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20d26726-c900-4ded-a228-713d95c7ab1f | White v. State ex rel. Mont. State Fund | 2013 MT 187 | DA 12-0216 | Montana | Montana Supreme Court | DA 12-0216 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 187 KIRK WHITE, Plaintiff and Appellant, v. STATE OF MONTANA, by and through MONTANA STATE FUND, DAY & ASSOCIATES, INC. Defendant and Appellee. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV 10-521A Honorable Holly Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Lucas J. Foust; Foust Law Office, P.C.; Bozeman, Montana For Appellee: W. Anderson Forsythe; Moulton Bellingham PC; Billings, Montana Submitted on Briefs: March 27, 2013 Decided: July 12, 2013 Filed: __________________________________________ Clerk July 12 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Kirk White appeals a judgment entered by the Montana Eighteenth Judicial District Court, Gallatin County, dismissing his complaint on the merits and ordering that judgment be entered in favor of the Montana State Fund. We affirm. ¶2 We consider the following issues on appeal: ¶3 1. Did the District Court err in granting the State Fund’s motion to dismiss White’s claims under Montana’s Insurance Code? ¶4 2. Did the District Court err in granting the State Fund’s motion for summary judgment regarding White’s common law claims? PROCEDURAL AND FACTUAL BACKGROUND ¶5 Kirk White injured his shoulder when he fell through a deck while working at a construction site. White’s employer, Trademark Construction, was insured by the Montana State Fund (State Fund). In October 2006, White reported his injury to the State Fund, which processed his workers’ compensation claim and assigned it to Ann Boland, a claims examiner. Three days later, the State Fund sent White a letter stating, in part: If you receive benefits, you must notify Montana State Fund immediately if you return to any gainful employment. Any receipt of benefits or an attempt to obtain benefits you are not entitled to for this claim, may result in legal action or criminal prosecution. ¶6 In February 2008, the State Fund accepted liability for White’s claim after he sought medical treatment. Boland notified White by sending him a letter, which also stated: 3 It’s important to keep me updated with your plans for returning to work. If you return to gainful employment without Montana State Fund’s knowledge and continue to receive temporary total disability, permanent total disability, or rehab benefits, you may be subject to legal action or criminal prosecution. The State Fund ultimately paid for White’s two shoulder surgeries and made bi-weekly payments of $981.08 in temporary total disability benefits. ¶7 In August of 2008, Boland received an anonymous tip on the State Fund’s hotline that White was building and selling furniture out of his home, even though he still was receiving temporary total disability benefits. Boland forwarded the tip to the State Fund’s Fraud Detection and Prevention Unit. ¶8 Tom Disburg, a fraud coordinator for the State Fund, previously had received a tip that White was selling furniture out of his home. After Disburg learned that Boland had received a similar tip, he hired Day & Associates, a private investigative firm, to determine whether White was receiving remuneration in addition to the benefits provided by the State Fund. ¶9 Bob Harris, a private investigator for Day & Associates, visited with White outside of White’s home and introduced himself under the pseudonym “Dan Snyder.” Harris asked how much it would cost for White to make a yard swing similar to the one in White’s front yard. White replied he was unsure of the cost; he also showed Harris dressers he was constructing in his garage and various items in his house he had made. Before Harris left, he asked White to write down his number so that he could get in touch about the yard swing. About a month later, Harris called White and asked him to build 4 him a cedar chest. White told Harris he could build the chest for $650, with half of that amount due up front, and that it would take at least a month to complete because he had other projects to finish. Harris agreed, paid White, and White gave him a hand-written receipt reflecting the terms of the agreement. ¶10 After Harris placed his order, Disburg referred the investigation to the Montana Department of Justice, pursuant to § 39-71-211(1), MCA, and asked that agency to “[p]lease complete the investigation and prepare for possible prosecution.” One month later, Harris traveled to White’s house to pay for and pick up the cedar chest. Harris was accompanied by Gaylen Buchanan, a State Fund fraud investigator. When they arrived, White showed Harris and Buchanan three cedar chests he had completed, as well as three chests not yet finished; he invited Harris to choose a completed chest. Harris gave White the outstanding $325 and White provided Harris with a formal receipt from a receipt book. After they left with the chest, Buchanan wrote a report that detailed what had happened, which concluded the State Fund’s portion of the investigation. ¶11 Based on information provided by the State Fund, the Department of Justice Division of Criminal Investigation (DCI) applied for a warrant to search White’s home. Montana First Judicial District Court Judge Dorothy McCarter signed the warrant and three DCI agents, as well as local law enforcement, searched White’s home in December 2008. The DCI agents seized a receipt book that reflected sales White had made and other paperwork. These documents established that, while receiving temporary total disability benefits, White sold the chest to Harris for $650, he sold a bench to his physical 5 therapist for $350, and he received a vacuum cleaner worth $899.99 in exchange for working at a vacuum cleaner store. ¶12 The DCI agents provided the fruits of the search to Assistant Attorney General Deborah Butler. Butler determined that, based on her review of the materials seized by DCI and those provided by the State Fund, probable cause existed to file charges. First Judicial District Court Judge Kathy Seeley granted Butler’s motion to file an information and, on March 3, 2009, Butler filed an information charging White with theft, a felony, in violation of § 45-6-301(5)(b), MCA. The information stated that White “failed to disclose to the State Fund that while on temporary work restriction, he built and sold furniture and worked in a retail store in exchange for remuneration, while also receiving approximately $2,242 in temporary total disability benefits from [the] State Fund.” White was tried on charges of theft in Lewis and Clark County and a jury found him not guilty in January 2010. ¶13 The State Fund terminated White’s temporary total disability benefits shortly after the DCI searched his home. In March 2010, two months after he was acquitted, White and the State Fund settled White’s workers’ compensation claim for a lump sum payment of $32,500. ¶14 White filed suit against the State Fund and its private investigators, Day & Associates, in May 2010. In his amended complaint, White alleged that the defendants violated eight sections of Montana’s Insurance Code regarding unfair claim settlement practices. He also pleaded a variety of common law causes of action, including bad faith, 6 malicious prosecution, negligent infliction of emotional distress, and intentional infliction of emotional distress. The District Court granted the State Fund’s motion to dismiss Counts One through Eight of White’s complaint for failure to state a claim pursuant to M. R. Civ. P. 12(b)(6), as well as the State Fund’s and Day and Associates’ motions for summary judgment on the remaining counts in the complaint. White appeals only the District Court’s rulings in favor of the State Fund. STANDARD OF REVIEW ¶15 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). Ming Da Situ v. Smole, 2013 MT 33, ¶ 11, 369 Mont. 1, ___ P.3d ___. We accept as true the complaint’s factual allegations and, when evaluating the motion, we consider the complaint in the “light most favorable” to the plaintiff. Tally Bissell Neighbors, Inc. v. Eyrie Shotgun Ranch, LLC., 2010 MT 63, ¶ 15, 355 Mont. 387, 228 P.3d 1134. A district court should not dismiss a complaint for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” McKinnon v. Western Sugar Coop. Corp., 2010 MT 24, ¶ 12, 355 Mont. 120, 225 P.3d 1221. The district court’s determination that a complaint failed to state a claim presents a conclusion of law, which we review for correctness. McKinnon, ¶ 12. ¶16 We review a district court’s ruling on motions for summary judgment de novo, applying the same M. R. Civ. P. 56(c) criteria as applied by the district court. Turner v. Wells Fargo Bank, N.A., 2012 MT 213, ¶ 11, 366 Mont. 285, 291 P.3d 1082 (citing 7 Ternes v. State Farm Fire & Cas. Co., 2011 MT 156, ¶ 18, 361 Mont. 129, 257 P.3d 352). Summary judgment is appropriate only when the moving party demonstrates both the absence of any genuine issue of material fact and entitlement to judgment as a matter of law. Turner, ¶ 11. A district court’s conclusion that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law is a legal conclusion we review for correctness. Turner, ¶ 11. DISCUSSION ¶17 Issue One: Did the District Court err in granting the State Fund’s motion to dismiss White’s claims under Montana’s Insurance Code? ¶18 Counts One through Eight of White’s complaint were based on provisions of Montana’s Insurance Code contained in § 33-18-201, MCA. The State Fund, in its motion to dismiss, argued that those eight counts failed as a matter of law because Title 33 of the Montana Code Annotated “explicitly does not apply to the State Fund,” as stated in § 33-1-102(5), MCA. In his response, White conceded that although “a plain reading of the statute would lead one to believe that [Title 33] does not apply to the Montana State Fund,” the legislative history of the statute indicates the Legislature did not intend for that result. ¶19 The District Court rejected White’s argument. It concluded that the statutes invoked in White’s complaint do not apply to the State Fund because the plain language of § 33-1-102(5), MCA, “clearly excludes the State Fund from application of the Insurance Code[.]” Section 33-1-102(5), MCA, states that “[t]his [Insurance Code] does 8 not apply to workers’ compensation insurance programs provided for in Title 39, chapter 71, parts 21 and 23, and related sections,” i.e., the Montana State Fund. The District Court noted this Court’s holding that “the only interpretation possible given the plain language of” this statute is that “the provisions of Title 33 [do] not apply to workers’ compensation cases involving coverage provided by the State Fund.” Heisler v. Hines Motor Co., 282 Mont. 270, 278, 937 P.2d 45, 49 (1997). ¶20 On appeal, White argues that the District Court erred by failing to consider the first eight counts of his complaint because “regardless of whether the Montana State Fund was required to comply with Title 33, it still had a duty to comply with the standards set out in 33-18-201, MCA,” and failure to do so constituted bad faith. White’s argument conflicts with the plain language of § 33-1-102(5), MCA, and with our holding in Heisler. White cannot graft the provisions of § 33-18-201, MCA, onto a common-law bad faith claim, which is “an actionable tort independent of the insurance code.” Birkenbuel v. Mont. St. Compen. Ins. Fund, 212 Mont. 139, 143, 687 P.2d 700, 702 (1984) (emphasis added). The Legislature has determined that Montana’s Insurance Code should not apply to the State Fund. See § 33-1-102(5), MCA; Heisler, 282 Mont. at 278, 937 P.2d at 49. The District Court correctly concluded that White’s complaint failed to state a claim because there are no facts that White could prove in support of his complaint against the State Fund that would entitle him to relief under § 33-18-201, MCA. 9 ¶21 Issue Two: Did the District Court err in granting the State Fund’s motion for summary judgment regarding White’s common law claims? ¶22 White also appeals the District Court’s decision to grant the State Fund’s motion for summary judgment regarding his remaining common law claims, including (1) bad faith, (2) malicious prosecution, and (3) negligent and intentional infliction of emotional distress. 1. Bad Faith ¶23 The District Court determined that the State Fund did not act in bad faith when it terminated White’s benefits because the “State Fund had a ‘reasonable basis for contesting [White’s] claim’ based on the evidence it had that White had sold at least two products for money and had worked for ‘in kind’ pay.” For that reason, the court determined that the State Fund was entitled to judgment as a matter of law. ¶24 “Under Montana common law, an insurer cannot be held liable for bad faith in denying a claim if the insurer had a reasonable basis for contesting the claim or the amount of the claim.” Palmer by Diacon v. Farmers Ins. Exch., 261 Mont. 91, 102, 861 P.2d 895, 901 (1993). We have applied the same principles to the State Fund, ruling that it too may be subject to a common-law bad faith claim if it engages in “tortious conduct occurring outside the employment relationship and during the processing and settlement of a workers’ compensation claim.” Birkenbuel, 212 Mont. at 146, 687 P.2d at 704. An insurance company’s “duty to act in good faith with [its] insureds . . . exists independent of the insurance contract and independent of the statute.” Birkenbuel, 212 Mont. at 143- 10 44, 687 P.2d at 702. White contends that the District Court erred in granting summary judgment because evaluating the reasonableness of an insurer’s conduct is a task best left to the jury. He cites Dean v. Austin Mutual Insurance Company for the proposition that “reasonableness is generally a question of fact; therefore, it is for the trier of fact to weigh the evidence and judge the credibility of the witnesses in determining whether the insurer had a ‘reasonable basis’ for denying a claim.” Dean v. Austin Mut. Ins. Co., 263 Mont. 386, 389, 869 P.2d 256, 258 (1994). As the State Fund points out, however, Dean does not preclude summary judgment in every insurance bad faith case: [W]hile the assessment of reasonableness generally is within the province of the jury (or the court acting as fact-finder), Dean, 263 Mont. at 389, 869 P.2d at 258, reasonableness is a question of law for the court to determine when it depends entirely on interpreting relevant legal precedents and evaluating the insurer’s proffered defense under those precedents. Redies v. Attys. Liab. Prot. Soc’y, 2007 MT 9, ¶ 35, 335 Mont. 233, 150 P.3d 930 (emphasis added). ¶25 White acknowledges that the Unfair Claims Settlement Practices Act is a codification of the common law on bad faith. The common law imposed a duty on an insurer not to deny coverage or benefits without a reasonable basis for doing so. Palmer; Tynes v. Bankers Life Co., 224 Mont. 350, 364, 730 P.2d 1115, 1124 (1986). We restated in Palmer that “‘[i]t is generally held that an insurer is entitled to challenge a claim on the basis of debatable law or facts and will not be liable for bad faith or punitive damages for denying coverage if its position is not wholly unreasonable.’” Palmer, 261 Mont. at 102, 861 P.2d at 902 (quoting Safeco Ins. Co. v. Ellinghouse, 223 Mont. 239, 248, 725 P.2d 11 217, 223 (1986)). White’s allegation of unfair practices against the State Fund arose from (1) its termination of White’s benefits and (2) its prosecution of him for workers’ compensation fraud. The latter allegation was cast in the form of common law claims for malicious prosecution and abuse of process.1 ¶26 White argues that the District Court erred by ignoring his allegations of deception and entrapment by the State Fund in evaluating his common law bad faith claim. The “essence” of an insurance bad faith claim is “failure to deal fairly and in good faith with an insured.” Ellinghouse, 223 Mont. at 251, 725 P.2d at 225. White does not contend, however, that he would have a common law bad faith claim if the State Fund had not terminated his benefits. Nor does the Dissent identify authority for the position that White’s allegations establish a common law claim for bad faith independent of the denial of benefits. Dissent, ¶¶ 4-5. Thus, as the District Court properly recognized, a reasonable basis for terminating White’s benefits is fatal to his common law bad faith claim. In this regard, the District Court correctly observed that the material facts were undisputed: White has never disputed that he sold a cedar chest to Harris, that he sold a bench to his physical therapist, and that he received a vacuum cleaner in exchange for his labor—all while receiving temporary total disability benefits. ¶27 The State Fund’s decision to terminate White’s benefits was based on its conclusion that White was violating Montana law by receiving wages and disability benefits at the same time. See §§ 39-71-701(7), MCA (a worker “may not receive both 1 White does not contest the District’s dismissal of his abuse of process claim. We address the malicious prosecution claim below. 12 wages and temporary total disability benefits without the written consent of the insurer”); 39-71-123(1), MCA (“[w]ages include the cash value of all remuneration paid in any medium other than cash”); and 39-71-123(1)(d), MCA (wages include all “income or payment . . . taken by a sole proprietor”). ¶28 Given the “basis in law” upon which the State Fund terminated White’s benefits and the undisputed facts of the case, it was appropriate for the District Court to determine whether the State Fund’s termination of White’s benefits was reasonable as a matter of law. Watters v. Guaranty Nat’l Ins. Co., 2000 MT 150, ¶¶ 69-72, 300 Mont. 91, 3 P.3d 626 (holding that the reasonableness of an insurer’s conduct is appropriate for resolution on summary judgment when the “basis in law” for the insurer’s decision to terminate benefits is “grounded on a legal conclusion, and no issues of fact remain in dispute”) (overruled on other grounds by Shilhanek v. D-2 Trucking, 2003 MT 122, ¶ 21, 315 Mont. 519, 70 P.3d 721). The court correctly concluded that the State Fund could not “be held liable for bad faith in denying a claim if [it] had a reasonable basis for contesting the claim[.]” Palmer, 261 Mont. at 102, 861 P.2d at 901. ¶29 We agree with the District Court that the State Fund had a reasonable basis in law to terminate White’s benefits after learning that he also received wages for services rendered, in violation of § 39-71-701(7), MCA. The statutory language plainly proscribes receipt of “both wages and temporary total disability benefits” and defines “wages” broadly, with no exceptions for minimal or occasional payments. It is not the 13 province of this Court to determine that White’s remuneration was not substantial enough to trigger termination of benefits. Section 1-2-101, MCA. ¶30 White also alleges that, because a jury heard similar evidence during his criminal trial and found him not guilty of theft, the District Court erred in granting the State Fund’s summary judgment motion on his bad faith claim. He especially objects to the fact that the court cited Harris’s and Disburg’s testimony from the criminal trial, which White argues is “suspect” in light of his acquittal. Before the District Court, however, White did not dispute that he had received cash and “in kind” payments in exchange for services rendered. Consequently, he failed to satisfy his burden of “set[ting] out specific facts showing a genuine issue for trial.” M. R. Civ. P. 56(e)(2); see also Ternes, ¶ 18 (once the moving party establishes both the absence of genuine issues of material fact and entitlement to judgment as a matter of law, the party opposing summary judgment “must present substantial evidence, as opposed to mere denial, speculation, or conclusory statements, raising a genuine issue of material fact”). That White was found not guilty of theft is irrelevant to his civil case; the jury in the criminal trial was not asked to determine whether the State Fund’s decision to terminate White’s benefits had a reasonable basis in law. 2. Malicious Prosecution ¶31 In his amended complaint, White alleged that the State Fund engaged in malicious prosecution when its fraud detection unit referred White’s case to the Department of 14 Justice for possible criminal prosecution. In a civil action for malicious prosecution, the plaintiff bears the burden of proving each of the following elements: (1) a judicial proceeding was commenced and prosecuted against the plaintiff; (2) the defendant was responsible for instigating, prosecuting or continuing such proceeding; (3) there was a lack of probable cause for the defendant’s acts; (4) the defendant was actuated by malice; (5) the judicial proceeding terminated favorably for the plaintiff; and (6) the plaintiff suffered damage. Hughes v. Lynch, 2007 MT 177, ¶ 12, 338 Mont. 214, 164 P.3d 913. ¶32 Malicious prosecution claims are “not favored by the law and the burden on the plaintiff is heavy.” Reece v. Pierce Flooring, 194 Mont. 91, 100, 634 P.2d 640, 645-46 (1981). If the plaintiff cannot prove each of the required elements by prima facie evidence, “judgment as a matter of law may be entered for the defendant.” Plouffe v. Mont. Dep’t of Health & Human Servs., 2002 MT 64, ¶ 16, 309 Mont. 184, 45 P.3d 10. ¶33 The District Court concluded that “the undisputed facts show that the Department of Justice, not the State Fund, instigated the criminal proceeding” against White and that, even if the State Fund had instigated the prosecution, “it would have had probable cause to do so.” Because White could not prove the second or third elements of malicious prosecution, the court granted the State Fund’s motion for summary judgment. On appeal, White argues that the State Fund instigated the criminal proceedings by actively 15 building a case against him and by using private investigators to “bait him into selling a piece of furniture.” ¶34 The State Fund is required by law to “establish a fraud prevention and detection unit[,]” which is “responsible for developing detection and prevention procedures[.]” Section 39-71-211, MCA. The fraud prevention and detection unit also is required to “refer all cases of suspected fraudulent conduct to the workers’ compensation fraud investigation and prosecution office” in the Department of Justice. Section 39-71-211, MCA; see also § 2-15-2015, MCA. When the State Fund referred White’s case to the Department of Justice for possible prosecution, it was acting pursuant to statutory duty. When a defendant acts upon a statutory duty and provides information to the proper authorities, who then file criminal charges, that defendant is not liable for “instigating” criminal proceedings. Vehrs v. Piquette, 210 Mont. 386, 391, 684 P.2d 476, 478 (1984) (holding that “[d]efendants cannot be held accountable in civil liability for carrying out [their] official duty within the authority and means prescribed by law”); see also Sherner v. Nat’l Loss Control Servs. Corp., 2005 MT 284, ¶¶ 36-38, 43, 329 Mont. 247, 124 P.3d 150. ¶35 Assistant Attorney General Deborah Butler’s decision to file theft charges against White was made independent of the State Fund, even though Butler’s decision was based in part on information the State Fund provided to the Department of Justice pursuant to §§ 39-71-211 and 2-15-2015, MCA. The act of “providing information to authorities without more is not actionable” in a malicious prosecution claim. Vehrs, 210 Mont. at 16 391, 684 P.2d at 478. For those reasons, the District Court correctly concluded that the State Fund did not “instigate” the criminal proceedings against White. ¶36 Similarly, the District Court correctly concluded that White had not shown lack of probable cause for the State Fund’s acts. We have defined probable cause for prosecution as “reasonable grounds for suspicion, supported by circumstances reasonably strong in themselves to warrant a reasonably prudent and cautious [person] to believe that the accused is guilty of the offense charged.” Plouffe, ¶ 18 (quoting Reece, 194 Mont. at 98, 634 P.2d at 643). Although generally a jury question, “the determination of probable cause becomes a question of law for a court to decide when there is no conflict of evidence and the evidence ‘admits only one conclusion.’” Blacktail Mtn. Ranch Co. v. State, 2009 MT 345, ¶ 11, 353 Mont. 149, 220 P.3d 388 (quoting Plouffe, ¶ 18). ¶37 White acknowledges that Judge Seeley approved the filing of a criminal information on the basis of her finding that the State had probable cause to charge White with theft in violation of § 45-6-301(5)(b), MCA. A judicial determination of probable cause to hold a party answerable to criminal charges “is considered prima facie or presumptive evidence of the existence of probable cause” and a plaintiff in a malicious prosecution action can overcome this presumption only “by showing by a preponderance of the evidence that there was no probable cause for filing the original criminal action.” Watkins v. Spring Creek Colony, 188 Mont. 467, 469-71, 614 P.2d 508, 510-11 (1980). A preponderance of the evidence is evidence showing that a claim is “more probably true 17 than not.” Bostwick Props. v. Mont. Dep’t of Nat’l Res. & Conserv., 2009 MT 181, ¶ 33, 351 Mont. 26, 208 P.3d 868. ¶38 White does not present any evidence disputing Judge Seeley’s finding, but instead offers a conclusory statement that “[her] finding of probable cause . . . was invalid.” On the contrary, the uncontroverted evidence before the District Court established that, while receiving temporary total disability benefits, White sold a cedar chest and a bench for cash payments, and he received a vacuum cleaner in exchange for services rendered. This undisputed evidence admits only one conclusion—that White was receiving both wages and temporary total disability benefits in violation of § 39-71-701(7), MCA. As a matter of law, this constituted probable cause for the State Fund’s actions. See Blacktail Mtn. Ranch Co., ¶ 12. White has not overcome the presumption that there was probable cause for the criminal charges filed against him. As the District Court observed, the State Fund acted lawfully when it reported White’s suspected fraud to the Department of Justice; its actions were supported by probable cause. ¶39 Because White could not satisfy the second or third elements of a malicious prosecution claim, the District Court correctly concluded that the State Fund was entitled to judgment as a matter of law. 3. Emotional Distress ¶40 In his first amended complaint, White alleged that the State Fund negligently and intentionally inflicted emotional distress on him when it terminated his temporary total disability benefits. In his response to the State Fund’s motion for summary judgment, 18 White alleged that he suffered severe emotional distress when he “was forced to go through the indignity of being called a thief and plead his case before a jury of his peers.”2 The District Court granted the State Fund’s summary judgment motion because it concluded that White had neither alleged nor established the severe emotional distress required by Sacco v. High Country Independent Press, 271 Mont. 209, 233-34, 896 P.2d 411, 425-26 (1995). On appeal, White contends that “[o]nce again, the District Court made a finding better left to a jury.” ¶41 Under Montana law, a plaintiff’s independent claim for either negligent or intentional infliction of emotional distress can be maintained “only upon a showing that the plaintiff suffered ‘serious’ or ‘severe’ emotional distress as the reasonably foreseeable consequence of the defendant’s act or omission.” Feller v. First Interstate Bancsystem, Inc., 2013 MT 90, ¶ 34, 369 Mont. 444, 299 P.3d 338 (citing Sacco, 271 Mont. at 237, 896 P.2d at 428). For emotional distress to be considered serious or severe, it must be “so severe [that] no reasonable person could be expected to endure it.” Feller, ¶ 34 (quoting Sacco, 271 Mont. at 234, 896 P.2d at 426). ¶42 White’s contention that a jury must be allowed to determine whether or not he suffered serious or severe emotional distress is an incomplete legal statement. “It is for the court to determine whether on the evidence severe or serious emotional distress can 2 On appeal, White also alleges that he was “humiliated, embarrassed, angered, [and] even suffered . . . diarrhea for days before his trial.” White failed to set out these specific facts “by affidavits or as otherwise provided” when contesting the State Fund’s motion for summary judgment as required by M. R. Civ. P. 56(e)(2). Malpeli v. State, 2012 MT 181, ¶ 12, 366 Mont. 69, 285 P.3d 509. We decline to consider allegations that have no factual basis in the District Court record. Bitterroot River Protective Ass’n, Inc., v. Siebel, 2005 MT 60, ¶ 23, 326 Mont. 241, 108 P.3d 518. 19 be found;” it is for the jury to determine whether the plaintiff has in fact established serious or severe emotional distress. Sacco, 271 Mont. at 239, 896 P.2d at 429 (emphasis added). ¶43 We have agreed that summary judgment is appropriate for disposing of an emotional distress claim that lacks sufficient evidentiary support. Renville v. Fredrickson, 2004 MT 324, ¶¶ 4-7, 16, 324 Mont. 86, 101 P.3d 773. We noted in Renville that the plaintiff, whose son was killed as a result of the defendant’s conduct, presented “no indication of any physical manifestation of grief; no counseling [had] been sought or recommended; [she] chose not to take anti-depressants;” and countless parents grieve their child’s death every year. Renville, ¶ 15. Similarly, when a plaintiff alleged that she “agonized over her credit reputation, she had anxiety attacks, severe headaches, shoulder pain, bathroom difficulties, sleeplessness, overeating from stress,” but did not present any evidence supporting her claims, we agreed that her emotional distress claim should be dismissed on summary judgment. Feller, ¶¶ 39-41. ¶44 The District Court correctly concluded that severe or serious emotional distress could not be found on the facts White alleged. White has not supported his emotional distress claims with any evidence. Although he was compelled to defend himself against criminal charges, every year many Montanans are forced to mount a criminal defense. We decline White’s invitation to hold that a criminal trial, standing alone, causes emotional distress “so severe [that] no reasonable person could be expected to endure it.” Feller, ¶ 34 (quoting Sacco, 271 Mont. at 234, 896 P.2d at 426). Furthermore, White 20 admitted that he had not sought mental health counseling for emotional distress, he had not taken any medication to treat emotional distress, and he was able to pursue his hobbies while his criminal charges were pending. These facts indicate a “philosophical strength that would likely be absent in a case of severe emotional distress.” Renville, ¶ 15. Based on our review of the record, we agree with the District Court that serious or severe emotional distress could not be found on the facts White presented and it was appropriate for the court to dismiss these claims on summary judgment. See Renville, ¶ 16; see also Sacco, 271 Mont. at 239, 896 P.2d at 429. ¶45 For the foregoing reasons, we affirm the District Court’s entry of judgment in favor of the State Fund. ¶46 Affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ JIM RICE Justice Patricia O. Cotter concurs and dissents. ¶47 I concur in the Court’s disposition of Issue One, and concur in part but dissent in part with respect to the Court’s resolution of Issue Two. I would reverse and remand for trial White’s claim of common-law bad faith and his request for parasitic emotional distress damages arising out of that tort. 21 ¶48 I begin my analysis with a review of the District Court’s order of summary judgment in favor of State Fund on White’s claim for common-law bad faith. In its order, the District Court states that White has failed to set forth what actions he claims constitute common-law bad faith, and concludes that his claim must be premised upon State Fund’s decision to terminate benefits. I respectfully disagree with this conclusion. ¶49 White’s First Amended Complaint was comprised of fifteen counts. The complaint contained preliminary allegations with respect to jurisdiction, venue, and “Facts Common to All Counts.” The latter portion of the complaint described in detail the surveillance conducted by State Fund, the request by the undercover investigator that White build him a cedar chest, and the fact that White was ultimately prosecuted criminally but acquitted of the charges against him. The complaint then proceeded with the first eight counts of the complaint, which were premised upon claims that State Fund violated varying provisions of Montana’s Insurance Code. In those counts, White alleged that State Fund bullied him and engaged in fraud, deception, and entrapment when terminating his benefits and subjecting him to prosecution. ¶50 Count Nine of the First Amended Complaint is entitled “Common Law Bad Faith.” The first sentence of that count states: “Plaintiff re-pleads all paragraphs set forth in this Complaint as if fully set forth herein.” White alleges in Count Nine that the defendant engaged in common-law bad faith by failing to act in good faith and fair dealing, and asserts that the defendant’s actions which constitute bad faith “are more fully set forth in the preceding allegations.” He argues that as a direct and proximate cause of 22 the defendant’s behavior, he has suffered and continues to suffer emotional and financial loss. White’s complaint put State Fund on clear notice that he was challenging the good faith of State Fund’s program of surveillance and ostensible entrapment. The District Court ignored these allegations set forth in the complaint when it held that White had failed to specify what acts on the part of State Fund constituted bad faith. ¶51 This Court likewise errs when it concludes that White’s common-law bad faith claims must fail because State Fund had a reasonable basis in law for terminating White’s benefits. The Court infers that the termination of White’s benefits is the sine qua non of his common law bad faith action. Opinion, ¶ 26. However, this contention is belied by the very authorities set forth in ¶ 24 of the Court’s Opinion, where the Court concedes that “[a]n insurance company’s ‘duty to act in good faith with [its] insureds . . . exists independent of the insurance contract and independent of statute;’ ” and that a claim for bad faith may arise if the insurer engages in “tortious conduct . . . during the processing and settlement of a workers’ compensation claim.” ¶52 As the Court further correctly notes, whether an insurer’s conduct is reasonable is a task best left to the jury. Opinion, ¶ 24. The Court errs, however, when it concludes that it was appropriate for the District Court to determine whether State Fund’s actions were reasonable as a matter of law. Opinion, ¶ 26. To the contrary, White set forth specific facts in support of his claim of bad faith, and raises a genuine issue as to whether State Fund’s conduct was tortious. Birkenbuel v. Mont. St. Compen. Ins. Fund, 212 Mont. 139, 143-44, 687 P.2d 700, 702 (1984). I would therefore conclude that the 23 question of whether an insurer’s program of surveillance and ostensible entrapment is reasonable is a question of fact best left to the jury. ¶53 Because I would remand with instructions that White be permitted to proceed to trial on his common-law bad faith claim, I address the issue of damages. White alleged throughout his complaint that he has suffered and will continue to suffer emotional distress as a result of the actions of State Fund. In entering summary judgment against White on his claims for emotional distress, the District Court acknowledged White’s argument that emotional distress need not be “severe” in order to qualify as an element of damages for a tort such as bad faith. The court stated in its order of summary judgment: “That may be true, but that is not the State Fund’s motion. State Fund moved to dismiss the ‘stand alone’ torts of negligent or intentional infliction of emotional distress.” The District Court was correct in this regard. State Fund moved only to dismiss the stand-alone claims; it did not seek to dismiss a claim of parasitic damages for emotional distress arising out of a tort. Likely, the District Court did not further address White’s claims for parasitic emotional distress because it concluded that none of White’s tort claims could survive dismissal or summary judgment. ¶54 This Court upholds the dismissal of plaintiff’s stand-alone claims for negligent or intentional infliction of emotional distress. I agree with this decision. However, because I would remand the common-law bad faith claim for trial, I would also allow White to press his claim for parasitic emotional distress arising out of the tort. As we stated in Jacobsen v. Allstate Ins. Co., 2009 MT 248, ¶ 66, 351 Mont. 464, 215 P.3d 649, “the 24 ‘serious or severe’ standard announced in Sacco applies only to independent claims of negligent or intentional infliction of emotional distress. . . . As for emotional distress that is claimed as an element of damage for an underlying tort claim, . . . we hereby explicitly adopt the standard set forth in the Montana Pattern Jury Instruction,” which states that “[t]he law does not set a definite standard by which to calculate compensation for mental and emotional suffering and distress.” White’s claims for parasitic emotional distress arising from his common law bad faith claim should be considered by a jury. ¶55 I therefore would reverse and remand for trial White’s claim for common-law bad faith and his request for damages for mental and emotional distress arising from the tort. I dissent from our refusal to do so. I otherwise concur in the Court’s Opinion. /S/ PATRICIA COTTER | July 12, 2013 |
0b39d872-2b98-4b54-a5fd-1551a9498df2 | Long v. Montana DNRC | 2013 MT 170N | DA 12-0501 | Montana | Montana Supreme Court | DA 12-0501 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 170N BRITT T. LONG, Plaintiff and Appellant, v. STATE OF MONTANA, MONTANA DEPARTMENT OF NATURAL RESOURCES, Defendant and Appellee. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV-2009-107 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellant: Britt T. Long, Pro Se, Lewistown, Montana For Appellee: John F. Sullivan, Kate McGrath Ellis; Hughes, Kellner, Sullivan & Alke, PLLP, Helena, Montana Submitted on Briefs: May 8, 2013 Decided: June 26, 2013 Filed: __________________________________________ Clerk June 26 2013 2 District Court Judge John W. Larson 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 an appeal from an Order dismissing a case with prejudice, and assessing costs and attorney’s fees against a plaintiff who failed to attend her own court-ordered deposition. ¶3 Plaintiff/Appellant Britt T. Long (Ms. Long), a licensed Montana attorney, brought this case against her former employer, the Defendant/Appellee State of Montana, Montana Department of Natural Resources (DNRC), for alleged violations of the Wrongful Discharge Act and the Family Medical Leave Act. The case was filed February 10, 2009. ¶4 Ms. Long’s deposition was first scheduled for October 28, 2011, upon agreement of counsel for Ms. Long and DNRC. Ms. Long’s attorney withdrew by motion submitted September 26, 2011, and ordered September 28, 2011. Following the order permitting withdrawal, an Amended Notice of Deposition was sent by DNRC’s counsel to Ms. Long. The Amended Notice changed only the place of the deposition from her former attorney’s office to the court reporter’s office. The date and time remained as earlier agreed upon. ¶5 Ms. Long cancelled the October 28, 2011, deposition by faxing a cancellation letter to DNRC’s counsel on October 25, 2011. On the next day DNRC sent a Second Amended Notice of Deposition rescheduling Ms. Long’s deposition to November 8, 2011. This 3 Second Amended Notice was personally served on Ms. Long. On October 27, 2011, DNRC’s counsel sent a letter with contact information to Ms. Long. On November 7, 2011, the day before the rescheduled deposition, Ms. Long sent an e-mail detailing her cancellation of the November 8 deposition because of the length of the deposition and a funeral she had to attend. On the same day, Ms. Long faxed a Motion and Brief to Stay Proceedings, but did not file the originals with the Clerk of Court. In response to the Motion and Brief to Stay Proceedings, DNRC moved for the District Court to order Ms. Long’s deposition the week of December 12, 2011. ¶6 The District Court then ordered Ms. Long to attend her deposition over a period of three days: 2.5 hours on December 14, 2011; 2.5 hours on December 15, 2011, and 2 hours on December 16, 2011. The court’s order also indicated that the Motion to Stay had been denied. ¶7 Ms. Long did not respond to the request by DNRC or the court order. Ms. Long also failed to attend her deposition on any of the dates ordered. ¶8 DNRC filed a Motion for Sanctions on January 5, 2012, seeking dismissal of the case with prejudice, as well as the award of costs and attorney’s fees incurred in preparing for Ms. Long’s deposition. Ms. Long did not respond to the motion, which the District Court granted and set for hearing. The parties attended the hearing, offered evidence, and the court awarded DNRC attorney’s fees and costs of $15,303.75 in its twelve-page Findings of Fact, Conclusions of Law and Order. 4 ¶9 Ms. Long argues for error by the District Court in its granting of the Motion to Withdraw by Ms. Long’s attorney without giving her an opportunity to respond and an abuse of discretion by the District Court’s Findings of Fact, Conclusions of Law and Order dismissing her case with prejudice with an award of attorney’s fees and costs. ¶10 As to the issue concerning the order allowing Ms. Long’s attorney to withdraw, Ms. Long sought no relief from the District Court’s order below and cannot now urge error by the District Court. ¶11 As to the sanctions for discovery abuses, this Court has urged sanctions over second chances. Peterman v. Herbalife Int’l., Inc., 2010 MT 142, ¶ 17, 356 Mont. 542, 234 P.3d 898 (citing Linn v. Whitaker, 2007 MT 46, ¶ 19, 336 Mont. 131, 152 P.3d 1282; Xu v. McLaughlin Research Inst. for Biomedical Sci., Inc., 2005 MT 209, ¶ 20, 328 Mont. 232, 119 P.3d.100); see also Dambrowski v. Champion Intl. Corp., 2000 MT 149, 300 Mont. 76, 3 P.3d 617. ¶12 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 provide for memorandum opinions. The District Court’s sanctions are supported by extensive findings that are supported in the record and are based upon established and settled Montana law. After review of the record, we hold Ms. Long has failed to establish that the District Court abused its discretion in dismissing her case with prejudice and assessing attorney’s fees and costs. ¶13 Affirmed. 5 /S/ JOHN W. LARSON Hon. John W. Larson, District Court Judge, sitting in place of Chief Justice Mike McGrath We concur: /S/ PATRICIA COTTER /S/ JIM RICE /S/ MICHAEL E WHEAT /S/ C.B. McNEIL Hon. C.B. McNeil, District Court Judge, sitting in place of Justice Brian Morris | June 26, 2013 |
762d2cb9-de5d-407e-9ee1-e3f9bd79b880 | IN THE MATTER OF THE RULES OF
APPEL | 2007 MT 334 | AF 07-0016 | Montana | Montana Supreme Court | IN THE SUPREME COURT OF THE STATE OF MONTANA No. AF 07-0016 ______________ IN RE ADDING TO THE MONTANA RULES OF ) APPELLATE PROCEDURE A RULE ON JUDICIAL ) O R D E R WAIVER APPEALS ) _____________ Chapter 307, 2013 Laws of Montana, generally requires parental consent prior to an abortion for a minor, and provides for an expedited confidential appeal to this Court by a petitioner if a youth court denies a petition for waiver of the parental consent requirement. Chapter 307, which has an effective date of July 1, 2013, includes a provision allowing this Court to adopt rules providing for such expedited confidential appeals. Based in part on a proposed rule submitted to the Court by the Office of Appellate Defender (OAD), the Court has crafted the attached rule regarding those expedited confidential appeals. On May 8, 2013, we published the rule as a proposed rule and allowed 30 days for public comment. No comments were filed with the Clerk of this Court within the time allowed. Therefore, IT IS ORDERED that the attached rule is adopted. It shall be added to the Montana Rules of Appellate Procedure as Rule 30. This Order and the attached Rule 30 of the Montana Rules of Appellate Procedure shall be published on this Court’s website. The Clerk is directed to provide copies of this order and the attached Rule to OAD; to Kevin Hayes and Todd Everts at Montana Legislative Services Division; to Helene Haapala and Louise Ricci at Thomson Reuters; to Robert Roy at Lexis; and to the State Bar of Montana, with the request that the State Bar provide notice of the new rule on its website and in the Montana Lawyer. June 27 2013 2 DATED this 27th day of June, 2013. /S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON /S/ PATRICIA COTTER /S/ JIM RICE /S/ BRIAN MORRIS 3 Rule 30. Judicial waiver appeals. (1) Scope. This rule applies to an appeal from an order denying or dismissing a petition filed by a minor under age 16 to waive parental consent to an abortion, pursuant to Title 50, Chapter 20. In such appeals, this rule supersedes the other appellate rules to the extent they may be inconsistent with this rule. (2) Notice of appeal. (a) A minor may appeal an order denying or dismissing a petition to waive parental consent by filing a notice of appeal with the clerk of the supreme court. The notice of appeal may be filed in person, by mail, or by fax. If a transcript or written order is available, it should be attached to the notice of appeal, but such notice shall not be defective if it does not include such transcript or order. (b) If a notice of appeal is incorrectly filed in a youth or district court, the clerk thereof shall immediately notify the clerk of the supreme court of such filing, and shall transmit a copy of the notice of appeal by fax or e-mail for filing with the supreme court. (c) The notice of appeal must indicate that the appeal is being filed pursuant to this rule, but the court will apply this rule to cases within its scope whether they are so identified or not. (d) Blank notice of appeal forms and copies of these rules will be available at all court locations and will be mailed, emailed, or faxed to a minor upon request. (e) No filing fees or fee for any service may be required of a minor who files an appeal under this provision. (3) Record on appeal; standard of review. A youth court that conducts proceedings for judicial waiver of consent shall issue written and specific findings of fact and conclusions of law supporting its decision and shall order that a confidential record of the evidence, findings, and conclusions be maintained. The record on appeal consists of the confidential record of the youth court, including all papers and exhibits filed in the youth court, the written findings and conclusions of the youth court, and, if available, a recording or transcript of the proceedings before the youth court. If the appellant has counsel, counsel shall serve the clerk of the youth court with a copy of the notice of appeal, request the record from the clerk of the youth court, and arrange for expedited preparation of the transcript immediately upon filing the notice of appeal. If the appellant does not have counsel, the clerk of the supreme court shall request the record immediately upon receiving notice that a self-represented minor has filed a notice of appeal, and the clerk of the youth court shall arrange for expedited preparation of any transcript directly with the court reporter. Upon receiving a request for the record from counsel for the appellant or from the clerk of the supreme court, the clerk of the youth court shall forthwith transmit the record to the supreme court by fax, e-mail, overnight mail or in another manner that will cause it to arrive within 48 hours, including weekends and holidays, after the youth court’s 4 receipt of the request for the record. (4) Brief. A brief is not required. However, the minor may file a memorandum in support of the appeal within 48 hours, including weekends and holidays, after filing the notice of appeal. (5) Disposition. The supreme court may designate a panel of five or more of its members to consider the appeal. The supreme court shall review the decision of the youth court de novo. The supreme court shall enter an order stating its decision within 72 hours, not including weekends and holidays, after the record referred to in (3) is filed. The supreme court shall issue an opinion explaining the decision as soon as practicable following entry of the order. (6) Confidentiality. (a) Documents, proceedings, and audio or video recordings in an appeal under this rule are sealed. All persons are strictly prohibited from notifying the minor’s parents, guardian, or custodian that the minor is pregnant or wants to have an abortion, and from disclosing this information to any person. The court shall not release the name of, or any other identifying information concerning, a minor who files a judicial waiver appeal. (b) All statistical and general information that the court system may have concerning judicial waiver appeals is confidential, except the number of appeals filed, granted, and denied statewide each year is public information. (7) Attorney. If the minor is not represented by an attorney, the clerk of the supreme court shall appoint the office of the state public defender to represent the minor in the appeal. If counsel was assigned to represent the minor in the youth court, the appointment continues through the appeal. All counsel shall immediately be served with copies of the Court’s order by fax or e-mail. In the event a minor waives the right to have counsel appointed on appeal, then notice of the court’s order will be served upon her at the address or location she has provided to the clerk of the supreme court . The minor or her counsel shall be provided a certified copy of the order upon request. (8) Filing defined. For purposes of this rule only, an appeal is deemed filed at the time and on the date it is received by the clerk of the supreme court. (9) Special rule for interpreting time requirements. If the end of a time limit set out in this rule falls upon a weekend or holiday, then the time limit is extended to noon on the next business day. | June 27, 2013 |
a838196a-c63a-4a05-bdd5-c693a568cc2d | Marriage of Beld | 2013 MT 185N | DA 12-0722 | Montana | Montana Supreme Court | DA 12-0722 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 185N IN RE THE MARRIAGE OF: KATIE LEIGH BELD, Petiitioner and Appellee, v. RYAN EDWARD BELD, Respondent and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DR 07-0558 Honorable G. Todd Baugh, Presiding Judge COUNSEL OF RECORD: For Appellant: Jacquelyn M. Hughes, Hughes Law Firm, P.L.L.C.; Billings, Montana For Appellee: Jo Messex Casey, Hendrickson Law Firm, P.C.; Billings, Montana Submitted on Briefs: June 12, 2013 Decided: July 9, 2013 Filed: __________________________________________ Clerk July 9 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 Ryan E. Beld (Ryan) appeals the order of the Thirteenth Judicial District Court, Yellowstone County, that enforced a settlement agreement between Ryan and his former spouse, Appellee Katie Leigh Beld (Katie). We affirm. ¶3 Ryan and Katie filed a settlement agreement and consent to entry of decree of dissolution of marriage on March 24, 2010. Katie received the family house, valued at $280,000, and one-half of their business, La-Z-Boy Furniture Galleries. Ryan received the other half of La-Z-Boy Furniture Galleries. The agreement provides that both parties would be “jointly responsible for the debt to La-Z-Boy corporate and Yellowstone Bank.” ¶4 Katie and Ryan separately filed for bankruptcy shortly after entry of the decree. Katie sold the house at some point during the bankruptcy. The house secured a business loan at Yellowstone Bank for La-Z-Boy Furniture Galleries. Katie used $126,266.32 of the proceeds to pay off the business loan at Yellowstone Bank. ¶5 Katie filed a motion to compel and/or motion for contempt on February 14, 2012. This motion sought to require Ryan to pay Katie $63,133.16, or one-half of the business loan, on the grounds that the settlement agreement provided that Ryan and Katie would be 3 “jointly responsible” for the La-Z-Boy debt. Ryan objected on the grounds that Katie had received 100% equity on the house plus half of the business in the settlement agreement. ¶6 The District Court interpreted “jointly responsible” in the settlement agreement to require Ryan to take responsibility for 50% of the business debt. The District Court ordered Ryan to pay the $63,133.16 to Katie on an installment basis. The court rejected Ryan’s claim that payment would be impossible. The court recognized that it would be difficult, but that the payment plan made it possible. Ryan appeals. ¶7 Ryan argues on appeal that an ambiguity exists with the settlement agreement in that it does not define how the parties would be “jointly responsible” for the debts. Ryan argues that he should get credit for his non-financial contributions to the efforts to liquidate La-Z- Boy Furniture Galleries. Both the existence of a contract and its interpretation present questions of law that we review for correctness. Kluver v. PPL Mont., LLC, 2012 MT 321, ¶ 19, 368 Mont. 101, 293 P.3d 817. ¶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. It is manifest on the face of the briefs and the record before us that the District Court correctly interpreted the settlement agreement. ¶9 Affirmed. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH 4 /S/ BETH BAKER /S/ PATRICIA COTTER | July 9, 2013 |
9600d6f4-d666-470d-a2ae-daeb0ee6c588 | State v. Guillen | 2013 MT 184N | DA 12-0319 | Montana | Montana Supreme Court | DA 12-0319 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 184N STATE OF MONTANA, Plaintiff and Appellee, v. ALBERTO GUILLEN, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 11-343 Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender, Lisa S. Korchinski, 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: July 9, 2013 Filed: __________________________________________ Clerk July 9 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 Alberto Guillen (Guillen) appeals the order of the Fourth Judicial District Court, Missoula County, that denied his motion to withdraw his guilty plea. We affirm. ¶3 The State of Montana (State) charged Guillen with attempted deliberate homicide and failure to stop immediately at the scene of the accident. Guillen intentionally drove his van into his brother, who was riding a bike. Guillen’s brother sustained life threatening injuries and now suffers from partial paralysis. ¶4 The State and Guillen reached an agreement to resolve the case. The State agreed to amend the charge of attempted deliberate homicide to attempted mitigated deliberate homicide. In return, Guillen agreed to enter guilty pleas to both charges. Guillen filed a waiver of rights and entered a guilty plea to both charges. The parties reached no agreement for an appropriate sentence. ¶5 The District Court sentenced Guillen on December 29, 2011. The court imposed the maximum term of 40 years at Montana State Prison for attempted mitigated homicide, and a concurrent sentence of 10 years for leaving the scene of the accident. Guillen filed a motion to withdraw his guilty plea on April 12, 2012. 3 ¶6 Guillen argued that his guilty plea had been involuntary and that the court’s sentence had breached a plea agreement. Guillen argued that his counsel had coerced him to enter a guilty plea. Guillen claims that his counsel had assured him that the agreement called for a sentence of 15 years in the Montana State Prison. ¶7 The District Court determined that Guillen’s signature on the waiver of rights and his plea of guilty established that he understood that no plea agreement existed and that he could receive the maximum sentence. The court further determined that Guillen had failed to present any evidence to indicate that his plea had been involuntary. Guillen appeals. ¶8 Guillen raises the same arguments on appeal that he submitted to the District Court. We review a denial of a motion to withdraw a guilty plea de novo because whether a plea was entered voluntarily is a mixed question of law and fact. State v. Valdez-Mendoza, 2011 MT 214, ¶ 12, 361 Mont. 503, 260 P.3d 151. A court may permit a defendant to withdraw a guilty plea if good cause exists. Section 46-16-105(2), MCA. The ultimate test of whether good cause is shown to withdraw a guilty plea is whether it was voluntary. State v. Robinson, 2009 MT 170, ¶ 11, 350 Mont. 493, 208 P.3d 851. ¶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 the substantial evidence supports the district court’s findings regarding Guillen’s waiver of his rights and the lack of any plea agreement and that the court correctly applied well settled law. ¶10 Affirmed. 4 /S/ BRIAN MORRIS We concur: /S/ BETH BAKER /S/ JIM RICE /S/ LAURIE McKINNON | July 9, 2013 |
d71e23fb-6f85-4f18-8d49-e5d5e903b596 | Schmidt v. Corbin | 2013 MT 186N | DA 13-0017 | Montana | Montana Supreme Court | DA 13-0017 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 186N CARL SCHMIDT, Plaintiff and Appellant, v. JAMES CORBIN, AMY CORBIN, AND CHAMPIONSHIP TRAINING, LLC, Defendants and Appellees. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-12-853 Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD: For Appellant: Dale R. Mrkich, Rimel and Mrkich, PLLC, Missoula, Montana For Appellees: Anne Blanche Adams, Cederberg Law Offices, PC, Missoula, Montana Submitted on Briefs: June 19, 2013 Decided: July 9, 2013 Filed: __________________________________________ Clerk July 9 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 On July 26, 2012, Carl Schmidt filed a complaint against James Corbin, Amy Corbin, and Championship Training, LLC, in the Fourth Judicial District Court, Missoula County. Schmidt alleged that the Corbins had breached various provisions of the parties’ written contract (the Agreement). The Agreement, dated November 26, 2010, outlines the terms of a $25,000.00 loan from Schmidt to the Corbins for the purpose of their martial arts gym, operating under the name Championship Training. Schmidt asserted in his complaint that the Corbins had breached the Agreement for seven reasons—namely, failingto repay the full amount due under the payment schedule, failing to pay interest due on the unpaid balance, failing to pay late fees, failing to pay Schmidt three percent of Championship Training’s gross income, failing to provide Schmidt and his immediate family with lifetime access to the gym, failing to pay Schmidt’s costs of collection, and failing to reimburse Schmidt for “other costs and expenses” he incurred on behalf of the gym and Championship Training. ¶3 The Corbins moved for summary judgment. As an initial matter, the District Court determined that Schmidt and the Corbins had executed the Agreement in their individual capacities, and the court thus dismissed Championship Training as a party to the lawsuit. ¶4 Next, the court ascertained from the parties’ filings that the Corbins had paid Schmidt the full amount due and owing under the Agreement. Regarding Schmidt’s allegations that 3 the Agreement covered more than just the loan, and that the Corbins had not fully satisfied the amount due, the court observed that Schmidt had provided only conclusory statements, and no specific evidence, in support of these claims. Moreover, the court noted that the Corbins had actually paid excess principal on the loan in the amount of $1,557.26, which was greater than the “just under $1,200” that Schmidt claimed was still due. The court determined that this overpayment covered Schmidt’s claims for interest and late fees. ¶5 The District Court next ascertained, based on the language of the Agreement, that Schmidt’s claim for three percent of the gross income from Championship Training had not yet accrued. Regarding access to the gym, the court observed that Schmidt had admitted in his deposition that he had never been denied access to the gym. Moreover, James Corbin had admitted in his second affidavit that Schmidt and his family have lifetime access to the gym and will not be denied such access. Thus, the court deemed the access issue moot. Finally, as to collection costs, the court determined that any such costs have not yet accrued under the terms of the Agreement. With regard to Schmidt’s claim for “other costs and expenses,” the court observed that the Agreement does not contain a clause providing for such costs, and thus the Corbins could not have breached this nonexistent term. ¶6 Having determined that there were no genuine issues of material fact and that the Corbins were entitled to judgment as a matter of law, the District Court granted their motion for summary judgment. Furthermore, the court awarded the Corbins their attorney’s fees in the amount of $11,502.00 (§ 28-3-704, MCA) and their costs in the amount of $598.25 (§ 25-10-102, MCA). On appeal, Schmidt contends that the District Court erred: in granting the Corbins’ motion for summary judgment; in dismissing Championship Training from the 4 case; in ruling that the Corbins had fully paid the principal, interest, and fees due under the Agreement; in concluding that the issue of lifetime access to the gym was moot; and in awarding the Corbins their attorney’s fees and costs. ¶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. Having reviewed the record and the parties’ briefs, we conclude that the District Court correctly applied the standards for evaluating a motion for summary judgment. We further conclude that Schmidt has failed to show error in the District Court’s award of costs and attorney’s fees to the Corbins. ¶8 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JIM RICE | July 9, 2013 |
5ce95cc8-7db8-44af-864f-f43d4eab2a13 | State v. Sime | 2013 MT 204N | DA 12-0736 | Montana | Montana Supreme Court | DA 12-0736 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 204N CORBIN DOUGLAS SIME, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Third Judicial District, In and For the County of Powell, Cause No. DC-91-38 Honorable Ray J. Dayton, Presiding Judge COUNSEL OF RECORD: For Appellant: Corbin Douglas Sime (Self-Represented), Sandstone, Minnesota For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana Lewis K. Smith, Powell County Attorney, Deer Lodge, 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 On February 6, 1992, Corbin Douglas Sime pled guilty to two counts of criminal possession of dangerous drugs with the intent to sell. He was sentenced to two five-year concurrent sentences at Montana State Prison (MSP) with all but 75 days suspended. He did not appeal his conviction or sentence. On September 25, 1995, Sime’s probation was revoked. Sime subsequently discharged his sentences but is currently incarcerated in a federal prison for a separate offense. ¶3 In May 2012, Sime filed a petition for postconviction relief in which he argued that his 1992 pleas were void because the court failed to advise him of his rights under federal and state criminal procedure Rule 11 before he entered his plea. He also claimed that his counsel was ineffective by improperly advising him. Sime sought to dismiss and vacate his 1992 convictions. The State responded that Sime’s petition was time barred. ¶4 In July 2012, the District Court denied the petition, holding that under § 46-21-102, MCA (1991),1 Sime’s petition was untimely. The court also noted that Sime’s claim did not meet the available exceptions of “newly-discovered evidence” 1 The Montana Supreme Court generally applies the law in effect at the time a crime was committed. State v. Claassen, 2012 MT 313, ¶ 24 n 2, 367 Mont. 478, 291 P.3d 1176. 3 establishing innocence or a “clear miscarriage of justice.” The District Court determined that under § 46-21-102, MCA (1991), Sime was required to file a petition for postconviction relief within five years of his 1992 convictions and he did not do so. Consequently, his May 2012 petition for postconviction relief was time barred. ¶5 Sime filed a notice of appeal in November 2012 and at the same time requested the District Court transcripts from his relevant 1992 and 1995 proceedings. The District Court denied the motion for transcripts on the ground that the transcripts were no longer available. Noting § 3-5-603, MCA, required that transcript records be retained for ten years, the court explained that the ten-year limit had “long since lapsed” and the transcripts no longer existed. ¶6 Sime argues on appeal that the District Court erred when it denied his petition for postconviction relief on the basis of untimeliness and in the absence of the transcripts, his recitation of the facts should be used. ¶7 We affirm the District Court. The applicable statute of limitations has long since expired. Hawkins v. Mahoney, 1999 MT 82, ¶ 9, 294 Mont. 124, 979 P.2d 697. Moreover, Sime has not demonstrated a clear miscarriage of justice and has not presented newly discovered evidence that would establish his innocence. Hawkins, ¶ 11. ¶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. 4 /S/ PATRICIA COTTER We Concur: /S/ MICHAEL E WHEAT /S/ JIM RICE /S/ LAURIE McKINNON /S/ BRIAN MORRIS | July 23, 2013 |
e5ea7a61-277c-48c5-9d5b-4710c5f8df12 | Marriage of Funk | 2013 MT 180N | DA 13-0023 | Montana | Montana Supreme Court | DA 13-0023 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 180N IN RE THE MARRIAGE OF: BERNITA FUNK, Petitioner and Appellee, and KEVIN FUNK, Respondent and Appellant. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DR 09-45 Honorable Deborah Kim Christopher, Presiding Judge COUNSEL OF RECORD: For Appellant: Kevin Funk (Self-Represented), Big Arm, Montana For Appellee: Kay Lynn Lee, Henning, Keedy & Lee, P.L.L.C., Kalispell, Montana Submitted on Briefs: June 26, 2013 Decided: July 9, 2013 Filed: __________________________________________ Clerk July 9 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 Kevin and Bernita June Funk (Kevin and June, respectively) were married in Polson, Montana, in December 1990. In 1996, Kevin inherited 2.5 acres of lakefront property on Flathead Lake and 113 acres of nonlakefront property. In February 2009, June filed for dissolution in the Twentieth Judicial District Court, Lake County. In distributing the marital assets upon dissolution, the District Court included Kevin’s inherited real property in the marital assets and awarded a portion to June. Kevin appealed to this Court, which affirmed in part and remanded in part. Marriage of Funk, 2012 MT 14, 363 Mont. 352, 270 P.3d 39. ¶3 We held in Funk that a court must equitably apportion between the parties all assets and property of the spouses, however and whenever acquired, including preacquired property and assets acquired by gift, bequest, devise, or descent. Funk, ¶¶ 19, 34 (citing § 40-4-202, MCA). We further held that when distributing preacquired property or assets acquired by gift, bequest, devise, or descent, the court must consider the contributions of the other spouse to the marriage, and take account of the three factors set forth in § 40-4-202(1)(a)-(c), MCA. Funk, ¶ 19. “The court’s decision with respect to this category of property must affirmatively reflect that each of these factors was considered and analyzed, and must be based on substantial evidence.” Funk, ¶ 19. 3 ¶4 Here, the District Court, citing “June’s primarily non-monetary but nevertheless substantial and valuable contributions to the marriage as well as the preservation of the real property,” awarded her one-half the value of the lakefront property and one-third the increased value of the remaining property. Funk, ¶ 23. The court also ordered Kevin to pay June $344,167 within six months of the decree. Funk, ¶ 23. The court failed, however, to indicate what contributions June had made to “the preservation of the real property” and whether the award was made in whole or in part in lieu of maintenance. Funk, ¶ 24; see § 40-4-202(1)(a)-(c), MCA. We thus remanded the case “for further evaluation of this issue in accordance with this Opinion.” Funk, ¶ 24. We directed the court “to assess the factors set forth in § 202(1) in determining the legal basis for an award to June of a portion of the value of the lakefront property.” Funk, ¶ 30. We emphasized, though, that the court’s overriding obligation is “to equitably apportion all of the property, based upon the unique factors of [the] case.” Funk, ¶ 34. ¶5 On remand, the District Court considered the parties’ previous testimony at trial and all related pleadings, and then entered its Post Remand Amendment to Findings of Fact, Conclusions of Law and Order of Decree of Dissolution. The court determined the parties’ net worth to be $1,144,547. Regarding Kevin’s inherited property, the court observed that “neither of the parties made much, if any, contribution to preserve or improve” the property. Rather, they “appeared to rely on it as wealth that allowed both parties to stay home.” The court specifically found that “June’s contributions to the marriage were as important and as significant as Kevin’s.” After considering each of the factors listed in § 40-4-202(1), MCA, the court awarded June one-half the current value of the lakefront property and one-third the 4 value of the nonlakefront property. The court noted that the distribution of property set forth in the amended decree “is an award of property in lieu of maintenance.” Finally, based on § 40-4-110, MCA, the court awarded June her attorney’s fees (totaling $59,612.07) and costs. ¶6 Kevin (self-represented) now appeals, alleging various errors in the District Court’s decision. In her answer brief, June asserts that Kevin’s claims on appeal deal with issues that were determined by the District Court in its original decree and either were not appealed by Kevin, or were upheld by this Court, in the prior appeal. She argues that law-of-the-case principles, therefore, bar Kevin from pursuing those issues in the present appeal. McCormick v. Brevig, 2007 MT 195, ¶ 38, 338 Mont. 370, 169 P.3d 352. The one exception concerns attorney’s fees and costs, but June maintains that the District Court did not abuse its discretion in making this award and that the District Court’s decision should be affirmed. ¶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. Having reviewed the record and the parties’ briefs, it appears that the District Court complied with our remand instructions in Funk. Kevin has failed to demonstrate any error or abuse of discretion in the District Court’s Post Remand Amendment to Findings of Fact, Conclusions of Law and Order of Decree of Dissolution. ¶8 Affirmed. /S/ LAURIE McKINNON We Concur: 5 /S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ JIM RICE | July 9, 2013 |
5ddba9c2-71f3-4c64-a5c2-21d4fbf42f16 | In re J.W. | 2013 MT 201 | DA 13-0051 | Montana | Montana Supreme Court | DA 13-0051 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 201 IN THE MATTER OF: J.W., A Youth in Need of Care. APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DN 12-10 Honorable William Nels Swandal, Presiding Judge COUNSEL OF RECORD: For Appellant: Lucy W. Hansen; Hansen Law Practice; Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Kathryn F. Schulz, Assistant Attorney General; Helena, Montana Brett D. Linneweber, Park County Attorney; Kathleen Carrick, Deputy County Attorney; Livingston, Montana Submitted on Briefs: June 12, 2013 Decided: July 23, 2013 Filed: __________________________________________ Clerk July 23 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 A.L. appeals from the Order of the Sixth Judicial District Court, Park County, terminating her parental rights to five-year-old J.W. We affirm, and address the issues: ¶2 1. Did the District Court err by failing to conduct a stand-alone hearing on whether the Department should be required to make reasonable efforts to reunify Mother and J.W.? ¶3 2. Did the District Court commit reversible error by failing to conduct a permanency plan hearing? ¶4 3. Did the District Court err by concluding that the circumstances surrounding Mother’s prior terminations in Colorado were relevant to her parenting of J.W.? FACTUAL AND PROCEDURAL BACKGROUND ¶5 A.L. (Mother) and C.W. (Father) are the biological parents of J.W., a girl. On December 24, 2012, the District Court terminated Mother’s parental rights to J.W. because it determined that Mother’s unfit parenting behavior had not changed since a Colorado court had terminated her rights to two other children. Mother argues that her previously unfit parenting in Colorado should not provide a basis for terminating her parental rights to J.W. because she has changed. Termination of Mother’s Parental Rights to A.K.M.H. and Q.D.J.W. ¶6 Mother is the biological mother of four children born from 1996 to 2008: Aus. L. (1996), A.K.M.H. (2002), Q.D.J.W. (2005), and J.W. (2008). In 2005, Mother and Father were living together in Colorado. Following a domestic violence incident between Mother and Father, the Clear Creek County Department of Human Services (CCDHS) instituted a child-abuse investigation regarding Mother’s three children (J.W. was not yet 3 born). The investigation determined that Mother had a history of violence with her domestic partners, used dangerous drugs, and had prior involvement with child protective services in Washington and Idaho. In an attempt to remedy her parenting problems, CCDHS instituted a treatment plan to which Mother agreed. The plan required Mother to, among other things, maintain a clean and sober lifestyle, complete a drug and alcohol evaluation, attend to the medical and mental health needs of her children, stay violence free, and generally be able to parent her children. People ex rel. A.J.L., 243 P.3d 244, 247 (Colo. 2010). Mother failed to comply with the treatment plan: she continued to use drugs and tested positive for methamphetamine several times between October 2006 and March 2007. In May 2007, against the advice of the CCDHS treatment team, Mother moved to Montana, leaving A.K.M.H. and Q.D.J.W. behind. Mother told CCDHS that she was moving “to get away from [Father] and because she did not trust the CCDHS treatment team.” People ex rel. A.J.L., 243 P.3d at 247. Truth be told, however, Mother and Father were living together in Livingston, Montana. Mother continued to lie to CCDHS caseworkers about not living with Father because their violent relationship was a primary reason CCDHS was seeking removal of A.K.D.H. and Q.D.J.W. ¶7 In January and February 2009, a Colorado trial court held a three-day trial, which Mother attended, on CCDHS’s petition to terminate Mother’s parental rights to A.K.M.H. and Q.D.J.W. (Aus. L. was not subject to this proceeding). Based on the testimony, the court terminated Mother’s rights because she was “unfit as a parent and unlikely to change within a reasonable period of time”: 4 At trial, the People produced substantial evidence and elicited testimony from witnesses supporting its contention that mother continues to deny the severity of abuse she inflicted on [A.K.M.H. and Q.D.J.W.]. They also produced evidence and elicited testimony from witnesses showing that mother’s inability or unwillingness to acknowledge the abuse and its impact on her children placed a substantial roadblock between mother and her ability to safely and effectively parent [A.K.M.H. and Q.D.J.W.]. While on the stand, at trial, mother admitted to abusing her oldest son [Aus. L.], but denied that she ever physically abused [A.K.M.H. and Q.D.J.W.] or withheld food from them. Contrary to mother’s testimony, . . . the trial court found that mother left the children without supervision and food; mother and [Father] physically disciplined the children with belts, spoons, and hands; mother confined the children to a dark closet for long periods of time; and the children witnessed domestic violence between mother and [Father]. People ex rel. A.J.L., 243 P.3d at 248-49. Termination of Mother’s Parental Rights to J.W. ¶8 Mother gave birth to J.W. in 2008. She continued to be involved in violent domestic relationships. In January 2011, the Department received a report that Mother was intoxicated and fighting with an ex-boyfriend. When Aus. L. tried to stop the fight, the ex-boyfriend began hitting him and the ex-boyfriend’s father pulled a gun on Aus. L. ¶9 Mother also continued to abuse drugs and alcohol. On February 9, 2012, the Department received a report that Mother had left Aus. L. and J.W. with another ex-boyfriend and had been missing for three days. When the ex-boyfriend went to Mother’s house, she refused to open the door because she “was too drunk.” Later that afternoon, Mother came to the ex-boyfriend’s house to pick up her children, but told Aus. L. that he had to move out. Aus. L. subsequently moved in with Father.1 1 Father is J.W.’s biological father, not Aus. L.’s. 5 ¶10 Over the next few days, Christopher Bly (Bly), a Child Protection Specialist for the Department made unannounced visits to Mother’s home but no one answered the door. Bly was subsequently informed by Aus. L.’s juvenile probation officer that Aus. L. was residing in a youth home in Bozeman because Mother had kicked him out of Father’s residence. Bly visited Aus. L., who stated that he was sad that his mother had “abandoned him” but was more concerned that there was no one to take care of J.W. in his absence. Aus. L. usually took care of J.W. when Mother was drinking. ¶11 On February 29, 2012, the Department filed a Petition for Emergency Protective Services and Temporary Investigative Authority, seeking leave to investigate J.W.’s well-being and to temporarily place J.W. in a home out of Mother’s custody if the circumstances required. The District Court granted the request, and ordered that David Stanley serve as J.W.’s Court Appointed Special Advocate and Guardian Ad Litem (CASA Stanley). The Department and CASA Stanley immediately tried to make contact with Mother to assess J.W.’s well-being. However, Mother did not answer or return their phone calls. On March 2, 2012, Father, with Mother’s permission, absconded with J.W. to Washington State, where he left J.W. with her maternal grandmother. ¶12 CASA Stanley visited the grandmother’s home in Washington and described the living situation as “wholly inappropriate” for J.W. The grandmother had neither the resources nor the personal strength to care for J.W. She struggled with alcohol abuse and had been the subject of prior child neglect findings in that state. CASA Stanley described Mother’s placement of J.W. with the grandmother as “desperate and neglectful.” After it 6 was determined the maternal grandmother was not an appropriate placement, J.W. was returned to Montana and placed in a foster home. ¶13 On August 20, 2012, the District Court conducted a hearing on the Department’s petition to adjudicate J.W. a youth in need of care. At the conclusion of the testimony, the court ruled that J.W. was a youth in need of care, based on Mother’s past history, her action of sending J.W. to Washington, her general instability, and her ongoing drug use. ¶14 Throughout the Montana proceedings, Mother failed to cooperate with the Department. She repeatedly failed to meet with social workers who were trying to assess her parental fitness, and refused to participate in drug testing. Ultimately, the Department was forced to seek a court order to obtain a hair sample, which tested positive for methamphetamine.2 During the fall, when the Department asked Mother to undergo urinalysis testing, Mother agreed to the testing but then failed to show up. ¶15 On October 11, 2012, the Department filed a petition (1) to forego reasonable efforts to reunify Mother and J.W. and (2) to terminate Mother’s parental rights. On December 6, 2012, the District Court held a hearing to address both issues. December 6, 2012 Termination Hearing ¶16 Colorado child-protection worker Sarah Cassano (Cassano) testified that CCDHS first become involved with Mother in 2005, when it received reports that Aus. L. was outside in the cold because his mother would not let him in the home. Cassano said that CCDHS’s investigation revealed that Mother had a drug problem and could not 2 Mother also admitted to taking “ecstasy” during the summer of 2012. 7 adequately parent her children. Cassano also noted that Mother failed to take responsibility for her actions and their impact on her children, and that she had been dishonest throughout the CCDHS’s case. Mother’s significant problems and her inability to take responsibility led Cassano to believe that Mother would not be able to correct her parenting problems within a reasonable period of time. The District Court found Cassano’s testimony “credible” and “consistent with the other witnesses and documents.” ¶17 Barbara Maddren-Broughton (Maddren-Broughton), the child protective services supervisor for Park County Child and Family Services, testified that her department first dealt with Mother in 2011, but had received the most recent reports of neglect on February 9, 2012. This was when the Department was notified that Mother was “intoxicated while parenting” and leaving her children with ex-boyfriends for days without returning. Maddren-Broughton also confirmed the details of Father taking J.W. to Washington with Mother’s permission. On cross-examination, Maddren-Broughton admitted that the Department had decided to seek termination of Mother’s parental rights without a current psychological evaluation or chemical dependency evaluation. ¶18 Prior to the hearing, the Department retained Dr. Michael Butz (Dr. Butz), a clinical psychologist, to perform a “desk review” of various records pertaining to Mother’s parenting. Dr. Butz concluded that several factors indicated that Mother would not change her unfit behavior in the foreseeable future. First, Dr. Butz noted that psychological evaluations of Mother from 2007 and 2012 indicated that she “suffers from 8 Personality Disorder and Cyclothymia.”3 These disorders, Dr. Butz explained, have an “enduring and lasting effect” on Mother’s behavior, which explained why her parenting had been “insufficient, neglectful and abusive even without the presence of verifiable substance abuse.” Second, Dr. Butz noted that the documentation indicated that Mother felt that she had done nothing wrong and, thus, had no reason to change her behavior. Dr. Butz pointed out that according to the prevailing psychology literature Mother’s failure to acknowledge her problems indicated she was unlikely to make substantial changes in the “foreseeable future.”4 Third, Dr. Butz testified that Mother’s pattern of abuse and neglect of children, across three states, supported the conclusion that her unfit behavior would not change. Fourth, Dr. Butz noted that it was significant that Mother had not shown, over all of her years of parenting trouble, a motivation to change her behavior. Dr. Butz concluded that, without such motivation, all treatments were likely to fail to prompt change in her behavior: “All therapies for the personality disorders, the more recent updates on treating Cyclothymia could be reviewed and the latest on Polysubstance Dependence with regard to methamphetamine could be analyzed but none 3 Dr. Butz explained that “cyclothymia” was an “enduring mood disorder” that was similar to but “lighter” than bipolar disorder. He testified that Mother’s diagnosis of a “personality disorder” generally meant that she had experienced a “developmental rift” when growing up that left her with “histrionic, borderline, and narcissistic traits.” 4 Dr. Butz attributed Mother’s lack of motivation to her placement in the “precontemplation stage” in the “Stages of Change” model: “Precontemplation is the stage at which there is no intention to change behavior in the foreseeable future. Many individuals in this stage are unaware or under aware of their problems.” (Quoting James O. Prochaska & Carlo C. DiClemente, In Search of How People Change: Applications to Addictive Behaviors, American Psychologist 1103 (Sept. 1992).) 9 of this would have any impact so long as [Mother] remains unmotivated for change.” The District Court found Dr. Butz’s testimony persuasive. ¶19 Mother called Joseph Scalia (Scalia), the therapist who treated Aus. L., to counter Dr. Butz’s testimony. Scalia observed Mother with her children “approximately” eight times. Although he had not reviewed any of the Colorado records pertaining to Mother’s previous terminations, Scalia concluded the “odds” of Mother psychologically prevailing over her “demons sufficiently to mother a child in the near future” were “substantial.” The District Court rejected Scalia’s testimony because the court found “no basis for the conclusion that [Mother’s] conduct will change in a reasonable amount of time.” ¶20 The Livingston Assistant Chief of Police testified as to Mother’s contacts with law enforcement between 2009 and 2012. He stated that Mother was involved in several domestic violence situations where the police were called, as well as numerous traffic violations and arrest warrants. The District Court concluded: “While not all of the[se] contacts are serious, they show a general disregard for the law and continuation of the pattern of irresponsibility which carries over to her parenting.” ¶21 Donna Delich (Delich), a clinical social worker and licensed addition counselor, testified about Mother’s substance-abuse treatment. Delich stated that Mother had only come to see her during two time periods: (1) after Colorado instituted its proceeding to terminate Mother’s rights to A.K.M.H. and Q.D.J.W. and (2) after the Department instituted the abuse and neglect proceedings as to J.W. Delich further testified that Mother had recently taken steps to address her drug and alcohol problems; however, it 10 would take two years before Mother was functioning near her normal levels. The District Court found that Delich’s testimony exemplified Mother’s behavior of only taking corrective action at the 11th hour of termination proceedings: “[Mother’s] history with Ms. Delich is typical. [Mother] would seek and attend counseling when something like a hearing was hanging over her head, but otherwise shows little motivation to change.” ¶22 Mother also called Annie Fry (Fry), a child mentor who had supervised Mother’s thirty-three visits while J.W. was in foster care. Fry stated that she saw “a strong bond between mother and daughter” and only positive interactions during these visits. However, on cross-examination, Fry admitted that a positive interaction during visits was “typical.” ¶23 Mother had Linden Kacick (Kacick), a licensed addiction counselor, testify as to Mother’s recent participation in a drug and alcohol treatment program. Kacick described Mother’s participation in the treatment as “very cooperative,” and noted that she was “motivated to make and seek changes in her life.” However, Kacick was surprised to learn that Mother had gone through a similar treatment program during the Colorado proceedings that had ultimately been unsuccessful in correcting her parenting problems. ¶24 Post-hearing, the District Court issued its order concluding that the Department need not make reasonable efforts to reunite Mother and J.W., and terminating Mother’s parental rights to J.W. The District Court reasoned that reunification efforts were unnecessary because Mother had her parental rights to A.K.M.H. and Q.D.J.W. previously terminated and the circumstances pertaining to those terminations were 11 “identical” to Mother’s unfit parenting of J.W. The court further found that it was in the best interests of J.W. to terminate Mother’s parental rights. STANDARD OF REVIEW ¶25 “We review for abuse of discretion a district court’s termination of parental rights.” In re C.J., 2010 MT 179, ¶ 20, 357 Mont. 219, 237 P.3d 1282. This Court reviews a district court’s conclusions of law for correctness and its findings of fact to determine if they are clearly erroneous. In re D.B.J., 2012 MT 220, ¶ 23, 366 Mont. 320, 286 P.3d 1021. Whether a district court violated a parent’s constitutional right to “fundamentally fair procedures” in termination proceedings, is “a question of constitutional law, for which our review is plenary.” In re T.S.B., 2008 MT 23, ¶ 20, 341 Mont. 204, 177 P.3d 429. DISCUSSION ¶26 Sections 41-3-601 through 612, MCA provide the “procedures and criteria by which the parent-child legal relationship may be terminated by a court if the relationship is not in the best interest of the child.” Section 41-3-602, MCA. These provisions are only operative when “there has been a determination that a child is abused or neglected, as defined in 41-3-102.” Section 41-3-602, MCA. “Abused and neglected” is defined as: “(i) actual physical or psychological harm to the child; (ii) substantial risk of physical or psychological harm to a child; or (iii) abandonment.” Section 41-3-102(7), MCA. If a child is “abused or neglected,” the court is authorized to terminate the parent-child relationship if it finds that any of the criteria enumerated in § 41-3-609(1), MCA, exist. 12 In re A.H.D., 2008 MT 57, ¶ 17, 341 Mont. 494, 178 P.3d 131; In re K.J.B., 2007 MT 216, ¶ 25, 339 Mont. 28, 168 P.3d 629. Section 41-3-609(1)(d), MCA, permits the termination of the parent-child relationship when “the parent has subjected a child to any of the circumstances listed in 41-3-423(2)(a) through 2(e)[.]” Section 41-3-423(2)(e), MCA, in turn permits termination when the parent has “had parental rights to the child’s sibling or other child of the parent involuntarily terminated and the circumstances related to the termination of parental rights are relevant to the parent’s ability to adequately care for the child at issue.” ¶27 In addition to providing grounds for termination, § 41-3-423(2)(e), MCA, relieves the Department of typical requirements under certain circumstances. Typically, before seeking termination of parental rights, the Department must make “reasonable efforts” to remedy the parenting problems that prompted its intervention—by providing, for example, drug treatment programs—so as to preserve and reunify the family. Section 41- 3-423(1), MCA (“The department shall make reasonable efforts to prevent the necessity of removal of a child from the child’s home and to reunify families.”). However, § 41-3- 423(2)(e), MCA, exempts the Department from providing these services if a court determines that “preservation and reunification services need not be provided[.]” See In re A.H.D., ¶ 18 (“Section 41-3-423(2)(a)-(e) frees DPHHS from making further efforts to reunify the family once the statutory elements are met.”); In re Custody and Parental Rights of A.P., 2007 MT 297, ¶ 17, 340 Mont. 39, 172 P.3d 105. 13 ¶28 1. Did the District Court err by failing to conduct a stand-alone hearing on whether the Department should be required to make reasonable efforts to reunify Mother and J.W.? ¶29 Mother alleges the District Court failed to employ fundamentally fair procedures because it did not hold a separate “pre-hearing” to determine whether reunification of J.W. with Mother was possible. The Department argues that Mother’s claim is without merit because she was given the chance at the December 6, 2012 hearing to “present evidence and cross examine all of the Department’s witnesses[.]” Thus, the Department argues, Mother was provided with fundamentally fair procedures. ¶30 A parent’s right to the care and custody of their child is a fundamental liberty interest, which can be terminated only through “fundamentally fair procedures.” In re A.H.D., ¶ 12. In In re C.J., 2010 MT 179, 357 Mont. 219, 237 P.3d 1282, we analyzed what constitutes “fundamentally fair procedures” when the Department seeks to terminate parental rights based on a prior termination. There, the Department filed a petition to terminate the parental rights of a mother who had her parental rights to two other children previously terminated. In re C.J., ¶¶ 9, 13. The mother had significant mental-health issues, learning disabilities, and abused drugs and alcohol. In re C.J., ¶ 5. Because of these problems, the mother was unable to provide a safe and nurturing environment for her first two children. In re C.J., ¶ 6. Five years later, the mother gave birth to C.J., and the Department placed C.J. in protective custody because mother had induced her own premature labor, her mental health issues, her lack of stable housing, her criminal propensities, and the involuntary termination of her parental rights to her two other 14 children. In re C.J., ¶ 11. Shortly after, the Department filed a petition requesting the district court to (1) find that reasonable efforts to reunify C.J. and her mother were not required and (2) terminate the mother’s parental rights. In re C.J., ¶ 13. The district court held a combined hearing to take evidence relevant to both requests. In re C.J., ¶ 12. On appeal, the mother argued that the district court should have held a separate hearing on the Department’s request for an exemption from the “reasonable efforts” requirement. In re C.J., ¶ 25. We held that the combined hearing constituted “fundamentally fair procedures” that adequately protected the mother’s rights because she had notice and an opportunity to be heard: she was on notice because the Department stated its intent to forego reasonable efforts in its petition and she was given “ample opportunity” to be heard during the combined hearing through the presentation of evidence and witnesses. In re C.J., ¶¶ 14, 27. ¶31 Likewise, here, Mother was on notice that the Department was seeking to forgo the typical “reasonable efforts” requirement and was given “ample opportunity” to be heard. The Department put Mother on notice that it was seeking exemption from the “reasonable efforts” requirement in its October 11, 2012 petition: “It is . . . requested that the court make a judicial finding that preservation or reunification services are not necessary pursuant to § 41-3-423(2)(e) and (5).” And, Mother had an opportunity to be heard during the December 6, 2012 hearing. At the hearing, Mother had several witnesses testify on her behalf: her chemical dependency counselor, the woman who had supervised Mother’s visits while J.W. was in foster care, and Aus. L.’s therapist. She 15 also elicited helpful testimony from the Department’s witnesses through cross-examination. By giving notice to Mother and allowing her to be properly heard, the District Court employed “fundamentally fair procedures,” and was not required to hold a separate, stand-alone hearing. In re A.H.D., ¶ 12; In re C.J., ¶ 27. ¶32 2. Did the District Court commit reversible error by failing to conduct a permanency plan hearing? ¶33 Mother claims that the District Court’s order must be reversed because it failed to conduct the necessary permanency plan hearing. The Department counters that although the court failed to conduct the permanency plan hearing, the purpose of the hearing was fulfilled because the Department was actively working with Father so J.W. could permanently live with him. ¶34 Section 41-3-423(5) provides: If the court finds that preservation or reunification services are not necessary pursuant to subsection (2) or (3), a permanency hearing must be held within 30 days of that determination and reasonable efforts, including consideration of both in-state and out-of-state permanent placement options for the child, must be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child. (Emphasis added.) We have explained that the “purpose of a permanency plan hearing is to assure that children taken into protective custody by the [Department] do not languish in foster care or fall through the proverbial administrative crack.” In re A.R., 2004 MT 22, ¶ 21, 319 Mont. 340, 83 P.3d 1287. While we do not condone the failure to hold a permanency plan hearing, we have recognized that such failure is not a per se violation of a parent’s rights. See e.g. In re A.R., ¶ 21; In re B.B., ¶ 27. So long as the Department’s 16 actions are consistent with ensuring the child does not languish in foster-care or administrative limbo, the district court’s failure to hold a permanency plan does not violate the terminated parent’s right to fundamentally fair procedures. In re A.R., ¶¶ 15, 21-22 (mother’s rights not violated by court’s failure to conduct hearing within 30 days because DPHHS was working with biological father on treatment plan in hopes to reunify the children with him); In re B.B., ¶ 27 (parents’ rights not violated by court’s failure to hold hearing because the “Department’s repeated efforts to reunite the children with their parents, clearly demonstrate[d] the Department’s reunification goal.”). ¶35 Here, although the District Court failed to hold a permanency hearing, the Department’s actions were consistent with the purposes of such a hearing. During the same time it was seeking a judicial determination that reunification and preservation services were not needed as to Mother, the Department had entered into a treatment plan with J.W.’s father. One of the treatment plan’s explicit goals was to assess Father’s ability to provide a “safe, appropriate, and stable home environment” for J.W. This plan demonstrated that the purposes of a permanency hearing—to ensure that the Department is moving forward with a permanent placement for the child—was being fulfilled. The District Court’s failure to hold a permanency plan hearing did not violate Mother’s right to fundamentally fair procedures. In re A.R., ¶ 21; In re B.B., ¶ 27. ¶36 3. Did the District Court err by concluding that the circumstances surrounding Mother’s prior terminations in Colorado were relevant to her parenting of J.W.? ¶37 Mother argues that the problems giving rise to the Colorado termination of her parental rights—she had moved to Montana, was involved in violent domestic 17 relationships, and her unwillingness to acknowledge harm caused to her children—were not present in her parenting of J.W., and, therefore the Colorado terminations are not relevant to this proceeding. The State counters that the Colorado proceedings are relevant because the circumstances that led to the prior terminations have remained unchanged: Mother continues to use dangerous drugs, is resistant to treatment, and continues to be involved in relationships with domestic violence. These issues, the State argues, have created a dangerous environment for J.W. just as it did for Mother’s previous children. ¶38 At “any time during an abuse and neglect proceeding,” the Department may seek a judicial determination that “preservation or reunification services need not be provided.” Section 41-3-423(2), MCA. The court has the authority to make such a determination, if the parent: “had parental rights to the child’s sibling or other child of the parent involuntarily terminated and the circumstances related to the termination of parental rights are relevant to the parent’s ability to adequately care for the child at issue.” Section 41-3-423(2)(e), MCA. The court’s finding that (1) the parent’s parental rights have previously been terminated and (2) that the circumstances surrounding the prior termination are “relevant” to the current termination proceeding “must be supported by clear and convincing evidence.” Section 41-3-423(4), MCA; In re A.P., ¶ 23 (the Department must show by clear and convincing evidence these two statutory requirements have been met). Because it is undisputed that Mother has been subject to previous involuntary terminations, we need only determine whether the District Court 18 correctly concluded that the circumstances surrounding those terminations are “relevant” to the current termination proceeding. ¶39 Circumstances surrounding previous involuntary terminations remain “relevant,” “unless the circumstances have changed.” In re A.P., ¶ 30; In re K.J.B., ¶ 36. This construction of “relevant” recognizes that a parent is not to be afforded multiple chances to remedy the same problems at the expense of an abused or neglected child’s welfare: “A prior termination, followed by a parent’s demonstration of continuing unfitness, indicates that decisive termination of parental rights is the best way to protect a child’s welfare.” Kathleen Haggard, Treating Prior Terminations of Parental Rights as Grounds for Present Terminations, 73 Wash. L. Rev. 1051, 1053 (1998). ¶40 In re K.J.B., ¶¶ 3, 7, 9-10, dealt with termination of the parental rights of a mother and father who had had their rights to four previous children terminated for being “unable or unwilling to provide the child[ren] with the special care” they needed. The previous children were all born with a “chromosomal abnormality” that left them needing specialized care. In re K.J.B., ¶¶ 4, 9-10. The parents repeatedly failed to actively participate with their treatment plans designed to teach them how to provide that care and their parental rights were terminated. In re K.J.B., ¶¶ 5, 7. Later, K.J.B. was born with the same chromosomal abnormality. In re K.J.B., ¶ 11. The Department petitioned to terminate the parents’ rights and asked the court to find that reasonable efforts to reunify the parents with K.J.B. were not required because of the previous terminations. In re K.J.B., ¶ 13. The District Court heard the testimony of several witnesses before 19 concluding that reasonable efforts were not necessary because the circumstances present in four previous terminations were relevant to their parenting of K.J.B. In re K.J.B., ¶ 21. The parents appealed and we affirmed, reasoning the circumstances (the parents’ unfit behavior) remained unchanged since the prior terminations: Our review of the record convinces us that DPHHS met its burden of establishing that [the parents] remain unable to safely and adequately address K.J.B.’s special needs and provide for her necessary care . . . . In this respect, their circumstances are unchanged from the circumstances surrounding and underlying their previous parental terminations. The District Court heard extensive testimony from numerous professionals who have worked with, observed or evaluated the parents . . . . Under these circumstances, it is apparent that the two critical circumstances—the parents’ limitations and the special needs of the child—that were relevant to the parents’ inability to care for their previous children had not changed. In re K.J.B., ¶ 36; accord In re A.P., ¶¶ 29-30 (circumstances of prior termination relevant because mother continued to make decisions detrimental to A.P.’s well-being). ¶41 Here, substantial evidence supported the District Court’s determination that Mother’s unfit behavior remained unchanged since Colorado terminated her rights to A.K.M.H. and Q.D.J.W. The testimony established that Mother continued to suffer from the same mental health problems she did during the Colorado proceedings. Dr. Butz reviewed psychological examinations of Mother from 2007 and 2012; both concluded that Mother suffered from a personality disorder and “cyclothymia.” Testimony also established that Mother continued to use dangerous drugs and abuse alcohol during her parenting of J.W. A hair sample obtained from Mother by court order tested positive for methamphetamine. The Department first began investigating Mother when it received reports that she had left J.W. at an ex-boyfriend’s house and would not take her back 20 because she “was too drunk.” Finally, the testimony established that Mother continues to be involved in violent relationships that put her children in danger. On December 7, 2011, the Department received a report that Mother was intoxicated and fighting with an ex-boyfriend. When Aus. L. stepped in to help, the ex-boyfriend’s father pointed a gun at him. In addition, law enforcement testimony established that Mother had been involved in several domestic violence situations. ¶42 These conditions once again contributed to Mother’s unacceptable parenting. Just as she left A.K.M.H and Q.D.J.W. behind in Colorado when she moved to Montana, Mother left J.W. with an ex-boyfriend for three days while she drank alcohol.5 Further, she approved of Father’s absconding of J.W. to Washington, where the environment was “wholly inappropriate” for a child; the grandmother was intoxicated while taking care of J.W. and there was little food in the residence. The competent testimony further established that Mother is unlikely to change her unfit behavior in the “foreseeable future.” Dr. Butz testified that Mother’s psychological state and her track record demonstrate that Mother did not have the necessary motivation to make the substantial changes needed. To be sure, Mother did make what appear to be small steps in the right direction just prior to the termination hearing—for example, she sought out 5 Mother argues that her move to Montana was a primary reason that Colorado terminated her parental rights, and that this reason is not relevant here because she has not moved anywhere. However, Mother’s argument misses the point. Colorado terminated her parental rights, not merely because she had moved, but because the move was evidence that she would abandon her children. In this case, Mother likewise demonstrated her willingness to abandon J.W. when she left her with an ex-boyfriend for three days while she was drinking. 21 substance-abuse treatment. However, Mother’s past demonstrates that she only participates in treatment programs when a termination proceeding is pending. ¶43 The evidence that the circumstances surrounding Mother’s termination in Colorado remained relevant to her parenting of J.W. was “definite, clear, and convincing[.]” In re J.L., 277 Mont. at 289, 922 P.2d at 462. The District Court did not abuse its discretion. ¶44 Affirmed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ PATRICIA COTTER | July 23, 2013 |
