, MIKE OSLER, LOREN OSLER, DENNIS OSLER, VIRGINIA OSLER PAYNE, ROY BJORNRUD, ALBERT BJORNRUD AND DORTHY BJORNRUD BATES, BEING THE LIVING HEIRS OF EMANUEL AND CARRIE BJORNRUD, Defendants and Appellees. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV 00-635B Honorable Katherine R. Curtis, Presiding Judge COUNSEL OF RECORD: For Appellant: Richard De Jana, Richard De Jana & Associates, PLLC, Kalispell, MT For Appellees: Thomas T. Tornow, Thomas T. Tornow, P.C., Whitefish, MT Submitted on Briefs: May 29, 2013 Decided: July 2, 2013 Filed: __________________________________________ Clerk July 2 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 This case arises from a dispute over the interests in a parcel of real property that is titled to Emanuel Bjornrud. Emanuel died intestate in 1927, survived by his wife Carrie and four children. Carrie died intestate in 1948. Victor Bjornrud was one of the children of Emanuel and Carrie. He continued to live on the property after his mother’s death and farmed the property until his death in 1999. In 2000 Victor’s Estate brought this proceeding to quiet title to the real property, against the “known successors in interest to Emanuel and Carrie Bjornrud.” The Estate claimed that Victor acquired sole title to the property through adverse possession, and that the interests of all claimants had been released. ¶3 The District Court determined that upon Emanuel’s death in 1927 the property passed by intestate succession, one-third to his wife Carrie and two-thirds equally to their four children. Those interests continued to pass either by release or by intestate succession in the intervening years. The District Court found that a 1958 release conveyed to Victor the interests of all heirs to the property, except for the interest of Wanita. That determination has not been appealed. ¶4 The District Court held two days of trial without a jury, ruled on motions for summary judgment, and received briefs and proposed findings from the parties. The District Court issued Findings of Fact, Conclusions of Law and Order in May 2012, rejecting the claim of 3 Victor’s Estate that he owned the property outright based upon adverse possession. The District Court then divided the interests in the property into 72nds, distributing 14.665/72 collectively to the appellees in this case, representing their intestate share that passed from Emanuel. While the lion’s share of the property was awarded to Victor, the Estate nevertheless appeals. ¶5 The Estate contends that the District Court erred in denying summary judgment to the Estate; erred in allowing the defendants to adopt a different position during summary judgment proceedings from that taken in their initial pleadings; erred in refusing to allow Stella to explain why the 1958 release was signed; and erred in “selectively” considering the evidence. Upon review of the record and the arguments of the parties, it is clear that the District Court did not err in its Findings of Fact, Conclusions of Law and Order. The District Court considered the evidence and arguments of the parties, carefully tracing the ownership interests of the many heirs since Emanuel’s death in 1927. We further conclude that the District Court properly applied the applicable law as it existed at the time of the deaths of Emanuel and Carrie and that it did not improperly limit the testimony of Stella Sharp. ¶6 This Court does not disturb the factual findings of the district court unless they are clearly erroneous. Varano v. Hicks, 2012 MT 195, ¶ 7, 336 Mont. 171, 285 P.3d 592. A district court possesses broad discretion when it determines the admissibility of evidence. McEwen v. MCR, 2012 MT 319, ¶ 16, 368 Mont. 38, 291 P.3d 1253. The District Court’s findings were not clearly erroneous and it did not abuse its discretion in admitting or evaluating the evidence. The District Court properly concluded that Victor had not 4 established adverse title to the property. Y A Bar Livestock Co. v. Harkness, 269 Mont. 239, 887 P.2d 1211 (1994). ¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for memorandum opinions. The District Court’s findings of fact are supported by substantial evidence and the legal issues are controlled by settled Montana law, which the District Court correctly interpreted. ¶8 Affirmed. /S/ MIKE McGRATH We concur: /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ JIM RICE | July 2, 2013 |
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