6d5b4218-28c5-4ead-9e2e-ab4ccacf82c9 | State v. William Shegrud | 2013 MT 164N | DA 12-0410 | Montana | Montana Supreme Court | DA 12-0410 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 164N STATE OF MONTANA, Plaintiff and Appellee, v. WILLIAM SHEGRUD, Defendant and Appellant. APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 04-171 Honorable James A. Haynes, 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 William Fulbright, Ravalli County Attorney; Hamilton, Montana Submitted on Briefs: May 28, 2013 Decided: June 18, 2013 Filed: __________________________________________ Clerk June 18 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 William Shegrud (Shegrud) appeals from the District Court’s summary dismissal of his petition for postconviction relief, which challenged the court’s revocation of sentences imposed upon Shegrud in three different criminal proceedings. Shegrud filed appeals in each of the three proceedings, and by order of this Court on January 14, 2013, the three appeals were consolidated under Cause No. DA 12-0410. We have revised the caption to correctly reflect a postconviction proceeding. ¶3 In 2005, Shegrud pled guilty to criminal distribution of dangerous drugs, a felony, in violation of § 45-9-101, MCA, and received a six-year deferred sentence. He also pled guilty that year to transferring illegal articles, a felony, in violation of § 45-7-307, MCA, and received another six-year deferred sentence, to be served concurrently with his deferred sentence for the dangerous drug offense. In 2007, Shegrud pled guilty to assault on a minor, a felony, in violation of § 45-5-212(1), MCA, and partner or family member assault, a misdemeanor, in violation of § 45-5-206(1), MCA. He received a five-year suspended commitment to the Department of Corrections for the assault on a minor conviction, and a one-year suspended sentence for the partner or family member assault 3 conviction, with these sentences to run concurrently. Shegrud’s deferred sentences in his two 2005 convictions were also revoked and in each case he was sentenced to a ten-year commitment to the Department of Corrections, with six years suspended, to run concurrently with each other and with his other sentences. ¶4 In 2011, Shegrud was arrested for criminal endangerment, aggravated driving under the influence, displaying incorrect license plates on his vehicle, and operating a motor vehicle while his privilege to do so was revoked. Following his arrest, the State filed petitions to revoke all three of Shegrud’s suspended felony criminal sentences. An adjudicatory hearing was conducted by the District Court on April 5 and 13, 2012, during which Shegrud admitted to violating the condition of his sentences prohibiting possession and consumption of alcohol. At the conclusion of the hearing, the District Court found that Shegrud had violated additional conditions of his probation. Shegrud was then sentenced to commitments to the Department of Corrections with no time suspended, his commitments to run concurrently. Shegrud did not appeal from these judgments. ¶5 In June 2012, Shegrud filed a very brief, handwritten petition for postconviction relief alleging that his arrest while on probation had occurred in violation of § 46-23- 1012, MCA, because there was “no evidence of 12 hour Authorization to pick up and hold was filed and followed,” and requesting “that this be passed to a substitute Judge” because of bias, based upon statements made by the presiding judge during the 2011 revocation hearing. The request for disqualification was not supported by affidavit. At a hearing conducted on the petition, the District Court orally addressed the issue of bias, 4 indicating that bias had not been established by the petition and apologizing for any offensive remarks. The District Court also addressed the substantive allegations of the petition, stating that the petition was supported only by generalizations and that the statutory violation issue “should have come up long before now. That’s something that has to do with a basis for your even going through the revocation proceeding, and you had an opportunity to challenge that.” The District Court then summarily denied the petition without further proceedings. ¶6 On appeal, Shegrud argues the District Court was without authority to proceed on the petition in light of the disqualification request, that there was insufficient evidence to support the District Court’s revocation finding that Shegrud had violated driving conditions, which in turn demonstrate the District Court Judge’s bias, and that the District Court erred by denying the petition without first conducting an evidentiary hearing. Shegrud also requests the Court to invoke the plain error doctrine and undertake review of his claim that his revocation counsel rendered ineffective assistance of counsel by failing to raise the issue that his probation arrest violated statute and by failing to seek disqualification of the District Court Judge prior to the revocation hearing. The State responds that Shegrud failed to follow the statutory process for disqualification by failing to support his request by affidavit establishing facts demonstrating bias or prejudice, failed to file a legally sufficient postconviction relief petition, and that Shegrud’s ineffective assistance of counsel claims are not appropriate for plain error review. 5 ¶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. The issues in this case are either legal issues that are controlled by settled law and correctly interpreted by the District Court, or ones of judicial discretion and there clearly was not an abuse of discretion. Shegrud did not follow the statutory process for disqualification and the necessity of plain error review has not been established. His petition for postconviction relief was legally insufficient. “[U]nlike civil complaints, the postconviction statutes are demanding in their pleading requirements.” . . . “a petition for postconviction relief must be based on more than mere conclusory allegations. It must ‘identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records, or other evidence establishing the existence of those facts.’” Kelly v. State, 2013 MT 21, ¶ 9, 368 Mont. 309, 300 P.3d 120 (internal citations omitted). ¶8 Affirmed. /S/ JIM RICE We concur: /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ BRIAN MORRIS /S/ BETH BAKER | June 18, 2013 |
e1839a11-d64e-4392-bf44-4a05000b89f9 | State v. Prindle | 2013 MT 173 | DA 11-0291 | Montana | Montana Supreme Court | DA 11-0291 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 173 STATE OF MONTANA, Plaintiff and Appellee, v. DANIEL ALVIN PRINDLE, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 09-0132 Honorable G. Todd Baugh, Presiding Judge COUNSEL OF RECORD: For Appellant: Penelope S. Strong, Attorney at Law; Billings, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Lynn Ployhar, Assistant Attorney General; Helena, Montana Scott Twito, Yellowstone County Attorney, Christopher Morris, Deputy County Attorney; Billings, Montana Submitted on Briefs: April 24, 2013 Decided: July 2, 2013 Filed: __________________________________________ Clerk July 2 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Daniel Alvin Prindle (Prindle) appeals from the order of the Thirteenth Judicial District Court, Yellowstone County, denying his motion to withdraw his guilty plea. We affirm, and address the issue: ¶2 Did the District Court err in denying Prindle’s motion to withdraw his plea as involuntarily entered? FACTUAL AND PROCEDURAL BACKGROUND ¶3 On the evening of May 1, 2008, Prindle, the driver of a Honda SUV carrying Katie Grant (Grant) and Brianna Coe (Coe) as passengers, inexplicably pulled out in front James Archer (Archer), the driver and sole occupant of a Buick sedan, on a road just outside Billings city limits. Archer’s vehicle had the right of way. The front of Archer’s sedan struck the side of Prindle’s SUV, causing a “T-Bone” style collision. At 7:45 p.m., Montana Highway Patrol Trooper Brian Sampson (Trooper Sampson) was dispatched to the accident. All four individuals involved in the accident were injured and were receiving medical treatment when Trooper Sampson arrived. Archer’s injuries required a number of surgeries, and he suffered loss of physical and mental abilities. Grant suffered several injuries including facial scarring, and Coe sustained a traumatic head injury. ¶4 Trooper Sampson’s investigation pointed to marijuana use by Prindle as a contributing cause to the collision. Trooper Sampson was unable to speak to Archer and Coe at the scene because they were being transported for surgery, but was able to talk to Grant. Grant had previously told medical responders that she and Prindle had ingested marijuana a 3 couple hours before the accident. Grant confirmed this statement to Trooper Sampson and added the detail that she and Prindle had smoked “a couple bowls” of marijuana. Grant was then taken to the hospital where Trooper Sampson resumed his questioning. Grant said she and Prindle smoked marijuana “right after [she] got out of school.” Grant’s parents were present, and Grant’s father received Trooper Sampson’s permission to retrieve Grant’s cell phone and purse from Prindle’s car, which had been towed from the scene. When looking for these items, Grant’s father discovered a marijuana pipe and scale on the floorboards of Prindle’s SUV. The pipe and scale were taken as evidence. ¶5 The State charged Prindle with three counts of negligent vehicular assault, one count of criminal endangerment, and one count of driving while suspended. Matthew Claus (Claus) was appointed as Prindle’s public defender. ¶6 Claus investigated the State’s case against Prindle. Through discovery, he received police reports and diagrams, medical records and other documents. He made copies of these documents for Prindle, and mailed him additional discovery as it was received from the State. Claus met with Prindle on numerous occasions in his office to discuss the case and communicated with Prindle by telephone. During these conversations, Prindle repeatedly voiced interest in pleading guilty if he could receive a suspended or deferred sentence rather than taking the case to trial whereafter, if convicted, he could face prison time. Prindle told Claus his sole memory of the evening of the accident was that he was the driver, and said he only knew what had happened from talking to Grant and his mother. 4 ¶7 Claus interviewed Grant and Prindle’s mother. Grant explained that she had met up with Prindle after school at a grocery store. From there, they picked up Prindle’s mother from work and dropped her off at home. Then they picked up marijuana, and drove around smoking a “blunt” for roughly a half hour before heading to Coe’s house, where she and Coe “split a beer.” The accident occurred shortly after they left Coe’s house. Grant said that she did not think Prindle was under the influence of marijuana at the time of the accident. Prindle’s mother said she did not think Prindle appeared under the influence of marijuana when he picked her up at approximately 5:00 p.m. However, unlike Grant’s account, Prindle’s mother said Prindle was alone when he picked her up. ¶8 Claus discussed this information with Prindle. Prindle asked Claus to find out how long the impairing effects of marijuana lasted. Claus found an article published by the National Highway Traffic Safety Administration (NHTSA Article) explaining that marijuana users’ motor skills, behavior, perception and cognition were typically impaired for three to five hours after ingesting the drug. ¶9 Claus and Prindle met again to discuss the strengths and weaknesses of the State’s case and assess a plea offer from the State. Claus explained the State’s case was not the strongest, but there was still sufficient evidence for a jury to find him guilty based on Grant’s testimony of his marijuana use in the hours preceding the accident. The State’s plea offer was for a suspended sentence recommendation, so Prindle asked Claus to see if the State would agree to recommend a deferred sentence. Claus made the counter offer to the State, and the State agreed. Prindle would plead guilty to one count of negligent vehicular assault 5 and driving while suspended; in return, the State would dismiss the other charges and recommend a six-year deferred sentence on the remaining negligent vehicular assault charge. ¶10 During the summer of 2010, Prindle moved to Oregon to pursue a career in snowboarding. On August 24, 2010, Prindle signed the plea agreement and appeared for a change-of-plea hearing. He hand-wrote on the plea agreement that he was pleading guilty because: “On May 1st, 2008, I drove my vehicle o[n] marijuana and negligently caused serious bodily injury to James Archer, Brianna Coe, and Kati[e] Grant in Yellowstone County.” Prindle also acknowledged in the agreement that the court was not obligated to accept the agreement and could instead sentence him to different terms. At the change-of- plea hearing, the judge asked if Prindle understood that the court did not have to accept the plea agreement’s recommended sentence and that Prindle could receive the maximum penalty of 10 years in prison. Prindle said he understood, and stated he was satisfied with Claus’s work. Prindle then pled guilty, and his sentencing hearing was set for a later date. In the meantime, Prindle returned to Oregon. ¶11 In January 2011, Prindle returned to Montana for his sentencing hearing. The District Court sentenced Prindle in accordance with the plea agreement. Prindle expected to immediately return to Oregon, but when he reported to his probation officer, he was informed that protocol required Prindle to complete 90 days on supervision “without issues” before he was permitted to leave Montana. Prindle filed a notice of appeal on May 19, 2011, but then moved the District Court for leave to withdraw his plea. Prindle filed an unopposed 6 motion with this Court to remand the matter to the District Court to adjudicate his motion to withdraw. This Court granted the motion. ¶12 The District Court held a hearing on Prindle’s motion and took testimony from several witnesses. Prindle’s mother testified but provided no new relevant information. Prindle testified that he would have gone to trial if he had known just how weak the State’s case was or had Claus not incorrectly assured him there was “no reason” why he would not be able to immediately return to Oregon. Prindle further alleged that during the August 24, 2010 change-of-plea hearing, he had informed the judge that Claus had told him he would be able to return to Oregon. ¶13 Prindle also called Dr. Jennifer Souders (Dr. Souders), an expert on impairment due to marijuana use, to opine that Claus should have hired an expert to determine whether Prindle was still under the influence of marijuana at the time of the accident. While Dr. Souders criticized the NHTSA Article used by Claus for academic shortcomings,1she agreed with its conclusion that, for driving purposes, impairment from marijuana generally lasts around three hours. ¶14 Claus testified about his representation of Prindle. Claus stated that the critical issue in the case was the timing of Prindle’s marijuana use. He said he recognized the conflict between Grant’s statement that she and Prindle had smoked marijuana after taking Prindle’s mother home together and Prindle’s mother’s statement that Prindle was alone when he took 7 her home. He also recognized that Grant’s recollection of when she and Prindle smoked had changed from “right after school” to after taking Prindle’s mother home. Claus believed, however, that a jury would most likely resolve this conflict by concluding that Grant had smoked marijuana with Prindle after Prindle left his mother’s house. This placed Prindle within the three-hour window of impairment discussed in the NHTSA Article. Claus explained that he had not conducted further interviews primarily because Prindle did not want to go to trial and a deferred sentence was therefore his best option. ¶15 The District Court entered findings of fact, conclusions of law and denied Prindle’s motion to withdraw his plea on May 30, 2012. The court concluded that Prindle’s plea was entered voluntarily because Claus never promised that Prindle would be allowed to reside in Oregon and Claus had conducted adequate research to advise his client concerning marijuana impairment. Prindle appeals. STANDARD OF REVIEW ¶16 The ultimate question of whether a plea is voluntarily made is a mixed question of law and fact. State v. Brinson, 2009 MT 200, ¶ 3, 351 Mont. 136, 210 P.3d 164. Consequently, we review a district court’s ultimate denial of a motion to withdraw a guilty plea de novo. Brinson, ¶ 10. However, we review the district court’s underlying factual findings regarding the voluntariness of the plea to determine if they are “clearly erroneous.” State v. Warclub, 2005 MT 149, ¶¶ 22-24, 327 Mont. 352, 114 P.3d 254. 1 Dr. Souders took issue with the Article because it was not peer-reviewed and she felt that its conclusion that some “psychological impairment” lasts up to 24 hours after 8 DISCUSSION ¶17 Montana law permits a defendant to withdraw his guilty plea within one year of final judgment for “good cause.” Section 46-16-105(2), MCA. Good cause exists when the defendant’s plea was involuntarily entered. Warclub, ¶ 16.2 A plea must be voluntary because the defendant is waiving his constitutional rights to not incriminate himself and to a trial by jury. Brady v. U.S., 397 U.S. 742, 748, 90 S. Ct. 1463, 1468-69 (1970). We utilize the Brady standard to determine if a plea was voluntarily made: “A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper to the prosecutor’s business.” Warclub, ¶ 18 (quoting Brady, 397 U.S. at 755, 90 S. Ct. at 1472). “‘Where a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.’” State v. McFarlane, 2008 MT 18, ¶ 11, 341 Mont. 166, 176 P.3d 1057 (quoting Hans v. State, 283 Mont. 379, 411, 942 P.2d 674, 693 (1997) (citing Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985)). ingesting marijuana was “overstated.” 2 In State v. Lone Elk, 2005 MT 56, ¶¶ 17-19, 326 Mont. 214, 108 P.3d 500 (overruled on other grounds by Brinson, ¶ 9), we concluded that the “good cause” standard included not only the constitutionally-required voluntariness inquiry but possibly other 9 Thus, applying the test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), a defendant seeking to withdraw his guilty plea because he received ineffective assistance must show: “(1) that his counsel’s advice fell outside the range of competence demanded of a criminal attorney, and (2) but for counsel’s deficient performance, he would not have entered a guilty plea.” McFarlane, ¶ 11 (citing Hans, 283 Mont. at 410-11, 942 P.2d at 693); Hill, 474 U.S. at 57-59, 106 S. Ct. at 369-70. ¶18 Did the District Court err in denying Prindle’s motion to withdraw his plea as involuntarily entered? ¶19 Prindle argues that his guilty plea was involuntary for three reasons. First, he asserts that Claus provided ineffective assistance when investigating his case because he failed to retain an expert on marijuana impairment and failed to interview certain witnesses. These omissions, Prindle asserts, led Claus to overestimate the strength of the State’s case, which, in turn, caused Prindle to plead guilty instead of going to trial. Second, Prindle claims that Claus failed to inform him that Negligent Endangerment was a lesser-included offense of Negligent Vehicular Assault. Third, Prindle asserts that Claus improperly told him that he would be permitted to immediately return to Oregon if he pled guilty. A. Ineffective Assistance of Counsel ¶20 In State v. Thomas, 285 Mont. 112, 117-18, 946 P.2d 140, 143 (1997), we adopted the Strickland standard for analyzing a criminal counsel’s duty to investigate. Strickland held that “counsel has a duty to make reasonable investigations or to make a reasonable decision criteria. Accord Warclub, ¶ 16 (“‘Good cause’ includes the involuntariness of the plea, but it 10 that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066; Thomas, 285 Mont. at 119, 946 P.2d at 144. In turn, whether an investigation is “reasonable” will depend in part on the client’s goals: “The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information.” Thomas, 285 Mont. at 117-18, 946 P.2d at 143 (quoting Strickland, 466 U.S. at 691, 104 S. Ct. at 2066). Thus, a defendant’s intent to plead guilty narrows the scope of investigation necessary to be “reasonable.” Smith v. Mahoney, 611 F.3d 978, 987 (9th Cir. 2010) (“Smith’s intent to plead guilty mitigated, but did not eliminate, his attorney’s duty to reasonably investigate.”). The pertinent question is, based on the defendant’s particular goals, did counsel “familiarize him- or herself sufficiently with the facts of the defendant’s case to make an informed recommendation regarding a plea bargain.” John M. Burkoff & Nancy M. Burkoff, Ineffective Assistance of Counsel, § 6.5 at 238 (West Publ. Co. 2011 ed.); cf. Lone Elk, ¶ 23 (reasoning that “case-specific considerations” determine whether a plea is voluntary); Warclub, ¶ 19 (same); McFarlane, ¶ 17 (same). ¶21 Thomas and Strickland direct that the reasonableness of Claus’s investigation is judged in light of Prindle’s desire to avoid trial. The record demonstrates that from the may include other criteria.”). 11 outset Prindle was definite about avoiding the risk of prison time by obtaining a plea agreement with a suspended or deferred sentence. Claus followed Prindle’s directive, and undertook plea negotiations with the State. He was successful in obtaining a deal by which Prindle ultimately received a deferred sentence. ¶22 Given Prindle’s goals, Claus became sufficiently familiar with the facts of the case to make an informed recommendation that Prindle should plead guilty. Claus reviewed Trooper Sampson’s investigative reports, which memorialized Grant’s statement at the accident scene that she had smoked “a couple bowls” of marijuana with Prindle before the accident. Claus listened to Trooper Sampson’s recorded interview of Grant at the hospital, where she again admitted to smoking marijuana with Prindle. Claus independently interviewed Grant, who again confirmed she smoked marijuana with Prindle during the hours leading up to the accident. There was other objective evidence of Prindle’s marijuana use: the marijuana pipe and scale found on the floorboards of his SUV. Claus prudently advised Prindle that based on this evidence, a jury could find him guilty of all four counts of negligent vehicular assault and he could face prison time for the convictions. Claus’s advice to Prindle to plead guilty in exchange for a deferred sentence was very reasonable. ¶23 Prindle alleges that Claus was required to interview the other victims, Archer and Coe, and Coe’s family members “who were present in their home with Mr. Prindle for at least an hour before the accident.” However, the record does not indicate what these witnesses would have said. Contrary to Prindle’s assertion, there is nothing in the record to show that Coe’s family members were even at home when Prindle and Grant were there. 12 Neither Coe nor any member of her family testified at the plea withdrawal hearing. “In cases where counsel fails to conduct adequate pretrial investigation we focus our inquiry as to what information would have been obtained from such investigation and whether such information would have produced a different result.” Weaver v. State, 2005 MT 158, ¶ 21, 327 Mont. 441, 114 P.3d 1039 (citing State v. Denny, 262 Mont. 248, 255, 865 P.2d 226, 230 (1993)). Without knowing what testimony Prindle’s witnesses would have provided, Prindle cannot demonstrate that Claus’s failure to interview them prejudiced his decision to plead guilty. Weaver, ¶¶ 7, 16, 21-23 (Weaver failed to “carry his burden” of establishing his counsel’s failure to interview “potential alibi witnesses, other suspects, and persons who allegedly heard confessions by persons other than Weaver” prejudiced his murder trial when he did not have those witnesses testify at hearing). ¶24 Prindle’s assertion that Claus should have hired an expert on marijuana impairment has a similar defect. The NHTSA Article used by Claus concluded that, for driving purposes, a person is impaired for three to five hours after ingesting marijuana. Prindle’s expert, Dr. Souders, agreed that a marijuana user is generally impaired for three hours. Grant said she and Prindle drove around smoking for roughly a half hour after taking Prindle’s mother home from work. Prindle’s mother’s work shift ended at 5:00 p.m., and Trooper Sampson was dispatched to the accident at 7:45 p.m. Thus, there was evidence to establish that Prindle’s marijuana use was within the three hour window of impairment, a point on which the NHTSA Article and Dr. Souders agreed. Prindle has failed to demonstrate how 13 hiring an expert who offered such a similar conclusion would have prompted him to reject the plea offer and proceed to trial. ¶25 Prindle’s assertions that Claus should have interviewed certain witnesses and retained an expert on marijuana impairment fail to satisfy Strickland’s prejudice prong. Even if we were to determine that a competent defense attorney would have performed these tasks, Prindle has failed to demonstrate how interviewing the witnesses or hiring a marijuana expert would have changed his mind about pleading guilty. McFarlane, ¶ 11. ¶26 Next, Prindle argues that Claus provided ineffective assistance because he failed to tell him that Negligent Endangerment is a lesser-included offense of Negligent Vehicular Assault. He correctly points out that a plea may be involuntary if the defendant is not informed of a lesser-included offense. See State v. Sanders, 1999 MT 136, ¶ 22, 294 Mont. 539, 982 P.2d 1015 (overruled on other grounds by State v. Deserly, 2008 MT 242, ¶ 12 n. 1, 344 Mont. 468, 188 P.3d 1057). However, the record leaves no doubt that Prindle was informed that Negligent Endangerment was a possible lesser-included offense to his charges. On the first page of Prindle’s plea agreement, he acknowledged that Claus explained to him and advised him that Negligent Endangerment was a lesser-included offense of his charges. During the August 24, 2010 change-of-plea hearing, the District Court asked Prindle if he was still willing to plead guilty after being informed that a jury could find him guilty of the lesser-included offense of Negligent Endangerment. Prindle responded, “Yes, sir.” Prindle’s argument on this point has no merit. 14 ¶27 The District Court correctly concluded that Prindle failed to demonstrate Claus rendered ineffective assistance. B. Prindle’s Expectation He Could Immediately Return to Oregon Following Sentencing ¶28 The District Court ruled that Prindle’s plea was not involuntary on this ground because no “promise” was made to Prindle that he would be allowed to return to Oregon following his sentencing, noting that “the possibility always existed that the Court could impose a sentence of incarceration.” Prindle argues that the District Court’s conclusion misses the “salient point” that Prindle’s plea was involuntary because he was led to “reasonably believe” he would be allowed to return to Oregon. In other words, Prindle argues that his plea was involuntary because Claus wrongly predicted a consequence of pleading guilty. ¶29 “A guilty plea is not voluntary if induced by misrepresentation, including an unfulfilled promise.” Lepera v. U.S., 587 F.2d 433, 436 n. 4 (9th Cir. 1978) (citing Brady, 397 U.S. at 755, 90 S. Ct. at 1472); accord State v. Valdez-Mendoza, 2011 MT 214, ¶ 16, 361 Mont. 503, 260 P.3d 151 (defense counsel’s statements that defendant could not receive a fair trial based on race or ethnicity was a misrepresentation that rendered guilty plea involuntary). An erroneous prediction by defense counsel can rise to the level of a misrepresentation. See e.g. Iaea v. Sunn, 800 F.2d 861 (9th Cir. 1986). However, not all erroneous predictions by defense counsel rise to the level of misrepresentation contemplated 15 by Brady or Strickland, as explained by the Ninth Circuit Court of Appeals in Iaea. Iaea, 800 F.2d at 865. ¶30 In Iaea, the defendant was charged with eleven felonies and one misdemeanor. Iaea, 800 F.2d at 862. Defense counsel urged Iaea to plead guilty because “his chances of acquittal were slight and that if he was convicted, he would be subject to Hawaii’s minimum sentencing law,” “there was a good chance of his getting probation if he accepted the plea bargain,” and “the chance of his getting an extended sentence was ‘almost zero.’” Iaea, 800 F.2d at 863. Relying on this advice, Iaea pleaded guilty. He was sentenced to life in prison. Iaea, 800 F.2d at 863. The Ninth Circuit reasoned that Iaea’s counsel’s performance was deficient because his erroneous predictions were numerous and serious: counsel seriously erred in informing Iaea that he could avoid Hawaii’s minimum sentencing statute only if he pled guilty because the relevant version of Hawaii’s minimum-sentencing statute did not apply to Iaea; counsel’s advice that the likelihood of Iaea’s receiving an extended or a life sentence was “practically non-existent” and that he might receive probation was flawed; and counsel was aware that the prosecutor was seeking an extended sentence. Iaea, 800 F.2d at 864-65. The court held “[t]hough a mere inaccurate prediction, standing alone, would not constitute ineffective assistance, the gross mischaracterization of the likely outcome presented in this case, combined with the erroneous advice on the possible effects of going to trial, falls below the level of competence required of defense attorneys.” Iaea, 800 F.2d at 865 (internal citations omitted). 16 ¶31 In Womack v. Del Papa, 497 F.3d 998, 1003-1004 (9th Cir. 2007), Womack was charged with two counts of attempted murder with a deadly weapon, three counts of first degree kidnapping of a minor with use of a deadly weapon, and one count each of burglary, forgery, and possession of a credit or debit card without cardholder consent. Womack, 497 F.3d at 1000. Relying on defense counsel’s advice that the judge would impose the minimum sentence for each count—meaning he would receive 30 to 40 years in prison—the defendant pled guilty. Womack, 497 F.3d at 999. Womack was sentenced to eight life terms without the possibility of parole. Womack, 497 F.3d at 999. Womack moved to withdraw his guilty plea, asserting his attorney’s advice was a “‘gross mischaracterization of the likely outcome’ that fell below the level of competence required of defense attorneys.” Womack, 497 F.3d at 1002 (quoting Iaea, 800 F.2d at 865). The Ninth Circuit disagreed, reasoning the case was distinguishable because, unlike the defendant in Iaea, Womack was not reluctant to plead guilty, and Womack’s attorney’s incorrect advice did not rise to the level of grossly erroneous as in Iaea. Womack, 497 F.3d at 1003 (“there is no other evidence in the record that would elevate Womack’s attorney’s prediction to the level of Iaea’s counsel’s patently erroneous advice.”). ¶32 Here, Prindle’s claim falls comfortably on the Womack end of the spectrum. Prindle points us to statements in the record that demonstrate that Claus predicted Prindle would be able to serve probation in Oregon. See Brinson, ¶ 12 (a defendant’s allegation that his plea was based on a misrepresentation “must be supported by objective proof in the record.”). However, even assuming that Claus’s statement that he saw “no reason” why Prindle could 17 not immediately commence serving his probation in Oregon was incorrect, that error constitutes a “mere inaccurate prediction,” and not a “gross mischaracterization of the likely outcome.” Unlike Iaea, and even Womack, where the defendant’s lawyer predicted leniency but the court imposed life sentences, Prindle received the sentence agreed upon in the plea agreement. A failure to accurately predict that Prindle would have to complete 90 days in Montana on good behavior before returning to Oregon does not rise to the level of gross mischaracterizations present in Iaea. And, unlike Iaea, Prindle was not reluctant to plead guilty—he affirmatively directed Claus to pursue a favorable plea agreement so he could avoid the risk of incarceration. ¶33 The District Court correctly concluded that Prindle’s plea was not involuntarily entered. ¶34 Affirmed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BETH BAKER /S/ MICHAEL E WHEAT | July 2, 2013 |
27985597-11fa-4f22-b8b7-efaa9ea68970 | Rose v. State | 2013 MT 161 | DA 12-0167 | Montana | Montana Supreme Court | DA 12-0167 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 161 ROBERT L. ROSE, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DV 10-538 Honorable Jeffrey H. Langton, Presiding Judge COUNSEL OF RECORD: For Appellant: Robert L. Rose, self-represented; Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Tammy K. Plubell, Assistant Attorney General; Helena, Montana Submitted on Briefs: March 6, 2013 Decided: June 18, 2013 Filed: __________________________________________ Clerk June 18 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 This is Robert Rose’s (Rose) third appeal before this Court. We previously affirmed Rose’s conviction of aggravated kidnapping, assault with a weapon, and assault on a peace officer. State v. Rose, 2009 MT 4, 348 Mont. 291, 202 P.3d 749 (Rose I). We have also affirmed a grant of summary judgment for the State following Rose’s petition for a declaration that the actions of the Montana Department of Corrections violated state open meeting and public participation laws. Rose v. State, 2012 MT 55N, 364 Mont. 552. Rose now appeals the denial of his Petition for Postconviction Relief by the Twenty-First Judicial District Court, Ravalli County. We affirm. ISSUES ¶2 We restate the issues on appeal as follows: ¶3 1. Did the District Court err by denying Rose’s postconviction relief claim alleging that his trial counsel provided ineffective representation during plea negotiations? ¶4 2. Did the District Court err by denying Rose’s postconviction relief claim alleging that he was denied access to counsel during a critical stage of trial? ¶5 3. Did the District Court err by denying Rose’s postconviction relief claim alleging that his appellate counsel provided ineffective representation by failing to raise certain issues on appeal? FACTUAL AND PROCEDURAL BACKGROUND 3 ¶6 Rose was charged with aggravated kidnapping, assault with a weapon, and assault on a peace officer on January 23, 2002. A jury found Rose guilty of all three charges on June 6, 2003 after a four-day trial. Rose’s direct appeal of his convictions alleged a violation of his right to a speedy trial, claimed ineffective assistance of trial counsel, and challenged the District Court’s denials of his request for a hearing to address complaints about his counsel and his motion for a new trial. We rejected these claims in Rose I and upheld Rose’s convictions. Rose then filed a petition for rehearing, which we denied on March 11, 2009. Rose next petitioned the United States Supreme Court for a writ of certiorari, which was denied on October 5, 2009. Rose v. Montana, 558 U.S. 911, 130 S. Ct. 289 (2009). Rose thereafter filed a petition for postconviction relief (the petition) in Ravalli County District Court on September 30, 2010. The State filed a response, as ordered by the District Court, on February 18, 2011. ¶7 Rose’s petition and accompanying memorandum alleged a multitude of ineffective assistance of counsel claims regarding Rose’s appointed trial and appellate counsel. The District Court dismissed all of Rose’s contentions in a 91-page order on January 18, 2012, and this appeal followed. However, Rose has not maintained every claim in his petition on appeal. Instead, Rose’s appeal advances only three alleged instances of ineffective assistance of counsel. These issues concern the conduct of Rose’s last appointed trial counsel, Kelli Sather (Sather), during plea negotiations, an allegedly unconstitutional restriction of Rose’s access to counsel during an overnight recess, and whether Rose’s appointed appellate counsel provided ineffective assistance by declining to raise certain 4 issues on appeal. Rose’s procedural “odyssey” both below and before this Court is long and convoluted, and the period between Rose’s arrest and the trial is summarized in Rose I. See Rose, ¶¶ 8-35. Recognizing this, we will only outline the facts relevant to the issues Rose maintains on appeal. ¶8 A. Facts Pertaining to Sather’s Representation of Rose During Plea Negotiations. ¶9 Rose’s first appealed issue concerns what he alleges was Sather’s improper handling of a plea agreement offer. Sather was appointed to represent Rose on July 22, 2002 after Dustin Gahagan, Rose’s second court-appointed attorney, filed a Motion for Substitution of counsel in anticipation of the end of his conflict public defender contract.1 Ravalli County Attorney George Corn (Corn) sent Sather a letter on May 21, 2003 detailing a proposed plea agreement. Corn offered to dismiss the aggravated kidnapping charge and the felony assault on a police officer charge if Rose pled “open” to assault with a weapon and misdemeanor assault. The plea agreement proposed that the assault with a weapon and misdemeanor assault charges would run consecutively. Corn also stated he “would agree to cap the Persistent Felony Offender at 10 years with 5 suspended,” and that “[t]his would run consecutive to the Assault with a Weapon.” Corn further stated that in the “best case,” Rose faced 1 ¼ years before parole eligibility, and, in the “worst case,” 6 ¼ years. The letter concluded by stating “[p]lease feel free to give this letter to your client,” and advised that the offer would expire at 4:30 p.m. on May 23, 2003. 1 Gahagan himself had been appointed after Larry Mansch, Rose’s initial court-appointed counsel, had volunteered to step aside in light of Rose’s complaints regarding his representation. 5 ¶10 Rose attached an affidavit from Sather to his petition detailing the plea negotiations surrounding Corn’s May 21 offer. In it, Sather claims that Rose had expressed interest in entering into a plea agreement prior to her receipt of Corn’s offer. Sather further claims that she researched the Persistent Felony Offender statutes and case law after receiving Corn’s offer. As a result of this research, Sather apparently came to believe that “Mr. Corn was recommending a sentencing that was not in conformity with the law.” In particular, Sather believed that Corn was improperly characterizing the Persistent Felony Offender (PFO) designation as a separate sentence in addition to the sentence for the underlying offense, and not as a sentencing enhancement meant to replace the offense’s maximum sentence. Sather claims that she and Kathy Anderson, her co-counsel, met with Corn and a Detective Chinn on May 22, 2003 to discuss the proposed plea agreement. Her affidavit does not indicate that she discussed the offer with Rose prior to this meeting, and Rose claims that she did not. Sather’s affidavit states that she presented her research on the nature of the PFO sentence to Corn and “informed him that we could not possibly enter into the type of agreement he had offered.” She then claims to have made a counter-offer in light of what she believed was an illegal plea agreement offer. Corn apparently responded angrily to Sather’s discussion of the proper treatment of the PFO sentence and withdrew the offer. Thus, according to Sather’s affidavit, Corn withdrew the proposed plea agreement after Sather objected to what she thought was an illegal sentence and made a counter-offer. This apparently occurred without Rose’s involvement and without Sather presenting Rose with the offer. ¶11 B. Facts Pertaining to Rose’s Access to Counsel During Trial. 6 ¶12 Rose’s second issue on appeal concerns what he claims was an unconstitutional denial of access to counsel during an overnight recess after the first day of trial. Trial ended the first day around 5:30 p.m., and Sather arrived at the jail around 9:00 p.m. that night to discuss the day’s happenings and to go over potential defense strategies with Rose. According to another Sather affidavit attached to the petition, jail staff informed Sather that she had to leave around 10:00 p.m. Sather ultimately left the jail around 10:20 p.m. under the direction of the jail staff. Sather has claimed that when she was removed from her meeting with Rose, a considerable amount of information remained to be discussed. She further claimed that she would have stayed and continued to meet with Rose for several hours if the jail staff had not required her to leave. ¶13 C. Facts Pertaining to Rose’s Representation on Direct Appeal. ¶14 Rose finally claims, at least with regards to the scope of this appeal, that his appointed appellate counsel provided ineffective representation by not raising his restricted access to Sather during the overnight recess as an issue on direct appeal. Rose’s court-appointed appellate counsel chose to raise four issues on direct appeal. As noted, Rose’s appellate counsel argued ineffective assistance of trial counsel, violation of Rose’s right to a speedy trial, that Rose was improperly denied a hearing on the effectiveness of his counsel, and that the prosecutor made improper comments during the closing argument. Rose, ¶¶ 3-6. STANDARD OF REVIEW ¶15 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 7 correct. Rukes v. State, 2013 MT 56, ¶ 8, 369 Mont. 215, 297 P.3d 1195. Ineffective assistance of counsel (IAC) 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. To prevail on an IAC claim, a petitioner must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Rukes, ¶ 9 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052 (1984)). This standard also applies to IAC claims involving appellate counsel. Rogers v. State, 2011 MT 105, ¶ 37, 360 Mont. 334, 253 P.3d 889. DISCUSSION ¶16 1. Did the District Court err by denying Rose’s postconviction relief claim alleging that his trial counsel provided ineffective representation during plea negotiations? ¶17 A. Rose’s IAC claim is not record based and was properly brought in a Petition for Post-Conviction Relief ¶18 Ineffective assistance of counsel claims are appropriate for review in a petition for postconviction relief when it is not apparent on the face of the record why counsel took a particular course of action. State v. Baker, 2013 MT 113, ¶ 42, 370 Mont. 43. When the record sufficiently answers “why” counsel did or did not take a certain course of action, the IAC claim must be brought on direct appeal. State v. Kime, 2013 MT 14, ¶ 31, 368 Mont. 261, 295 P.3d 580; § 46-21-105(2), MCA, (“When a petitioner has been afforded the opportunity for a direct appeal of petitioner’s conviction, grounds for relief that were or could reasonably have been raised on direct appeal may not be raised, considered, or decided in a proceeding brought under this chapter.”). A record which is silent about the reasons for 8 counsel’s actions seldom provides sufficient evidence to rebut the strong presumption that counsel’s actions fell within the wide range of reasonable professional assistance. State v. Heavygun, 2011 MT 111, ¶ 22, 360 Mont. 413, 253 P.3d 897. ¶19 Rose claims that he was denied the right to effective assistance of counsel because Sather did not inform him of a plea offer that he claims he would have accepted and therefore would have received a lower sentence. The record on direct appeal did not reveal why Sather did not communicate the offer to Rose, if Rose knew of the offer, the substance of the offer, or the circumstances of the alleged rejection. As noted, this Court may review a claim of IAC on direct appeal “only when the record ‘fully explains why counsel took, or failed to take, action in providing a defense for the accused.’” Longjaw v. State, 2012 MT 243, ¶ 19, 366 Mont. 472, 288 P.3d 210 (quoting State v. Deschon, 2004 MT 32, ¶ 32, 320 Mont. 1, 85 P.3d 756). In Longjaw, the defendant claimed that his counsel’s failure to obtain an independent medical expert constituted IAC on direct appeal. Longjaw, ¶ 21. The record on direct appeal revealed that one of Longjaw’s four counsel explained why he believed that a medical expert was not necessary at a hearing. There was no other statement in the record by any of Longjaw’s counsel explaining why they didn’t obtain a medical expert. We determined that this record was insufficient for review of the defendant’s IAC claim on direct appeal because it “[did] not fully explain ‘why’ an independent medical examination or expert was not ultimately obtained by Longjaw’s counsel[.]” Longjaw, ¶ 22. Unlike Longjaw, here there was no explanation in the record as to why Rose’s counsel rejected the plea offer, how the offer was rejected, or the circumstances of the offer itself. Without any 9 indication why or how Sather rejected the offer, let alone an incomplete explanation like in Longjaw, we cannot say that Rose’s IAC claim is procedurally barred because it was reasonably available on direct appeal. Rose’s IAC claim concerning the plea offer was appropriately included in his petition for postconviction relief. ¶20 B. Rose’s Claim Fails Under the Second Prong of Strickland. ¶21 Criminal defendants enjoy a fundamental right to effective assistance of counsel. U.S. Const. amend. VI; Mont. Const. art. II, § 24; State v. Holm, 2013 MT 58, ¶ 18, 369 Mont. 227. The Sixth Amendment to the United States Constitution entitles indigent defendants to representation by appointed counsel paid for by the public. Gideon v. Wainwright, 372 U.S. 335, 342-45, 83 S. Ct. 792 (1963); State v. Dethman, 2010 MT 268, ¶ 15, 358 Mont. 384, 245 P.3d 30. Without effective counsel during plea negotiations, criminal defendants would be denied effective representation at what has increasingly become the most critical point of the criminal justice process for a defendant. Missouri v. Frye, __ U.S. __, 132 S. Ct. 1399, 1407 (2012); Lafler v. Cooper, __ U.S. __, 132 S. Ct. 1376, 1387 (2012) (“If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it.”). ¶22 Recognizing these requirements, we determine whether counsel rendered ineffective assistance in the plea negotiation context by applying the two-part test established in Strickland. See Missouri, 132 S. Ct. at 1405; Hagen v. State, 1999 MT 8, ¶ 10, 293 Mont. 60, 973 P.2d 233 (“In considering ineffective assistance of counsel claims on the merits on direct appeal and in postconviction proceedings, Montana courts apply the two-pronged test 10 set forth by the United States Supreme Court in Strickland v. Washington[.]”). To prevail on a claim of ineffective assistance of counsel, the defendant must prove both Strickland prongs: (1) that counsel’s representation fell below an objective standard of reasonableness and (2) that this deficient performance prejudiced the defense. State v. Bekemans, 2013 MT 11, ¶¶ 29-30, 368 Mont. 235, 293 P.3d 843. Because a defendant must prove both prongs of Strickland, if Rose fails to prove either prong we need not consider the other. Whitlow v. State, 2008 MT 140, ¶ 11, 343 Mont. 90, 183 P.3d 861. ¶23 However, we need not address whether Sather’s actions were deficient or whether they prejudiced Rose’s defense pursuant to Strickland because it is now clear that, in Montana, a sentence that imposes a separate sentence for both the PFO status and the underlying sentence is illegal. Gunderson, ¶¶ 49, 54. Rose should not be allowed to advance a plea agreement as a basis for his IAC claim where subsequent case law renders the terms of that agreement illegal. As explained in Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838 (1993), a legal rule that has been reversed cannot form the basis of a present IAC claim. There, the U.S. Supreme Court held that defense counsel’s failure to make an objection in a criminal sentencing proceeding—“an objection that would have been supported by a decision which subsequently was overruled”—did not constitute prejudice within the meaning of Strickland. Fretwell was sentenced to death by the jury that had convicted him of capital felony murder under Arkansas law. He later claimed his counsel was ineffective for failing to invoke the Eighth Circuit’s opinion in Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985), which held that a death sentence is unconstitutional if it is based on an 11 aggravating factor that duplicates an element of the underlying felony. Four years after Fretwell was sentenced, the Eighth Circuit overruled Collins. In Fretwell’s habeas claim, the Eighth Circuit held that his death sentence would not stand, reasoning that since Fretwell “was entitled to the benefit of Collins at the time of his original sentencing proceeding, it would only ‘perpetuate the prejudice caused by the original sixth amendment violation’ to resentence him under current law.” Fretwell, 506 U.S. at 368. The U.S. Supreme Court reversed. ¶24 The Court observed that “the touchstone of an ineffective-assistance claim is the fairness of the adversary proceeding, and ‘in judging prejudice and the likelihood of a different outcome, “‘[a] defendant has no entitlement to the luck of a lawless decisionmaker.’’’” Fretwell, 506 U.S. at 370 (quoting Nix v. Whiteside, 475 U.S. 157, 175, 106 S. Ct. 988 (1986) and Strickland, 466 U.S. at 695). The Court held that, although the “deficiency” prong of Strickland is determined by the law in effect at the time of a defendant’s trial, the law at the time the ineffective assistance claim is made applied to the “prejudice” component. Fretwell, 506 U.S. at 372. Concurring, Justice O’Connor also quoted Strickland’s reference that “a defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed.” Fretwell, 506 U.S. at 374 (O’Connor, J., concurring) (emphasis added) (quoting Strickland, 466 U.S. at 695). Thus, Justice O’Connor explained, “the court making the prejudice determination may not consider the effect of an objection it knows to be wholly meritless under current governing law, even 12 if the objection might have been considered meritorious at the time of its omission.” Fretwell, 506 U.S. at 374. ¶25 The situation considered in Fretwell is not identical to the present case of alleged IAC surrounding the failure to communicate a plea agreement. See Lafler, 132 S. Ct. at 1387 (“Here, however, the injured client seeks relief from counsel’s failure to meet a valid legal standard, not from counsel’s refusal to violate it.”). However, Fretwell is “instructive” because it demonstrates “there are also situations in which it would be unjust to characterize the likelihood of a different outcome as legitimate ‘prejudice’ . . . because defendants would receive a windfall as a result of the application of an incorrect legal principle or a defense strategy outside the law.” Lafler, 132 S. Ct. at 1387. Even if Judge Langton might have accepted the plea agreement Corn offered, and even if the law was unsettled at the time as to whether a PFO sentence could be imposed in addition to the sentence for the underlying offense, by the time Rose asserted his IAC claim the law was clear that the plea agreement as proposed offered a sentence that was illegal. Gunderson, ¶ 54. Rose cannot demonstrate prejudice “based on considerations that, as a matter of law, ought not to inform the inquiry.” Lafler, 132 S. Ct. at 1387 (quoting Fretwell, 506 U.S. at 373 (O’Connor, J., concurring)). This is because the remedy for IAC arising out of a rejected plea is “to order the State to reoffer the plea agreement,” Lafler, 132 S. Ct. at 1391, and current law does not entitle Rose to the plea agreement Corn offered him in 2003. Rose, like Fretwell, cannot show prejudice by now asserting an incorrect or overruled legal principle as the basis for his claim of ineffective assistance of counsel. See also, Perez v. Rosario, 459 F.3d 943, 948 (9th Cir. 13 2006); Grigsby v. Blodgett, 130 F.3d 365, 372 (9th Cir. 1997) (a defendant “cannot establish prejudice based on counsel’s failure to make a motion based on this supplanted opinion.”). We accordingly affirm the District Court’s denial of Rose’s petition for postconviction relief. ¶26 2. Did the District Court err by denying Rose’s postconviction relief claim alleging that his appellate counsel provided ineffective representation by failing to raise certain issues on appeal? ¶27 Rose next argues that his appellate counsel provided ineffective assistance by failing to raise certain issues on appeal. Rose specifically claims that when the jail staff forced Sather to cut her meeting with Rose short during the overnight recess, they violated his right to access to counsel. Rose asserts that this claim was clearly his strongest on appeal, and that his appellate counsel accordingly rendered deficient representation by failing to advance it. The State responds that Rose was not denied access to counsel and that appellate counsel reasonably selected the issues that had the greatest likelihood of success on appeal. ¶28 Like Rose’s claims regarding his trial counsel, we review claims of ineffective assistance of appellate counsel according to the Strickland standard. Rosling v. State, 2012 MT 179, ¶ 32, 366 Mont. 50, 285 P.3d 486. It is well established, as the State notes, that appellate counsel need not raise every colorable issue on appeal. Rosling, ¶ 32; DuBray v. State, 2008 MT 121, ¶ 31, 342 Mont. 520, 182 P.3d 753; In re Martin, 240 Mont. 419, 422, 787 P.2d 746 (1989). Our presumption of effective assistance of appellate counsel will be overcome only when ignored issues are clearly stronger than those presented. DuBray, ¶ 31. ¶29 Here, Rose cannot show that the alleged violation of his right to access counsel during the overnight recess was clearly stronger than the issues his appellate counsel presented on 14 appeal. On appeal, Rose argues that because he was denied access to counsel according to the U.S. Supreme Court’s decisions in Geders v. United States, 425 U.S. 80 (1975), and United State v. Cronic, 466 U.S. 648 (1984), this claim was clearly stronger than those presented by appellate counsel. As noted, Rose’s appellate counsel presented issues concerning ineffective assistance of trial counsel, violation of Rose’s right to a speedy trial, the denial of a hearing on the effectiveness of his counsel, and allegedly improper comments made during the State’s closing argument. Rose I, ¶¶ 3-6. ¶30 However, neither Cronic nor Geders are applicable to Rose’s alleged denial of access to counsel during the overnight recess. In Geders, one co-defendant testified in his own defense during two consecutive days of trial. At the end of the first day of the defendant’s testimony, the prosecutor asked the judge to instruct the defendant not to discuss the case overnight with anyone. Geders, 425 U.S. at 82. The defendant’s counsel objected, stating that he believed he had a right to confer with his client about matters other than the coming cross-examination. Geders, 425 U.S. at 82. The judge expressed doubt about the defendant’s ability to so confine his discussion with counsel and issued the order. Geders, 425 U.S. at 82-83. The Supreme Court reasoned that the order barring counsel and defendant from conferring during a 17-hour overnight recess restricted their ability to discuss the events of the day’s trial or to go over tactical decisions and strategies. Geders, 425 U.S. at 86. Because the court prevented the defendant from discussing anything with his counsel during a 17-hour recess, the Court found that the order “impinged upon his [the defendant’s] 15 right to the assistance of counsel guaranteed by the Sixth Amendment.” Geders, 425 U.S. at 91. ¶31 Unlike Geders, Rose was neither denied access to counsel during the entire overnight recess nor prohibited from discussing any topic with his counsel. It is undisputed that Rose’s counsel could have visited him in the jail following the end of trial around 5:30 p.m. Rose’s counsel chose to not visit the jail until roughly 9:30 p.m., and the jail staff asked her to leave roughly an hour later. Rose’s counsel had the opportunity to confer with Rose about anything for over five hours after trial, and she met with Rose again the next morning before trial began. The absolute 17-hour bar on communication held to violate the Sixth Amendment in Geders is clearly distinct from Rose’s situation. ¶32 Cronic is similarly inapplicable. There, the Supreme Court considered a decision by the 10th Circuit Court of Appeals declaring that inadequacy of representation may be inferred without proof of specific prejudice “when circumstances hamper a given lawyer’s preparation of a defendant’s case.” Cronic, 466 U.S. at 650. While assessing the propriety of the appellate court’s inferential approach to Sixth Amendment violations, the Supreme Court recognized that “the complete denial of counsel” or the denial of counsel during a critical stage of trial allows a presumption that there has been a denial of Sixth Amendment rights. Cronic, 466 U.S. at 659. Neither situation is present in Rose’s case, however. Rose’s counsel was not totally absent and Rose was not denied access to counsel during the overnight recess, as discussed above. Rose therefore cannot demonstrate that his access to counsel during the overnight recess was so circumscribed that we can simply presume 16 prejudice. See Wright v. Van Patten, 552 U.S. 120, 124-25, 128 S. Ct. 743 (2008) (noting that a Sixth Amendment violation may be presumed when “circumstances [exist] that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”). The analysis in Cronic provides an alternative to Strickland in extremely limited situations. State v. Peart, 2012 MT 274, ¶ 24, 367 Mont. 153, 290 P.3d 706. To qualify under Cronic, “counsel’s failure must be complete.” Riggs v. State, 2011 MT 239, ¶ 13, 362 Mont. 140, 264 P.3d 693 (citing Bell v. Cone, 535 U.S. 685, 696-97, 122 S. Ct. 1843 (2002)). Sather’s removal from the jail at the close of visiting hours is not the complete failure of the adversarial process that the Cronic presumption requires. Because neither Cronic nor Geders support a finding that Rose was unconstitutionally denied access to counsel, Rose cannot show that this issue is clearly stronger than the issues Rose’s appellate counsel presented on appeal. We accordingly conclude that Rose’s appellate counsel did not render ineffective assistance by failing to present the access to counsel issue on appeal. ¶33 3. Did the District Court err by denying Rose’s postconviction relief claim alleging that he was denied access to counsel during a critical stage of trial? ¶34 Rose finally argues that he was denied access to counsel in violation of the Sixth and Fourteenth Amendments when jail staff requested that Sather leave the jail around 10:30 p.m. during an overnight recess. As noted in our discussion of Issue Two above, Rose claims that the U.S. Supreme Court’s decisions in Geders and Cronic require finding that he was unconstitutionally denied access to counsel. The State responds that because this issue 17 could have been raised on direct appeal, it is now barred from being considered in a petition for postconviction relief pursuant to § 46-21-105(2), MCA. ¶35 Postconviction relief is a means to provide review of collateral claims that could not have been raised on appeal. Section 46-21-105, MCA. Section 46-21-105(2), MCA, provides that “[w]hen a petitioner has been afforded the opportunity for a direct appeal of the petitioner’s conviction, grounds for relief that were or could reasonably have been raised on direct appeal may not be raised, considered, or decided in a proceeding brought under [the postconviction] chapter.” Rose’s claim regarding his access to counsel during the overnight recess could have been raised on direct appeal. Because we will not consider grounds for postconviction relief that reasonably could have been raised on direct appeal, we will not consider Rose’s claim that he was denied access to counsel. CONCLUSION ¶36 Both Rose’s trial and appellate counsel provided effective assistance, and we will not consider Rose’s access to counsel claim that could have been raised on direct appeal. ¶37 Affirmed. /S/ MICHAEL E WHEAT We concur: /S/ MIKE McGRATH /S/ JIM RICE /S/ BETH BAKER /S/ PATRICIA COTTER /S/ BRIAN MORRIS 18 /S/ LAURIE McKINNON | June 18, 2013 |
e67ab31c-78d5-4d3b-9547-fc5ff457fa14 | Showell v. Lundvall | 2013 MT 162N | DA 13-0030 | Montana | Montana Supreme Court | DA 13-0030 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 162N JEFFREY SHOWELL, Plaintiff and Appellant, v. ELMER E. LUNDVALL and FAYE L. LUNDVALL, Defendants and Appellees. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV 11-1087(c) Honorable Heidi Ulbricht, Presiding Judge COUNSEL OF RECORD: For Appellant: Jeffrey Showell, self-represented; Bowling Green, Ohio For Appellees: Paul A. Sandry; Johnson, Bert, & Saxby, PLLP; Kalispell, Montana Submitted on Briefs: May 15, 2013 Decided: June 18, 2013 Filed: __________________________________________ Clerk June 18 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 Jeffrey Showell appeals the Eleventh Judicial District Court’s entry of summary judgment in favor of Elmer and Faye Lundvall refusing to quiet title in Showell’s name to the Lundvalls’ Flathead County property for which Showell had obtained a tax deed. We affirm. ¶3 The Lundvalls purchased the real property in question in October 2005. Elmer Lundvall, who was ninety-one years old at the time of the District Court’s order, lives on his farm outside of Greeley, Colorado. His wife, Faye Lundvall, lives in an assisted living facility in Greeley. Mr. Lundvall received and paid the first tax notice on the Flathead County property after the Lundvalls’ purchase. Following that payment, the U.S. Postal Service discontinued delivery to his farm address and redirected his mail to a Greeley post office box. The County did not send subsequent tax notices to the post office address and Mr. Lundvall did not pay the outstanding property taxes. ¶4 On August 12, 2011, the Flathead County Treasurer issued a tax deed to Showell on the basis that the Lundvalls failed to redeem a tax lien pursuant to a notice of same that Showell executed on June 10, 2011. Showell then filed a complaint for quiet title. 3 On the parties’ competing motions for summary judgment, the District Court ruled on December 31, 2012, that the tax deed was void because the Flathead County Treasurer had failed to send notices to all “easily ascertainable” addresses that could be found in county records. Relying on Isern v. Summerfield, 1998 MT 45, ¶ 14, 287 Mont. 461, 956 P.2d 28, the court ruled that since Mr. Lundvall’s correct address was on file with Flathead County by virtue of his vehicle registrations, the County should have used that address in sending its notice of the pending issuance of the tax deed. Showell filed a notice of appeal to this Court on January 11, 2013. Judgment was entered for the Lundvalls on January 15, 2013, declaring the tax deed void and of no effect. ¶5 On January 22, 2013, Showell issued another Notice That a Tax Deed May Be Issued. The Notice was sent to the Lundvalls at their post office box address in Greeley, advising them that the property taxes became delinquent on June 1, 2008, that Showell had acquired the lien, and that the total amount of taxes, penalties, interest and costs then due was $6,835.87. The Notice further advised that if all such taxes, penalties, interest and costs were not paid to the county treasurer on or prior to March 29, 2013, the date the redemption period was to expire, a tax deed may be issued. Pursuant to the Notice, the Lundvalls paid to the Flathead County Treasurer, on February 22, 2013, the amount due with additional interest, for a total of $6,906.25, and obtained a Certificate of Redemption, which they have attached to their brief on appeal. ¶6 Showell argues on appeal that a landowner has a duty to keep the county taxing authorities apprised of his current address and, since Elmer Lundvall failed to do so, the 4 District Court erred in declaring the tax deed void. We are obliged, however, to resolve the threshold issue of mootness before addressing the underlying dispute. Briese v. Mont. Pub. Employees’ Ret. Bd., 2012 MT 192, ¶ 14, 366 Mont. 148, 285 P.3d 550. “The fundamental question to be answered in any review of possible mootness is ‘whether it is possible to grant some form of effective relief to the appellant.’” Briese, ¶ 14 (quoting Progressive Direct Ins. Co. v. Stuivenga, 2012 MT 75, ¶ 37, 364 Mont. 390, 276 P.3d 867). We have dismissed appeals on mootness grounds where we have determined that “[t]here is nothing in this case now for us to decide. It has been disposed of by the parties themselves pending the appeal.” Stuivenga, ¶ 27 (quoting Snell v. Welch, 28 Mont. 482, 483, 72 P. 988, 988 (1903)) (internal quotation marks omitted). While we rejected the notion in Stuivenga that satisfaction of a money judgment automatically moots an appeal, we observed that “[t]he question of mootness is whether this Court can grant effective relief, which will depend on the specific factual and procedural circumstances of the particular case and the relief sought by the appellant.” Stuivenga, ¶ 43. ¶7 In this case, the parties’ actions pending the appeal have settled the issue of the property’s ownership. Showell acknowledges that a property owner may redeem the property from a tax lien by payment of the taxes with interest, penalties and costs, but argues that his second notice of tax deed was required in order to shield his tax lien from cancellation. See § 15-18-212(3)(b), MCA. Showell, however, had the option of seeking a stay of the District Court’s judgment in accordance with M. R. App. P. 22. He did not do so, either in the District Court or before this Court. Instead, he complied with the 5 judgment and issued a new notice, curing the address defect by sending the notice to Lundvalls at their post office box in Greeley. The Lundvalls having liquidated the tax lien and obtained a certificate of redemption, Showell no longer holds an interest in the property. ¶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. Because the events that have transpired since entry of judgment preclude us from granting effective relief for Showell, the issue he raises is moot and the appeal is DISMISSED with prejudice. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ PATRICIA COTTER /S/ JIM RICE | June 18, 2013 |
3a14fa53-6b11-41b5-9781-c8cde9288232 | State v. 13th Judicial District | N/A | OP 13-0590 | Montana | Montana Supreme Court | IN THE SUPREME COURT OF THE STATE OF MONTANA OP 13-0590 STATE OF MONTANA, Petitioner, v. DISTRICT COURT OF THE THIRTEENTH JUDICIAL COURT OF MONTANA, YELLOWSTONE COUNTY, THE HONORABLE G. TODD BAUGH, PRESIDING JUDGE, Respondent. ORDER The State of Montana has filed an Emergency Petition for Writ of Prohibition requesting that this Court arrest the hearing scheduled today, September 6, 2013, at 1:30 p.m., before Respondent District Court in the matter of State of Montana v. Stacey Dean Rambold, Cause No. DC-OS-62S. Following the District Court's oral pronouncement of sentence in this matter, in open court on August 26, 2013, the State submitted to the District Court, in regular course, a proposed written judgment conforming to the oral pronouncement of sentence. The District Court has not signed the judgment, but instead issued a Notice and Order on September 3,2013, scheduling today's hearing. The purpose of the hearing, as stated in the Notice and Order, is to consider "amend[ing] the mandatory minimum portion of the sentence" that was orally imposed. The District Court also stated in its Notice and Order that a greater statutory minimum sentence appeared to be applicable. Despite the lack of written judgment, the State filed a notice of appeal from the oral sentence. September 6 2013 In its petition, the State argues that the post-sentencing proceeding initiated by the District Court to amend the sentence is clearly unlawful and in excess of that court's jurisdiction, and that a writ of prohibition is warranted, citing § 46-18-116(3), MCA, and State v. Peterson, 2011 MT 22,359 Mont. 200, 247 P.3d 731. The State argues its appeal should proceed. The petition states that Stacey Rambold has no objection to the State's request that today's proceeding be arrested. Both the State and Rambold have filed pleadings with the District Court requesting the District Court to vacate today's hearing. We conclude that the stated intent of the District Court to alter the initially imposed oral sentence in today's scheduled hearing is unlawful and that the proceeding should be arrested pursuant to § 27-27-101, MCA. We take no position on the legality of the imposed sentence, and will address the parties' arguments in that regard on appeal. Therefore, IT IS HEREBY ORDERED that the petition for writ of prohibition is GRANTED in part. The hearing scheduled for today in State of Montana v. Stacey Dean Rambold, Cause No. DC-08-628, before Respondent District Court, is hereby VACATED. IT IS FURTHER ORDERED that the District Court will enter a written judgment in State of Montana v. Stacey Dean Rambold, Cause No. DC-08-628, which conforms to the sentence orally imposed by the District Court on August 26, 2013. The Clerk is directed to provide immediate notice hereof to counsel of record and Respondent District Court, Hon. G. Todd Baugh, presiding. DATED this tttaay of September, 2013. - 2 \/ .-.. ~ -- hi Ltd i'o/tt1L Chief Justice Mike McGrath and Justice Brian Morris would deny the petition. 3 | September 6, 2013 |
9fce5f9f-1497-4e18-af56-dea4832e1d43 | Terence R. Passmore v. State | 2013 MT 154N | DA 12-0258 | Montana | Montana Supreme Court | DA 12-0258 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 154N TERENCE RICHARDSON PASSMORE, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DC 06-60 Honorable E. Wayne Phillips, Presiding Judge COUNSEL OF RECORD: For Appellant: Terence Richardson Passmore, self-represented, Shelby, Montana For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant Attorney General; Helena, Montana Brett Linneweber, Park County Attorney, Livingston, Montana Submitted on Briefs: May 28, 2013 Decided: June 11, 2013 Filed: __________________________________________ Clerk Justice Brian Morris delivered the Opinion of the Court. June 11 2013 2 ¶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 Terence Richardson Passmore (Passmore) appeals from the order of the Sixth Judicial District Court, Park County, that denied his petition for postconviction relief. We affirm. ¶3 A Park County jury convicted Passmore in 2007 of one count of felony sexual intercourse without consent and three counts of felony sexual assault. The District Court designated Passmore as Level I sex offender and sentenced him to Montana State Prison. ¶4 Passmore appealed his convictions based upon claims of preaccusation delay, prosecutorial misconduct, improperly admitted evidence, and the exclusion of character evidence. We affirmed. State v. Passmore, 2010 MT 34, ¶¶ 75-76, 355 Mont. 187, 225 P.3d 1229. ¶5 Passmore filed a petition for postconviction relief on September 14, 2010, and an amended petition on October 1, 2010. Passmore alleged claims of ineffective assistance of counsel and the improper exclusion of an exculpatory video. The District Court entered an order on March 29, 2012, in which it summarily denied Passmore’s amended petition. Passmore appeals. 3 ¶6 Passmore argues on appeal the District Court improperly failed to address all of the ineffective assistance of counsel claims through a full hearing when it summarily dismissed his petition. Passmore further argues that the court applied the incorrect legal standard when it addressed his claims of ineffective assistance of counsel. Passmore further contends that the District Court disregarded his additional claims of juror misconduct and statements allegedly made by the bailiff to the effect that witnesses had collaborated to provide false testimony at Passmore’s trial. ¶7 We review for clear error findings made by the district court in the postconviction relief proceeding. Halley v. State, 2008 MT 193, ¶ 11, 344 Mont. 37, 186 P.3d 859. We review for correctness legal conclusions made by the district court when it dismisses a petition for postconviction relief. Kelly v. State, 2013 MT 21, ¶ 7, 368 Mont. 309, 300 P.3d 120. ¶8 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 record before us that the District Court correctly applied the law to the claims raised by Passmore. ¶9 Affirmed. /S/ BRIAN MORRIS We Concur: /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ PATRICIA COTTER 4 /S/ LAURIE McKINNON | June 11, 2013 |
302f927f-fc4a-46c4-8044-99096a3b8ec9 | McDunn v. Arnold | 2013 MT 138 | DA 12-0438 | Montana | Montana Supreme Court | DA 12-0438 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 138 DAVE McDUNN and CATHY McDUNN, Plaintiffs and Appellees, v. DIANA ARNOLD, Defendant and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV 09-1235B Honorable Mike Salvagni, Presiding Judge COUNSEL OF RECORD: For Appellant: Herman A. Watson, III, Attorney at Law, Bozeman, Montana For Appellee: Rhett B. Nemelka, Nemelka & Restum, P.C., Bozeman, Montana Submitted on Briefs: February 20, 2013 Decided: May 28, 2013 Filed: __________________________________________ Clerk May 28 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Dave and Cathy McDunn (the McDunns) sued Diana Arnold (Arnold) in Gallatin County Justice Court, alleging negligence, negligence per se, and breach of contract. The Justice Court found for the McDunns, and Arnold appealed to the Eighteenth Judicial District Court, Gallatin County. Following a bench trial, the District Court found for the McDunns on their breach of contract claim and awarded them damages, costs, and attorney’s fees. Arnold appeals from the Final Order and Judgment entered against her in District Court. We affirm. ¶2 Arnold presents the following issues for review: ¶3 Issue One: Whether the District Court abused its discretion when it allowed the McDunns to amend their Complaint to add a claim that had not been pled during the Justice Court proceedings. ¶4 Issue Two: Whether the District Court abused its discretion when it denied Arnold’s Motion in Limine to prohibit any reference to the testimony and evidence presented during the Justice Court proceedings. ¶5 Issue Three: Whether Arnold was denied her right to a trial de novo. PROCEDURAL AND FACTUAL BACKGROUND ¶6 In the spring of 2008, the McDunns agreed to lease an apartment from Arnold for thirteen months beginning on June 1, 2008. Before the lease term expired, a dispute arose between the parties, and the McDunns vacated the apartment on January 31, 2009. ¶7 The McDunns filed a complaint against Arnold in the Gallatin County Justice Court, 3 which is not a court-of-record, on August 3, 2009. The McDunns, alleging breach of the terms of the lease, negligence, and negligence per se, sought $1,300 in damages. The Justice Court conducted a bench trial on November 19, 2009. The McDunns were represented by counsel; Arnold represented herself. After the trial, the Justice Court entered a written judgment in the McDunns’ favor, and awarded them $7,059.26 for damages, costs, and attorney’s fees. ¶8 Arnold appealed to the District Court on December 22, 2009, seeking a trial de novo. Through newly enlisted counsel, Arnold filed an Amended Answer and Counterclaims on April 8, 2010, in which, among other things, she added counterclaims that she had not pled during the Justice Court proceedings. On April 9, 2010, the McDunns filed a motion seeking leave to amend their complaint. After the court granted their motion, the McDunns filed an Amended Complaint that added a claim for intentional and negligent misrepresentation. ¶9 Arnold filed a Motion in Limine on October 21, 2011, to prohibit any reference to the testimony given or evidence offered during the Justice Court trial. Arnold claimed that she would be denied her right to a trial de novo if the McDunns were allowed to refer to the prior proceedings. The District Court held that Arnold had not cited any authority to support her argument and denied her motion on November 29, 2011. The District Court conducted a two-day bench trial on February 28 and 29, 2012. The District Court issued Findings of Fact and Conclusions of Law on May 21, 2012. The court ruled in the McDunns’ favor on their Breach of Lease claim, but it found that they had failed to prove their negligence, negligence per se, and intentional and negligent misrepresentation claims. The court ruled against 4 Arnold on all of her counterclaims. The District Court awarded the McDunns $1,444.66 in damages and $20,697 for attorney’s fees and costs. STANDARD OF REVIEW ¶10 Whether a party has been afforded his or her constitutional and statutory right to a trial de novo is a question of law that we review for correctness. State v. Stedman, 2001 MT 150, ¶ 7, 306 Mont. 65, 30 P.3d 353. We review a district court’s decision to allow amended pleadings for an abuse of discretion. Porter v. Galarneau, 275 Mont. 174, 188, 911 P.2d 1143, 1151-52 (1996). A district court’s ruling on a motion in limine is an evidentiary ruling that we also review for an abuse of discretion. Alexander v. Bozeman Motors, Inc., 2012 MT 301, ¶ 22, 367 Mont. 401, 291 P.3d 1120. We review a district court’s findings of fact to determine if they are clearly erroneous, and its conclusions of law to determine if they are correct. Summers v. Crestview Apts., 2010 MT 164, ¶ 11, 357 Mont. 123, 236 P.3d 586. DISCUSSION ¶11 Issue One: Whether the District Court abused its discretion when it allowed the McDunns to amend their Complaint to add a claim that had not been pled during the Justice Court proceedings. ¶12 Arnold argues that the District Court abused its discretion when it allowed the McDunns to amend their Complaint to add a claim that had not been pled during the Justice Court proceedings. District courts have appellate jurisdiction over justice courts. Mont. Const. art. VII, § 4(2); § 3-5-303, MCA. If a party appeals from a justice court that is not a court of record, then the district court must try the case de novo. Section 25-33-301(1), 5 MCA.1 “When the action is tried anew on appeal, the trial must be conducted in all respects as other trials in the district court. . . .” Section 25-33-301(2), MCA. ¶13 The district court proceedings “must be tried anew in the district court on the papers filed in the justice’s or city court unless the court, for good cause shown and on terms that are just, allows other or amended pleadings to be filed in the action.” Section 25-33-301(1), MCA. Good cause is a “legally sufficient reason,” and what constitutes good cause “will necessarily depend upon the totality of the facts and circumstances of a particular case.” City of Helena v. Roan, 2010 MT 29, ¶ 13, 355 Mont. 172, 226 P.3d 601. ¶14 Here, the District Court had the discretion to allow Arnold to file her Amended Answer and Counterclaims on April 8, 2010. In her Amended Answer, Arnold added counterclaims that she had not pled during the Justice Court proceedings. The next day, the McDunns filed a motion seeking leave to amend their Complaint, also a matter within the court’s discretion. Arnold failed to file an answer brief within ten days, so, according to Mont. Unif. Dist. Ct. R. 2(b), the District Court deemed the McDunns’ motion as “well taken” and granted them leave to file an Amended Complaint. While the District Court did not specifically address whether the McDunns had good cause to amend as required by § 25- 33-301(1), MCA, we will not hold a district court in error for failing to address an issue that the parties did not raise. Unified Indus., Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, 961 P.2d 100. 1An appeal from a lower court that is a court-of-record is conducted on the record. Section 25-33-301(3), MCA. 6 ¶15 Issue Two: Whether the District Court abused its discretion when it denied Arnold’s Motion in Limine to prohibit any reference to the testimony and evidence presented during the Justice Court proceedings. ¶16 Arnold argues that the District Court abused its discretion when it denied her Motion in Limine to prohibit any reference to the evidence offered or testimony given during the Justice Court proceeding. She contends that references to testimony from a court that is not a court-of-record are impermissible hearsay. Arnold failed to make that argument to the District Court, however, either in her Motion in Limine or during the trial. In her Motion in Limine, Arnold argued that she would be denied her right to a trial de novo and that § 25-33- 301, MCA, prohibited the use of testimony and evidence from being used in the trial de novo. ¶17 Nothing in the provisions of § 25-33-301, MCA, precludes use of prior testimony. In fact, the statute specifically provides that “the trial must be conducted in all respects as other trials in the district court.” Section 25-33-301(2), MCA. When interpreting a statute, our task is to “ascertain and declare what is in its term or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. ¶18 Arnold did not cite any authority in her Motion in Limine to support her argument that all references to the Justice Court hearings should be prohibited. Arnold cited cases and statutes that establish that cases on appeal from a justice court must be tried de novo, but she did not cite authority regarding the admissibility of references to testimony from the lower- court proceedings. Out-of-court statements may be admissible under the hearsay rules. For example, as an exception to the hearsay rule when a declarant is unavailable, M. R. Evid. 7 804(b)(1) allows, under certain conditions, the admission of former testimony in prior proceedings. See State v. Hall, 1999 MT 297, ¶ 35, 297 Mont. 111, 991 P.2d 929. Further, under M. R. Evid. 801, prior statements of witnesses, admissions of party-opponents, and statements that are not offered to prove the truth of the matter asserted are, by definition, not hearsay and thus not precluded by M. R. Evid. 802. See State v. Baker, 2013 MT 113, ¶ 29, 370 Mont. 43, __ P.3d __ (prior inconsistent statements of witness are not hearsay); Riggs v. State, 2011 MT 239, ¶ 58, 362 Mont. 140, 264 P.3d 693 (admissions by party-opponents are not hearsay); Sullivan v. Contl. Constr. of Mont., LLC, 2013 MT 106, ¶ 32, 370 Mont. 8, 299 P.3d 832 (statements offered for a reason other than to prove the truth of the statement are not hearsay). A witness who testified under oath cannot pretend that her testimony was never given, even if no record was taken. A district court should treat testimony given during a justice court proceeding the same as any other statement that has not been recorded or transcribed. The District Court did not err by denying Arnold’s Motion in Limine and instead ruling on the admissibility of the references as they were made at trial. ¶19 Issue Three: Whether Arnold was denied her right to a trial de novo. ¶20 As previously discussed, the District Court did not err by letting the McDunns file an Amended Complaint or by denying Arnold’s Motion in Limine. Nevertheless, Arnold argues that the McDunns’ Amended Complaint and references to the lower-court testimony tainted the District Court proceedings and effectively denied her the right to a trial de novo. Arnold contends that the lower-court proceedings permeated and prejudiced her entire case and that the prejudice is evident in the District court’s Findings of Fact and Conclusions of Law. 8 ¶21 Arnold analogizes her case to State v. Stedman. In Stedman, the defendant was convicted of Criminal Mischief in Justice Court. He appealed to the District Court for a trial de novo and was again found guilty. In its Findings and Opinion, the District Court specifically acknowledged that the Justice Court had found Stedman guilty. Additionally, the District Court noted that a particular witness who testified against Stedman was credible, “in both the Justice of the Peace and this Court’s view.” Further, while announcing that it had found Stedman guilty, the District Court proclaimed, “so said the Justice of the [P]eace, so says this Court.” Stedman, ¶ 9. ¶22 We concluded that the District Court’s references to the Justice Court’s findings and conclusions strongly suggested that the District Court was influenced by the Justice Court’s decision. We held that, “[a] trial ‘de novo’ means trying the matter anew, the same as if it had not been heard before and as if no decision had been previously rendered.” Stedman, ¶ 9. Because we could not conclude that the District Court had not been unduly influenced by the Justice Court proceedings, we held that Stedman had been denied his right to a trial de novo. Stedman, ¶ 9. ¶23 Here, like in Stedman, the District Court specifically referenced the Justice Court proceedings in its Findings of Facts and Conclusions of Law. Unlike in Stedman, however, those references do not suggest that the District Court was unduly influenced by the Justice Court proceedings. The District Court’s references to the prior proceedings were made in the context of discussing whether Arnold had made a false representation and whether Arnold had breached the terms of the lease. The court found credible the McDunns’ evidence that Arnold had misrepresented which version of the lease was the original during the Justice 9 Court proceedings. The District Court nevertheless correctly held that the McDunns had failed to prove their misrepresentation claim because they had not relied on Arnold’s misrepresentation when they entered into the agreement. The court’s other references to the Justice Court proceedings were made while discussing which version of the lease was enforceable and which terms were operable. The District Court’s references to the prior proceedings related directly to disputed facts and claims and do not suggest that the court was influenced by the Justice Court’s decision. ¶24 For the reasons stated above, the decision of the District Court is affirmed. /S/ MIKE McGRATH We concur: /S/ PATRICIA COTTER /S/ BETH BAKER /S/ LAURIE McKINNON /S/ BRIAN MORRIS | May 28, 2013 |
e55bdbee-6cb5-4681-aa6b-a9c68528decc | Lewis Clark Co. v. Skinner | 2013 MT 156N | DA 12-0550 | Montana | Montana Supreme Court | DA 12-0550 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 156N LEWIS AND CLARK COUNTY, a political subdivision of the STATE OF MONTANA, Plaintiff and Appellee, v. ANDY SKINNER, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV 10-865 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellant: Robert T. Cummins, Attorney at Law; Helena, Montana For Appellee: Leo J. Gallagher, County Attorney; K. Paul Stahl and Katie Jerstad, Deputy County Attorneys; Helena, Montana Submitted on Briefs: May 1, 2013 Decided: June 11, 2013 Filed: __________________________________________ Clerk June 11 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 Andy Skinner (Skinner) appeals from a May 29, 2012 order of the First Judicial District Court, Lewis and Clark County, granting summary judgment to Lewis and Clark County (the County). We affirm. ¶3 Skinner is the owner of real property located in Lewis and Clark County, Montana (hereinafter referred to as Astor Placer). In November 2007, the Lewis and Clark County Attorney’s Office was notified that Skinner was blocking public access on two roads that cross Astor Placer. The two roads are commonly known as the Canyon Creek-Gould Road and the Virginia Creek-Gould Road. On September 10, 2010, the County filed a declaratory judgment action seeking a determination that the Canyon Creek-Gould Road and the Virginia Creek-Gould Road are public roads, and requesting that Skinner be enjoined from obstructing the roads and denying public access where they cross his property. Skinner denied the roads are public. He further argued that a prior court order resolved the status of the roads, thereby rendering the issues raised in the County’s complaint res judicata. Both parties filed for summary judgment. The District Court held a hearing on the matter, and in May 2012, issued an order that granted the County’s motion and denied Skinner’s motion. Skinner appeals. 3 ¶4 This Court reviews a district court’s grant of summary judgment de novo, using the same standards as the district court under M. R. Civ. P. 56(c). Styren Farms, Inc. v. Roos, 2011 MT 299, ¶ 10, 363 Mont. 41, 265 P.3d 1230. We review for correctness a district court’s legal conclusion that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Turner v. Wells Fargo Bank, N.A., 2012 MT 213, ¶ 11, 366 Mont. 285, 291 P.3d 1082. ¶5 In granting summary judgment to the County, the District Court determined the parties disagreed over the interpretation of documents and applicability of case law, but that no genuine issues of material fact existed. We agree. The Astor Placer was located by Duncan McDougall (McDougall) in 1886. McDougall amended the location of his claim in 1888, and a patent was issued and filed in the County Clerk and Recorder’s office in 1889. The survey of McDougall’s claim shows a line running east to west through Astor Placer labeled, “County Road to Jay Gould.” ¶6 In 1887—after McDougall first located the Astor Placer but before he amended the location and received a patent—four landowners petitioned the county commissioners to establish a seven-mile-long county road from Canyon Creek to the Jay Gould Mining District, which was located immediately west of McDougall’s claim, (Canyon Creek-Gould Road). The petition provides that “all the persons through whose land the said road is to be laid hereby donate the right of way through said land; and this petition is signed by all persons through or by whose land the said road passes.” McDougall’s signature is not on the 4 petition. The commissioners granted the petition and declared the roadway a “public highway.” ¶7 There is no petition in the County’s records relating to the Virginia Creek-Gould Road. However, the County provided several other documents to the District Court that reference the creation of the Virginia Creek-Gould Road in the early 1900s and the petition submitted by affected freeholders. Additional documentation shows that the Virginia Creek- Gould Road crosses a portion of the Astor Placer. ¶8 On appeal, Skinner points to several documents, as well as the absence of some—such as the petition relating to the Virginia Creek-Gould Road—to argue that the Canyon Creek- Gould Road and the Virginia Creek-Gould Road were not properly dedicated as public roads by statutory process. In Reid v. Park Co., 192 Mont. 231, 627 P.2d 1210 (1981), the Court recognized the difficulties of reconstructing detailed histories of county roads created many years ago. There, we adopted the rule “that it is sufficient if the record taken as a whole, shows that a public road was created. Otherwise, the burden on the public in a particular case to prove a public road was created so many years ago may well be unsurmountable.” Reid, 192 Mont. at 236, 672 P.2d at 1213. Additionally, in Ashby v. Maechling, 2010 MT 80, ¶ 29, 356 Mont. 68, 229 P.3d 1210, we noted: Requiring production of documentary evidence of events that occurred long ago can be impracticable, and there is a disputable presumption that official duty has been regularly performed. Discrepancies in the description or location of a road in old county documents are not sufficient to turn a county road into private property. 5 (Internal citations omitted.) After reviewing the record, we conclude the District Court correctly determined that the documentation, taken as a whole, shows that the County properly established the Canyon Creek-Gould Road and the Virginia Creek-Gould Road as public roads. There were no genuine issues of material fact and summary judgment was appropriate as a matter of law. ¶9 Skinner also asserts that the District Court erred in refusing to determine that the issues raised by the County’s complaint are res judicata. Skinner maintains that a quiet title action in the 1980s extinguished any public status that the two roads may have had. However, the record demonstrates that the quiet title action was dismissed in 1988 without resolution as to the status of the roads. Therefore, the District Court correctly determined the doctrine of res judicata does not apply in this matter. ¶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. The issues in this case are legal and are controlled by settled Montana law, which the District Court correctly interpreted. ¶11 Affirmed. /S/ MICHAEL E WHEAT We concur: /S/ BETH BAKER /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ JIM RICE 6 | June 11, 2013 |
ccefcd85-60b7-4738-8c6e-8557161034d1 | Insua v. State | 2013 MT 181N | DA 12-0658 | Montana | Montana Supreme Court | DA 12-0658 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 181N ALBERT ERNEST INSUA, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DV 05-11 Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD: For Appellant: Albert E. Insua, self-represented; Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant Attorney General; Helena, Montana William Fulbright, Ravalli County Attorney; Hamilton, Montana Submitted on Briefs: June 12, 2013 Decided: July 9, 2013 Filed: __________________________________________ Clerk July 9 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 Albert E. Insua (Insua) appeals the order of the Fourth Judicial District Court, Missoula County, that dismissed his petition for post-conviction relief. We affirm. ¶3 A jury found Insua guilty of sexual intercourse without consent and three counts of sexual assault in 2000. We affirmed Insua’s conviction on appeal. State v. Insua, 2004 MT 14, 319 Mont. 254, 84 P.3d 11. ¶4 Insua timely filed a petition for post-conviction relief on December 20, 2004. The district court denied Insua’s petition and we affirmed. Insua v. State, 2006 MT 288N, 335 Mont. 398, 149 P.3d 913. Insua also filed a petition for writ of habeas corpus. The district court denied Insua’s petition for a writ. This Court affirmed. Insua v. State, 2009 MT 157N, 351 Mont. 549, 214 P.3d 788. ¶5 Insua now has filed a second petition for post-conviction relief. Insua argues in his second petition that new evidence demonstrates his innocence. The District Court denied Insua’s second petition on the basis that “these matters have been brought before this Court on several occasions and remittiturs filed affirmed the Court’s rulings.” The District Court added that it has no further remedy for Insua. Insua appeals. ¶6 Insua argues that new evidence of the rape examination conducted on the victim 3 would demonstrate his innocence. He claims to have attempted multiple times during trial to acquire this information. 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. ¶7 Section 46-21-105(1)(b), MCA, bars a second or subsequent petition that raises grounds for relief that reasonably could have been raised in the original petition. Insua’s second petition raises no new claim that could not have been raised in his first post- conviction petition. 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 District Court correctly applied the procedural bar to Insua’s claim. ¶8 Affirmed. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JIM RICE | July 9, 2013 |
67018932-48c5-4982-b10e-8a189a700e5c | Citizens for Balanced Use v. Maurier | 2013 MT 166 | DA 12-0306 | Montana | Montana Supreme Court | DA 12-0306 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 166 CITIZENS FOR BALANCED USE; SEN. RICK RIPLEY; VALLEY COUNTY COMMISSIONERS, DUSTIN HOFELDT; VICKI HOFELDT; KEN HANSEN; JASON HOLT; SIERRA STONEBERG HOLT; ROSE STONEBERG; UNITED PROPERTY OWNERS OF MONTANA; and MISSOURI RIVER STEWARDS, Plaintiffs and Appellees, v. JOSEPH MAURIER; MONTANA DEPARTMENT OF FISH, WILDLIFE & PARKS; and MONTANA FISH, WILDLIFE & PARKS COMMISSION, Defendants and Appellants, and DEFENDERS OF WILDLIFE and NATIONAL WILDLIFE FEDERATION, Defendant Intervenors and Appellants. APPEAL FROM: District Court of the Seventeenth Judicial District, In and For the County of Blaine, Cause No. DV-2012-1 Honorable John C. McKeon, Presiding Judge COUNSEL OF RECORD: For Appellants: Zachary C. Zipfel (argued), Rebecca Jakes Dockter (argued), Special Assistant Attorneys General, Helena, Montana (For Joseph Maurier, MT Dept. of FWP, and MT FWP Commission) Timothy J. Preso (argued), Earthjustice, Bozeman, Montana (For Defenders of Wildlife and National Wildlife Federation) June 19 2013 2 For Appellees: Chad E. Adams (argued), J. Daniel Hoven, Steven T. Wade, Christy S. McCann; Browning, Kaleczyc, Berry & Hoven, PC, Helena, Montana For Amicus: Ryan C. Rusche, Attorney at Law, Poplar, Montana Argued: April 12, 2013 Submitted: April 16, 2013 Decided: June 19, 2013 Filed: __________________________________________ Clerk 3 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Joseph Maurier; Montana Department of Fish, Wildlife & Parks; Montana Fish, Wildlife & Parks Commission (hereafter referred to collectively as DFWP); Defenders of Wildlife; and National Wildlife Federation, intervenors, appeal from the District Court’s Order Granting Preliminary Injunction. We reverse. PROCEDURAL AND FACTUAL BACKGROUND ¶2 This case arises from the challenges presented to the State of Montana from bison which seasonally migrate out of Yellowstone National Park. Since 2000 the State, through the Department of Fish, Wildlife & Parks, along with the Montana Department of Livestock, has been a member of the Interagency Bison Management Plan, and it issued the Bison Management Environmental Impact Study that same year. The United States participates in the Interagency Bison Management Plan through the National Park Service, the Forest Service, and the Department of Agriculture’s Animal and Plant Health Inspection Service. ¶3 Starting in 2004 the DFWP, the National Park Service, and the USDA Animal and Plant Health Inspection Service began a quarantine program to isolate and study bison that migrated out of Yellowstone Park and into Montana. These animals were born into the genetically-pure Yellowstone herd (not influenced by genes from domestic cattle), and were tested negative for the disease brucellosis.1 The goal was to create a 1 Brucellosis is a serious disease for animals and humans, causing sterility and fetal abortions in livestock and undulant fever in humans. Brucellosis infects some of the Yellowstone Park bison, having been passed to them from 4 brucellosis-free herd that could be relocated out of the Yellowstone area, as an alternative to commercial slaughter and other bison-control measures. In 2005 DFWP established a quarantine facility just north of Yellowstone Park, starting with 100 calves that were ear- tagged, implanted with microchips, and repeatedly tested for brucellosis over a period of years. Some of these animals have matured and bred with others in the study, and their offspring have also tested negative for brucellosis. ¶4 In 2011 the DFWP considered relocation of a first group of about 60 bison for the final stage of the quarantine program, a five-year period of continued quarantine and testing. The DFWP considered several sites that could potentially pasture the animals and in September, 2011, released its draft environmental assessment evaluating the options for transferring the quarantine program bison. In December, 2011, DFWP decided to transfer the animals to an existing 4800-acre bison pasture on the Ft. Peck Reservation in northeastern Montana, and to eventually transfer half of those animals to the Ft. Belknap Reservation when a suitable pasture is established there. While there were herds of domestic bison on both reservations, the plan was to separate those animals from the Yellowstone animals and then remove the domestic animals within three years. ¶5 The final DFWP decision required it to enter agreements (referred to as a Memorandum of Understanding, or MOU) with the tribes of both reservations. The DFWP entered an MOU with the Ft. Peck Tribes on March 16, 2012, and most of the bison were transported to the Reservation on March 19, 2012. The DFWP planned that domestic cattle. The disease can be spread back to cattle. Montana achieved designation as a brucellosis-free state in 1985 after decades of effort and expense. This designation allows cattle producers to ship animals without testing. 5 the agreement with the Ft. Belknap Tribes would include provisions requiring adequate new fencing prior to transferring any bison to the Ft. Belknap pasture. ¶6 On March 19, the CBU applied for a temporary restraining order against shipment of bison to Ft. Peck, but the District Court denied that application “due to procedural defects involving lack of notice and a sworn complaint or affidavit.” The CBU filed a new application and the District Court granted a TRO on March 22, 2012, but only after the final shipment of bison to Ft. Peck had taken place. ¶7 The MOU with the Ft. Peck Tribes provided for the relocation and containment of the quarantine program bison. The Tribes agreed to continue the quarantine program disease testing and to be responsible for the care and management of the animals. The Tribes agreed to surround the pasture with adequate fencing, “at least a seven foot, woven wire fence.” The Tribes further agreed to act within 72 hours to return any escaped bison and to maintain insurance to cover damages caused by escapes. If escaped animals are not contained they can be killed by DFWP. The agreement provided that half the animals would be transferred to Ft. Belknap as soon as practical after establishing adequate facilities there. Shipment of the bison to Ft. Peck took place primarily on March 19, 2012, with a few more animals shipped a few days later. ¶8 The present lawsuit was filed in January, 2012, challenging the DFWP action and seeking to enjoin the bison transport. The plaintiffs, collectively referred to here as the CBU, asked for an injunction to prohibit movement of any Yellowstone bison until the DFWP complied with §§ 87-1-216 and -217, MCA. While the bison transport was still in 6 process on March 22, 2012, the District Court entered a temporary restraining order enjoining any bison movement from Ft. Peck to Ft. Belknap. The District Court subsequently held a hearing and on May 8, 2012, issued a preliminary injunction prohibiting DFWP from entering any agreement with any Tribal entity or public or private landowner concerning transplanting Yellowstone bison; prohibiting DFWP from transferring any bison from the brucellosis quarantine facilities; and prohibiting DFWP from transferring any bison from Ft. Peck to Ft. Belknap. The State of Montana and intervenor defendants appeal the District Court’s order granting the preliminary injunction. STANDARD OF REVIEW ¶9 This Court generally reviews a district court’s decision to grant a preliminary injunction for a manifest abuse of discretion, one that is “obvious, evident, or unmistakable.” State v. BNSF Ry. Co., 2011 MT 108, ¶ 16, 360 Mont. 361, 254 P.3d 561. To the extent that a preliminary injunction is based upon an interpretation of law, the district court’s conclusions of law are reviewed to determine whether they are correct. Reier Broad. Co. v. Kramer, 2003 MT 165, ¶ 9, 316 Mont. 301, 72 P.3d 944. DISCUSSION ¶10 While the Appellants state a number of issues, they all are contained within the issue of whether the District Court properly entered the preliminary injunction. ¶11 A preliminary injunction is an extraordinary remedy and should be granted with caution based in sound judicial discretion. Troglia v. Bartoletti, 152 Mont. 365, 370, 451 7 P.2d 106, 109 (1969). The purpose of a preliminary injunction is to preserve the status quo and to minimize the harm to the parties pending trial. City of Whitefish v. Board of County Comm’rs., 2008 MT 436, ¶ 18, 347 Mont. 490, 199 P.3d 201; Yockey v. Kearns Properties, 2005 MT 27, ¶ 18, 326 Mont. 28, 106 P.3d 1185. The district court considering a preliminary injunction sits in equity and should not anticipate the ultimate determination of the issues in the case, Sweet Grass Farms v. Board of County Comm’rs., 2000 MT 147, ¶ 38, 300 Mont. 66, 2 P.3d 825, applying § 27-19-201, MCA. The applicant for a preliminary injunction must show a prima facie case that he will suffer irreparable injury before the case can be fully litigated. Sweet Grass Farms, ¶ 28. ¶12 Much of the discussion in the District Court’s Order Granting Preliminary Injunction, and in the arguments on appeal, arises from the application of § 87-1-216, MCA. The plaintiffs argue and the District Court concluded that § 87-1-216, MCA, governs DFWP’s transfer of the quarantined bison to Ft. Peck and then to Ft. Belknap. During the injunction proceedings in District Court the plaintiffs withdrew the request that the initial group of bison be removed from Ft. Peck. A preliminary injunction is not available to restrain an act already committed. State v. BNSF Ry., ¶ 19. The remaining issue in this case is whether § 87-1-216, MCA, governs transfer of some of the Ft. Peck bison to Ft. Belknap so as to support a preliminary injunction against that transfer. ¶13 Section 87-1-216, MCA, begins with a legislative finding that “significant potential exists for the spread of contagious disease to persons or livestock in Montana and for damages to person and property by wild buffalo or bison.” The statute designates 8 Yellowstone National Park bison as a species requiring disease control, and designates “other wild buffalo” as a “species in need of management.” Subsection (4) provides that DFWP “may not release, transplant, or allow wild buffalo or bison on any private or public land in Montana that has not been authorized for that use by the private or public landowner.” Subsection (5) requires DFWP to develop and adopt a management plan before any wild buffalo “under the department’s jurisdiction” may be released or transplanted onto “private or public land in Montana.” The statute requires that the management plan contain a number of provisions including identification and tracking protocols, and containment measures. Subsection (6) requires DFWP to provide the opportunity for public comment and to provide a public hearing in the “affected county or counties.” Subsection (7) makes the DFWP liable for the costs of any damage to private property that occurs as a result of its failure to meet any of the requirements of subsection (5). ¶14 The District Court applied § 87-1-216, MCA, and concluded that DFWP had violated the statute by transferring the bison to Ft. Peck without obtaining consent of affected landowners, and without adopting a management plan. The bison transfer to Ft. Peck had already taken place, and CBU did not seek any injunctive relief that would require removal of the Ft. Peck bison. Nonetheless, the District Court relied upon events involved in that transfer to enjoin any other transfers, including the anticipated transfer to Ft. Belknap. The District Court noted that the evidence at the hearing showed that three individuals owned some land within the designated 4800-acre pasture at Ft. Peck. There 9 was no evidence, however, that those individuals had not consented to having bison on their property, or that they objected to having bison on their property. It is uncontested that the initial 800-acre bison pasture at Ft. Belknap is exclusively tribal land. ¶15 Under the express terms of § 87-1-216, MCA, it applies only when “wild buffalo or bison” are relocated to “public or private land in Montana.” A “wild buffalo or bison” is defined as a bison “that has not been reduced to captivity and is not owned by a person.” Sections 81-1-101(6) and 87-2-101(1), MCA. The brucellosis quarantine bison involved in this case have been reduced to captivity for a number of years and therefore arguably are not “wild buffalo or bison” as defined in Montana law, rendering § 87-1- 216, MCA, inapplicable to this case. The parties did not raise or brief this issue and it was not addressed by the District Court. Because the District Court based its ruling on an interpretation of the statute’s “public or private land” language and because the parties focused upon that language in their arguments, we will consider it on appeal. State v. Andersen-Conway, 2007 MT 281, ¶ 14, 339 Mont. 439, 171 P.3d 678 (this Court generally does not resolve a case on grounds not raised or supported by the parties); Pinnow v. Mont. State Fund, 2007 MT 332, ¶ 15, 340 Mont. 217, 172 P.3d 1273 (same). ¶16 The District Court concluded that § 87-1-216, MCA, was not ambiguous and that the plain meaning of the phrase “public or private land” included transfers to tribal lands. We conclude otherwise. First, as previously noted, it is clear that the phrase “public or private land in Montana” does not expressly mention tribal lands. By contrast, in a number of other statutes the Legislature has specifically referred to tribes or tribal land 10 when it intended to do so. Most significantly, there is a statute that expressly provides authority to the Department of Livestock to transfer bison “to qualified tribal entities” that participate in a disease control program. Section 81-2-120(1)(d)(ii), MCA. That statute, specifically referencing bison transfers to tribes, contains neither the landowner consent nor management plan requirements of § 87-1-216, MCA, and it requires no public hearings. ¶17 Similarly, § 87-1-217, MCA, sets out State policy on “large predators,” defined to mean “bears, mountain lions and wolves.” As part of that policy, the DFWP is required to ensure that “county commissioners and tribal governments” have the opportunity for consultation on policies.2 Many other examples of express statutory references to tribes exist, including but not limited to: §§ 2-15-141 to 143, MCA (directing state agencies in implementing policies that “have direct tribal implications”); § 2-15-3112, MCA (livestock loss mitigation programs apply on “state, federal, and private land and on tribal land”); § 5-5-229, MCA (establishing a “state-tribal relations committee” of the Legislature); § 7-6-2230, MCA (disbursements for projects shared “with any other county, city, state, federal, or Indian tribal agency”); § 7-10-102, MCA (resources “within the exterior boundaries of an Indian reservation”); § 10-3-315, MCA (requiring authorization from any “affected political subdivision, tribal government, corporation, organization, or individual” prior to debris removal); § 60-4-202, MCA (providing for sales of property to a “federal, state, tribal, or local government”); and § 90-1-404, MCA 2 The District Court in the Order Granting Preliminary Injunction determined, for reasons that are not at all clear, that bison are “large predators” under § 87-1-217, MCA. This is clearly an error of law because the statute limits large predators to bears, mountain lions and wolves. The parties agree that this was error. 11 (providing for cooperation of “state, local, private and tribal entities to develop and maintain land information”). ¶18 Principles of land ownership support the conclusion that tribes and tribal lands should not be impliedly included in statutory schemes without the clearest of reasons to do so. Public lands of the State of Montana are described in Article X, § 11 of the Montana Constitution, to include lands granted by Congress, or lands acquired by gift, grant or devise, or by exchange, that are owned and managed by the State. See also § 77- 1-101(8), MCA, defining “state land.” Private property is property owned by an individual and therefore private. Section 70-1-102, MCA. ¶19 Reservations and tribal lands are neither public property nor private property, but are in a special class. Article I of the Montana Constitution affirms the special status of tribal lands, declaring that “all land owned or held by any Indian or Indian tribes shall remain under the absolute jurisdiction and control of the congress of the United States.” The United States and the tribes retain jurisdiction over “Indian Country.” Big Spring v. Conway, 2011 MT 109, ¶ 30, 360 Mont. 370, 255 P.3d 121. Nothing in these provisions on land ownership suggests that the phrase “private or public land in Montana” should be construed to include tribal lands on the reservation. ¶20 The Legislature has specifically provided for the transfer of bison to tribes in § 81- 2-120, MCA, and has required DFWP to consult with tribes about large predators, § 87- 1-217, MCA. We therefore conclude that the Legislature did not intend that the phrase “private or public land in Montana” include tribal lands and did not intend that § 87-1- 12 216 apply to the transfer of the quarantined Yellowstone bison to tribal lands of the Ft. Peck and Ft. Belknap Tribes. ¶21 Since § 87-1-216, MCA, does not apply to the bison transfer to Ft. Peck and Ft. Belknap, the District Court erred as a matter of law in issuing the preliminary injunction based upon the conclusion that DFWP had violated that statute. ¶22 After determining that § 87-1-216, MCA, applied to this case, the District Court applied § 27-19-201(1), MCA, and determined that the CBU had established a “prima facie case” entitling it to a preliminary injunction, to prevent the DFWP from violating § 87-1-216(4)-(6), MCA. The District Court considered whether CBU had established a likelihood of success on the merits; the likelihood of irreparable injury; whether the balance of the equities favored CBU; and whether the injunction would be adverse to the public interest. Shammel v. Canyon Resources, 2003 MT 372, ¶ 17, 319 Mont. 132, 82 P.3d 912 (the district court should consider those four factors where monetary damages will not afford an adequate remedy). ¶23 The District Court determined that even though the CBU failed to demonstrate the likelihood of irreparable injury in the absence of an injunction, a balancing of the equities in the case favored the CBU and therefore tipped the scales in favor of issuing an injunction. That decision was predicated upon the involvement of “disease prone” bison; the absence of a management plan required by § 87-1-216, MCA; the absence of landowner consent to the bison transfer; the DFWP’s delegation of its statutory 13 responsibilities under § 87-1-216, MCA, to the Ft. Peck Tribes; and the evidence of inadequate pasture fencing at Ft. Belknap. ¶24 The CBU presented landowner testimony about the condition of some of the current fence at Ft. Belknap and about past problems of property damage caused by escaped bison from the Tribes’ existing domestic herd. Property owners adjacent to the proposed Ft. Belknap bison pasture have a right, as the District Court found, to protect their property. It is at least arguable, however, that the adjacent property owners would be in a better position to do so if the DFWP bison quarantine program were completed rather than halted. ¶25 The Ft. Belknap commercial bison herd presently numbers over 400 animals. Under the plan proposed by the DFWP, the commercial herd would be separated from the quarantine bison and would be eliminated in favor of the Yellowstone animals. The projected MOU with the Ft. Belknap Tribes would be similar to the one entered with the Ft. Peck Tribes, and would require a bison enclosure fence upgraded to meet the specifications of the DFWP prior to any bison transfer. The Tribes would have specific responsibilities under the MOU to contain escaped animals, and would have to provide insurance coverage that could be claimed by adversely-affected landowners. Moreover, while the District Court referred to the quarantine bison as “disease prone,” the evidence was that the animals have been tested for years and are brucellosis free, and that they will be subject to continued brucellosis testing. In fact the District Court acknowledged that there is “no evidence of a reason to believe these bison have a latent infection.” 14 ¶26 The District Court also failed to weigh the equities of the interest of the State of Montana in finding a way to constructively meet the challenges presented by Yellowstone Park bison which migrate into the State. The quarantine and relocation program adopted by DFWP presents a reasoned and viable alternative or addition to the hazing, confinement, commercial slaughter, and other steps that have been taken. Significantly, the clear policy of the State of Montana, enacted by the Legislature in § 81- 2-120, MCA, is to permit the transfer of disease-free Yellowstone bison to Indian Tribes who will agree to have them. While the bison transfer in this case was by the DFWP and not the Department of Livestock, the animals are tested disease free and the transfer was consistent with established State policy. ¶27 Also, while the Ft. Belknap and Ft. Peck Tribes are not parties to this action, the District Court did acknowledge their interest in participating in the bison transfers. This interest is long-held and deeply rooted in the history, beliefs and traditions of the Tribes. Recovery of and reconnection to the wild genetic strain of Yellowstone bison represent important goals for the Tribes. ¶28 In summary, we cannot conclude, as the District Court did, that the balance of equities in this case favors the CBU. It was an abuse of discretion for the District Court to reach a determination on the balance of equities without fully considering the equities of all interests involved. Therefore, the District Court relied upon erroneous grounds for issuing a preliminary injunction under § 27-19-201(2), MCA. 15 ¶29 Finally, the District Court determined that the CBU was entitled to an injunction under § 27-19-201(3), MCA, based primarily upon the absence of a “choice of law” provision in the MOU entered with the Ft. Peck Tribes. The District Court was concerned that the DFWP had discrete duties under § 87-1-216, MCA, that were being delegated to the Tribes. If the Tribes fell short of those duties, then neither the CBU nor the DFWP would have a forum to seek redress. This could tend “to render the judgment [of the District Court] ineffectual” as provided in § 27-19-201(3), MCA. ¶30 This discussion is relevant only to the extent that the DFWP has statutory duties under § 87-1-216, MCA, that govern transfer of the Yellowstone quarantine bison to tribal lands. As we have determined, that statute does not apply. To the extent that any statute applies, it is § 81-2-120, MCA, which lacks the requirements of § 87-1-216, MCA, and allows transfer of bison to tribes as long as disease control measures are in place. ¶31 The District Court relied upon erroneous grounds for issuing a preliminary injunction under § 27-19-201(3), MCA, and is reversed. Having determined that the preliminary injunction was wrongfully issued, we decline to address the other issues raised by the parties. ¶32 The District Court is reversed, the preliminary injunction is vacated, and this case is remanded for further proceedings consistent with this Opinion. /S/ MIKE McGRATH 16 We concur: /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BETH BAKER /S/ LAURIE McKINNON /S/ BRIAN MORRIS Justice Jim Rice, concurring. ¶33 I concur in the decision of the Court. With regard to the proper construction of § 87-1-216, MCA, any ambiguity in the statutory language was resolved during floor debate, wherein the House sponsor of SB 212 explained in response to a question that he had conferred with the Senate sponsor concerning the measure’s potential impact upon transfers of bison by the Department of Fish, Wildlife and Parks to the tribes, and indicated unequivocally that the measure “would have no effect on the tribe’s ability to receive buffalo from the department.” See Montanans for Justice v. State, 2006 MT 277, ¶ 60, 334 Mont. 237, 146 P.3d 759 (“When the legislative intent cannot be readily derived from the plain language, we review the legislative history. . . .”). ¶34 The Appellants’ briefing and their comments during oral argument display a remarkable befuddlement regarding the issue of jurisdiction over the MOU. As the District Court noted, “FWP is uncertain which forum it can use to enforce the MOU.” For a department of state government to deploy state resources pursuant to a contract it has entered, while having no idea to what judicial forum it can turn to ensure that the contractual obligations made to the state will be enforced, and the state’s interest 17 protected, is no less than maladministration. The obligations to the state under the MOU are substantial. As the Court notes, the Department is now working on a second MOU to be entered with the Fort Belknap Tribes. Opinion, ¶ 25. This time, perhaps some thought can be given to where the state is entitled to seek judicial enforcement of the MOU in order to protect its investment of state resources in this project. /S/ JIM RICE | June 19, 2013 |
3df9e9c0-5005-4098-a728-0b9846000d8f | Pennington v. Flaherty | 2013 MT 160 | DA 12-0344 | Montana | Montana Supreme Court | DA 12-0344 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 160 JANICE PENNINGTON, Plaintiff and Appellee, v. FRANK E. FLAHERTY and THE ESTATE OF MARGARET M. FLAHERTY, Defendants and Appellants, and JOSEPH C. BUNDI and MELVIN E. MATTINGLY, Defendants. APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Teton, Cause No. DV 08-033 Honorable David Cybulski, Presiding Judge COUNSEL OF RECORD: For Appellants: Steven T. Potts, Steven T. Potts, PLLC, Great Falls, Montana For Appellee: Michael Talia, Mark Smith; Church, Harris, Johnson & Williams, P.C.,Great Falls, Montana Submitted on Briefs: January 23, 2013 Decided: June 18, 2013 Filed: __________________________________________ Clerk June 18 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Appellants Frank E. Flaherty and the Estate of Margaret M. Flaherty (collectively Flaherty) appeal from an order entered by the Ninth Judicial District Court, Teton County that granted summary judgment in favor of Appellee Janice Pennington (Pennington) on Pennington’s action to quiet title. We affirm. ¶2 We address the following issue on appeal: ¶3 Whether the District Court properly granted summary judgment to Pennington? BACKGROUND AND HISTORY ¶4 Bruce Nelson (Nelson) subdivided property on Gibson Reservoir in Teton County in the early 1970s. Nelson filed a plat of the subdivision on June 11, 1973. The plat depicts approximately 44 tracts. Nothing in the plat indicates any prohibition on the development of Pennington’s tract, or any other tract. In fact, the plat places only one restriction on the development of any tract, including Pennington’s: that no property owner could install a sanitary facility on the lot until the county sanitarian approves the facility. ¶5 Nelson filed a separate document entitled “Restrictions” with Teton County on June 12, 1974. The Restrictions provide that tracts 16 and 17, now owned by Pennington, would be “combined into usage” as one tract. The Restrictions further provide that the installation of any drain field on the combined parcel would require approval from the county sanitarian “prior to construction on the combined parcel of the said two tracts.” ¶6 Flaherty claims that he purchased tract 18 from Nelson on June 21, 1973, ten days after Nelson had filed the plat. Flaherty waited until January 27, 1975, to record the deed. 3 Flaherty’s deed declares that he takes title to tract 18 subject to “[r]estrictions dated June 4th, 1974 recorded June 12th 1974.” The delayed filing of Flaherty’s deed until January 27, 1975, seems the only explanation as to how Flaherty’s deed could subject the purchase to the Restrictions that were recorded in 1974. It remains unanswered from the record, however, how Flaherty’s deed, ostensibly executed on June 21, 1973, could refer explicitly to Restrictions filed on June 12, 1974. ¶7 Flaherty alleges that, around the time of conveyance of his property, Nelson guaranteed, orally and in writing, that he would not sell adjoining tracts 16 and 17. Flaherty claims that Nelson intended tracts 16 and 17 to serve as a buffer zone to provide more privacy to tract 18 and thereby enhance tract 18’s appeal. Flaherty filed a notarized “Declaration of Interest” (Declaration) with the Teton County Clerk and Recorder four years later in 1977. ¶8 The Declaration takes the form of an affidavit of Frank Flaherty, dated March 28, 1977. Flaherty attested that Nelson “orally and in writing guaranteed that the sites now known as Tracts 16 and 17 of Gibson Lake Tracts East would not be sold.” The Declaration further provides that the “covenant not to develop sites 16 and 17 was an integral part of my contract with Bruce Nelson.” The Declaration further seeks “to put on actual and constructive notice any prospective purchase is subject to my interest.” The Declaration concludes with a warning that Mr. Flaherty is “ready to sue to defend my interest in the aforementioned realty and have title quieted in my name.” 4 ¶9 Flaherty attached to the Declaration what he claims to be a sales brochure that Nelson allegedly had provided to him at the time of his purchase. This brochure apparently constitutes the “in writing” guarantee from Nelson that he would not develop tracts 16 and 17. The brochure provides that “only alternate sites being offered so that buyers will have utmost privacy.” Nelson’s signature appears nowhere in the Declaration or on the attached brochure. ¶10 The brochure appears to depict the same property that encompasses Nelson’s subdivision on Gibson Reservoir. The plat depicted on the brochure, however, does not match the official subdivision plat approved by Teton County. Among other differences, the brochure depicts more lots than depicted in the official plat. The layout of the tracts depicted in the brochure also does not mirror the layout in the official plat. The size and layout of many of the individual lots depicted in the brochure also differ from those lots depicted in the official plat. ¶11 Nelson sold tracts 16 and 17 in 2005 to Lee and Susan Carlbom (Carlboms). The corporation warranty deed that effectuates the transfer contains no reference to any negative easement or servitude in favor of Flaherty. This sale from Nelson to Carlboms seemingly conflicted with the claim in Flaherty’s Declaration that Nelson promised Flaherty that tracts 16 and 17 “would not be sold.” Flaherty apparently took no action to make good on his threat “to sue to defend my interest in [tracts 16 and 17] and have title quieted in my name.” ¶12 Pennington, in turn, purchased tracts 16 and 17 from Carlboms in 2008. Pennington’s deed also contains no reference to any negative easement in favor of Flaherty. Pennington 5 admittedly purchased the property with knowledge of Flaherty’s Declaration. Pennington signed an addendum to the property’s buy/sell agreement that acknowledged that “Frank Flaherty . . . claims that Bruce Nelson orally and in writing guaranteed Flaherty that [tracts 16 and 17] would never be sold or developed.” Pennington accepted title to tracts 16 and 17 “as is” without any warranty of title. ¶13 Pennington filed a quiet title action to clear her title of any cloud that may have arisen as a result of Flaherty’s Declaration. Flaherty defended on the basis that the Declaration entitled him to a negative easement or equitable servitude that would prevent Pennington from developing tracts 16 and 17. Flaherty filed a motion for summary judgment. Flaherty filed an affidavit in support of the motion that generally mirrors the 1977 Declaration. Flaherty again attested that Nelson “orally and in writing told us and guaranteed” that tracts 16 and 17 “would not be sold.” Flaherty again attested that Nelson had “provided a brochure to me stating that only alternate sites were being offered for sale to ensure privacy for buyers such as my wife and I.” Flaherty further attested, for the first time, that Nelson “promised us that Tracts 16 and 17 would not be developed.” ¶14 The District Court denied Flaherty’s motion for summary judgment. The court noted that Flaherty’s motion relied heavily upon the alleged oral guarantee from Nelson and the brochure that Flaherty claims that Nelson had given to him. Flaherty sought to avoid hearsay problems associated with statements in the Declaration by relying on the transaction rule of § 26-1-103, MCA. Flaherty argued, in effect, that the brochure and Nelson’s alleged oral guarantee induced Flaherty to purchase tract 18. The transaction rule allows presentation of 6 a declaration, act, or omission as part of a transaction. As the court noted, however, the transaction rule “does not create an exception to hearsay.” Flaherty offered Nelson’s alleged guarantee at the time of his purchase of tract 18, according to the District Court, for the truth of the matter asserted and no hearsay exception applies. ¶15 The court similarly excluded Flaherty’s assertion that Nelson assured him that tracts 16 and 17 “never would be developed.” These rulings left Flaherty only with his statements that Nelson had given him the brochure and that he had spent time and money on the development of tract 18. These final two items, standing alone, left unresolved numerous genuine issues of material fact and the District Court accordingly denied Flaherty’s motion for summary judgment. ¶16 Pennington later filed her own motion for summary judgment. The District Court determined that the briefing “does not show any material issue of fact, even when viewed in the light most favorable to [Flaherty], the brochure and declaration of interest do not create a restriction on development.” The court further determined that the “subdivision plat and Restrictions on Tracts in Gibson Lake Tracts are the only restrictions on use of the property.” Flaherty appeals. STANDARD OF REVIEW ¶17 We review de novo a district court’s grant or denial of a motion for summary judgment. Sayers v. Choteau Co., 2013 MT 45, ¶ 21, 369 Mont. 98, 297 P.3d 312. We apply the same standards used by the district court under M. R. Civ. P. 56(c). Sayers, ¶ 21. 7 DISCUSSION ¶18 Whether the District Court properly granted summary judgment to Pennington? ¶19 Pennington established in the District Court that no documents related to the plat, in Flaherty’s chain of title, or in her chain of title, imposed any restrictions on her use of tracts 16 and 17. Nothing in the subdivision plat indicates any relevant prohibition on the development of Pennington’s tract, or any other tract. The Restrictions contemplate development of Pennington’s property as evidenced by the directive that tracts 16 and 17 would be “combined into usage” as one tract on which no drain field could be installed on the combined parcel without approval from the county sanitarian “prior to construction on the combined parcel of the said two tracts.” ¶20 Nothing in the deed that transferred tract 18 from Nelson to Flaherty contains any mention of other limitations or prohibitions on development of Pennington’s property. Similarly, nothing in the deed that transferred tracts 16 and 17 from Nelson to Carlboms in 2005, or from Carlboms to Pennington in 2008, contained any mention of limitations or prohibitions on development of Pennington’s property. The lack of any prohibitions or limitations on development in either the written conveyance from Nelson to Flaherty, or Nelson to Pennington’s predecessor in interest, forced Flaherty to rely entirely on the existence of implied restrictions in order to defeat Pennington’s claim for summary judgment. Flaherty had to establish his implied easement claim through admissible evidence. See N. Cheyenne Tribe v. Roman Catholic Church, 2013 MT 24, ¶ 40, 368 Mont. 330, 296 P.3d 450. 8 ¶21 An implied restriction can be enforced as an equitable servitude. See Goeres v. Lindey’s, Inc., 190 Mont. 172, 177-78, 619 P.2d 1194, 1197-98 (1980). Principles of equity control the application of implied restrictions. Goeres, 190 Mont. at 177-78, 619 P.2d at 1197-98. We must consider with “extreme caution” any implied negative easements as to a particular lot, however, due to the fact that an implied negative easement deprives people the use of their property. Goeres, 190 Mont. at 177, 619 P.2d at 1197 (emphasis in original). The source of the implied restrictions alleged by Flaherty take two forms. ¶22 He first contends that the brochure restricts the development of Pennington’s property. Flaherty claims that Nelson gave him the brochure when Flaherty was considering whether to purchase tract 18. Flaherty cites the decision in Prospect Dev. Co. v. Bershader, 515 S.E.2d 291 (Va. 1999), to support his claim that the brochure could serve to establish a binding servitude. ¶23 In Prospect Development, a buyer sought to purchase property adjacent to a lot designated as “preserved land” on the recorded subdivision plat. Prospect Dev., 515 S.E.2d at 294. The developer made multiple representations that no home ever could be built on the “preserved land.” The buyer paid a premium of $15,000 to own property next to undeveloped land. Prospect Dev., 515 S.E.2d at 295. The developer later submitted a “resubdivision plat” to the county for approval to re-subdivide the development so that a house could be built on the “preserved land.” Prospect Dev., 515 S.E.2d at 295. ¶24 Flaherty cannot allege that any recorded document misled him. Neither the plat nor the Restrictions contain any applicable constraints on development of Pennington’s property. 9 Flaherty presented no evidence that he paid a premium for tract 18 to reflect the enhanced desirability provided by the buffer zone. Cf. Prospect Dev., 515 S.E.2d at 295. The brochure does not provide that Pennington’s property specifically would not be developed. The brochure simply states that “only alternate sites being offered so that buyers will have utmost privacy.” By contrast, the evidence in Prospect Development demonstrated that the developer had made “numerous representations” to prospective buyers that the tract labeled “preserved land” never would be developed. Prospect Dev., 515 S.E.2d at 299. ¶25 Pennington further argues that Flaherty failed to authenticate the brochure. The lack of authentication proves problematic for Flaherty as the brochure differs in several important respects from the plat, as discussed by the District Court. Flaherty contends that the brochure qualifies for the hearsay exception provided under M. R. Evid. 803(16), for an ancient document. The safe harbor from the hearsay ban under M. R. Evid. 803(16), specifically requires, however, that the party seeking to admit a purported ancient document must establish its “authenticity.” See also King v. Schultz, 141 Mont. 94, 98, 375 P.2d 108, 110 (1962) (discussing limitations on the admissibility of ancient documents pursuant to the hearsay exception). The District Court determined that discrepancies between the recorded plat and the brochure raise doubts as to the brochure’s authenticity. The court noted that the brochure “does not show the lots configured in the same way as they are shown on the final plat on record.” ¶26 M. R. Evid. 901(b)(8), the ancient document authentication provision, likewise, offers no avenue to authenticate the brochure. M. R. Evid. 901(b)(8)(A) requires that the document 10 be “in such condition as to create no suspicion concerning its authenticity.” See PPL Mont., LLC v. State, 2010 MT 64, ¶ 94, 355 Mont. 402, 229 P.3d 421 (overruled on other grounds by PPL Mont. LLC v. State, 132 S. Ct. 1215 (2011)). The facts that Nelson nowhere signed the brochure, that the brochure simply provides that “only alternate sites being offered” without specifying which tracts qualify as “alternative,” and the difference in the configuration and number of lots on the brochure and the recorded plat, raise doubts concerning its authenticity. ¶27 More importantly, Flaherty produced no evidence, aside from his own affidavit, that Nelson ever used the brochure to market lots in the subdivision to Flaherty or any other buyer or potential buyer. Flaherty’s affidavit in support of his motion for summary judgment relies upon his recollection of a hearsay statement that Nelson assured him that tracts 16 and 17 “would not be sold.” Flaherty makes no effort to reconcile this claim with the Restrictions referenced in his deed that tracts 16 and 17 would be combined into a single parcel and that the county sanitarian would have to approve the drain field design for this combined tract before any construction could take place on the combined tract. ¶28 The District Court also rejected Flaherty’s claim that Nelson’s alleged oral assurance constituted part of the transaction through which he purchased tract 18 and somehow escapes the hearsay ban. Flaherty sought to admit Nelson’s alleged oral statements for the truth of the matter asserted – that Nelson promised Flaherty that tracts 16 and 17 never would be sold – and thus M. R. Evid. 801 would bar its admission. No exception pursuant to M. R. Evid. 803 would allow Nelson’s alleged oral statements to be admitted. As we noted in Ternes v. 11 State Farm Fire & Cas. Co., 2011 MT 156, ¶ 24, 361 Mont. 129, 257 P.3d 352, hearsay “cannot be used to defeat summary judgment.” ¶29 Flaherty next argues that the Declaration restricts Pennington’s use of her property. Flaherty argues that Nelson’s assurances amounted to an “integral part” of his negotiations with Nelson, and, thus, the statements to that effect in the Declaration qualify as statements in documents affecting an interest in property. M. R. Evid. 803(15), provides a specific hearsay exception for statements in documents “affecting an interest in property.” ¶30 Flaherty ignores the fact, however, that the limited hearsay exception in M. R. Evid. 803(15), applies “unless dealings with the property since the document was made have been inconsistent with the truth of the statement.” Flaherty produced and filed the Declaration in 1977. The Declaration provides that Nelson guaranteed to Flaherty that tracts 16 and 17 “would not be sold.” Nelson sold tracts 16 and 17 to Carlboms on May 21, 2005. The buyer’s recording of the deed provided notice to Flaherty. More importantly, the Declaration simply documents Nelson’s alleged oral statements in an attempt to prove the truth of these alleged oral statements. M. R. Evid. 801 would bar the admission of the alleged oral statements and no exception pursuant to M. R. Evid. 803 would allow Nelson’s alleged oral statement to be admitted. See Ternes, ¶ 24. ¶31 The 2005 sale proves inconsistent with the statement in the Declaration that Nelson guaranteed to Flaherty that tracts 16 and 17 “would not be sold.” Nothing in the record indicates that Flaherty raised any objection to the 2005 sale. The inconsistent treatment of tracts 16 and 17 since the time that Flaherty filed his Declaration in 1977 undermines the 12 reliability of the statement in the Declaration and moves it outside the scope of the limited hearsay exception contained in M. R. Evid. 803(15). This inconsistent treatment further highlights the “extreme caution” with which we evaluate claims of implied equitable servitudes. Goeres, 190 Mont. at 177, 619 P.2d at 1197 (emphasis in original). ¶32 Pennington acknowledges that she had notice of Flaherty’s 1977 Declaration when she purchased her property. Flaherty argues that Pennington’s knowledge of the Declaration, on its own, defeats her claim for summary judgment. A subsequent purchaser’s knowledge of an implied restriction admittedly represents a key element in the enforceability of an implied restriction. Goeres, 190 Mont. at 177-78, 619 P.2d at 1197-98; cf. Rigney v. Swingley, 112 Mont. 104, 109, 113 P.2d 344, 347 (1941) (holding that a mortgage by one not in the chain of title though recorded “is not constructive notice to subsequent purchasers”) (citations omitted). ¶33 The Court in Goeres, 190 Mont. at 177-78, 619 P.2d at 1197-98, rejected as inequitable an attempt by neighboring property owners to enforce a restriction on commercial use of lots in a subdivision on Seeley Lake. The buyer’s deed and chain of title contained no restrictions on commercial uses. The contesting property owners argued, however, that an implied covenant prevented the buyer from using the property for commercial purposes. The deed for at least one property in the subdivision contained a restrictive covenant that asserted that the buyer’s property was subject to a restrictive covenant. The buyer’s title search had revealed the covenant in the restricted property’s deed. The presence of the restrictive covenant in the deed of a single property in the 13 subdivision failed to place the buyer on notice that the restrictions in that deed applied also to the buyer’s property. Goeres, 190 Mont. at 178, 619 P.2d at 1194. ¶34 Flaherty cannot establish even the attenuated notice deemed inequitable in Goeres. Nothing in the record indicates that Flaherty’s chain of title, Pennington’s chain of title, or the chain of title of any purchaser of a lot at Gibson Reservoir, contains reference to any restrictions on Pennington’s use of tracts 16 and 17. Flaherty instead argues that his own Declaration, filed in 1977, put all potential purchasers of tracts 16 and 17 on notice of his interest. Flaherty’s Declaration admittedly provided notice to Pennington of his claim as evidenced by the addendum to her 2008 buy/sell agreement. The mere fact that Pennington had notice of Flaherty’s putative claim fails, however, to validate automatically Flaherty’s claim on tracts 16 and 17. See Loomis v. Luraski, 2001 MT 223, 306 Mont. 478, 36 P.3d 862 (rejecting attempt by property owner to establish easement on adjacent property for the property owner’s benefit when the claimed easement reservation was made outside of the property owner’s chain of title). ¶35 The facts of Flaherty’s claim also contrast sharply with Thisted v. Country Club Tower Corp., 146 Mont. 87, 405 P.2d 432 (1965) (overruled on other grounds by Gray v. City of Billings, 213 Mont. 6, 689 P.2d 268 (1984)). The developer of a high-rise residential condominium provided prospective purchasers with a detailed brochure that outlined development restrictions on commercial uses. The contracts signed by these residential purchasers contained these same restrictions on commercial uses. Thisted, 146 Mont. at 89- 90, 405 P.2d at 433. The developer later tried to change significantly the character of some 14 floors of the building from residential units to commercial units, despite contracts already in place. Thisted, 146 Mont. at 93, 405 P.2d at 435. The record contains no evidence that Flaherty, Pennington, or any purchaser of a lot at Gibson Reservoir, possess any contract that contains any restrictions on the development of Pennington’s property. ¶36 Flaherty’s claim of equitable estoppel suffers from similar deficiencies. Equitable estoppel requires the moving party to establish six separate elements through clear and convincing evidence. Avanta Fed. Credit Union v. Shupak, 2009 MT 458, ¶ 42, 354 Mont. 372, 223 P.3d 863. Flaherty stumbles on the first element: the existence of conduct, acts, language, or silence amounting to a representation or a concealment of a material fact. Avanta Fed. Credit Union, ¶ 42. ¶37 Nelson filed the Restrictions associated with his plat for the Gibson Reservoir property with Teton County on June 12, 1974. The Restrictions explain that tracts 16 and 17 would be “combined into usage” as one tract with the specific understanding that the installation of any drain field on the combined parcel would require approval from the county sanitarian “prior to construction on the combined parcel of the said two tracts.” The “said two tracts,” of course, are now Pennington’s property. The Restrictions contemplate development of the combined parcels now owned by Pennington. Flaherty’s own deed, apparently executed on June 21, 1973, refers explicitly to the Restrictions that Nelson filed on June 12, 1974. Flaherty could establish no misrepresentation or concealment of a material fact on the part of Nelson under these circumstances. Avanta Fed. Credit Union, ¶ 42. 15 ¶38 Affirmed. /S/ BRIAN MORRIS We concur: /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JIM RICE | June 18, 2013 |
f698598c-b6f3-4453-9e31-d475d0509387 | State v. Steigelman | 2013 MT 153 | DA 12-0275 | Montana | Montana Supreme Court | DA 12-0275 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 153 STATE OF MONTANA, Plaintiff and Appellee, v. MICHAEL JAMES STEIGELMAN, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 09-417 Honorable G. Todd Baugh, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender; Kristen L. Larson, 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; Victoria Callender, Deputy County Attorney, Billings, Montana Submitted on Briefs: February 20, 2013 Decided: June 6, 2013 Filed: __________________________________________ Clerk June 6 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 The State of Montana (State) charged Michael James Steigelman (Steigelman) with felony DUI and two misdemeanors on July 29, 2009. Steigelman filed a motion to dismiss the charges based on an alleged violation of his right to a speedy trial on June 1, 2010, in the Thirteenth Judicial District Court, Yellowstone County. The District Court denied Steigelman’s motion. Steigelman later entered a guilty plea to DUI pursuant to a plea agreement with the State. In return, the State agreed to drop the two misdemeanor charges. Steigelman appeals the District Court’s denial of his motion to dismiss on the speedy trial grounds. We affirm. ¶2 We address on appeal whether the State violated Steigelman’s constitutional right to a speedy trial. FACTS AND PROCEDURAL BACKGROUND ¶3 A Billings, Montana police officer heard a loud crash at an intersectionon the evening of July 29, 2009. The officer saw a vehicle, driven by Steigelman, drive onto the road’s center cement median. Steigelman had struck a road sign and broke it off its mount. The officer observed Steigelman then swerve back onto the road. The officer stopped Steigelman. The officer approached him and immediately noticed that Steigelman’s eyes were bloodshot, that Steigelman’s speech was slurred, and that Steigelman smelled of alcohol. Steigelman admitted to having hit the sign and told the officer he had consumed “about eight to ten beers.” Steigelman failed to complete the standard field sobriety tests. He also refused to provide a breath sample. 3 ¶4 The State charged Steigelman with felony DUI and two misdemeanors. Steigelman appeared for his arraignment on August 3, 2009. The court released Steigelman on bail on August 6, 2009, after he had spent eight days in jail. ¶5 The District Court originally set Steigelman’s omnibus hearing for November 9, 2009, and his trial for January 19, 2010. Steigelman did not appear at the November 9, 2009, omnibus hearing. Steigelman’s appointed counsel advised the court at the hearing that Steigelman and he had not been in contact. Steigelman’s counsel indicated that he planned to seek a continuance of the trial. ¶6 The District Court designated a triple homicide case as the number one trial setting for January 19, 2010. This conflict required the court to reschedule Steigelman’s trial. The District Court reset the omnibus hearing for March 29, 2010, and the trial for June 8, 2010. Steigelman attended the omnibus hearing with counsel from the Office of the Public Defender. The District Court granted a motion to substitute Jeffrey Michael as Steigelman’s counsel on May 18, 2010. The court’s order included a notation of the June 8, 2010, trial date. Steigelman filed a motion to continue the trial on May 27, 2010. Steigelman waived his right to speedy trial as part of his motion. The District Court set a new trial date of September 28, 2010. ¶7 Steigelman filed a motion to dismiss the charges against him on June 1, 2010, based on the State’s alleged violation of his right to speedy trial. The parties briefed the motion and the court conducted a hearing on October 4, 2010. The court heard testimony from Steigelman, the arresting officer, and the State’s counsel in the triple homicide case that had 4 prompted the court to reset Steigelman’s first trial date. ¶8 The court agreed with Steigelman that the duration of the pretrial delay justified further review. The court attributed most of the delay to the State due to institutional causes. The court observed that Steigelman had made efforts to proceed to trial, but that he had not complained about previous delays. The court further observed that Steigelman had served only eight days in jail and that he had been unable to articulate any anxiety or concern beyond that normally associated with a person accused of a crime. ¶9 The court opined that pretrial delay likely had not caused prejudice to Steigelman’s defense, despite Steigelman’s claim of being unable to locate two potential witnesses. The court noted that Steigelman’s admission to having consumed eight to ten beers on the night of his arrest raised questions as to how those two potential witnesses—a former girlfriend and a bartender who had observed Steigelman earlier that evening— could have assisted his defense. The court noted further that the State’s only witness, the arresting officer, had been available for questioning and remained able to testify at trial. STANDARD OF REVIEW ¶10 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. Ariegwe, 2007 MT 204, ¶ 119, 338 Mont. 442, 167 P.3d 815. Whether the factual circumstances establish a speedy trial violation presents a question of law. Ariegwe, ¶ 119. We review de novo a district court’s conclusion of law. Ariegwe, ¶ 119. DISCUSSION 5 ¶11 Whether the State violated Steigelman’s constitutional right to a speedy trial? ¶12 The Sixth Amendment and Fourteenth Amendment to the United States Constitution, and Article II, Section 24 of the Montana Constitution, guarantee a criminal defendant the right to a speedy trial. We revised our framework to analyze speedy trial claims in Ariegwe to track the balancing approach outlined by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972). A court must balance four factors in considering a claim of denial of the right to speedy trial: (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. State v. Billman, 2008 MT 326, ¶ 11, 346 Mont. 118, 194 P.3d 58; Ariegwe, ¶ 20. ¶13 None of the four speedy trial factors, on its own, is dispositive. We must consider the related factors together with other relevant circumstances. Ariegwe, ¶ 153. Moreover, each factor’s significance depends on the unique facts and circumstances of the case. Ariegwe, ¶ 105. We now proceed to review and balance the four speedy trial factors. ¶14 Length of the delay. We consider the length of delay from the date that the State files the charges until the defendant’s trial date. Here 426 days elapsed between the time that the State charged Steigelman on August 3, 2009, and his September 28, 2010, trial date. We have established 200 days, regardless of fault for that delay, as the length of time that triggers further speedy trial analysis. Ariegwe, ¶ 62. No one contests that Steigelman’s delay exceeded the 200-day trigger. Thus, we must analyze the other speedy trial factors ¶15 Reasons for the delay. Under this factor, the court identifies and attributes responsibility for each period of delay in bringing the accused to trial. The weight assigned 6 to a period of delay depends on the type of delay and possible motive, if any, behind the delay. Ariegwe, ¶ 67. We characterize as institutional that delay due to the inherent nature of the criminal justice system. Institutional delay weighs less heavily than intentional attempts by the State to delay the trial. State v. Stops, 2013 MT 131, ¶ 27, 370 Mont. 226, ___ P.3d ___; Ariegwe, ¶ 108. ¶16 The District Court did not issue findings as to each period of delay. The court attributed the bulk of the total delay, however, to the State as institutional delay. For example, the 174 days between Steigelman’s arrest and the first trial date represents institutional delay attributable to the State. The court also attributed to the State the 140 days between the first trial date and the second trial date. This 140-day delay occurred as a result of a scheduling conflict between Steigelman’s first trial date and a deliberate homicide trial also set for that same date. We agree with the District Court that institutional delay properly attributed to the State constituted 314 days of the delay. ¶17 The third period of delay consisted of 112 days between Steigelman’s second trial setting on June 8, 2010, and his third trial setting on September 28, 2010. The court attributed this 112-day period to Steigelman due to his request for more time to investigate and develop his speedy trial claim. We agree. The 314 days that the District Court attributed to the State, on its own, however, exceeds the 200-day trigger for further speedy trial analysis. Ariegwe, ¶ 62. ¶18 The accused’s responses to the delay. Under the third speedy trial factor, the court evaluates the totality of the accused’s responses to the delay to ascertain “whether the 7 accused actually wanted a speedy trial.” Ariegwe, ¶ 79. An accused certainly has “‘no duty to bring himself to trial.’” Ariegwe, ¶ 82 (quoting Barker, 407 U.S. at 527, 92 S. Ct. at 2190). The defendant’s responses to the delay nevertheless represent “an ‘important’ consideration” in determining whether a defendant’s right to a speedy trial has been violated. Ariegwe, ¶ 76, (quoting Barker, 407 U.S. at 534, 92 S. Ct. at 2194). ¶19 We consider the totality of a defendant’s responses to the delay to ascertain whether the defendant “actually wanted a speedy trial” and what weight is to be given to the other three factors in our analysis. Ariegwe, ¶ 79. We consider circumstances such as the “timeliness, persistence, and sincerity of the objections, the reasons for the acquiescence, whether the accused was represented by counsel, [and] the accused’s pretrial conduct (as that conduct bears on the speedy trial right).” Ariegwe, ¶ 80. ¶20 The District Court recognized that, in many cases, “the last thing the defendant really wants is a speedy trial.” The court opined that a defendant often wants “to be able to complain about not having a speedy trial.” The court ultimately rejected the notion, however, that Steigelman wanted to postpone his trial. The court concluded that Steigelman’s conduct did not “fit[] the description” of a defendant seeking to manufacture a speedy trial violation. Nothing in the record leads us to disagree with the District Court’s conclusion that Steigelman’s actions did not constitute a tacit attempt to manufacture a speedy trial claim. State v. Sartain, 2010 MT 213, ¶ 25, 357 Mont. 483, 241 P.3d 1032. ¶21 Prejudice to the accused. We finally analyze the prejudice to Steigelman that may have occurred as a result of the State’s delay in bringing him to trial. We consider three sub- 8 factors when we evaluate prejudice to the accused: (1) oppressive pretrial incarceration; (2) undue prolonged disruption of the accused’s life and aggravated anxiety or concern; and (3) whether the delay has impaired the accused’s ability to present an effective defense. Ariegwe, ¶ 88 (citing Barker, 407 U.S. at 532, 92 S. Ct. at 2193; Doggett v. United States, 505 U.S. 647, 654, 112 S. Ct. 2686, 2692 (1992)). The delay exceeded 200 days and thus we require less proof of prejudice from the defendant and a greater showing of lack of prejudice from the State. Stops, ¶ 41. ¶22 Steigelman suffered minimal pretrial incarceration. The court released Steigelman on bond eight days after his arrest. The four days of pretrial incarceration served by the defendant in Stops comports with Steigelman’s experience. Stops, ¶ 42. We rejected a speedy trial claim in Stops. Stops, ¶ 46. By contrast, we affirmed a district court’s determination of a speedy trial violation in Billman where the defendant spent 278 days in jail before his trial. See Billman, ¶ 39. The eight days that Steigelman spent in jail fails to rise to the level of oppressive pretrial incarceration. Stops, ¶ 42; Billman, ¶ 39. ¶23 With respect to prolonged disruption, Steigelman argued that he had suffered stress due to the fact that his case had not moved ahead rapidly. We have recognized that criminal charges engender a certain amount of inherent anxiety and concern. Billman, ¶ 43. We focus on the extent to which the pretrial delay “has unduly prolonged the disruption of the accused’s life or aggravated the accused’s anxiety or concern.” Billman, ¶ 43, citing Ariegwe, ¶ 97. The generalized stress described by Steigelman differs little from the stress that any person accused of a crime would suffer. 9 ¶24 Other factors that we consider under this provision include employment loss, financial and economic loss, and whether the accused’s associations were curtailed. Ariegwe, ¶ 96. Steigelman claimed that a condition of his release on bond prevented him from driving. He testified that this condition forced him to ask his boss to drive him 200 miles for each of his court appearances. The State points out that Steigelman admitted that his Illinois driver’s license had expired before his arrest on the DUI charge. Steigelman failed to present evidence that he had obtained another valid license. It appears that the expiration of Steigelman’s Illinois driver’s license would have prevented him from driving lawfully even without the condition imposed by the court. ¶25 We agree with the District Court that Steigelman failed to present sufficient evidence to establish that the State’s institutional delay in bringing him to trial caused undue prolonged disruption of his life and aggravated anxiety or concern beyond what any person accused of a crime would suffer. Billman, ¶ 43. Steigelman did not put on evidence that the pretrial delay had caused him to lose his job or suffer economic loss. It appears that Steigelman maintained his employment throughout the period of pretrial delay as evidenced by his claim that his boss had to drive him to court appearances. ¶26 We likewise agree with the District Court that Steigelman failed to establish that the State’s institutional delay inhibited his ability to present an effective defense. Steigelman argued to the District Court that his brief eight-day pretrial incarceration and the prolonged delay in this trial that followed left him unable to locate two potential witnesses. Steigelman claimed that his former girlfriend and the bartender who served him could testify as to how 10 much he had to drink before his arrest. Nothing in the record indicates that Steigelman’s eight days of pretrial incarceration prevented him from locating his former girlfriend, whom he alleges had accompanied him for part of the night in question, and the bartender who served him. Steigelman could testify with no more specificity than the fact that he had broken up with his former girlfriend “not much longer after the arrest.” ¶27 Steigelman further testified as to efforts to locate the bartender who had served him. He claimed that the owner of the bar had been unable to locate the records due to the fact that “it’s been so long back.” Steigelman did not explain whether he attempted to locate the bartender in the days and weeks after his arrest. More importantly, the relevancy of the testimony of these two potential witnesses seems diminished in light of Steigelman’s admission that he had consumed eight to ten beers on the night of his arrest. The arresting officer further observed Steigelman’s vehicle drive onto the median and strike a road sign. The arresting officer also claimed to have witnessed Steigelman’s bloodshot eyes, his slurred speech, and the fact that Steigelman emanated an odor of alcohol. The arresting officer had been available for questioning during the entirety of the pretrial delay. ¶28 Steigelman argues finally that the District Court improperly gave too much weight to the State’s claimed lack of prejudice suffered by Steigelman from the institutional delay. He claims that the other three speedy trial factors—length of the delay, undue stress and anxiety caused by the delay, and his response to the delay—weigh heavily in his favor. He contends that these three speedy trial factors should tip the scales in favor of a speedy trial violation caused by the State’s institutional delay. Steigelman urges the Court to determine that the 11 426-day delay in his trial on uncomplicated charges was “simply too long.” He argues that the State alone had the duty to bring him to trial within an amount of time commensurate with his right to speedy trial. ¶29 The impairment of the accused’s defense from a speedy trial violation constitutes the most important factor in our prejudice analysis. Doggett, 505 U.S. at 654, 112 S. Ct. at 2692. The inability of the defendant “adequately to prepare his case skews the fairness of the entire system.” Doggett, 505 U.S. at 654, 112 S. Ct. at 2692. We agree with the conclusions reached by the District Court. Steigelman admittedly suffered substantial pretrial delay largely attributed to the State under institutional delay. We balance this substantial delay with the limited pretrial incarceration of eight days that Steigelman suffered. Steigelman failed to demonstrate that the delay aggravated his anxiety beyond the anxiety level expected of a person accused of a crime. Finally, Steigelman failed to demonstrate that he suffered substantial prejudice to the ability to defend himself. The State satisfactorily showed a lack of prejudice in Steigelman’s ability to defend against the charges. Stops, ¶ 45. On balance, these considerations lead us to agree with the District Court that the State did not violate Steigelman’s right to a speedy trial. ¶30 Affirmed. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON 12 /S/ JIM RICE Justice Beth Baker, concurring. ¶31 I concur in the disposition of Steigelman’s appeal, but I write to supplement the Court’s evaluation of the fourth Ariegwe factor. Steigelman expressly argues that where the length of delay is presumptively prejudicial and each of the first three speedy trial factors weighs in his favor, the District Court erred by placing a high burden on him to demonstrate prejudice. Steigelman points out that the District Court denied his motion to dismiss based on its finding that “the prejudice to the defendant is just simply not great in this case.” Noting that the State bears the burden of bringing him to trial, and since the delay was over twice the 200-day trigger, Steigelman argues that it was not his burden to prove “great” prejudice, but the State’s job to make a “highly persuasive showing that [he] was not prejudiced by the delay.” State v. Burns, 2011 MT 167, ¶ 22, 361 Mont. 191, 256 P.3d 944. ¶32 Steigelman raises a point on which our post-Ariegwe decisions have touched but that we have not further developed in analyzing the prejudice factor of the speedy trial analysis. That is, while Ariegwe counsels that no one factor is determinative but that all must be considered together with other relevant circumstances (Opinion, ¶ 13), must prejudice be affirmatively demonstrated in order for an accused’s speedy trial claim to prevail? ¶33 We made clear in Ariegwe that the length of delay plays a significant role in evaluating the prejudice factor. “Thus, the further the delay stretches beyond the trigger 13 date, the stronger is the presumption under Factor Four that the accused has been prejudiced by the delay.” Ariegwe, ¶ 107. In that case, and in several since, we have noted that as the delay increases beyond 200 days, “the State’s burden to justify the delay increases.” State v. Billman, 2008 MT 326, ¶ 18, 346 Mont. 118, 194 P.3d 58 (citing Ariegwe, ¶¶ 56, 62) (emphasis added); see also State v. Hendershot, 2009 MT 292, ¶ 28, 352 Mont. 271, 216 P.3d 754; State v. Stops, 2013 MT 131, ¶ 25, 370 Mont. 226, ___ P.3d ___. Importantly, justification for the delay is part of Factor Two of the speedy trial analysis, not the prejudice factor. We observed in Ariegwe that the length of delay plays a significant role in linking the second and fourth factors. Thus, as the delay stretches further beyond the 200-day trigger date, the required showing of prejudice lessens and the required showing of justification increases. Ariegwe, ¶ 107. ¶34 We also have referred to the “State’s burden” in discussing the prejudice factor, ruling in State v. Couture, 2010 MT 201, ¶¶ 49, 55, 357 Mont. 398, 240 P.3d 987, that the State was required to “make ‘a very persuasive showing’” and that the State bore “a heavy burden to show” that the defendant was not prejudiced by a 924-day delay in bringing the charges to trial. In Couture, while we stated that “the accused’s failure to submit affirmative proof of prejudice is not fatal to a speedy trial claim,” ultimately we concluded that the defendant had “not demonstrated an impaired ability to present an effective defense as a consequence of the delay,” and we therefore rejected his speedy trial claim. Couture, ¶¶ 67, 70. ¶35 Similarly, in State v. Lacey, 2010 MT 6, ¶¶ 24-26, 355 Mont. 31, 224 P.3d 1247, we rejected the defendant’s speedy trial claim notwithstanding a more than eight-year delay, 14 based on the combination of his intentional actions in avoiding being brought to trial and the lack of evidence of direct prejudice to his defense. We noted that, “under certain circumstances, where the length of delay is great, the accused’s burden of presenting affirmative evidence of prejudice is lessened.” Lacey, ¶ 23 (citing State v. Hardaway, 2009 MT 249, ¶ 26, 351 Mont. 488, 213 P.3d 776) (emphasis added). ¶36 Our cases reflect what the U.S. Supreme Court held directly in Doggett: that “affirmative proof of particularized prejudice is not essential to every speedy trial claim.” Doggett, 505 U.S. at 655, 112 S. Ct. at 2692. The Court recognized that “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.” Although it must be considered together with the other factors and “cannot alone carry” a speedy trial claim, presumptive prejudice “is part of the mix of relevant facts, and its importance increases with the length of delay.” Doggett, 505 U.S. at 655-56, 112 S. Ct. at 2692-93. The Court made clear that the government’s negligence in bringing an accused to trial is not “automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him.” Doggett, 505 U.S. at 657, 112 S. Ct. at 2693. The circumstances in Doggett represented the “middle ground” between bad-faith conduct by the government—in which case its eight-and-a-half-year delay in bringing the defendant to trial “would present an overwhelming case for dismissal”—and diligent attempts by the government to locate and prosecute the defendant—in which case his speedy trial claim would fail “as a matter of course however great the delay, so long as Doggett could not show specific prejudice to his defense.” Doggett, 505 U.S. at 656-57, 112 S. Ct. at 15 2693. ¶37 As we held in Ariegwe, “it is doubtful that the mere passage of time could ‘conclusively’ establish that the accused has been denied his or her right to a speedy trial.” Ariegwe, ¶ 60. Thus, although there may be cases where the absence of prejudice will not defeat a speedy trial claim, those cases will be few and far between—most likely a case involving government bad faith or conduct similarly egregious to that involved in Doggett, where the government’s negligence caused delay six times longer than the trigger for review and where “the presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant’s acquiescence, . . . nor persuasively rebutted [by the government].” Doggett, 505 U.S. at 658, 112 S. Ct. at 2694. That combination of factors is not present here. While, as Steigelman notes, several trial dates in this case simply “came and went without action” from the State to bring him to trial, the delay in this case largely was institutional and not attributable to either bad faith or negligence by the State of the sort that would entitle a presumption to carry the day without any showing of actual prejudice. Ariegwe, ¶ 60 (noting Doggett’s combination of excessive delay and the government’s lack of diligence). As the Court holds (Opinion, ¶ 29), the evidence in this case fell short in that showing and the District Court properly denied Steigelman’s motion. /S/ BETH BAKER Justice Laurie McKinnon joins in the concurring Opinion of Justice Baker. 16 /S/ LAURIE McKINNON | June 6, 2013 |
ca5cb60b-c242-420d-bc2c-867fd01227a3 | Motta v. Granite County Comm'rs | 2013 MT 172 | DA 12-0525 | Montana | Montana Supreme Court | DA 12-0525 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 172 RICHARD MOTTA, Plaintiff and Appellant, v. GRANITE COUNTY COMMISSIONERS, Defendants and Appellees. APPEAL FROM: District Court of the Third Judicial District, In and For the County of Granite, Cause No. DV 11-16 Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD: For Appellant: Richard Motta, self represented; Philipsburg, Montana For Appellees: Susan Brooks Swimley; Attorney at Law; Bozeman, Montana Submitted on Briefs: March 20, 2013 Decided: July 2, 2013 Filed: __________________________________________ Clerk July 2 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 In this action, Richard Motta asked the Third Judicial District Court, Granite County, to declare void the Granite County Commissioners’ 2011 creation of a Georgetown Lake zoning district. Instead, the District Court entered summary judgment that Granite County properly had enacted the Georgetown Lake zoning. The court also determined Motta to be a vexatious litigant and ordered him to pay the County Commissioners’ attorneys’ fees. Motta appeals. We affirm, except for the portion of the judgment that requires Motta to pay the County Commissioners’ attorneys’ fees incurred for seeking attorneys’ fees. ¶2 The issues are: ¶3 1. Did the District Court correctly rule that Granite County properly enacted the 2011 Georgetown Lake zoning in compliance with §§ 76-2-201 through -228, MCA? ¶4 2. Did the District Court properly determine Motta to be a vexatious litigant? ¶5 3. Did the District Court err in its award of attorneys’ fees to the County Commissioners? BACKGROUND ¶6 The Granite County Commissioners enacted the Georgetown Lake Zoning District and Regulations by resolution in April of 2011. As documented in the “whereas” sections of the resolution, the process began in 2008, when “a contingency of citizens from Georgetown Lake” approached the County Commissioners with a request that the county pursue a zoning district in that area under Title 76, Chapter 2, MCA. The County Commission authorized the citizens to draft and present proposed zoning regulations to 3 the Granite County Planning Board and County Commissioners for consideration. At a series of public meetings and a public hearing, the Planning Board reviewed and amended the draft revisions. In October 2010, the Planning Board approved the regulations, as amended, and presented them to the County Commissioners with a recommendation for approval. After conducting a public hearing in February 2011, the County Commissioners made revisions and amendments in accordance with § 76-2- 205(3), MCA. They allowed a 30-day period for submission of written protests and then, in April 2011, entered a resolution creating the Georgetown Lake Zoning District and adopting the regulations as amended. ¶7 The following month, Motta filed this action. He asked the District Court to enter declaratory judgment voiding the County Commissioners’ resolution to create the Georgetown Lake Zoning District and to adopt the Georgetown Lake Zoning Regulations. The County Commissioners’ answer to Motta’s complaint included a counterclaim asking the court to declare Motta a “vexatious litigant” because he had “sued the County and its agents multiple times and used the court system inappropriately which is an abuse of the judicial system” and “filed [the present case] based upon inapplicable law forcing [the County Commissioners] to file answers and motions to resolve this matter,” and because his “abuses to the judicial system are numerous, without merit and frivolous.” ¶8 Following discovery, Motta and the County Commissioners filed cross-motions for summary judgment. The District Court held a hearing on the motions and later 4 entered an order denying Motta’s motion and granting the County Commissioners summary judgment on the merits of Motta’s complaint. ¶9 Following a bench trial on the County Commissioners’ counterclaim, the court issued findings, conclusions, and an order determining Motta to be a vexatious litigant. The court prohibited Motta from filing any more actions against government entities without permission from the court. The court further determined that Motta should pay for the costs and fees incurred in this action, and directed the County Commissioners to submit an affidavit of the County’s costs and attorneys’ fees. Following a hearing, the District Court entered judgment against Motta in the amount of $16,244.25. Motta appeals. DISCUSSION ¶10 Issue One: Did the District Court correctly rule that Granite County properly enacted Georgetown Lake zoning in compliance with §§ 76-2-201 through -228, MCA? ¶11 Under M. R. Civ. P. 56(c), summary judgment is proper if the materials filed with the court show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ¶12 As he did in the District Court, Motta complains that the Georgetown Lake zoning is illegal because it was not preceded by a petition signed by sixty per cent of the affected property owners, as required under § 76-2-101, MCA. Motta claims that, in the Granite County Growth policy, the citizens of Granite County stipulated that zoning be initiated by petition of the local landowners. Motta placed into the District Court record selected pages from the Granite County Growth Policy. 5 ¶13 Nothing in the selected pages Motta filed from the Growth Policy prohibits the County Commissioners from enacting zoning in any manner authorized by Montana law. Motta doggedly continues to fail to acknowledge that, under Montana statutes, local zoning districts may be established in either of two ways--by citizen petition to the board of county commissioners under Title 76, chapter 2, part 1, MCA (known as “Part 1 zoning”), or directly by the board of county commissioners under Title 76, chapter 2, part 2, MCA (known 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. ¶14 Section 76-2-201, MCA, provides in part: (1) For the purpose of promoting the public health, safety, morals, and general welfare, a board of county commissioners that has adopted a growth policy pursuant to chapter 1 is authorized to adopt zoning regulations for all or parts of the jurisdictional area in accordance with the provisions of this part. It is undisputed that the Granite County Commissioners had adopted a county-wide growth policy before they enacted the Georgetown Lake zoning. Although the Georgetown Lake zoning process was initiated following a request by citizens, the procedures followed were those set forth at Title 76, chapter 2, part 2. That part includes criteria and guidelines for zoning regulations, as well as requirements for notice to the public and public hearings during the establishment of boundaries for zoning districts and the adoption of zoning regulations. ¶15 Motta has concentrated all of his arguments under this issue on whether the Georgetown Lake zoning complied with the procedures set forth in Title 76, chapter 2, part 1. He does not argue that the County Commissioners failed to follow the procedures 6 set forth in Title 76, chapter 2, part 2, which—as noted—the Growth Policy did not prohibit. Absent any claim that the statutory requirements of Title 76, chapter 2, part 2 were not met, we uphold the District Court’s summary judgment ruling that Granite County properly enacted Georgetown Lake zoning in compliance with §§ 76-2-201 through -228, MCA. ¶16 Issue Two: Did the District Court properly determine Motta to be a vexatious litigant? ¶17 Citing State ex rel. Hillis v. Sullivan, 48 Mont. 320, 137 P. 392 (1913), for the long-acknowledged proposition that Montana district courts possess inherent power to sanction willful or reckless conduct, especially when combined with frivolousness, harassment, or improper purpose, the District Court declared Motta a vexatious litigant and imposed restrictions on his ability to file future lawsuits in the Third Judicial District. The court ordered that no documents presented by Motta pro se naming a governmental entity, its employees, or agents as a party shall be accepted for filing by any court within the Third Judicial District absent written consent of the District Court Judge “acknowledging that the document adequately demonstrates a basis in Montana law, and in fact, and adheres to the requirements of the Montana Rules of Civil Procedure.” Motta argues that this restriction on his right to file pro se complaints against government entities is a denial of his constitutional right to seek redress of grievances for governmental actions. ¶18 Article II, Section 16 of the Montana Constitution guarantees every person access to the courts of this state: 7 Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. . . . Right and justice shall be administered without sale, denial, or delay. We have held that Article II, Section 16 does not grant a person license to burden the resources of the court with successive claims. See Langemeier v. Kuehl, 2001 MT 306, ¶ 31, 307 Mont. 499, 40 P.3d 343. The right to access the state’s legal system is not an absolute right and may be reasonably restricted in light of a “legitimate state interest.” Peterson v. Great Falls Sch. Dist. No. 1 & A, 237 Mont. 376, 380, 773 P.2d 316, 318 (1989). ¶19 Other states have enacted statutes or rules of court concerning the placement of restrictions upon “vexatious litigants’” access to the courts. See e.g. Cal. Code Civ. Proc. § 391.7; Tex. Civ. Prac. & Rem. Code Ann. § 11.101. Montana does not have such a statute or rule. However, we have approved such restrictions in at least one case. In Langemeier, ¶ 32, we upheld a clause in an arbitration award restraining litigants from further contesting matters that already had been decided. ¶20 The federal courts, which apparently also have no specific court rule on the subject, have developed a body of case law concerning “vexatious litigants.” See e.g. Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th Cir. 2007). The District Court relied upon factors identified in Molski in this regard. The Ninth Circuit U.S. Court of Appeals reviews pre-filing orders entered against vexatious litigants to determine whether the litigant was given notice and a chance to be heard before the order was entered; whether the trial court has compiled “an adequate record for review;” whether the trial court has made substantive findings about the frivolous or harassing nature of the 8 plaintiff’s litigation; and whether the vexatious litigant order is “narrowly tailored to closely fit the specific vice encountered.” Molski, 500 F.3d at 1057 (citations omitted). The Ninth Circuit also has employed a five-factor test to examine whether a pre-filing order is justified: (1) the litigant’s history of litigation and, in particular, whether it has entailed vexatious, harassing, or duplicative lawsuits; (2) the litigant’s motive in pursuing the litigation; e.g., whether the litigant has an objective good faith expectation of prevailing; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties. Molski, 500 F.3d at 1058. ¶21 Before declaring Motta a vexatious litigant, the District Court entered detailed findings of fact on the history of this case. The court found that [i]n the present case, Mr. Motta followed the portions of the Court’s order that he liked. He intentionally ignored or misconstrued this Court’s Order on several occasions: Mr. Motta failed to send discovery in a timely manner; he refused to answer the Defendant Commissioners’ discovery requests; he sought sanctions against one attorney alleging that the attorney was a party and failed to attend the settlement conference even though Mr. Motta was present, knew all three County Commissioners and their other attorney was present; he mailed discovery questions unrelated to the present case to Defendant County Commissioners four months after the closure of discovery; he filed a motion to change the settlement master two days before the settlement meeting, which had been scheduled for six weeks; he filed three motions that were directed to preventing Defendant County Commissioners from having their counterclaim heard. This was all on top of Mr. Motta’s admission that there are two separate schemes in Montana to enact zoning: §§ 76-2-101 et seq., MCA (Petitioned Zoning) and §§ 76-2-201 et seq., MCA (County Zoning); that the separate statutes do not intertwine; and that even though Granite County complied with the provisions of §§ 76-2-201, MCA et seq., enactment, that because Granite County didn’t use petitioned county zoning, the zoning should be voided. 9 In addition to Motta’s actions in this case, the court made detailed findings about other court actions filed by Motta during the past several years. The court found that Motta has filed no fewer than “thirteen (13) separate actions (including the present case), [in] most of which he has appealed the lower court ruling to the Montana Supreme Court.” The court concluded “Plaintiff Richard Motta has abused the judicial process and harassed other parties. . . . [He] is likely to continue to abuse the judicial process and harass other parties. . . . [He] has had adequate notice of proposed sanctions against him and an opportunity to oppose them. . . . The record for review in this case clearly establishes that Richard Motta is abusing the judicial process. . . . Richard Motta has taken actions that are frivolous and harassing.” ¶22 Under Sullivan, Langemeier, and Peterson, the District Court possessed authority to restrict a vexatious litigant’s access to the courts. Before declaring Motta a vexatious litigant, the District Court provided him with notice and an opportunity to be heard; the court made substantive findings about the frivolous and harassing nature of Motta’s current and previous litigation, and the court’s order restricting Motta’s right to file pro se actions against government agencies in the Third Judicial District is narrowly tailored. The District Court’s findings also addressed the five substantive factors identified by the Ninth Circuit for determining someone to be a vexatious litigant. Those factors clearly support the District Court’s determination that Motta is a vexatious litigant, and its order was a proper exercise of the court’s inherent authority to place reasonable restrictions on access to its resources. 10 ¶23 We hold that the District Court did not err in determining that Motta is a vexatious litigant. ¶24 Issue Three: Did the District Court err in its award of attorneys’ fees to the County Commissioners? ¶25 The District Court ordered Motta to pay for “the costs and fees of this action,” without citing authority for that ruling. The attorney for the County Commissioners then filed and served a memorandum of attorneys’ fees and costs, listing costs of $1,141.75 and fees of $11,101, and the court held a hearing to determine the reasonableness of the amount of costs and attorneys’ fees. At that hearing, the County Commissioners presented testimony of an expert witness who attested to the reasonableness of the hours claimed by their attorneys for this action and of the hourly rate charged. Counsel later filed an amended memorandum of fees and costs, documenting additional costs of $2,000 and fees of $2,001.50 incurred in defending the fees and costs. The court entered a judgment against Motta in the amount of $16,244.25, plus interest. ¶26 Motta complains that, had the County Commissioners used the services of the Granite County Attorney, attorneys’ fees would have been reduced. He also points out that attorneys’ fees are not considered costs. He cites § 27-8-311, MCA, which allows a court to award such costs as are equitable and just, and says the award of attorneys’ fees is not equitable and just under that statute. ¶27 Motta did not present any evidence at the hearing on fees that the Granite County Attorney could have represented the County Commissioners in this action. His questioning of the County Commissioners’ fee expert at the hearing yielded a response 11 that she did not know why the County Attorney did not represent the County Commissioners in this action, but she knew that it was common for outside counsel to represent county commissioners in civil actions. ¶28 Motta is correct that attorneys’ fees are not part of the costs allowed to a prevailing party under § 27-8-311, MCA, and M. R. Civ. P. 54(d). Montana follows the American Rule, under which a party in a civil action generally is not entitled to attorneys’ fees absent a specific contractual or statutory provision. Montanans for the Responsible Use of the School Trust v. State ex rel. Bd. of Land Comm’rs, 1999 MT 263, ¶ 62, 296 Mont. 402, 989 P.2d 800. However, an equitable exception exists under which “a district court may award attorney’s fees to make an injured party whole under its equity powers.” Erker v. Kester, 1999 MT 231, ¶ 44, 296 Mont. 123, 988 P.2d 1221. ¶29 The equitable exception to the American Rule on attorneys’ fees is applicable where the action into which the prevailing party has been drawn is without merit or frivolous. See Erker, ¶ 44. Such awards are to be determined on a case-by-case basis. Foy v. Anderson, 176 Mont. 507, 511, 580 P.2d 114, 117 (1978). ¶30 We have affirmed the finding that Motta is a vexatious litigant based in part on his actions in this case. We conclude that the District Court acted within its equitable powers when it ordered Motta to pay the County Commissioners’ attorneys’ fees as a sanction for drawing the County Commissioners into this meritless and frivolous action. With the exception discussed immediately below, we conclude further that the County Commissioners supported their memoranda of costs and fees with sufficient evidence that the costs and fees were reasonable in amount. 12 ¶31 We determine, however, that this is not a case in which extraordinary circumstances justify an award of attorneys’ fees expended by the prevailing party in proving the amount and reasonableness of his attorneys’ fees. Even within the category of cases excepted from the American Rule, such fees generally are not awarded. See DeVoe v. City of Missoula, 2012 MT 72, ¶ 29, 364 Mont. 375, 274 P.3d 752 (“While there are cases holding that time spent determining fees is a crucial part of the case, . . . those cases arise from statutory entitlements to attorney fees. They do not arise from an award of attorney fees under Foy[.]”). As a result, we conclude that the fees-for-fees amount of $2,001.50 must be deducted from the judgment entered against Motta. ¶32 The District Court is ordered to enter a corrected judgment against Motta in the amount of $14,242.75. In all other respects, the judgment of the District Court is affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ PATRICIA COTTER | July 2, 2013 |
77de1ef1-0cfc-4e30-ab23-2351a9761c57 | Salvi v. Congdon | 2013 MT 155N | DA 12-0469 | Montana | Montana Supreme Court | DA 12-0469 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 155N LEONARD SALVI, Plaintiff and Appellant, v. JAMES E. CONGDON, Defendant and Appellee. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-11-30 Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD: For Appellant: Torrance L. Coburn, Tipp & Buley, P.C.; Missoula, Montana For Appellee: Scott M. Stearns, Christopher L. Decker, Boone Karlberg P.C.; Missoula, Montana Submitted on Briefs: May 1, 2013 Decided: June 11, 2013 Filed: __________________________________________ Clerk June 11 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 Leonard Salvi (Salvi) appeals the order of the Fourth Judicial District Court, Missoula County, that granted summary judgment in favor of James Congdon (Congdon). We affirm. ¶3 Salvi moved into Congdon’s apartment complex in November 2008 as a guest of his half-brother, Richard Holmstrom (Holmstrom). Congdon employed Holmstrom to maintain the apartment complex. Salvi used the back staircase exit from Holstrom’s apartment on December 20, 2008. Salvi slipped and fell on ice on the final step. Salvi sustained an injury as a result of the fall. ¶4 Salvi filed an action against Congdon for negligence and premises liability. Salvi alleged that Congdon did not maintain the apartment stairs in a reasonably safe condition. Salvi further alleged that the unsafe condition of the stairs resulted in Salvi’s injury. The District Court determined that no genuine issues of material fact existed. The court concluded that Congdon had acted with reasonable care to maintain the apartment building. The court further determined that Salvi had knowledge of the icy condition of the back steps and that his own actions were the cause of his injuries. ¶5 Salvi argues on appeal that genuine issues of material fact existed as to whether Congdon used ordinary care in maintaining his premises in a reasonably safe condition. We 3 review de novo a district court’s ruling on a motion for summary judgment, applying the same criteria of M. R. Civ. P. 56 as did the district court. Steichen v. Talcott Props., LLC, 2013 MT 2, ¶ 7, 368 Mont. 169, 292 P.3d 458. Summary judgment may be granted when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Steichen, ¶ 7; M. R. Civ. P. 56(c). ¶6 Negligence actions typically involve questions of fact and ordinarily are not susceptible to summary judgment. Questions of fact can be determined as a matter of law only when reasonable minds cannot differ. Meloy v. Speedy Auto Glass, Inc., 2008 MT 122, ¶ 10, 342 Mont. 530, 182 P.3d 741. 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 record before us that the District Court properly granted summary judgment. Steichen, ¶ 7. Affirmed. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ JIM RICE | June 11, 2013 |
36507b78-8849-4de1-8b83-3d1361ad5f26 | Lewis Clark Co. v. Skinner | 2013 MT 156N | DA 12-0550 | Montana | Montana Supreme Court | DA 12-0550 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 156N LEWIS AND CLARK COUNTY, a political subdivision of the STATE OF MONTANA, Plaintiff and Appellee, v. ANDY SKINNER, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV 10-865 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellant: Robert T. Cummins, Attorney at Law; Helena, Montana For Appellee: Leo J. Gallagher, County Attorney; K. Paul Stahl and Katie Jerstad, Deputy County Attorneys; Helena, Montana Submitted on Briefs: May 1, 2013 Decided: June 11, 2013 Filed: __________________________________________ Clerk June 11 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 Andy Skinner (Skinner) appeals from a May 29, 2012 order of the First Judicial District Court, Lewis and Clark County, granting summary judgment to Lewis and Clark County (the County). We affirm. ¶3 Skinner is the owner of real property located in Lewis and Clark County, Montana (hereinafter referred to as Astor Placer). In November 2007, the Lewis and Clark County Attorney’s Office was notified that Skinner was blocking public access on two roads that cross Astor Placer. The two roads are commonly known as the Canyon Creek-Gould Road and the Virginia Creek-Gould Road. On September 10, 2010, the County filed a declaratory judgment action seeking a determination that the Canyon Creek-Gould Road and the Virginia Creek-Gould Road are public roads, and requesting that Skinner be enjoined from obstructing the roads and denying public access where they cross his property. Skinner denied the roads are public. He further argued that a prior court order resolved the status of the roads, thereby rendering the issues raised in the County’s complaint res judicata. Both parties filed for summary judgment. The District Court held a hearing on the matter, and in May 2012, issued an order that granted the County’s motion and denied Skinner’s motion. Skinner appeals. 3 ¶4 This Court reviews a district court’s grant of summary judgment de novo, using the same standards as the district court under M. R. Civ. P. 56(c). Styren Farms, Inc. v. Roos, 2011 MT 299, ¶ 10, 363 Mont. 41, 265 P.3d 1230. We review for correctness a district court’s legal conclusion that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Turner v. Wells Fargo Bank, N.A., 2012 MT 213, ¶ 11, 366 Mont. 285, 291 P.3d 1082. ¶5 In granting summary judgment to the County, the District Court determined the parties disagreed over the interpretation of documents and applicability of case law, but that no genuine issues of material fact existed. We agree. The Astor Placer was located by Duncan McDougall (McDougall) in 1886. McDougall amended the location of his claim in 1888, and a patent was issued and filed in the County Clerk and Recorder’s office in 1889. The survey of McDougall’s claim shows a line running east to west through Astor Placer labeled, “County Road to Jay Gould.” ¶6 In 1887—after McDougall first located the Astor Placer but before he amended the location and received a patent—four landowners petitioned the county commissioners to establish a seven-mile-long county road from Canyon Creek to the Jay Gould Mining District, which was located immediately west of McDougall’s claim, (Canyon Creek-Gould Road). The petition provides that “all the persons through whose land the said road is to be laid hereby donate the right of way through said land; and this petition is signed by all persons through or by whose land the said road passes.” McDougall’s signature is not on the 4 petition. The commissioners granted the petition and declared the roadway a “public highway.” ¶7 There is no petition in the County’s records relating to the Virginia Creek-Gould Road. However, the County provided several other documents to the District Court that reference the creation of the Virginia Creek-Gould Road in the early 1900s and the petition submitted by affected freeholders. Additional documentation shows that the Virginia Creek- Gould Road crosses a portion of the Astor Placer. ¶8 On appeal, Skinner points to several documents, as well as the absence of some—such as the petition relating to the Virginia Creek-Gould Road—to argue that the Canyon Creek- Gould Road and the Virginia Creek-Gould Road were not properly dedicated as public roads by statutory process. In Reid v. Park Co., 192 Mont. 231, 627 P.2d 1210 (1981), the Court recognized the difficulties of reconstructing detailed histories of county roads created many years ago. There, we adopted the rule “that it is sufficient if the record taken as a whole, shows that a public road was created. Otherwise, the burden on the public in a particular case to prove a public road was created so many years ago may well be unsurmountable.” Reid, 192 Mont. at 236, 672 P.2d at 1213. Additionally, in Ashby v. Maechling, 2010 MT 80, ¶ 29, 356 Mont. 68, 229 P.3d 1210, we noted: Requiring production of documentary evidence of events that occurred long ago can be impracticable, and there is a disputable presumption that official duty has been regularly performed. Discrepancies in the description or location of a road in old county documents are not sufficient to turn a county road into private property. 5 (Internal citations omitted.) After reviewing the record, we conclude the District Court correctly determined that the documentation, taken as a whole, shows that the County properly established the Canyon Creek-Gould Road and the Virginia Creek-Gould Road as public roads. There were no genuine issues of material fact and summary judgment was appropriate as a matter of law. ¶9 Skinner also asserts that the District Court erred in refusing to determine that the issues raised by the County’s complaint are res judicata. Skinner maintains that a quiet title action in the 1980s extinguished any public status that the two roads may have had. However, the decree quieting title did not resolve the status of the roads at issue in this case. Therefore, the District Court correctly determined the doctrine of res judicata does not apply in this matter. ¶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. The issues in this case are legal and are controlled by settled Montana law, which the District Court correctly interpreted. ¶11 Affirmed. /S/ MICHAEL E WHEAT We concur: /S/ BETH BAKER /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ JIM RICE 6 | June 11, 2013 |
1a851236-8ab9-4748-9930-0f4fe251e226 | Hughes v. Hughes | 2013 MT 176 | DA 12-0464 | Montana | Montana Supreme Court | DA 12-0464 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 176 JOHN JUNIOR HUGHES, SHIRLEY A. HUGHES, JASON A. HUGHES and J&S FAMILY LIMITED PARTNERSHIP, Plaintiffs and Appellants, v. JOHN R. HUGHES, III, Defendant and Appellee. APPEAL FROM: District Court of the Tenth Judicial District, In and For the County of Fergus, Cause No. DV 11-28 Honorable Laurie McKinnon, Presiding Judge COUNSEL OF RECORD: For Appellant: W. Scott Green, Patricia D. Peterman, Patten, Peterman, Bekkedahl & Green, PLLC; Billings, Montana For Appellee: Jonathan W. Stidham, Stidham & Stidham, P.A.; Bartow, Florida Submitted on Briefs: April 10, 2013 Decided: July 2, 2013 Filed: __________________________________________ Clerk July 2 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 The District Court for the Tenth Judicial District, Fergus County, consolidated multiple complaints. The dispute arose between Johnny Hughes (Johnny) and his parents, Jack and Shirley Hughes (Jack and Shirley), regarding borrowed money, the partition of jointly owned real property and accompanying water rights, and a contested pasture lease. The District Court ruled in favor of Johnny on all of the disputes except for the water rights. Jack and Shirley appeal and Johnny cross-appeals. ¶2 We affirm in part, reverse in part, and remand. ¶3 We address the following issues on appeal: ¶4 Whether Johnny’s undesignated payments to Jack and Shirley restarted the statute of limitations on the 1989 promissory note? ¶5 Whether Jack and Shirley possess a life estate in the new house or a right to any of the insurance proceeds? ¶6 Whether Jack is entitled to an easement for stock water across Johnny’s property? ¶7 Whether the arbitrator exceeded his authority or miscalculated damages? PROCEDURAL AND FACTUAL BACKGROUND ¶8 Jack and Shirley loaned $104,375 to Johnny on January 1, 1989. Johnny executed a promissory note in favor of Jack and Shirley to evidence this loan. Johnny divorced his wife in 1997. Johnny asked Jack and Shirley for a loan of $180,000 to settle with his wife. Johnny had not yet made any payments on the 1989 promissory note. Jack and Shirley 3 loaned Johnny an additional $180,000 to settle with his wife on September 24, 1997. Johnny gave Jack and Shirley a second promissory note to evidence this 1997 loan. ¶9 Johnny made a series of payments to Jack and Shirley between 1999 and 2008 that totaled $155,000. Jack and Shirley filed an action to collect the unpaid debt on the two promissory notes after they had a falling out with Johnny. The District Court determined that the statute of limitations barred Jack and Shirley from collecting on the 1989 promissory note. ¶10 Johnny claimed, as a result, that 100% of his payments should be applied to the 1997 promissory note. Jack and Shirley argued that the payments should be divided between the two loans. A decision to divide the payments between the two loans would lead to a higher remaining balance on the 1997 promissory note. The court submitted the question of the proper division of the payments between the two promissory notes to the jury. The jury divided these payments on a pro-rata basis between the two promissory notes. ¶11 The District Court awarded attorney fees to Johnny as the prevailing party pursuant to a provision of the promissory notes. Jack and Shirley appeal the District Court’s conclusion that the statute of limitations barred collection on the 1989 note. Jack and Shirley further appeal the District Court’s determination that Johnny represented the prevailing party and the accompanying award of attorney fees to Johnny. ¶12 Jack and Shirley granted Johnny an undivided 56% interest in the Melby Ranch through three separate deeds in 1984, 1985, and 1986. Jack and Shirley reserved for themselves a life estate in the buildings and improvements on the property. Johnny has lived 4 in a house on the Melby Ranch since 1977. A fire destroyed the house on the Melby Ranch in 2006. Johnny received an insurance payment of $123,156.56 for the house and $83,826.88 for his personal property. Johnny used insurance proceeds and several hundred thousand dollars of additional personal money to rebuild the house. ¶13 Jack and Shirley claimed a life estate in the new house, or an interest in the insurance payment. The District Court determined that the fire had extinguished any life estate in the house claimed by Jack and Shirley. The court furthered rejected their claim to a share of the insurance proceeds. Jack and Shirley appeal. ¶14 Jack, Shirley, and Johnny engaged three referees in 2011 to partition Melby Ranch. The parties at that point owned Melby Ranch as tenants in common based on the 56% interest granted to Johnny through the three separate deeds in 1984, 1985, and 1986. The referees considered an equitable division of the property after the District Court had issued its order regarding the fact that Jack and Shirley’s life estate in the house on the Melby Ranch property had ended. ¶15 The parties agreed to the referees’ proposed division of land. Johnny received the land where the new house sits as part of the partition. Johnny claims that Jack and Shirley’s decision to accept the partition agreement extinguished whatever life estate that they may have retained in the new house. ¶16 The referees suggested, and the parties agreed, that Johnny would receive a section of land that included Flatwillow Creek. Jack possessed a water right to use the water from Flatwillow Creek for stockwater purposes. Jack owns a neighboring section of land that had 5 not been subject to the partition. Jack claims that historically he had allowed his cattle free access to Flatwillow Creek across the section of land that Johnny now owns. The parties intend to fence the boundaries of their respective properties to reflect the partition agreement. Jack sought an easement from the District Court for a water gap in the fence to access the creek, or for a pipe to bring water from Flatwillow Creek to Jack’s land. ¶17 The District Court first determined that it lacked jurisdiction over water issues. The District Court also granted, in the same order, a water gap to Jack. The parties asked the District Court to clarify its order. The District Court determined that it no longer possessed jurisdiction over the case due to the fact that Jack and Shirley already had filed a notice of appeal. The District Court declined to alter its decision. The District Court clarified that it did not believe that it possessed jurisdiction over the water issue, and, therefore, it should not have granted a water gap to Jack. Johnny appeals the District Court’s order that granted the water gap. ¶18 Johnny and his brother, Jay Hughes (Jay), created P Standing X Cattle Company. Johnny and Jay, together and as partners in P Standing X Cattle Company, entered into a Pasture Lease with Jack and PX Cattle Company in 2000. Johnny and Jay dissolved the P Standing X Partnership in 2008. Jay assigned his interest under the Pasture Lease to Johnny. Jack attempted to terminate immediately the Pasture Lease with notice to Johnny. Jack prevented Johnny from accessing the pasture land after the termination notice. Jack and Jay seized hay that belonged to Johnny from the pasture land. 6 ¶19 The parties submitted their dispute regarding the termination of the Pasture Lease to arbitration. The arbitrator determined the Pasture Lease still to be valid when Jack and Jay prevented Johnny from accessing the pasture land and when they seized Johnny’s hay. The arbitrator awarded $195,110 in damages to Johnny and further determined that Jack and Jay must return Johnny’s hay crop. Jack and Shirley appeal. STANDARD OF REVIEW ¶20 We review de novo a district court’s conclusions of law. Newman v. Scottsdale Ins. Co., 2013 MT 125, ¶ 22, 370 Mont. 133, 301 P.3d 348. We review for abuse of discretion a district court’s refusal to modify or vacate an arbitration award. Paulson v. Flathead Conservation Dist., 2004 MT 136, ¶ 18, 321 Mont. 364, 91 P.3d 569. DISCUSSION ¶21 Whether Johnny’s undesignated payments to Jack and Shirley restarted the statute of limitations on the 1989 promissory note? ¶22 Johnny contends that Jack and Shirley had six years, under § 30-3-122(2), MCA, after they made a demand for payment in 1999 to commence an action to enforce the 1989 promissory note. Section 30-3-122(2), MCA, provides for a six-year statute of limitations in situations where a party demands payment from the maker of the promissory note. The six- year limitations period normally would have run in 2005. ¶23 Jack and Shirley argue, however, that Johnny had made partial payment of interest on the 1989 promissory note. Section 27-2-409, MCA, provides that “[a]n acknowledgment or the part payment of a debt is sufficient evidence to cause the relevant statute of limitations to 7 begin running anew.” “Part payment” includes “any payment of principal or interest.” Section 27-2-409, MCA. An acknowledgment must be contained in a writing signed by the debtor. Section 27-2-409, MCA. ¶24 Johnny argues that the more specific statute, § 30-3-122, MCA, directly addresses a statute of limitations for a promissory note. Johnny argues that the six-year statute of limitations codified in § 30-3-122, MCA, would be rendered “irrelevant surplusage” if it were subjected to the qualifier in § 27-2-409, MCA. Further, Johnny argues that § 27-2-409, MCA, does not apply to commercial transactions governed by the Uniform Commercial Code. ¶25 Section 27-2-409, MCA, does not displace the statute of limitations described in § 30- 3-122, MCA. Section 27-2-409, MCA, instead provides that “the relevant statute of limitations” will “begin running anew” if a party acknowledges or partially pays a debt. Section 30-3-122, MCA, provides the “relevant statute of limitations” for a promissory note. This statute of limitations would “begin running anew” if Johnny had partially paid on the note. Section 27-2-409, MCA. ¶26 Nothing in the language of § 27-2-409, MCA, precludes its application to contracts made pursuant to the Uniform Commercial Code, to specific types of debts, or to a promissory note. The clear language of § 27-2-409, MCA, demonstrates that the statute applies to a “debt.” A promissory note evidences a “debt.” See Carelli v. Hall, 279 Mont. 202, 206, 926 P.2d 756, 759 (1996). We turn to whether Johnny made partial interest payments on the 1989 promissory note. 8 ¶27 Johnny made multiple payments to Jack and Shirley between 1999 and 2008. Johnny provided Jack and Shirley with no instructions as to which note to apply the payments. A creditor retains the discretion to apply a payment to multiple promissory notes and thereby keep the statute of limitations running on each note. Mercer v. Mercer, 120 Mont. 132, 136, 180 P.2d 248, 250 (1947). The appropriate allocation of payments between two different promissory notes represents a question of fact for the jury. Mercer, 120 Mont. at 136, 180 P.2d at 250. The jury’s finding that Johnny had made payments on the 1989 promissory note would restart the statute of limitations pursuant to § 27-2-409, MCA. ¶28 The jury considered whether Johnny’s multiple payments should have been applied entirely toward the 1997 promissory note, or if part of the payments also should have been applied toward the 1989 promissory note. The jury heard evidence that Johnny had made ten payments that totaled $155,000. The jury further heard evidence that Johnny had deducted as interest this full amount on his income tax return. Jack and Shirley claimed that the $155,000 in payments exceeded the amount of interest that Johnny owed on the 1997 promissory note. Jack and Shirley argued that Johnny’s decision to claim the full $155,000 as interest on his tax returns further demonstrated his intent to pay both the 1997 promissory note and the 1989 promissory note. ¶29 Jack and Shirley claimed that they applied the payments to the two notes on a pro-rata basis. Johnny owed the original $180,000, plus $202,320 in interest, on the 1997 promissory note by the time of trial. Jack and Shirley deducted from this total Johnny’s pro rata interest 9 payment of $98,115 for an outstanding balance of $284,205. The jury agreed with Jack and Shirley that Johnny owed $284,205 on the 1997 promissory note. ¶30 The jury’s finding that Johnny had paid $98,115 in interest on the 1997 promissory note implies a finding by the jury that Johnny must have paid the remaining $56,885 of his $155,000 in interest payments toward the 1989 promissory note. This Court has adopted the doctrine of implied findings for the purpose of reviewing findings of fact. State v. Wooster, 2001 MT 4, ¶ 18, 304 Mont. 56, 16 P.3d 409. Where “findings are general in terms, any findings not specifically made, but necessary to the determination are deemed to have been implied, if supported by the evidence.” Wooster, ¶ 18. Here the evidence clearly supports an implied finding that Johnny paid the remaining interest toward the only other outstanding loan: the 1989 promissory note. The jury’s determination that Johnny had paid interest on the 1989 promissory note thereby restarted the statute of limitations. Section 27-2-409, MCA. ¶31 No need exists to remand this issue to a new jury due to the fact that Johnny already argued to the jury that the entire $155,000 in payments should have been applied to the 1997 promissory note, rather than split between the 1997 note and the 1989 note. The jury rejected Johnny’s claim. Further, a creditor can apply a payment to multiple promissory notes and keep the statute of limitations running on each note. Mercer, 120 Mont. at 136, 180 P.2d at 250. We remand to the District Court solely to consider the amount of principal and interest that Johnny now owes on the 1989 promissory note. 10 ¶32 Our decision that Johnny restarted the statute of limitations on the 1989 promissory note leaves Jack and Shirley as the prevailing party on this issue. As a result, we also vacate the District Court’s award of attorney fees to Johnny. We remand to the District Court to determine appropriate attorney fees for Jack and Shirley on this issue. ¶33 Whether Jack and Shirley possess a life estate in the new house or a right to any of the insurance proceeds? ¶34 The partition divided the Melby Ranch property jointly owned by Johnny, Jack, and Shirley. The land that Johnny received included the property where the new house sits. Johnny argues that he would not have accepted the partition if he had known that Jack and Shirley would continue to claim a life estate in the house. Johnny further argues that he independently chose to maintain insurance on the old house. ¶35 We have considered the legal result of an order partitioning property. Britton v. Brown, 2013 MT 30, 368 Mont. 379, 300 P.3d 667. An order that partitions property extinguishes a tenant’s rights in the whole property and establishes the tenant’s exclusive right of ownership in the part of the property that the partition grants to the tenant. Britton, ¶ 24. The principles of equity and due process guide the partition of real property. Britton, ¶ 27. Parties to a partition action maintain the right to object to the referees’ partition report before the district court. Britton, ¶ 29. The party who believes that the referees’ report is deficient bears the burden of offering sufficient evidence to support her objection. Britton, ¶ 29. 11 ¶36 The referees divided the Melby Ranch property equitably based on the relative value of the property as it existed at the time of the partition in 2011. The fire destroyed the old house in 2006. Johnny used the insurance proceeds, along with his own money, to rebuild the house. The new house sat on a parcel of land that Johnny received in the partition. The referees noted that the District Court already had decided that Jack and Shirley no longer possessed a life estate in the new house. The partition recommendation recognizes that “[o]n 24 May 11 the court rendered a decision ordering that plaintiff no longer has any life estate interest in the residence occupied by the defendant.” The referees’ partition of the property took into account the District Court’s decision. ¶37 Jack and Shirley did not exercise their right to object to the partition recommendation. See Britton, ¶ 29. Instead, Jack and Shirley agreed to the partition. The partition order, which granted Johnny the portion of the Melby Ranch property where the new house sits, extinguished any claim to a life estate that Jack and Shirley may have retained in the new house. See Britton, ¶ 24. Further, it would be inequitable to grant Johnny the land where the new house sits, but prevent Johnny from fully utilizing this land by recognizing Jack and Shirley’s claim to a life estate in the new house. We decline to alter the partition agreement to grant Jack and Shirley a life estate that the parties did not contemplate as part of the partition agreement. ¶38 The partition agreement similarly dissolved whatever right to insurance proceeds that Jack and Shirley may have possessed. The District Court had determined that Jack and Shirley possessed no right to the insurance proceeds before the referees made their partition 12 recommendation. Johnny had used the insurance proceeds to build the new house. Johnny accepted the partition with the understanding that he possessed not only the house, but also the full value of the insurance proceeds that he had used to rebuild the house. Jack and Shirley failed to reserve their right to appeal the insurance allocation decision when they accepted the terms of the partition. See Britton, ¶ 24. We decline to alter the partition agreement now. ¶39 Whether Jack is entitled to an easement for stock water across Johnny’s property? ¶40 This Court has recognized that district courts have the authority to supervise the distribution of water that already has been adjudicated. Kruer v. Three Creeks Ranch of Wyoming, L.L.C., 2008 MT 315, ¶ 22, 346 Mont. 66, 194 P.3d 634. Similarly, an easement to access a water right represents a separate and distinct property right from a water right. This Court’s determination as to whether an easement exists to access a water right is “entirely bifurcated from the water right issue.” Mildenberger v. Galbraith, 249 Mont. 161, 166, 815 P.2d 130, 134 (1991). ¶41 Jack already has adjudicated his water rights. Jack, through J&S Family Limited Partnership, possesses a water right to use Flatwillow Creek for stock water. The District Court possessed jurisdiction to determine whether Jack held an easement to access Flatwillow Creek. See Kruer, ¶ 22; Mildenberger, 249 Mont. at 166, 815 P.2d at 134. ¶42 Jack argues that he possesses an implied easement over Johnny’s property to access Flatwillow Creek to exercise his water right. Jack argues that this implied easement arose from the partition. We require that a partition should be fashioned to cause the least degree 13 of harm to the co-tenants. Kravik v. Lewis, 213 Mont. 448, 454, 691 P.2d 1373, 1376 (1984). Partitions should confer no unfair advantage to any one co-tenant. Kravik, 213 Mont. at 454, 691 P.2d at 1376. We also have recognized that a district court possesses the power to grant easements to ensure an equitable distribution of property in a partition. Kellogg v. Dearborn Info. Servs., L.L.C., 2005 MT 188, ¶ 13, 328 Mont. 83, 119 P.3d 20. ¶43 For an easement by existing use to arise, Jack must prove that unity of ownership existed between the two parcels, severance, and an apparent, continuous, and reasonably necessary use of the quasi-servient tenant for the beneficial use and enjoyment of the quasi- dominant tenement. Yellowstone River, LLC v. Meriweather Land Fund I, LLC, 2011 MT 263, ¶ 30, 362 Mont. 273, 264 P.3d 1065. Neither party disputes these factors. Jack previously owned both parcels. The partition severed the joint ownership. Access across Johnny’s parcel proves reasonably necessary for Jack to continue to exercise his stock water right to Flatwillow Creek. ¶44 Jack also must show that the parties intended the use to continue after the severance of the two parcels. Meriweather Land Fund I, ¶ 30. Jack initially conveyed partial ownership of the parcel with Flatwillow Creek to Johnny. Jack continued to use Flatwillow Creek as a source of stock water after this partial transfer of ownership to Johnny. No other source of stock water exists for Jack to use for the cattle. Jack later agreed to the partition that granted Johnny full ownership of the parcel with Flatwillow Creek. Nothing in the record suggests that Jack intended to stop using the stock water. Johnny knew of Jack’s use of Flatwillow 14 Creek for stock water. Johnny also knew that no other source of water existed for Jack to use for his cattle. ¶45 The partition agreement would prove inequitable if it results in Jack’s loss of the use of his stock water right to Flatwillow Creek. See Kravik, 213 Mont. at 454, 691 P.2d at 1376. The partition agreement makes no mention of Jack’s stock water right to Flatwillow Creek. We will not presume that Jack intended to give up the use of his stock water right when he agreed to the partition. The record supports Jack’s claim that he intended to continue using Flatwillow Creek after the partition of the Melby Ranch property. The record further supports Jack’s entitlement to an implied easement by existing use. ¶46 Johnny argues that Jack should not receive an easement because Jack gave up all of his water rights to Flatwillow Creek when Jack agreed to the partition agreement. Johnny points out that the referees valued the various parcels of land based on whether the land was “dry pastureland” or “irrigated land.” Johnny received all of the irrigated land that was available as part of the partition. Johnny argues that Jack recognized, when he agreed to the partition, that Jack was giving up all of his water rights to Flatwillow Creek. Johnny’s argument overlooks the fact that Jack claims a water right for, and seeks an easement to benefit, land that was not subject to the partition. Jack’s decision to accept the partition does not reflect Jack’s intention to give away his water rights for land not included in the partition agreement. We remand to the District Court to consider best how to provide Jack with access to Flatwillow Creek to exercise his water right for stock water. ¶47 Whether the arbitrator exceeded his authority or miscalculated damages? 15 ¶48 Jack, Shirley, and Johnny agreed to arbitrate their Pasture Lease dispute. The parties stipulated that the arbitrator would address the following issues: whether the Pasture Lease had been terminated; whether any damages should be awarded, and, if so, in what amount; who is entitled to the 2010 hay crop related to the lease property; and whether any party is entitled to damages as a result of the hay distribution for the 2010 crop year. ¶49 Jack sent Johnny a notice of termination of the lease on February 18, 2010. The arbitrator considered whether this notice successfully had terminated the Pasture Lease. The arbitrator concluded that this notice had not terminated the lease, or, in the alternative, had not terminated the lease immediately. The arbitrator awarded damages to Johnny. ¶50 We focus our analysis on whether the notice provided by Jack terminated the Pasture Lease immediately. The Pasture Lease permitted immediate termination only if Johnny and Jay “cease to operate a continuous ranching business.” Johnny and Jay had dissolved their partnership. The arbitrator determined nevertheless that Johnny and Jay individually still continued to operate a ranching business in compliance with the provision of the Pasture Lease. Immediate termination did not represent an option under these circumstances. ¶51 The parties agreed that the term of the lease had been 3 years. The arbitrator determined that the lease term began on January 1, 2000. Subsequent renewals led to a situation where the lease term would not have expired until January 1, 2012. Johnny and Jay had abided by the lease’s requirement that they continue to operate a ranching business. Jack thus possessed the authority only to terminate the lease at its expiration on January 1, 2012 16 when he sent the notice to Johnny in 2010. Jack instead treated his notice as an immediate termination of the Pasture Lease. ¶52 Jack prevented Johnny from using the pasture in 2010 and 2011. Jack and Jay also took possession of a hay crop from the pasture that belonged to Johnny. The Pasture Lease would have remained valid through its expiration of January 1, 2012 even if we assume that Jack successfully had provided notice to Johnny of his intent to terminate. Jack unlawfully excluded Johnny from the property in 2010 and 2011. Jack’s unlawful exclusion of Johnny during the remaining term of the Pasture Lease entitles Johnny to damages for 2010 and 2011. ¶53 Jack and Shirley next contend that the arbitrator’s award should be vacated for failure to follow clearly established Montana law regarding the appropriate measure of damages for the loss of future offspring from a cow. This Court has recognized that an arbitration award can be vacated if the arbitrator ruled in manifest disregard of the law. Geissler v. Sanem, 285 Mont. 411, 417-18, 949 P.2d 234, 238-39 (1997). Manifest disregard of the law requires more than simple misapplication of the law. The arbitrator must appreciate the existence of a clearly established governing legal principle, but simply decide to ignore or pay no attention to it. Geissler, 285 Mont. at 417-18, 949 P.2d at 238-39. ¶54 Johnny argued that the breach of the Pasture Lease forced Johnny to sell over 100 cows two years before he normally would have sold them. Damages for breach of contract seek to put the plaintiff in the position that he would have been in but for the breach. McEwen v. MCR, LLC, 2012 MT 319, ¶ 65, 368 Mont. 38, 291 P.3d 1253. Johnny claimed 17 that each of these 100 cows would have produced two more calves during the term of the Pasture Lease. Johnny requested $200 for each of the 200 calves that would have been born to these cows if Johnny had not been forced to sell the cows early due to Jack’s immediate termination of the lease in 2010. The arbitrator awarded $40,000 in damages to Johnny to compensate him for the loss that he sustained when Jack breached the Pasture Lease. ¶55 Jack and Shirley contend that Johnny already received compensation for the value of these 200 calves when he sold the cows. Jack and Shirley argue that, pursuant to McPherson v. Schlemmer, 230 Mont. 81, 84, 749 P.2d 51, 52 (1988), the fair market value of an animal takes into consideration potential future offspring. Two cows were killed and needed to be replaced in McPherson. The court could consider the cows’ ability to produce in future years when it determined the cost to replace the dead cows with similar cows. McPherson, 230 Mont. at 84, 749 P.2d at 53. ¶56 Jack and Shirley’s argument presumes that Johnny already has been compensated fully for the loss of two calves per cow. Johnny would have been compensated if the price that Johnny had received for his 100 cows reflected a higher value than Johnny would have received if he had sold the cows in two years. If Johnny sold these cows for beef weight, their ability to produce for two more years may not have been taken into consideration. See McPherson, 230 Mont. at 84, 749 P.2d at 53. The record does not indicate whether Johnny received additional money to reflect the fact that he had been forced to sell his cows two years early. As a result, we cannot determine whether Johnny already had been compensated for his loss of the 200 prospective calves when he sold the cows. 18 ¶57 In light of this ambiguity, we cannot say that the arbitrator disregarded clearly established Montana law. See Geissler, 285 Mont. at 417-18, 949 P.2d at 238-39. This Court has determined that the replacement value of a cow takes into account future offspring of the cow. McPherson, 230 Mont. at 84, 749 P.2d at 53. This Court has not considered, however, the appropriate measure of damages when a party is forced to sell a cow earlier than he anticipated selling it. We decline to vacate the arbitrator’s award of $40,000 to Johnny. ¶58 We affirm in part, reverse in part, and remand. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ JIM RICE | July 2, 2013 |
17605bcb-a7ca-4962-8540-e2e3f8c7b3a3 | Schwartz v. Harris | 2013 MT 145 | DA 12-0381 | Montana | Montana Supreme Court | DA 12-0381 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 145 IN RE THE MARRIAGE OF: JEAN SCHWARTZ, Petitioner and Appellee, v. GREGORY ELY HARRIS, Respondent and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DR-02-316(C) Honorable Stewart E. Stadler, Presiding Judge COUNSEL OF RECORD: For Appellant: David F. Stufft; Attorney at Law; Kalispell, Montana For Appellee: Katherine P. Maxwell; Maxwell Law, PLLC; Kalispell, Montana Submitted on Briefs: March 27, 2013 Decided: May 30, 2013 Filed: __________________________________________ Clerk May 30 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 The marriage of Gregory Harris (Greg) and Jean Schwartz, formerly known as Jean Harris (Jean), was dissolved by decree of the Eleventh Judicial District Court, which also divided the marital estate. On appeal, Greg challenges various aspects of the property division, including the selection of valuation dates, the identification and valuation of marital property, the division of assets, and the adjustments made in making the division, including an approximately $1.259 million equalization amount awarded to Jean. We affirm in part, reverse in part, and remand for further proceedings. ¶2 We restate and address the following issues:1 ¶3 1. Did the District Court err by valuing the estate as of 2009 instead of 2002, when the parties separated? ¶4 2. Did the District Court err in its valuation of the Grizzly Security businesses? ¶5 3. Did the District Court err by failing to award Greg an offset credit for the $400,000 paid to Jean between 2002 and 2009? ¶6 4. Did the District Court err by ordering that Greg pay a $1.259 million equalization payment to Jean without providing a method of payment? FACTUAL AND PROCEDURAL BACKGROUND ¶7 Greg and Jean were married in October 1988. Greg has ownership interests in Grizzly Security Armored Express, Inc. and related businesses, including Grizzly Security Alarms, Inc. and Grizzly Security ShredEx, Inc. (collectively “Grizzly Security businesses”). Greg is the sole owner of Grizzly Security Armored Express and owns 1 Greg frames numerous issues on appeal, most of which are either encompassed within the four issues stated here, or supported by abbreviated arguments with little or no citation to authority. To the extent that Greg has raised issues not encompassed by the four issues stated here, we affirm the District Court’s determination of those other matters. 3 one-half of Grizzly Security ShredEx and one-third of Grizzly Security Alarms. The Grizzly Security businesses are formed as subchapter S corporations and all of Greg’s income from the businesses is directly taxable to Greg. In 1995, Greg sustained a head injury when he was assaulted while on work duty. This event has caused Greg memory loss and severe headaches. Jean and Greg have four children, three of whom are adults. ¶8 In June 2002, Jean filed for dissolution of the marriage. She entered into a contract to purchase a home later that year, and acquired the home in March 2003. Greg agreed to make the mortgage, tax, and insurance payments on Jean’s behalf, and the mortgage was placed in his name alone. In December 2002, the District Court issued its Findings of Fact, Conclusions of Law and Order (Temporary Support Order). The Temporary Support Order required Greg to pay $2,000 to Jean per month in temporary family support in addition to paying for Jean’s vehicle expenses, medical insurance for Jean and the children, and the children’s extracurricular and medical costs. The Temporary Support Order did not reference Greg’s commitment to pay the mortgage payments and costs on Jean’s home. ¶9 A trial was ultimately conducted on September 20 and 21, 2010, and February 22, 2011. Jean testified that she participated in operating the Grizzly Security businesses during the marriage. She also stated that she and Greg had lived apart since 2002 and that Greg pays the mortgage on her home. Jean testified that Greg managed Jean’s rental properties and provided Jean with other financial support, that she provided non- monetary support to Greg, and the parties had almost daily phone contact. She explained 4 that she and Greg traveled together to the children’s sporting events, vacationed together, and gave the children joint Christmas and birthday gifts. ¶10 David Smith, one of Jean’s experts, presented a complete appraisal for the Grizzly Security businesses as of December 31, 2009, using an income-based approach. Mr. Smith opined that Greg’s share of the fair market value of the businesses was $2,584,700. James Kelley, a real estate expert, presented appraisal values for the parties’ real property based on appraisals conducted in November 2009 and April 2010. ¶11 Greg testified that the Grizzly Security businesses have become less viable since the early 2000s and were losing some of its contracts. Greg also explained details about his personal and business debt and his inability to secure additional financing. Greg’s accountant testified and the District Court admitted Greg’s personal tax returns from 2001 through 2008 and tax returns for Grizzly Security from 2001 through 2009. Greg’s business valuation expert, Todd Gardner, presented appraisals for the personal property of the Grizzly Security businesses for 2002 and 2010 using an asset appraisal method. Mr. Gardner said the appraisal value for the personal property of Grizzly Security Armored Express was $48,250 for 2002. Mr. Gardner testified that the total value of the personal property for Grizzly Security Armored Express, Grizzly Security Alarms, and Grizzly Security ShredEx in 2010 was $376,945. ¶12 The District Court entered the Findings of Fact, Conclusions of Law and Decree (Decree) on March 8, 2012. The Decree divided the marital assets, which included the parties’ real property and the Grizzly Security businesses. The District Court used the 5 2009 income-based appraisal for the Grizzly Security businesses presented by Mr. Smith. The District Court granted the business interests to Greg and awarded Jean an equalization payment in the amount of $1,259,903. With regard to the actual distribution of assets, the District Court’s Decree simply stated “[t]he parties shall cooperate and assist in the transfer of titles and possession necessary to accomplish the distribution set forth herein.” ¶13 The day after the Decree was entered, Jean attempted to execute on the judgment against Greg. The clerk of court initially entered the writ of execution but later voided it because Jean had not waited 14 days as required by M. R. Civ. P. 62(a). Greg moved the District Court for a stay of judgment pending appeal, asserting by reference to bank letters declining to offer financing that he was unable to finance the equalization payment he was ordered to pay to Jean. No further writs of execution were issued before this appeal. ¶14 Greg filed a notice of appeal to this Court and also filed for bankruptcy in the United States Bankruptcy Court for the District of Montana. On November 15, 2012, the United States Bankruptcy Court entered an order modifying the automatic stay and permitting the parties to seek final determination of this appeal. STANDARD OF REVIEW ¶15 “We review family law cases for valuation and allocation of marital property to determine whether the District Court’s findings are clearly erroneous.” In re Marriage of Baide, 2004 MT 260, ¶ 7, 323 Mont. 104, 99 P.3d 178. A finding is clearly erroneous if 6 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. In re Marriage of Williams, 2009 MT 282, ¶ 14, 352 Mont. 198, 217 P.3d 67 (Williams I). If the findings are not clearly erroneous, we will affirm the division absent an abuse of discretion. Williams I, ¶ 14. “A district court abuses its discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.” In re Marriage of Alexander, 2011 MT 1, ¶ 11, 359 Mont. 89, 246 P.3d 712; see also Williams I, ¶ 14. We review a district court’s conclusions of law for correctness. Williams I, ¶ 14. DISCUSSION ¶16 1. Did the District Court err by valuing the estate as of 2009 instead of 2002, when the parties separated? ¶17 Greg argues that the District Court should have valued the marital property as of 2002, when the parties separated, rather than 2009. He notes that Jean filed the petition for dissolution in 2002, and both parties agreed that the marriage was irretrievably broken at that time. Greg asserts that he and Jean separated their assets and debts in 2002, and have since filed separate tax returns, lived in separate homes, and made separate financial decisions. Jean answers that the District Court did not err in using the 2009 valuation date because she and Greg “continued to act as a married couple in many respects both publicly and privately.” Jean explains that Greg continued to manage Jean’s rental properties, provided Jean with financial support, and that the parties continued to spend time together and had almost daily phone contact. 7 ¶18 As a general rule, “the value of the marital estate should be determined at or near the time of dissolution.” In re Marriage of Swanson, 220 Mont. 490, 495, 716 P.2d 219, 222 (1986). “Generally, valuing the property near the time of dissolution results in equitable apportionment, but unique circumstances may call for valuation at a different time.” Alexander, ¶ 16 (citing In re Marriage of Geror, 2000 MT 60, ¶ 14, 299 Mont. 33, 996 P.2d 381). However, we have stated that equitable apportionment is more important than “designating the moment” at which the court should value marital property. Alexander, ¶ 18. Further, we have concluded that “the date of separation can be used as the appraisal date when one spouse accrued significant wealth and the other accrued significant debts after the parties had separated but before formal dissolution.” In re Marriage of Williams, 2011 MT 63, ¶ 26, 360 Mont. 46, 250 P.3d 850 (Williams II). We have affirmed a district court’s use of the date of separation where the parties “began managing their finances separately and eventually lived separately” from that time. In re Marriage of Thorner, 2008 MT 270, ¶ 37, 345 Mont. 194, 190 P.3d 1063; see also In re Marriage of Tipton, 2010 MT 144, ¶ 24, 357 Mont. 1, 239 P.3d 116. ¶19 The District Court found, based on facts testified to at trial, that Greg and Jean “continued a family relationship until May[] 2009, and that the proper date to value and distribute the marital estate is 2009.” The District Court listed several other factors upon which it based its decision, including that Greg had voluntarily supported Jean from 2002 to 2009 by paying her mortgage. The District Court also found that Greg and Jean continued to function as a “family unit” because, among other things, they traveled and 8 vacationed together and gave the children joint Christmas and birthday gifts. The District Court’s findings regarding the valuation date do not address whether either party accrued significant individual debt or wealth in the period between separation and dissolution— factors we noted in approving valuation of the estate at the time of separation in Williams II. ¶20 The Decree was filed in March 2012, and under general rules, the 2009 values would be most appropriate because they were closest to the time of dissolution. We are not persuaded that the circumstances here required use of the 2002 property values to avoid unfairness or inequity. The District Court’s findings are not clearly erroneous and are supported by the record. Although the parties had been separated since 2002, we conclude on this record that the District Court did not abuse its discretion in using the 2009 property values in distributing the marital estate. ¶21 2. Did the District Court err in its valuation of the Grizzly Security businesses? ¶22 Greg challenges the District Court’s adoption of Jean’s expert’s valuation of the Grizzly Security businesses. Jean argues that the District Court acted well within its discretion to accept Jean’s business valuations. ¶23 A district court has discretion to adopt any reasonable valuation of marital property that is supported by the evidence. In re Marriage of Hedges, 2002 MT 204, ¶ 21, 311 Mont. 230, 53 P.3d 1273. We have stated that a district court’s valuation of a business within a marital estate must be “a reasonable determination, supported by the record and within the range of values presented by the parties.” Baide, ¶ 16. 9 ¶24 Jean’s expert, Mr. Smith, testified that Greg’s share of the Grizzly Security businesses in 2009 based upon his income-based appraisal was $2,584,700. Greg’s expert, Mr. Gardner, testified that the total value of the Grizzly Security businesses in 2009, using the asset appraisal method, was $376,945. The District Court adopted Mr. Smith’s appraised values for the Grizzly Security businesses. While there was a wide divergence between the values of the businesses attributed by the parties—a circumstance we have previously described as “not surprising[]” in the context of disputed property valuation, Hedges, ¶ 22—the District Court was within its discretion to adopt one expert’s valuation when supported by the record. A district court is “in the best position to judge the credibility of the testimony proffered by parties and witnesses” and “we will defer to its resolution of any conflicting evidence.” Hedges, ¶ 22. The valuation of the Grizzly Security businesses adopted by the District Court is within the range of values presented by the parties, is supported by the record, and is reasonable. We conclude the District Court did not abuse its discretion or clearly err in valuing the businesses. ¶25 3. Did the District Court err by failing to award Greg an offset credit for the $400,000 paid to Jean between 2002 and 2009? ¶26 Greg argues that “[a]lthough[] the Court acknowledges that Greg paid in excess of $400,000 since the parties separated in 2002[,] Greg did not receive a credit for this payment. That is not equitable.” Jean replies that “[m]uch of the money allegedly paid to Jeanie was temporary family support, ordered by the court in 2002,” and that although 10 “sums were expended in paying the mortgage on Jeanie’s home,” the equity in the home “is shared by both parties in the division of property.” ¶27 In accordance with the Temporary Support Order, Greg paid $2,000 per month in family-support cash payments to Jean, and paid for Jean’s vehicle, the family’s health insurance, and the children’s activities during the years the parties were separated. In addition to this ordered support, Greg also paid the costs of Jean’s housing, which, as far as the record demonstrates, Greg continued to pay until the dissolution decree was entered. For the years between 2002 and 2009, Greg calculated these payments to be approximately $115,000. Jean thus received, beginning in 2002, a housing benefit at Greg’s expense of the principal and interest payments, taxes, and insurance, and ultimately received the house with the equity that Greg’s servicing of the debts and payment of the expenses made possible.2 These housing expenses were not mandated by the Temporary Support Order, and Greg made them voluntarily. These payments are included within the approximately $400,000 that Greg claims to have paid to Jean. ¶28 The District Court acknowledged that Greg paid “in excess of $400,000” to Jean, but did not specifically delineate how this amount factored into the District Court’s apportionment of the marital estate.3 In our analysis of the payments making up the $400,000, it is clear that most of those funds were paid in support of Jean and the 2 The District Court determined that Jean’s house had an appraised value of $270,000, and that the mortgage secured a debt in the amount of $161,000. 3 The District Court made a passing reference to Greg’s payment of $400,000 in its discussion of Jean’s excess compensation claim, which it rejected as vague and subjective. However, the District Court made no specific connection or offset between these two claims. 11 children pursuant to the Temporary Support Order. These payments were for ongoing support of the family during the long period of marital separation and we find no reason to conclude that the District Court erred by not granting a specific credit to Greg for those payments. ¶29 However, beyond the support payments, Greg also provided cost-free housing for Jean that she enjoyed over many years and, further, by these efforts prudently created a sizeable, appreciable asset for her benefit. As a matter of equitable distribution, we conclude that Greg should have received a credit against his overall obligation to Jean for the post-separation housing payments he voluntarily made, beginning March 2003 through the date the Decree was entered. While such a credit may seem inconsistent with the determination to value the estate as of 2009, and with the inclusion of the house within the estate, Greg’s provision of Jean’s separate housing was likewise contrary to the premise that the parties were functioning as a normal family unit during these years, and the expense was above and beyond the obligations imposed upon Greg by the Court during the lengthy separation period. ¶30 Upon a determination that the district court has erred in distributing the marital estate, we have previously remanded with instructions directing the court how to equitably reapportion the marital estate. See e.g., Williams I, ¶¶ 40, 45; affirmed in Williams II, ¶¶ 6, 8; Baide, ¶ 18. Greg calculated the amount paid for Jean’s housing to be about $115,000, but a specific factual determination in that regard was not made. Thus, on remand, the District Court should specifically calculate the amount Greg paid 12 for Jean’s housing between 2003 and the entry of the Decree in 2012, and grant a credit in that amount toward the equalization payment he owes to Jean. ¶31 4. Did the District Court err by ordering that Greg pay a $1.259 million equalization payment to Jean without providing a method of payment? ¶32 Greg asserts that the large equalization payment ordered by the District Court makes it “economically not feasible for Greg to pay the $1.259 million judgment” and that he has been forced to file for bankruptcy as a result of the obligation. Greg argues further that even if the assets of his businesses were sold, the net value of the assets after paying the debt would not generate enough revenue to pay the judgment and the statutory 10% interest per annum. Jean argues that the District Court gave Greg autonomy in deciding how the equalization payment should be paid. ¶33 We have previously held that a district court should allow a reasonable amount of time for a party to pay a monetary award in a property settlement. Baide, ¶ 18. This Court also considered the implications of a deferred monetary award in In re Marriage of Westland, 257 Mont. 169, 848 P.2d 492 (1993). The district court in Westland rejected the husband’s proposed $50,000 annual equalization payments because the wife would have no assurance of receiving her annual payment. Westland, 257 Mont. at 172, 848 P.2d at 494. The district court expressed concern that the husband could potentially transfer assets to the wife’s detriment or file for bankruptcy and discharge his debt. Westland, 257 Mont. at 172, 848 P.2d at 494. The wife’s future payments would be unsecured. Westland, 257 Mont. at 172, 848 P.2d at 494. 13 ¶34 However, even taking into account the concerns articulated in Westland, a deferred monetary award may be appropriate in some situations. A noted treatise on marital property distribution provides the following instruction: In the relatively common situation where a monetary award is used to award the nonowning spouse part of the value of a business, the award should not be so large as to interfere with the business’ future profitable operation. It is not error per se to make an award greater than the payor’s liquid assets, if the payor can sell or refinance property to meet the obligation. Such an award is not ideal, however, for there are various disadvantages to compelling sale in the divorce case. Most importantly, sale requires payment of capital gains costs, commissions, and other expenses, and property often fails to earn full value when sold under the pressure of divorce. Because of these disadvantages, an immediate monetary award which exceeds the value of the payor’s liquid assets is a remedy of last rather than first resort. A better option would be division in kind (if division can be accomplished without violating the rule against co-ownership), or a monetary award deferred over sufficient time for liquid funds to be accumulated without sale. If the payor cannot reasonably sell assets or borrow liquid funds to pay an immediate monetary award, the making of such an award is error. Brett R. Turner, Equitable Distribution of Property vol. 3, § 9.9, 31-33 (3d. ed., West 2005). In the right circumstances, a deferred monetary award may be preferable to an ordered sale of assets, particularly where the assets of the estate do not permit a division of property in kind or an immediate monetary award. Turner, Equitable Distribution of Property vol. 3, at § 9.10, 36. In cases where a deferred monetary award is the preferable method to distribute the marital estate, the district court should endeavor to state a sum certain,4 provide for a certain and specific payment schedule over a reasonable period of 4 See M. R. Civ. P. 58. 14 time,5 be secured,6 and include interest on the award. See generally Turner, Equitable Distribution of Property vol. 3, at § 9.10, 37-45 (citing cases). While a financial obligation imposed by a decree that is silent regarding interest is subject to the 10% statutory interest rate under § 25-9-205, MCA, the district court retains discretion to set an alternate rate of interest. See Thorner, ¶ 49; Hedges, ¶ 24. If the district court sets an interest rate that varies from the statutory rate, it must be fair and reasonable. In re Marriage of Gibson, 206 Mont. 460, 466, 671 P.2d 629, 633 (1983) (“[O]nce a person is liable for a money judgment and payment is not made, the person entitled to the judgment is further entitled to a fair rate of interest.”) (discussing Knudson v. Knudson, 191 Mont. 204, 208, 622 P.2d 1025, 1027 (1981)); see also Turner, Equitable Distribution of Property vol. 3, at § 9.10, 42-43. ¶35 After review of the record, we conclude that Greg’s request for a deferred monetary award with a payment plan is justified under these circumstances. Greg would otherwise be faced with selling the assets of his businesses in order to satisfy the judgment, thereby losing the bulk of the marital estate distributed to him and undermining his future ability to earn an income. The provision of the Decree merely 5 See e.g. McAvoy v. McAvoy, 662 So. 2d 744 (Fla. Dist. Ct. App. 5th Dist. 1995) (payment schedule required in $59,805 lump sum equitable distribution); Haren v. Haren, 922 N.E.2d 284 (Ohio App. 2009) (trial court erred by not providing guidance stating when equalization payment was to be made). 6 See e.g. Head v. Head, 714 So. 2d 231, 240-41 (La. Ct. App. 2d Cir. 1998) (requiring husband to sign secured promissory note with acceleration clause to secure deferred equalization payment); Jayaram v. Jayaram, 62 A.D.3d 951, 954, 880 N.Y.S.2d 305, 308 (N.Y. App. 2009) (requiring husband to obtain life insurance to secure remaining amount of distributive award). 15 providing that “[t]he parties shall cooperate and assist in the transfer of titles and possession necessary to accomplish the distribution set forth herein” fails to provide a sufficient framework for implementing the distribution of the estate. A structured payment plan would provide finality in the equitable division of the marital estate as required by § 40-4-202(1), MCA. Williams II, ¶ 27. ¶36 Given the large equalization payment the District Court found appropriate to award to Jean, the apparent difficulty in securing financing for such a payment, and the lack of guidance provided by the Decree, we conclude it is appropriate to remand to the District Court for adoption of a reasonable payment plan consistent with the guidelines for implementation of such plans within dissolution of a marital estate, as discussed herein. CONCLUSION ¶37 On remand, the District Court should calculate the amount Greg has expended for Jean’s housing, as stated in ¶ 30, and credit that amount toward the equalization payment Greg owes to Jean. The District Court should also implement a reasonable payment plan for Greg’s equalization obligation to Jean, as provided herein. It is not intended that this remand will require a reapportionment or redistribution of the entire marital estate, although the District Court is not precluded from making minor adjustments in distribution if necessary to implement this opinion. It is within the District Court’s discretion to hold an additional hearing or to decide these issues upon the current record, if sufficient. 16 ¶38 Affirmed in part, reversed in part, and remanded to the District Court for further proceedings in accordance herewith. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ BRIAN MORRIS | May 30, 2013 |
3b02a890-ef2f-4c3c-9f15-505c224f6b56 | State Dep't of Revenue v. Heidecker | 2013 MT 171 | DA 12-0616 | Montana | Montana Supreme Court | DA 12-0616 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 171 STATE OF MONTANA, DEPARTMENT OF REVENUE, Petitioner, Appellant and Cross-Appellee, v. CAROL LEE HEIDECKER, Respondent, Appellee and Cross-Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV 12-98A Honorable Holly Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Amanda L. Myers, Michelle R. Dietrich, Special Assistant Attorney General, Montana Department of Revenue; Helena, Montana For Appellee: Michael Green, D. Wiley Barker, Crowley Fleck PLLP; Helena, Montana Submitted on Briefs: May 28, 2013 Decided: July 2, 2013 Filed: __________________________________________ Clerk July 2 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Appellant Department of Revenue (DOR) appeals from the order of the Eighteenth Judicial District, Gallatin County, in favor of Appellee Carol Lee Heidecker (Heidecker), on a petition for judicial review of a property tax dispute. We affirm. ¶2 We address the following issue on appeal: ¶3 Whether the District Court properly interpreted the “effectively prohibit” language in § 15-7-202(5), MCA, with respect to the restrictive covenants attached to Heidecker’s property? PROCEDURAL AND FACTUAL BACKGROUND ¶4 Heidecker purchased a 240-acre parcel of land in Gallatin County, Montana in 1980. The property had served as a dairy farm and gravel pit before the purchase. Heidecker has lived in one of the two houses on the property since the purchase. Heidecker’s uncle originally lived in the other house. Heidecker sold the other house to Linda and Jerry Crisp (Crisps) in 1995 after the uncle’s death. Heidecker shut down the dairy operation shortly after the purchase, but has rented out the land continuously for grain and hay production since about 1980. Heidecker subdivided a 30-acre parcel of this property into one-acre parcels in 1995. The subdivision is known as Bridger Lake Meadows (BLM). Heidecker adopted covenants for BLM at the time that he subdivided the property. The covenants reflect Heidecker’s intent “to create thereon a residential community.” ¶5 In particular, Article XI, Section 2, of the covenants provides that “[e]ach and every one of the Lots shall be used for private residential purposes only.” The covenants enforce 3 this intent by limiting construction to “one single family residence structure” and an attached garage. With respect to agriculture, the covenants prohibit the landowners from engaging in activities that would result in noise or vibration, light, odor, dust, smoke, or other air pollution. The covenants further prohibit landowners from owning and keeping livestock or other animals used for commercial purposes. ¶6 Heidecker discussed the covenants with Ty Typolt, Area Manager for DOR, at the time that he created the covenants. Heidecker had concerns that adoption of the covenants could trigger a property tax reclassification of the BLM property. Typolt apparently agreed that adoption of the covenants would not change immediately the agricultural classification of BLM to a residential classification. Typolt further agreed that lots at BLM would be reclassified as residential once they were sold for residential purposes. Heidecker also met with the Gallatin County planning staff and the City of Belgrade Planning Director to ensure that he could continue to use the property for agriculture. The Planning Director assured Heidecker that no provisions of the Gallatin County Subdivision Regulations barred the continued agricultural use of BLM. Heidecker has sold no lots in BLM. BLM remains in hay and grain production. ¶7 DOR reviewed BLM’s covenants as part of its 2009 reappraisal. DOR reclassified BLM from agricultural land to residential tract land. Heidecker filed a request for informal review with DOR on the grounds that “[n]othing has changed on the land or its usage.” DOR denied Heidecker’s request due to the restrictions imposed by the covenants. Heidecker appealed to the Gallatin County Tax Appeal Board (GCTAB). 4 ¶8 GCTAB held a hearing on Heidecker’s appeal after which it upheld DOR’s reclassification. GCTAB did not rely on the prohibition in the covenants. GCTAB instead determined that BLM “meets at least 3 of the criteria for a subdivision” contained in ARM 42.20.156(1)(d), and, therefore, “cannot be considered agricultural land.” Heidecker appealed the GCTAB’s decision to the State Tax Appeal Board (STAB). ¶9 DOR argued before STAB that two factors supported reclassification of BLM. DOR first argued that the covenants limited the land to residential use. DOR also argued that BLM had been platted and that BLM met four of the infrastructure criteria contained in ARM 42.20.156(1)(d): paved road, utilities, a fire hydrant, and landscaping. STAB disagreed. ¶10 STAB determined that Heidecker’s property satisfies the statutory test for agricultural classification “because, in the aggregate, it totals 240 acres, less a few acres for the two residences on the property, and it is actively devoted to agricultural use.” STAB rejected application of the improvements criteria contained in ARM 42.20.156(1)(d) due to the fact that “the evidence demonstrated that the land does not meet any three of the criteria.” STAB also concluded that the covenants did not “effectively prohibit” agricultural use of BLM. STAB reasoned that covenants simply represent “agreements between neighbors” that can be enforced “only by those neighbors.” No neighbors, including Crisps, ever have objected to the agricultural use of the land. More importantly, Heidecker continuously has “raised agricultural crops on the land.” STAB deemed this continuous agricultural use “clear proof” that the covenants have not effectively prohibited agricultural use. 5 ¶11 DOR petitioned for judicial review on the sole issue of whether STAB properly interpreted the phrase “effectively prohibit” as set forth in § 15-7-202(5), MCA, and the attendant implications for the term “prohibit” as used in ARM 42.20.156. The District Court interpreted the “effectively prohibit” language to mean to “forbid and action in a way that accomplishes the purpose and brings about the expected result.” The District Court determined that evidence in the record established that the covenants had failed to accomplish effectively “any prohibition on the agricultural use of the land.” DOR appeals. STANDARD OF REVIEW ¶12 We review a district court’s decision regarding an administrative order issued by STAB to determine whether the district court correctly interpreted the law. Puget Sound Energy, Inc. v. Montana Dep’t of Revenue, 2011 MT 141, ¶ 14, 361 Mont. 39, 255 P.3d 171. DISCUSSION ¶13 Whether the District Court properly interpreted the “effectively prohibit” languagein § 15-7-202(5), MCA, with respect to the restrictive covenants attached to Heidecker’s property? ¶14 Section 15-7-202(5), MCA, provides that land may not be classified or valued as agricultural land “if it has stated covenants or other restrictions that effectively prohibit its use for agricultural purposes.” DOR argues that the District Court improperly looked beyond the statute’s plain language to analyze the actual purpose to which the land has been put. DOR further argues that the District Court improperly looked beyond the plain language of the covenants in an attempt to glean the landowner’s intent. DOR urges the 6 Court to constrain its analysis to whether the written provisions of the covenants prove legally sufficient to “effectively prohibit” agricultural use. ¶15 The District Court interpreted the phrase “effectively prohibit” “to forbid an action in a way that accomplishes the purpose and brings about the expected result.” Article XI, Section 2, of the covenants requires that all lots in BLM “shall be used for residential purposes only.” This straightforward language makes clear that no purposes other than residential will be tolerated for lots in BLM. The covenants further discourage non- residential purposes through prohibitions on commercial livestock operations and on conduct that produces “odor, dust, smoke, or other air pollution.” A BLM lot owner who seeks to engage in agricultural activities would be hard pressed to evade these clear restrictions in any action brought by another BLM lot owner who would seek to enforce the covenants. ¶16 We face a situation, however, in which no lot owner seeks to enforce the covenants. The only two lot owners in BLM, whose ownerships predate the subdivision, have acquiesced to the continuation of agricultural operations on the property for many years. STAB specifically determined that Heidecker and Crisps agreed to permit continued agricultural use of the land, Crisps never have objected to the agricultural use of the land, and most importantly, the land has been used continuously to grow crops. We agree with the District Court that nothing in § 15-7-202(5), MCA, requires us to ignore these facts when we apply the statute to the covenants. ¶17 It remains difficult to argue that the covenants forbid agricultural activities “in a way that accomplishes the purpose and brings about the expected result” when agriculture has 7 continued on the BLM lots since the adoption of the covenants. Restrictive covenants provide contractual rights to the beneficiaries of the covenants. McKay v. Wilderness Dev., LLC, 2009 MT 410, ¶ 58, 353 Mont. 471, 221 P.3d 1184. No current beneficiary of the covenants – neither Heidecker nor Crisps – has chosen to exercise these contractual rights. We decline to allow DOR, in effect, to enforce the contractual rights provided by the covenants in this case when the land continues, without opposition, to be used for agricultural purposes. ¶18 This outcome also comports with the principle of Montana’s property tax system that “[a]ll lands must be classified according to their use or uses.” Section 15-7-103(2), MCA. The statutes specifically recognize that the market value of many agricultural properties derives from “speculative purchases that do not reflect the productive capability of agricultural land.” Section 15-7-201(1), MCA. This concern with speculation drives the legislative intent that “bona fide agricultural properties be classified and assessed at a value that is exclusive of values attributed to urban influences or speculative purposes.” Section 15-7-201(1), MCA. ¶19 DOR retains the ability to evaluate in the future whether BLM continues to be used for “bona fide” agricultural purposes. STAB determined that no doubt currentlyexists on this point. Once Heidecker begins to sell or market lots at BLM, or once Heidecker stops using the property for agricultural purposes, DOR may evaluate anew whether the covenants “effectively prohibit” agriculture as contemplated by the amendment to subsection (5). Until that time, however, we agree with the District Court that Heidecker’s continued use of the 8 land for agricultural purposes belies any claim that the covenants “effectively prohibit” agricultural purposes. ¶20 Affirmed. /S/ BRIAN MORRIS We concur: /S/ BETH BAKER /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT /S/ JIM RICE | July 2, 2013 |
9a0d9f1d-b0bb-44f3-bedd-8f0908b7ebd7 | LeCount v. Davis | 2013 MT 157 | DA 12-0394 | Montana | Montana Supreme Court | DA 12-0394 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 157 TERRY ALLEN LECOUNT, Plaintiff and Appellee, v. STANLEY G. DAVIS, Defendant and Appellant. APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DV-06-168 Honorable James B. Wheelis, Presiding Judge COUNSEL OF RECORD: For Appellant: Marybeth M. Sampsel; Measure, Sampsel, Sullivan & O’Brien, P.C.; Kalispell, Montana For Appellee: S. Charles Sprinkle, Sprinkle Law Firm, PC, Libby, Montana Submitted on Briefs: March 13, 2013 Decided: June 18, 2013 Filed: __________________________________________ Clerk June 18 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Stanley G. Davis appeals an order entered by the Nineteenth Judicial District Court, Lincoln County, granting Terry Allen LeCount’s motion for summary judgment. The District Court ordered that LeCount could foreclose on a child support lien created by the Child Support Enforcement Division (CSED) of the Department of Public Health and Human Services (DPHHS or the Department) and assigned to him by his ex-wife. The court ordered that a Sheriff’s sale be conducted to satisfy the lien. We reverse. ¶2 The only issue on appeal is whether the District Court correctly ruled that LeCount could foreclose on the CSED support lien. PROCEDURAL AND FACTUAL BACKGROUND ¶3 In April 1974, Christine and Stanley Davis were married. During the marriage, Christine gave birth to two children. In 1984, Christine and Stanley divorced and the District Court ordered Stanley to pay $175.00 per child to Christine each month for child support. ¶4 Stanley Davis (Davis) failed to make child support payments to Christine. By September 1996, Davis had accrued $44,975.00 in past-due child support payments. Consequently, CSED placed a support lien on all of his property, pursuant to §§ 40-5-247 and -248, MCA (1995), and filed the lien with the Lincoln County Clerk and Recorder’s Office on September 16, 1996. The lien specifically applied to forty-two acres of land Davis owns in Lincoln County. Although the lien itself does not mention Christine by 3 name, it is not contested in this appeal that she had a right to the unpaid child support for which Davis was obligated. ¶5 Sometime after the Davises divorced, Christine married Terry Allen LeCount. Christine and Terry divorced in June 2006; in the final decree of dissolution, the District Court determined that the property settlement agreement drafted by Terry and Christine was conscionable and ordered the parties’ assets and debts to be distributed according to its provisions. In accordance with that agreement, Christine assigned to Terry “all right, title, and interest in and to that certain Child Support Lien filed with the Lincoln County Clerk and Recorder . . . showing the obligor as Stanley G. Davis[.]” Christine’s assignment was made in consideration of “certain obligations and payments” set out in her divorce proceedings with Terry. CSED was not a party to Christine and Terry’s divorce. ¶6 In September 2006, Terry LeCount (LeCount) commenced a new proceeding against Davis in District Court seeking to foreclose on the CSED support lien. He also sought a writ of execution and an order that a sheriff’s sale be conducted in satisfaction of the lien. LeCount filed an amended complaint, which was served on Davis in March 2007. Davis filed an answer requesting that LeCount’s complaint be dismissed, in part, because in 1995 Christine ordered CSED to close her case. In June 2007, Davis filed a motion to dismiss the case on the ground that CSED had released its support lien on his property. Davis attached to the motion an exhibit demonstrating that, on May 29, 2007, CSED filed a “Release of Support Lien” with the Lincoln County Clerk and Recorder’s 4 Office releasing its support lien against the forty-two acres Davis owns in Lincoln County. ¶7 LeCount responded to Davis’s motion to dismiss by arguing that the release was “invalid” because (1) it “simply relinquish[ed] any rights the State of Montana may have to that lien but does not release the underlying lien”; (2) the release “is probably void and of no force and effect”; and (3) Davis had waived the affirmative defense of release. ¶8 Two weeks later, LeCount supplemented his response by filing with the court a document in which Patrick Quinn of CSED assigned the Department’s interest in the support lien to LeCount, who in turn argued that the assignment could only mean that the support lien “remains enforceable” in spite of the release that Davis previously had submitted. In the assignment document, Quinn wrote that the “State of Montana hereby assigns all right, title, and interest in and to said [support lien] and any associated cause of action to Terry LeCount.” Quinn cautioned, however, that: The State of Montana makes no warranty or guarantee that the State of Montana is in possession or control of an interest in said liens that could be assigned but, in the event any interest does exist and is currently had by the State of Montana in said liens and cause of action, any such interest is by this assignment hereby divested from the State of Montana and invested to Terry Allen LeCount. The assignment was signed by Quinn and by LeCount’s attorney, S. Charles Sprinkle, and was dated July 2, 2007. ¶9 Later that month, the District Court converted Davis’s motion to dismiss into a motion for summary judgment. LeCount filed a “cross claim” for summary judgment in 5 his favor. The parties agreed that there were no disputed facts and that the matter should be resolved on summary judgment; both also waived oral arguments on the motions. ¶10 In October 2007, no ruling on his motion having been made, Davis filed a supplement to his list of exhibits and attached a letter from Arlene Coburn, an administrative assistant at CSED. The letter, dated July 6, 2007, stated that CSED “is no longer responsible for enforcing your child support obligation” because the “party who opened this case has requested we close it.” ¶11 The matter remained unresolved for nearly five years, until LeCount filed a motion on May 24, 2012, requesting that the District Court grant his summary judgment motion and issue a writ of execution. By then, a new District Judge had assumed office; he issued an order five days later, on May 29, 2012, granting LeCount’s requests. Davis replied to LeCount’s motion, but his reply was not filed until May 30, 2012, and was not considered by the District Court. Davis appeals. STANDARD OF REVIEW ¶12 We review a district court’s ruling on motions for summary judgment de novo, applying the same M. R. Civ. P. 56(c) criteria as the district court. Turner v. Wells Fargo Bank, N.A., 2012 MT 213, ¶ 11, 366 Mont. 285, 291 P.3d 1082 (citing Ternes v. State Farm Fire & Cas. Co., 2011 MT 156, ¶ 18, 361 Mont. 129, 257 P.3d 352). Summary judgment is appropriate only when the moving party demonstrates both the absence of any genuine issue of material fact and entitlement to judgment as a matter of law. Turner, ¶ 11. A district court’s conclusion that no genuine issue of material fact exists 6 and that the moving party is entitled to judgment as a matter of law is a legal conclusion we review for correctness. Turner, ¶ 11. DISCUSSION ¶13 Did the District Court correctly rule that LeCount could foreclose on the Child Support Enforcement Division support lien? ¶14 Davis argues that a support lien, as created by § 40-5-248, MCA, is a unique administrative remedy designed to enforce child support obligations; as such, the lien “belongs only to CSED and is enforceable only by CSED” pursuant to § 40-5-247, MCA. Although Christine may have been entitled to the child support obligation that gave rise to the support lien, Davis contends, none of the applicable statutes suggests that the obligee directly can sell, transfer, assign or foreclose upon CSED’s support lien. In any event, Davis avers that CSED already had released the child support lien on his property when it transferred its rights in that lien to LeCount, thus rendering the transfer, as well as LeCount’s attempt to foreclose on the support lien, “null, void, and of no effect.” ¶15 LeCount counters that the lien he was assigned is “transferrable, assignable, and constitutes a property right which may be enforced by any available civil remedy.” While acknowledging that a child support lien is created by statute, LeCount contends that there is no statutory restriction on the right of an obligee to assign her interest in a child support lien and that a third party can foreclose on a child support lien. Finally, he asserts that Davis’s claim that the support lien was released by CSED is an affirmative 7 defense and, by failing to raise any affirmative defenses in his answer, Davis waived his right to do so pursuant to M. R. Civ. P. 8(c). ¶16 Both parties agree that child support liens were created by the Montana Legislature as a means to allow the Department to enforce past-due child support obligations. These liens come into existence either when the Department has entered a final decision in a contested child support proceeding finding a sum certain debt by the obligor or upon registration of a court or administrative child support order that establishes a sum certain amount of delinquent support. Section 40-5-248(1)(a) and (b), MCA. The support lien applies to all real and personal property owned by the obligor that can be located within the State of Montana, as well as all property that the obligor acquires at a later date, § 40-5-248(5), MCA, up to the amount required to satisfy the underlying obligation, § 40-5-248(2), MCA. Support liens are perfected as to real property when the Department files a notice of support lien with the clerk of the district court in the county in which the obligor’s real property is located. Section 40-5- 248(7)(a), MCA. ¶17 The support lien remains in effect until “the delinquency upon which the lien is based is satisfied or until the applicable statute of limitations expires, whichever occurs first.” Section 40-5-248(4), MCA. An obligor is “liable to the department in an amount equal to 100% of the value of a support lien or warrant for distraint” if the obligor “pays over, releases, sells, transfers, or conveys real or personal property subject to a support lien” or if the obligor “fails or refuses to surrender upon demand property . . . when 8 presented with a warrant for distraint by a sheriff or levying officer under the provisions of 40-5-247.” Section 40-5-242(2), MCA (emphases added). DPHHS is required to keep a record of all support liens it has asserted, § 40-5-248(6), MCA, and to take all necessary steps to release the lien once it receives payment in full, plus interest and fees, § 40-5- 248(10)(a), MCA. The Department also has discretion to release the child support lien “if it determines that the lien is unenforceable.” Section 40-5-248(10)(b), MCA. ¶18 Pursuant to § 40-5-248(13), MCA, if the Department decides to enforce or collect upon the child support lien, it may do so by following the steps laid out in § 40-5-247, MCA. That section establishes the detailed procedures the Department must satisfy before it can execute upon child support liens through a warrant for distraint. Section 40- 5-247(1)-(8), MCA. The use of the warrant for distraint “is not exclusive,” however, “and the department may use any other remedy provided by law for the collection of child support amounts.” Section 40-5-247(9), MCA (emphasis added). ¶19 LeCount’s argument that he—as the alleged obligee of the support lien—directly can enforce the lien “by any available civil remedy” is an incorrect statutory interpretation. LeCount cites to two statutes—§§ 40-5-290 and 71-3-110, MCA— in support of this argument. Neither of those statutes makes mention of, or otherwise applies to, child support liens created pursuant to § 40-5-248, MCA. To the contrary, both statutes refer to the enforcement of the obligation, not foreclosure of a lien. Section 40-5-290, MCA, in particular, provides for child support payments to follow the child; thus, the “obligation” must be “paid to . . . any . . . person . . . entitled by law, assignment, 9 or similar reason to receive or collect the child support obligation.” Section 40-5- 290(1)(c), MCA. It says nothing about a lien. ¶20 The plain language of §§ 40-5-247 and -248, MCA, makes clear that the child support lien and the warrant of distraint to enforce it are purely creatures of statutes the Legislature passed to create a process by which child support liens may be established and foreclosed. The statutes grant exclusive authority to the Department to foreclose upon a child support lien, which it is authorized to do by utilizing a warrant for distraint, § 40-5-248(13), MCA, or “any other remedy provided by law for the collection of child support amounts,” § 40-5-247(9), MCA. These two statutes do not allow for the obligee directly to enforce a child support lien, even though the obligee may be entitled to the underlying child support obligation. ¶21 Furthermore, LeCount is mistaken in his assertion that he had a valid and protectable interest in the child support lien on Davis’s property. LeCount argues that, because Christine “assigned 100% of all of her right, title and interest” in the support lien to him as part of their divorce settlement proceedings, approved by the dissolution court, he has an interest in the support lien. As Davis points out, however, §§ 40-5-247 and -248, MCA, make it clear that DPHHS, not Christine, held the interest in the child support lien. The Department was not a party to the divorce proceeding, so the incorporation of the lien transfer in that proceeding could not have affected the Department’s rights in the lien. LeCount did not have a valid interest in the child support lien when he filed his action against Davis. 10 ¶22 The Department’s subsequent agreement to transfer whatever interest it had in the support lien to LeCount on July 2, 2007, conferred no enforceable interest to him. The Department cautioned that it could not guarantee it had any interest in the lien as of that date and, in fact, it already had released the lien prior to that date. Sections 40-5-247 and -248, MCA, do not provide a means by which the Department may transfer its interest in a child support lien to a third party; as explained above, the statutes vest exclusive rights in the Department to establish and enforce such a lien. Because our conclusion as to this point is dispositive, we need not consider LeCount’s argument that Davis waived his right to assert the affirmative defense of release. ¶23 For the foregoing reasons, we conclude that the Department alone holds the rights to and is authorized to foreclose on a child support lien under the express terms of §§ 40- 5-247 and -248, MCA. Those statutes precluded LeCount from obtaining an enforceable interest in the support lien. ¶24 Accordingly, the District Court’s order granting Terry Allen LeCount’s motion for summary judgment is reversed and the case is remanded for entry of judgment in favor of the appellant, Stanley G. Davis. /S/ BETH BAKER We concur: /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JIM RICE /S/ LAURIE McKINNON | June 18, 2013 |
044bf26c-ba18-4f07-8c5b-93f567522df7 | Pallister v. Blue Cross & Blue Shield of Mont., Inc. | 2013 MT 149 | DA 12-0626 | Montana | Montana Supreme Court | DA 12-0626 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 149 TYSON S. PALLISTER, KEVIN BUDD, and JESSICA NORMANDEAU, Class Members and Appellants, v. BLUE CROSS AND BLUE SHIELD OF MONTANA, INC., and MONTANA COMPREHENSIVE HEALTH ASSOCIATION, Defendants and Appellees, v. BRITTANY C. SMITH; RENEE NEARY, as parent and guardian of DYLAN DALLASERRA; KRISTA LUCAS; and ALICE JEAN SPEARE, each individually and as representative members of a class of similarly situated plaintiffs, Class Representatives and Appellees. APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte/Silver Bow, Cause No. DV 08-553 Honorable Brad Newman, Presiding Judge COUNSEL OF RECORD: For Appellants: James G. Hunt, Jonathan McDonald; Dix, Hunt & McDonald; Helena, Montana (for Pallister) Jory C. Ruggiero, J. Breting Engel; Attorneys at Law; Bozeman, Montana June 4 2013 2 For Appellees: Jacqueline T. Lenmark; Keller, Reynolds, Drake, Johnson & Gillespie, P.C.; Helena, Montana (for Montana Comprehensive Health Association) Robert G. McCarthy; McCarthy Law, P.C.; Butte, Montana (for the Class, Class Representatives, and Appellees) Michael F. McMahon, Stefan T. Wall; McMahon, Wall & Hubley, PLLC; Helena, Montana (for Blue Cross and Blue Shield of Montana, Inc.) Submitted on Briefs: March 20, 2013 Decided: June 4, 2013 Filed: __________________________________________ Clerk 3 Justice Jim Rice delivered the Opinion of the Court. ¶1 Class member and objector Tyson Pallister appeals from the denial by the Second Judicial District Court, Silver Bow County, of his motion to substitute the district court judge following remand from this Court. We affirm. ¶2 We address the following issue on appeal: ¶3 Did the District Court err by denying Pallister’s motion for substitution of judge following remand? FACTUAL AND PROCEDURAL BACKGROUND ¶4 This appeal arises in an ongoing class action that we remanded for further proceedings in Pallister v. Blue Cross and Blue Shield of Mont., Inc., 2012 MT 198, 366 Mont. 175, 285 P.3d 562 (Pallister I). The case has complex facts and a long procedural history, much of which is not necessary to address for the purposes of this appeal. ¶5 Tyson Pallister, Kevin Budd, and Jessica Normandeau (collectively “Pallister”) are unnamed members in a class action suit against insurers Blue Cross and Blue Shield of Montana, Inc. (BCBSMT) and Montana Comprehensive Health Association (MCHA).1 The suit generally seeks damages from BCBSMT and MCHA for the companies’ delayed payments of benefits and for benefits improperly withheld. The class members allege that while they were insured by BCBSMT or MCHA, the insurers denied claims based on invalid exclusions set forth in the health insurance policies. 1 Pallister, Budd, and Normandeau all objected to the class settlement, but only Pallister moved for substitution of the District Court judge following remand, and only Pallister appeals here. 4 Pallister I, ¶¶ 4-7; see also Blue Cross and Blue Shield of Mont., Inc. v. Mont. State Auditor, 2009 MT 318, ¶ 19, 352 Mont. 423, 218 P.3d 475. ¶6 The District Court certified the class and appointed class counsel for the named class members (Class Representatives). Pallister filed a motion to intervene, which the District Court denied. BCBSMT, MCHA, and Class Representatives participated in mediation and entered into a proposed class settlement. The District Court scheduled a fairness hearing for the proposed settlement and sent notice of the hearing and settlement to class members, who were given the choice to opt out. No class member, including Pallister, opted out. Pallister objected to the settlement agreement and filed a motion to conduct discovery into the fairness of the proposed settlement. The District Court denied Pallister’s motion to conduct discovery, giving rise to the appeal in Pallister I. ¶7 This Court reversed the District Court’s denial of Pallister’s motion “on the discrete issue of discovery,” and vacated the District Court’s approval of the settlement agreement. Pallister I, ¶¶ 1, 43. We remanded to the District Court “with instruction to allow discovery to be conducted into the settlement negotiations and the billing records of the class counsel, to hold another fairness hearing, and to issue new findings of facts and conclusions of law based upon the entirety of evidence received in the original proceeding and during remand proceedings.” Pallister I, ¶ 22. Remittitur was issued from this Court and filed with the District Court on September 25, 2012. ¶8 On October 4, 2012, Pallister filed a motion for substitution of District Judge Bradley Newman, who has presided over the proceedings since 2008. Class 5 Representatives objected, and BCBSMT and MCHA filed a joint objection to the motion. Judge Newman denied Pallister’s motion, stating: The statutory right to seek a substitution of the trial judge is granted to “each adverse party.” Section 3-1-804(1) and (12). The statute requires actual adversity, rather than hostility, between the parties at issue. [Ratliff v. Pearson, 2011 MT 241, ¶¶ 14-17, 362 Mont. 163, 261 P.3d 1037.] Pallister is not an adverse party. Rather, he is a class member. While Pallister objects to the manner in which class counsel and the class representatives worked to resolve this action, he still stands to benefit from the prosecution and ultimate resolution of the litigation. In other words, Pallister shares a commonality of interest with the original class representatives. . . . Section 3-1-804(12) governs the right to seek substitution where a judgment is reversed on appeal. As noted above, such right is granted only to “adverse parties.” The Court already has addressed the issue of adversity. Additionally, the Supreme Court remanded this action for the purpose of “limited discovery” to be conducted by the objecting class members. The Supreme Court recognized that this Court should set and oversee the parameters of such discovery. At no point in its opinion and order did the Supreme Court change Pallister’s procedural position in this action. He remains a class member, not a separate party to the litigation. Pallister appeals the denial of his motion for substitution. STANDARD OF REVIEW ¶9 “A district court’s interpretation and application of a statute is a conclusion of law. We review a district court’s conclusions of law for correctness.” Kulstad v. Maniaci, 2009 MT 403, ¶ 6, 353 Mont. 467, 221 P.3d 127 (citing Williams v. Schwager, 2002 MT 107, ¶ 36, 309 Mont. 455, 47 P.3d 839). “This Court reviews for correctness a district court’s ruling on a motion to substitute a district court judge.” Ratliff, ¶ 9 (citing Patrick v. State, 2011 MT 169, ¶ 12, 361 Mont. 204, 257 P.3d 365). 6 DISCUSSION ¶10 Did the District Court err by denying Pallister’s motion for substitution of judge following remand? ¶11 The parties’ arguments frame the issue as whether Pallister is a “party” who has a right to substitute the district court judge pursuant to § 3-1-804(12), MCA. Pallister argues he is an “adverse party” within the meaning of the statute because it is “the relationship between BCBSMT and Pallister that determines adversity.” Citing Devlin v. Scardelletti et al., 536 U.S. 1, 122 S. Ct. 2005 (2002), Pallister posits that “an unnamed class member who objects to a settlement is a ‘party’” and “Pallister became a party to the action when he objected to the settlement and appealed it to the Montana Supreme Court.” BCBSMT and MCHA maintain that Pallister did not successfully intervene and “does not occupy the status of a ‘party’ for the remaining aspects of the lawsuit, including for purposes of section 3-1-804(12), MCA.” Class Representatives argue that “[a]lthough individual class members may be accorded some of the rights absent intervention such as the right to object to a proposed settlement and the right to appeal the approval of a class settlement over those objections raised at the fairness hearing[,] they are not parties for all purposes.” Class Representatives also contend that nothing in Pallister I considered or granted Pallister the status of a party in the action. ¶12 Section 3-1-804, MCA, provides the rules governing substitution of district court judges. Subsection (12) addresses a party’s right to substitution upon remand, and reads in its entirety: (12) When a judgment or order is reversed or modified on appeal and the cause is remanded to the district court for a new trial, or when a 7 summary judgment or judgment of dismissal is reversed and the cause remanded, each adverse party is entitled to one motion for substitution of district judge. The motion must be filed, with the required filing fee, within 20 calendar days after the remittitur from the supreme court has been filed with the district court. There is no other right of substitution in cases remanded by the supreme court. In criminal cases, there is no right of substitution when the cause is remanded for resentencing. Section 3-1-804(12), MCA (2011).2 The statute thus affords “each adverse party” one motion to substitute a district court judge. Section 3-1-804(12), MCA. ¶13 Implicit in the status of an “adverse party” is the requirement that the movant under § 3-1-804(12), MCA, be a “party” to the action. Generally, “[i]n a civil action, the party complaining is known as the plaintiff and the adverse party as the defendant.” Section 25-5-101, MCA. The Montana Rules of Civil Procedure also recognize that one who is joined, M. R. Civ. P. 19 and 20, or one who intervenes, M. R. Civ. P. 24, becomes a party to the action. The U.S. Supreme Court recently summarized: In general, “[a] ‘party’ to litigation is ‘[o]ne by or against whom a lawsuit is brought,’” United States ex rel. Eisenstein v. City of New York, 556 U.S. 928, [933], 129 S. Ct. 2230, 2234 [] (2009), or one who “become[s] a party by intervention, substitution, or third-party practice,” Karcher v. May, 484 U.S. 72, 77, 108 S. Ct. 388 [] (1987). Smith et al. v. Bayer Corp., ___ U.S. ___, ___, 131 S. Ct. 2368, 2379 (2011). Section 3- 1-804(9), MCA, contemplates joined and intervening parties, providing “[n]o party who 2 Unless otherwise specified, all references to the Montana Code Annotated are to the 2011 version. See Or., In Re: Revised Rules on Substitution of District Judges, (Mont. July 9, 2009) (No. 09-0289). 8 is joined or intervenes has any right of substitution after the time has run as to the original parties to the proceeding.”3 ¶14 In contrast to these provisions governing parties to litigation, members of a class action are generally absent and unnamed, and are not typical adversarial parties before the court. M. R. Civ. P. 23; see also William B. Rubenstein, Newberg on Class Actions vol. 1, § 1:5, 12-16 (5th ed., West 2011) (“The position that absent class members occupy in class action litigation is sui generis, and attempts to analogize to conventional ‘party’ status are likely to fail.”). Absent class members occupy a unique position: [A]bsent plaintiff class members are not subject to other burdens imposed upon defendants. They need not hire counsel or appear. They are almost never subject to counterclaims or cross-claims, or liability for fees or costs. Absent plaintiff class members are not subject to coercive or punitive remedies. Nor will an adverse judgment typically bind an absent plaintiff for any damages, although a valid adverse judgment may extinguish any of the plaintiff’s claims which were litigated. Phillips Petroleum Co. v. Shutts et al., 472 U.S. 797, 810, 105 S. Ct. 2965, 2973-74 (1985). ¶15 Pallister correctly points out that an unnamed class member may be considered a “party” for the purposes of appealing the approval of a settlement. See Devlin v. Scardelletti et al., 536 U.S. 1, 14, 122 S. Ct. 2005, 2013 (2002). In Devlin, the U.S. Supreme Court held that nonnamed class members who have objected in a timely manner to approval of a settlement at the fairness hearing may be considered a “party” for the 3 In Mattson v. Mont. Power Co., 2002 MT 113, 309 Mont. 506, 48 P.3d 34, we analyzed a previous version of § 3-1-804, MCA, and there recognized three different classes of parties: “original parties, subsequently joined parties and intervenors, and third party defendants.” Mattson, ¶ 21. 9 purposes of appealing the approval of the settlement without first intervening. Devlin, 536 U.S. at 14, 122 S. Ct. at 2013. However, the Devlin Court was careful to explain that “[n]onnamed class members, however, may be parties for some purposes and not for others. The label ‘party’ does not indicate an absolute characteristic, but rather a conclusion about the applicability of various procedural rules that may differ based on context.” Devlin, 536 U.S. at 9-10, 122 S. Ct. at 2010. The holding in Devlin is specific to appeals of class action settlements and does not address the party status of nonnamed class members for purposes of post-appeal procedural questions following remand. ¶16 We discussed the meaning of “adverse parties” within § 3-1-804, MCA, in Goldman Sachs Group, Inc. v. Mont. Second Jud. Dist. Ct., 2002 MT 83, 309 Mont. 289, 46 P.3d 606, where we held: [I]n order to invoke the right of substitution in cases involving multiple parties under § 3-1-804, MCA, the moving party must demonstrate adversity with a co-party to the action . . . . The determination of adversity is based solely on the allegations set forth in the complaint. Goldman Sachs, ¶ 17. More recently, in Ratliff, we summarized the holding of Goldman Sachs, stating “[t]he statute requires the subsequently joined party to establish that adversity, rather than hostility, existed between it and other defendants in order to exercise an independent right to substitute.” Ratliff, ¶ 22 (citing Goldman Sachs, ¶¶ 14- 17) (emphasis in original). ¶17 Pallister did not successfully intervene and he remains an unnamed class member. Despite his earlier successful appeal of the settlement approval in Pallister I, he has not become a party for all purposes and is not a party for purposes of substitution. As an 10 unnamed class member, Pallister does not enjoy the same rights, and is not burdened by the same responsibilities, as a named class representative. The District Court appropriately determined that Pallister is “a class member, not a separate party to the litigation.” Lacking party status for this purpose, Pallister cannot establish that he is an “adverse party” under § 3-1-804(12), MCA. ¶18 Further, this Court remanded in Pallister I “on the discrete issue of discovery,” vacating the District Court’s approval of the settlement. Pallister I, ¶¶ 1, 43. Section 3- 1-804(12), MCA, provides for substitution on remand when a “cause is remanded to the district court for a new trial, or when a summary judgment or judgment of dismissal is reversed and the cause remanded,” and further provides that “[t]here is no other right of substitution in cases remanded by the supreme court.” Our decision in Pallister I was not a remand for a new trial or a reversal of summary judgment or judgment of dismissal. ¶19 Affirmed. /S/ JIM RICE We concur: /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ PATRICIA COTTER | June 4, 2013 |
80995069-b929-4f34-b8c2-2a7b9aa398a2 | Morin v. State Farm Mut. Auto. Ins. Co. | 2013 MT 146 | DA 12-0418 | Montana | Montana Supreme Court | DA 12-0418 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 146 IN THE MATTER OF: TRACEY L. MORIN, Appellant, AS PART OF: SARAH WEST, AUSRA WEST, and JAMES WEST, Plaintiffs, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellee. APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DV 07-330/158 Honorable James A. Haynes, Presiding Judge COUNSEL OF RECORD: For Appellant: Jonathan R. Motl, Morrison, Motl & Sherwood, PLLP, Helena, Montana For Appellee: Bradley J. Luck, Garlington, Lohn & Robinson, PLLP, Missoula, Montana Submitted on Briefs: April 3, 2013 Decided: June 4, 2013 Filed: __________________________________________ Clerk June 4 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 This case arose from civil litigation known as West v. State Farm, Cause DV-07- 330, in the District Court of the Twenty-first Judicial District, Ravalli County. Tracey Morin, attorney at law, represented the West plaintiffs in that action. At the conclusion of the action the District Court, the Hon. James Haynes, imposed sanctions on Morin individually under M. R. Civ. P. 11, and Morin appeals. ¶2 On appeal Morin contends that the “depth and breadth” of the sanctions imposed upon her constituted an abuse of discretion. We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 In 2004 Sarah West was injured in a motor vehicle accident with a third party, and reached a settlement with that party’s insurer for about $93,000. She then made a claim against her own insurer, State Farm, for underinsured motorist benefits of $75,000 under the West family’s State Farm policy. State Farm paid $20,000 in benefits and then denied liability for additional payments. ¶4 In 2007 Morin filed a complaint against State Farm on behalf of Sarah for breach of contract under the State Farm policy. Morin later filed an amended complaint adding Sarah’s parents Ausra and James West as plaintiffs and asserting additional claims for violation of the Montana Unfair Trade Practices Act, breach of the implied covenant of good faith and fair dealing, and punitive damages. In November 2008, attorney Paul Meismer appeared as co-counsel for the West plaintiffs in the litigation. Discovery proceeded in the case. 3 ¶5 In late April 2009, Morin, on behalf of the West plaintiffs, moved the District Court to bifurcate the breach of contract claim from the tort claims against State Farm. The stated reasons were that the breach of contract claim was distinct from the tort claims, and that bifurcation would benefit all parties. In May 2009, attorney Meismer, with the express consent of the Wests, was allowed to withdraw from the case for health reasons.1 ¶6 On June 5, 2009, Morin entered a written stipulation with the attorneys for State Farm to dismiss one of the tort claims, and to bifurcate the contract claim from the remaining tort claims. The parties’ written stipulation provided that unless the Wests requested a revised scheduling order within 60 days of the final disposition of the breach of contract claims, the tort claims “shall be dismissed with prejudice.” The District Court entered an order in accordance with the stipulation and stayed the action as to the tort claims. The order reflected the agreement in the stipulation and provided: A revised Scheduling Order shall be requested by Plaintiffs in relation to Counts Two and Four, if they desire, following the settlement or entry of final judgment on Count One. Plaintiffs shall make such request within 60 days of the settlement or final judgment on Count One or the case (Counts Two and Four) shall be dismissed with prejudice. (Emphasis added.) The parties proceeded with discovery and preparation for trial on Count One, the contract-underinsured motorist claim. ¶7 On August 25, 2010, the day before the final pretrial conference on Count One and only weeks before the scheduled trial, Morin moved the District Court to dismiss Count 1 On September 27, 2009, Paul Meismer, a respected and well-regarded member of the Montana Bar, died. 4 One without prejudice. The District Court held hearings on the motion (August 26 and 27, 2010), during which Morin stated that it was “financially impossible” for the Wests to proceed with two trials on the bifurcated claims.2 State Farm objected to a dismissal without prejudice because the parties were on the verge of going to trial and had expended considerable effort and money to get to that point. The District Court denied the motion to dismiss without prejudice, and indicated that trial would proceed as scheduled on October 1, 2010. ¶8 Attorney Morin then filed several pleadings in which she asserted that the District Court had required her to choose either a dismissal of the breach of contract claim with prejudice, or participation in a “forced trial.” She further characterized the prior bifurcation stipulation that she entered with State Farm as a “court ordered stipulation.” In a subsequent hearing the District Court explained to Morin that there was no order that required her to dismiss the contract claim with prejudice; that the only order had been to deny her motion to dismiss the claim without prejudice; and that the Court was ready to proceed to trial on the merits. Several days later Morin stipulated with State Farm’s counsel to dismiss the breach of contract claim with prejudice. Pursuant to that stipulation, the District Court ordered the breach of contract claim dismissed with prejudice. State Farm moved to enter judgment on the breach of contract claim, and in October, 2010, the District Court ordered that final judgment be entered on that claim alone. 2 While Morin relied upon the asserted expense of “two trials,” within two months she filed a second action against State Farm in Federal District Court, as discussed below. 5 ¶9 After entry of the final judgment on the breach of contract claim, Morin failed to request a scheduling conference on the bifurcated tort claims within 60 days as required by the prior stipulation and District Court order. Several months after entry of the final judgment on the breach of contract claim, State Farm filed a motion to dismiss the remaining tort claims with prejudice as provided in the prior stipulation and order. Morin did not respond, and on January 20, 2011, the District Court entered an order dismissing the remaining tort claims with prejudice and entering final judgment. On February 1, 2011, State Farm served and filed a notice of entry of judgment as to the dismissal of all of the Wests’ claims. Morin, on behalf of the Wests, did not object to dismissal of the tort claims or to entry of judgment in favor of State Farm. Morin later claimed that she did not receive notice of the motion to dismiss the tort claims. She also claimed that she did not respond to the request for entry of judgment or to the notice that judgment had been entered because she was “confused.” ¶10 In the meanwhile, on November 29, 2010, after the State court proceedings had been dismissed, the West plaintiffs filed but did not immediately serve a complaint in United States District Court against State Farm, setting out essentially the same claims that had been made in the State court litigation. In January 2011, the Wests served the Federal court action on State Farm through the Montana Secretary of State. The Federal court conducted a preliminary pretrial conference on March 2, 2011, at which Magistrate Judge Lynch inquired of Morin as to the status of the State court action and the binding effect that the dismissal of that action might have on the new Federal court action. Morin objected to consideration of the State court record, contending that it was based upon 6 “inaccurate and misrepresented information.” Morin further specifically stated to the Magistrate Judge several times that she had filed a “motion to reconsider” or a “Rule 60 motion” regarding the dismissal of the State court claims and the judgments entered in favor of State Farm. She stated to the Magistrate Judge that while the claims had been dismissed with prejudice, “the plaintiffs opposed it.” ¶11 On March 4, 2011, two days after the preliminary pretrial conference before Magistrate Lynch in the Federal case, Morin filed in the State court a “Motion to Reconsider Based Upon New and Clarifying Information.” Morin failed to file a brief in support of the motion, and failed to cite any legal authority. The text of the motion itself accused State Farm of violating the prior bifurcation stipulation and of violating an “Order of Protection.” There was no Order of Protection in the State case. ¶12 On March 8, 2011, State Farm moved to dismiss the Federal action on several grounds, including claim preclusion based upon the dismissal of the State court claims with prejudice. Magistrate Lynch recommended that the case be dismissed, and Morin did not file a timely objection to the recommendation. On July 20, 2011, the United States District Court dismissed the Federal action.3 Morin appealed to the Ninth Circuit, which affirmed. At that point all of the Wests’ claims against State Farm had been dismissed in both State and Federal court.4 3 Federal courts give preclusive effect to state court judgments, applying collateral estoppel and res judicata. Adam Bros. Farming v. County of Santa Barbara, 604 F.3d 1142, 1148 (9th Cir. 2010); Engquist v. Ore. Dept. of Ag., 478 F. 3d 985, 1007 (9th Cir. 2007). 4 Morin had asserted in court filings that the Wests’ claims in the State court action were worth hundreds of thousands of dollars. 7 ¶13 On March 18, 2011, in the State court action Morin filed a document captioned “Plaintiffs’ Rule 30(b)(6) [sic] Request Is [sic] Based Upon New Information and Fraud Upon this Court by Defendant State Farm.” That document made a number of contentions, including that State Farm had violated the bifurcation stipulation; that plaintiffs had been “leveraged into an abeyance” by State Farm based upon attorney Meismer’s illness; that State Farm violated an unidentifiable “Abeyance Agreement;” that State Farm had deceived the District Court with its request to dismiss the tort claims; that State Farm concealed its breach of the “Abeyance Agreement;” that State Farm deceived the District Court by failing to inform it that Morin had filed the separate Federal action; and that State Farm had failed its obligation to notify plaintiffs of their need to get new representation upon Meismer’s death. The document also claimed that State Farm “withheld notice” of its motion to dismiss the tort claims until after the District Court agreed to the dismissal. State Farm responded, contesting Morin’s assertions. ¶14 The District Court entered an opinion and order on April 29, 2011, denying Morin’s “Motion to Reconsider Based Upon New and Clarifying Information” and “Plaintiffs’ Rule 30(b)(6) Request Is Based Upon New Information and Fraud Upon this Court by Defendant State Farm.” The District Court listed a number of factual statements in these filings that were “unsupported by citation to the record, by supporting affidavits or by other evidence . . . .” The District Court found that Morin had been served with State Farm’s motion to dismiss the tort claims and the request for judgment despite her claims to the contrary. The District Court found that “plaintiffs had slept on 8 their rights” and had thereby allowed all claims in the State court action to be dismissed. The District Court found that there was nothing in the record called an “Abeyance Agreement;” that there was no evidence that plaintiffs were leveraged into bifurcating the claims in the case; that there was no evidence of a breach of the bifurcation stipulation; and that nothing entitled plaintiffs to avoid dismissal of their tort claims by filing a separate action in Federal court. The District Court found that Morin’s assertion that plaintiffs could not afford two trials “remains unsupported and unpersuasive” and “strains credibility.” The District Court also found that plaintiffs had not made any material argument that they were entitled to relief under M. R. Civ. P. 60(b)(6), but only relied upon a “series of unsupported allegations.” ¶15 In July 2011, Morin filed an application with this Court for a writ of supervisory control. The application alleged fraudulent misconduct by State Farm in the District Court, gender-based and personal attacks against the Wests and Morin, and State Farm’s “shameful manipulation” of the District Court. This Court found that Morin’s pleading was “difficult to understand,” and that it contained “unsubstantiated allegations of serious ethical violations,” and failed to “adequately explain the status of the case or the nature of the relief requested.” This Court denied the application by order of July 26, 2011. ¶16 On May 3, 2011, State Farm moved for Rule 11 sanctions solely against attorney Morin and not her clients, based upon the content of Morin’s “Motion to Reconsider Based Upon New and Clarifying Information” (District Court Doc. No. 120) and “Plaintiffs’ Rule 30(b)(6) Request Is Based Upon New Information and Fraud Upon this Court by Defendant State Farm” (Doc. No. 122). State Farm filed a brief in support of 9 the motion arguing that those pleadings had no reasonable basis in fact, were premised upon false statements, were filed for the improper purpose of re-litigating issues already decided, and were filed to avoid dismissal of the Federal case. State Farm also presented a transcript of the conference with Magistrate Lynch in United States District Court in which Morin falsely stated that she had already filed a motion to reconsider dismissal of the State court claims, and in which she stated that State Farm had failed to respond. Morin failed to respond to State Farm’s motion and brief. Instead, on June 1, 2011, Morin filed her own motion for Rule 11 sanctions against State Farm’s attorney Brad Luck (Doc. No. 129), supported by a subsequent “reply brief” (Doc. No. 134). ¶17 The District Court found Morin’s reply brief in support of her motion for sanctions to be an “escalation” of the unsupported attacks against Luck and State Farm that she began in her motion for sanctions. Morin repeatedly asserted that State Farm’s attorney, Luck, was guilty of all manner of wrongdoing, using accusatory terms such as vicious, shameful, assault, atrocious, legal bully, intimidation, and abuse. She alleged that Luck obtained dismissal of the tort claims in the State court action “without the Plaintiffs’ knowledge.” Morin claimed that she was never notified that State Farm sought dismissal of the tort claims pursuant to the bifurcation stipulation and order. The level and tone of Morin’s attacks were such that on July 7, 2011, the District Court entered, sua sponte, an “Order to Cease Personal Attacks Upon Opposing Counsel” to protect “the integrity of the judicial process.” That order stated that the District Court was considering the opposing motions for Rule 11 sanctions with respect to all relevant pleadings filed by any party. 10 ¶18 On November 17, 2011, the District Court entered an Order to Show Cause and Setting Hearing. In that Order, the District Court found that there was no basis for Morin’s motion for sanctions against Attorney Luck, but found “ample basis upon which to sanction Attorney Morin for filing documents numbered 120, 122, 129, and 134 (identified in ¶ 16 above) in the District Court record. The District Court found that those documents were filed for an improper purpose, contained contentions not well grounded in fact, and contained contentions unwarranted by existing law or by a good faith argument for the extension, modification or reversal of existing law. The District Court scheduled a hearing for Morin to show cause why she should not be sanctioned. ¶19 The District Court held the show cause hearing on State Farm’s motion for Rule 11 sanctions on January 11, 2012. Morin testified. The result of that hearing was the District Court’s April 10, 2012, 111-page “Findings of Fact, Conclusions of Law and Order: Morin Rule 11 Sanctions.” The District Court undertook an exhaustive and detailed review of the record and of many of the specific statements, allegations and accusations that Morin had made in the four District Court pleadings that she filed since the underlying case was dismissed. ¶20 The District Court found that Morin’s filings contained numerous statements with no basis in fact or that indicate they were made for improper purposes. The District Court found that Morin’s motion for sanctions contained numerous statements “more properly characterized as a litany of unwarranted and unprofessional slurs and slanders” against Luck and State Farm. Morin stated, for example, that Luck and State Farm “attacked” her client Sarah West because Sarah had been a victim of sexual abuse and 11 that Luck and State Farm attacked Sarah’s parents for allowing that abuse to happen. Morin accused Luck of successfully “abusing a dying attorney” in the case, referring to Paul Meismer. Morin accused Luck of using the court as his “professional hammer” to beat down claims against State Farm. ¶21 The District Court thoroughly analyzed each and every allegation contained in Morin’s motion for sanctions and concluded that the document “contains a smorgasbord of unsupported, unprofessional, inflammatory and shallow conclusions with no basis in fact or law that were interposed for the improper purposes of harassing Attorney Luck and State Farm, fostering bias and prejudice, delaying the resolution of State Farm’s motion for sanctions, providing a tardy response to such motion, delaying the resolution of the related matter in the federal courts, and misleading Attorney Morin’s clients with respect to her own professional errors and omissions.” ¶22 A passage that is instructive of Morin’s filings in this period follows: Just like the adult male sexual perpetrator who rapes the 15-year-old child, and then refuses accountability, but instead escalates the attacks on the credibility and person of the raped child, Brad Luck and State Farm have escalated their legal attacks upon [the Wests] by attacking their attorney. If the 15-year-old child is brave enough to bring forward her claim of rape against the adult male, the sexual perpetrator and bully begins an all out assault on the child’s credibility and character. Statements such as, “She was wearing a short skirt, what did she expect?” are leveled against the child. Accusations such as, “She wanted it!” are leveled against the child. Excuses such as, “Why did she get in his car anyway?” are leveled against the child. These distraction techniques are used specifically to distract from the actual assault and rape that occurred against her. Similarly, Mr. Luck and State Farm Insurance Company hope to distract from State Farm’s bad faith and legal assaults against [the Wests]. Brad Luck and State Farm Insurance Company hope to distract this Court 12 from their shameful actions against [the Wests] and focus upon the [Wests’] attorney’s attempt to represent them in this court of law. The District Court found that this language was not credible, and was interposed for the improper purpose of delaying final resolution of the Wests’ cases. ¶23 The District Court’s analysis showed that Morin filed documents containing numerous false statements not supported by fact. The District Court concluded that Morin’s testimony at the show cause hearing was not credible, particularly her contention that the tort claims in the District Court action were dismissed without notice to her. The District Court found that Morin had specifically lied to Magistrate Judge Lynch in the Federal court proceedings by representing that she had filed a motion to reverse the order dismissing the State court case when in fact she had not done so. ¶24 The District Court determined that any reasonable inquiry by Morin would have revealed that the disputed documents were not well grounded in fact, were not warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and were interposed for improper purposes. The District Court determined that those purposes were harassment of opposing party and attorneys, causing unnecessary delay in the resolution of both the State and Federal cases, and causing a needless increase in the cost of the litigation. The District Court also found that Morin was motivated by trying to cover up the false statements she made to United States Magistrate Judge Lynch in the Federal court proceedings. ¶25 The District Court further found that Morin’s purpose in the unfounded pleadings was to mislead her own clients, the Wests, as to her own errors and omissions that had 13 resulted in the dismissal of all their claims in both State and Federal courts. The District Court determined that Morin had been “purposefully inattentive” to matters in the State court after she filed the action in Federal District Court, resulting in the dismissal of all the Wests’ claims. The District Court found that Morin had “fabricated” the claim that she never got notice of State Farm’s request to dismiss the tort claims pursuant to the bifurcation stipulation and order, and that her testimony to the contrary was not credible. The District Court determined that Morin intended to prevent the Wests from understanding her “own culpability (1) in failing to monitor the litigation before this Court and (2) in failing to appreciate the preclusive effect on the federal action of permitting a final judgment on the merits” on the State court claims. The District Court found that Morin filed the disputed pleadings in an attempt to mislead her own “clients with respect to her professional errors and omissions in this matter.” ¶26 The District Court found that Morin’s testimony regarding the decision to bifurcate the claims in the State court case, and particularly her allegations that attorney Luck had leveraged and mistreated Paul Meismer during his terminal illness to be “not credible, directly contradicting the record in this cause.” The District Court determined that Morin had acted willfully and in subjective bad faith and should be sanctioned. ¶27 The District Court set out a range of sanctions under consideration including requiring Morin to pay State Farm’s attorney fees and costs incurred in the case after she filed Document No. 120 (see ¶ 16 above); requiring Morin to pay an equal amount as a fine to the District Court for its time and effort; distributing the Findings of Fact to each State district court judge; requiring Morin to take and pass the Multistate Professional 14 Responsibility Exam (MPRE); requiring Morin to take and pass a basic legal research and writing course at the University of Montana School of Law; and referring the Findings of Fact to the Office of Disciplinary Counsel. The District Court set a hearing on the extent of the sanctions to be imposed. ¶28 The sanctions hearing was held May 9, 2012, and Morin failed to personally appear. Her attorney appeared and offered a brief and a “Sanctions Affidavit of Tracey Morin.” The affidavit explained her position on the District Court’s findings and proposed sanctions. She affirmed that she intended to change her practice in reaction to the District Court’s findings, and she stated that she apologized to the “Court, opposing counsel (Mr. Luck in particular) and to the bar for my inappropriate words and actions.”5 The District Court received the Morin affidavit along with testimony from attorney Tom Budewitz who opined that the number of attorney hours claimed by State Farm was excessive. ¶29 On May 31, 2012, the District Court entered its “Additional Findings of Fact, Conclusions of Law and Sanctions Order.” The District Court analyzed the evidence presented as to State Farm’s attorney fees expended since Morin filed Doc. No. 120 (see ¶ 16 above), and detailed each hour in the State Farm fee request. The District Court found that the claim for 148.5 attorney hours and 18.3 paralegal hours was reasonable, as were the hourly rates for each professional who billed time. The District Court considered the testimony of Morin’s expert Mr. Budewitz regarding the number of hours 5 The District Court discounted the sincerity of Morin’s apology based upon a nearly contemporaneous filing in the Federal court proceedings in which she continued to accuse State Farm and Luck of wrongdoing and in which she attempted to minimize her actions in State court. 15 that the State Farm attorneys should reasonably have expended on the Morin matters. While the District Court found that Mr. Budewitz was “apparently honest and well meaning,” the District Court concluded that he failed to understand the complexity of the case and that his analysis was “unilluminating.” The District Court noted that Morin presented no evidence regarding her financial resources or her ability to pay the proposed attorney fees and fine. To the contrary, Morin described herself as a successful attorney who obtains large awards for her past clients. ¶30 The District Court discussed in detail the legal standards applicable to Rule 11 sanctions and the need to impose “the least severe sanction adequate in light of the full record in this matter.” The District Court considered the reasonableness of the attorney fees in light of the amount and character of services rendered; the time, labor, and trouble involved; the character and importance of the litigation; the amount of money or value of property involved; the professional skill and experience called for; the attorney’s character and standing in the profession and the result secured. Applying those considerations to this case, the District Court determined that State Farm’s requested fees of $35,840.92 were reasonable. ¶31 As to the additional fine, the District Court determined that paying attorney fees alone would be insufficient to deter Morin from similar conduct in the future because of her animus against Luck and State Farm, the vast magnitude of her errors and omissions against her clients, and her complete subjective bad faith. The District Court found that Morin “would gladly accept paying State Farm its attorney fees for the opportunity to [continue to] make such filings.” Therefore, the District Court ordered that Morin must 16 also “pay for the effort the Court expends in responding to such filings as if the Court were a private law firm charging reasonable attorneys fees.” The District Court noted that Morin did not challenge this formulation of the fine and set it at $32,908.75. ¶32 The District Court noted that the point of the monetary sanctions was not just to reimburse State Farm or the Court for their time, but rather deter Morin from future similar conduct. The District Court also considered Morin’s argument that the proposed sanctions were too severe when compared to sanctions imposed in other reported cases. The District Court explained that the issue is not what was done in another case. Rather, the issue was what level of sanction is “adequate to accomplish the purposes of Rule 11, not whether a similar award was made in the past.” STANDARD OF REVIEW ¶33 This Court reviews a district court’s decision on Rule 11 sanctions to determine whether the findings of fact are clearly erroneous, and whether the conclusions constitute an abuse of discretion. Madison Add. Arch. Comm. v. Youngwirth, 2000 MT 293, ¶ 10, 302 Mont. 302, 15 P.3d 1175; Carl Weissman & Sons v. D & L Thomas Equip. Co., 1998 MT 213, ¶ 53, 290 Mont. 433, 963 P.2d 1263; McCracken v. City of Chinook, 242 Mont. 21, 26, 788 P.2d 892, 895 (1990). A district court has the flexibility to deal appropriately with violations of Rule 11 and to tailor sanctions to fit the particular case. Gold Reserve Corp. v. McCarty, 288 Mont. 512, 515, 744 P.2d 160, 162 (1987). The district court is in the best position to evaluate the credibility of the testimony offered in a Rule 11 proceeding. Bulen v. Navajo Refining Co., 2000 MT 222, ¶ 35, 301 Mont. 195, 9 P.3d 607. 17 ¶34 We review a district court’s award of attorney fees for an abuse of discretion in light of the facts of the case. Good Schools Missoula, Inc. v. Missoula County Public School District, 2008 MT 231, ¶ 16, 344 Mont. 374, 188 P.3d 1013. DISCUSSION ¶35 The issue on appeal is narrow. Morin does not contest any of the District Court’s findings of fact or its conclusions of law regarding her conduct or her motivations for that conduct in the proceedings below. She does not dispute that she signed and filed the pleadings at issue in violation of Rule 11. She does not contest that she filed the pleadings for improper purposes, including the purpose of delaying and extending proceedings in State and Federal courts; the purpose of attempting to instill bias and prejudice against State Farm and its attorney during the litigation; the purpose of hiding her professional errors and omissions from her own clients; and the purpose of providing herself cover for lies she told to the United States Magistrate. She does not contest that she lied to the United State Magistrate. She does not contest the determination that she fabricated her testimony in District Court that she did not receive notice that State Farm had moved to dismiss the remaining tort claims pursuant to the bifurcation stipulation and order. She does not contest the determination that she fabricated her testimony in District Court that State Farm attempted to use Paul Meismer’s fatal illness as leverage against her and her clients. She does not contest that she repeatedly and without foundation used slurs, baseless accusations of fraud and wrongdoing, accusations of sexism and gender bias by the District Court and opposing counsel, and name calling in her pleadings. 18 ¶36 The only issue on appeal, therefore, is whether the District Court abused its discretion by imposing the sanctions. Morin contends that the District Court’s monetary sanctions imposed against her are too severe when compared to the sanctions imposed in other reported cases. She does not specifically contest the non-monetary sanctions and, for example, has already taken and passed the MPRE test. She does not contest the District Court’s power to impose both attorney fees and a monetary fine and she does not raise any issue regarding her ability to pay. ¶37 Montana Rule of Civil Procedure 116 requires that when an attorney signs a pleading the attorney has read it and that to the best of the attorney’s knowledge formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for a change in existing law, and is not interposed for any improper purpose. Therefore, there are two grounds for imposing sanctions: the “frivolousness clause,” meant to cover pleadings not grounded in fact or law; and the “improper purpose clause,” meant to cover pleadings filed for an improper purpose. D’Agostino v. Swanson, 240 Mont. 435, 445, 784 P.2d 919, 925 (1990). ¶38 If a pleading is signed in violation of Rule 11 the district court “shall impose . . . an appropriate sanction.” Bulen, ¶ 21. The purpose of Rule 11 is to discourage dilatory or abusive tactics and to streamline the litigation process by lessening frivolous claims or defenses. Monetary sanctions should not be viewed simply as a fee-shifting device because the “more important goal is punishment for wasteful and abusive litigation 6 The District Court determined, and all parties agree, that the 2009 language of Rule 11 prior to the 2012 amendments applies to this case. 19 tactics in order to deter the use of such tactics in the future.” D’Agostino, 240 Mont. at 444-45, 784 P.2d at 925. The district court, having “tasted the flavor of the litigation,” is in the best position to evaluate the disputed conduct in the context of the case. D’Agostino, 240 Mont. at 444-45, 784 P.2d at 925. While a finding of subjective bad faith is not required in a Rule 11 analysis, such a finding is relevant when considering the nature and severity of the sanction. D’Agostino, 240 Mont. at 448, 784 P.2d at 927. ¶39 The present case should not be viewed as one in which an attorney has been substantially sanctioned only for name calling and baseless factual allegations. Morin’s filings were replete with name calling and baseless factual allegations and that conduct alone would have justified sanctions. As the District Court carefully explained, however, the important point of this case is that Morin used those tactics, in subjective bad faith, to provide herself cover--from her own clients--for her own professional acts and omissions. Further, she used those tactics, in subjective bad faith, to provide herself cover for the lies she told to the United States Magistrate--that she had filed pleadings contesting the dismissal of all of the claims in the State court action, when she in fact had not done so. ¶40 In addition, Morin’s actions were not just an exercise in hyperbole or excited overstatement. As the District Court found, Morin lied in sworn testimony when she claimed she did not receive notice of the dismissal of the tort claims in State court, and lied again when she contended that State Farm had tried to use the terminal illness of Paul Meismer to leverage concessions. As noted, Morin does not contest the District Court’s findings of fact on these points. 20 ¶41 The District Court painstakingly considered the Rule 11 implications of Morin’s assertions, allegations and tactics, issuing detailed written opinions covering over 150 pages. In the face of the facts, having “tasted the flavor” of the litigation, and having observed Morin’s deportment and testimony, the District Court was in the best position to determine the level of sanction that would both punish Morin for her conduct and deter her from similar conduct in the future. In that regard, the District Court specifically considered the minimum level of sanction that would do the job. The District Court found that in Morin’s specific case, no lesser level of sanction could achieve the goals of punishment and deterrence. The District Court concluded that Morin would willingly pay State Farm’s attorney fees as a price for continuing into the future with the conduct she demonstrated in this case. ¶42 Under these circumstances, we determine that the District Court did not abuse its discretion in imposing the level of sanctions imposed in this case. Morin’s argument that lesser sanctions have been imposed in other cases is unavailing. As noted, each case of Rule 11 sanctions must be based upon its own facts and circumstances, and that is exactly what the District Court did here. ¶43 The District Court did not abuse its discretion and its imposition of sanctions is affirmed. /S/ MIKE McGRATH We concur: /S/ BRIAN MORRIS /S/ LAURIE McKINNON /S/ PATRICIA COTTER /S/ BETH BAKER | June 4, 2013 |
a42270ea-0e3c-44cf-a223-4b9ecf6678c4 | Myrup v. State, Dep't of Revenue | 2013 MT 136 | DA 12-0601 | Montana | Montana Supreme Court | May 21 2013 | May 21, 2013 |
a87d2108-99b0-4892-9f6c-4c815b2db261 | Lear v. Jamrogowicz | 2013 MT 147 | DA 12-0523 | Montana | Montana Supreme Court | DA 12-0523 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 147 STACY LEAR, Petitioner and Appellee, v. CARRIE A. JAMROGOWICZ, Respondent and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-12-486 Honorable Karen Townsend, Presiding Judge COUNSEL OF RECORD: For Appellant: Quentin M. Rhoades, Alison Garab, Sullivan, Tabaracci & Rhoades, P.C., Missoula, Montana For Appellee: Joshua S. Van de Wetering, Van de Wetering & Baffa Law, Missoula, Montana Submitted on Briefs: April 3, 2013 Decided: June 4, 2013 Filed: __________________________________________ Clerk June 4 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Stacy Lear claims she was stalked by Carrie Jamrogowicz beginning in 2002. In February 2012, Lear sought and obtained a temporary order of protection against Jamrogowicz in a civil action. Subsequently, Lear obtained a “no contact” order against Jamrogowicz in a criminal action. Jamrogowicz moved to have the civil action dismissed with prejudice and Lear moved to have the civil action dismissed without prejudice. The District Court granted Lear’s motion and dismissed the civil action without prejudice. Jamrogowicz appeals. We affirm. ISSUE ¶2 A restatement of the issue is: ¶3 Did the District Court abuse its discretion in granting Lear’s motion to dismiss the civil action without prejudice? FACTUAL AND PROCEDURAL BACKGROUND ¶4 In 1998, Lear and several others were introduced to Jamrogowicz by a mutual friend through a social networking site used by several North Carolina State University (NCSU) alumni. Jamrogowicz subsequently moved to Cary, North Carolina, near the campus of NCSU. Lear never developed a personal relationship with Jamrogowicz. She never spent any one-on-one time with her nor did she engage in anything other than casual conversation on a few occasions. Lear later moved to Leesburg, Virginia. ¶5 Lear alleged that between 1999 and 2001, she witnessed Jamrogowicz stalk a woman by gaining access to her private electronic communications and copying her lifestyle, including her haircut, hair color, and wardrobe. She also purchased the same 3 kind of dog the woman owned, and joined the same organizations to which she belonged. Lear alleged that Jamrogowicz also publicly posted inappropriate and menacing comments about this other woman. After observing Jamrogowicz’s actions, Lear sent an electronic communication to Jamrogowicz advising her that Lear wished to have no further communication with her. Lear asserted she later heard from friends that Jamrogowicz subsequently stalked two other women in similar fashion. ¶6 Lear alleges that Jamrogowicz began stalking her in 2002 by, among other things, changing her hairstyle to match Lear’s, enrolling in the same university and taking the same classes, claiming to have the same health issues as Lear, and changing her major to match Lear’s. In February 2003, Lear began taking lessons in the use of firearms and subsequently joined a national competition shooting organization. In April 2004, Lear moved from Virginia to Missoula, Montana. ¶7 In September 2004, Jamrogowicz moved to Montana and began taking firearms instruction, joined the same competition shooting organization to which Lear belonged, and ultimately engaged Lear’s firearms’ instructor to teach her. In 2005, Lear tested for and was subsequently hired by the Missoula Police Department. Lear kept this information confidential but discovered that Jamrogowicz had posted to a public website that Lear was seeking a police officer position in Missoula. Also in 2005, Jamrogowicz applied for and received a Montana concealed weapons permit, and began attending the same shooting competitions as Lear. In 2010, Lear reported Jamrogowicz’s behavior to the police department. 4 ¶8 Through December 2011, Lear documented numerous other aspects of her life copied by Jamrogowicz. She purchased the same type of vehicle Lear owned, joined the same gym, bought the same firearms equipment and camera, claimed the same injury for which Lear was being treated, consulted the same doctor and physical therapist (who later reported that there was no sign that Jamrogowicz had an injury), and showed up near Lear’s residence and at her place of employment. During these years, Lear was frequently distressed, frightened and apprehensive; in addition, she missed work and sought counseling. ¶9 On February 3, 2012, Lear filed a petition for and obtained a temporary order of protection (TOP) from the Justice Court in Missoula against Jamrogowicz for stalking, claiming that Jamrogowicz had gained unauthorized access to Lear’s private electronic communications and used this information to copy certain aspects of Lear’s life. The TOP was to remain in full force until August 3, 2012. ¶10 In accordance with applicable statutes, a hearing was scheduled for February 22, 2012, to determine if the TOP should become a permanent order of protection. Section 40-15-202(1), MCA. Prior to the hearing, Jamrogowicz moved to vacate the scheduled hearing to allow her to conduct discovery, and agreed to the terms of the TOP until the rescheduled hearing was held. The Justice Court granted Jamrogowicz’s motion and issued a discovery scheduling order. Lear claims that during discovery in Justice Court, she provided approximately 500 pages of responses to interrogatories, requests for admissions and requests for production. She also asserts that she agreed on two occasions to sit for depositions scheduled by Jamrogowicz but that Jamrogowicz 5 cancelled both. On April 25, 2012, Jamrogowicz filed a Notice of Removal to District Court. A hearing was never held in Justice Court. ¶11 The Fourth Judicial District Court promptly conducted a status conference and subsequently issued an order allowing discovery through July 27, 2012. It scheduled a contested hearing on the matter for August 31, 2012. The court also entered an order stating the TOP would remain in full force and effect until further order by the court. ¶12 On June 11, 2012, Jamrogowicz served Lear with a notice of deposition setting Lear’s deposition for July 6, 2012. Lear did not attend the scheduled deposition. ¶13 On July 5, 2012, Jamrogowicz was charged with criminal stalking. On July 9, 2012, Jamrogowicz moved to dismiss the civil petition for the order of protection with prejudice claiming that Lear abused the discovery process by failing to attend her scheduled deposition. Jamrogowicz appeared on the criminal charge on July 17, 2012, and was ordered to have no contact with Lear. Due to scheduling conflicts, Lear subsequently did not appear at a second deposition scheduled for July 24, 2012. ¶14 On July 27, 2012, Lear moved to dismiss her TOP action without prejudice, stating that having achieved her desired goal of no contact through the criminal proceeding, she no longer needed the civil order of protection. She sought to dismiss the case in a manner that would later permit her to renew the action in the event she needed a future civil order of protection. In response, Jamrogowicz argued that the petition should be dismissed with prejudice as a discovery sanction because Lear failed to attend scheduled depositions. 6 ¶15 On August 15, 2012, the District Court entered a Memorandum and Order of Dismissal granting Lear’s motion to dismiss the petition without prejudice. It is from this Order that Jamrogowicz appeals. STANDARD OF REVIEW ¶16 The district court has broad discretion in ruling on a M. R. Civ. P. 41 motion to dismiss. The court’s decision will be overturned for an abuse of discretion only. Hauschulz v. Michael Law Firm, 2005 MT 189, ¶ 14, 328 Mont. 95, 117 P.3d 908. DISCUSSION ¶17 Did the District Court abuse its discretion in granting Lear’s motion to dismiss the civil action without prejudice? ¶18 The District Court analyzed Jamrogowicz’s motion to dismiss the TOP with prejudice in the context of M. R. Civ. P. 37, which allows for sanctions for abuse of discovery. Because the court concluded that sanctions were not warranted, it denied Jamrogowicz’s request that the TOP be dismissed with prejudice. ¶19 Turning to Lear’s motion to dismiss the TOP without prejudice, the District Court analyzed Rule 41 which authorizes voluntary dismissal by a plaintiff or, in this case, a petitioner. The court concluded that voluntary dismissal was “proper as it would be a waste of judicial resources to proceed in two separate courts on the issues in this case.” Considering the possibility that the criminal case could be resolved in a manner without the continued protections Lear was seeking, and the possibility that Lear would want the protections to remain in effect, the court concluded Lear “should be free to renew this 7 action without having to start over in the Justice Court.” As a result, the District Court held that dismissal without prejudice was proper. ¶20 As did the District Court, on appeal the parties address the propriety of discovery and sanctions under the rules of civil procedure. We conclude that their focus is misdirected. We turn our analysis instead to the content and purpose of our statutes addressing stalking and orders of protection. ¶21 Section 45-5-220(1)(a)-(b), MCA, defines stalking as purposely or knowingly causing another person substantial emotional distress or reasonable apprehension of bodily injury or death by repeatedly following, harassing, threatening, or intimidating the stalked person, in person, by mail or by electronic communication or device. The statute further provides that upon presentation of credible evidence that a person has violated this statute, the stalked person may obtain a restraining order under Title 40, chapter 15, MCA, against the alleged stalker. Section 45-5-220(4), MCA. ¶22 Section 40-15-101, MCA, makes clear that the purpose of Title 40, chapter 15, MCA, is “to promote the safety and protection of all victims of partner and family member assault, victims of sexual assault, and victims of stalking.” Section 40-15-201(1), MCA, allows a petitioner to seek a TOP if the petitioner is “in reasonable apprehension of bodily injury”; is a victim of stalking; and is in “danger of harm if the court does not issue a temporary order of protection immediately.” ¶23 Section 40-15-202(1), MCA, states that a hearing must be conducted within 20 days from the date the court issues a TOP. The purpose of the hearing is for the court to determine “whether good cause exists for the temporary order of protection to be 8 continued, amended, or made permanent.” The statute also provides that the hearing may be continued at the request of either party for good cause or by the court. In summary, the TOP statutes contemplate a temporary order, followed quickly by a hearing, and continuation of the order as a temporary, amended, or permanent order of protection. ¶24 Notably, the above-quoted statutes make no reference to discovery of any kind, much less the type of protracted discovery evidently allowed in this case. While we recognize that district courts have inherent discretionary power to control discovery in their courts, we have identified no cases, nor have the parties supplied any, indicating that courts have the discretion to allow discovery in matters where the sole issue is the grant or denial of a petition seeking a civil TOP. ¶25 The breadth of discovery the District Court allowed Jamrogowicz, including pursuit of personal information about Lear, was wholly antithetical to the purpose of a TOP. Among other things, Jamrogowicz sought confidential criminal justice information and protected individual privacy information contained in Lear’s employment file. Additionally, Jamrogowicz sought to have Lear attend a deposition despite the fact that the TOP precluded Jamrogowicz from being with 1,500 feet of Lear. ¶26 As the statutes taken together establish, the object of a TOP proceeding is the swift and efficient protection of one who is being harassed and intimidated by another. The statutory scheme contemplates that the petition will succeed if the petitioner establishes good cause for the entry of an order, and will fail if she does not. The provision of discovery rights to the respondent in this situation does nothing to protect a victim from harm; rather, it can exacerbate an already untenable situation. For these reasons, we 9 conclude that unless extraordinary circumstances justify it, courts should not compel a petitioner in a stalking matter to be subjected to discovery at the hands of the respondent. ¶27 Finally, we must determine whether the District Court abused its discretion when it dismissed Lear’s TOP proceeding without prejudice. We conclude it did not. A TOP is intended to protect victims from the danger of harm at the hands of an assaultive person or stalker. It is not uncommon, especially in cases of partner and family member assault, that the need for a TOP can arise, recede for a time, and then recur again later. Under such circumstances, it makes sense to dismiss a TOP without prejudice so that, if necessary, the victim may resurrect the action quickly and without being required to commence the claim anew. Further, as noted, we do not condone obligatory discovery in TOP matters involving stalking. We are therefore not inclined to agree with Jamrogowicz that Lear should be sanctioned with a dismissal of her TOP proceeding with prejudice for her failure to appear for a deposition. Because Jamrogowicz provides no other authority for her contention that a TOP action may not be dismissed without prejudice, she has failed to establish that the District Court abused its discretion. CONCLUSION ¶28 For the foregoing reasons, we affirm the District Court’s order granting Lear’s motion to dismiss her petition without prejudice. /S/ PATRICIA COTTER We Concur: /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ LAURIE McKINNON | June 4, 2013 |
eabd7ee9-e54d-403b-9a80-15d4454116be | In re S.C. | 2013 MT 140 | DA 12-0468 | Montana | Montana Supreme Court | DA 12-0468 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 140 IN THE MATTER OF: S.C., Respondent and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DI 06-111B Honorable Robert B Allison, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender, Kristen L. Larson, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General; Helena, Montana Ed Corrigan, Flathead County Attorney; Kalispell, Montana Submitted on Briefs: February 6, 2013 Decided: May 28, 2013 Filed: __________________________________________ Clerk May 28 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Appellant S.C. appeals from a determination in the Eleventh Judicial District Court, Flathead County to grant the State of Montana’s (State) petition to extend S.C.’s involuntary outpatient mental health treatment plan. S.C. alleges that the State failed to comply with the timeliness requirements necessary to extend the plan as provided in § 53-21-198, MCA. We reverse. ¶2 We address the following issue on appeal: ¶3 Whether the District Court properly granted the State’s third request to extend S.C.’s involuntary treatment plan? FACTS AND PROCEDURAL HISTORY ¶4 Local police officers brought S.C. to the Kalispell Regional Medical Center’s emergency room on September 20, 2011. S.C. appeared to be suffering from significant depression and disorganization of thought activity. Katie Henley (Henley), a psychiatric nurse practitioner for the Western Montana Mental Health Center, met with S.C. to observe S.C.’s behavior. Henley observed that S.C.’s mental condition had deteriorated from a point that Henley had determined to be S.C.’s “baseline.” The Kalispell Regional Medical Center transferred S.C. to the Pathways Treatment Center. ¶5 Dr. James Rougle (Dr. Rougle), a psychiatrist at the Pathways Treatment Center, evaluated S.C. Among other things, Dr. Rougle interviewed S.C.’s father (Father). Father reported that S.C. had become increasingly paranoid. Father reported that S.C. heard voices. Father increasingly feared S.C. Father felt unsafe with S.C. living at home. Dr. Rougle 3 diagnosed S.C. as bipolar. Dr. Rougle also determined that S.C was suffering from an episode of depression. Dr. Rougle concluded that S.C.’s depression was making it extremely difficult for S.C. to maintain his baseline mental state. ¶6 The District Court conducted a hearing on October 6, 2011. Dr. Rougle testified that S.C. was incapable of meeting his own needs. Dr. Rougle recommended that S.C. be committed to the Montana State Hospital (MSH) so that S.C. could receive proper medical care to allow him to return to his baseline. Dr. Rougle further testified that MSH provided the least restrictive environment where someone could look after S.C.’s daily needs. Father testified that he locked his bedroom door at night because he feared what S.C. might do. Father reiterated that he was unwilling to allow S.C. to return home until S.C.’s mental state improved. ¶7 The District Court determined that S.C. should be committed involuntarily to MSH. The court ordered that S.C.’s period of commitment was “not to exceed ninety days, unless extended as provided by law.” S.C.’s commitment was to expire on January 6, 2012. ¶8 The State conditionally released S.C. from MSH on December 9, 2011. The conditions of S.C.’s release included that he attend sessions three days a week at the Western Montana Mental Health Center in Kalispell. The State further required that S.C. continue to take his prescribed medication. ¶9 The State filed the first petition to extend S.C.’s conditional release on January 11, 2012. S.C.’s commitment period had expired five days earlier on January 6, 2012. S.C. did 4 not request a hearing or challenge the State’s petition. The District Court granted the petition to extend S.C.’s release conditions for a period of 90 days through April 6, 2012. ¶10 The State filed a second untimely petition to extend S.C.’s conditional release on March 29, 2012. Section 53-21-198(2), MCA, requires that any petition to extend must be filed “[n]ot less than 2 calendar weeks” before the expiration of a person’s detention or extension period. The State’s petition should have been filed no later than March 23, 2012. S.C. again did not request a hearing or challenge the State’s petition. The District Court granted the State’s petition to extend S.C.’s release conditions for 90 additional days through July 6, 2012. ¶11 The State filed a third untimely petition to extend S.C.’s conditional release on June 27, 2012. Section 53-21-198(2), MCA, required that the State file its motion to extend no later than June 22, 2012. This time S.C. requested a hearing to challenge the State’s petition. The Office of Public Defender represented S.C. at the July 6, 2012, hearing. S.C. argued that the State’s third petition to extend S.C.’s commitment period failed to comply with the timeliness requirements set forth in § 53-21-198, MCA. The District Court granted the State’s petition after the hearing. The court extended S.C.’s release conditions through October 6, 2012. S.C. appeals. DISCUSSION ¶12 Whether the District Court properly granted the State’s third request to extend S.C.’s involuntary treatment plan? 5 ¶13 The State concedes that it failed to comply with the time requirements provided in § 53-21-198, MCA. The State argues, however, that S.C. should be required to show that the State’s failure to comply with the time requirements caused prejudice to S.C. S.C. contends that the State’s failure to comply with the time requirements set forth in § 53-21-198, MCA, represents the lesser of the State’s omissions. S.C. argues that the State’s failure to file its first motion to extend S.C.’s conditional release until after the expiration of S.C.’s commitment period deprived the District Court of the authority to extend the conditions of S.C’s release. ¶14 Section 53-21-198(2), MCA, clearly sets forth that any petition to extend must be filed “[n]ot less than 2 calendar weeks” before the expiration of a person’s detention or extension period. We evaluated the mandates of the statute in In re Morlock, 261 Mont. 499, 862 P.2d 415 (1993). Morlock had been committed to the Montana Development Center (MDC). The district court granted an untimely petition to extend Morlock’s commitment after the expiration of Morlock’s original commitment period. Morlock filed a motion to dismiss the petition as untimely under § 53-20-128, MCA (1993). Neither party disputed that the recommitment petition had been filed untimely. Morlock, 261 Mont. at 500, 862 P.2d at 416. ¶15 The Court determined that Montana’s civil commitment laws are to be “strictly followed.” Morlock, 261 Mont. at 501, 862 P.2d at 416. The legislature provided that a petition for recommitment could be granted “only if renewal of the commitment order is requested at least 15 days before the expiration of the commitment order.” Morlock, 261 6 Mont. at 501, 862 P.2d at 416 [internal citations omitted]. The Court interpreted the time period attached to the filing requirement as “mandatory.” Morlock, 261 Mont. at 501, 862 P.2d at 416. The Court further provided that the State’s failure to comply with the time requirements left the District Court “without authority to recommit Morlock.” Morlock, 261 Mont. at 501, 862 P.2d at 416. ¶16 The State likens the “[n]ot less than 2 calendar weeks” requirement of § 53-21-198(2), MCA, to the numerous filing or notice deadlines of the type addressed in BNSF Ry. v. Cringle, 2010 MT 290, ¶ 13, 359 Mont. 20, 247 P.3d 706. We determined that “none of the judicially or statutorily created procedural deadlines deprive a district court of subject matter jurisdiction.” BNSF Ry., ¶ 17. This argument fails to address, however, the State’s failure to file its first petition to extend S.C. conditions of release until after S.C.’s period of commitment had expired. ¶17 The period for S.C.’s commitment expired on January 6, 2012. The State waited until January 11, 2012, to file its first petition to extend S.C.’s conditional release. The State argues that S.C. waived this defect due to his failure to object to the State’s first untimely petition. The expiration of S.C.’s commitment period ended the case. Nothing remained for S.C. to waive. The State remained free at that point to file a new petition for involuntary commitment. The expiration of S.C.’s commitment period, however, left the District Court with no proceeding over which it could exercise continuing jurisdiction. ¶18 Consequently, the District Court was “without authority” to extend the period of S.C.’s conditions of release when the State filed the second and third petitions. Morlock, 261 7 Mont. at 501, 862 P.2d at 416. The “[n]ot less than two calendar weeks” filing deadline could be construed in the nature of a categorical time bar that would be subject to forfeiture and waiver. The 90-day statutory commitment period could not. The expiration of the 90- day statutory commitment period leaves a court without power to take further action. See State v. Tison, 2003 MT 342, ¶ 15, 318 Mont. 465, 81 P.3d 471 (determining that expiration of the 90-day commitment period prescribed by § 46-14-221, MCA, left the district court without authority to take further action). ¶19 The District Court’s lack of authority to extend the period of S.C.’s conditions of release applies, in turn, to the State’s second petition of March 29, 2012, and the State’s third petition of June 27, 2012. As a result, we must vacate the District Court’s orders of April 4, 2012, and July 6, 2012, that granted the State’s second and third petitions. We emphasize that the State remains free to file a new petition to seek S.C.’s involuntary commitment. Any attempts by the State to extend or modify a future voluntary commitment must be filed within the time periods set forth in § 53-21-198, MCA. ¶20 Reversed. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ LAURIE McKINNON | May 28, 2013 |
7906f65e-5c07-4ef8-9c28-2dfd04a07099 | State v. Matheson | 2013 MT 135N | DA 12-0727 | Montana | Montana Supreme Court | DA 12-0727 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 135N STATE OF MONTANA, Plaintiff and Appellee, v. RICHARD LEE MATHESON, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 2011-348 Honorable Ingrid G. Gustafson, Presiding Judge COUNSEL OF RECORD: For Appellant: Brad L. Arndorfer, Arndorfer Law Firm, P.C., Billings, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Scott Twito, Yellowstone County Attorney, Robert S. Spoja, Deputy County Attorney, Billings, Montana Submitted on Briefs: April 24, 2013 Decided: May 15, 2013 Filed: __________________________________________ Clerk May 15 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 Richard Lee Matheson (Matheson) appeals from an order of the District Court for Thirteenth Judicial District, Yellowstone County, that denied his motion to strike a 1991 Alaska conviction that constituted a predicate offense for purposes of enhancement of his DUI to a felony DUI charge pursuant to § 61-8-731, MCA. We affirm. ¶3 The State of Montana (State) charged Matheson with felony DUI based on Matheson’s 1991 Alaska conviction and two previous DUI convictions in Montana in 2001 and 2005. Matheson moved to strike the Alaska conviction on the ground that it should be deemed a “BAC” or “per se” DUI conviction, and, therefore, should have been expunged pursuant § 61-8-722 (1993), MCA. ¶4 The State provided documentation of the DUI ordinance from Anchorage, Alaska in effect at the time of Matheson’s conviction, the charges filed against him by the state of Alaska, and the judgment entered by the court in Alaska. The District Court denied Matheson’s motion on the basis that Matheson had failed to carry his burden to present “affirmative” evidence and that the “ambiguous record” proved insufficient to establish grounds to expunge the Alaska DUI conviction. Matheson entered a guilty plea to felony DUI that preserved for appeal his challenge to the District Court’s denial of his motion. 3 ¶5 Matheson argues that the Alaska law in effect at the time of his conviction did not distinguish between a charge for driving under the influence and a charge for driving with an excessive BAC. Matheson’s entry of a nolo contendre plea relieved the Alaska court from having to make finding as to whether Matheson had been under the influence or simply had a BAC above 0.10. He contends that the Court should apply the rule of lenity as the circumstances do not allow him to establish the basis for his conviction. As a result, Matheson argues that we should interpret § 61-8-722 (1993), MCA, as having expunged his 1991 Alaska conviction. The State counters that Matheson failed to meet his burden to present affirmative evidence that his 1991 Alaska conviction should be considered a BAC conviction. ¶6 We review criminal sentences for legality. State v. Weldele, 2003 MT 117, ¶ 34, 315 Mont. 452, 69 P.3d 1162. Whether a prior conviction will be used for sentence enhancement presents a question of law. We review questions of law de novo. State v. Hass, 2011 MT 296, ¶ 13, 363 Mont. 8, 265 P.3d 1221. 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 clear in the face of the briefs and the record before us that the District Court correctly interpreted Montana law, as set forth in State v. Maine, 2011 MT 90, ¶ 34, 360 Mont. 182, 255 P.3d 64, when it determined that Matheson had failed to present affirmative evidence that his 1991 Alaska conviction should have been expunged pursuant to § 61-8-722 (1993), MCA, and, therefore, not properly considered as a prior conviction used to enhance his current DUI charge to a felony. 4 ¶7 Affirmed. /S/ BRIAN MORRIS We Concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JIM RICE | May 15, 2013 |
a804bd92-22e3-451d-a6da-7ae9a57acc5f | Halpin v. Michaels | 2013 MT 163N | DA 12-0538 | Montana | Montana Supreme Court | DA 12-0538 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 163N IN RE THE PARENTING OF J.J.H., Minor Child, MICHAELRYAN K. HALPIN, Petitioner and Appellee, v. LE'DAWN M. MICHAELS, Respondent and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DR 07-0442 Honorable Gregory R. Todd, Presiding Judge COUNSEL OF RECORD: For Appellant: J. David Arthur, Attorney at Law; Billings, Montana For Appellee: Fred Snodgrass; Snodgrass, Copenhaver, & Yasenak, PLLC; Billings, Montana Submitted on Briefs: May 1, 2013 Decided: June 18, 2013 Filed: __________________________________________ Clerk June 18 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by noncitable opinion and does not serve 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 Appellant Le’Dawn Michels1 appeals the District Court’s August 16, 2012 Order Amending Parenting Plan. She raises two issues: first, that the District Court sua sponte changed the minor child’s custody without a request from either parent; and second, that the court abused its discretion by failing to make any determinations regarding the best interest of the child as required by § 40-4-219, MCA. We affirm. ¶3 Appellant (Mother) and Appellee Michaelryan Halpin (Father) are the parents of one child, J.H., who was born in December 2006. A parenting plan was established for J.H. in September 2007, following a hearing at which Mother did not appear. The final parenting plan designated Father as the primary residential custodian, with Mother to have weekly overnight visitations and alternating weekends. Once the child reached kindergarten age, he was to continue to reside primarily with Father, with Mother to have alternating weekends. Mother moved to vacate the order adopting the parenting plan because she had not received notice of the hearing. Thereafter, the parties reached a stipulated final parenting plan, which was filed on January 18, 2008, but not signed as an 1 The spelling of the Appellant’s name has been changed to accord with the District Court records, including her testimony and sworn affidavit. 3 order of the court. The stipulated plan provided that J.H. would reside primarily with Father at his residence and Mother would have overnight parenting time on Tuesdays and Thursdays, alternating weekends, and on weekdays during the day while Father was at work. The stipulated parenting plan also provided that J.H. would be enrolled at the same school as his older brother D.H., who is not Halpin’s child. ¶4 On July 16, 2012, Father filed a motion to amend the parenting plan. The proposed plan he submitted to the court and served on Mother called for J.H. to reside with Father except on alternating weekends and on Tuesday and Thursday nights, when Mother would have J.H. overnight until 7:30 the following morning when she dropped him off at Father’s for school. In his supporting affidavit, Father requested that the schooling option be changed so that J.H. would attend school near Father’s home, his primary residence, since the older brother had been moved to a school several miles from the residence of either parent. Father also requested that the parenting plan be altered to make each parent responsible for child care requirements during that parent’s periods of custody as the parties had had difficulties facilitating arrangements for J.H. when both parents work. ¶5 The District Court set the matter for hearing on August 10, 2012. Mother filed objections to Father’s proposed amended parenting plan and a motion to continue the hearing, which was denied so that the matter could be decided prior to the start of the school year. Both parties filed additional materials and, after Mother’s second request, the hearing was continued until August 14, 2012. The parties both appeared at that time, 4 Mother with counsel and Father pro se, and the court heard testimony from each, along with Terry Halpin, Father’s mother. Mother testified that her work schedule recently had changed, and she worked 9 a.m. to 6 p.m. daily, with Sundays and one other day each week off, the schedule being set the week before. The court heard considerable testimony from both parties concerning their views of the school situation and each parent’s reasons for wanting J.H. to attend a particular school. ¶6 At the conclusion of the hearing, the District Court issued its ruling from the bench, followed two days later by its written Order Amending Parenting Plan. The court determined that it was in J.H.’s best interests to attend school near his primary residence and that attending Sandstone Elementary—the school preferred by Father—would require less travel, whereas attending Orchard Elementary—the school preferred by Mother—would require the child to be up earlier every day, in the car traveling, and attending school away from friends in his neighborhood. The court found no credible evidence that Sandstone could not provide at least as good an education for J.H. as Orchard, and found Mother’s testimony to the court “less than candid.” Mother appeals. ¶7 We review for clear error the findings of fact underlying a district court’s decision to modify a parenting plan. In re Klatt, 2013 MT 17, ¶ 12, 368 Mont. 290, 294 P.3d 391. 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. In re Marriage of Frick, 2011 MT 41, ¶ 17, 359 Mont. 296, 249 P.3d 67. “[T]he trial court’s decision is to be accorded great deference 5 because it ‘is in a better position than this Court to resolve child custody issues.’” In re Klatt, ¶ 13 (quoting In re Marriage of Wilson, 2009 MT 203, ¶ 15, 351 Mont. 204, 210 P.3d 170). ¶8 Mother contends that the testimony at the hearing focused exclusively on the issue of where the minor child would attend school and that, with no argument about changing the parenting schedule or what was in the child’s best interests, the court violated her due process rights by making changes in custody that neither party requested. She further argues that the court abused its discretion by failing to make findings required by §§ 40- 4-212 and 40-4-219, MCA, concerning the child’s best interests. The record demonstrates, however, that the District Court did not change J.H.’s primary residential parent; Father was designated the parent with whom the child primarily would reside both in the September 2007 parenting plan and in the January 2008 stipulated parenting plan. ¶9 Father’s request for an amendment of the parenting plan sought a change in the daytime childcare arrangements and an order that the school-year residential schedule provide that the child reside primarily with Father and that the child spend every other weekend and two nights a week with Mother. Father also represented that he was open to working out other visitation with Mother to accommodate her work schedule. At the hearing, Mother’s counsel expressly acknowledged, in response to the court’s question, that where J.H. would attend school was “not the only issue” before the court. Mother had notice of the proposed amendment and an opportunity to advocate her position to the 6 court. The court rejected her counsel’s request for additional time to develop an alternative proposed parenting plan because of its concern that action needed to be taken quickly so the child’s kindergarten enrollment would not be delayed. This was not an abuse of the court’s discretion. Although the court’s final order did not adopt Father’s proposed parenting plan verbatim, if its findings are not clearly erroneous, “we will reverse the district court’s decision only where an abuse of discretion is clearly demonstrated.” In re Klatt, ¶ 12 (quoting Jacobsen v. Thomas, 2006 MT 212, ¶ 13, 333 Mont. 323, 142 P.3d 859). The District Court did not abuse its discretion by declining to adopt a proposal that would have the child shuffling between the parents’ homes twice a week during the school year. The court did not disturb Father’s proposed schedule as it applied to the summer months. ¶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. The District Court’s findings of fact are supported by substantial evidence and its August 16, 2012 order is affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ JIM RICE | June 18, 2013 |
ee95b582-1242-45c2-bb07-00586bb979d3 | Minks v. Gerttula | 2013 MT 151N | DA 12-0682 | Montana | Montana Supreme Court | DA 12-0682 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 151N IVAN G. MINKS JR., Petitioner and Appellant, v. GORDON R. GERTTULA, Respondent and Appellee. APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Big Horn, Cause No. DV 12-22 Honorable Blair Jones, Presiding Judge COUNSEL OF RECORD: For Appellant: Ivan G. Minks, Jr, self-represented; Billings, Montana For Appellee: Gordon R. Gerttula, self-represented; Billings, Montana Submitted on Briefs: May 1, 2013 Decided: June 4, 2013 Filed: __________________________________________ Clerk June 4 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 Ivan Minks appeals the judgment of the Twenty-Second Judicial District Court awarding Gordon Gerttula $8,400 in damages for Minks’s breach of the parties’ lease agreement and ordering Minks to vacate the premises within ten days. Minks argues that the District Court erred by failing to consider his claim that the lease, which included an option to purchase real property, was induced by fraud and therefore void and unenforceable. We affirm. ¶3 Minks signed an agreement on November 5, 2011, to lease from Gerttula his residential property and its accompanying eighteen acres near Pryor, Montana. Minks was relocating to Billings to take a new job and needed a place where he and his wife could have their livestock. The lease was for a one-year period and provided that Minks would pay $1,200 per month rent with an option to purchase the property for $289,000. The option was to be exercised during the lease period, upon which Minks and Gerttula would enter into a buy-sell agreement. Disputes arose between the parties, culminating in Gerttula’s March 3 and April 21, 2012 notices to vacate the premises due to non- payment of rent. 3 ¶4 Self-represented, Minks filed a “Petition for Relief” in the District Court on April 26, 2012, requesting the court to declare the lease option contract void and to order restitution for damages alleged to have been incurred due to Minks’s expenses in moving costs, utility fees, livestock transport costs, and other related expenses. Minks alleged in his Petition that Gerttula failed to disclose his arrearages in payments on the property and that three months after the lease was signed, Wells Fargo posted a notice of Trustee’s Sale. Minks claimed that Gerttula’s non-disclosure amounted to fraud and that he never would have signed the lease option agreement had he known about the delinquency and impending foreclosure. Minks also alleged that the septic system was failing and that Gerttula failed to make necessary repairs in order to have the property appraised so that Minks could proceed with the purchase option. The Petition alleged unconscionability in the rental agreement (§ 70-24-404, MCA) and other violations of the Montana Residential Landlord Tenant Act, actual fraud in inducing Minks to enter the contract (§ 28-2-405, MCA), and violation of the Montana Consumer Protection Act (§§ 30-14- 102(8) and -103, MCA). Minks sought treble damages pursuant to § 30-14-133, MCA. ¶5 Gerttula, also appearing without counsel, filed a response to the Petition. Gerttula acknowledged the lease option agreement, but denied that he was in default in his payments on the property at the time the lease was signed. Gerttula alleged that the property had sustained extensive flood damage during the spring of 2011, resulting in over $20,000 in expenses, as a result of which he was forced to seek a loan modification to prevent the property from being foreclosed. Gerttula also claimed that septic repairs 4 had been completed and that nothing in the lease option agreement allowed Minks to stop paying rent while exercising his purchase option. Gerttula claimed that the notice to vacate was sent because Minks had been living on the property without paying rent since February 2012 and had indicated he would not be buying the property at the agreed purchase price. Gerttula asked the District Court to remove Minks from the property and to order him to pay rents due, along with Gerttula’s damages and “attorney and court fees.” ¶6 Following an unsuccessful “binding mediation” ordered by the District Court, the court held a hearing on September 18, 2012, and received testimony from both parties. At the conclusion of the hearing, the court ruled in favor of Gerttula and ordered Minks to vacate the premises by five o’clock p.m. on September 28, 2012. The court further ordered that Minks was responsible for seven months’ rent, in the total amount of $8,400. On October 17, 2012, the District Court entered written Findings of Fact, Conclusions of Law and an Order confirming its bench rulings. The court found that Minks failed to exercise the option to purchase partly because the property would not appraise for the designated option price, attaching to its written findings an e-mail from Minks advising Gerttula of the significantly lower estimate of value he had obtained for the property. The District Court concluded that the terms of the lease unambiguously required Minks to pay rent and provided for a specific option to purchase, which Minks had not exercised. Accordingly, it entered judgment in Gerttula’s favor in accordance with its oral rulings. 5 ¶7 We review a trial court’s findings of fact for clear error and the court’s conclusions of law for correctness. Total Indus. Plant Servs. v. Turner Indus. Group, LLC, 2013 MT 5, ¶ 22, 368 Mont. 189, 294 P.3d 363 (citing M. R. Civ. P. 52(a) and Lewistown Miller Constr. Co. v. Martin, 2011 MT 325, ¶¶ 15, 17, 363 Mont. 208, 271 P.3d 48). ¶8 Minks alleges the District Court committed an error of law when it failed to recognize that a contract induced by fraud is void. Montana law is clear that the element of consent essential to the existence of a contract “is not real or free” when obtained through fraud. Section 28-2-401(1)(c), MCA. A consent that is not free is not absolutely void, but may be rescinded in the manner provided by law. Section 28-2-302, MCA. We have held that, as a general rule, fraud will vitiate a contract. Bails v. Gar, 171 Mont. 342, 347, 558 P.2d 458, 461 (1976). ¶9 Minks correctly points out that the District Court’s written findings do not address his claim of fraud. In reviewing a court’s findings of fact, however, we apply the doctrine of implied findings, under which, “where ‘findings [of fact] are general in terms, any findings not specifically made, but necessary to the [determination], are deemed to have been implied, if supported by the evidence.’” In re Transfer of Location for Mont. All-Alcoholic Bevs. Resort, 2008 MT 165, ¶ 29, 343 Mont. 331, 184 P.3d 324 (quoting Caplis v. Caplis, 2004 MT 145, ¶ 32, 321 Mont. 450, 91 P.3d 1282, and State v. Wooster, 2001 MT 4, ¶ 18, 304 Mont. 56, 16 P.3d 409). At the hearing, the District Court expressly indicated it understood Minks’s position that he was fraudulently induced into 6 signing the contract and questioned him about his non-payment of rent and his determination of whether to exercise the option. Also questioned by the court, Gerttula testified that when he signed the lease with Minks he was not in default on his payments to the bank, but that the bank had allowed deferral of payments because of flood damage to his property. He further testified that the sales prices to which Minks agreed in the lease option would have been sufficient to satisfy his loan to the bank. Gerttula testified that he had been unable to complete his loan modification with the bank because Minks was still on the property. ¶10 Necessary to the District Court’s determination that Minks was liable for rent was its implicit rejection of his claim that the contract had been procured by fraud. Given Gerttula’s testimony, there is sufficient evidence in the record to support a finding that Gerttula did not engage in actual fraud, within the meaning of Montana contract law, at the time the lease was signed. Section 28-2-405, MCA. Review of a trial court’s factual determinations for clear error calls for considerable deference. “[W]e will reverse a district court if its findings of fact are not based on substantial evidence, if the district court has misapprehended the effect of the evidence, or if our review of the record leaves us with ‘the definite and firm conviction that a mistake has been committed.’” In re Szafryk, 2010 MT 90, ¶ 18, 356 Mont. 141, 232 P.3d 361. Reversal of a discretionary ruling requires that the district court acted “arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial 7 injustice.” Albrecht v. Albrecht, 2002 MT 227, ¶ 7, 311 Mont. 412, 56 P.3d 339 (quoting In re Marriage of Kovarik, 1998 MT 33, ¶ 21, 287 Mont. 350, 954 P.2d 1147). ¶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. The District Court’s express and implied findings of fact are supported by substantial evidence, we are not left with a firm conviction that it made a mistake, and the court did not commit an error of law. Its Order entered October 17, 2012, is affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ JIM RICE /S/ LAURIE McKINNON | June 4, 2013 |
17102b05-fa17-4755-8686-7d92635a3e96 | 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— 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. See e.g. Shannon M. Carey, Juliette R. Mackin, & Michael W. Finigan, What Works? The Ten Key Components of Drug Court: Research-Based Best Practices, 8 Drug Ct. Rev. 6 (Natl. Drug Ct. Inst. 2012). 13 namely, § 46-18-201(4)(o), MCA (2009), and § 46-18-202(1)(g), MCA (2011). Due to 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 Bullplume is precluded from raising it based upon his failure to object to the condition at sentencing. 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 |
21ef611a-f0cb-419a-b22c-cf0190a5356e | Newman v. Scottsdale Ins. Co. | 2013 MT 125 | DA 12-0200 | Montana | Montana Supreme Court | DA 12-0200 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 125 JUDITH NEWMAN, as Personal Representative of the Estate of Karlye Newman, Plaintiff and Appellee, v. SCOTTSDALE INSURANCE COMPANY, and NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Defendants and Appellants. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DV 10-280 Honorable Deborah Kim Christopher, Presiding Judge COUNSEL OF RECORD: For Appellant Scottsdale Insurance Company: Bradley J. Luck, Garlington, Lohn & Robinson, PLLP, Missoula, Montana Linda Wendell Hsu, Selman Breitman, LLP, San Francisco, California For Appellant National Union Fire Insurance Company of Pittsburgh, PA: Robert J. Phillips, Amy O. Duerk, Phillips Haffey PC, Missoula, Montana For Appellee: James A. Manley, Ann L. Moderie, Manley Law Firm, Polson, Montana Lawrence A. Anderson, Attorney at Law, Great Falls, Montana Elizabeth A. Best, Best Law Offices, Great Falls, Montana Thomas J. Beers, Beers Law Offices, Missoula, Montana May 7 2013 2 Submitted on Briefs: December 12, 2012 Decided: May 7, 2013 Filed: __________________________________________ Clerk 3 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 This matter arises from a related case involving the suicide of a 16-year-old girl, Karlye Newman, who was residing at the Spring Creek Lodge Academy in Thompson Falls, Montana, at the time of her death in October 2004. Spring Creek Lodge Academy was one of many “tough love” academic facilities associated with the World Wide Association of Specialty Programs and Schools, Inc. (WWASP). Following Karlye’s death, Karlye’s mother, Judith Newman, brought an action against the owner of the school Robert Lichfield, its on-site directors Cameron and Chaffin Pullan, Teen Help, and various related entities alleging, among other things, wrongful death, negligence, breach of contract, deceit, and constructive fraud. A court-ordered settlement mediation was conducted in February 2010 at which time Defendant Teen Help agreed to settle with Newman by assigning to her its rights to $3 million in insurance coverage. The settlement was later reduced to a judgment. ¶2 Claims against the majority of the remaining defendants were also settled before trial. A jury subsequently ruled in favor of Defendants Lichfield and Premier Educational Systems, LLC (f/k/a WWASP) and Newman appealed. We affirmed in part, reversed in part and remanded for a new trial. Newman v. Lichfield, 2012 MT 47, 364 Mont. 243, 272 P.3d 625 (Newman I— wrongful death action). ¶3 In August 2010, after settling with Teen Help and while Newman I proceeded to trial, Newman filed this action (Newman II—declaratory judgment/breach of contract action) against Teen Help’s insurers, Scottsdale Insurance Company and National Union Fire Insurance Company, to collect on the settlement and judgment. She argued the 4 insurers breached their obligation to defend and indemnify Teen Help in Newman I. After nearly eighteen months of litigation, the Twentieth Judicial District Court entered summary judgment, determining that the insurers wrongfully refused to defend Teen Help and thus breached their contracts with their insured. As a result, the court held that Scottsdale and National Union were severally liable for the underlying judgment of $3,000,000. The court also awarded attorney’s fees of $1,188,399.45, and interest on the underlying judgment totaling $568,767.12. Scottsdale and National Union appeal. We affirm in part and reverse and remand in part. ISSUES ¶4 A restatement of Scottsdale and National Union’s issues on appeal is: ¶5 Did the District Court err in considering inadmissible evidence and facts beyond the allegations set forth in the Newman I Third Amended Complaint, and resolving disputed issues of fact? ¶6 Did the District Court err in finding a duty to defend under the insurance policies but not applying the policy exclusions? ¶7 Did the District Court err in calculating and awarding attorney’s fees to Newman? ¶8 Did the District Court err in finding that Montana law controls? ¶9 For purposes of analysis, we consider the first and second issues together. FACTUAL AND PROCEDURAL BACKGROUND ¶10 The facts and procedural history pertaining to the underlying wrongful death action are set forth in Newman I and will not be repeated here. As noted above, following settlement of the wrongful death claim with Teen Help, Newman brought this 5 breach of contract and declaratory action in August 2010 against Teen Help’s insurers, Scottsdale Insurance and National Union Fire Insurance. Scottsdale provided a commercial general liability (CGL) policy to Teen Help while National Union offered an excess, or umbrella, policy. Both policies obligated the insurers to defend and indemnify Teen Help against covered actions and contained combined policy limits of $3,000,000. Newman maintained that both insurers unjustifiably refused to defend and indemnify Teen Help in Newman I, and refused to pay the settlement that Teen Help negotiated with Newman. ¶11 Scottsdale moved to dismiss Newman’s Complaint arguing that its policy excluded coverage for the claim against Teen Help. It based its assertion upon two exclusions contained in the CGL policy: (1) a “designated professional services” exclusion and (2) a “designated operations” exclusion. The “professional services” exclusion stated: With respect to any professional services shown in the Schedule, this insurance does not apply to “bodily injury,” “property damage,” “personal injury” or “advertising injury” due to the rendering or failure to render any professional service. The “Schedule” section of the policy described “professional services” as “any and all professional exposures.” ¶12 The “designated operations” exclusion stated: This insurance does not apply to any medical incident, “damages,” “bodily injury,” “property damage,” or “personal and advertising injury” arising out of the operations shown in the schedule above. 6 The referenced “schedule above” described “excluded operations” as “all professional other than premises liability at scheduled locations.” While the policy listed Teen Help’s call center office in St. George, Utah, as the insured, there were no “scheduled locations” identified in the designated operations exclusion. The policy provided a definition for “coverage territory,” however. Coverage territory was defined in part as “the United States of America (including its territories and possessions), Puerto Rico and Canada.” ¶13 Scottsdale maintained that Newman’s claim against Teen Help arose from actions that constituted “professional services.” Scottsdale claimed that Newman’s complaint alleging negligence and wrongdoing on the part of Teen Help constituted a challenge to the professional recommendation and placement services provided by Teen Help, and that such claims were excluded under the policy. Additionally, as the Complaint alleged Teen Help was jointly liable for the negligence and intentional acts of the other defendants, Scottsdale maintained that the actions of the other defendants were also “professional services” that were excluded from coverage by the “professional services” exclusion. ¶14 Applying the “designated” or “excluded operations” clause, Scottsdale further argued that because Karlye’s death occurred at Spring Creek Academy in Montana, rather than the St. George, Utah, location, coverage was excluded and Scottsdale had no duty to defend Teen Help. Accordingly, Scottsdale asserted that because there was no coverage available to Teen Help as assignor, there was likewise no coverage available to Newman as assignee; therefore, the action should be dismissed. 7 ¶15 National Union also filed a motion to dismiss with a brief on February 7, 2011, asserting that Newman had not alleged, nor could she allege, that the loss constituted an “occurrence” as defined by the policy. The insurer argued that Karlye’s death was not an “accident,” as suicide was a purposeful act for which the National Union policy did not provide coverage. National Union also claimed a “professional liability” exception to the policy. In addition, National Union asserted that, as an excess policy, it owed no duty to defend or indemnify until after Scottsdale’s policy was exhausted. ¶16 National Union’s policy provided, in relevant part, the following definitions, terms and conditions: II. Defense A. We shall have the right and duty to defend any claim or suit seeking damages covered by the terms and conditions of this policy when: 1. The applicable Limits of Insurance of the underlying policies listed in the Schedule of Underlying Insurance and the Limits of Insurance of any other underlying insurance providing coverage to the Insured have been exhausted by payment of claims to which this policy applies; or 2. Damages are sought for Bodily Injury . . . covered by this policy but not covered by any underlying insurance listed in the Schedule of Underlying Insurance or any other underlying insurance providing coverage to the Insured. . . . IV. Definitions C. Bodily Injury means bodily injury, sickness, disability or disease. Bodily Injury shall also mean mental injury, mental 8 anguish, humiliation, shock or death if directly resulting from bodily injury, sickness, disability or disease. . . . H. Occurrence means: 1. As respects Bodily Injury . . . an accident, including continuous or repeated exposure to conditions, which result in Bodily Injury . . . neither expected nor intended from the standpoint of the Insured. All such exposure to substantially the same general conditions shall be considered as arising out of one Occurrence . . . . . . . V. Exclusions O. Bodily Injury . . . expected or intended from the standpoint of the Insured. . . . PROFESSIONAL LIABILITY EXCLUSION This insurance does not apply to Bodily Injury . . . arising out of any act, error, omission, malpractice or mistake of a professional nature committed by the Insured or any person for whom the Insured is legally responsible. ¶17 While not raised by National Union in its Motion to Dismiss, National Union subsequently argued that the notice provisions of its policy had not been satisfied. Those provisions provided: VI. Conditions F. Duties in The Event Of An Occurrence, Claim Or Suit: 2. If a claim is made or suit is brought against any Insured that is reasonably likely to involve this Policy you must notify us in writing as soon as practicable. 9 H. Legal Actions Against Us There will be no right of action against us under this insurance unless: 1. You have complied with all the terms of this policy; and 2. The amount you owe has been determined with our consent or by actual trial and final judgment. This insurance does not give anyone the right to add us as a defendant in an action against you to determine your liability. ¶18 In addition to responding to the insurers’ motions to dismiss, Newman filed motions for summary judgment against both insurers, disputing the arguments set forth in their motions. She claimed, among other things, that the obligation to defend imposed upon an insurer exists if the complaint alleges facts which, if proven, would present a risk covered by the policy. She submitted that her complaints set forth adequate allegations, facts and claims to trigger coverage. Newman also argued that neither policy contained necessary definitions of such terms as “accident,” “professional,” “premises liability,” “arising out of,” and “operations”; therefore, the claimed exclusions were ambiguous and must be construed against the insurers. She requested that the court determine she was entitled to payment of the Teen Help settlement and judgment, interest on the Newman I judgment, and litigation costs for both Newman I and Newman II. In response to Newman’s motion for summary judgment, National Union submitted a brief on March 28, 2011, arguing for the first time that Teen Help had never notified it of the pendency of the Newman I claims so as to enable it to tender a defense in that action. 10 ¶19 In October 2011, the District Court denied the insurers’ motions to dismiss and granted Newman’s motions for summary judgment and declaratory judgment. Following a hearing requested by Newman, the court ordered Scottsdale and National Union to pay Newman the $3,000,000 in combined policy coverage, an additional $1,188,399.45 in attorney’s fees, and interest in the amount of $568,767.12. The order also stated that legal interest would accrue at 10% per annum from judgment day on the $3,000,000 and the attorney’s fees. Scottsdale and National Union each filed a timely appeal. STANDARD OF REVIEW ¶20 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 did the district court. 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); Labair v. Carey, 2012 MT 312, ¶ 15, 367 Mont. 453, 291 P.3d 1160. ¶21 We review for correctness a district court’s interpretation of law pertaining to a declaratory judgment ruling. Billings Gazette v. City of Billings, 2011 MT 293, ¶ 9, 362 Mont. 522, 267 P.3d 11. ¶22 The interpretation of an insurance contract is a question of law. We review a district court’s conclusions of law de novo to determine whether they are correct. Cusenbary v. United States Fid. & Guar. Co., 2001 MT 261, ¶ 9, 307 Mont. 238, 37 P.3d 67 (citing Babcock v. Farmers Ins. Exch., 2000 MT 114, 299 Mont. 407, 999 P.2d 347). 11 ¶23 We review the district court’s decision to grant or deny attorney’s 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 resulting in substantial injustice.” Slack v. Landmark Co., 2011 MT 292, ¶ 15, 362 Mont. 514, 267 P.3d 6. ¶24 We review de novo issues of law, including a trial court’s decisions on directed verdict, choice of law, and collateral source offset. Tucker v. Farmers Ins. Exch., 2009 MT 247, ¶ 23, 351 Mont. 448, 215 P.3d 1. DISCUSSION ¶25 Did the District Court err in considering inadmissible evidence and facts beyond the allegations set forth in the Newman I Third Amended Complaint, and resolving disputed issues of fact? ¶26 Did the District Court err in finding a duty to defend under the insurance policies but not applying the policy exclusions? ¶27 As noted above, the District Court concluded that Scottsdale and National Union each had a contractual duty to defend Teen Help in Newman I and that they breached that duty. It therefore granted Newman’s motions for summary judgment as to liability of the insurers. We address the contentions of each insurer in turn. A. Scottsdale Insurance Company ¶28 Teen Help timely demanded a defense and indemnification from Scottsdale. Scottsdale rejected Newman’s demand, but denies it breached its duty to Teen Help. It argued that it was required to determine whether it had a duty to defend Teen Help by evaluating the information available to it at the time the request to defend was presented. At the time the coverage determination was made, the only pleadings in Newman I were 12 the complaints, including the Third Amended Complaint, and related exhibits. Based exclusively upon the information contained in the Third Amended Complaint, Scottsdale concluded that the exclusions within its policy applied to Newman’s claim and, as such, it had no duty to defend. Scottsdale claims on appeal that the District Court should have considered only the contents of the Third Amended Complaint and exhibits in determining the correctness of Scottsdale’s conclusion. It asserts that the court erred by considering inadmissible evidence presented with Newman’s motion for summary judgment, such as a Lichfield deposition transcript, the Teen Help telephone sales script and a settlement agreement. ¶29 Newman responds that an insurer has a duty to defend its insured unless there is an “unequivocal demonstration” that the claim does not fall within the insurance policy’s coverage. She maintains that because policy exclusions are to be narrowly and strictly interpreted, Scottsdale should have filed a declaratory judgment action to resolve the issue of coverage rather than refusing to defend. Newman asserts that the exclusion language contained in Scottsdale’s policy is “ambiguous, repetitive and circular” and contains terms subject to multiple interpretations because the policy does not provide the definitions upon which Scottsdale seeks to rely. ¶30 It is well-established that “where [an] insurer refuses to defend a claim and does so unjustifiably, that insurer becomes liable for defense costs and judgments.” Farmers Union Mut. Ins. Co. v. Staples, 2004 MT 108, ¶ 27, 321 Mont. 99, 90 P.3d 381. In Staples, Kenneth Huntsinger, while driving near Havre, Montana, struck a horse named Frenchy. Huntsinger was injured and his car was damaged. Staples, ¶¶ 6, 9. As Frenchy 13 bore Matt Corcoran’s brand, Huntsinger filed a complaint against Corcoran. Staples, ¶ 7. Corcoran was insured by Farmer’s Union Mutual Insurance Company. Staples, ¶ 8. As litigation proceeded, it became apparent that Frenchy’s ownership at the time of the accident was unclear. Additionally, it was unclear whether Frenchy had escaped from Corcoran’s or Staples’ pasture. As a result, Huntsinger filed an amended complaint against co-owner Raymond Staples. Staples, ¶ 10. Farmers Union refused to defend Staples as an “additional insured” because Farmers Union unilaterally concluded that Corcoran had sold his interest in Frenchy before the accident, and therefore coverage based upon ownership was no longer available. Staples, ¶ 11. As here, Staples eventually confessed judgment in favor of Huntsinger and assigned his rights under Corcoran’s policy to Huntsinger. Staples, ¶ 12. The district court concluded, based upon the allegations in the amended complaint and the ownership dispute at the time, that Farmers Union had a duty to defend Staples. Staples, ¶ 13. ¶31 Farmers Union appealed and we affirmed. We explained that “Montana law is well-settled that an insurer’s duty to defend its insured arises when an insured sets forth facts which represent a risk covered by the terms of an insurance policy.” Staples, ¶ 20. “The 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. We concluded that Farmers Union had breached its duty to defend and was therefore estopped from denying coverage. Staples, ¶ 28. ¶32 In the case before us, Scottsdale does not dispute that Teen Help was an insured. Therefore, in accordance with Staples, ¶ 20, we look to the facts alleged in Newman’s 14 Third Amended Complaint vis-à-vis Teen Help, to determine whether these facts, if proven, would present a claim covered by the policy: 1. Teen Help was a limited liability company doing business in Montana. 2. Teen Help purported to help parents of troubled teens obtain placement in an appropriate treatment facility, but directed parents only to facilities owned and operated by Robert Lichfield. Teen Help was the marketing arm of the other defendants. 3. At all relevant times, Lichfield exercised control over all related entities, including Teen Help, controlling personnel hiring, student recruitment and solicitation, and student care, treatment and supervision. ¶ 30 In addition to the foregoing specific allegations against Teen Help, the Third Amended Complaint also alleged that all defendants were alter egos of one another, and that they jointly failed to implement adequate policies to protect the children in their care; failed to hire, train and supervise staff; failed to properly evaluate Karlye’s needs; and failed to meet the accepted standard of care in providing mental health treatment to Karlye. ¶33 Scottsdale argues the District Court determined that its policy covered Newman’s claims by erroneously considering evidence that came into the record after Scottsdale had made its decision—based upon the allegations of the Complaint and its exhibits—that the Complaint did not state claims for which the policy would afford coverage. Scottsdale claims it was required only to look to the Complaint to determine whether coverage for the claims existed, and that the court erred in looking at evidence outside the Complaint and resolving issues of fact on summary judgment. It does appear that, in part, the District Court took into account evidence outside the Complaint and its exhibits in 15 making its determination. However, even if we discount evidence outside the four corners of the Third Amended Complaint and its exhibits, we can still answer the duty to defend question through an analysis of the Third Party Complaint, the Scottsdale policy, and established case law defining the parameters of the duty to defend. ¶34 Scottsdale claims it had no duty to defend because exclusions in the policy clearly applied to Newman’s claim. We disagree. Exclusions must be narrowly and strictly construed because they “are contrary to the fundamental protective purpose of an insurance policy.” Farmers Union Mut. Ins. Co. v. Oakland, 251 Mont. 352, 356, 825 P.2d 554, 556 (1992). Moreover, because exclusions are contrary to the fundamental purpose of the policy, such exclusions are frequently subject to challenge for ambiguity or inconsistency. Swank Enters. v. All Purpose Servs., Ltd., 2007 MT 57, ¶ 29, 336 Mont. 197, 154 P.3d 52. As such, the mere existence of the exclusions in Scottsdale’s policy did not establish an “unequivocal demonstration” that the claim did not fall within the insurance policy’s coverage. ¶35 Addressing the professional services exclusion, Scottsdale claims “[t]he distinction between professional services and nonprofessional services is marked by whether the insured is required to make a trained judgment,” and that professional services “embrace[] those activities that distinguish a particular occupation from other occupations, as evidenced by the need for specialized learning or training—and distinguished it from ordinary activities in life and business.” Claiming that its policy exclusions “contain plain and ordinary language,” Scottsdale opines that Teen Help’s 16 recommendation that Karlye attend Spring Creek constituted a professional service, coverage of which was precluded by the professional services exclusion. ¶36 Scottsdale relies upon Fire Ins. Exch. v. Alsop, 709 P.2d 389 (Utah 1985), in which a licensed chiropractor, Michael Alsop, provided chiropractic services to a woman during labor and delivery. The woman and child were injured during delivery and the woman sued several defendants, including Dr. Alsop. Alsop demanded that his homeowners insurance provided by Fire Insurance Exchange defend and indemnify him. Fire Insurance filed a declaratory action to determine whether the policy covered Alsop’s actions or whether his claim fell within the policy’s “professional services” exclusion. Fire Insurance prevailed. Scottsdale asserts that the professional services exclusion in its policy is similar to that in Alsop’s Fire Insurance policy which the Utah Court concluded was “clear and unambiguous.” ¶37 Alsop is distinguishable and does not help Scottsdale in the case at bar. There was no discussion in Alsop as to whether “professional” or “professional services” was defined in the Fire Insurance policy. However, it was undisputed that Alsop’s services as a licensed chiropractor were professional services that required Alsop to undergo specialized training, education and licensing. As such, liability for Alsop’s professional services was excluded under the professional exclusion clause. While not expressly equating Teen Help’s employees with licensed chiropractors, Scottsdale insists that Teen Help’s staff similarly rendered professional services in assisting in placements of troubled youth into Lichfield’s schools and in Teen Help’s participation in the operation 17 and planning of Spring Creek, thereby falling within the “clear and unambiguous” professional services exclusion. We find this analogy inapt. ¶38 A licensed chiropractor would obviously be called upon to render professional medical services. By contrast, Teen Help is described in the Third Amended Complaint as no more than a marketing arm of the other defendants, directing parents of troubled teens to facilities owned and operated by Lichfield as part of a civil conspiracy to profit at the expense of the safety and health of children. These allegations do not suggest the exercise of “trained judgment” or “specialized learning” unique to “professional services,” as Scottsdale argues; rather, these allegations raise the specter of an injury caused by an occurrence resulting from non-professional services. Because non-professional services were alleged, a duty to defend was triggered. ¶39 We acknowledge that the Third Amended Complaint also alleged that all defendants jointly breached some professional obligations. However, we have held that 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., 160 Mont. 219, 227, 500 P.2d 945, 949-50 (1972). ¶40 Further, although Scottsdale relies on the “professional services” exclusion in its policy as a basis for denying coverage, the policy does not define the terms “professional,” “professional services,” or “professional exposures,” so as to alert the insured concerning what services are covered and what services are excluded. At a minimum, this renders the coverage confusing and ambiguous. It is well-established that 18 any ambiguity in an insurance policy must be construed against the insurer. Wendell v. State Farm Mut. Auto. Ins. Co., 1999 MT 17, ¶ 14, 293 Mont. 140, 974 P.2d 623. As such, the District Court did not err in determining the professional services exclusion did not preclude a determination that Scottsdale had a duty to defend based upon the allegations set forth in the Third Amended Complaint. ¶41 Turning to Scottsdale’s “designated operations” exclusion, Scottsdale claims the insurance policy provides coverage to Teen Help’s St. George, Utah, location only, and therefore does not provide coverage for any “alleged liability [that] occurred in Montana at the Spring Creek facility.” Again, we note that the policy exclusion does not define critical terms, including “professional,” “scheduled locations,” or “arising out of.” Nor does it expressly state a “scheduled location,” although it does provide for a “coverage territory” comprised of the United States of America. In an attempt to interpret the contract to give meaning to all parts of the policy, we find the absence of an expressly identified “scheduled location” and the expansive definition of “covered territory” confusing and ambiguous. ¶42 Furthermore, if we accept Scottsdale’s interpretation of policy coverage, it appears coverage is illusory. According to Scottsdale, all of Teen Help’s employees are “professionals” and any liability associated with their services is excluded from coverage under the professional services exclusion. Moreover, given Scottsdale’s claim that the policy covers the St. George, Utah, premises only, the policy would appear to cover only the conduct of non-professional employees that occurs in the St. George, Utah, location. Given that the Utah office is a call center that is not open to customers or the public, it is 19 difficult to imagine a scenario under which coverage would be extended. We have held that policy language which renders coverage illusory is against public policy. Hardy v. Progressive Specialty Ins. Co., 2003 MT 85, ¶¶ 20-22, 29, 315 Mont. 107, 67 P.3d 892. ¶43 As did the District Court, we construe the confusing policy provisions against Scottsdale and conclude that under a reasonable interpretation of the Third Amended Complaint and the Scottsdale insurance policy, the allegations of the Complaint were sufficient to trigger a duty to defend. Scottsdale does not deny that the Complaint alleges “bodily injury” and an “occurrence,” both of which are covered under the Scottsdale CGL policy. We have held that where a complaint alleges facts which, if proven, would bring an event within the policy’s coverage, the duty to defend is triggered. Staples, ¶ 20; Pinski Bros., 160 Mont. at 227, 500 P.2d at 949-50. Based on the foregoing, we conclude that the Third Amended Complaint alleged facts which if proven true would bring the matter within Scottsdale’s coverage. Therefore, we conclude the District Court did not err in finding a breach of the duty to defend, and in entering summary judgment in favor of Newman and against Scottsdale. Staples, ¶ 27. B. National Union Fire Insurance Company ¶44 As did Scottsdale, National Union also argues on appeal that the District Court erred in determining it had breached its duty to defend its insured. ¶45 National Union provided excess insurance coverage for Teen Help from May 7, 2004, through May 7, 2005. Karlye died in October 2004. Newman filed her initial Complaint against Lichfield and others in October 2006. This Complaint did not name Teen Help as a defendant. She filed her Second Amended Complaint adding Teen Help 20 as a defendant on May 29, 2008, but it is unclear whether Teen Help was served with this complaint. Ultimately, she filed a Third Amended Complaint on December 29, 2008, and served Teen Help at that time. It is undisputed Teen Help did not notify National Union of the suit nor did it tender a request for defense at that time. ¶46 National Union first learned of the cause of action in January 2010 when Newman’s counsel submitted a policy limit demand letter directly to National Union. The letter encouraged National Union to participate in a court-ordered settlement mediation scheduled for February 19, 2010. Upon receipt of the letter, National Union contacted Teen Help to obtain information and documentation. Teen Help was of marginal assistance, at best. National Union then contacted Scottsdale’s attorney to obtain information. Scottsdale provided National Union with a copy of the Third Amended Complaint and informed National Union that Scottsdale declined to defend or indemnify Teen Help because Newman’s claim was precluded under the professional liability exclusion contained in Scottsdale’s policy. ¶47 After reviewing the Third Amended Complaint, National Union, in a letter dated February 9, 2010, denied coverage to Teen Help on the following policy coverage grounds: failure to exhaust primary coverage through Scottsdale, failure to establish that Scottsdale’s policy did not cover the claim, failure to state a claim that constituted an “occurrence,” and submission of a claim that was excluded under the policy’s professional liability exclusion. Notably, at that time, National Union did not deny coverage based upon Teen Help’s failure to notify it of the underlying lawsuit “in writing as soon as practicable.” 21 ¶48 Having denied coverage, National Union did not attend the settlement mediation but nonetheless encouraged Teen Help to contact it with questions or further information upon which it could reconsider its decision. It is undisputed that Teen Help did not contact National Union with additional information or requests for assistance. ¶49 Subsequently, in August 2010, Newman initiated this action. In its early filings in response to Newman’s complaint and her motion for summary judgment, National Union continued to assert that it had no duty to defend Teen Help based upon the policy coverage grounds set forth above. In its March 2011 response to Newman’s motion for summary judgment, National Union argued for the first time that Teen Help failed to notify it of the lawsuit in a timely manner and that it was unfairly prejudiced by the lack of notice. It asserted that the duty to notify was a “condition precedent to filing a lawsuit against National Union for any claim, including a breach of contract claim.” ¶50 In October 2011, the District Court granted Newman’s motion for summary judgment and denied National Union’s motion to dismiss the action. In its order, the court based its conclusion that National Union had a duty to defend Teen Help upon a determination that Teen Help was not a “professional” entity; therefore, the insurer could not rely upon the “professional services liability” exclusion in its policy. The court did not address the other defenses raised by National Union. Following entry of this order, Newman moved for a hearing to determine attorney’s fees, costs and interest and for entry of judgment. In December 2011, National Union responded to Newman’s motion, arguing again that a judgment against it was barred based upon “lack of notice” and a failure by Teen Help to “tender a defense.” National Union asserted that it was 22 prejudiced in numerous ways by the passage of more than six years since Karlye’s death and more than a year since Teen Help was served with a complaint. Unpersuaded, the court subsequently entered Judgment against both insurers, severally, as described above. ¶51 On appeal, National Union argues that its policy identified only two circumstances under which it had an obligation to defend Teen Help: (1) when the policy limits of Scottsdale’s policy were exhausted by payment of settlement or judgment, and (2) when damages were sought for bodily injury covered by National Union’s policy, but not covered by Scottsdale’s policy. National Union claims that neither of these provisions was satisfied. Additionally, it claims that under the terms and definitions of the policy, Newman’s claim did not constitute an “occurrence.” The insurer further posits that the claim was precluded under the professional liability exclusion. Lastly, National Union maintains that Teen Help did not notify it of the filing of Newman’s lawsuit and never made a demand upon it to tender a defense. The insurer asserts the District Court failed to enforce the contract as drafted and as required under well-established case law; therefore, judgment against National Union should be reversed. ¶52 Although the District Court addressed only the professional liability exclusion in its decision, we address the remaining arguments presented by National Union as well as the argument upon which the District Court ruled. Exhaustion or Inapplicability of Scottsdale coverage ¶53 Reiterating that the case before us is a “duty to defend” case, we return to National Union’s initial denial of coverage which precipitated its refusal to defend. In National Union’s February 2010 denial letter, it claimed that its “coverage obligations have not 23 been triggered, as no information has been presented evidencing that all underlying coverage has been exhausted and/or that underlying coverage does not apply to this claim.” The denial letter acknowledged, however, that National Union had been informed by Scottsdale that Scottsdale disclaimed liability based upon a professional liability exclusion contained in Scottsdale’s policy, and that therefore Scottsdale’s policy would not cover Newman’s claim. National Union then denied coverage based upon its policy’s professional liability exclusion, among other grounds. ¶54 National Union’s position on this issue is somewhat confusing. At various times, it has acknowledged that Scottsdale’s policy did not cover Newman’s claim, and at other times argues that Scottsdale’s policy did cover Newman’s claim but Scottsdale failed to pay, and therefore Scottsdale’s coverage had not been exhausted. Moreover, on appeal National Union presented the following issue: “Whether [National Union] had a duty to defend its insured under its Umbrella Commercial General Liability Policy for a claim that is not covered under the policy and, where unbeknownst to [National Union], the insured’s primary insurer, Scottsdale Insurance Company declined to do so because the claim was not covered under its policy.” As noted, the record indicates that National Union knew at the time it denied coverage to Newman’s counsel, that Scottsdale had concluded that its policy did not cover Newman’s claim for bodily injury. This knowledge raised the distinct prospect that National Union’s duty to defend was triggered. ¶55 As acknowledged by National Union, an insurer has no obligation to look beyond the complaint in determining whether a claim is covered by a policy. What National 24 Union does not acknowledge is that once an insurer does look beyond a complaint, it may not then ignore the information obtained. Revelation Indus. v. St. Paul Fire & Marine Ins. Co., 2009 MT 123, ¶ 30, 350 Mont. 184, 206 P.3d 919. National Union’s knowledge of Scottsdale’s position on coverage was not obtained through a review of Newman’s Third Amended Complaint or the National Union policy but rather through communication with Scottsdale. As such, National Union became privy to facts beyond the allegations in Newman’s Complaint, triggering the prospect of a duty to defend and/or indemnify based on the information discovered. Revelation Indus, ¶ 30. ¶56 As we explained in our Scottsdale analysis above, there must exist an unequivocal demonstration that the claim against the insured does not fall within the policy coverage before an insurer can refuse to defend; otherwise, the insurer has a duty to defend. Staples, ¶ 24. If an insurer unjustifiably refuses to defend a claim, that insurer is estopped from denying coverage. Staples, ¶¶ 27-28. ¶57 National Union’s contention that it was entitled to reject Newman’s request for a defense based upon the absence of evidence of Scottsdale’s position on coverage is disingenuous. Moreover, Scottsdale’s position on coverage could not supply an “unequivocal demonstration” that the claim did not fall under National Union’s policy. Against this backdrop, we examine the other arguments posited by National Union. “Occurrence” ¶58 National Union argued to the District Court and to this Court on appeal that in light of the fact that suicide is an intentional act, Newman’s claim does not constitute an “occurrence”; therefore, the insurer was justified in denying coverage and refusing to 25 defend. The definition of “occurrence” in the policy requires that there be an injury “neither expected nor intended from the standpoint of the Insured.” The Insured is Teen Help. Certainly, it did not expect or intend Karlye’s suicide; therefore, her suicide could arguably constitute an “occurrence” as defined in the policy. Interposing Karlye’s intent as determinative of the existence of an “occurrence” makes no sense under the contract because she is not the Insured. We therefore reject National Union’s argument that it was excused from defending Teen Help because Karlye’s suicide, being intentional, did not fall within the definition of an “occurrence.” ¶59 National Union’s interpretation of the term “occurrence” in a manner that precludes coverage does not supply an “unequivocal demonstration” that the claim is not covered under National Union’s policy. National Union therefore was not justified in refusing to defend its insured based upon this defense. Professional Liability Exclusion ¶60 We need not repeat the legal analysis set forth above vis-à-vis Scottsdale’s professional liability exclusion. It is sufficient to note that the same analysis applies to National Union’s policy and argument. Additionally, National Union’s policy does not define terms used in this exclusion, i.e., “arising out of,” “professional,” or “professional nature.” As we noted above, without such definitions, the exclusion fails to alert the insured as to what services are covered and what services are excluded, thereby rendering it confusing and ambiguous. We construe this exclusion against National Union. Wendell, ¶ 14. 26 ¶61 Furthermore, as we explained above, exclusions are contrary to the fundamental purpose of an insurance policy. The mere existence of exclusions in the insurance policy, even exclusions that are not construed against the insurer, do not establish an “unequivocal demonstration” that the claim does not fall within the policy’s coverage. Notification ¶62 Lastly, National Union argues that because Teen Help did not timely notify it of the underlying law suit or tender a defense, it could not have breached its duty to defend. ¶63 As noted above, in February 2010, National Union denied coverage to Teen Help based on its policy definitions and exclusions. In later seeking to dismiss Newman’s claim in this case on February 7, 2011, it argued to the District Court that the definitions and exceptions under the policy established it owed Teen Help no duty of defense or indemnification. Subsequently, in March 2011, National Union first raised the argument that Teen Help failed to timely provide it with notice of the claim and that it was prejudiced by the failure. The insurer repeated this argument throughout the duration of the District Court proceeding but the court was not persuaded. ¶64 On appeal, and relying upon Steadele v. Colony Ins. Co., 2011 MT 208, 361 Mont. 459, 260 P.3d 145, National Union argues that “Montana courts have long held that an insured’s failure to comply with a notice condition in an insurance policy bars recovery under the policy.” National Union maintains that the District Court erred by not considering the prejudice suffered by National Union based upon Teen Help’s failure to notify it of Newman’s claim. 27 ¶65 In Steadele, we concluded that the district court properly granted the insurer’s motion for summary judgment based upon its complete lack of notice of the pendency of any claim against its insured, until more than 60 days after a default judgment in the approximate amount of $1.88 million had been entered in favor of Steadele and against the insured. Steadele, ¶¶ 8, 23. When Steadele attempted to recover the judgment amount from Colony, Colony argued that the lack of notice of the claim severely prejudiced it. We observed that because of the lack of notice, Colony was completely deprived of the ability to investigate, locate witnesses, appoint counsel or negotiate a settlement and therefore suffered prejudice. Steadele, ¶ 28. ¶66 There are notable distinctions between Steadele and the case before us. For one thing, National Union was apprised of the pendency of the claim before judgment rather than after, and made the calculated decision to reject the claim on the basis of policy coverage defenses. The most significant distinction, however, is that in Steadele, Colony Insurance asserted from the inception that because the insured never notified it of the litigation, it was deprived of the ability to investigate and assess the validity of the claim. By contrast, upon learning of the litigation against its insured, National Union relied on multiple policy defenses in initially denying coverage to Teen Help, and in later responding to Newman’s complaint. Lack of notice was not raised as a basis for denying coverage until over a year after National Union first refused to defend or indemnify its insured. ¶67 Numerous jurisdictions have held that where an insurer denies liability on some other policy or coverage ground, the insurer cannot thereafter rely on the insured’s failure 28 to give reasonable notice as a ground for avoiding liability. In other words, the insurer waives its right to argue “failure of notice” once it has denied coverage on other grounds. ¶68 In Travelers Ins. Co. v. Peerless Ins. Co., 287 F.2d 742, 747 (9th Cir. 1961) (applying Oregon law), the Ninth Circuit Court of Appeals held that if an insurer denies liability to the insured on grounds other than those relating to defects in the notice, compliance with the requirements as to notice will be deemed waived. See also Coulter v. American Employers’ Ins. Co., 78 N.E.2d 131, 136 (Ill. App. 1948) (“It is a well-settled rule that when one party to a contract refuses to perform and bases its refusal on one ground it waived all other grounds, or is estopped when suit is brought, from setting up other grounds for its refusal.”); Travelers Ins. Co. v. Reed Co., 135 S.W.2d 611 (Tex. Civ. App., 1939) (By denying liability on the ground that claimant’s petition against insured contained “no allegation of bodily injury accidentally sustained,” Traveler’s waived its later argument that it did not receive due notice of the suit.); and Great Am. Ins. Co. v. General Ins. Co., 475 P.2d 415, 419 (Or. 1970) (Holding that the rule that defects in notice are waived by a denial of liability on other grounds is “fundamental, and scarcely needs to be supported by the citation of authorities.”). Applying these authorities to the case before us, we conclude that by denying liability on other grounds for over a year after notice of the claim, National Union waived its right to now rely on defects in notice. ¶69 National Union argues that the lack of timely notice of the pendency of the complaint against Teen Help prejudiced its opportunity to investigate the claim, retain counsel, develop a trial strategy, and engage in discovery and perhaps settlement. We 29 reject this argument for two reasons. First, we note that in the cases cited immediately above, prejudice was simply not addressed. This makes sense because, logically, once one waives the right to invoke an argument, the various components of that waived argument—including as here, prejudice resulting from lack of notice—are simply not relevant. Second, even if we were to consider the prejudice argument, it is belied by the fact that National Union made a conscious decision to deny coverage and a defense from the outset, based upon its asserted policy exclusions and defenses. It did not ever seek to retain counsel, investigate the claim, or develop a trial or settlement strategy. Thus, not only is the prejudice argument irrelevant in the face of waiver, it is wholly unsupported in the record. ¶70 For the foregoing reasons, we conclude that National Union has waived its right to now claim that lack of timely notice by the insured is fatal to this case. Further, we conclude that the insurer failed in the District Court and fails here to “unequivocally demonstrate” that Newman’s claims against Teen Help did not fall within the policy coverage. Because coverage of Newman’s claims was arguably available under the National Union policy, it had a duty to defend. It could have attended the mediation in defense of Teen Help, and either negotiated a settlement or insisted upon taking the case to trial. In the meantime, it could have sought a declaratory judgment that it had no duty of indemnification under the policy. Staples, ¶¶ 26, 28; Mt. W. Farm Bureau Mut. Ins. Co. v. Brewer, 2003 MT 98, ¶ 30, 315 Mont. 231, 69 P.3d 652. It did none of these things. Pursuant to the foregoing authorities, we therefore conclude the District Court did 30 not err in denying National Union’s motion to dismiss and granting Newman’s motion for summary judgment against National Union for its refusal to defend Teen Help. ¶71 Did the District Court err in calculating and awarding attorney’s fees to Newman? ¶72 In addition to entering judgment against the insurers for $3,000,000, the District Court also awarded Newman $1,188,399.45 in attorney’s fees, over and above the $3 million judgment. The court explained that established case law allows an insured the right to recover attorney’s fees in the event an insurer breaches its duty to defend. See e.g. Brewer, ¶ 14. The amount awarded was based upon the $3,000,000 judgment awarded in Newman I and the one-third contingency fee arrangement Newman and her attorneys had agreed upon in Newman I. In reaching the fee award, the court considered the eight factors set forth in Stimac v. State, 248 Mont. 412, 417, 812 P.2d 1246, 1249 (1991), which courts have used “when assessing whether to award the full amount of the contingent-fee agreement as a reasonable attorney’s fee . . . .” In Stimac, the plaintiffs had a contingency fee agreement with their counsel, who pursued and recovered on their behalf contested wages from the defendant. The wage recovery statute at issue provided that employees who recovered wages were entitled to the recovery of reasonable attorney’s fees. Section 39-3-214, MCA. ¶73 Scottsdale argues that awarding Newman attorney’s fees in Newman II for work performed in Newman I and based upon the contingency fee agreement entered in Newman I was error. Scottsdale acknowledges that Newman, as assignee, stands in the shoes of first-party insured Teen Help and therefore is entitled to the same fees to which 31 Teen Help would be entitled had Teen Help sued Scottsdale. In other words, Scottsdale maintains that as a first-party assignee, Newman should be allowed to recover only those fees to which Teen Help would be entitled had it directly sued the insurers for declaratory relief. The insurer urges us to reverse the District Court’s ruling vis-à-vis attorney’s fees and remand with instructions to the court to recalculate reasonable first-party fees associated with legal representation in Newman II. ¶74 Newman counters that she has a right to attorney’s fees and that her contingency contract with her attorney is the operative contract upon which to base the amount of fees. She asserts that the method used to calculate attorney’s fees is within the District Court’s discretion and that the court correctly exercised its discretion by holding an evidentiary hearing, taking expert testimony, and applying the factors set forth in Stimac. ¶75 It is undisputed that Newman, as Teen Help’s assignee, should be allowed to recover fees for services rendered by counsel in enforcing the insurance contract, just as first-party insured Teen Help would have been able to do had it instituted the contract and declaratory action against Scottsdale. As we noted in Skauge v. Mountain States Tel. & Tel. Co., 172 Mont. 521, 526, 565 P.2d 628, 631 (1977), “[w]hen there is an assignment of an entire claim there is a complete divestment of all rights from the assignor and a vesting of those same rights in the assignee.” As such, the District Court correctly concluded that Newman was entitled to reasonable attorney’s fees for her declaratory judgment action. ¶76 Where the District Court erred, and as a result abused its discretion, was when it based the amount of the fee award on Newman’s contingency agreement executed in 32 Newman I, and did so in reliance on Stimac. While it is clear that Newman incurred legal fees under the contingency fee contract with counsel in Newman I, Newman I was a separate tort action and the fee arrangement in that case does not transfer to this case. Again, as Newman stepped into Teen Help’s shoes by virtue of the assignment, Newman assumes Teen Help’s rights and nothing more. Skauge, 172 Mont. at 526, 565 P.2d at 631. ¶77 Because Teen Help as assignor had no contingency fee agreement to impose in the declaratory action, it follows that Newman as assignee cannot impose a contingency fee agreement in the declaratory action. Stimac is inapposite, as it analyzed the application of a fee agreement entered for the express purpose of representation in the case before the court, unlike the case here. Thus, it was error for the District Court to import the tort action contingency fee agreement between Newman and her lawyers, into the declaratory action in which Newman was acting as assignee of Teen Help’s rights. ¶78 The foregoing analysis is buttressed by Newman’s arguments on appeal. Newman argued in her brief on appeal that the District Court based its fee award on the services provided by her attorneys in the declaratory action, i.e., Newman II, and not the work performed for Newman I. She stated: The testimony at the evidentiary hearing was directed to the attorneys’ work in the present declaratory judgment and breach of contract case. [Newman I] was only discussed as an example of why contingency fee agreements are reasonable and necessary in litigation. . . . 33 Work performed in [Newman I] was not presented at the evidentiary hearing as basis for the fee award in the present action. The District Court clearly understood that point. ¶79 Because the District Court was tasked with determining a fee award based exclusively on services performed in Newman II, it should not have considered Newman’s contingency arrangement in Newman I or the factors set forth in Stimac. We therefore reverse the amount of the attorney’s fees awarded by the District Court and remand for a calculation of reasonable attorney’s fees based upon what Newman, as Teen Help’s assignee, would have been able to recover for her attorney’s time and expenses incurred in pursuing insurance coverage from the defendants. As we held in Pinski Bros., 160 Mont. at 228, 500 P.2d at 950, the seminal decision addressing the recovery of attorney’s fees in an action between an insurer and insured, “the wrongful acts of the insurer . . . and its refusal to defend this action . . . constituted [a] breach[] of its obligation and duty rendering the insurer liable for damages by way of attorney’s fees, expenses, and court costs occasioned thereby.” See e.g. Lindsay Drilling v. U.S. Fidelity & Guar., 208 Mont. 91, 97, 676 P.2d 203, 206 (1984); Truck Ins. Exch. v. Woldstad, 212 Mont. 418, 423, 687 P.2d 1022, 1025 (1984); Goodover v. Lindey’s Inc., 255 Mont. 430, 448, 843 P.2d 765, 776 (1992). ¶80 Did the District Court err in finding that Montana law controls? ¶81 The District Court concluded, without analysis, that Montana law controlled the declaratory action. Urging this Court to apply the “most significant relationship” test set forth in Tucker, ¶ 41, Scottsdale argues that the insurance policy was issued in Utah, to residents of Utah, covering property in Utah; therefore, Utah law controls. 34 ¶82 Newman responds that, in this case, there is no material difference between Utah and Montana’s principles of insurance contract interpretation; consequently, application of Montana law should be upheld. Modroo v. Nationwide Mut. Fire. Ins. Co., 2008 MT 275, ¶ 23, 345 Mont. 262, 191 P.3d 389. Newman also argues that throughout the District Court proceeding Scottsdale conceded that applicable Montana law was consistent with Utah law, and that the District Court relied on Scottsdale’s concession on this point. Newman asserts Scottsdale may not now challenge the correctness of the District Court’s determination. ¶83 The record supports Newman’s argument. We have repeatedly held that we will not put a district court in error for an action in which the appealing party acquiesced. Horn v. Bull River Country Store Props., 2012 MT 245, ¶ 34, 366 Mont. 491, 288 P.3d 218. Moreover, we do not address a party’s change in legal theory on appeal nor do we render a district court’s decision incorrect when it was not given an opportunity to correct itself. Day v. Payne, 280 Mont. 273, 276-77, 929 P.2d 864, 866 (1996); State v. Weeks, 270 Mont. 63, 85, 891 P.2d 477, 490 (1995). CONCLUSION ¶84 For the foregoing reasons, we affirm the District Court’s order of summary judgment as it pertains to Scottsdale and National Union, its award of interest on the underlying judgment, and its application of Montana law. We reverse the court’s ruling on attorney’s fees and remand with instruction to recalculate reasonable attorney’s fees based upon the legal services provided in Newman II. 35 /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ JIM RICE /S/ BETH BAKER /S/ BRIAN MORRIS Justice Michael E Wheat dissents. ¶85 I concur with the majority opinion in all respects except the issue related to attorney fees, and in that respect I dissent from the Court’s reversal of the District Court’s ruling on attorney’s fees. The method of calculation of attorney’s fees is in the discretion of the court, Tacke v. Energy West Inc., 2010 MT 39, ¶ 38, 355 Mont. 243, 227 P.3d 601, and here the court found that the contingency fee was the proper measure based on the amount Newman would have to compensate her attorneys, the complexity of the case, the risk of no recovery, and the understanding that the underlying judgment presumed the present suit. Moreover, § 25-10-301, MCA, allows the measure of attorney’s fees to be left to either express or implied agreement, and in the absence of an agreement covering the present case, it appears that the court implied a contingency agreement at the 1/3 rate used by the parties in the underlying case. ¶86 The court held an evidentiary hearing on fees and determined that a contingency basis was the proper measure of attorney’s fees based on the testimony provided and the nature of the case. Because of the deferential standard of review and the assignment of 36 rights, I do not think that the court clearly abused its discretion by applying the same contingency basis that Newman and her attorneys used in the underlying action. ¶87 For these reasons, I would affirm the District Court’s ruling on attorney’s fees. I respectfully dissent from the majority’s failure to do so. /S/ MICHAEL E WHEAT | May 7, 2013 |
f771eaf9-a2c9-42de-9bc6-43ec33c74765 | Weaver v. 1st Bank Lincoln | 2013 MT 165N | DA 12-0422 | Montana | Montana Supreme Court | DA 12-0422 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 165N C.R. WEAVER, Plaintiff and Appellant, v. FIRST BANK OF LINCOLN, Defendant and Appellee. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDV 10-371 Honorable Jeffrey M. Sherlock, Presiding Judge COUNSEL OF RECORD: For Appellant: William L. Managhan, Managhan Law Firm; Kalispell, Montana For Appellee: KD Feeback, Gough, Shanahan, Johnson & Waterman, PLLP; Helena, Montana Submitted on Briefs: April 24, 2013 Decided: June 18, 2013 Filed: __________________________________________ Clerk June 18 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 C.R. Weaver (Weaver), self-represented, sued First Bank of Lincoln (Bank) for breach of an alleged commercial loan commitment and violation of the Montana Consumer Protection Act (MCPA). The District Court granted summary judgment to the Bank because the alleged loan was not in writing, as required by statute, and the MCPA does not apply to commercial transactions. We affirm. ¶3 Weaver alleged in his complaint that the Bank had committed to loan him a total of $480,000.00. Apparently the Bank’s lending limit was $290,000.00, so, as alleged by Weaver, the Bank promised to obtain an overline loan from another bank for the additional $190,000.00. Neither of these alleged commitments were reduced to writing. Section 31-1- 116, MCA, provides: (1) With respect to a commercial loan, a contract action or a breach of contract action may not be brought against a regulated lender on a promise or commitment that is not in writing where the promise or commitment is to: (a) lend money or to extend credit; (b) alter, amend, renew, extend, or otherwise modify an existing promise, commitment, or agreement to lend money or extend credit; or (c) make a financial accommodation. (2) For the purposes of this section, "commercial loan" means money loaned or credit extended primarily for commercial or business purposes, in excess of $100,000, and does not include money lent or credit extended for personal, family, or household purposes and also does not include charge or 3 credit card accounts, personal lines of credit, personal overdraft accounts, or other consumer accounts. The statute is clear that a cause of action for breach of a commercial loan contract in excess of $100,000.00 must be supported by a written agreement. In this case there was no written agreement and the District Court correctly granted summary judgment to the Bank on Weaver’s alleged breach of contract claim. ¶4 Weaver also alleged in his complaint that the Bank falsely reported a late payment on a $290,000.00 commercial loan, which was reflected on his credit report, thereby causing him certain credit problems. Although Weaver did not expressly allege this action by the Bank as a violation of the MCPA in his complaint, he claimed treble damages pursuant to Section 30-14-133, MCA, and the District Court treated it as a claimed MCPA violation. Section 30-14-102(1), MCA, defines “consumer” (for purposes of the MCPA) to mean “a person who purchases or leases goods, services, real property, or information primarily for personal, family or household purposes.” During his deposition Weaver admitted that this loan was for commercial purposes. The District Court correctly granted summary judgment to the Bank on Weaver’s alleged MCPA claim. ¶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. It is manifest on the face of the briefs and record before us that the District Court correctly applied the law to the claims asserted by Weaver. ¶6 Affirmed. 4 /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BRIAN MORRIS /S/ JIM RICE | June 18, 2013 |
3a50597a-e214-4dcd-83dc-fa7ce2edadf3 | Combs v. State | 2013 MT 142N | DA 12-0392 | Montana | Montana Supreme Court | DA 12-0392 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 142N ALAN F. COMBS, 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 12-502C Honorable Stewart E. Stadler, Presiding Judge COUNSEL OF RECORD: For Appellant: Alan F. Combs (self-represented), Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Katie F. Schultz, Assistant Attorney General, Helena, Montana Ed Corrigan, Flathead County Attorney, Kalispell, Montana Submitted on Briefs: May 8, 2013 Decided: May 28, 2013 Filed: __________________________________________ Clerk May 28 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 Alan Combs appeals from the District Court’s Order of May 21, 2012, denying his March 29, 2012, petition for postconviction relief. We affirm. ¶3 In 2005 Combs entered a no contest plea to charges of aggravated burglary and felony assault with a weapon. The District Court convicted Combs and sentenced him to consecutive terms of 30 and 20 years. Combs appealed and this Court affirmed. State v. Combs, 2007 MT 6N. In 2007 Combs moved to withdraw his plea; the District Court denied the motion; and Combs appealed. On appeal, this Court classified the proceeding as a petition for postconviction relief and affirmed the District Court. State v. Combs, 2008 MT 163N. In April 2009, Combs petitioned this Court for a writ of habeas corpus. This Court denied relief in an order of June 23, 2009. ¶4 The present petition for postconviction relief alleges that the prosecution failed to disclose fingerprint evidence to Combs, and that he became aware of this evidence in 2008. The District Court dismissed the petition as untimely under § 46-21-102, MCA. Subsection (1) of that section requires petitions for postconviction relief to be filed within one year of the date the conviction becomes final. Combs was convicted in 2007. Subsection (2) of that section allows consideration of a petition for postconviction relief based upon newly 3 discovered evidence, if it is filed within one year of the date the defendant discovers the existence of the evidence. Combs states that he knew about the subject fingerprint evidence in 2008. Under the facts, Combs’ petition was barred by subsections (1) and (2) of § 46-21- 102, MCA. ¶5 Therefore, we conclude that the District Court properly applied § 46-21-102, MCA, and dismissed the petition. ¶6 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, which the District Court correctly applied. ¶7 Affirmed. /S/ MIKE McGRATH We concur: /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ BRIAN MORRIS | May 28, 2013 |
d5647d5d-a995-4c62-9e11-4ab55224797d | Roland v. Davis | 2013 MT 148 | DA 12-0383 | Montana | Montana Supreme Court | DA 12-0383 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 148 GENE CHARLES ROLAND and MELINDA FAITH ROLAND, Trustees of the Roland Family Trust Dated March 4, 1994, Plaintiffs and Appellants, v. FRED ALLEN DAVIS, SR. and BARBARA DAVIS, Defendants and Appellees. APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DV 09-282 Honorable Jeffrey H. Langton, Presiding Judge COUNSEL OF RECORD: For Appellant: Stephen R. Brown, Elena J. Zlatnik, Garlington, Lohn & Robinson, PLLP; Missoula, Montana For Appellee: Dustin M. Chouinard, Markette & Chouinard, P.C.; Hamilton, Montana Submitted on Briefs: March 20, 2013 Decided: June 4, 2013 Filed: __________________________________________ Clerk June 4 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Appellants Gene Charles Roland and Melinda Faith Roland, Trustees of the Roland Family Trust Dated March 4, 1994 (collectively “Roland”) appeal from the order of the Twenty-First Judicial District, Ravalli County, in favor of Appellees Fred Allen Davis, Sr. and Barbara Davis (collectively “Davis”) regarding a dispute over the existence of a ditch easement. We affirm. ¶2 We address the following issue on appeal: ¶3 Whether the District Court properly determined that Roland had no ditch easement across property owned by Davis? PROCEDURAL AND FACTUAL BACKGROUND ¶4 Roland began buying property in Ravalli County in 1991. Roland purchased a 50- acre parcel from Roger and Beverly Russ (collectively “Russ”) in 1993. The warranty deed for this 50-acre parcel from Russ contains no express mention of water rights, ditch easements, or appurtenances. Roland nevertheless believed that a water right from Bunkhouse Creek came with the property. Roland further believed that a ditch easement existed to transport the water from Bunkhouse Creek to his property. The parties completed and filed a water right transfer certificate as part of the closing documents. ¶5 Roland never has irrigated any of the 50-acre parcel. He has used the 50-acre parcel for grazing of cattle and horses. Roland participated in a U.S. Forest Service fire reduction program sometime in the mid-2000s. The program encouraged property owners to remove new growth and undergrowth in an effort to reduce the chances of wildfire. Roland removed 3 new growth and undergrowth from the entire 50-acre parcel. Roland left trees growing in the newly created meadows with the expectation that he later would harvest the trees as a cash crop. ¶6 Davis purchased real property from Russ in 1994. The Davis property lies adjacent to, and directly west of, the 50-acre parcel owned by Roland. The Smith Ditch historically had crossed the Davis property. No ditches were observable on the Davis property at the time of the purchase in 1994. No water rights from Bunkhouse Creek attached to the Davis property. ¶7 An existing road provides Davis with access to the house on his property from the public road. Davis applied a “road base” to the access road to the property. Davis did not widen the access road or remove any culverts. Davis replaced one culvert that had collapsed where Bunkhouse Creek crosses the access road. Davis found no other culverts that would indicate the presence of any ditch remnants on the property. ¶8 Davis took advantage of the same fire reduction program offered by the U.S. Forest Service in the mid-2000s. Davis observed for the first time traces of an old ditch across the property after the tree thinning work. The tree thinning work also revealed that someone had filled a portion of an old ditch. ¶9 A 1958 Ravalli County Water Resources Survey (Water Resources Survey) depicts the Smith Ditch traversing from Bunkhouse Creek to a “place of use” on the 50-acre parcel now owned by Roland. The point of diversion for the water right associated with this ditch, known as the Bunkhouse Creek Water Right, lies on Bitterroot National Forest. Water 4 historically diverted from this point traveled southeasterly across Bitterroot National Forest land, across the Davis property, and onto the 50-acre parcel now owned by Roland. ¶10 A 1957 field note from the Water Resources Survey indicates that the water right from Bunkhouse Creek was in use via the Smith Ditch for irrigation of a 20-acre place of use on the 50-acre parcel owned by Roland. Russ, Roland’s predecessor-in-interest to the 50-acre parcel, filed a statement of claim on the Bunkhouse Creek Water Right in 1982 to irrigate a total of 30 acres. A 1994 preliminary decree from a Water Master of the Montana Water Court issued as part of the general statewide water adjudication process for the Bitterroot River Basin included the statement of claim. The Montana Water Court later reduced the place of use to 20 acres in 2004 following hearings and stipulations. ¶11 Roland attempted to reopen use of Smith Ditch after the Water Court’s ruling. Roland and Davis could not agree on whether a ditch easement existed across the Davis property. Roland eventually filed a complaint against Davis on May 19, 2009, that sought preliminary and permanent injunctive relief, declaratory judgment, and damages. Davis denied the allegations and filed a counter-claim to quiet title. The District Court eventually reduced the trial to the following issues: (1) whether Roland has a ditch easement across the Davis property; (2) whether Davis had interfered with Roland’s ditch easement; (3) the amount of damages that Roland may have suffered as a result of Davis’s interference; and (4) Davis’s counter-claim to quiet title. ¶12 Karl Uhlig, a water resource specialist, provided expert testimony and reports regarding the status of any easement for Roland. Tracey Turek did the same for Davis. The 5 experts made separate site visits, researched DNRC water rights records regarding Smith Ditch and Bunkhouse Creek, and reviewed available maps, USDA aerial photographs, and the 1958 Water Resources Survey. Turek also researched various deeds related to the Davis property and the 50-acre parcel owned by Roland. ¶13 Neither expert could identify any definitive point of diversion at Bunkhouse Creek. Neither expert found physical evidence of any sort, such as head gate ruins, old boards, or an old rock pile, that might have served as a point of diversion. The experts instead attempted to identify the point of diversion through the use of an overlay from the Water Resources Survey that depicted the Smith Ditch in the 1950s. ¶14 Uhlig’s site visit map depicts the route of Smith Ditch from the likely point of diversion on Bunkhouse Creek, across U.S. Forest Service Land, across the Davis property, and across the 50-acre parcel owned by Roland. Uhlig’s map depicts the Smith Ditch in three separate color schemes to designate the following sections: (1) sections evident on the ground; (2) sections not evident on the ground; and (3) trace ditch locations. ¶15 The section of Smith Ditch that traverses U.S. Forest Service land and the western portion of the Davis property appears evident on the ground and largely intact. Even on the U.S. Forest Service land, however, the ditch has washed out in several spots, a large boulder blocks the entire ditch in one spot, and trees several inches in diameter grow in the ditch. Fire reduction work in the mid-2000s revealed the ditch between the boundary of the U.S. Forest Service land and Bunkhouse Road on the western edge of the Davis property. 6 Bunkhouse Road completely severs the ditch and the parties found no remnants of any culvert there. ¶16 The ditch appears to split into an upper and a lower lateral at some point before it enters the Davis property. The Bunkhouse Road severs both laterals. Trees four to eight inches in diameter grow in the remnants of the two laterals and along the banks. ¶17 Roland’s access road again severs the ditch on the 50-acre parcel owned by Roland. Roland installed the access road for fire prevention purposes within a year or two after purchasing the parcel in 1993. The ditch appears more evident on the 50-acre parcel to the east of the access road. ¶18 The District Court found that Smith Ditch “could be restored with a few days’ work.” This work would involve the installation of a new head gate at the point of diversion, reconstruction of several sections, cleaning growth and debris from the ditch, and installation of culverts at the points where the access roads and Bunkhouse Road cross. The District Court further found, however, that the 1957 field note from the Water Resources Survey represents the last evidence of use of Smith Ditch for irrigation. ¶19 A USDA aerial photograph from 2009 shows the road system that blocks the ditch. The place of use on the 50-acre parcel appears as a 20-30 year old pine forest. A 1995 USDA aerial photograph depicts a similar scene. The place of use in the 1995 photograph appears “somewhat tree-covered.” A 1979 USDA aerial photograph likewise depicts the same road network. The place of use appears as “an open cleared area” in 1979. 7 ¶20 Davis’s predecessor-in-interest constructed the access road across the Davis property before 1979. This same road still provides access to Davis’s house. As a result, the District Court found that the construction of this access road before 1979 had halted use of Smith Ditch as a conveyance of irrigation water from Bunkhouse Creek to the 50-acre parcel owned by Roland. The District Court further found that Roland’s predecessor-in-interest had abandoned Smith Ditch before 1979 when he constructed this access road. The District Court concluded that Roland retains no ditch easement across Davis’s property. Roland appeals. STANDARD OF REVIEW ¶21 We review for clear error a district court’s findings of fact. Boyne USA, Inc. v. Spanish Peaks Dev., LLC, 2013 MT 1, ¶ 28, 368 Mont. 143, 292 P.3d 432. Clear error exists if substantial credible evidence fails to support the findings of fact, if the district court misapprehended the evidence’s effect, or if we have a definite and firm conviction that the district court made a mistake. Boyne USA, ¶ 28. We review for correctness a district court’s conclusions of law. Boyne USA, ¶ 28. DISCUSSION ¶22 Whether the District Court properly determined that Roland had no ditch easement across property owned by Davis? ¶23 Roland contends that any water rights appurtenant to the 50-acre parcel passed to him upon his purchase from Russ in 1993. He cites the Court’s decision in Adams v. Chilcott, 182 Mont. 511, 518, 597 P.2d 1140, 1145 (1979), to support the general proposition that 8 water rights accompany the land “if the property is transferred without an express reservation of the appurtenant water rights.” We agree that any water rights associated with the 50-acre parcel passed to Roland. ¶24 Roland further argues that he also received a ditch easement “by operation of law” upon transfer of the property to provide a delivery system of the appurtenant water rights. This Court long has recognized, however, that ditch easements and water rights represent separate and distinct property rights. Mildenberger v. Galbraith, 249 Mont. 161, 166, 815 P.2d 130, 134 (1991). Indeed, “[o]ne may own a water right without a ditch right, or a ditch right without a water right.” Connolly v. Harrel, 102 Mont. 295, 300, 57 P.2d 781, 783 (1936). ¶25 Roland acknowledges that the warranty deed that memorialized the transfer from Russ to him in 1993 contains no mention of any express easement. Roland argues on appeal, however, that he received an “implied easement” from existing use. Roland points out that the same person formerly owned both the Davis property and the 50-acre parcel now owned by Roland. The former owner irrigated the place of use on the 50-acre parcel with water transported through the Smith Ditch across the Davis property. ¶26 Roland needed to prove the following three elements at trial in order to establish an easement by implication: (1) separation of title; (2) a use that is apparent and continuous at the time the property is divided; and (3) reasonable necessity of the easement for the beneficial enjoyment of the land granted or retained. Albert G. Hoyem Trust v. Galt, 1998 MT 300, ¶¶ 22-23, 292 Mont. 56, 968 P.2d 1135. Roland satisfies the first factor as the 9 Davis property and the 50-acre parcel owned by Roland remained under common ownership until 1993. ¶27 We address in more detail the second factor. With respect to the apparent nature of the ditch, Roland argues that Davis should have discovered the ditch easement through “reasonable inspection.” Discovery upon reasonable inspection represents the “minimum standard that must be met” to establish apparent use. Hoyem Trust, ¶ 23. This reasonable inspection, according to Roland, takes two forms. First, the 2008 deed from Russ to Davis conditioned the title “SUBJECT TO all . . . easements . . . apparent on the premises.” Roland argues that the mere presence of the “subject to” language in the deed “provides constructive notice of the possible existence of an easement or other encumbrance.” ¶28 We generally have required the constructive notice provided by these “subject to” provisions in deeds to be accompanied by evidence on the ground, or on a plat, of a potential easement or encumbrance. For example, in Burleson v. Kinsey-Cartwright, 2000 MT 278, ¶¶ 20-21, 302 Mont. 141, 13 P.3d 384, cited by Roland, the party opposed to the easement had constructive notice of an easement provided by the “subject to” provision in the deed and actual notice of the existence of an easement when she had inspected the property before purchase. The undisputed evidence in the record indicated that “all roads, including summer access roads, were developed and in place before any tract of land within the subdivision was sold.” Burleson, ¶ 21. Consequently, the objector’s on-site inspection of the property before she purchased the property had converted the constructive notice provided by the deed into actual notice of the easements. Burleson, ¶ 21. 10 ¶29 The second form of reasonable inspection urged by Roland involves the reality of the property at the time of the purchase in 2008, irrespective of the language in the deed. Roland contends that Davis admitted that portions of the ditch and remnants of the ditch remained visible at the time of the trial. He further cites the reports and expert testimony of Uhlig and Turek that included discussion of existing portions of the ditch. By comparison with Burleson, however, Davis testified that he saw no evidence of any ditches on the property when he inspected it before purchase in the winter of 1994. He admitted to having seen some remnants of ditches after the snow had melted in the spring. Trees grew in the ditch remnants and no water ever flowed. More ditch remnants became visible on Davis’s property only after Davis had completed the tree thinning program. ¶30 More importantly, with respect to the continuous use of the alleged easement, the District Court found that the 50-acre parcel owned by Roland had not been irrigated “at least since 1979.” The court cited first the series of USDA aerial photographs that showed forest gradually covering the place of use on the 50-acre parcel. The court also relied upon the fact that the roadway system across the Davis property and the 50-acre parcel prevented use of Smith Ditch to transport irrigation water from Bunkhouse Creek to the place of use on the 50-acre parcel. The District Court found that the roadway system “was constructed prior to 1979, was in use prior to purchase by the parties of their respective properties, and remains in use today.” The court finally determined that the roadway system had “obliterated portions of the Smith Ditch.” 11 ¶31 Davis argues further that the Smith Ditch was in use “[a]t no time during the Russes’ ownership of the property.” Russ did not acquire the Davis property or the 50-acre parcel until 1981. The District Court specifically found that the place of use on the 50-acre parcel had not been irrigated since at least 1979. The roadway system that obstructed use of Smith Ditch had been constructed before 1979. Substantial evidence in the record supports these findings of the District Court. Boyne USA, ¶ 28. ¶32 Roland argues that mere nonuse proves insufficient to establish intent to abandon an easement. We agree. The Court in Shammel v. Vogl, 144 Mont. 354, 362, 396 P.2d 103, 107 (1964), affirmed a determination by the district court that an easement holder had not abandoned the easement. The Court acknowledged that abandonment involves a voluntary act that requires “a concurrence of act and intent.” Shammel, 144 Mont. at 359, 396 P.2d at 106. The testimony presented in the record related “exclusively to establishing periods of nonuser” with no evidence of intent. Shammel, 144 Mont. at 362, 396 P.2d at 107. ¶33 Roland’s claim of an implied easement means that he must do more than simply demonstrate that his predecessor-in-interest did not intend to abandon Smith Ditch. Roland must establish apparent and continuous use of Smith Ditch at the time that he purchased the 50-acre parcel from Russ in 1993. Hoyem Trust, ¶ 23. The District Court found that no water had flowed through Smith Ditch “at least since 1979.” Unlike the mere nonuse in Shammel, Roland’s predecessor-in-interest actually had created the impediments to the use of Smith Ditch through the installation of the roadway system. No functioning ditch existed when the Russ took title to the property in 1981. 12 ¶34 Roland failed to present evidence that Russ, or another predecessor-in-interest, took any steps to undo these impediments to the use of the Smith Ditch before Russ split the 50- acre parcel and the Davis property. Russ did not install new culverts to allow water to pass through the ditch at the numerous points where it crossed the roadway system. Russ did not remove trees that blocked the ditch. And Russ did not clear any trees from the place of use of the irrigation water on the 50-acre parcel. ¶35 Roland cites only to the fact that Russ filed a statement of claim in 1982 for water rights from Bunkhouse Creek with a place of use on the 50-acre parcel now owned by Roland. Ditch easements and water rights represent separate and distinct property rights. Mildenberger, 249 Mont. at 166, 815 P.2d at 134. Nothing contradictory arises from the fact that Roland may own a water right from Bunkhouse Creek without a ditch right to transport the water to its place of use on his 50-acre parcel. Connolly, 102 Mont. at 300, 57 P.2d at 783. ¶36 Substantial evidence supports the District Court’s determination that Roland failed to establish continuous use of the Smith Ditch easement at the time that Roland purchased the 50-acre parcel from Russ in 1993. The deed that transferred the 50-acre parcel contains no mention of the Smith Ditch easement. Roland failed, in turn, to establish that he had received an implied easement for the use of Smith Ditch when he purchased the property. Hoyem Trust, ¶¶ 22-23. Roland’s failure to establish that he had received an implied easement relieves us of the need to evaluate whether Roland’s predecessor-in-interest intended to abandon the Smith Ditch easement. 13 ¶37 Affirmed. /S/ BRIAN MORRIS We concur: /S/ LAURIE McKINNON /S/ BETH BAKER /S/ PATRICIA COTTER /S/ JIM RICE | June 4, 2013 |
920cff23-220b-454d-acc5-2cf04384ec06 | In re K.B. | 2013 MT 133 | DA 12-0705 | Montana | Montana Supreme Court | DA 12-0705 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 133 IN THE MATTER OF: K.B. and T.B., Youths in Need of Care. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause Nos. DDN-11-006 and DDN-11-007 Honorable Dirk M. Sandefur, Presiding Judge COUNSEL OF RECORD: For Appellant: Nancy G. Schwartz, Attorney at Law, Billings, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana John Parker, Cascade County Attorney, Matthew S. Robertson, Deputy County Attorney, Great Falls, Montana Submitted on Briefs: April 17, 2013 Decided: May 14, 2013 Filed: __________________________________________ Clerk May 15 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 C.B., a member of the Chippewa Cree Tribe, appeals an order of the Eighth Judicial District Court, Cascade County, alleging that the court terminated her parental rights without following the requirements of the federal Indian Child Welfare Act, 25 U.S.C. § 1901 et. seq. We restate the issue on appeal as follows: Whether the termination proceedings complied with statutory requirements for proceedings involving Indian children. ¶2 We reverse the District Court’s termination order and remand the case for the purpose of curing statutory deficiencies and holding a new termination hearing. PROCEDURAL AND FACTUAL BACKGROUND ¶3 C.B. (Mother) is an enrolled member of the Chippewa Cree Tribe (Tribe). Each of her two children—two-year-old K.B. and five-year-old T.B.—qualifies as an “Indian child” under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1903(4). ICWA’s procedural requirements for involuntary proceedings involving Indian children and its criteria for termination of parental rights thus govern this case. ¶4 On January 21, 2011, Mother, while extremely intoxicated, took the children outside for a walk in cold weather conditions. Proceeding down a busy street, Mother tipped the stroller over, causing the children to fall into snow and sleet. The children were transported to the emergency room to be treated for hypothermia and then were placed in a youth protective facility. Mother was arrested for two counts of felony criminal endangerment. After communicating with Mother, Kami Moore, the Montana Department of Public Health and Human Services (Department) child protection 3 specialist assigned to the case, placed the children with their maternal grandmother in Box Elder, Montana. ¶5 On January 28, 2011, the Department filed a Petition for Emergency Protective Services, Adjudication as Youth in Need of Care and Temporary Legal Custody. The District Court set a show cause hearing on the petition for March 7, 2011. On February 2, 2011, the court issued a citation to Mother, directing her to appear at the hearing. The Cascade County Attorney’s Office sent notice of the hearing to the Tribe by certified mail, return receipt requested, on February 3, 2011. At the March 7, 2011 show cause hearing, Mother appeared with her attorney and stipulated that her children were youths in need of care. The court adjudicated the children as youths in need of care and granted temporary legal custody to the Department, pending a dispositional hearing. ¶6 A dispositional hearing was held on April 11, 2011, at which the Department presented a proposed treatment plan for Mother, who did not appear but was represented by counsel. Mother’s counsel did not object to the treatment plan and stated that he had not had contact with Mother. Among other provisions, the plan required Mother to maintain sobriety, complete a chemical dependency evaluation, submit to random drug and alcohol screenings, acquire a stable residence, maintain employment, demonstrate that she could financially support the children, and maintain contact with Moore and with the children. Following the hearing, the court entered an order adopting the State’s proposed treatment plan for Mother, approving the children’s current placement with their maternal grandmother and granting temporary legal custody of the youths to the Department for six months. 4 ¶7 The Tribe filed a Notice of Appearance and Intervention on June 29, 2011. The notice stated that “the Tribe’s social service and other personnel will be available to assist the Court in its deliberations” and that the Tribe was reserving the right “to move for a transfer of jurisdiction in this cause should that become necessary.” The District Court held a status hearing on July 11, 2011, at which Mother appeared and agreed to follow the treatment plan. ¶8 The court granted the Department several extensions of temporary legal custody of the children between September 2011 and July 2012, as Mother attempted to complete the treatment plan but made limited progress. The court also held numerous status hearings, at which Mother’s counsel often appeared without Mother and reported that he had had no contact with her. Moore’s reports also indicated that Mother, in contravention of the treatment plan, failed to keep in contact with Moore and with the children. Those events, detailed below, led the Department to develop a plan for permanent placement of the children and eventually seek termination of Mother’s parental rights. ¶9 On October 3, 2011, the District Court held a hearing on the State’s petition to extend legal custody, at which Mother was present with counsel and the Tribe appeared telephonically. The court granted the State’s petition to extend temporary legal custody for an additional six months “to allow the Mother to complete her treatment plan and to allow the child[ren] to be reunified with the Mother.” ¶10 On January 23, 2012, the court held a status hearing, at which Mother was not present but was represented by counsel. The Department informed the court that it intended to seek termination of Mother’s parental rights. According to the court, 5 Mother’s attorney “took no position because he had not had any contact with his client in quite some time.” ¶11 On April 13, 2012, the county attorney filed a Petition to Extend Temporary Legal Custody. The attached affidavit of Moore stated that: [Mother] . . . has not had any contact with me for four months. The numbers that she has provided me with have either been disconnected or are wrong numbers. [Mother] is not engaged with any of her services providers or me. [Mother] does not visit with her children so she is losing any connection she may have had with them. A few days later, the county attorney filed a Motion for Permanency Plan Hearing and Notice of Permanency Plan Report. The attached report and plan, prepared by Moore, stated that the Department’s “primary goal” was “reunification with the birthmother [sic], dependent on the completion of the treatment plan,” but “if reunification does not occur[,] the concurrent plan is adoption with family.” The report noted that the children’s maternal grandmother expressed desire to serve as the children’s permanent placement. ¶12 On April 16, 2012, the court held a hearing on the proposed permanency plan, at which Mother was present with her counsel and, according to the court, “took no position” on the plan. The court’s April 24, 2012 order adopting the permanency plan stated that “Mother stipulated to the extension of Temporary Legal Custody for a period of 3 months and to the permanency plan. The Mother stated that she is currently in chemical dependency treatment and is attempting to demonstrate that she is committed to completing the treatment plan.” ¶13 On June 20, 2012, the county attorney filed another petition to extend temporary legal custody so that Mother would have “time to work towards the successful 6 completion of her respective court-ordered treatment plan.” Moore’s attached affidavit stated once again that Mother had not been in contact with her and the Department would “start the termination process.” ¶14 On September 17, 2012, the county attorney filed a Petition for Permanent Legal Custody and Termination of Parental Rights. The petition requested termination of Mother’s parental rights pursuant to § 41-3-609(1)(f), MCA, due to failure to comply with the court-ordered treatment plan. The District Court set a termination hearing for October 22, 2012. ¶15 Mother appeared with counsel at the termination hearing and contested the termination of her parental rights, suggesting instead that the State be granted a long-term guardianship of the children. The Tribe did not appear. Mother’s attorney informed the court: I don’t think alcoholism is a reason to terminate under the Indian Child Welfare Act. My client has been making visits. My client is employed. And my client has been going to group care, in regard to an alcohol issue. The Indian Child Welfare Act does not encourage termination regarding alcoholism. . . . Because counsel could not support his client’s position with a specific citation to ICWA, the court responded that it could not consider counsel’s objection: “I’m saying, for the record, to the Montana Supreme Court and to you, frankly, I can’t consider an objection on legal authority that’s not cited to the Court.” ¶16 The court heard testimony from Anna Fisher, the State’s ICWA expert, who opined that the children would be “at risk” if returned to Mother’s custody and that termination was “in the best interest of the children.” 7 ¶17 At the conclusion of the hearing, the District Court terminated Mother’s parental rights. The court’s November 1, 2012 order stated that, “except for a period of time between February and July of 2011, where mother was living with her mother, the maternal grandmother, in Box Elder with the child[ren] and grandmother under a safety plan, mother has not completed any requirement of her treatment plan.” The court noted that Mother had been given numerous opportunities to comply with the treatment plan, but had on every occasion failed to follow through. The court also relied on Fisher’s hearing testimony, which it summarized as follows: A qualified Indian Child Welfare Act expert testified at this hearing and testified essentially that continued or resumed custody of the children with the mother was likely to result in immediate risk of harm to the children, due to the mother’s failure to obtain and maintain a stable home as required by her treatment plan, and the immediate danger of alcohol relapse, due to her continued untreated Chemical Dependency problem. The court found that “termination is not contrary to the customs of the Chippewa Cree Tribe,” and that “circumstance[s] of abject failure or refusal of a parent to engage and endeavor in any positive manner, to address manifest parental problems” supported its decision to terminate Mother’s parental rights. Mother appeals. STANDARD OF REVIEW ¶18 We review for an abuse of discretion the district court’s decision to terminate parental rights. In the Matter of T.W.F. and A.R.M., 2009 MT 207, ¶ 17, 351 Mont. 233, 210 P.3d 174. In a case governed by ICWA, we will uphold the district court’s termination of parental rights if a reasonable fact-finder could conclude beyond a reasonable doubt that continued custody by the parent is likely to result in serious 8 emotional or physical damage to the child. T.W.F., ¶ 18 (citing In the Matter of A.N., 2005 MT 19, ¶ 19, 325 Mont. 379, 106 P.3d 556). “A district court’s application of the law to the facts of a case is a legal conclusion which we review to determine whether the interpretation of the law is correct.” In re J.W.C., 2011 MT 312, ¶ 15, 363 Mont. 85, 265 P.3d 1265 (quoting In re C.H., 2000 MT 64, ¶ 9, 299 Mont. 62, 997 P.2d 776). ¶19 ICWA provides that “any parent or Indian custodian from whose custody such [Indian] child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of section 1911, 1912, and 1913 of this title.” 25 U.S.C. § 1914. DISCUSSION ¶20 Whether the termination proceedings complied with statutory requirements for proceedings involving Indian children. ¶21 Congress enacted ICWA in 1978 to address the “alarmingly high” percentage of Indian families “broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies” and the “alarmingly high” percentage of placement of those children “in non-Indian foster and adoptive homes and institutions.” 25 U.S.C. § 1901(4). Thus, in order to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families,” ICWA provides minimum federal standards, which must be followed strictly by state courts, to ensure that placement “will reflect the unique values of Indian culture.” 25 U.S.C. § 1902; see Guidelines for State Courts; Indian Child Custody Proceedings (ICWA Guidelines), 44 Fed. Reg. 67584, 67586, § A.1 (Nov. 26, 1979) (“Proceedings in state courts involving 9 the custody of Indian children shall follow strict procedures and meet stringent requirements to justify any result in an individual case contrary to these preferences.”). ¶22 Mother argues that notice of the termination proceedings was insufficient under ICWA, which provides: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. . . . No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary . . . . 25 U.S.C. § 1912(a). As a preliminary matter, we disagree with the State that Mother’s failure to object before the District Court waives our review of this issue. A “court of competent jurisdiction” under 25 U.S.C. § 1914 has been held to include an appeals court; thus, failure to comply with ICWA notice requirements may be raised for the first time on appeal. See In re Gabriel G., 206 Cal. App. 4th 1160, 1166 (Cal. App. 2012) (recognizing that “[t]he issue of ICWA notice is not waived by the parent’s failure to first raise it in the trial court”) (internal citation omitted). We are in agreement with numerous other jurisdictions that 25 U.S.C. § 1914 “specifically confers standing on a parent to petition a court to invalidate a termination proceeding upon showing that notice requirements have not been satisfied.” In the Interest of W.D.H., 43 S.W.3d 30, 38 (Tex. App. 2001); see also In re L.A.M., 727 P.2d 1057, 1059 (Alaska 1986); In re S.M.H., 103 P.3d 976, 981-82 (Kan. App. 2005). 10 ¶23 Mother concedes that “[w]hen the proceedings first began, the State filed notice in compliance with the Act,” but argues that the State did not provide sufficient notice of the termination proceedings. Mother points out that no certificate of service was filed with the court or attached to the petition for termination—even if there was, she argues that the Tribe should have received notice of the termination proceeding by registered mail with return receipt requested, at least ten days prior to the termination hearing. ¶24 As noted, the Tribe received notice of the initial dependency proceedings by registered mail, in accordance with 25 U.S.C. § 1912(a), and filed a notice of intervention in the case. The State’s September 17, 2012 Petition for Permanent Legal Custody and Termination of Parental Rights, as well as the court’s order setting the termination hearing, indicate by notation that copies were “cc’d” to Mother, Mother’s counsel and the Tribe, but the Petition includes no accompanying certificate of service and the record contains no documentation to demonstrate that timely service was accomplished.1 The Tribe did not appear at the termination hearing. ¶25 This Court has found persuasive the ICWA Guidelines adopted by the Bureau of Indian Affairs and applies them in Indian child custody cases. J.W.C., ¶ 21. The Guidelines state that “[t]he time limits are minimum ones required by the Act.” ICWA Guidelines, 44 Fed. Reg. at 67589, § B.5. The ICWA Guidelines further provide that 1 A certificate of service executed by the Cascade County Sheriff indicates that Mother may have been served on October 14, 2012—only eight days prior to the termination hearing—with copies of the Citation, Order to Show Cause, Notice of Show Cause and Adjudicatory Hearing, and Temporary Legal Custody, and Affidavit of Child Protection Specialist for Emergency Protective Services and Temporary Legal Custody. The document thus does not verify that Mother was served with notice of the termination proceedings. It does not even include Mother’s correct name. 11 “[t]he original or a copy of each notice sent pursuant to this section shall be filed with the court together with any return receipts or other proof of service” so that “there will be a complete record of efforts to comply with the Act.” ICWA Guidelines, 44 Fed. Reg. at 67588-89, §§ B.4(d)-B.5. Since the record does not reflect that both Mother and the Tribe received notice ten days in advance of the hearing, we conclude that notice was insufficient under 25 U.S.C. § 1912(a). See People ex rel. S.R.M., 153 P.3d 438, 442 (Colo. App. 2006) (failure to provide notice of termination proceedings “violates the plain meaning of 25 U.S.C. § 1912(a),” even where the state provided proper notice of the dispositional hearing); S.H. v. Calhoun Co. Dept. of Human Res., 798 So. 2d 684, 692 (Ala. Civ. App. 2001) (same). ¶26 Mother argues next that the State failed to demonstrate beyond a reasonable doubt that her continued custody was “likely to result in serious emotional or physical damage [to] her children” and “that the Department utilized ‘active efforts’ to reunite [Mother] with her children.” ¶27 We agree with Mother that the State’s case lacked the required expert testimony that Mother’s conduct would likely cause serious emotional or physical harm to the children. ICWA provides: No termination of parental rights may be ordered . . . in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912(f). Additionally, Montana’s statute governing the termination of parental rights was amended in 2005 to include the following: 12 (5) If a proceeding under this chapter involves an Indian child and is subject to the federal Indian Child Welfare Act, a qualified expert witness is required to testify that the continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. Section 41-3-609(5), MCA (emphasis added). ¶28 Though “a district court need not conform its decision to the expert’s testimony,” the language of both ICWA and § 41-3-609(5), MCA, makes clear that expert testimony on the issue is necessary in making a termination decision. See In re D.S.B., 2013 MT 112, ¶ 18, ___ Mont. ___, ___ P.3d ___; A.N., ¶ 32; T.W.F., ¶ 26. Accordingly, failure to elicit expert testimony regarding whether continued custody will result in serious emotional or physical damage to the children requires reversal of the termination order. ¶29 Here, as noted, the ICWA expert was questioned regarding whether the children would be “at risk” if placed in Mother’s custody and whether termination was “in the best interest of the children”—not whether Mother’s continued custody would likely result in serious emotional or physical damage. Fisher testified in pertinent part as follows: Q. Okay. Based on this case, do you believe that the children would be at risk if they were to be returned to their mother? A. With the mother not having a stable home of her own, yes, I do. . . . Q. What about mother’s chemical dependency issues and the fact that she hasn’t had to complete any treatment? A. I just briefly spoke with the mother and she said that she’d been clean for a while, but I don’t know that. So – Q. Okay. 13 A. – but with chemical dependency, no, I would not return them. Q. Okay. And do you believe that termination is in the best interest of the children at this time? A. At this point, yes. . . . THE COURT: What’s the risk that you’re concerned about? THE WITNESS: Of them being returned to their mother? THE COURT: Yes. THE WITNESS: Not a stable home environment and relapsing, for the mother. Right now they’re in a safe environment with their grandmother. And like I said, she has brothers and sisters that are able to help out. . . . [CROSS-EXAMINATION] Q. Good morning. Do you think, if, given additional time or more of an opportunity, that [Mother] could follow through with the chemical dependency and become a functioning parent of these children? A. I believe it could happen, yes, I do. In the absence of expert testimony that continued custody with Mother would likely result in serious emotional or physical damage to the children, the evidentiary record does not meet the statutory standard to support the required finding beyond a reasonable doubt. Based on Fisher’s testimony, the District Court found that placement with Mother was “likely to result in immediate risk of harm to the children”—an insufficient finding under 25 U.S.C. § 1912(f) and § 41-3-609(5), MCA, to support the court’s termination order. 14 ¶30 The ICWA Guidelines indicate that evidence of alcohol abuse alone is insufficient to determine “that continued custody is likely to result in serious emotional or physical damage to the child.” ICWA Guidelines, 44 Fed. Reg. at 67593, § D.3.c. While the court properly may consider all evidence presented during the hearing in determining the sufficiency of the evidence for termination, the Montana statute was amended after this Court decided A.N. and leaves no doubt that the evidence must include the expert’s opinion that serious emotional or physical damage to the children will result if they are left in the parent’s custody. Section 41-3-609(5), MCA. “The evidence must show the causal relationship between the conditions that exist and the damage that is likely to result.” ICWA Guidelines, 44 Fed. Reg. at 67593, § D.3.c. Fisher’s testimony fell short of this standard. ¶31 Finally, Mother argues that the State failed to demonstrate that it made “active efforts” to prevent the breakup of the Indian family. 25 U.S.C. § 1912(d) provides: Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. We have clarified that the State must demonstrate beyond a reasonable doubt that active efforts were made to prevent the breakup of the Indian family. In the Matter of G.S., 2002 MT 245, ¶ 33, 312 Mont. 108, 59 P.3d 1063; D.S.B., ¶ 15. We observed in G.S. that a “[c]ommon sense construction of the meaning of ‘active efforts’ requires only that ‘timely affirmative steps be taken to accomplish the goal which Congress has set: to avoid the breakup of Indian families whenever possible by providing services [designed] 15 to remedy problems which might lead to severance of the parent-child relationship.’ ” G.S., ¶ 36 (quoting Letitia v. Super. Ct., 81 Cal. App. 4th 1009, 1016 (Cal. App. 2000)). In meeting this “heightened responsibility,” the State “cannot simply wait for a parent to complete a treatment plan.” T.W.F., ¶ 27. Nor does placement with a family member automatically satisfy the standard. Courts have held that “placement is a separate issue from active efforts, and that the two issues must be analyzed separately. The exception to that rule — under which a placement decision may be relevant to an active efforts analysis — applies when a child’s placement directly impacts a parent’s ability to participate in remedial efforts.” Thea G. v. State, 291 P.3d 957, 963 (Alaska 2013); see also David S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 270 P.3d 767, 780 (Alaska 2012) (“[P]lacement decisions present a separate analytical question from termination decisions.”); In re A.A., 167 Cal. App. 4th 1292, 1318 (Cal. App. 2008) (“ICWA and . . . California’s statutory law address the issue of an Indian child’s placement separately from the issue of active efforts. Following their lead, we distinguish the issue of placement from that of active efforts.”). ¶32 In this case, the State’s implementation of a safety plan to maintain a trial home visit at the maternal grandmother’s house demonstrated an effort to prevent breakup of the Indian family. Its presentation at the termination hearing, however, focused on the standards for termination under Montana law; neither the State nor the court in its findings of fact and conclusions of law expressly addressed whether ICWA’s heightened standard for active efforts was met. 16 ¶33 Because we are reversing for a new termination hearing, the State will have the opportunity to further develop the record regarding “active efforts” that were made and the court’s findings of fact should address those efforts. As we have held, the court also may consider “a parent’s demonstrated apathy and indifference to participating in the treatment.” A.N., ¶ 23. Here, while the court’s findings of fact and conclusions of law properly contain detailed information about Mother’s repeated failures, the court did not address the Department’s active efforts to provide services and programs aside from finding that the State developed a treatment plan tailored to address Mother’s chemical dependency problem. ¶34 In conclusion, our review of the record reveals that the termination proceedings did not comply with the mandates of ICWA and its parallel state provisions. Mother and the Tribe should have received notice of the petition for termination at least ten days in advance of the termination hearing, but the record does not substantiate that they did. 25 U.S.C. § 1912(a). At the termination hearing, the ICWA expert was required to testify as to whether Mother’s continued custody was “likely to result in serious emotional or physical damage to the child[ren],” but she did not. 25 U.S.C. § 1912(f); § 41-3-609(5), MCA. The State was required to satisfy the District Court that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful,” but the District Court’s termination order does not discuss which, if any, “active efforts” were made. 25 U.S.C. § 1912(d). ICWA sets minimum federal standards for proceedings 17 involving Indian children, and we are compelled to make sure its requirements are followed. 25 U.S.C. § 1902. ¶35 Accordingly, we reverse the District Court’s termination order and remand the case for the purpose of holding a new termination hearing. Because we reverse, we do not reach Mother’s argument that she received ineffective assistance of counsel. /S/ BETH BAKER We concur: /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ JIM RICE | May 15, 2013 |
bb56f8f1-3c70-404d-b269-a34b2db6d65d | IN THE MATTER OF THE RULES OFAPPELL | 2007 MT 334 | AF 07-0016 | Montana | Montana Supreme Court | IN THE SUPREME COURT OF THE STATE OF MONTANA - -". ~ -LED No. AF 07-0016 ~ 1 MAY 08 2013 IN RE ADDING TO THE MONTANA RULES OF APPELLATE PROCEDURE A RULE ON JUDICIAL WAIVER APPEALS ) ) ) 'Ed Smitli o R D E R _",RK OF THE SUPREME COURT STATE OF MONTANA In November of2012, the People ofthe State ofMontana approved by referendum the Parental Notice ofAbortion Act of2011. That Act provides, in pertinent part, that this Court may adopt rules providing for an expedited confidential appeal by a petitioner if the youth court denies a petition for a waiver of the Act's parental notification requirement. The Office ofthe Appellate Defender (OAD) proposed a rule to be added to the Montana Rules of Appellate Procedure to address expedited confidential appeals in such matters. We published the proposed rule and invited public comment. Numerous comments were filed; the comment period has now expired. In the meantime, the 2013 Montana Legislature enacted HB 391, which repeals the Parental Notice of Abortion Act as of July 1, 2013. HB 391 generally requires parental consent prior to an abortion for a minor and, in a provision that parallels the expedited confidential appeal provision ofthe Parental Notification ofAbortion Act, provides for an expedited confidential appeal by a petitioner if a youth court denies a petition for waiver of the parental consent requirement. HB 391 has an effective date ofJuly 1,2013. With some modifications, including some suggested in the public comments already filed and some suggested by members of the Court, OAD's proposed rule for expedited confidential appeals appears to be appropriate for adoption for use with the statutes enacted under HB 391 (2013). May 8 2013 Therefore, IT IS ORDERED that, for 30 days following the date ofthis Order, public comments will be accepted on the attached proposed rule on judicial waiver appeals under HB 391. Persons wishing to make such comments shall file their comments, in writing, with the Clerk of this Court. Following the expiration of the public comment period, the Court will take such further action as it deems appropriate. This Order and the attached proposed Rule 30 of the Montana Rules of Appellate Procedure shall be published on this Court's website. The Clerk is directed to provide copies ofthis order and the attached proposed Rule to OAD and to the State Bar ofMontana, with the request that the State Bar provide notice of, and a link to the text of, the proposed rule on its website and in the Montana Lawyer. DATED this 'b day of May, 2013.~~ /-ft-- ~Iv-... --- Justices 2 Rule 30. Judicial waiver appeals. (1) Scope. This rule applies to an appeal from an order denying or dismissing a petition filed by a minor under age 16 to waive parental consent to an abortion, pursuant to Title 50, Chapter 20. In such appeals, this rule supersedes the other appellate rules to the extent they may be inconsistent with this rule. (2) Notice of appeal. (a) A minor may appeal an order denying or dismissing a petition to waive parental consent by filing a notice ofappeal with the clerk ofthe supreme court. The notice of appeal may be filed in person, by mail, or by fax. If a transcript or written order is available, it should be attached to the notice of appeal, but such notice shall not be defective if it does not include such transcript or order. (b) If a notice of appeal is incorrectly filed in a youth or district court, the clerk thereof shall immediately notify the clerk of the supreme court of such filing, and shall transmit a copy of the notice of appeal by fax or e-mail for filing with the supreme court. (c) The notice of appeal must indicate that the appeal is being filed pursuant to this rule, but the court will apply this rule to cases within its scope whether they are so identified or not. (d) Blank notice ofappeal forms and copies ofthese rules will be available at all court locations and will be mailed, emailed, or faxed to a minor upon request. (e) No filing fees or fee for any service may be required of a minor who files an appeal under this provision. (3) Record on appeal; standard of review. A youth court that conducts proceedings for judicial waiver of consent shall issue written and specific findings of fact and conclusions oflaw supporting its decision and shall order that a confidential record of the evidence, findings, and conclusions be maintained. The record on appeal consists ofthe confidential record ofthe youth court, including all papers and exhibits filed in the youth court, the written findings and conclusions of the youth court, and, if available, a recording or transcript of the proceedings before the youth court. Ifthe appellant has counsel, counsel shall serve the clerk ofthe youth court with a copy of the notice ofappeal, request the record from the clerk ofthe youth court, and arrange for expedited preparation of the transcript immediately upon filing the notice of appeal. If the appellant does not have counsel, the clerk of the supreme court shall request the record immediately upon receiving notice that a self-represented minor has filed a notice of appeal, and the clerk of the youth court shall arrange for expedited preparation ofany transcript directly with the court reporter. Upon receiving a request for the record from counsel for the appellant or from the clerk ofthe supreme court, the clerk ofthe youth court shall forthwith transmit the record to the supreme court by fax, e-mail, overnight mail or in another manner that will cause it to arrive within 48 3 hours, including weekends and holidays, after the youth court's receipt ofthe request for the record. (4) Brief. A briefis not required. However, the minor may file a memorandum in support ofthe appeal within 48 hours, including weekends and holidays, after filing the notice of appeal. (5) Disposition. The supreme court may designate a panel offive or more ofits members to consider the appeal. The supreme court shall review the decision ofthe youth court de novo. The supreme court shall enter an order stating its decision within 72 hours, not including weekends and holidays, after the record referred to in (3) is filed. The supreme court shall issue an opinion explaining the decision as soon as practicable following entry of the order. (6) Confidentiality. (a) Documents, proceedings, and audio or video recordings in an appeal under this rule are sealed. All persons are strictly prohibited from notifying the minor's parents, guardian, or custodian that the minor is pregnant or wants to have an abortion, and from disclosing this information to any person. The court shall not release the name of, or any other identifying information concerning, a minor who files a judicial waiver appeal. (b) All statistical and general information that the court system may have concerning judicial waiver appeals is confidential, except the number of appeals filed, granted, and denied statewide each year is public information. (7) Attorney. If the minor is not represented by an attorney, the clerk of the supreme court shall appoint the office ofthe state public defender to represent the minor in the appeal. If counsel was assigned to represent the minor in the youth court, the appointment continues through the appeal. All counsel shall immediately be served with copies of the Court's order by fax or e-mail. In the event a minor waives the right to have counsel appointed on appeal, then notice of the court's order will be served upon her at the address or location she has provided to the clerk ofthe supreme court. The minor or her counsel shall be provided a certified copy ofthe order upon request. (8) Filing defined. For purposes ofthis rule only, an appeal is deemed filed at the time and on the date it is received by the clerk of the supreme court. (9) Special rule for interpreting time requirements. Ifthe end ofa time limit set out in this rule falls upon a weekend or holiday, then the time limit is extended to noon on the next business day. 4 | May 8, 2013 |
f63cb5b5-e2d6-4d06-9bbc-1128af412a68 | DeRosier v. State | 2013 MT 137N, 2013 MT 13N | DA 12-0390 | Montana | Montana Supreme Court | DA 12-0390 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 137N LOUIS DeROSIER, 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-11-1037 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Colin M. Stephens, Briana E. Schwandt, Smith & Stephens, P.C., Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Fred Van Valkenburg, Missoula County Attorney, Patricia Bower, Deputy County Attorney, Missoula, Montana Submitted on Briefs: April 10, 2013 Decided: May 21, 2013 Filed: __________________________________________ Clerk May 21 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 noncitable memorandum opinion and shall not be cited and does not serve 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 Louis DeRosier was convicted of felony DUI in 2010. Here, he petitioned the Fourth Judicial District Court, Missoula County, for postconviction relief on grounds that he received ineffective assistance of counsel at his trial. We affirm the District Court’s decision dismissing DeRosier’s petition for postconviction relief. ¶3 DeRosier raises three issues on appeal. He contends he was denied effective assistance in that his trial counsel failed to move to suppress his pre- and post-Miranda statements to police. He also contends he received ineffective assistance in that his trial attorney failed to object to the admission of those statements or to the prosecutor’s reference to them at trial, and failed to object to comments the prosecutor made during closing argument about DeRosier’s credibility. ¶4 Claims of ineffective assistance of counsel are reviewed under the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To prevail on a claim of ineffective assistance, a defendant must demonstrate that (1) counsel’s performance was deficient, and (2) counsel’s deficient performance prejudiced the defendant. State v. Whitlow, 2001 MT 208, ¶ 17, 306 Mont. 339, 33 P.3d 877. If the 3 defendant fails to make a sufficient showing on one prong of the Strickland test, then there is no need to address the other prong. Bomar v. State, 2012 MT 163, ¶ 8, 365 Mont. 474, 285 P.3d 396. Ineffective assistance claims present mixed questions of law and fact that we review de novo. Rogers v. State, 2011 MT 105, ¶ 12, 360 Mont. 334, 253 P.3d 889. ¶5 As to the first two issues on appeal, the District Court ruled that DeRosier had not satisfied the prejudice prong of the Strickland test. The inquiry under this prong of the test focuses on whether counsel’s allegedly deficient performance renders the trial result unreliable or the proceeding fundamentally unfair. State v. Jefferson, 2003 MT 90, ¶ 53, 315 Mont. 146, 69 P.3d 641. In this case, the District Court observed that the State had presented strong evidence that DeRosier was impaired, other than the evidence relating to his statements to police. The arresting officer testified that he observed DeRosier speeding 15 miles per hour over the limit, and that DeRosier smelled of alcohol, his movements were unsteady, and his eyes were bloodshot and glassy. The officer also testified that DeRosier exhibited four out of six alcohol impairment signs on the horizontal gaze nystagmus test, and performed poorly on field sobriety maneuvers. The jury viewed a video of DeRosier’s processing at the jail, which showed him holding the wall repeatedly, and throwing his arms out and weaving while attempting the walk and turn. Also, DeRosier testified at trial that he had consumed four “twisted ice teas” before his arrest. Because DeRosier claims he would not have testified at his trial if a motion to suppress had been filed and granted, we have not considered his testimony in relation to these issues. We conclude that, even disregarding DeRosier’s trial testimony, DeRosier 4 has failed to establish a reasonable probability that, but for counsel’s failure to move to suppress or object to the admission of DeRosier’s pre- and post-Miranda statements, the result of the proceeding would have been different. Therefore, further analysis of the first two issues on appeal is unnecessary. ¶6 The third issue in this appeal, regarding prosecutorial misconduct, should have been raised in the trial court and on direct appeal of DeRosier’s conviction, but it was not. Nor was it raised in the postconviction proceeding in the District Court. As a result, this claim is barred under § 46-21-105(2) and (3), MCA, and also has been waived—see State v. Gouras, 2004 MT 329, ¶ 26, 324 Mont. 130, 102 P.3d 27. ¶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. Upon de novo review, we conclude that DeRosier has not established that he was denied effective assistance of counsel. The decision of the District Court is affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON | May 21, 2013 |
473e6639-6767-44f1-8d7e-8793bbdfb0c2 | Sampson v. Sampson | 2013 MT 127N | DA 12-0328 | Montana | Montana Supreme Court | DA 12-0328 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 127N MARY C. SAMPSON, Petitioner and Appellee, v. KENNY G. SAMPSON, Respondent and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DR 11-843 Honorable Edward McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Raymond P. Tipp; Torrance L. Coburn; Tipp and Buley, P.C. Missoula, Montana For Appellee: Klaus D. Sitte; ASUM Legal Services; Missoula, Montana Submitted on Briefs: April 10, 2013 Decided: May 7, 2013 Filed: __________________________________________ Clerk May 7 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. 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 The Missoula Municipal Court entered an order prohibiting Kenny G. Sampson from threatening or committing acts of violence against, harassing, annoying or disturbing the peace of, contacting or attempting to contact, or being within 500 feet of his former wife Mary C. Sampson. Kenny appealed to the Fourth Judicial District Court, which affirmed the Municipal Court’s order. Kenny now appeals the District Court’s decision, and we affirm. ¶3 The issue on appeal is whether the claims in Mary’s petition to the Missoula Municipal Court were barred by the doctrine of res judicata and a lack of sufficient evidence that Mary was in danger of harm absent the order of protection. ¶4 The parties divorced in 1995, after a 20-year marriage. In the Final Decree of Dissolution, the Ravalli County District Court found that Mary was “in need of a permanent restraining order except for the purposes of carrying out the provisions of the Marital Settlement Agreement,” and the Decree made permanent the Temporary Restraining Order she had obtained earlier in the proceedings. 3 ¶5 In October of 2011, Kenny asked the Ravalli County District Court to modify the decree of dissolution by removing the above-referenced order of protection. Mary did not appear to respond, and the court granted Kenny’s motion to remove the order of protection. ¶6 Three days later, Mary filed for an order of protection in Missoula County, where she then lived. The Missoula Municipal Court granted a temporary order of protection and, in November of 2011, held a hearing on whether it should make the order of protection permanent. Both Mary and Kenny testified at the hearing, as did one of their adult daughters. Following the hearing, the court granted Mary’s request for a permanent order of protection. Kenny appealed to the Fourth Judicial District Court, which upheld the decision of the Municipal Court. ¶7 Kenny now appeals to this Court. As he did in the Municipal Court and on appeal to the District Court, he argues that Mary’s claims before the Municipal Court are barred by the doctrine of res judicata, because they already have been adjudicated in Ravalli County. Kenny also argues that Mary failed to establish that she was in danger of harm if the order of protection was not issued. ¶8 Our standard of review is whether the Municipal Court abused its discretion in making the order of protection permanent. See Edelen v. Bonamarte, 2007 MT 138, ¶ 6, 337 Mont. 407, 162 P.3d 847. ¶9 Under § 40-15-301, MCA, Montana courts have concurrent jurisdiction to enter orders of protection. Therefore, a protected individual is not precluded from pursuing 4 cumulative remedies in multiple courts. The Municipal Court and the District Court were correct that res judicata did not bar Mary’s request for a protective order from the Municipal Court. ¶10 In their testimony before the Municipal Court, Mary and her daughter both described a brutal history of domestic abuse by Kenny during the parties’ marriage. In addition, Mary testified about two recent events that caused her to fear for her safety from Kenny. The court stated it credited the recently-removed Ravalli County protective order for the relative lack of problems in the preceding 16 years. The court found that there is an uncontroverted history of violence in the relationship; that Mary’s fear of harm is real and palpable; and that without an order of protection she would reasonably be in danger. ¶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. The District Court correctly applied Montana law and did not abuse its discretion in affirming the Municipal Court’s grant of a permanent order of protection. ¶12 The District Court’s order is affirmed. /S/ BETH BAKER We concur: /S/ PATRICIA COTTER /S/ BRIAN MORRIS /S/ JIM RICE /S/ LAURIE McKINNON | May 7, 2013 |
7e91c6bd-fbb1-47a8-9bc9-35665261372c | City of Missoula v. Girard | 2013 MT 168 | DA 12-0553 | Montana | Montana Supreme Court | DA 12-0553 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 168 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-12-214 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Jeffrey T. Renz, University of Montana School of Law, 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, Hendricks, Deputy City Attorney, Missoula, Montana Submitted on Briefs: April 10, 2013 Decided: June 20, 2013 Filed: __________________________________________ Clerk June 20 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 The Missoula Municipal Court found John Steven Girard guilty of disorderly conduct, a misdemeanor, in violation of § 45-8-101, MCA. Girard appealed to the Fourth Judicial District Court, Missoula County, which affirmed the conviction. Girard now appeals to this Court. We reverse on the single issue regarding Girard’s request for a jury trial. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Girard was cited with disorderly conduct on November 6, 2011. He entered a plea of not guilty. On November 7, the Municipal Court issued a Scheduling Order. Among other things, the Scheduling Order set a hearing for February 15, 2012, “to confirm jury or to enter a change of plea.” The order further stated (in large print) that “Defendant and his/her attorney must be present at this hearing. Defendant’s failure to appear shall be deemed a waiver of jury and the Court shall set a non-jury trial.” Girard signed this document, acknowledging that he had received a copy of it. ¶3 On January 4, 2012, the Missoula City Attorney and Girard’s counsel signed an Omnibus Hearing Memorandum and Scheduling Order. In addition to identifying affirmative defenses, discovery requirements, and motions in limine, the memorandum and order specifically stated (in bold print): “The defendant’s failure to appear at the final pre-trial hearing will constitute a waiver of jury trial.” ¶4 Girard and his attorney both appeared, as required, for the February 15, 2012 hearing. At that time, the Municipal Court set the final pretrial hearing for March 14 and a jury trial for March 15. However, although Girard’s counsel appeared for the March 14 3 hearing, Girard himself did not appear.1 Girard’s counsel advised the Municipal Court that Girard was developmentally disabled and that his disability likely explained his absence from the March 14 hearing. Counsel objected to resetting the case for a nonjury trial. Nevertheless, the Municipal Court deemed Girard’s nonappearance as a waiver of his right of trial by jury. The court set another final pretrial hearing for April 10 and a nonjury trial for April 16. The court indicated to Girard’s counsel, however, that it would reconsider its decision regarding Girard’s waiver if counsel presented evidence of Girard’s disability. ¶5 Girard and his counsel appeared for the April 10, 2012 final pretrial hearing. At that time, Girard orally moved to vacate the April 16 bench trial and reset the matter for a jury trial. The Municipal Court denied the motion. The next day, Girard filed a Motion to Reconsider Defendant’s Motion to Set Jury Trial. Girard represented that his absence from the March 14 hearing had been due to his developmental disabilities and medical conditions which affected his memory. Girard attached to his motion the affidavit of Rhonda Eickholt, an advanced practice registered nurse in the field of mental health. The affidavit states, in pertinent part: 2. Mr. Girard has been a patient of mine since October 2011. 3. Mr. Girard has a positive history of traumatic brain injury from a severe accident as a child. 4. Mr. Girard has cognition, memory, stress, and anxiety difficulties as well as symptoms of attention deficit hyperactivity disorder. 5. Mr. Girard struggles with hearing issues which can impair his responses to and cues from the environment. 1 Counsel represents in Girard’s opening brief on appeal that Girard arrived at the courthouse one hour late. 4 6. Mr. Girard’s medical issues contribute to the difficulties he has with meeting and keeping appointments, deadlines, and being organized in general. 7. I understand that Mr. Girard missed a court appointment. This would not be unusual considering his memory and cognitive issues. 8. It is necessary to take Mr. Girard’s medical issues into consideration when setting appointments and deadlines and to make reasonable accommodations for them. Girard also submitted his medical records from Providence St. Patrick Hospital. These records, dated November 3, 2011, indicated that Girard suffers from panic attacks and a seizure disorder, that he was being treated by a psychologist, and that he had been prescribed numerous daily medications including Phenytoin, Phenobarbital, Klonopin, Lortab, Flexeril, and Vyvanse. Girard’s medical records indicated, as well, that due to his disabilities, Girard was receiving services from a personal care attendant. ¶6 The Municipal Court summarily denied Girard’s motion on April 16, 2012, and proceeded to a nonjury trial that same day. The Municipal Court found Girard guilty of disorderly conduct. ¶7 Girard appealed his conviction to the District Court, arguing that the Municipal Court had incorrectly interpreted the disorderly conduct statute (§ 45-8-101, MCA), that the disorderly conduct statute, as interpreted by the Municipal Court, is unconstitutionally overbroad, and that the Municipal Court had abused its discretion in denying Girard his right to a jury trial. The District Court affirmed, concluding that the Municipal Court had correctly interpreted the disorderly conduct statute and that Girard’s conviction was supported by substantial evidence. The District Court further determined, based on City of Missoula v. Cox, 2008 MT 364, 346 Mont. 422, 196 P.3d 452, and State v. Trier, 2012 5 MT 99, 365 Mont. 46, 277 P.3d 1230, that Girard’s failure to appear at the March 14, 2012 hearing, “without more evidence of a disability,” constituted a waiver of Girard’s right to a jury trial. This appeal followed. ISSUE ¶8 Girard raises three issues on appeal. First, he asserts that the District Court “incorrectly interpreted and incorrectly applied” § 45-8-101, MCA. We construe his ensuing analysis to be, in substance, an argument that the evidence presented at trial was insufficient to support his conviction for disorderly conduct. Second, Girard argues that the Municipal Court abused its discretion when it denied him his right of trial by jury. Third, Girard challenges the admission of a 911 report on grounds of hearsay and his Sixth Amendment right of confrontation. Because we conclude that it is necessary to reverse and remand this case for a retrial based on Girard’s right of trial by jury, we need not, and do not, address his sufficiency-of-the-evidence and hearsay/confrontation arguments. We restate the dispositive issue as follows: Did the District Court correctly determine, on appeal from the Municipal Court, that Girard’s failure to appear at the March 14, 2012 final pretrial hearing constituted a waiver of his right of trial by jury? STANDARDS OF REVIEW ¶9 On Girard’s appeal from the Municipal Court, the District Court functioned as an intermediate appellate court. See §§ 3-5-303 and 3-6-110, MCA. On Girard’s appeal to this Court, we review the case as if the appeal originally had been filed in this Court. City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461. We examine 6 the record independently of the District Court’s decision, applying the appropriate standard of review. Cantu, ¶ 10. ¶10 We review de novo a lower court’s conclusions of law and interpretations of the Constitution. Cox, ¶ 5; Trier, ¶ 10. Our review of questions involving constitutional law is plenary. Cox, ¶ 5; Trier, ¶ 10. We review discretionary trial court rulings, including trial administration issues, for abuse of discretion. State v. Price, 2006 MT 79, ¶ 17, 331 Mont. 502, 134 P.3d 45. Judicial discretion, however, must be guided by the rules and principles of law. Price, ¶ 17. A 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. Wohl v. City of Missoula, 2013 MT 46, ¶¶ 28, 57, 369 Mont. 108, 300 P.3d 1119. DISCUSSION ¶11 Article II, Section 26 of the Montana Constitution provides the right of trial by jury. It states: “The right of trial by jury is secured to all and shall remain inviolate. But upon default of appearance or by consent of the parties expressed in such manner as the law may provide, all cases may be tried without a jury . . . .” Mont. Const. art. II, § 26. Furthermore, by statute, a defendant who is charged with a misdemeanor offense “may appear by counsel only, although the court may require the personal attendance of the defendant at any time.” Section 46-16-120, MCA. These constitutional and statutory provisions are the foundation upon which we resolve the instant question. ¶12 Girard does not dispute that a court may require the personal attendance of the defendant in misdemeanor cases. Girard also does not dispute that a defendant’s failure 7 to appear when directed to do so may constitute a waiver of the right of trial by jury. Girard objects, however, to a rigid “he missed his court date, therefore he waived his jury” rule. He argues that a waiver premised on the defendant’s default of appearance is not effective where circumstances inhibited the defendant from complying with the court’s order. He proffers, for example, that if a defendant attempted to appear at the designated time for a hearing only to find the courtroom door locked, this would not constitute a valid waiver of his right to a jury trial. Or if the courtroom was inaccessible to a disabled defendant, his failure to appear could not be construed as a waiver. Similarly, in the present case, Girard reasons that his disabilities and medical conditions, of which the Municipal Court was made aware, interfered with his ability to appear on time for the final pretrial hearing held March 14, 2012. He argues that the Municipal Court, therefore, abused its discretion in treating his failure to appear as a valid waiver. ¶13 The City, on the other hand, contends that Girard’s failure to appear, and the resulting waiver of his right to a jury trial, are controlled by the law stated in Cox and Trier. Citing these two cases, the City asserts the categorical rule that “a defendant’s nonappearance for a mandatory pretrial conference is a waiver of his right to a jury trial.” The City further argues that the record, in any event, does not support a determination that Girard’s disabilities prevented him from appearing for the March 14 hearing. ¶14 We conclude that the City has misinterpreted our holdings in Cox and Trier. These two precedents, in addition to the aforementioned constitutional and statutory provisions, establish that a misdemeanor defendant may waive his or her right of trial by jury by failing to appear as directed by the court. However, an automatic finding of 8 waiver due to nonappearance, without consideration of the circumstances of the particular case, would be contrary to Article II, Section 26 and, more specifically, the language of that provision stating that a case “may” be tried without a jury upon default of appearance. ¶15 In Cox, a notice similar to that issued by the Municipal Court in the present case stated that “[f]ailure to appear by Defendant and counsel will be considered a waiver of jury.” Cox, ¶ 2. Because Cox did not appear with his defense counsel at the hearing, the court concluded that he had waived his right to a jury trial and issued a notice setting a nonjury trial. The nonjury trial was twice continued on Cox’s motion. Then, two days prior to the final setting, Cox filed an objection to the nonjury trial. Cox did not appear for the trial, at which time the court heard defense counsel’s argument on the objection, overruled the objection, and then proceeded with the nonjury trial in Cox’s absence, finding him guilty of the charges. Cox, ¶ 3. ¶16 On appeal, Cox did not raise a factual argument that his waiver was invalid, as Girard has done here. Rather, Cox raised a legal argument that a court cannot treat a defendant’s nonappearance as a waiver of his right of trial by jury. Cox, ¶ 8. This Court held that “[a] simple reading of Section 26 demonstrates that a default of appearance by a defendant may result in a non-jury trial.” Cox, ¶ 11. We explained that “[t]he language of Section 26 is unambiguous and unqualified. It clearly allows for trial without a jury upon the defendant’s failure to appear, notwithstanding the defendant’s lack of explicit agreement that his non-appearance results in a waiver.” Cox, ¶ 10. But we did not state that a court must always find waiver upon every instance of a defendant’s failure to 9 appear. Indeed, as noted, the constitutional provision specifically provides that the court “may” try the case without a jury. Any rule to the contrary is inconsistent with Article II, Section 26. ¶17 We revisited Cox and Article II, Section 26 in Trier. After four trial continuances to accommodate Trier’s college schedule, both Trier and his counsel failed to appear at the final pretrial conference because counsel had inadvertently miscalendared the pretrial conference date. The court deemed this nonappearance to be a waiver and set a nonjury trial, at which time Trier was found guilty. Trier, ¶¶ 3-7. In upholding the court’s ruling, we noted that “Trier’s waiver was not forced upon him. Trier’s waiver resulted from his failure to appear for his final pretrial conference—due to his counsel’s scheduling error— despite multiple orders from the Justice Court mandating his appearance and warning him that failure to be present would result in a waiver of his right to a jury trial.” Trier, ¶ 15. This situation in Trier, involving a careless oversight by counsel, is distinguishable from a situation, like the present case, where the defendant’s developmental disabilities and medical conditions prevent or pose a barrier to his ability to arrive promptly at the time set for the final pretrial hearing. ¶18 We are very much aware of the demands placed on the trial courts—both limited and general jurisdiction—and the need for trial courts to manage jury panels, issue jury summonses, and handle overburdened trial schedules. These management concerns are further complicated by the uncertainty of whether a given matter will be resolved by plea agreement or whether trial counsel will request a continuance. In this environment, Cox and Trier recognize that, under Article II, Section 26, a trial court may deem a 10 defendant’s right of trial by jury waived due to nonappearance at a designated hearing. We do not, by our decision herein, intend to undermine or abrogate our holdings in those cases. ¶19 Nevertheless, the constitutional and statutory provisions must not be interpreted in such a manner as to permit a categorical rule of automatic waiver whenever a defendant fails to appear for a mandatory hearing, particularly where circumstances are present which call into question the defendant’s ability to comply with the court’s order requiring his appearance. Article II, Section 26 provides that, upon default of appearance, the case “may” be tried without a jury. This language grants the trial court discretion to manage the proceedings and to conduct the trial without a jury where the defendant has failed to appear for a mandatory hearing. It does not, however, mandate waiver in every instance. In exercising its discretion, and in deeming a defendant’s nonappearance to be a waiver of his or her fundamental right of trial by jury, the court must remain mindful of any circumstances, demonstrated by the defendant, that inhibited his or her ability to comply with the court’s order. ¶20 In this instance, Girard appeared at all mandatory hearings except the March 14, 2012 final pretrial hearing. Girard’s counsel appeared at the March 14 hearing and represented that his client’s absence likely was due to his disabilities. Counsel asked that Girard’s jury trial not be waived. The Municipal Court nonetheless deemed Girard’s absence to be a waiver of the jury trial, although the court invited Girard’s counsel to file a motion to reconsider that ruling. Girard’s counsel thereafter filed a motion to reconsider and supported the motion with an affidavit from one of Girard’s mental health 11 providers. Counsel also provided Girard’s medical records. These documents substantiated the existence of a significant brain injury and developmental disability, as well as memory and cognitive issues, consistent with an inability to make timely appearances. Eickholt’s unrebutted affidavit states that “Mr. Girard’s medical issues contribute to the difficulties he has with meeting and keeping appointments, deadlines, and being organized in general.” The affidavit further states that “[i]t is necessary to take Mr. Girard’s medical issues into consideration when setting appointments and deadlines and to make reasonable accommodations for them.” In light of this affidavit and Girard’s medical records, combined with defense counsel’s appearance and affirmative representation at the March 14 hearing that Girard was not waiving his right of trial by jury, we conclude that the Municipal Court abused its discretion in deeming Girard’s failure to appear at that hearing as a waiver of his right to a jury trial, and the District Court likewise erred in upholding this ruling. ¶21 For the foregoing reasons, the District Court’s decision is reversed. We remand this case with instructions to vacate Girard’s conviction and for a new trial consistent with this Opinion. In so doing, we do not reach the first and third issues presented in Girard’s brief. ¶22 Reversed and remanded for further proceedings. /S/ LAURIE McKINNON 12 We Concur: /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BRIAN MORRIS Justice Jim Rice, dissenting. ¶23 I believe the Court faults the Municipal Court for errors it did not make and that this decision will cause confusion and undermine the processing of cases filed in courts of limited jurisdiction. ¶24 Crediting Girard’s argument that the Municipal Court imposed “a rigid ‘he missed his court date, therefore he waived his jury’ rule,” the Court faults the Municipal Court for imposing “a categorical rule of automatic waiver” for Girard’s failure to appear, reasoning that “an automatic finding of waiver due to nonappearance, without consideration of the circumstances of the particular case” is improper. Opinion, ¶¶ 12, 14, 19. However, the record does not support the conclusion that the Municipal Court imposed such a categorical rule.1 After deeming Girard’s default in appearance as a waiver of his right to a jury trial, the Municipal Court responded to defense counsel’s objection by stating it was willing to reconsider the waiver determination and asked 1 The Court mischaracterizes, in my view, the City’s argument in the same way. The Court states that “the City asserts the categorical rule that ‘a defendant’s nonappearance for a mandatory pretrial conference is a waiver of his right to a jury trial.’” Opinion, ¶ 13. However, the City does not use the term “categorical rule” or argue for application of such a rule. Rather, the City’s argument merely states the legal principle we approved in Trier and Cox. The Court recognizes in ¶ 16 that the Cox holding was premised upon a legal, as opposed to factual, determination. 13 counsel to present evidence concerning Girard’s disability. Thus, the Municipal Court imposed no “categorical rule of automatic waiver.” Rather, it provided Girard with an opportunity to demonstrate that there was good cause for his default that would justify setting it aside. The Court’s declaration that “Cox and Trier recognize that, under Article II, Section 26, a trial court may deem a defendant’s right of trial by jury waived due to nonappearance,” but the Constitution does not “permit a categorical rule of automatic waiver,” Opinion, ¶¶ 18, 19, merely attacks the straw man proposition that the Municipal Court acted inconsistently with that principle. However, the Municipal Court, instead of applying a rule of automatic waiver, undertook reconsideration of the matter and reviewed the evidence Girard offered in explanation for his failure to appear. I don’t know what more the Court wants—the Court does not explain what procedure the Municipal Court should have employed—and courts of limited jurisdiction will likewise be hard pressed to know what more the Court wants in order to avoid the assertion that they are applying a “categorical rule of automatic waiver.” ¶25 After reconsideration, the Municipal Court, based upon review of Girard’s evidence, concluded that good cause for Girard’s nonappearance had not been demonstrated, and affirmed the waiver. The District Court agreed, and so do I. First, I would note that Girard’s assertion that he appeared only an hour late was not entered into the record by Girard and, therefore, could not have been part of the Municipal Court’s determination. I would thus disregard it. Then, Girard produced evidence indicating that he suffered from a cognitive disability and other medical issues. However, regarding his default in appearance, his mental health nurse’s affidavit merely stated that “miss[ing] a 14 court appointment . . . would not be unusual considering his memory and cognitive issues.” Although this demonstrates that Girard has a general difficulty with remembering appointments, it fails to demonstrate that Girard’s default in this particular appearance was caused by, or related to, his difficulties.2 The Court’s reversal of the District Court and the Municipal Court on this evidence essentially grants a license for Girard to miss all court appointments, because he generally has trouble remembering them. ¶26 I would affirm the District Court’s holding that the Municipal Court’s handling of the matter was procedurally appropriate, and that it did not abuse its discretion in denying Girard’s request to set aside his default in appearance upon the evidence Girard here presented. ¶27 I dissent. /S/ JIM RICE 2 The additional averments in the affidavit cited by the Court in ¶ 20 likewise fail to demonstrate that Girard’s condition had any direct impact on the particular nonappearance at issue here. | June 20, 2013 |
73ef8f85-f797-4a7c-9618-567f2aab32b2 | State v. Steigelman | 2013 MT 153 | DA 12-0275 | Montana | Montana Supreme Court | DA 12-0275 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 153 STATE OF MONTANA, Plaintiff and Appellee, v. MICHAEL JAMES STEIGELMAN, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 09-417 Honorable G. Todd Baugh, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender; Kristen L. Larson, 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; Victoria Callender, Deputy County Attorney, Billings, Montana Submitted on Briefs: February 20, 2013 Decided: June 6, 2013 Filed: __________________________________________ Clerk June 6 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 The State of Montana (State) charged Michael James Steigelman (Steigelman) with felony DUI and two misdemeanors on July 29, 2009. Steigelman filed a motion to dismiss the charges based on an alleged violation of his right to a speedy trial on June 1, 2010, in the Thirteenth Judicial District Court, Yellowstone County. The District Court denied Steigelman’s motion. Steigelman later entered a guilty plea to DUI pursuant to a plea agreement with the State. In return, the State agreed to drop the two misdemeanor charges. Steigelman appeals the District Court’s denial of his motion to dismiss on the speedy trial grounds. We affirm. ¶2 We address on appeal whether the State violated Steigelman’s constitutional right to a speedy trial. FACTS AND PROCEDURAL BACKGROUND ¶3 A Billings, Montana police officer heard a loud crash at an intersectionon the evening of July 29, 2009. The officer saw a vehicle, driven by Steigelman, drive onto the road’s center cement median. Steigelman had struck a road sign and broke it off its mount. The officer observed Steigelman then swerve back onto the road. The officer stopped Steigelman. The officer approached him and immediately noticed that Steigelman’s eyes were bloodshot, that Steigelman’s speech was slurred, and that Steigelman smelled of alcohol. Steigelman admitted to having hit the sign and told the officer he had consumed “about eight to ten beers.” Steigelman failed to complete the standard field sobriety tests. He also refused to provide a breath sample. 3 ¶4 The State charged Steigelman with felony DUI and two misdemeanors. Steigelman appeared for his arraignment on August 3, 2009. The court released Steigelman on bail on August 6, 2009, after he had spent eight days in jail. ¶5 The District Court originally set Steigelman’s omnibus hearing for November 9, 2009, and his trial for January 19, 2010. Steigelman did not appear at the November 9, 2009, omnibus hearing. Steigelman’s appointed counsel advised the court at the hearing that Steigelman and he had not been in contact. Steigelman’s counsel indicated that he planned to seek a continuance of the trial. ¶6 The District Court designated a triple homicide case as the number one trial setting for January 19, 2010. This conflict required the court to reschedule Steigelman’s trial. The District Court reset the omnibus hearing for March 29, 2010, and the trial for June 8, 2010. Steigelman attended the omnibus hearing with counsel from the Office of the Public Defender. The District Court granted a motion to substitute Jeffrey Michael as Steigelman’s counsel on May 18, 2010. The court’s order included a notation of the June 8, 2010, trial date. Steigelman filed a motion to continue the trial on May 27, 2010. Steigelman waived his right to speedy trial as part of his motion. The District Court set a new trial date of September 28, 2010. ¶7 Steigelman filed a motion to dismiss the charges against him on June 1, 2010, based on the State’s alleged violation of his right to speedy trial. The parties briefed the motion and the court conducted a hearing on October 4, 2010. The court heard testimony from Steigelman, the arresting officer, and the State’s counsel in the triple homicide case that had 4 prompted the court to reset Steigelman’s first trial date. ¶8 The court agreed with Steigelman that the duration of the pretrial delay justified further review. The court attributed most of the delay to the State due to institutional causes. The court observed that Steigelman had made efforts to proceed to trial, but that he had not complained about previous delays. The court further observed that Steigelman had served only eight days in jail and that he had been unable to articulate any anxiety or concern beyond that normally associated with a person accused of a crime. ¶9 The court opined that pretrial delay likely had not caused prejudice to Steigelman’s defense, despite Steigelman’s claim of being unable to locate two potential witnesses. The court noted that Steigelman’s admission to having consumed eight to ten beers on the night of his arrest raised questions as to how those two potential witnesses—a former girlfriend and a bartender who had observed Steigelman earlier that evening— could have assisted his defense. The court noted further that the State’s only witness, the arresting officer, had been available for questioning and remained able to testify at trial. STANDARD OF REVIEW ¶10 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. Ariegwe, 2007 MT 204, ¶ 119, 338 Mont. 442, 167 P.3d 815. Whether the factual circumstances establish a speedy trial violation presents a question of law. Ariegwe, ¶ 119. We review de novo a district court’s conclusion of law. Ariegwe, ¶ 119. DISCUSSION 5 ¶11 Whether the State violated Steigelman’s constitutional right to a speedy trial? ¶12 The Sixth Amendment and Fourteenth Amendment to the United States Constitution, and Article II, Section 24 of the Montana Constitution, guarantee a criminal defendant the right to a speedy trial. We revised our framework to analyze speedy trial claims in Ariegwe to track the balancing approach outlined by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972). A court must balance four factors in considering a claim of denial of the right to speedy trial: (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. State v. Billman, 2008 MT 326, ¶ 11, 346 Mont. 118, 194 P.3d 58; Ariegwe, ¶ 20. ¶13 None of the four speedy trial factors, on its own, is dispositive. We must consider the related factors together with other relevant circumstances. Ariegwe, ¶ 153. Moreover, each factor’s significance depends on the unique facts and circumstances of the case. Ariegwe, ¶ 105. We now proceed to review and balance the four speedy trial factors. ¶14 Length of the delay. We consider the length of delay from the date that the State files the charges until the defendant’s trial date. Here 426 days elapsed between the time that the State charged Steigelman on August 3, 2009, and his September 28, 2010, trial date. We have established 200 days, regardless of fault for that delay, as the length of time that triggers further speedy trial analysis. Ariegwe, ¶ 62. No one contests that Steigelman’s delay exceeded the 200-day trigger. Thus, we must analyze the other speedy trial factors ¶15 Reasons for the delay. Under this factor, the court identifies and attributes responsibility for each period of delay in bringing the accused to trial. The weight assigned 6 to a period of delay depends on the type of delay and possible motive, if any, behind the delay. Ariegwe, ¶ 67. We characterize as institutional that delay due to the inherent nature of the criminal justice system. Institutional delay weighs less heavily than intentional attempts by the State to delay the trial. State v. Stops, 2013 MT 131, ¶ 27, ___ Mont. ___, ___ P.3d ___; Ariegwe, ¶ 108. ¶16 The District Court did not issue findings as to each period of delay. The court attributed the bulk of the total delay, however, to the State as institutional delay. For example, the 174 days between Steigelman’s arrest and the first trial date represents institutional delay attributable to the State. The court also attributed to the State the 140 days between the first trial date and the second trial date. This 140-day delay occurred as a result of a scheduling conflict between Steigelman’s first trial date and a deliberate homicide trial also set for that same date. We agree with the District Court that institutional delay properly attributed to the State constituted 314 days of the delay. ¶17 The third period of delay consisted of 112 days between Steigelman’s second trial setting on June 8, 2010, and his third trial setting on September 28, 2010. The court attributed this 112-day period to Steigelman due to his request for more time to investigate and develop his speedy trial claim. We agree. The 314 days that the District Court attributed to the State, on its own, however, exceeds the 200-day trigger for further speedy trial analysis. Ariegwe, ¶ 62. ¶18 The accused’s responses to the delay. Under the third speedy trial factor, the court evaluates the totality of the accused’s responses to the delay to ascertain “whether the 7 accused actually wanted a speedy trial.” Ariegwe, ¶ 79. An accused certainly has “‘no duty to bring himself to trial.’” Ariegwe, ¶ 82 (quoting Barker, 407 U.S. at 527, 92 S. Ct. at 2190). The defendant’s responses to the delay nevertheless represent “an ‘important’ consideration” in determining whether a defendant’s right to a speedy trial has been violated. Ariegwe, ¶ 76, (quoting Barker, 407 U.S. at 534, 92 S. Ct. at 2194). ¶19 We consider the totality of a defendant’s responses to the delay to ascertain whether the defendant “actually wanted a speedy trial” and what weight is to be given to the other three factors in our analysis. Ariegwe, ¶ 79. We consider circumstances such as the “timeliness, persistence, and sincerity of the objections, the reasons for the acquiescence, whether the accused was represented by counsel, [and] the accused’s pretrial conduct (as that conduct bears on the speedy trial right).” Ariegwe, ¶ 80. ¶20 The District Court recognized that, in many cases, “the last thing the defendant really wants is a speedy trial.” The court opined that a defendant often wants “to be able to complain about not having a speedy trial.” The court ultimately rejected the notion, however, that Steigelman wanted to postpone his trial. The court concluded that Steigelman’s conduct did not “fit[] the description” of a defendant seeking to manufacture a speedy trial violation. Nothing in the record leads us to disagree with the District Court’s conclusion that Steigelman’s actions did not constitute a tacit attempt to manufacture a speedy trial claim. State v. Sartain, 2010 MT 213, ¶ 25, 357 Mont. 483, 241 P.3d 1032. ¶21 Prejudice to the accused. We finally analyze the prejudice to Steigelman that may have occurred as a result of the State’s delay in bringing him to trial. We consider three sub- 8 factors when we evaluate prejudice to the accused: (1) oppressive pretrial incarceration; (2) undue prolonged disruption of the accused’s life and aggravated anxiety or concern; and (3) whether the delay has impaired the accused’s ability to present an effective defense. Ariegwe, ¶ 88 (citing Barker, 407 U.S. at 532, 92 S. Ct. at 2193; Doggett v. United States, 505 U.S. 647, 654, 112 S. Ct. 2686, 2692 (1992)). The delay exceeded 200 days and thus we require less proof of prejudice from the defendant and a greater showing of lack of prejudice from the State. Stops, ¶ 41. ¶22 Steigelman suffered minimal pretrial incarceration. The court released Steigelman on bond eight days after his arrest. The four days of pretrial incarceration served by the defendant in Stops comports with Steigelman’s experience. Stops, ¶ 42. We rejected a speedy trial claim in Stops. Stops, ¶ 46. By contrast, we affirmed a district court’s determination of a speedy trial violation in Billman where the defendant spent 278 days in jail before his trial. See Billman, ¶ 39. The eight days that Steigelman spent in jail fails to rise to the level of oppressive pretrial incarceration. Stops, ¶ 42; Billman, ¶ 39. ¶23 With respect to prolonged disruption, Steigelman argued that he had suffered stress due to the fact that his case had not moved ahead rapidly. We have recognized that criminal charges engender a certain amount of inherent anxiety and concern. Billman, ¶ 43. We focus on the extent to which the pretrial delay “has unduly prolonged the disruption of the accused’s life or aggravated the accused’s anxiety or concern.” Billman, ¶ 43, citing Ariegwe, ¶ 97. The generalized stress described by Steigelman differs little from the stress that any person accused of a crime would suffer. 9 ¶24 Other factors that we consider under this provision include employment loss, financial and economic loss, and whether the accused’s associations were curtailed. Ariegwe, ¶ 96. Steigelman claimed that a condition of his release on bond prevented him from driving. He testified that this condition forced him to ask his boss to drive him 200 miles for each of his court appearances. The State points out that Steigelman admitted that his Illinois driver’s license had expired before his arrest on the DUI charge. Steigelman failed to present evidence that he had obtained another valid license. It appears that the expiration of Steigelman’s Illinois driver’s license would have prevented him from driving lawfully even without the condition imposed by the court. ¶25 We agree with the District Court that Steigelman failed to present sufficient evidence to establish that the State’s institutional delay in bringing him to trial caused undue prolonged disruption of his life and aggravated anxiety or concern beyond what any person accused of a crime would suffer. Billman, ¶ 43. Steigelman did not put on evidence that the pretrial delay had caused him to lose his job or suffer economic loss. It appears that Steigelman maintained his employment throughout the period of pretrial delay as evidenced by his claim that his boss had to drive him to court appearances. ¶26 We likewise agree with the District Court that Steigelman failed to establish that the State’s institutional delay inhibited his ability to present an effective defense. Steigelman argued to the District Court that his brief eight-day pretrial incarceration and the prolonged delay in this trial that followed left him unable to locate two potential witnesses. Steigelman claimed that his former girlfriend and the bartender who served him could testify as to how 10 much he had to drink before his arrest. Nothing in the record indicates that Steigelman’s eight days of pretrial incarceration prevented him from locating his former girlfriend, whom he alleges had accompanied him for part of the night in question, and the bartender who served him. Steigelman could testify with no more specificity than the fact that he had broken up with his former girlfriend “not much longer after the arrest.” ¶27 Steigelman further testified as to efforts to locate the bartender who had served him. He claimed that the owner of the bar had been unable to locate the records due to the fact that “it’s been so long back.” Steigelman did not explain whether he attempted to locate the bartender in the days and weeks after his arrest. More importantly, the relevancy of the testimony of these two potential witnesses seems diminished in light of Steigelman’s admission that he had consumed eight to ten beers on the night of his arrest. The arresting officer further observed Steigelman’s vehicle drive onto the median and strike a road sign. The arresting officer also claimed to have witnessed Steigelman’s bloodshot eyes, his slurred speech, and the fact that Steigelman emanated an odor of alcohol. The arresting officer had been available for questioning during the entirety of the pretrial delay. ¶28 Steigelman argues finally that the District Court improperly gave too much weight to the State’s claimed lack of prejudice suffered by Steigelman from the institutional delay. He claims that the other three speedy trial factors—length of the delay, undue stress and anxiety caused by the delay, and his response to the delay—weigh heavily in his favor. He contends that these three speedy trial factors should tip the scales in favor of a speedy trial violation caused by the State’s institutional delay. Steigelman urges the Court to determine that the 11 426-day delay in his trial on uncomplicated charges was “simply too long.” He argues that the State alone had the duty to bring him to trial within an amount of time commensurate with his right to speedy trial. ¶29 The impairment of the accused’s defense from a speedy trial violation constitutes the most important factor in our prejudice analysis. Doggett, 505 U.S. at 654, 112 S. Ct. at 2692. The inability of the defendant “adequately to prepare his case skews the fairness of the entire system.” Doggett, 505 U.S. at 654, 112 S. Ct. at 2692. We agree with the conclusions reached by the District Court. Steigelman admittedly suffered substantial pretrial delay largely attributed to the State under institutional delay. We balance this substantial delay with the limited pretrial incarceration of eight days that Steigelman suffered. Steigelman failed to demonstrate that the delay aggravated his anxiety beyond the anxiety level expected of a person accused of a crime. Finally, Steigelman failed to demonstrate that he suffered substantial prejudice to the ability to defend himself. The State satisfactorily showed a lack of prejudice in Steigelman’s ability to defend against the charges. Stops, ¶ 45. On balance, these considerations lead us to agree with the District Court that the State did not violate Steigelman’s right to a speedy trial. ¶30 Affirmed. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON 12 /S/ JIM RICE Justice Beth Baker, concurring. ¶31 I concur in the disposition of Steigelman’s appeal, but I write to supplement the Court’s evaluation of the fourth Ariegwe factor. Steigelman expressly argues that where the length of delay is presumptively prejudicial and each of the first three speedy trial factors weighs in his favor, the District Court erred by placing a high burden on him to demonstrate prejudice. Steigelman points out that the District Court denied his motion to dismiss based on its finding that “the prejudice to the defendant is just simply not great in this case.” Noting that the State bears the burden of bringing him to trial, and since the delay was over twice the 200-day trigger, Steigelman argues that it was not his burden to prove “great” prejudice, but the State’s job to make a “highly persuasive showing that [he] was not prejudiced by the delay.” State v. Burns, 2011 MT 167, ¶ 22, 361 Mont. 191, 256 P.3d 944. ¶32 Steigelman raises a point on which our post-Ariegwe decisions have touched but that we have not further developed in analyzing the prejudice factor of the speedy trial analysis. That is, while Ariegwe counsels that no one factor is determinative but that all must be considered together with other relevant circumstances (Opinion, ¶ 13), must prejudice be affirmatively demonstrated in order for an accused’s speedy trial claim to prevail? ¶33 We made clear in Ariegwe that the length of delay plays a significant role in evaluating the prejudice factor. “Thus, the further the delay stretches beyond the trigger 13 date, the stronger is the presumption under Factor Four that the accused has been prejudiced by the delay.” Ariegwe, ¶ 107. In that case, and in several since, we have noted that as the delay increases beyond 200 days, “the State’s burden to justify the delay increases.” State v. Billman, 2008 MT 326, ¶ 18, 346 Mont. 118, 194 P.3d 58 (citing Ariegwe, ¶¶ 56, 62) (emphasis added); see also State v. Hendershot, 2009 MT 292, ¶ 28, 352 Mont. 271, 216 P.3d 754; State v. Stops, 2013 MT 131, ¶ 25, 370 Mont. 226, ___ P.3d ___. Importantly, justification for the delay is part of Factor Two of the speedy trial analysis, not the prejudice factor. We observed in Ariegwe that the length of delay plays a significant role in linking the second and fourth factors. Thus, as the delay stretches further beyond the 200-day trigger date, the required showing of prejudice lessens and the required showing of justification increases. Ariegwe, ¶ 107. ¶34 We also have referred to the “State’s burden” in discussing the prejudice factor, ruling in State v. Couture, 2010 MT 201, ¶¶ 49, 55, 357 Mont. 398, 240 P.3d 987, that the State was required to “make ‘a very persuasive showing’” and that the State bore “a heavy burden to show” that the defendant was not prejudiced by a 924-day delay in bringing the charges to trial. In Couture, while we stated that “the accused’s failure to submit affirmative proof of prejudice is not fatal to a speedy trial claim,” ultimately we concluded that the defendant had “not demonstrated an impaired ability to present an effective defense as a consequence of the delay,” and we therefore rejected his speedy trial claim. Couture, ¶¶ 67, 70. ¶35 Similarly, in State v. Lacey, 2010 MT 6, ¶¶ 24-26, 355 Mont. 31, 224 P.3d 1247, we rejected the defendant’s speedy trial claim notwithstanding a more than eight-year delay, 14 based on the combination of his intentional actions in avoiding being brought to trial and the lack of evidence of direct prejudice to his defense. We noted that, “under certain circumstances, where the length of delay is great, the accused’s burden of presenting affirmative evidence of prejudice is lessened.” Lacey, ¶ 23 (citing State v. Hardaway, 2009 MT 249, ¶ 26, 351 Mont. 488, 213 P.3d 776) (emphasis added). ¶36 Our cases reflect what the U.S. Supreme Court held directly in Doggett: that “affirmative proof of particularized prejudice is not essential to every speedy trial claim.” Doggett, 505 U.S. at 655, 112 S. Ct. at 2692. The Court recognized that “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.” Although it must be considered together with the other factors and “cannot alone carry” a speedy trial claim, presumptive prejudice “is part of the mix of relevant facts, and its importance increases with the length of delay.” Doggett, 505 U.S. at 655-56, 112 S. Ct. at 2692-93. The Court made clear that the government’s negligence in bringing an accused to trial is not “automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him.” Doggett, 505 U.S. at 657, 112 S. Ct. at 2693. The circumstances in Doggett represented the “middle ground” between bad-faith conduct by the government—in which case its eight-and-a-half-year delay in bringing the defendant to trial “would present an overwhelming case for dismissal”—and diligent attempts by the government to locate and prosecute the defendant—in which case his speedy trial claim would fail “as a matter of course however great the delay, so long as Doggett could not show specific prejudice to his defense.” Doggett, 505 U.S. at 656-57, 112 S. Ct. at 15 2693. ¶37 As we held in Ariegwe, “it is doubtful that the mere passage of time could ‘conclusively’ establish that the accused has been denied his or her right to a speedy trial.” Ariegwe, ¶ 60. Thus, although there may be cases where the absence of prejudice will not defeat a speedy trial claim, those cases will be few and far between—most likely a case involving government bad faith or conduct similarly egregious to that involved in Doggett, where the government’s negligence caused delay six times longer than the trigger for review and where “the presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant’s acquiescence, . . . nor persuasively rebutted [by the government].” Doggett, 505 U.S. at 658, 112 S. Ct. at 2694. That combination of factors is not present here. While, as Steigelman notes, several trial dates in this case simply “came and went without action” from the State to bring him to trial, the delay in this case largely was institutional and not attributable to either bad faith or negligence by the State of the sort that would entitle a presumption to carry the day without any showing of actual prejudice. Ariegwe, ¶ 60 (noting Doggett’s combination of excessive delay and the government’s lack of diligence). As the Court holds (Opinion, ¶ 29), the evidence in this case fell short in that showing and the District Court properly denied Steigelman’s motion. /S/ BETH BAKER Justice Laurie McKinnon joins in the concurring Opinion of Justice Baker. 16 /S/ LAURIE McKINNON | June 6, 2013 |
7480a39a-8535-4295-b8cb-71b9aa27924a | McDunn v. Arnold | 2013 MT 138 | DA 12-0438 | Montana | Montana Supreme Court | DA 12-0438 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 138 DAVE McDUNN and CATHY McDUNN, Plaintiffs and Appellees, v. DIANA ARNOLD, Defendant and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV 09-1235B Honorable Mike Salvagni, Presiding Judge COUNSEL OF RECORD: For Appellant: Herman A. Watson, III, Attorney at Law, Bozeman, Montana For Appellee: Rhett B. Nemelka, Nemelka & Restum, P.C., Bozeman, Montana Submitted on Briefs: February 20, 2013 Decided: May 28, 2013 Filed: __________________________________________ Clerk May 28 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Dave and Cathy McDunn (the McDunns) sued Diana Arnold (Arnold) in Gallatin County Justice Court, alleging negligence, negligence per se, and breach of contract. The Justice Court found for the McDunns, and Arnold appealed to the Eighteenth Judicial District Court, Gallatin County. Following a bench trial, the District Court found for the McDunns on their breach of contract claim and awarded them damages, costs, and attorney’s fees. Arnold appeals from the Final Order and Judgment entered against her in District Court. We affirm. ¶2 Arnold presents the following issues for review: ¶3 Issue One: Whether the District Court abused its discretion when it allowed the McDunns to amend their Complaint to add a claim that had not been pled during the Justice Court proceedings. ¶4 Issue Two: Whether the District Court abused its discretion when it denied Arnold’s Motion in Limine to prohibit any reference to the testimony and evidence presented during the Justice Court proceedings. ¶5 Issue Three: Whether Arnold was denied her right to a trial de novo. PROCEDURAL AND FACTUAL BACKGROUND ¶6 In the spring of 2008, the McDunns agreed to lease an apartment from Arnold for thirteen months beginning on June 1, 2008. Before the lease term expired, a dispute arose between the parties, and the McDunns vacated the apartment on January 31, 2009. ¶7 The McDunns filed a complaint against Arnold in the Gallatin County Justice Court, 3 which is not a court-of-record, on August 3, 2009. The McDunns, alleging breach of the terms of the lease, negligence, and negligence per se, sought $1,300 in damages. The Justice Court conducted a bench trial on November 19, 2009. The McDunns were represented by counsel; Arnold represented herself. After the trial, the Justice Court entered a written judgment in the McDunns’ favor, and awarded them $7,059.26 for damages, costs, and attorney’s fees. ¶8 Arnold appealed to the District Court on December 22, 2009, seeking a trial de novo. Through newly enlisted counsel, Arnold filed an Amended Answer and Counterclaims on April 8, 2010, in which, among other things, she added counterclaims that she had not pled during the Justice Court proceedings. On April 9, 2010, the McDunns filed a motion seeking leave to amend their complaint. After the court granted their motion, the McDunns filed an Amended Complaint that added a claim for intentional and negligent misrepresentation. ¶9 Arnold filed a Motion in Limine on October 21, 2011, to prohibit any reference to the testimony given or evidence offered during the Justice Court trial. Arnold claimed that she would be denied her right to a trial de novo if the McDunns were allowed to refer to the prior proceedings. The District Court held that Arnold had not cited any authority to support her argument and denied her motion on November 29, 2011. The District Court conducted a two-day bench trial on February 28 and 29, 2012. The District Court issued Findings of Fact and Conclusions of Law on May 21, 2012. The court ruled in the McDunns’ favor on their Breach of Lease claim, but it found that they had failed to prove their negligence, negligence per se, and intentional and negligent misrepresentation claims. The court ruled against 4 Arnold on all of her counterclaims. The District Court awarded the McDunns $1,444.66 in damages and $20,697 for attorney’s fees and costs. STANDARD OF REVIEW ¶10 Whether a party has been afforded his or her constitutional and statutory right to a trial de novo is a question of law that we review for correctness. State v. Stedman, 2001 MT 150, ¶ 7, 306 Mont. 65, 30 P.3d 353. We review a district court’s decision to allow amended pleadings for an abuse of discretion. Porter v. Galarneau, 275 Mont. 174, 188, 911 P.2d 1143, 1151-52 (1996). A district court’s ruling on a motion in limine is an evidentiary ruling that we also review for an abuse of discretion. Alexander v. Bozeman Motors, Inc., 2012 MT 301, ¶ 22, 367 Mont. 401, 291 P.3d 1120. We review a district court’s findings of fact to determine if they are clearly erroneous, and its conclusions of law to determine if they are correct. Summers v. Crestview Apts., 2010 MT 164, ¶ 11, 357 Mont. 123, 236 P.3d 586. DISCUSSION ¶11 Issue One: Whether the District Court abused its discretion when it allowed the McDunns to amend their Complaint to add a claim that had not been pled during the Justice Court proceedings. ¶12 Arnold argues that the District Court abused its discretion when it allowed the McDunns to amend their Complaint to add a claim that had not been pled during the Justice Court proceedings. District courts have appellate jurisdiction over justice courts. Mont. Const. art. VII, § 4(2); § 3-5-303, MCA. If a party appeals from a justice court that is not a court of record, then the district court must try the case de novo. Section 25-33-301(1), 5 MCA.1 “When the action is tried anew on appeal, the trial must be conducted in all respects as other trials in the district court. . . .” Section 25-33-301(2), MCA. ¶13 The district court proceedings “must be tried anew in the district court on the papers filed in the justice’s or city court unless the court, for good cause shown and on terms that are just, allows other or amended pleadings to be filed in the action.” Section 25-33-301(1), MCA. Good cause is a “legally sufficient reason,” and what constitutes good cause “will necessarily depend upon the totality of the facts and circumstances of a particular case.” City of Helena v. Roan, 2010 MT 29, ¶ 13, 355 Mont. 172, 226 P.3d 601. ¶14 Here, the District Court had the discretion to allow Arnold to file her Amended Answer and Counterclaims on April 8, 2010. In her Amended Answer, Arnold added counterclaims that she had not pled during the Justice Court proceedings. The next day, the McDunns filed a motion seeking leave to amend their Complaint, also a matter within the court’s discretion. Arnold failed to file an answer brief within ten days, so, according to Mont. Unif. Dist. Ct. R. 2(b), the District Court deemed Arnold’s motion as “well taken” and granted them leave to file an Amended Complaint. While the District Court did not specifically address whether the McDunns had good cause to amend as required by § 25-33- 301(1), MCA, we will not hold a district court in error for failing to address an issue that the parties did not raise. Unified Indus., Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, 961 P.2d 100. 1An appeal from a lower court that is a court-of-record is conducted on the record. Section 25-33-301(3), MCA. 6 ¶15 Issue Two: Whether the District Court abused its discretion when it denied Arnold’s Motion in Limine to prohibit any reference to the testimony and evidence presented during the Justice Court proceedings. ¶16 Arnold argues that the District Court abused its discretion when it denied her Motion in Limine to prohibit any reference to the evidence offered or testimony given during the Justice Court proceeding. She contends that references to testimony from a court that is not a court-of-record are impermissible hearsay. Arnold failed to make that argument to the District Court, however, either in her Motion in Limine or during the trial. In her Motion in Limine, Arnold argued that she would be denied her right to a trial de novo and that § 25-33- 301, MCA, prohibited the use of testimony and evidence from being used in the trial de novo. ¶17 Nothing in the provisions of § 25-33-301, MCA, precludes use of prior testimony. In fact, the statute specifically provides that “the trial must be conducted in all respects as other trials in the district court.” Section 25-33-301(2), MCA. When interpreting a statute, our task is to “ascertain and declare what is in its term or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. ¶18 Arnold did not cite any authority in her Motion in Limine to support her argument that all references to the Justice Court hearings should be prohibited. Arnold cited cases and statutes that establish that cases on appeal from a justice court must be tried de novo, but she did not cite authority regarding the admissibility of references to testimony from the lower- court proceedings. Out-of-court statements may be admissible under the hearsay rules. For example, as an exception to the hearsay rule when a declarant is unavailable, M. R. Evid. 7 804(b)(1) allows, under certain conditions, the admission of former testimony in prior proceedings. See State v. Hall, 1999 MT 297, ¶ 35, 297 Mont. 111, 991 P.2d 929. Further, under M. R. Evid. 801, prior statements of witnesses, admissions of party-opponents, and statements that are not offered to prove the truth of the matter asserted are, by definition, not hearsay and thus not precluded by M. R. Evid. 802. See State v. Baker, 2013 MT 113, ¶ 29, 370 Mont. 43, __ P.3d __ (prior inconsistent statements of witness are not hearsay); Riggs v. State, 2011 MT 239, ¶ 58, 362 Mont. 140, 264 P.3d 693 (admissions by party-opponents are not hearsay); Sullivan v. Contl. Constr. of Mont., LLC, 2013 MT 106, ¶ 32, 370 Mont. 8, 299 P.3d 832 (statements offered for a reason other than to prove the truth of the statement are not hearsay). A witness who testified under oath cannot pretend that her testimony was never given, even if no record was taken. A district court should treat testimony given during a justice court proceeding the same as any other statement that has not been recorded or transcribed. The District Court did not err by denying Arnold’s Motion in Limine and instead ruling on the admissibility of the references as they were made at trial. ¶19 Issue Three: Whether Arnold was denied her right to a trial de novo. ¶20 As previously discussed, the District Court did not err by letting the McDunns file an Amended Complaint or by denying Arnold’s Motion in Limine. Nevertheless, Arnold argues that the McDunns’ Amended Complaint and references to the lower-court testimony tainted the District Court proceedings and effectively denied her the right to a trial de novo. Arnold contends that the lower-court proceedings permeated and prejudiced her entire case and that the prejudice is evident in the District court’s Findings of Fact and Conclusions of Law. 8 ¶21 Arnold analogizes her case to State v. Stedman. In Stedman, the defendant was convicted of Criminal Mischief in Justice Court. He appealed to the District Court for a trial de novo and was again found guilty. In its Findings and Opinion, the District Court specifically acknowledged that the Justice Court had found Stedman guilty. Additionally, the District Court noted that a particular witness who testified against Stedman was credible, “in both the Justice of the Peace and this Court’s view.” Further, while announcing that it had found Stedman guilty, the District Court proclaimed, “so said the Justice of the [P]eace, so says this Court.” Stedman, ¶ 9. ¶22 We concluded that the District Court’s references to the Justice Court’s findings and conclusions strongly suggested that the District Court was influenced by the Justice Court’s decision. We held that, “[a] trial ‘de novo’ means trying the matter anew, the same as if it had not been heard before and as if no decision had been previously rendered.” Stedman, ¶ 9. Because we could not conclude that the District Court had not been unduly influenced by the Justice Court proceedings, we held that Stedman had been denied his right to a trial de novo. Stedman, ¶ 9. ¶23 Here, like in Stedman, the District Court specifically referenced the Justice Court proceedings in its Findings of Facts and Conclusions of Law. Unlike in Stedman, however, those references do not suggest that the District Court was unduly influenced by the Justice Court proceedings. The District Court’s references to the prior proceedings were made in the context of discussing whether Arnold had made a false representation and whether Arnold had breached the terms of the lease. The court found credible the McDunns’ evidence that Arnold had misrepresented which version of the lease was the original during the Justice 9 Court proceedings. The District Court nevertheless correctly held that the McDunns had failed to prove their misrepresentation claim because they had not relied on Arnold’s misrepresentation when they entered into the agreement. The court’s other references to the Justice Court proceedings were made while discussing which version of the lease was enforceable and which terms were operable. The District Court’s references to the prior proceedings related directly to disputed facts and claims and do not suggest that the court was influenced by the Justice Court’s decision. ¶24 For the reasons stated above, the decision of the District Court is affirmed. /S/ MIKE McGRATH We concur: /S/ PATRICIA COTTER /S/ BETH BAKER /S/ LAURIE McKINNON /S/ BRIAN MORRIS | May 28, 2013 |
53dd1b50-1c57-4dc0-8844-d92181b6a3cf | Klinker v. Schwanke | 2013 MT 128N | DA 12-0761 | Montana | Montana Supreme Court | DA 12-0761 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 128N HAROLD MARTIN KLINKER, JR., and MARCIA ANN KLINKER, Plaintiffs and Appellees, v. DEAN L. PEARSON and GARY L. PEARSON, Defendants, K. DALE SCHWANKE, Defendant and Appellant. APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Teton, Cause No. DV 12-017 Honorable David Cybulski, Presiding Judge COUNSEL OF RECORD: For Appellant: Norman L. Newhall, Linnell, Newhall, Martin & Schulke, P.C.; Great Falls, Montana For Appellee: J. Daniel Hoven, Daniel J. Auerbach, Browning, Kaleczyc, Berry & Hoven, P.C.; Missoula, Montana Submitted on Briefs: March 20, 2013 Decided: May 14, 2013 Filed: __________________________________________ Clerk May 14 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 Dale Schwanke (Schwanke) appeals from the order of the Ninth Judicial District Court, Teton County, that denied his motion for substitution of district judge. Appellees Harold Martin Klinker, Jr. and Marcia Ann Klinker (Klinkers) have filed notice that they take no position on the matters set forth in the appeal. We vacate the District Court’s order and direct the court to appoint a substitute district judge. ¶3 The action arises from a purchase and sale agreement for real property in Teton County, Montana. Under the agreement, the Klinkers agreed to purchase the property from Dean L. Pearson and Gary L. Pearson (Pearsons). Schwanke served as the Pearsons’ attorney. The deal unraveled when the Pearsons also entered a fully-executed buy-sell agreement concerning the same property with Jay Ratliff (Ratliff). ¶4 The Klinkers filed claims against the Pearsons for which they seek specific performance and damages for breach of contract. They also allege that the Pearsons and Schwanke are liable to them for fraud, constructive fraud, negligent misrepresentation, and punitive damages. ¶5 Section 3-1-804(1), MCA, allows each adverse party to a district court action one substitution of district judge. The Pearsons obtained a substitution of district judge in May 3 of 2012. Schwanke separately moved to substitute the district judge in November of 2012. The District Court denied Schwanke’s motion based on the Pearsons’ previous motion for substitution and the court’s conclusion that no adversity of interest existed between the Pearsons and Schwanke. ¶6 We determined that the Pearsons and Schwanke qualified as adverse parties for purposes of substitution of district judge in an action brought by Ratliff, the other prospective buyer of the Pearsons’ property. Ratliff v. Pearson, 2011 MT 241, ¶ 31, 362 Mont. 163, 261 P.3d 1037. We concluded that differing factual allegations against the various defendants, the apparent availability of separate defense strategies, and the possibility that the duties owed by the various defendants to the plaintiffs may differ, were sufficient factors to qualify the defendants as adverse parties. Ratliff, ¶¶ 30-31. We reach the same conclusion here. ¶7 The interests of the Pearsons and Schwanke do not align completely. The differences prove sufficiently adverse to support a separate motion for substitution of judge by each defendant. Among other things, the Pearsons could contest the validity of the representations allegedly made to the Klinkers by Schwanke on the Pearsons’ behalf; Schwanke and the Pearsons may dispute factual statements that either party allegedly made to the other; the duties that the Pearsons may owe to the Klinkers likely differ from any duties that Schwanke may owe to the Klinkers; the parties have retained separate counsel and have available separate defense strategies; the Pearsons may assert a separate malpractice claim against Schwanke; and Schwanke may claim that he acted on misinformation provided 4 by the Pearsons. ¶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. We vacate the order denying Schwanke’s motion as Montana law allows for substitution of district judge under these circumstances. We direct the District Court to enter an order granting Schwanke’s motion. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BETH BAKER | May 14, 2013 |
4deb983f-b61f-471b-85fd-f205318dde66 | Terry L. Bell Generations Trust v. Flathead Bank of Bigfork | 2013 MT 152 | DA 12-0493 | Montana | Montana Supreme Court | DA 12-0493 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 152 TERRY L. BELL GENERATIONS TRUST, Plaintiff and Appellant, v. FLATHEAD BANK OF BIGFORK, Defendant and Appellee. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DV-10-436 Honorable Deborah Kim Christopher, Presiding Judge COUNSEL OF RECORD: For Appellant: Sean S. Frampton, Brian M. Joos, Morrison & Frampton PLLP, Whitefish, Montana For Appellee: Paul A. Sandry, Johnson, Berg, & Saxby, PLLP, Kalispell, Montana Submitted on Briefs: March 20, 2013 Decided: June 5, 2013 Filed: __________________________________________ Clerk June 5 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Terry L. Bell Generations Trust (Bell) appeals from an order of the Twentieth Judicial District Court, Lake County, entering summary judgment in favor of Flathead Bank of Bigfork (Flathead Bank) on Bell’s easement claims. The District Court determined that Bell’s easement rights were subordinate to Flathead Bank’s interests in the subject real property and were properly foreclosed upon and extinguished by Flathead Bank through a trustee’s sale. We affirm. ISSUE ¶2 We restate the issue raised by Bell on appeal as follows: ¶3 Did the District Court err in granting summary judgment to Flathead Bank on Bell’s easement claims? FACTUAL AND PROCEDURAL BACKGROUND ¶4 On or around September 23, 2008, Bell purchased two lots (Lots) in the Pine Meadows RV Retreat Condominiums from Mallory and Maggie Sunderland (Sunderlands). The Lots were located near Flathead Lake. The purchase agreement for the Lots granted Bell an easement for access to Flathead Lake over and across a lakefront parcel of land (Lake Property) also owned by Sunderlands. Sunderlands planned to use the Lake Property for a clubhouse and recreational access to Flathead Lake for the benefit of purchasers of lots in the RV park. On October 6, 2008, Bell’s easements across the Lake Property were recorded with the Lake County Clerk and Recorder’s Office. ¶5 At the time of the purchase, the Lots and Lake Property were encumbered by deeds of trust issued by Flathead Bank. Sunderlands provided Flathead Bank with a copy 3 of the buy-sell agreements. Flathead Bank was aware that Sunderlands intended to package the RV lots with easements appurtenant to the Lake Property. At closing, Flathead Bank released its deeds of trust relating to the Lots. ¶6 After Sunderlands became delinquent on their loan obligations, Flathead Bank attempted to foreclose on the Lake Property by way of a trustee’s sale on March 5, 2010. Flathead Bank purchased the Lake Property at the trustee’s sale and received a trustee’s deed that was recorded in March 2010. Flathead Bank failed to provide Bell with notice of the trustee’s sale. In a letter to Bell dated June 8, 2010, Flathead Bank stated that: “It is not the intention of the Bank to impinge on your right to use the easement.” On August 11, 2010, Flathead Bank noticed a second trustee’s sale of the Lake Property. This time, Bell was provided with notice of the intended sale. ¶7 Bell filed a complaint on December 13, 2010. Bell asserted claims of equitable estoppel, negligence, and breach of contract, and requested a declaratory judgment setting forth Bell’s easement rights in the Lake Property as valid and inextinguishable by Flathead Bank. Bell claimed that it would be a violation of the “one-action rule”1 for Flathead Bank to hold a second trustee’s sale of the Lake Property because Flathead Bank already purchased the property at the first trustee’s sale in March. Citing the doctrine of merger, Bell further argued that once Flathead Bank foreclosed, purchased the Lake Property, and a deed was issued in its name, Flathead Bank no longer had a deed of trust 1 The “one-action rule” limits a secured creditor to bringing a single judicial proceeding against a borrower in foreclosure. Montana’s “one-action rule” is set forth in § 71-1-222, MCA, and states that: “There is only one action for the recovery of debt or the enforcement of any right secured by a mortgage upon real estate.” 4 upon which it could foreclose. Essentially, Bell claimed the Bank was precluded from holding the second sale and that it therefore could not extinguish its easement via the second sale. ¶8 The second trustee’s sale was held on December 17, 2010. Flathead Bank recorded a second trustee’s deed shortly thereafter. Flathead Bank filed its answer and counterclaim on January 3, 2011. Flathead Bank argued that Bell’s easement rights to the Lake Property were subordinate to Flathead Bank’s trust deed interests. In its counterclaim, Flathead Bank set forth a quiet title action and asserted that Bell’s easements terminated and no longer encumbered the Lake Property. Flathead Bank requested that the District Court declare that it held title to the Lake Property in fee simple, free of any prior encumbrances. ¶9 Bell and Flathead Bank filed cross-motions for summary judgment. On July 2, 2012, the District Court entered its findings of fact, conclusions of law, and order granting summary judgment to Flathead Bank. The District Court determined that the first trustee’s sale in March 2010 was invalid due to Flathead Bank’s failure to provide adequate notice to Bell, but the second trustee’s sale in December 2010 complied with all statutory requirements. The District Court concluded that Bell’s easement claims were subordinate to Flathead Bank’s interests in the Lake Property. On July 25, 2012, the District Court entered final judgment against Bell, stating that Bell had no right, estate, title, lien, easement, or interest in the Lake Property. Bell appeals. STANDARDS OF REVIEW 5 ¶10 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). DISCUSSION ¶11 Did the District Court err in granting summary judgment to Flathead Bank on Bell’s easement claims? A. The first trustee’s sale was null and void as to Bell for failure to comply with the notice requirements of § 71-1-315, MCA ¶12 Trust deeds are considered mortgages and are subject to all laws relating to mortgages on real property. Section 71-1-321, MCA. “Every such instrument [deeds of trust, trust deeds, or trust indentures], recorded as prescribed by law, from the time it is filed for record is constructive notice of its contents to subsequent purchasers and encumbrancers.” Section 71-1-321, MCA. The parties do not dispute that Flathead Bank’s trust deeds on the Lake Property were recorded prior to Bell’s easement. Bell was aware of the existence of Flathead Bank’s senior trust deeds when it purchased the Lots and the easement on the Lake Property. As a junior easement holder, Bell’s easement was subject to extinguishment through foreclosure of a senior mortgage. Under Montana law, Bell’s easement on the Lake Property was subordinate to Flathead Bank’s earlier recorded trust deeds. See § 70-21-302, MCA. Bell does not dispute that his 6 easement would be extinguished by a properly noticed foreclosure by Flathead Bank as trustee. ¶13 Section 71-1-315, MCA, establishes the procedure for foreclosing on a trust deed by advertisement and sale. The trustee is required to provide notice of the trustee’s sale at least 120 days prior to the sale to “any person who has a lien or interest subsequent to the interest of the trustee and whose lien or interest and address appear of record at the filing date and time of the notice of sale.” Section 71-1-315(1)(a)(v), MCA. When a trustee chooses to avoid judicial proceedings and foreclose on property pursuant to § 71-1-315, MCA, “the trustee is subjected to strict notice requirements before crying the sale.” Knucklehead Land Co. v. Accutitle, Inc., 2007 MT 301, ¶ 13, 340 Mont. 62, 172 P.3d 116. ¶14 It is undisputed that the first trustee’s sale on March 5, 2010, did not comply with these notice requirements. Bell was not provided any notice as an interest holder in the Lake Property as is required by § 71-1-315(1)(a)(v), MCA. Section 71-1-315(1)(a)(v), MCA, is silent concerning the consequences of the trustee’s failure to adhere to the notice requirements. The District Court determined that the first trustee’s sale was invalid as a matter of law because the trustee failed to comply with the notice requirements. Bell maintains that the first trustee’s sale effectively foreclosed the Lake Property despite the lack of notice, and that because Bell was not notified of the sale, the purchaser of the Lake Property took ownership subject to Bell’s easement. ¶15 This Court has not yet addressed the consequences of failing to comply with the notice requirements of § 71-1-315(1)(a)(v), MCA. However, we have previously held 7 that an attempted sale of property which has not been properly noticed is void. See Hill v. Zuckerman, 138 Mont. 230, 355 P.2d 521 (1960). In Hill, a lessee was granted a right of first refusal to purchase the leased premises by matching any purchase offer made by a third party. Hill, 138 Mont. at 232-33, 355 P.2d at 522-23. When the lessor received an offer to purchase the property from a third party, but failed to strictly comply with the notice requirements set forth in the lease, this Court held that the attempted sale to the third party was null and void. Hill, 138 Mont. at 236, 355 P.2d at 525. ¶16 Other jurisdictions have addressed factually similar situations in which an easement holder was not provided notice of a foreclosure proceeding. In Diamond Benefits Life Ins. Co. v. Troll, 66 Cal. App. 4th 1, 77 Cal. Rptr. 2d 581 (Cal. App. 1998), a beneficiary of trust deeds on a golf course property brought a judicial foreclosure action against the owners of the golf course. Diamond, 66 Cal. App. 4th at 4, 77 Cal. Rptr. 2d at 583. The trust deeds were recorded prior to the recording of an easement owned by a neighboring landowner. Diamond, 66 Cal. App. 4th at 4, 77 Cal. Rptr. 2d at 583. When the beneficiary of the trust deeds filed the foreclosure action, it failed to make the easement owner a party to the proceeding or otherwise provide notice to the easement owner. Diamond, 66 Cal. App. 4th at 4, 77 Cal. Rptr. 2d at 583. After the foreclosure took place, the easement owner filed an action to quiet title to the easement, and the purchaser in the foreclosure action also filed a quiet title action. Diamond, 66 Cal. App. 4th at 4, 77 Cal. Rptr. 2d at 583. The court determined that since the easement owner was not named in the initial judicial foreclosure, the foreclosure had no effect upon his rights in the foreclosed property. Diamond, 66 Cal. App. 4th at 5, 77 Cal. Rptr. 2d at 8 584. However, the court concluded that the trust beneficiary and purchaser retained the right to foreclose against the easement owner’s interest. Diamond, 66 Cal. App. 4th at 5, 77 Cal. Rptr. 2d at 584. ¶17 In reaching its decision in Diamond, the court relied on the Oregon Supreme Court decision Monese v. Struve, 62 P.2d 822 (Or. 1936). Monese involved a foreclosure of a servient tenement property where the foreclosing party failed to serve the owner of the dominant tenement. The Court determined that the first foreclosure was invalid and ineffectual against the interest of the owner of the dominant tenement. Monese, 62 P.2d at 825. The Court reasoned as follows: The mortgagee has the right to a second foreclosure as to the parties omitted in the first foreclosure. A resale of the premises affords defendants every right which they would have had if they had been properly joined as parties in the first foreclosure and subjects them to no additional inconvenience or hardships. The theory of the law is that as to them the mortgage is unforeclosed. Monese, 62 P.2d at 825. ¶18 We agree with the reasoning set forth in Diamond and Monese. When the trustee failed to provide proper notice as required by § 71-1-315, MCA, the first trustee’s sale of March 5, 2010, was null and void as to Bell. In a foreclosure by advertisement and sale, the trustee must strictly adhere to the notice provisions of § 71-1-315, MCA, to protect the rights of interested parties. When the notice requirements are not followed, the only recourse is a second trustee’s sale where each interest holder who did not previously receive notice receives appropriate notice and has an opportunity to purchase the subject 9 property. As to Bell, the District Court correctly concluded that the first trustee’s sale was invalid and ineffectual, and that the second foreclosure action was appropriate. ¶19 Next, Bell alleges that Flathead Bank acted intentionally in not providing notice to Bell of the first trustee’s sale because Flathead Bank did not intend to impinge on Bell’s right to use the easement on the Lake Property. Bell argues that in light of Flathead Bank’s intentional decision not to provide notice, the first trustee’s sale was valid and the foreclosure takes effect subject to the easement. In support of its argument, Bell points to the June 8, 2010 letter from Flathead Bank to Bell that stated: “It is not the intention of the Bank to impinge on your right to use the easement.” ¶20 Bell misapprehends the effect of Flathead Bank’s June 8, 2010 letter. The letter was written two months after the first foreclosure in response to a phone call from Bell notifying Flathead Bank that it intended to rent the Lots to a third party and allow the renter to exercise its easement to the Lake Property. The statement Bell relies on must be put into context. The full paragraph in the letter reads as follows: If you intend to utilize the commercial building there is the issue of proration of utilities, taxes for your portion of the property, and insurance for the building. It is not the intention of the Bank to impinge on your right to use the easement. However, use of the easement could result in both you and the Bank being exposed to potential liability claims and therefore we need to ensure that all parties are protected. Flathead Bank’s statement concerning its intent to refrain from impinging upon Bell’s easement rights was specifically in reference to additional restrictions and concerns that arise when the easement is used by a renter. Flathead Bank’s statement acknowledged that the easement had not yet been discharged. Contrary to Bell’s assertion, there is 10 nothing in the letter to suggest that Flathead Bank instructed the trustee not to provide notice to Bell or intended in any way to exclude Bell from the first trustee’s sale. Furthermore, the letter cannot logically be read to constitute a subsequent promise by Flathead Bank not to exercise its right to foreclose on Bell’s easement at some point in the future. B. The second trustee’s sale effectively foreclosed on the Lake Property and extinguished Bell’s easement ¶21 We now turn to the second trustee’s sale that took place on December 17, 2010. Bell challenges the validity of the second trustee’s sale by invoking the doctrine of merger. Bell asserts that once Flathead Bank received and recorded a trustee’s deed, all documents merged into that deed and Flathead Bank no longer had a trust deed upon which it could foreclose. As such, Bell argues that the second trustee’s sale was invalid. ¶22 It is undisputed that Bell was properly notified before the second trustee’s sale took place. Bell had a full opportunity to appear and bid at the second trustee’s sale but did not do so. Based on our earlier decision that the first trustee’s sale was null and void as to Bell, and that pursuant to Diamond and Monese Flathead Bank retained the right to foreclose through a second trustee’s sale, it is clear that the first foreclosure proceeding did not result in a merger of title and extinguishment of Flathead Bank’s trust deeds. Moreover, § 71-1-222(4)(e), MCA, specifically excludes a foreclosure by advertisement and sale from the limitations imposed by the “one-action rule.” C. Equitable estoppel does not apply 11 ¶23 Finally, Bell argues that Flathead Bank should be equitably estopped because its conduct amounted to a representation that it did not intend to foreclose Bell’s easement and it confirmed this intention with its June 8, 2010 letter. Bell asserts that it never would have purchased the Lots had they not been packaged with easements to the Lake Property. ¶24 To succeed on an equitable estoppel claim, a party must establish the following six elements: (1) the existence of conduct, acts, language, or silence amounting to a representation or concealment of material facts; (2) the party estopped must have knowledge of these facts at the time of the representation or concealment, or the circumstances must be such that knowledge is necessarily imputed to that party; (3) the truth concerning these facts must be unknown to the other party at the time it was acted upon; (4) the conduct must be done with the intention or expectation that it will be acted upon by the other party, or have occurred under circumstances showing it to be both natural and probable that it will be acted upon; (5) the conduct must be relied upon by the other party and lead that party to act; and (6) the other party must in fact act upon the conduct in such a manner as to change its position for the worse. Johnson Farms, Inc. v. Halland, 2012 MT 215, ¶ 28, 366 Mont. 299, 291 P.3d 1096; Pankratz Farms, Inc. v. Pankratz, 2004 MT 180, ¶ 67, 322 Mont. 133, 95 P.3d 671. ¶25 Bell fails to establish the elements necessary to support the imposition of equitable estoppel. When Bell purchased the Lots and the easement, Flathead Bank’s prior trust deeds were of record and were known to Bell. Flathead Bank did not conceal this fact from Bell and never made any representations to the contrary. Flathead Bank’s June 8, 12 2010 letter did not constitute a concealment or misrepresentation of a material fact. As previously discussed, the June 8, 2010 letter did not indicate that Flathead Bank consented to the ongoing existence of Bell’s easement, nor did the letter demonstrate that Flathead Bank did not intend to foreclose on Bell’s easement in the future. Absent a misrepresentation or concealment of a material fact, Bell cannot establish the first requisite element of equitable estoppel. See Let the People Vote v. Bd. Of County Comm’rs, 2005 MT 225, ¶ 23, 328 Mont. 361, 120 P.3d 385 (“Hence, by its terms, equitable estoppel, ‘requires the misrepresentation of a material fact.’ ”). Even if we were to accept Bell’s position that the letter constituted a misrepresentation, there is no evidence in the record that Bell relied on these representations or changed its position for the worse. Based on our conclusion that Bell failed to establish the first element of equitable estoppel, it is unnecessary to fully address the remaining five elements. ¶26 We conclude that equitable estoppel is not applicable under the facts of this case. CONCLUSION ¶27 For the foregoing reasons, we affirm the District Court’s grant of summary judgment to Flathead Bank. Flathead Bank effectively foreclosed on Bell’s easement through the second trustee’s sale. The District Court properly entered judgment in favor of Flathead Bank and correctly concluded that Bell has no right, estate, title, lien, easement, or interest in the Lake Property. /S/ PATRICIA COTTER 13 We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON /S/ BRIAN MORRIS /S/ JIM RICE Justice Michael E Wheat dissents. ¶28 I dissent from the Court’s decision to affirm the grant of summary judgment to Flathead Bank because I believe there is a remaining genuine issue of material fact which precludes summary judgment and must be resolved through the trial process. ¶29 Of particular relevance here are the following facts: Flathead Bank knew of Bell’s easement rights when it held its first trustee’s sale. Flathead Bank did not notify Bell of the sale. After the sale, Flathead Bank explicitly stated to Bell: “It is not the intention of the Bank to impinge on your right to use the easement.” Then, a few months later, Flathead Bank decided, contrary to its earlier decision, to move forward with termination of Bell’s easements. ¶30 Bell argues that Flathead Bank intentionally did not notify Bell of the first trustee’s sale because Flathead Bank did not intend to impinge on Bell’s right to use the easements on the Lake Property. Flathead Bank disputes this allegation, and maintains that the failure to provide Bell with notice was unintentional, “and frankly a mistake.” This factual dispute is significant. ¶31 As the Court correctly points out, § 71-1-315(1)(a)(v), MCA, is silent concerning the consequences of a trustee’s failure to adhere to the notice requirements. In a situation where a trustee intentionally does not notify an interested party of a foreclosure sale, and, after the sale, confirms its intent not to extinguish that party’s interests, the trustee’s failure to provide notice should not entitle it to a complete “do-over” if it later changes its mind and decides that it does 14 want to terminate the party’s interests. Here, if Flathead Bank intentionally did not notify Bell of the first trustee’s sale because it did not intend to extinguish Bell’s right to use the easements— as it explicitly told Bell—Flathead Bank should not get a second bite at the apple because it ultimately determined that it did in fact want to terminate Bell’s interests. In such a situation, Flathead Bank’s failure to strictly comply with the notice requirement of § 71-1-315(1)(a)(v), MCA, should not render the initial foreclosure sale void. ¶32 Flathead Bank’s intention with respect to the first trustee’s sale is a question that should not have been resolved by summary judgment. I would reverse the District Court and hold there was a genuine issue of material fact which precluded summary judgment and remand for a trial on that issue. I respectfully dissent from the Court’s failure to do so. /S/ MICHAEL E WHEAT | June 5, 2013 |
2e3c486d-0f2e-495c-aa78-5678041ad6da | City of Msla v. Walker | 2013 MT 134N | DA 12-0391 | Montana | Montana Supreme Court | DA 12-0391 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 134N CITY OF MISSOULA, Plaintiff and Appellee, v. ROBERT OSCAR WALKER, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-12-24 Honorable Edward McLean, 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, Katie F. Schulz, Assistant Attorney General, Helena, Montana Jim Nugent, Missoula City Attorney, Andrew Scott, Assistant City Attorney, Missoula, Montana Submitted on Briefs: March 27, 2013 Decided: May 14, 2013 Filed: __________________________________________ Clerk May 15 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 Robert Walker was charged with misdemeanor criminal trespass and misdemeanor partner/family member assault (PFMA). Following a bench trial, he was acquitted of trespass but convicted of PFMA. Walker appeals his PFMA conviction. We affirm. ¶3 In June 2011, Walker entered the apartment of his ex-girlfriend Debra Hemmer while she was not at home. He testified that he did this regularly to clean her apartment and to help her in other ways. On this particular day when she returned home, Walker became frustrated with Hemmer because he claimed she was not taking care of herself adequately. He alleged she was intoxicated. He stated that when he spoke to her she looked down instead of at him so he lifted her chin and tapped her on the head to “get her attention.” Hemmer became frightened, told him to leave and called the police. Walker left before the police arrived. When Officer Poling arrived, Hemmer claimed Walker had frightened her and caused her physical pain that she was still experiencing. Following the interview with Hemmer, Poling found Walker on the street. He was arrested and charged shortly thereafter. ¶4 In December 2011, Walker and Poling testified at Walker’s Municipal Court bench trial. Hemmer did not testify. Poling stated that at the time she responded to 3 Hemmer’s call and interviewed Hemmer, she saw no evidence that Hemmer was intoxicated. However, a short time later when she picked up Walker, Walker displayed signs of intoxication. Walker testified that he raised his voice to Hemmer and he might have “hit her kind of hard” but he never intended to hurt her. The court found Hemmer not guilty of criminal trespass but guilty of PFMA. It pronounced sentence from the bench. The sentence was stayed pending appeal of the conviction to the Fourth Judicial District Court. The District Court’s two sentence order, containing no factual findings or rationale, denied Walker’s appeal and remanded the case for imposition of sentence. Walker filed a timely appeal to this Court. On appeal Walker claims that the evidence before the court was insufficient to support his conviction of PFMA and his conviction should be overturned. ¶5 Section 45-5-206(1)(a), MCA, provides: “A person commits the offense of partner or family member assault if the person purposely or knowingly causes bodily injury to a partner or family member.” “Partners” is defined as “spouses . . . and persons who have been or are currently in a dating . . . relationship . . . .” Section 45-5-206(1)(b), MCA. “Bodily injury” is “physical pain, illness, or an impairment of physical condition and includes mental illness or impairment.” Section 45-2-101(5), MCA. Walker argues on appeal that there was no evidence presented that he “purposely or knowingly” caused Hemmer bodily injury. ¶6 As we noted in State v. Bay, 2003 MT 224, ¶ 16, 317 Mont. 181, 75 P.3d 1265, “[a] person’s mental state rarely can be proved by direct evidence; it usually must be inferred from the facts and circumstances about which the witnesses testify. Indeed, a 4 defendant’s mental state may be inferred from his or her actions and the facts and circumstances connected with the offense charged.” (Internal citations omitted.) See also § 45-2-103(3), MCA. In Bay, Bay attempted to leave the courtroom after the judge pronounced her in contempt. An officer blocked her exit and Bay pushed the officer very hard and caused the officer to fall back in pain. A struggle ensued and as the officer was attempting to restrain Bay, the officer collapsed in pain when her knee gave out. Bay, ¶ 5. Bay left the courtroom but was arrested a short time later and charged with assault of a peace officer and resisting arrest. Bay, ¶¶ 8-9. ¶7 As does Walker, Bay argued that “the State did not present sufficient evidence regarding the requisite mental state for the offense because she did not purposely or knowingly cause bodily injury to [the officer].” Bay, ¶ 12. We determined, however, that “we need not determine whether Bay purposely or knowingly caused [the officer’s] knee injury; we need only examine the evidence—in the light most favorable to the prosecution—to determine whether it would permit a rational jury to find the elements of assault on a peace officer beyond a reasonable doubt.” Bay, ¶ 13. Based upon Bay’s agitated courtroom demeanor, her hostile tone with the judge, her stated intention to not being taken into custody on a contempt charge, and the fact she physically shoved the officer “very hard,” we concluded that a “jury could reasonably infer that Bay was aware of the high probability that her conduct in shoving [the officer] hard enough to knock [her] backwards would result in physical pain . . . and therefore, that Bay acted ‘knowingly.’ ” Bay, ¶ 18. 5 ¶8 In the case before us, while not convicted of criminal trespass, Walker nonetheless entered Hemmer’s home on that day without her invitation or permission and while she was not there. He admitted that he was upset with Hemmer, he yelled at her, he took her face in his hands, he poked at her head with his fingers, and he may have hit her “kind of hard.” He then left her apartment when Hemmer called the authorities. As with the Bay evidence, this testimony in addition to the evidence presented by the officer obtained during her interview with Hemmer is sufficient to convict Walker of PFMA under § 45-5-206(1)(a), MCA. ¶9 Having determined that there was sufficient evidence to find Walker guilty of PFMA, we need not address Walker’s complaint that the District Court’s order affirming the Municipal Court’s conviction was inadequate or his claim that the District Court did not review the Municipal Court record adequately. ¶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. 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/ BRIAN MORRIS /S/ LAURIE McKINNON /S/ JIM RICE | May 15, 2013 |
31bf3319-35e7-4bff-88a6-20cafd2f8a37 | State v. Beach | 2013 MT 130 | DA 11-0723 | Montana | Montana Supreme Court | DA 11-0723 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 130 STATE OF MONTANA, Plaintiff and Appellant, v. BARRY ALLAN BEACH, Defendant and Appellee. APPEAL FROM: District Court of the Fifteenth Judicial District, In and For the County of Roosevelt, Cause No. 1068-C Honorable E. Wayne Phillips, Presiding Judge COUNSEL OF RECORD: For Appellant: Timothy C. Fox, Montana Attorney General; Tammy K Plubell, Assistant Attorney General; Helena, Montana For Appellee: Terrance Lee Toavs; Law Offices of Terrance L. Toavs; Wolf Point, Montana Peter K. Camiel; Mair & Camiel, P.S.; Seattle, Washington Submitted on Briefs: August 29, 2012 Decided: May 14, 2013 Filed: __________________________________________ Clerk May 14 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 The State of Montana appeals from the order of the Fifteenth Judicial District Court, Roosevelt County, granting Barry Allen Beach (Beach) a new trial in the matter of the homicide of Kim Nees (Nees). We reverse the District Court, and address this issue: ¶2 Did the District Court err by concluding that Beach was entitled to a new trial because he had demonstrated his actual innocence? PROCEDURAL BACKGROUND ¶3 In the early morning hours of June 16, 1979, police officers of the Fort Peck Tribe discovered Nees’s body floating in the Poplar River. She had been bludgeoned to death. On January 7, 1983, Beach confessed to killing Nees, and, on April 13, 1984, a jury convicted him of deliberate homicide. The court sentenced Beach to 100 years in the Montana State Prison without the possibility of parole. ¶4 Beach has challenged his conviction in the courts and applied for clemency. In 1985, Beach appealed to this Court. We upheld his conviction and sentence. State v. Beach, 217 Mont. 132, 705 P.2d 94 (1985). In 1995, Beach filed a petition for postconviction relief. We dismissed Beach’s petition because it had been filed beyond the five-year statutory limitation period, and Beach did not submit new evidence establishing that he did not kill Nees. Beach v. Day, 275 Mont. 370, 913 P.2d 622 (1996). Beach then filed a petition for habeas corpus in federal court, asserting his actual innocence. United States Magistrate Judge Anderson recommended that Beach’s petition be denied because Beach was procedurally barred from presenting his constitutional 3 claims, and his “presentation of ‘new evidence’ d[id] not warrant a finding of actual innocence as an exception to the procedural bar.” Beach v. Mahoney, CV-92-92-BLG- RWA (D. Mont. Aug. 6, 1997). Federal District Court Judge Shanstrom agreed with Judge Anderson and denied Beach’s petition, holding that Beach’s evidence was insufficient “to warrant a finding of actual innocence . . . .” Beach v. Mahoney, CR 92- 92-BLG-JDS (D. Mont. Mar. 31, 1998). The Ninth Circuit affirmed. Beach v. McCormick, 191 F.3d 459 (9th Cir. 1999) (table). In 2005, Beach filed an application for executive clemency with the Montana Board of Pardons and Parole (the Board). The Board denied Beach’s application because he had “not satisfactorily proven [his] innocence of the crime or submitted newly discovered evidence showing complete justification or non-guilt.” (Emphasis in original.) In 2006, Beach submitted an application to Governor Brian Schweitzer who referred it back to the Board. A three-member panel (the Clemency Panel) of the Board held a three-day hearing to determine if Beach’s new evidence established his “actual innocence.” On August 20, 2007, the Clemency Panel denied Beach’s application because “[n]o proof of innocence, or newly discovered evidence of non-guilt or justification ha[d] been presented.” ¶5 In 2008, Beach filed another petition for postconviction relief in state district court, alleging that newly discovered evidence proved his actual innocence. The district court summarily denied Beach’s petition in a one-page order. On appeal, we reversed and remanded for the district court to hold an evidentiary hearing on the newly 4 discovered evidence alleged in Beach’s petition. Beach v. State (Beach I), 2009 MT 398, ¶ 51, 353 Mont. 411, 220 P.3d 667. ¶6 On remand, the District Court held a three-day hearing, and took testimony from witnesses that suggested a group of teenage girls had killed Nees. The District Court concluded that Beach had presented sufficient evidence of his “actual innocence” to warrant a new trial. The District Court subsequently released Beach from the Montana State Prison pending appeal. ¶7 The State appeals. STANDARD OF REVIEW ¶8 The standard of review of a district court’s disposition of a petition for post- conviction relief is whether the district court’s findings of fact are clearly erroneous and whether its conclusions of law are correct. Griffin v. State, 2003 MT 267, ¶ 7, 317 Mont. 457, 77 P.3d 545; Porter v. State, 2002 MT 319, ¶ 13, 313 Mont. 149, 60 P.3d 951. However, an actual innocence claim brought in a postconviction relief proceeding presents a unique posture for the reviewing court. The petitioner has been duly convicted—the State has introduced evidence sufficient for a jury to find the petitioner guilty beyond a reasonable doubt. Before overturning that verdict, the reviewing court must determine whether the petitioner has supported his innocence claim “with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324, 115 S. Ct. 851, 865 (1995); accord Herrera v. Collins, 506 U.S. 390, 5 417-18, 113 S. Ct. 853, 869-70 (1993). To determine if the evidence is “reliable,” the reviewing court must analyze “whether the new evidence is trustworthy by considering it both on its own merits and . . . in light of the pre-existing evidence in the record.” Doe v. Menefee, 391 F.3d 147, 161 (2d Cir. 2004) (Sotomayor, J.) (citing Schlup, 513 U.S. at 327-28, 115 S. Ct. at 867); Herrera, 506 U.S. at 418, 113 S. Ct. at 870; State v. Redcrow, 1999 MT 95, ¶ 37, 294 Mont. 252, 980 P.2d 622. The court must then combine the new reliable evidence with the old trial evidence and determine whether a reasonable jury presented with this hybrid record would find the petitioner guilty. Herrera, 506 U.S. at 418, 113 S. Ct. at 870; Schlup, 513 U.S. at 329, 115 S. Ct. at 868; House v. Bell, 547 U.S. 518, 538, 126 S. Ct. 2064, 2078 (2006); Redcrow, ¶ 37. Because the determination as to “whether no reasonable juror would find a petitioner guilty beyond a reasonable doubt is a mixed question of law and fact, we review the district court’s ultimate finding of actual innocence de novo.” Menefee, 391 F.3d at 163; House, 547 U.S. at 539-40, 126 S. Ct. at 2078. DISCUSSION ¶9 As noted above, in 2008 Beach filed another petition for postconviction relief, alleging that newly discovered evidence demonstrated his “actual innocence.” Beach I, ¶ 13. The postconviction statutes applicable to Beach’s conviction required him to bring his claim within five years of his conviction. Section 46-21-102, MCA (1995); Beach I, ¶ 23. While there was no statutory exception to this time bar, we have recognized an equitable tolling of the time limit when “strict enforcement would result in a fundamental 6 miscarriage of justice.” Beach I, ¶ 23; State v. Perry, 232 Mont. 455, 462, 758 P.2d 298, 273 (1988) (overruled on other grounds in State v. Clark, 2005 MT 330, ¶ 32, 330 Mont. 8, 125 P.3d 1099). The “fundamental miscarriage of justice” exception applies when the petitioner shows he is “actually innocent” of the crime for which he was convicted. State v. Pope, 2003 MT 330, ¶¶ 40-53, 318 Mont. 383, 80 P.3d 1232. ¶10 In Beach I, we cited the five-prong test outlined in State v. Clark, 2005 MT 330, 330 Mont. 8, 125 P.3d 1099 as the usual framework to determine whether “newly discovered evidence” warranted a new trial: (1) The evidence must have been discovered since the defendant’s trial; (2) The failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant’s part; (3) The evidence must be material to the issues at trial; (4) The evidence must be neither cumulative nor merely impeaching; and (5) The evidence must indicate that a new trial has a reasonable probability of resulting in a different outcome. Beach I, ¶ 38 (quoting Clark, ¶ 34). However, recognizing that Clark was not a postconviction relief case where the petitioner was filing beyond the statutory time bar, we modified the fifth element of the test to “conform to the miscarriage of justice standard.” Beach I, ¶ 48. To satisfy the modified fifth element, Beach was required to demonstrate his “actual innocence.” Beach I, ¶¶ 42-43. I. SUBSTANTIVE INNOCENCE AND PROCEDURAL INNOCENCE ¶11 We have recognized two species of “actual innocence” claims—substantive and procedural. In Pope and Beach I, we discussed the substantive innocence framework from Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853 (1993), and the procedural 7 innocence framework from Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995). Pope, ¶¶ 40-49; Beach I, ¶¶ 29, 44. A. Substantive Actual Innocence—Herrera “Freestanding” Claim. ¶12 A Herrera substantive, or “freestanding,” innocence claim alleges that newly discovered evidence demonstrates that the petitioner is “actually innocent” of the crime for which he was convicted in the true sense of this phrase—that the defendant truly did not commit the crime. Herrera, 506 U.S. at 417, 113 S. Ct. at 869. However, a duly convicted defendant remains guilty “in the eyes of the law” and carries presumed guilt, not innocence. Herrera, 506 U.S. at 399, 113 S. Ct. at 860. The presumption of guilt combined with the substantial interest in finality of convictions “necessarily” makes the threshold for Herrera freestanding claims of innocence “extraordinarily high.” Herrera, 506 U.S. at 417, 113 S. Ct. at 869. Because the petitioner’s evidentiary showing was particularly weak in Herrera, the Court denied relief without stating what burden must be met to satisfy this “extraordinarily high” threshold. Herrera, 506 U.S. at 417, 113 S. Ct. at 869. ¶13 In Beach I, we stated that this “extraordinarily high” standard of review applied to Beach’s freestanding claim of actual innocence. Beach I, ¶ 44. Although Herrera had not done so, we set forth the evidentiary and legal standard as follows: “Beach must show by clear and convincing evidence that . . . no reasonable juror would have found him guilty of the offense in order for him to prevail on his substantive innocence claim.” 8 Beach I, ¶ 44.1 We explained that, if Beach satisfied this standard, he would be exonerated from the conviction entirely. Beach I, ¶ 45 (“A substantive innocence claim, if successful, results in the petitioner’s release.”). Under a Herrera claim, the defendant is considered truly innocent and is forever exonerated. B. Procedural Actual Innocence—Schlup “gateway” claim. ¶14 The “actual innocence” necessary for purposes of a Schlup claim is different from the “actual innocence” necessary for purposes of a Herrera claim. Schlup, 513 U.S. at 313-14, 115 S. Ct. at 860-61. A Schlup procedural, or “gateway,” innocence claim alleges that newly discovered evidence demonstrates that “a constitutional violation has probably resulted” in a wrongful conviction. Schlup, 513 U.S. at 327, 115 S. Ct. at 867. Unlike a Herrera “freestanding” claim, a Schlup claim is premised on an underlying allegation that constitutional error occurred during the trial process, resulting in a wrongful conviction. While a Schlup claim accompanies an assertion of trial error, a Herrera claim assumes that the trial was error free. Schlup, 513 U.S. at 315-16, 115 S. Ct. at 861. A Herrera claim requires “evidence of innocence . . . strong enough to make [the criminal sanction] ‘constitutionally intolerable’ even if his conviction was the 1 The entire sentence read: “Beach must show by clear and convincing evidence that, but for a procedural error, no reasonable juror would have found him guilty of the offense in order for him to prevail on his substantive innocence claim.” Beach, ¶ 44 (emphasis added). The District Court correctly decided to ignore the “but for a procedural error” phrase in this sentence, noting properly that “a freestanding, or substantive, claim of actual innocence is founded on the notion of an error free trial,” and thus there is no consideration given to any procedural errors under a Herrera claim. See Schlup, 513 U.S. at 315-16, 115 S. Ct. at 861 (noting that a Schlup claim accompanies an assertion of error at trial, whereas a Herrera claim concedes that the trial was error-free); accord Pope, ¶ 48 (“The [Herrera] claim stands alone before the court and must be more convincing than a claim accompanied by other alleged infirmities.”). 9 product of a fair trial.” Schlup, 513 U.S. at 316, 115 S. Ct. at 861-62 (emphasis in original). There is no “gateway” in a Herrera claim, as success on the claim forever ends the matter. While a Herrera petitioner is required to affirmatively “present evidence that he did not commit the crime,” a Schlup petitioner “need not prove that he did not commit the crime,” but “only has to be successful in convincing the reviewing court that a reasonable jury would not likely convict him in light of the new evidence.” Pope, ¶ 49 (emphasis added). In other words, a Schlup petitioner must only produce evidence that creates “sufficient doubt about his guilt to justify the conclusion that his [criminal sanction] would be a miscarriage of justice unless his conviction was the product of a fair trial.” Schlup, 513 U.S. at 316, 115 S. Ct. at 861-62 (emphasis in original). If the Schlup petitioner makes this required showing, he passes through the “gateway” and is entitled to present to the court his constitutional claims of trial error, despite the procedural bars that would normally prohibit such claims. House, 547 U.S. at 555, 126 S. Ct. at 2087 (the petitioner “may proceed on remand with procedurally defaulted constitutional claims” because he satisfied Schlup’s actual innocence “gateway”). If the petitioner subsequently prevails on his constitutional claims, he is entitled to a new trial. Carriger v. Stewart, 123 F.3d 463, 482 (9th Cir. 1997) (en banc) (Carriger’s success on his underlying constitutional claims “entitled him to a new trial”). ¶15 In Beach I, we expressed agreement with the U.S. Supreme Court that “gateway” claims “warrant[ed] the application of a different standard of proof” than Herrera “freestanding” claims. Beach I, ¶ 45. We earlier adopted the multi-step “gateway” 10 procedure in Pope, requiring the petitioner to demonstrate his innocence in order to pass through the gateway and then prove his constitutional claims before obtaining a new trial. Pope pursued a Schlup gateway claim, alleging that a jury instruction violated his right to a unanimous verdict and prosecutorial misconduct denied him a fair trial. Pope, ¶ 37. To pursue these time-barred claims, Pope had to introduce the “necessary gateway evidence,” which he did in the form of DNA evidence from the victim’s vaginal swab and underwear that showed the semen present was not his. Pope, ¶¶ 30, 54. We concluded “it is probable no reasonable juror would have found beyond a reasonable doubt that Pope was guilty” of sexual intercourse without consent if presented with the new DNA evidence, but we did not immediately order a new trial. Pope, ¶ 63 (emphasis added). Rather, we then proceeded to Pope’s constitutional claims and, upon the State’s concession, ultimately held that the jury instruction that permitted conviction without a unanimous vote violated his constitutional rights. Pope, ¶ 68. Only then did we remand for a new trial. Pope, ¶ 70. We reaffirmed this procedure in Beach I, ¶¶ 34-35, where we explained that the State’s concession in Pope that constitutional errors had occurred in Pope’s original trial warranted a new trial. ¶16 In sum, Herrera freestanding claims and Schlup gateway claims both require that a petitioner demonstrate his “actual innocence.” Pope, ¶ 48 (“Actual innocence is different in a Herrera petition and a Schlup petition.”). A Herrera freestanding petitioner must show by “clear and convincing evidence” that “no reasonable juror” would find him guilty, whereas a Schlup gateway petitioner must merely show that it is “likely” or 11 “probable” that “no reasonable jury” would find him guilty.2 A Herrera freestanding claim has the higher threshold because, if met, the petitioner is forever exonerated. A Schlup gateway claim has a lower threshold because, if met, the petitioner is merely permitted to avoid the application of procedural bars and present his claims of constitutional trial error. II. THE DISTRICT COURT’S DECISION ¶17 The District Court failed to appreciate that both Herrera freestanding claims and Schlup gateway claims require a showing of “actual innocence.” Thus, the District Court’s expressed intention to proceed “just” on Beach’s “actual innocence” claim did not differentiate which kind of claim it was analyzing. As noted above, the term “actual innocence” does not uniquely describe either a Herrera freestanding claim or a Schlup gateway claim—a petitioner must show his actual innocence for either claim. The District Court’s analytical error permitted it to pick any rule statement from Beach I pertaining to “actual innocence”—whether it was from the freestanding Herrera analysis or the gateway Schlup analysis—and apply it to Beach’s claim. It did so frequently and thereby conflated the standards. 2 It has been explained that, for a freestanding claim, the petitioner is successful only if the court believes that none of twelve potential jurors would find the petitioner guilty; whereas, for a gateway claim, the petitioner is successful if the court believes that any one of twelve potential jurors would find the defendant not guilty. Schlup, 513 U.S. at 333, 115 S. Ct. at 870 (O’Connor, J., concurring). 12 ¶18 Nevertheless, the District Court ultimately slid to the determination that Beach had succeeded only on his gateway claim, and had failed to meet the stricter requirements of a freestanding claim: After a review of the Court’s analysis of the new evidence, it might reasonably be asked why the Court does not just release Mr. Beach. The testimony of Mr. Holen, that he saw not only Kim Nees in the pickup (with four other girls) that night but also a male in the right passenger seat, leads this Court to conclude that the evidence is not sufficiently clear and convincing to bust down the absolute innocence gateway3 and have Mr. Beach walk through it a free man. Also, we have Mr. Beach’s confession to consider. However, the totality of the evidence is clear and convincing enough to rule that Mr. Beach has certainly opened the actual innocence gateway sufficiently enough to walk through the miscarriage of justice exception toward a new trial. Given the Pope precedent, if Beach has passed through the actual innocence gateway [then] his constitutional claims are not barred. (Emphasis added; brackets in original.) ¶19 The District Court thus held that Beach had proceeded through Schlup’s “actual innocence gateway.” This would entitle Beach to present his time-barred constitutional claims. However, instead, the District Court held that Beach need not present his constitutional claims, but could go straight to a new trial, stating incorrectly that Beach’s constitutional claims could then be taken up: Given the Pope precedent, if Beach has passed through the actual innocence gateway then his constitutional claims are not barred. In other words, Beach can proceed to a new trial where he can present not only the actual innocence evidence but also the constitutional innocence evidence. 3 Again, there is no “gateway” in a freestanding Herrera actual innocence claim. 13 (Internal quotation marks, brackets, and citations omitted). Of course, Pope does not permit leapfrogging from the gateway to a new trial and therein presenting “constitutional innocence evidence.” In Pope, petitioner’s constitutional claims of trial error were analyzed before relief could be granted. Pope, ¶¶ 68-69. After all, the entire point of passing through the “gateway” is to permit the time bar to be circumvented so that constitutional claims can be presented. Those claims are presented in a postconviction hearing, not within a new trial. ¶20 The District Court also failed to apply the unique evidentiary standard of review required in actual innocence cases. As discussed in detail below, a court must analyze not only the credibility and believability of the new proffered evidence, but must also compare that new evidence against the tested trial evidence. Comparing the evidence ensures that the court 1) makes an informed judgment as to what a reasonable juror would do given all of the evidence, old and new, and 2) does not overturn a valid verdict based upon unreliable evidence. In Schlup, the Supreme Court stated that a reviewing court “must make its determination concerning the petitioner’s innocence ‘in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.’” Schlup, 513 U.S. at 328, 115 S. Ct. at 867 (quoting Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)). Schlup’s reference to “all” of the evidence, including that “illegally admitted” at trial, necessarily encompasses all of the 14 trial evidence. See House, 547 U.S. at 538, 126 S. Ct. at 2077 (“Schlup makes plain that the habeas court must consider all the evidence, old and new, incriminating and exculpatory . . . .”). We have followed this practice. Redcrow, ¶ 37 (rejecting innocence claim because the new evidence failed to “overcome” the evidence of Redcrow’s guilt presented at her trial). However, the District Court failed to do so. ¶21 The District Court spent nearly half of its 30-page order summarizing and analyzing Beach’s new evidence, but made only a passing general mention of one part of evidence presented at Beach’s trial—his confession—and did not consider the specifics of Beach’s confession. The court rebuffed the State’s repeated requests that it analyze the new evidence in light of the old trial evidence, stating: “that is not what the Schlup Court held.” The court explained that its refusal to expand its evidentiary inquiry into all of the evidence presented at Beach’s trial was based on its reading of Schlup and Redcrow: “Schlup and its Montana progeny deal exclusively with and constantly reiterate the concept of new evidence and its role in approving or rejecting a petition for post- conviction relief.” (Emphasis in District Court order.) Not only does this assertion contradict this Court’s practice, see Redcrow, ¶ 37; Pope, ¶ 61, it is also illogical. The critical importance of reviewing all of the evidence is illustrated by an exaggerated example: if the State introduced, during trial, a videotape clearly depicting a defendant killing a victim, would hearsay testimony offered years later about others committing the crime support a claim of actual innocence? Of course not. But, under the District Court’s reasoning, the trial videotape would not be considered in the inquiry. The 15 District Court erred by failing to appreciate that an actual innocence claim requires it to compare all of the evidence. III. THE EVIDENCE A. Unique evidentiary standard of review for actual innocence claims. ¶22 Freestanding Herrera claims and Schlup gateway claims come to courts in a unique procedural posture. The petitioner has been previously convicted at trial—i.e., the State has already introduced evidence sufficient for a jury to find the petitioner guilty beyond a reasonable doubt. “Thus, in the eyes of the law, petitioner does not come before the Court as one who is ‘innocent,’ but on the contrary, as one who has been convicted by due process of law of [a] brutal murder[].” Herrera, 506 U.S. at 399-400, 113 S. Ct. at 860; accord Herrera, 506 U.S. at 419, 113 S. Ct. at 870 (O’Connor & Kennedy, JJ., concurring) (“petitioner is not innocent in the eyes of the law because, in our system of justice, the trial is the paramount event for determining the guilt or innocence of the defendant”) (internal quotation marks and citations omitted). To overcome the presumption of guilt that comes with conviction at trial, an actual innocence petitioner must show that new reliable evidence, when weighed against the trial evidence, demonstrates he is actually innocent of the crime he was convicted of. Schlup, 513 U.S. at 328, 115 S. Ct. at 867. This inquiry necessitates a unique two-step evidentiary standard of review. ¶23 Not just any kind of evidence can support an “actual innocence” claim. “To be credible, such a claim requires petitioner to support his allegations of constitutional error 16 with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S. Ct. at 865 (emphasis added). In the context of new testimonial evidence, the court must first determine whether, based solely on the witness’s testimony, it finds the witness credible and believable. Then, the court must determine whether the proffered new testimony is credible and believable in light of the evidence presented at the petitioner’s trial: “Because Schlup also requires that any new evidence of actual innocence be reliable, the [reviewing] court must analyze not only whether the new evidence throws the pre-existing evidence into doubt, but whether the new evidence itself may be considered reliable in light of the pre-existing evidence.” Menefee, 391 F.3d at 172 (Sotomayor, J.); accord Schlup, 513 U.S. at 327-28, 115 S. Ct. at 867; Pope, ¶ 62. ¶24 In Anderson v. City of Bessemer, 470 U.S. 564, 575, 105 S. Ct. 1504, 1512 (1985), the Supreme Court explained that testing new testimony for both internal inconsistencies and inconsistencies with the factual record ensures that a trial court cannot insulate its findings from review simply by labeling them “credibility determinations”: This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether to believe a witness. Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. 17 ¶25 Menefee well illustrates the propriety of an appellate court reversing a trial court’s finding of “actual innocence” when the new evidence is unreliable in light of the pre- existing trial evidence. In Menefee, the Second Circuit reversed the trial court’s finding of actual innocence for the petitioner’s gateway claim. Menefee, 391 F.3d at 150. The petitioner had been convicted of second-degree sodomy stemming from his alleged sexual intercourse with a 14-year-old boy. Menefee, 391 F.3d at 153. Years later, he petitioned for habeas relief alleging that newly discovered evidence established he was actually innocent—the child victim, then of age, had recanted. Menefee, 391 F.3d at 158. Similar to the District Court’s assessment here of the testimony of then-child witness Stephanie Eagle Boy, the trial court there found that the testimony from the recanting victim was “credible in its entirety” and “forthright and responsive.” Menefee, 391 F.3d at 158. The trial court believed the victim’s recantation, and held that the petitioner had demonstrated his actual innocence. Menefee, 391 F.3d at 158. The Second Circuit, then-Judge Sotomayor writing, reversed and explained that whether a witness was believable was only “one element” in the unique standard of review for actual innocence claims; the court must also determine whether its subjective impression that the witness was credible “can be sustained in light of the record as a whole”: Even where a court finds that a witness appears to be telling the truth, it must, as Anderson recognizes, evaluate the testimony in light of the substance of other evidence, considering the potential motives to be untruthful that the witness may possess, corroboration or lack thereof, internal consistency, and the inferences or assumptions that crediting particular testimony would require. See Anderson, 470 U.S. at 575, 105 S. Ct. 1504. 18 This is particularly true in the context of an actual innocence determination, as Schlup requires the habeas court to determine whether the new evidence on which the actual innocence claim is based is reliable. See Schlup, 513 U.S. at 324, 115 S. Ct. 851. In order to make this assessment where, as here, the new evidence consists entirely of testimony that challenges the facts on which the prosecution relied in obtaining the conviction, the court must carefully consider the nature of the testimony in light of the existing record to determine whether it can be considered reliable. See id. at 327-38, 115 S. Ct. 851; Anderson, 470 U.S. at 575, 105 S. Ct. 1504. The court’s conclusion that it believed a witness’s testimony at an evidentiary hearing is only one element of the determination that the testimony constitutes new reliable evidence. The court must then evaluate whether its subjective impression of the testimony can be sustained in light of the record as a whole. Menefee, 391 F.3d at 165. The Second Circuit found the victim’s recantation not credible because the record showed that two New York state prosecutors had interviewed the victim before the original charges were filed, and the victim told the prosecutors that the petitioner had had sexual intercourse with him. Menefee, 391 F.3d at 170. Years later at the innocence hearing, the victim testified that the prosecutors were fabricating his statements because he had denied any impropriety between himself and the petitioner during those interviews. Menefee, 391 F.3d at 170. The Second Circuit found that a juror would not likely credit the victim’s “conspiracy” theory that the prosecutors were fabricating testimony: In order to credit [the victim’s] testimony over [the prosecutors’ testimony] . . . the factfinder would have to conclude that [the prosecutors] were part of a conspiracy to fabricate their account of [the victim’s] statements and the notes that recorded the statement. . . . it would have to discredit both prosecutors and find that a conspiracy existed in the DA’s Office in 1994, in order to credit [the victim’s] testimony. 19 Menefee, 391 F.3d at 171. Because of the improbability that a juror would credit the victim’s conspiracy theory over the testimony of two prosecutors, the Second Circuit held that the victim’s testimony was unreliable. Menefee, 391 F.3d at 171. Because the petitioner had not presented any new reliable evidence, it was unnecessary for the Second Circuit to proceed to the second step of the unique standard of review. Menefee, 391 F.3d at 172 (“Because Doe has not presented any new reliable evidence, it is unnecessary to determine whether no reasonable juror would convict in light of Doe’s newly proffered evidence.”). Only new evidence that is reliable requires further analysis of the claim. ¶26 The second step of the unique standard of review requires the court to combine the new reliable evidence with the old trial evidence and determine whether a reasonable jury that was presented with this hybrid record would find the petitioner guilty.4 In other words, the court must “make a probabilistic determination about what reasonable, properly instructed jurors would do” if the new reliable evidence was admitted alongside the old trial evidence. Schlup, 513 U.S. at 329, 115 S. Ct. at 868; House, 547 U.S. at 538, 126 S. Ct. at 2078 (“Because a Schlup claim involves evidence the trial jury did not have before it, the inquiry requires the federal court to assess how reasonable jurors would react to the overall, newly supplemented record.”). Because the determination as to “whether no reasonable juror would find a petitioner guilty beyond a reasonable doubt is 4 This is the standard for a gateway claim. The standard for a freestanding claim would require the court to determine whether the petitioner has demonstrated by “clear and convincing evidence” that “no reasonable juror” would find him guilty, Beach I, ¶ 44, if presented with the hybrid record. 20 a mixed question of law and fact, we review the district court’s ultimate finding of actual innocence de novo.” Menefee, 391 F.3d at 163. ¶27 In House, the U.S. Supreme Court reversed the trial court’s finding that the petitioner’s new evidence was insufficient to show “actual innocence” under the gateway standard. House, 547 U.S. at 554, 126 S. Ct. at 2086. The Court rejected the notion that, absent a showing of clear error in crediting individual witnesses, the Court was required to defer to the trial court’s ultimate conclusion as to whether a jury, presented with all of the evidence, would find the petitioner guilty: The State also argues that the District Court’s findings in this case tie our hands, precluding a ruling in House’s favor absent a showing of clear error as to the District Court’s specific determinations. This view overstates the effect of the District Court’s ruling. Deference is given to a trial court’s assessment of evidence presented to it in the first instance. Yet the Schlup inquiry, we repeat, requires a holistic judgment about all the evidence, and its likely effect on reasonable jurors applying the reasonable-doubt standard. As a general rule, the inquiry does not turn on discrete findings regarding disputed points of fact, and it is not the district court’s independent judgment as to whether reasonable doubt exists that the standard addresses. House, 547 U.S. at 539-40, 126 S. Ct. at 2078 (emphasis added; internal citations, quotations marks, and brackets omitted). The Court reversed the trial court, and held that House’s evidentiary showing was sufficient to demonstrate actual innocence for purposes of a gateway claim, but not for purposes of a freestanding claim: This is not a case of conclusive exoneration. Some aspects of the State’s evidence—Lora Muncey’s memory of a deep voice, House’s bizarre evening walk, his lie to law enforcement, his appearance near the body, and the blood on his pants—still support an inference of guilt. Yet the central forensic proof connecting House to the crime—the blood and the semen— 21 has been called into question, and House has put forward substantial evidence pointing to a different suspect. . . . House has satisfied the gateway standard set forth in Schlup and may proceed on remand with procedurally defaulted constitutional claims. House, 547 U.S. at 553-55, 126 S. Ct. at 2086-87. ¶28 Given this analysis of the proper evidentiary standards of review, we turn to the evidence presented at Beach’s 1984 trial, and then to Beach’s new evidence. B. Evidence Presented at Beach’s 1984 Trial. ¶29 Beach’s trial was held in Glasgow in April 1984. After five-and-a-half hours of deliberations, the jury returned a unanimous guilty verdict. The trial evidence is consolidated below into three substantive areas.5 1. The Confession6 ¶30 During January 1983, Beach made numerous statements to multiple Louisiana police officers in which he confessed to killing Nees. During this time period, Beach had moved from Poplar to live with his father and stepmother in Monroe, Louisiana. On January 4, 1983, Beach’s stepmother called police and turned Beach in for contributing to 5 All of the evidence referenced in this section is taken from the six-volume trial record. 6 Beach raises questions about the discrepancies between his confession and the actual murder scene. It bears worth mentioning, however, that Beach’s confession only contradicts the scene of Nees’s murder in one way: the description of Nees’s clothing she was wearing when murdered. The other “discrepancies” are merely details that were not included in Beach’s confession. Further, these discrepancies do not constitute “new evidence” under Schlup or Clark. Beach’s trial attorney aggressively attacked these “discrepancies” and the validity of Beach’s confession in a pre-trial suppression hearing and at the 1984 trial. The validity of the confession was upheld first by the judge and then by the jury. 22 the delinquency of minors. He was arrested and taken to the Ouachita Parish Sheriff’s Office. ¶31 On January 5, 1983, Beach telephoned his stepmother from jail and threatened to kill her. Scared, his stepmother and father called the Sheriff’s Office and told them Beach had been a suspect in a Montana homicide and might be connected to several unsolved Louisiana homicides. They told law enforcement they were concerned because Beach was “quite capable of committing a murder under certain situations.” ¶32 On January 6, 1983, Sergeant Jay Via (Sergeant Via) and Deputy Sheriff Richard Medaries (Deputy Medaries) of the Sheriff’s Office talked to Beach for an hour. Prior to their questioning, they informed Beach of his Miranda rights and Beach signed a statement that he understood his rights and was waiving them. Beach confirmed that he had threatened to kill his stepmother and that he was, indeed, a suspect in a Montana homicide. Beach explained that he could “fly[] off the handle” and that he dealt with frustration in a “physical way.” ¶33 On January 7, 1983, Sergeant Via picked Beach up from jail at 12:24 p.m. to conduct an interview. Sergeant Via advised Beach of his Miranda rights in transit and again before questioning him. The interview began at 12:52 p.m., but was interrupted at 12:58 p.m. when another police officer entered the room. Beach was again advised of his rights.7 During the initial questioning, Beach denied killing Nees. With Beach’s 7 Pursuant to the Louisiana Sheriff’s office policy, Beach was advised of his rights every time someone entered the interview room. This policy ensured that each officer could independently 23 permission, Sergeant Via then performed a voice “stress evaluation test” on Beach. In the test, Beach’s answers to a series of questions were recorded and measured for fluctuations that indicated stress in his responses. Stress could indicate deception. From the test, officers believed Beach was being deceptive. Throughout the day, Beach was permitted to use the restroom and have coffee, cigarettes, snacks, and soda pop. Shortly after 3:00 p.m., Sergeant Via requested Commander Calhoun to perform a second “stress evaluation test” to confirm his conclusion that Beach was being deceptive about the Nees murder. Commander Calhoun performed another round of questioning until 6:30 p.m., when he asked Sergeant Via to reenter the room. When Sergeant Via reentered, Beach had “tears in his eyes” and he told Sergeant Via “he was afraid to admit [] what he had done in Montana[.]” At 6:51 p.m., Beach confessed to killing Nees to Commander Calhoun and Sergeant Via. At 7:08 p.m., Beach gave a recorded confession, providing details of how he had met up with Nees that day, why he had killed her, how he had killed her, and how he disposed of the body and the evidence tying him to the crime scene. He appeared “relieved” after giving this 40-minute taped statement.8 testify that Beach received the Miranda warnings and voluntarily waived his rights. Overall, the “record indicates that [Beach] received ten Miranda warnings between January 4 and January 11.” Beach v. State, 217 Mont. 132, 152, 705 P.2d 94, 106 (1985). 8 A secretary at the Sheriff’s Office transcribed Beach’s January 7 confession. Sergeant Via compared the transcription to the recording and made clerical corrections to the transcription. An evidence technician at the Sheriff’s Office subsequently erased the tape containing Beach’s confession. Beach has never claimed that he did not actually give the confession. However, he has offered changing theories about how the Louisiana police wrongfully induced his confession. At the 1984 suppression hearing, Beach said that he confessed because Commander Calhoun told him there was enough evidence to see him “fry in the electric chair” for the Louisiana murders, 24 ¶34 Beach’s account included details of his activities and whereabouts the day of Nees’s murder. From 1:00 p.m. until 4:30 p.m., Beach said he was partying at Sandy Beach along the Poplar River with Shannon O’Brien and Calib Gourneau. When the group tried to leave, Beach’s vehicle “got stuck” in the sand, and he became “very angry.” Beach damaged his car trying to rock it out of the sand, and he “blew up.” Beach got out of the vehicle, started “kicking the vehicle,” hitting the vehicle, and cussing and stomping around. Gourneau “tried to calm [Beach] down,” but, Beach explained, this only made him “madder and madder.” Beach then “got into an argument” with Gourneau and left to walk back to Poplar. He said he would “send somebody back to pick [Gourneau and O’Brien] up,” but did not do so. ¶35 At trial, Shannon O’Brien corroborated Beach’s account of what happened at Sandy Beach, with the addition of two details. First, after the car got stuck, Beach threw beer bottles at the car. Scared, O’Brien rolled up the windows and locked the doors and did not emerge from the car until Beach left. Second, the angry Beach told O’Brien and Gourneau that he “wanted to get a woman.” ¶36 When Beach got home, he looked for beer in the refrigerator and started to make something to eat. He changed his mind, however, and went upstairs and fell asleep in his and by confessing Beach would be permitted to return to Montana. In his 1995 petition for postconviction relief, Beach asserted that he confessed because he felt helpless after being held for four days after his arrest without seeing his family or a judge. However, in a 2002 interview, Beach stated that his “number one theory” of why he confessed was that Sergeant Via, Commander Calhoun, and Deputy Medaries had drugged his milkshake, rendering him susceptible to the officers’ suggestions: “I know there was something in that milkshake. For my memory to go to where I just don’t remember, something happened to me.” 25 room. Beach awoke sometime “after dark.” He left the house, and started walking toward town. When he got to the Exxon service station, a popular place for Poplar teenagers to meet, he found Nees sitting in her pickup. Beach was dating Nees’s sister, Pam, at the time. Beach asked if he could ride around with Nees, and the two drove around Poplar until it was “fairly late at night.” Eventually, they drove down to the Poplar River by the “train bridge,” where Beach said he turned the conversation to “intimate” topics. He asked Nees about “making love to her boyfriend,” and if she would have sex with him. She said no. This “upset him” a little, so he decided to try harder. He smoked “another joint with her” in hope that “she would get a little bit more messed up[.]” Finally, he “reached over to kiss her and she pushed [Beach] away.” This made Beach “pretty mad,” and he asked Nees why girls around Poplar did not like him. She said it was because he was an “asshole.” ¶37 This upset Beach “quite a bit.” He tried to grab Nees and she slapped him. He reached over, grabbed her by the arm, and pulled her over next to him. Nees fought back. Beach said this made him fly “off the handle again.” He got so mad he “didn’t really know what [he] was doing.” He hit her with his fist. Then he picked a “twelve inch crescent wrench” off the floorboard and started hitting her with it. Nees retreated out the driver-side door of the pickup. Beach dropped the wrench as he rushed out the passenger-side door to catch her “before she run off.” He “caught her as she was coming out the door.” Beach again tried to kiss her, and Nees scratched him. This only made Beach madder; he threw her up against the truck and choked her. He reached into the 26 back of the pickup and grabbed a tire iron. He “started hitting her with that, telling her [he] was going to kill her, calling her a bitch, and cussing her.” He hit her “anywhere and everywhere [he] could.” Nees was “covering her head with her arms and screaming.” Nees got away from Beach, and ran to the other side of the pickup, but Beach “tackled her” next to the “passenger rear tire” and “hit her a couple more times” on the head with the tire iron. When he realized that Nees had “quit moving,” Beach stopped and stood up. He looked at Nees, took a few steps back, and then returned to her body to check for a pulse. He found none. ¶38 Beach explained that he then began to dispose of the evidence. He threw the crescent wrench and tire iron into the Poplar River. He then began to look for something to help drag the body over to the river. He found a plastic garbage bag and “tried to put the body in it.” He was able to fit Nees’s folded legs and torso into the bag, with the bag coming up to under her armpits. Beach held the corners of the bag and dragged the body by the shoulders to the edge of the bank of the river. He pushed the body and bag over the edge of the bank. Beach believed that the plastic bag came off the body when he pushed it over the bank. Beach returned to the pickup, took the pickup keys and Nees’s jacket, returned to edge of the river bank, and threw them in the river. Beach then wiped down the inside and outside of the truck with his shirt sleeve to remove fingerprints. ¶39 Beach left the scene on foot and went home. On his way, Beach realized that he was covered in blood. He wiped off as much blood as he could from his body, used a lighter to burn his shirt and pants in a nearby railroad boxcar, and disposed of his shoes. 27 Beach returned home in his underwear and washed off the remaining blood with soap and water. He then went to bed. ¶40 At the conclusion of this confession, Sergeant Via again advised Beach of his Miranda rights and asked him whether everything Beach told them was the “honest and complete truth.” Beach responded: “Yes, sir.” When asked if he had been forced by anyone to give the statement or whether he was tricked or forced into giving the statement, he responded: “No, sir.” ¶41 The next day, January 8, 1983, Sergeant Via went to the jail to talk to Beach about three unsolved Louisiana murders. Beach told Sergeant Via that he had retained a lawyer. Sergeant Via did not ask Beach any further questions. Paul Henry Kidd (Kidd), Beach’s Louisiana attorney, subsequently contacted Sergeant Via to request a meeting on January 11, 1983. He wanted to discuss the unsolved Louisiana murders. When Sergeant Via and his commanding officer, Lieutenant Joe Cummings (Lieutenant Cummings), met with Kidd and Beach, Sergeant Via read Kidd and Beach the Miranda rights, and Beach and Kidd signed a waiver form. When questioned about the Louisiana murders, Beach denied any involvement, but mentioned “on two or three occasions during the course of the interview” that he had killed Nees. Beach’s admissions were made at different times throughout the interview in the presence of Sergeant Via, Commander Calhoun, Lieutenant Cummings, and Kidd. ¶42 Shortly after the January 11 meeting, Kidd approached the Louisiana officers and told them that Beach now wanted to confess to the three unsolved Louisiana homicides. 28 Kidd relayed details of the murders that Beach had supposedly provided. The officers followed up on the information, but could not confirm any of it. On January 20, 1983, they confronted Kidd about the veracity of the information. Kidd acknowledged to the officers that he had convinced Beach to falsely confess to these murders as a strategy to utilize an insanity plea. Kidd had gone so far as to make up an alternative personality for Beach’s murderous alter ego, named “Ray Woods.” Law enforcement then dropped Beach as a suspect in the Louisiana homicides. ¶43 During Beach’s 1984 trial, his attorney, Charles “Timer” Moses (Moses), vigorously attacked the reliability of Beach’s confession on various fronts. Cross-examining Via, Moses questioned Via about whether Beach had been “psychologically unsound” when he confessed, about obtaining Beach’s false confession to the Louisiana murders, and about why he had not recorded the entire January 7 interview. Moses questioned whether Via had fed details of Nees’s murder to Beach that provided the substance of the confession, and why Beach had been interviewed for over six hours on January 7. Via answered these questions and denied any wrongdoing. Cross-examining Calhoun, Moses asked if he had played the “bad cop” while Via had played the “good cop.” He asked whether Calhoun had threatened to see Beach “fry in the electric chair” if he did not confess. Calhoun denied both. With Deputy Medaries on the stand, Moses elicited testimony that other criminals—serial killers Ottis Toole and Henry Lucas—had confessed to two of the three unsolved Louisiana murders to which 29 Beach had also confessed, insinuating the officers were engaged in obtaining false confessions.9 ¶44 The jury went into deliberations with the clear understanding that determining whether Beach’s confession was truthful or was a product of police coercion was a critical issue. The judge specifically charged the jury with determining whether Beach’s confession was voluntary and truthful. In their closing arguments, both lawyers argued to the jury that Beach’s confession was the crux of the case. The prosecutor, Marc Racicot (Racicot), argued: So then, this all boils down, essentially, to two essential questions, and depending on how you answer those two simple questions, everything else is dispensed with. Those two questions concern[] the defendant and his confession and as the Judge instructed you, “If the confession is voluntarily made” and “if his confession is true,” and there is simply nothing left to determine. 9 Beach points out that Via, Calhoun, and Medaries obtained false confessions to the unsolved Louisiana murders from Toole and Lucas, thus making the same insinuation as Moses did at trial. Beach does not mention, however, that neither Toole nor Lucas was ever charged with any of these murders because their confessions were found to be false upon further investigation by Louisiana police. Further, it is likely that police tactics had nothing to do with these false confessions. In the 1980s, Lucas confessed to “hundreds of unsolved murders in the USA,” and has been dubbed “the most prolific serial confessor in world history.” Gisli H. Gudjonsson, The Psychology of Interrogations and Confessions: A Handbook 554 (Wiley & Sons, Inc. 2003) [hereinafter Gudjonsson]. While in Texas custody for 18 months, Lucas confessed to over 600 murders. Gudjonsson, at 555. When subsequent investigation proved Lucas to be lying, he explained that he falsely confessed to the murders, not because of overzealous interrogation tactics, but to “get revenge on the police for having arrested him on a made-up firearm charge[,]” to “impress the judge,” and because being the “biggest monster alive” in the eyes of the media “made him feel good.” Gudjonsson, at 558. Sergeant Via explained at Beach’s clemency hearing that, during June 1983, he traveled to Montague, Texas where Lucas was being held by Texas authorities to interview him about the three unsolved Louisiana murders. Via conducted two interviews and Lucas admitted to “killing three girls in the Monroe area.” 30 Moses likewise focused on the confession, raising questions about the tactics used by the Louisiana police to get the confession and the truthfulness of police officers’ testimony at trial: You recall Mr. Via talking about his interviews with Mr. Beach, let’s see, on the 6th and 7th of January, and again on the 11th and also on the 20th, and he testified under oath . . . that there was . . . adequate belief in his opinion to go before the Court and secure a search warrant in connection with Mr. Beach’s participation in the three murders in Louisiana. Now how does he explain that away? He says that it was a ploy by this Louisiana lawyer. Well now, in the first place lawyers may not be that smart, but they sure in hell are not dumb, to come in and make a statement like that would be absolutely absur[d]. A lawyer would have to be insane to do that, and you know that and Mr. Racicot knows that and Mr. Racicot knows that I know that. Now then, if Mr. Via is such a good investigator he should have had something about that in his notes and records and would be able to talk to us about it. ¶45 The jury obviously rejected Beach’s conspiracy theory that all of the Louisiana police officers were lying when they testified that Beach voluntarily confessed to Nees’s murder on several occasions. 2. The Crime Scene—the train bridge and nearby witnesses ¶46 At trial, the State called former Tribal Police Officer Alfred Lizotte (Lizotte) to testify about the scene of the crime. Lizotte was on patrol in Poplar with Sergeant Calvin Red Thunder (Red Thunder) the morning of Nees’s murder, and saw a pickup parked by the Poplar Train Bridge at about 4:15 a.m. When the pickup had not moved by 7:00 a.m., the officers decided to investigate. Approaching the pickup, they saw blood and hair on the inside, as well as outside on the passenger side. 31 ¶47 Next to both the driver’s side and the passenger’s side of the pickup there were “scuffle marks” where the dirt was “kicked up in places.” Ten feet from the passenger side of the pickup was a “blood spot.” Red Thunder observed “drag marks” leading away from the scuffle marks, and the officers followed these marks to the edge of the bank of the river. From there, the officers saw Nees’s body, floating face-up in two feet of water about ten feet from the lower river bank. They immediately notified the County Sheriff, the Federal Bureau of Investigation, the Bureau of Indian Affairs, and the Fort Peck Tribal Police, and soon, representatives from all of these agencies responded to the crime scene. ¶48 Deputy Errol “Red” Wilson (Wilson) of the Roosevelt County Sheriff’s Office testified about the evidence in and on the pickup. The inside of the pickup was consistent with Beach’s explanation that he attacked Nees inside the pickup with a crescent wrench: Q: Did you notice any sign of scuffle or any blood in or around the vehicle? A: Yes sir. Q: And what did you notice? A: There was blood on the driver’s door and the window; there was blood on the seat; there was hair and [] blood on the steering wheel; blood splattered on the ceiling; beer or urine on the driver’s side of the seat, I smelled it but I couldn’t tell what it was; there was bloody smudgy fingerprints on the upper right mo[l]ding. . . . Q: Inside? 32 A: Yes sir. There was blood spots on the back of the seat, there was blood splatters on the rear window, heavy blood splatters on the driver’s side of the rear window; there were no keys in the vehicle; the gear shift lever was in park; the radio was on; the CB radio was off; the ash tray was open; on the ceiling there were three gouge marks with hair hanging out of them; there were gouge marks on the steering wheel; the heater was left on and the passenger door was locked. Deputy Wilson also testified that the drag trail leading away from the vehicle had much less blood than at the edge of the bank where Nees’s body was pushed over. These details were consistent with Beach’s explanation that he had stuffed most of the body into a bag for dragging to the edge of the bank. ¶49 Wilson and other officers canvassed homes that were near the crime scene to determine whether anyone had seen or heard anything. Beach’s residence was one of the houses close enough to warrant a visit, and Wilson stopped at the house. Wilson spoke with Roberta Clincher, Beach’s mother. At trial, following a break in his testimony, Wilson re-took the stand and testified as follows: Q. [Racicot]: [] I think previous to the time we terminated your questioning, I asked you if you had talked to Roberta Clincher at her home on the morning of June 16, 1979? A. [Wilson]: Yes. Q. [Racicot]: And that you was questioning her and a number—you and other officers were questioning her and a number of other people as to whether or not they seen or heard anything in relation to the death of Kimberly Ann Nees? A. [Wilson]: Yes. Q. [Racicot]: Did Mrs. Clincher make a statement to you concerning her son having come home early in the morning on that particular day? 33 A. [Wilson]: Yes sir. Q. [Racicot]: And did she relate to you a statement concerning whether or not the defendant had blood upon his person when he came home? A. [Wilson]: Yes. Q. [Racicot]: And what was that statement? A. [Wilson]: She told me that the defendant had told her that he had wrecked the car, had gotten it stuck in the sand at the swimming hole and that they had been drinking and couldn’t get the car out and he told her that he hit the car with his fist and that was to explain how he was covered in blood. Q. [Racicot]: She did tell you that he was covered in blood? A. [Wilson]: Yes. ¶50 Notably, it was Moses who called Joel Sparvier (Sparvier) as a witness. Sparvier lived close to the Train Bridge, in the same house as his younger relative, then-10 year old Stephanie Eagle Boy, who did not testify at the trial. Moses thought Sparvier may have heard something suspicious on the night of the murder. However, Sparvier testified the only thing he heard that night was barking dogs: Q. [Moses]: I direct your attention to the 16th day of June, 1979. Did you hear any screams for help? A. [Sparvier]: No. I didn’t. What I heard was dogs barking and these dog [sic] barking drowns out everything else. Q. [Moses]: You didn’t hear any screams coming from the area of the river bridge? A. [Sparvier]: No. 34 3. The Forensic Investigation ¶51 The areas of concentration of the wounds inflicted upon Nees were her head, neck, and hands. The wounds themselves were consistent with being inflicted with two different weapons, consistent with Beach’s confession that he had used a crescent wrench and a tire iron. Dr. John Pfaff testified to the following details of his investigation. ¶52 On June 16, 1979, Nees’s body was retrieved from the Poplar River and transported to Great Falls for an autopsy. Dr. Pfaff, an experienced physician and forensic pathologist,10 performed the autopsy and the subsequent forensic investigation. He took photographs of all of Nees’s injuries, and opined that she had been killed by blows to the head: During the physical examination of the body, it was apparent that there were multiple injuries on her body, mainly about the head, the neck, shoulder areas and also involving the arms and hands. The most serious ones were ones involving the head and were those that caused her death. The autopsy pictures confirmed that all of the major injuries sustained by Nees were to her neck and head area, and to her hands. There were no major injuries to her legs or the trunk of her body. These findings were consistent with Beach’s confession that he had hit Nees in the head area with the tools, and were also consistent with his version that he was the sole attacker. ¶53 No possible weapons were initially provided to Pfaff and he did not initially make any conclusions as to the murder weapon, but concluded that “blunt force” had caused 10 Dr. Pfaff had performed over 3,000 autopsies. 35 the injuries. After further investigation had identified possible weapons, police asked Pfaff to determine if a crescent wrench and a 20½ inch-long metal bar could have served as the murder weapons. Pfaff excluded the metal bar as the murder weapon, but opined that some of Nees’s wounds could have been inflicted by the wrench. Later, after receiving Beach’s confession, police asked Pfaff to consider whether Nees’s wounds were consistent with blows from a tire iron. Pfaff concluded that the tire iron could have inflicted the injuries not caused by the wrench: “Neither [weapon] inflicted all of them, but together they could have inflicted all of them.” Pfaff further concluded that Nees was already dead when she was put into the river, and that she had not recently had sexual intercourse. All of these findings were consistent with Beach’s confession. ¶54 Moses called Roosevelt County Sheriff Dean Mahlum (Mahlum) to establish the lack of physical evidence tying Beach to the murder. While a bloody palm print and numerous fingerprints had been taken from the crime scene, and numerous blood samples had been taken from inside and outside the vehicle and from Nees’s clothing, none of the prints or blood matched Beach. Mahlum testified that the lack of physical evidence against Beach was not suspicious, opining that sloppy crime scene investigation was the likely cause. From the beginning, there had been a breakdown in leadership in the investigation. Because the murder took place on an Indian reservation, federal, state, and tribal agencies were all involved, with no agency clearly in charge. Consequently, evidence was collected and stored in a haphazard manner, resulting in the contamination of scientific evidence. It was not peculiar that Beach’s blood was not present at the 36 scene, Mahlum explained, because all of the blood located at the scene belonged to Nees. He also explained that the Train Bridge area was a popular hangout, which explained why the crime scene was riddled with “beer cans,” “scraps of paper,” and general “junk all over the place.” Mahlum also testified that rumors regarding the murder were “rampant” and authorities checked out as many leads as possible. However, Beach’s confession was different from these rumors because his story checked out.11 C. Beach’s New Evidence ¶55 In the early 2000s, Centurion Ministries began interviewing people who claimed to know about the murder. In 2007, the Clemency Panel held a three-day hearing on Beach’s clemency petition. Also, in 2007, Dateline NBC interviewed several people claiming to have new information that pointed to a “pack of girls”—Sissy Atkinson, Maude Grayhawk, and JoAnn Todd—as Nees’s true killers. In 2008, Dateline ran an episode on the murder. On August 1-3, 2011, the District Court heard testimony regarding Beach’s claimed new evidence of innocence. All of this evidence was oral testimony. ¶56 Judy Grayhawk is the sister-in-law of Maude Grayhawk, one of the group identified as the “pack of girls.” She testified that sometime in 2004 she received a phone call from Maude. Maude sounded depressed and admitted to kicking Nees in the 11 Beach argues that the absence of his prints furthers his actual innocence claim, which is premised upon his theory that Nees was killed by a “pack of girls” who later made statements to others implicating themselves. However, as the State notes, all three of the girls asserted to be Nees’s assailants submitted finger and palm prints to the FBI, which reported that none of the girls’ prints could be matched to those found at the murder scene. 37 head and luring her down to the river. Maude sounded scared and believed she was going to prison. Judy says that Maude called her because Maude wanted Judy’s son’s help in “running away from an investigator.” ¶57 Ron Kemp was the Criminal Investigator for the Roosevelt County Attorney’s Office from 2003 to 2006. In early 2004, Centurion Ministries contacted the County Attorney’s office, claiming to have discovered an eyewitness to the Nees murder. That eyewitness, Calvin Lester, said that on the night of Nees’s murder, when he was ten years old, he had gone down to the railroad tracks and witnessed girls kicking someone on the ground. Lester told Kemp that Maude Grayhawk was one of the attackers. Kemp followed up by visiting Maude at her house, and she agreed to meet with Kemp at the Poplar Police Department the next day. Maude appeared as promised the next day, and denied any involvement in killing Nees. She told Kemp that she and four other girls had partied down by the Train Bridge from 9:30 p.m. until 10:00 p.m. the night Nees was murdered. Without more, Kemp found this unhelpful, because the time was at least three hours before the time of Nees’s death. Kemp “pushed” Maude about her story, telling her “several times” that he had an eyewitness that implicated her in the murder. Nonetheless, she continued to deny any involvement, and eventually became “upset.” Calvin Lester later recanted his story and admitted that he had lied about witnessing the murder and Maude’s involvement. ¶58 Janice Johnson lives in Poplar and previously worked with Maude Grayhawk at a medical clinic. Sometime between 2005 and 2007, a Centurion Ministries investigator 38 came to talk to Maude. Maude directed Johnson to say she was not in. After the investigator left, Maude told Johnson that she did not want to talk to the investigator because he was investigating the Nees murder and, “My car was down there that night. Those girls had my car.” ¶59 Richard Holen was 19 at the time of the murder and had been out drinking that night. He left a bar around 2:15 a.m. or 2:30 a.m., driving his vehicle out of Poplar to the west. On the road about one hundred feet ahead of him was Nees’s pickup. Holen saw five people in the cab of the truck. The truck turned off the road and headed toward the Train Bridge. Holen continued along the road. Still later that night, Holen drove back by the Train Bridge area, and stated that he saw Nees’s truck parked there with another vehicle. They were parked facing opposite directions so that the drivers could talk while remaining in their vehicles. Holen provided Centurion Ministries a statement in 2002 as to what he saw. Holen’s statement did not include a substantial amount of information that he later testified to in 2011. In his 2002 statement, Holen mentioned seeing only Nees’s truck parked at the Train Bridge at the later hour. When asked to explain this discrepancy between his 2011 and his 2002 statements, Holen said that over time “a little something else comes back” and that he had only recently remembered the additional details. Holen’s 2002 statement was also silent as to the gender of the five occupants in Nees’s truck. A few years later, during his Dateline interview, Holen was sure all five were females. Likewise, he testified to the Clemency Panel that all of the occupants were females. At the postconviction hearing in 2011, he changed his story, stating that they all 39 looked like girls except for a guy “sitting by the [passenger] door.” Holen’s only explanation for this new revelation was that his testimony had not changed “much.” ¶60 Carl Four Star lives in Wolf Point and worked with Sissy Atkinson, another member of the “pack of girls,” at A&S Industries (A&S) in 1985. A&S was an industrial manufacturer of camouflage netting for the U.S. military. Four Star testified that in 1985 he overheard Sissy talking to a co-worker at A&S about the Nees murder. Four Star was standing approximately 20 to 25 feet away at the time. Four Star says that the co-worker was reading a newspaper that reported Beach had been convicted of murder.12 Four Star testified that the co-worker said something to the effect that it was a shame what happened to Beach. Sissy responded: “They got the wrong man. I was there.” Then Sissy made motions like she was kicking someone on the ground. Later, Sissy walked past Four Star and told him that she had gotten away with the “perfect crime, a capital crime.” Four Star came forward with this information for the first time some 15 years later when Centurion Ministries visited his mother’s house looking for someone else. Four Star’s original statement did not include any mention of Sissy making “kicking motions.” During the postconviction hearing, the parties disputed whether Four Star could have overheard this conversation given the noise level in the factory. Four Star’s testimony in this regard has changed over time. Four Star told the Clemency Panel that it was so quiet in the work area when Sissy made her comments that one could hear a “pin 12 Beach was convicted in 1984. 40 drop.” However, in 2011, Four Star testified that there was a radio playing “[l]oud enough that people could hear it” but not so loud “that it muted everyone out.” ¶61 The State called Richard McDonald to rebut Four Star’s testimony as to the noise level in A&S. Richard McDonald is a retired police officer of the Fort Peck Tribe who worked at A&S in 1983 and again in 1989. He testified that the area where Four Star worked was particularly noisy because of the large ventilation fans that were constantly running to clear out the “terrible smell” that came off the nets being made. He said that when people wanted to talk to each other they had to shout. ¶62 Stephanie Eagle Boy grew up in Poplar, and was ten years old at the time of Nees’s death. She lived with Joel Sparvier close to the Train Bridge. Her favorite hang-out was “the rock,” a place she could sit and overlook the Train Bridge. One night in 1979, Eagle Boy watched two vehicles approach the Train Bridge. At the beginning of her testimony at the 2011 hearing, Eagle Boy could positively identify only one of the vehicles as a truck, but midway through her testimony she was sure that both vehicles were “pickups.” Eagle Boy said that the two pickups pulled in together and parked facing the same direction. Then girls got out of the vehicles and there was “horrific screaming” for 10 to 20 minutes. She heard girls yell, “Get her!” and “Kick the bitch!” She also heard another girl say, “Please, don’t!” Then it got quiet, and a police car showed up with its lights already on. When it reached the pickups, it shut all of its lights off, and Eagle Boy heard “a little whispering or something.” Then one of the pickups drove over to some tall grass and two people got out. She heard “digging” and “like a 41 clinking noise, like they dropped something like tools clinking together when you drop them.” Then both of the pickups and the police car drove away from the area. Eagle Boy said her cousin, Joel Sparvier, was also outside watching and listening to this with her. Eagle Boy was surprised to learn that Joel Sparvier had testified at Beach’s 1984 trial, and that he had only heard barking dogs that night, and no screaming. ¶63 Eagle Boy could not identify what night in 1979 her memory was of: Q: While you were sitting out there . . . First of all let me ask you do you remember what day it was or what date it was? A: No I don’t. Q: But you know it was summer? A: Yeah. Q: And, it was the year that your grandfather died? A: Yes. Eagle Boy’s failure to know if her memories correspond to the night of Nees’s murder was confirmed during the State’s cross-examination: Q: And, isn’t it true that earlier, about a half hour ago the only way you knew it was the summer of 1979 was because it was hot is that correct? A: Yes. Q: Okay. But, you don’t know the date; you don’t know exactly when it could have occurred except for the summer of 1979, correct? A: Well, I can’t remember. Q: That’s fine. I am just asking. Just confirming that. All you know is it was the summer of 1979, correct? 42 A: Yes. ¶64 Billie Smith and Susan Mohler live in Missoula, and formerly worked with JoAnn Todd, formerly JoAnn Jackson, the final member of the “pack of girls,” at an assisted-living facility there. During a cigarette break one day, Smith alleges that JoAnn Todd told her that when she was a teenager “she and a group of girls took another girl by the water and they dragged the girl out of the truck. She was not—she had nothing to do with this, but she was present when it happened.” The girl was then killed. Smith asked Todd to repeat the story for another employee, Susan Mohler. While Mohler generally corroborated the story, she stated that Todd never said that she was at the killing, and that Todd insisted “she was not involved.” Smith and Mohler came forward after watching Dateline. ¶65 Kevin Hall lives in Great Falls and was acquainted with Sissy Atkinson in 2004, during a time he said they both were doing a “fair amount” of pain killers. Hall said he did not like when Sissy would come around because she would get high and “sit and cry about karma all the time to [him].” Sissy told Hall that her former husband had died because of “bad karma” stemming from Sissy’s involvement in beating a girl when she was a teenager. Hall testified that Sissy was high every time she brought up the beating, and that she told the story somewhere between five and twenty times. Hall testified that Sissy’s story became more detailed with each telling. The first time Sissy brought it up, she merely said that a group of girls had beaten up another girl. But, by the final telling, 43 Sissy had told him that “they” had “lured” the victim down to the river, where they beat her with a “tire tool,” and “rolled” her into the river while the girl was unconscious. Hall came forward after watching Dateline and, in 2010, provided Centurion Ministries with a written statement of what Sissy had told him. In the 2010 statement, Hall said that Sissy had told the story many times but had not given any more details than those in the first telling. In other words, Sissy’s story never changed: “Sissy brought [the beating] up more than on one occasion, but never provided more detail.” The District Court asked Hall to explain the inconsistency between his 2011 testimony and his 2010 statement regarding the details provided by Sissy. Hall offered that he had been off his “meds” for two days in anticipation of providing his testimony. He explained that his medications kept his ammonia levels down, and that high levels of ammonia put him in a “foggy, hazy state” and caused him to have “poor memory.” ¶66 Michael John McIntire lived next door to Sissy Atkinson in Great Falls from 2004 through 2005. McIntire said that Sissy’s apartment was abuzz with suspicious activity “24/7.” After a man showed up threatening to shoot Sissy, McIntire confronted her and told her that he did not appreciate her activities putting his family in danger. McIntire said that Sissy looked him “straight in the face” and told him that he did not know who he was messing with, that she had killed some girl up on the reservation, and that she would kill him too. After McIntire saw an article in the Great Falls Tribune about Beach, he contacted the Tribune, who put him in contact with Centurion Ministries. 44 ¶67 Former Sheriff Mahlum is now retired and lives in Wolf Point. Mahlum testified in the 1984 trial and at the 2011 postconviction hearing. Mahlum testified that Beach’s confession contained details only Nees’s killer would know. Nees’s wounds were confined primarily to “the skull, the head region and also to the hands, backs of the hands[,]” and this information had not been divulged to the public. Nees’s wounds matched Beach’s version of the murder as stated in his confession. Further, Mahlum testified that it had not been divulged to the public that Nees had been attacked with at least two different weapons, and Beach had confessed to hitting Nees with a tire iron and a crescent wrench. Mahlum opined from his experience that concentrated injuries such as Nees’s indicated “one perpetrator as opposed to a large group of people.”13 13 The court initially granted Beach’s objection to this testimony “but only for purposes of setting a bit more foundation because we went from a few facts to conclusion and not enough sort of laying foundation about why that conclusion was reasonable.” Thereafter, Mahlum laid the necessary foundation from his experience. 45 D. Analysis of the Old and New Evidence. ¶68 Before overturning Beach’s conviction, the District Court was to determine the reliability of Beach’s new evidence. Schlup, 513 U.S. at 324, 115 S. Ct. at 865. In doing so, the court was to scrutinize the testimony for internal inconsistencies and inconsistencies with the “pre-existing record.” Menefee, 391 F.3d at 172; Pope, ¶ 62; Redcrow, ¶ 37. Finally, if the court found Beach’s new evidence reliable, the court was to combine that reliable evidence with the trial evidence and determine if a reasonable jury would find Beach guilty given the hybrid record. The District Court’s conclusion that each of Beach’s new witnesses provided “credible” evidence of his actual innocence is undermined by the court’s failure to probe their testimony for internal inconsistencies with their previous statements and to determine whether “the testimony [could] be sustained in light of the record as a whole.” Menefee, 391 F.3d at 165. Indeed, Menefee characterized the similar approach employed by the trial court in that case as “deeply flawed.” Menefee, 391 F.3d at 165. ¶69 The most troubling of the District Court’s findings was that Stephanie Eagle Boy’s testimony alone had “surmounted” the clear and convincing evidence standard necessary to establish actual innocence. This finding illustrates the District Court’s improper analysis because nothing Eagle Boy said proves anything about Nees’s murder. While the District Court gratuitously attributed Eagle Boy’s memories to the night Nees was murdered, she twice testified that she could not correlate the screams she heard to the specific night in question. She could only state it occurred sometime during the summer 46 of 1979. Eagle Boy’s inability to correlate her memory to the relevant night significantly undermined the value of her testimony, as the Train Bridge area was frequently used for parties and as a hangout. Further, Eagle Boy testified that whatever night she had heard the screams, Joel Sparvier was outside with her and heard the same thing. However, unbeknownst to Eagle Boy, Sparvier had testified at Beach’s 1984 trial. Unlike Eagle Boy, Sparvier remembered the specific night Nees was murdered, and stated that the only thing he heard on that night was barking dogs. It is unreasonable to conclude that a reasonable juror would likely credit Eagle Boy’s vague testimony over Sparvier’s specific memory of the night in question. This is particularly true given the timing of the submission of the conflicting accounts. While Sparvier testified five years after Nees’s murder, Eagle Boy gave her account 32 years later. Eagle Boy supposedly watched and heard the girls attack another girl, and could even hear “whispers” from her position. However, the things she saw and heard were inconsistent with the murder scene. After hearing “horrific screaming” for 10 to 20 minutes and further yelling, Eagle Boy saw one of the pickups move near tall grass, followed by “digging” and “clinking” sounds. Then, she said the two pickups and a police car left the scene. However, to the contrary, Nees’s truck did not leave; it was found at the scene. Although stating she could hear whispering, Eagle Boy did not recount hearing the sounds of a body being dragged 250 feet to the edge of the bank or splashing into the water after being thrown into the river. While the District Court may have found Eagle Boy’s testimony to be compelling, when 47 viewed in comparison to the known crime scene evidence introduced at trial, and the limitations upon her recollection, it is not a reliable account of Nees’s murder. ¶70 Unlike memories that normally fade over time, the memories of Beach’s new witnesses have miraculously sharpened in detail over the years. In 2002, Richard Holen did not know the gender of the five occupants he saw in Nees’s vehicle. In 2007, he told Dateline and the Clemency Panel that he remembered they were all females. In 2011, a startling new detail emerged—he now remembers that there were four females and one male in the pickup, and the male was sitting in passenger seat next to the door. It is unreasonable to conclude that a reasonable juror would substantially credit Holen’s frequently changing testimony. ¶71 The same is true about Kevin Hall’s testimony that Sissy Atkinson would get high on pain killers with him and recount beating a girl. In 2010, Hall stated that Sissy told him that she and a group of girls beat up a girl. She repeated this story to him somewhere between five and twenty times without providing “more detail.” However, in 2011, Hall’s story changed and he testified that Sissy instead provided more details with each subsequent telling of the story. This culminated in a final telling in which Sissy said they had “lured” the victim to the river, beat her with a “tire tool,” and rolled her into the river. When questioned by the District Court about this substantial change in memory, Hall had no explanation other than he had gone off his “meds” in anticipation of his testimony. Further, the version of “rolling” the “unconscious” victim into the river conflicts with the physical evidence. The victim was not “rolled,” but dragged, and the victim was already 48 dead when she was thrown into the river. Hall’s testimony does not reliably counter the trial evidence, and it is unreasonable to conclude that a reasonable juror would likely credit the testimony. ¶72 Carl Four Star came forward for the first time over 15 years after hearing Sissy Atkinson’s comments. His original version did not make mention of Sissy making “kicking motions.” He originally said he could hear a pin drop in A&S Industries so he could overhear Sissy’s statement from 20 to 25 feet away. At the hearing, he testified that a radio was playing loud enough for people to hear it but not so loud that “it muted everything out.” ¶73 Calvin Lester recanted his story of seeing girls kicking a girl victim on the ground at the Train Bridge and seeing Maude Grayhawk among the attackers, but before he did so, Investigator Kemp contacted Maude, who agreed to meet Kemp at the Poplar Police Department. During his interview, Kemp pressed Maude to the point of tears, telling her there was an eyewitness who saw her kicking the victim at the scene. Nonetheless, Maude did not change her story that she was not involved in the crime. ¶74 Billie Smith and Susan Mohler recall a conversation with JoAnn Todd on a cigarette break about a killing, but Mohler recalls Todd stating that she (Todd) was not involved with the killing. ¶75 Finally, as former Sheriff Mahlum highlighted, and as mentioned above, Beach’s new theory is inconsistent with the objective evidence of Nees’s injuries and the crime scene. Beach offered witnesses who heard statements that a group of girls attacked and 49 kicked Nees. These witnesses include Judy Grayhawk, Carl Four Star, Susan Mohler, Billie Smith, and Michael John McIntire. The story arising from these statements offers no consistent theme about a weapon; rather, the primary attack was by beating and kicking. However, the jury heard Dr. Pfaff’s forensic testimony supported by numerous photographs showing that all of Nees’s major injuries were to her head, neck, and hands. There were no significant injuries to Nees’s legs or torso. This evidence pointed to a single attacker—consistent with Beach’s confession and inconsistent with the new theory. Nees’s injuries were caused by two weapons, consistent with the crescent wrench and tire iron that Beach identified—again consistent with his confession and inconsistent with the new testimony. Signs of a scuffle inside of Nees’s pickup—gouge marks on the ceiling and on the steering wheel with hair attached, heavy blood spatters on the driver’s side of the rear window, hair and blood on the seat and steering wheel, beer or urine on the driver’s seat—were consistent with Beach’s account of commencing the attack upon Nees with a wrench while she was sitting in the driver’s seat, and have no known connection with the new theory. Blood was pooled near the passenger side rear tire, and less blood was found along a drag trail leading away from the truck—consistent with Beach’s explanation of his final assault upon Nees and her lifeless body lying at that location until he put the body in a plastic bag and dragged it to the river bank. This evidence has no known connection to the new theory. Deputy Wilson testified at trial that Beach’s mother said Beach had returned home in the early morning hours “covered with blood.” Beach’s confession indicated that he was covered with blood after the 50 assault. Even small details, such as the keys missing from Nees’s truck, are consistent with Beach’s confession that he threw the keys in the river, and have no known connection to the new theory. In view of the contradictions between the new testimony and the objective evidence tested at trial, we must conclude that the new testimony does not provide a reliable account of Nees’s death that displaces the trial evidence upon which Beach was convicted. ¶76 The District Court found Beach’s new “testamentary evidence as uniquely objective” as DNA evidence in other cases that proved actual innocence. Based upon our assessment of the evidence, we cannot agree. The Supreme Court has described the kind of evidence necessary to establish actual innocence and overturn a conviction as “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S. Ct. at 865. Beach’s new evidence—the statements offered by the witnesses in the postconviction hearing—did not provide this kind of reliable evidence. ¶77 As he did in the 1984 trial, Beach offers a conspiracy theory involving the four Louisiana police officers (Sergeant Via, Commander Calhoun, Deputy Medaries, and Lieutenant Cummings) who testified that Beach confessed multiple times to killing Nees. Several of these statements by Beach were made with his Louisiana lawyer present. All of the Louisiana officers denied that any trickery or threats were used against Beach. While Beach offers allegations to the contrary, there is no evidence that the officers used improper tactics. Sheriff Mahlum denied giving the Louisiana police officers details of 51 the murder scene. Yet, Beach provided a confession eerily consistent with the details of the crime scene and with Nees’s wounds, including details that were not divulged to the public. Beach’s conspiracy theory is nothing new; it was aggressively pursued by Moses during Beach’s 1984 trial. The jury rejected it then, and we do not believe the jury was unreasonable in doing so. ¶78 Beach’s new evidence—in the form of testimony that is primarily hearsay, internally inconsistent, and inconsistent with evidence presented at Beach’s 1984 trial— does not reliably displace the evidence tested at Beach’s trial, including his confession. Having concluded that Beach failed to satisfy the first step of providing reliable evidence, we need not proceed to the second step of the analysis. See Menefee, 391 F.3d at 163 (Because the defendant had not presented any new reliable evidence, it was unnecessary to consider the matter further). However, even if Beach’s new evidence was deemed to be reliable, we conclude that his new evidence is not sufficient to demonstrate that “a reasonable jury would not likely convict him in light of the new evidence.” Pope, ¶ 49; accord Beach I, ¶ 45. Instead, after reviewing the entirety of the combined, hybrid evidentiary record of the case, we conclude a jury would still be likely to convict Beach of the crime. Beach’s failure to present the requisite reliable evidence is fatal to both his Herrera and Schlup actual innocence claims. He has thus failed to satisfy the modified fifth element of the Clark test. Beach I, ¶¶ 42-43. 52 IV. CONCLUSION ¶79 The District Court made the mistake, deliberately, of listening to the new evidence, and failing to closely consider the old evidence. Thus, no matter how compelling the District Court found the new evidence to be, it committed error as a matter of law by refusing to consider that evidence together with the evidence presented during the 1984 trial to determine whether its impression of the testimony could be sustained in light of the record as a whole. After a review of all the evidence, we conclude that Beach did not provide reliable evidence of his actual innocence that displaced the trial evidence and thus his conviction. Our conclusion is consistent with the determination made by the unanimous three-member Clemency Panel, which performed an exhaustive inquiry into the case, that Beach’s allegations are initially troubling on their face, but lack substance when closely scrutinized. Their comments provide a fitting summary of this matter: All three of us began our study by reading the complete files submitted by Centurion Ministries. All three of us, initially taking the contents at face value, were alarmed that Montana may have an innocent man imprisoned wrongly for all these years. It was from that posture and perspective that we proceeded to undertake our efforts in this matter. However, upon what then followed, an exhaustive inquiry and study, before, during, and after the hearing, the facts simply did not unfurl as they were alleged and characterized in the Centurion Ministries claims. The multiple eye witnesses, the allegations of physical evidence of “the real killer” being ignored by law enforcement—either crooked or inept—did not materialize. We have great sympathy for those who read only the Centurion Ministries allegations and become alarmed, because that was our experience; but those allegations were not demonstrated as true even with the very wide latitude afforded Centurion Ministries—the facts simply have not been demonstrated to be as representatives for Mr. Beach have alleged. 53 Mr. Beach’s culpability has been contested vigorously and eloquently, but we have found that contest to be lacking in substance. ¶80 Applying the proper standard of review to the new evidence offered by Beach, we determine he has failed to sustain his burden of demonstrating either a freestanding claim or a gateway claim of “actual innocence.” The District Court’s order is reversed. Beach’s petition for postconviction relief is denied and dismissed. /S/ JIM RICE We concur: /S/ BETH BAKER /S/ LAURIE McKINNON /S/ RICHARD A. SIMONTON District Court Judge Richard A. Simonton sitting in place of Chief Justice Mike McGrath Justice Laurie McKinnon, concurring. ¶81 I believe the Court’s Opinion correctly resolves Beach’s present appeal under the test we articulated in Beach’s prior appeal, Beach v. State, 2009 MT 398, 353 Mont. 411, 220 P.3d 667 (Beach I), and I have thus signed the Opinion. However, in my view, our decision in Beach I confused the law governing postconviction “innocence” claims, and for this reason I would limit Beach I’s application to the present case. In future cases, I 54 would instead apply the legal standards and analysis set forth below. As a starting point for this discussion, I review relevant points from Beach’s trial. I. Beach’s Trial ¶82 “[I]n state criminal proceedings the trial is the paramount event for determining the guilt or innocence of the defendant.” Herrera v. Collins, 506 U.S. 390, 416, 113 S. Ct. 853, 869 (1993). For Beach, that “paramount event” took place over a five-day period in 1984, commencing April 9 and concluding April 13. ¶83 One of the central issues at trial concerned the validity and truthfulness of Beach’s confession to the crime. This was because, as prosecutor Marc Racicot conceded to the jury in closing argument, there was no reliable physical evidence retrieved from the crime scene pointing specifically to Beach as the perpetrator of Kim Nees’s death. Moreover, as Racicot also conceded, the investigation had been mismanaged and certain evidence had been contaminated, thus rendering it unusable, due to improper police procedures. For instance, footprints at the crime scene were inconclusive because investigators from five different agencies had walked over the area in the course of collecting evidence, and no record had been kept of the type of shoe each officer was wearing or whether any of them had been barefoot (from wading into the river). A towel containing blood that did not match Nees or Beach had been placed in custody with other evidence, yet it was not known when and where the towel was found. Investigators had found a bloody palm print on the exterior passenger side of the pickup, but they were unable to determine who had left it. Hair evidence also had been mishandled. 55 ¶84 Defense counsel, Charles F. “Timer” Moses, emphasized in his closing argument the lack of physical evidence tying Beach to the crime. He focused on law enforcement’s careless investigative procedures and mishandling of evidence, and also criticized the prosecution’s failure to produce certain evidence at trial. For example, he noted that the prosecution had failed to introduce photographs of the bloody palm print, failed to call an expert to discuss blood typing, failed to provide information about other fingerprints (not belonging to Beach) found at the scene, failed to produce photographs of the blood inside the pickup, failed to explain whether hair samples taken from Beach matched hair found at the scene, failed to produce photographs of the footprints, failed to introduce any testimony that the drag line was consistent with a garbage bag, and failed to explain the significance of the bloody towel. In short, Moses portrayed the State’s case as full of holes, riddled with unexplained questions, and devoid of critical evidence. ¶85 Given the undisputed shortcomings with the physical evidence, the prosecution relied heavily on Beach’s confession. Indeed, Racicot told the jurors that the confession was “the focal point of this whole inquiry.” He argued that their decision in the case boiled down to two questions: “Was [the confession] voluntarily made? And is it true?” In this regard, Racicot stated that the jury had to assess the credibility of the four officers (Sergeant Via, Commander Calhoun, Lieutenant Cumming, and Deputy Medaries) who had contact with Beach when he was in custody in Louisiana and who had testified at Beach’s trial about his incriminating statements. Racicot acknowledged to the jurors that if they did not believe the officers’ testimony—if they found that the officers had testified 56 untruthfully about the circumstances surrounding Beach’s confession—then the jurors should find Beach not guilty. But if they believed the officers and found that Beach’s confession was voluntary and truthful, then the jurors should find Beach guilty. ¶86 Racicot and Moses addressed these questions with the jury in detail. Of particular note, Racicot argued that the confession was true because it included facts that had not been revealed to the public and that even law enforcement officers had not known at the time. Moreover, the confession included intimate and minute details about how the murder occurred, and most of those details were corroborated by independent evidence. For example, the location of blood inside and outside the pickup and the location and nature of the wounds on Nees’s body were consistent with Beach’s description of repeatedly hitting her with a 12-inch crescent wrench inside the pickup and then a tire iron outside the pickup. There were gouge marks in the ceiling of the pickup and on the steering wheel, which Beach presumably created when, as stated in his confession, he repeatedly struck Nees with the crescent wrench inside the pickup. Nees’s father testified that when the police returned his property from the pickup, a 12-inch “chrome” crescent wrench was missing from his tool collection, which was consistent with Beach’s statement that he had used a 12-inch “chrome” crescent wrench to beat Nees and had then tossed the crescent wrench (and the tire iron) into the Poplar River. Doctor Pfaff’s testimony about a postmortem injury on Nees’s back corroborated Beach’s description of dragging Nees over to the river after killing her. The presence of blood by the pickup and by the river bank—together with the lack of blood along the drag trail between those two 57 points—was consistent with Beach’s explanation that he had placed Nees’s body in a garbage bag in order to drag her to the river. The condition in which the pickup had been found—in park, radio on, CB off, and heater on—was consistent with Beach’s statement that he and Nees had been sitting in the pickup in a stationary position. Beach stated that he had removed Nees’s purse from the pickup and laid it outside the pickup, which is where investigators found it. Beach stated that he had wiped his fingerprints off the vehicle, which was consistent with the fact that none of his fingerprints were found. Beach stated that he had thrown the pickup keys into the river, which was consistent with the fact that law enforcement never found the keys. Racicot argued that all of these consistencies corroborated and demonstrated the truthfulness of Beach’s confession. ¶87 Moses, on the other hand, pointed to the absence of corroboration between certain details. For example, Beach had stated that he threw Nees’s jacket down by her body, yet no jacket was found there when investigators arrived several hours later. The garbage bag Beach had referred to in his confession was never found either. Moses also discussed the fact that, prior to Beach’s interrogation, the Louisiana officers were in contact with the Roosevelt County Sheriff’s Office and received information about the circumstances of Nees’s murder. Indeed, Sergeant Via admitted at trial that he had obtained background information from Montana authorities before he questioned Beach “[s]o that . . . we would know what he was talking about” during the interview and “so that [we] could ask Mr. Beach the appropriate questions.” Moses suggested, however, that Beach was mentally unstable at the time of the interview and could not have given appropriate and 58 voluntary responses to the officers’ questioning. Moses implied that, during the five or six hours preceding Beach’s recorded statement, the officers confronted Beach with the facts and details supplied by the Roosevelt County Sheriff’s Office and intimidated Beach into giving a confession which incorporated those facts and details. ¶88 The jury rejected the notion of a conspiracy among Montana and Louisiana law enforcement officials to secure a false confession from Beach. The jury implicitly credited the Louisiana officers’ testimony and found that Beach’s confession was both voluntary and truthful. The jury returned a verdict of guilty on the charge of deliberate homicide, finding beyond a reasonable doubt that Beach had bludgeoned Nees to death with a crescent wrench and a tire iron on June 16, 1979. II. Beach’s Direct Appeal and First State Postconviction Petition ¶89 Beach filed a direct appeal to this Court in October 1984, raising five issues: (1) the district court lacked jurisdiction to try him for deliberate homicide; (2) the district court, after granting his first motion to change venue, erred in denying his second motion to change venue; (3) the district court erred in denying his motion to suppress his confession, since the confession was tainted by constitutional violations and procedural irregularities; (4) the district court erred in not giving the jury a particular instruction regarding mental state; and (5) the district court abused its discretion by imposing the maximum possible sentence. Beach did not argue on appeal that the evidence adduced at trial was insufficient to support his conviction of deliberate homicide. This Court 59 affirmed Beach’s conviction, concluding that none of the issues he had raised on appeal entitled him to relief. State v. Beach, 217 Mont. 132, 705 P.2d 94 (1985). ¶90 Beach filed his first petition for state postconviction relief in October 1995—more than six years past the statutory deadline for filing such petitions—raising the same claims he had raised on direct appeal concerning his confession, plus a claim that his trial counsel had been ineffective. He also asserted that his confession was false. This Court determined that Beach’s claims were barred, however, because they had already been decided against him on direct appeal or because he could have raised them (but did not) on direct appeal or in a timely postconviction petition. We further held that Beach had not presented any “new evidence” that would justify an equitable exception to the statute of limitations. Accordingly, we dismissed his first petition in February 1996. Beach v. Day, 275 Mont. 370, 913 P.2d 622 (1996). III. Beach’s Second State Postconviction Petition ¶91 Beach is now in his second round of postconviction proceedings in state court. He filed his second petition for state postconviction relief on January 18, 2008. This time, he pursued two separate and distinct avenues of relief, which are critical to an understanding of the legal issues presented in this case. A. Statutory Exception under § 46-21-102(2), MCA ¶92 In his first avenue of relief, Beach sought to take advantage of a change in the law. Prior to 1997, a petition for postconviction relief could be filed within five years of the date of the conviction. Section 46-21-102, MCA (1995). Under this provision, Beach 60 had until May 1989 to file a timely postconviction petition. In 1997, the Legislature shortened the filing period to one year from the date that the conviction becomes final. Section 46-21-102(1), MCA (1997). In addition, however, the Legislature enacted a new statutory exception to the deadline, allowing a claim of factual innocence to be brought in a petition filed within one year of discovering the evidence upon which such claim is predicated. Section 46-21-102(2), MCA (1997). Beach invoked § 46-21-102(2), MCA, as authority for bringing a claim of innocence. ¶93 In Crosby v. State, 2006 MT 155, 332 Mont. 460, 139 P.3d 832, we adopted a method of analysis for claims brought under § 46-21-102(2), MCA. We first reviewed the “newly discovered evidence” test set forth in State v. Clark, 2005 MT 330, 330 Mont. 8, 125 P.3d 1099. Crosby, ¶¶ 18-19. That test was conceived to address a timely motion for a new trial filed by the defendant under § 46-16-702, MCA, within 30 days following a guilty verdict. See Clark, ¶ 27 n. 3. A motion for a new trial under this statute may be granted “in the interest of justice.” Section 46-16-702(1), MCA. To prevail on such a motion grounded on newly discovered evidence, we held that the defendant must show: (1) The evidence must have been discovered since the defendant’s trial; (2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant’s part; (3) the evidence must be material to the issues at trial; (4) the evidence must be neither cumulative nor merely impeaching; and (5) the evidence must indicate that a new trial has a reasonable probability of resulting in a different outcome. 61 Clark, ¶ 34. We deemed it appropriate in Crosby to apply this five-factor test to a timely postconviction petition filed under § 46-21-102(2), MCA. Crosby, ¶¶ 15, 20. ¶94 In light of Crosby, Beach based his first avenue of relief on the Clark test. Also, because § 46-21-102(2), MCA, requires a claim of innocence based on newly discovered evidence to be filed within a year of discovering the evidence, Beach limited his analysis under Clark to the evidence he had discovered on and after January 19, 2007. He argued that this evidence established that persons other than Beach caused Nees’s death. He requested that his conviction and sentence be vacated and that he be granted a new trial. Beach did not allege any constitutional claims in conjunction with this avenue of relief; he simply argued that his evidentiary showing satisfied Clark and warranted a new trial. B. Fundamental Miscarriage of Justice Exception under Schlup ¶95 Beach’s second avenue of relief, in contrast, did involve constitutional claims. His analysis here was based on the “fundamental miscarriage of justice” exception articulated by the Supreme Court in Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995), and adopted by this Court in State v. Redcrow, 1999 MT 95, 294 Mont. 252, 980 P.2d 622, and State v. Pope, 2003 MT 330, 318 Mont. 383, 80 P.3d 1232. This exception is a judicially recognized doctrine that applies to situations where a convicted person seeks review of constitutional claims arising out of his original trial, but the claims are barred for procedural reasons, such as the statute of limitations or a rule prohibiting successive petitions. Schlup, 513 U.S. at 313-22, 115 S. Ct. at 860-64; Sawyer v. Whitley, 505 U.S. 333, 339, 112 S. Ct. 2514, 2518-19 (1992); Redcrow, ¶¶ 31-34; Pope, ¶¶ 51-55; see also 62 §§ 46-21-102(1), -105(1)(b), MCA. If the claims are barred, and if the court is persuaded that refusing to entertain them could result in a fundamental miscarriage of justice, then the court may excuse the procedural bar and review the claims on the merits. ¶96 The Supreme Court and this Court have tied “miscarriage of justice” in the present context to the postconviction petitioner’s innocence. Schlup, 513 U.S. at 321, 115 S. Ct. at 864; Redcrow, ¶¶ 33-34; Pope, ¶ 55. This was done “[t]o ensure that the fundamental miscarriage of justice exception would remain ‘rare’ and would only be applied in the ‘extraordinary case,’ while at the same time ensuring that the exception would extend relief to those who were truly deserving.” Schlup, 513 U.S. at 321, 115 S. Ct. at 864. As a result, “even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a [postconviction] court to reach the merits of a barred claim.” Schlup, 513 U.S. at 316, 115 S. Ct. at 861. In addition to alleging a constitutional violation, the petitioner also must present “new evidence of innocence.” Schlup, 513 U.S. at 316, 115 S. Ct. at 861. Restated, he must “supplement[ ] his constitutional claim with a colorable showing of factual innocence.” Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S. Ct. 2616, 2627 (1986) (plurality). A sufficient showing of factual innocence, coupled with an alleged constitutional error in the original trial, warrants application of the miscarriage of justice exception. In essence, the exception functions as “a safety valve for the extraordinary case,” Schlup, 513 U.S. at 333, 115 S. Ct. at 870 (O’Connor, J., concurring) (internal quotation marks omitted), where the court is persuaded that “a constitutional violation has probably resulted in the 63 conviction of one who is actually innocent,” Schlup, 513 U.S. at 321, 115 S. Ct. at 864 (internal quotation marks omitted). In such a case, the societal interests in finality and conserving judicial resources must yield to the imperative of correcting a fundamentally unjust incarceration. Schlup, 513 U.S. at 320-21, 324, 115 S. Ct. at 864, 865. ¶97 Conversely, it is important to be clear that the petitioner’s claim of innocence in this situation “does not by itself provide a basis for relief. Instead, his claim for relief depends critically on the validity of his [underlying constitutional] claims.” Schlup, 513 U.S. at 315, 115 S. Ct. at 861. An adequate showing of innocence merely entitles the petitioner to receive review of those underlying claims. In this respect, demonstrating innocence is the “gateway” through which the petitioner must pass in order to have his otherwise barred constitutional claims considered on the merits. Schlup, 513 U.S. at 315, 115 S. Ct. at 861. If the petitioner “presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims.” Schlup, 513 U.S. at 316, 115 S. Ct. at 861. ¶98 Based on Schlup, Beach alleged three constitutional errors in his original trial: (1) the State failed to disclose evidence; (2) the prosecutor misstated facts and referred to nonexistent evidence, thus denying Beach a fair trial; and (3) defense counsel rendered ineffective assistance. He argued that his new evidence of innocence was strong enough to get him through the gateway and have these barred claims reviewed on the merits. In 64 this regard, a court assessing a claim of actual innocence under the miscarriage of justice exception must consider “all” the evidence—old and new. Schlup, 513 U.S. at 327-28, 115 S. Ct. at 867; House v. Bell, 547 U.S. 518, 538, 126 S. Ct. 2064, 2077 (2006). For this reason, Beach did not limit his analysis, as he had in his first avenue of relief, to the evidence discovered within the preceding twelve months. Rather, he also included evidence he had discovered prior to January 19, 2007. Beach maintained that, in light of all this evidence, no reasonable juror would have found him guilty of Nees’s murder. ¶99 It is important to note here that Beach did not raise a freestanding constitutional claim of innocence under Herrera, 506 U.S. 390, 113 S. Ct. 853. A claim of innocence under Schlup—which is what Beach raised—“is procedural, rather than substantive.” Schlup, 513 U.S. at 314, 115 S. Ct. at 860. An adequate showing of innocence under Schlup “does not by itself provide a basis for relief”; instead, the petitioner’s relief depends critically on the validity of his underlying constitutional claims. Schlup, 513 U.S. at 315, 115 S. Ct. at 861. For Beach, the State’s withholding of evidence, the prosecutorial misconduct at trial, and the ineffectiveness of defense counsel are the substantive claims; his showing of innocence is simply the procedural prerequisite for obtaining review of those otherwise barred claims. ¶100 In contrast, a substantive or “freestanding” claim of innocence provides a basis for relief by itself. A substantive innocence claim does not allege constitutional violations at trial; to the contrary, it presumes that the underlying proceedings were “entirely fair and error free.” Schlup, 513 U.S. at 314, 115 S. Ct. at 860. The theory behind a substantive 65 claim is that, although the trial proceedings were fair and error free, newly discovered evidence shows that the petitioner’s conviction is factually incorrect, and his execution or continued imprisonment would thus violate the Constitution. House, 547 U.S. at 554, 126 S. Ct. at 2086; Schlup, 513 U.S. at 313-17, 115 S. Ct. at 860-62; Herrera, 506 U.S. at 404, 417, 113 S. Ct. at 862, 869. Here, as noted, Beach did not claim that his trial was fair and error free. To the contrary, he asserted in his brief that “the new evidence discovered in this case, combined with correcting errors which occurred in the original trial, would result in Mr. Beach’s acquittal” under Schlup. C. The State’s Response and the District Court’s Order ¶101 The State moved to dismiss Beach’s petition. As to his first avenue of relief, the State contended that Beach could not rely on § 46-21-102(2), MCA, to present his newly discovered evidence because the 1997 Legislature limited the applicability of this provision to convictions that became final after April 24, 1996. See Laws of Montana, 1997, ch. 378, §§ 9(1), 10. Since Beach’s conviction became final in 1985,1 the State argued that he remained subject to the pre-1997 five-year limitations period, making his January 2008 petition time barred. See Morrison v. Mahoney, 2002 MT 21, ¶ 11, 308 Mont. 196, 41 P.3d 320. As to Beach’s second avenue of relief under Schlup, the State argued that his new evidence “is not reliable nor is it compelling of either Beach’s innocence or someone else’s guilt.” 1 Under the statutory definition, Beach’s conviction became final once this Court issued its decision in his direct appeal and the time for petitioning the United States Supreme Court for review expired. Section 46-21-102(1), MCA (1997). 66 ¶102 The District Court dismissed Beach’s petition in March 2008. In its one-page order, the court noted that the petition was procedurally and time barred, and that Beach’s proffered evidence “does not warrant a finding of actual innocence in support of the fundamental miscarriage of justice exemption [sic] to the time requirements.” IV. Beach I ¶103 Beach appealed to this Court, which issued its decision in November 2009. We agreed with the State that Beach could not proceed under § 46-21-102(2), MCA, because his conviction became final before the statute’s effective date. Beach I, ¶¶ 21-22. This conclusion disposed of Beach’s first avenue of relief. ¶104 Since Beach was subject to pre-1997 law, which provided a five-year statute of limitations with no statutory exception for newly discovered evidence, and since Beach’s January 2008 petition was thus untimely, we held that he could escape the time bar and obtain review of his claims “only if he can satisfy the fundamental miscarriage of justice exception.” Beach I, ¶ 24. This was the second avenue of relief Beach had argued in support of his petition. Although the District Court concluded that Beach did not satisfy the miscarriage of justice exception, we observed that the court “failed to discuss . . . the legal standard that it had applied.” Beach I, ¶ 25. We thus deemed it necessary to remand the case to the District Court with instructions to conduct an evidentiary hearing and to evaluate Beach’s evidence under “the correct legal standard.” Beach I, ¶ 51. The problem, in my view, and thus my concern about Beach I’s precedential value, is that our opinion did not set forth the correct legal standard. 67 ¶105 This Court previously adopted the “gateway innocence” framework from Schlup as the standard for determining whether a fundamental miscarriage of justice exists. Redcrow, ¶¶ 33-34, 37; Pope, ¶¶ 55-59, 67-69. To pass through the gateway and argue the merits of his underlying constitutional claims, Beach had to show that, in light of new reliable evidence, it is more likely than not that no reasonable juror would have voted to find him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 324, 327, 329, 115 S. Ct. at 865, 867, 868. The District Court, in turn, had to consider all the evidence—Beach’s new evidence, as well as the evidence adduced at his 1984 trial—and make a probabilistic determination about what reasonable, properly instructed jurors would do based on the overall record. House, 547 U.S. at 537-38, 126 S. Ct. at 2077. ¶106 We did not direct the District Court to apply this well-considered approach, however. Rather, we fashioned a new test composed of elements from Clark, Schlup, and Sawyer and directed the District Court to apply it instead. Beach I, ¶¶ 37-48, 51. Under law-of-the-case principles, the District Court and this Court are constrained to apply the Beach I test to Beach’s petition;2 and, as noted at the outset, I believe the Court has resolved Beach’s present appeal under that test correctly. Nevertheless, Beach I’s new test lacks precedential support, and I fear that in devising it we have confused the law. 2 “When this Court, in deciding a case presented, states 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.” Winslow v. Mont. Rail Link, Inc., 2005 MT 217, ¶ 30, 328 Mont. 260, 121 P.3d 506. “This doctrine expresses the practice of courts generally to refuse to reopen what has been decided.” State v. Wagner, 2013 MT 47, ¶ 18, 369 Mont. 139, 296 P.3d 1142 (internal quotation marks omitted). 68 For purposes of clarification, therefore, I shall explain three specific areas where I believe the Beach I analysis is incorrect or problematic, and set forth what in my view are the correct legal principles that should apply in future cases. A. Reliance on Clark ¶107 First, the Beach I test is based primarily on Clark. See Beach I, ¶¶ 37-38, 47-48. However, Clark did not involve the question whether the fundamental miscarriage of justice exception should be applied to a procedural bar. The five-factor Clark test was conceived to address a timely motion for a new trial under § 46-16-702, MCA. See Clark, ¶ 27 n. 3. The Clark test contemplates a defendant who files a motion for a new trial, based on newly discovered evidence, within 30 days following a guilty verdict. See Clark, ¶ 34; § 46-16-702(2), MCA; see also Br. of Respt. at 3, State v. Clark, http://searchcourts.mt.gov/index.html (Mont. Aug. 4, 2004) (No. 04-282) (reciting that Clark filed his motion for a new trial 30 days after the jury’s verdict). ¶108 A Clark defendant, therefore, is situated quite differently than a Schlup petitioner. A Clark defendant has only recently been convicted, and new evidence has been discovered since his trial. The new evidence is itself the basis for relief. If the evidence indicates that a new trial would have “a reasonable probability of resulting in a different outcome” (and if the other factors of the Clark test, such as diligence, are met), then the Clark defendant is entitled to a new trial. Clark, ¶ 34. ¶109 A Schlup petitioner, on the other hand, is years—perhaps decades—beyond the date of his conviction. His time for filing a motion for a new trial under § 46-16-702, 69 MCA, has long passed, as has his time for pursuing a direct appeal. He is even barred from challenging his conviction through postconviction proceedings—unless he shows a fundamental miscarriage of justice. Unlike a Clark defendant’s new evidence, which is itself the basis for relief, a Schlup petitioner’s new evidence “does not by itself provide a basis for relief”; rather, his claim for relief is premised on constitutional errors in his original trial. Schlup, 513 U.S. at 315, 115 S. Ct. at 861. A Schlup petitioner offers new evidence in order to escape the procedural bar, i.e., “to pass through the gateway and argue the merits of his underlying claims.” Schlup, 513 U.S. at 316, 115 S. Ct. at 861. He must show “that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup, 513 U.S. at 327, 115 S. Ct. at 867. Only if the Schlup petitioner makes a sufficient showing of innocence and prevails on the merits of his underlying constitutional claim(s) is he then entitled to relief. ¶110 Seen in this light, the Clark test is plainly inapposite to a Schlup petitioner, and I believe we were wrong to make Clark the basis of the miscarriage of justice test in Beach I. It is true (see Beach I, ¶ 40) that we deemed it appropriate to apply the Clark factors to a postconviction petition alleging newly discovered evidence in Crosby, ¶ 20, and in State v. Abe, 2001 MT 260, ¶¶ 8-13, 307 Mont. 233, 37 P.3d 77. But in these two cases, we were not concerned with the miscarriage of justice exception, since Crosby and Abe could file their petitions under § 46-21-102(2), MCA. Crosby, ¶ 15; Abe, ¶¶ 6-8. Thus, Crosby and Abe were not authority to apply the Clark test to someone, like Beach, who (1) is not entitled to rely on § 46-21-102(2), MCA, and (2) has presented his newly 70 discovered evidence not as a basis for relief, but as a basis for passing through the actual innocence gateway and arguing the merits of his trial-based constitutional claims. B. Substantive versus Procedural Innocence Claims ¶111 My second point relates to our discussion of substantive versus procedural claims. We stated that the miscarriage of justice exception “concerns actual, or substantive innocence, rather than legal, or procedural innocence.” Beach I, ¶ 31. We also stated that “the ‘actual innocence’ inquiry may involve the interplay of substantive and procedural innocence claims.” Beach I, ¶ 43 (emphasis in original). In this connection, we indicated that once a petitioner shows actual innocence sufficient to pass through the procedural gateway, he may then (1) pursue relief for alleged constitutional errors in his original trial or (2) demonstrate his substantive innocence.3 Beach I, ¶¶ 32-36, 43-45. Regrettably, this conception of substantive and procedural claims missed the mark and is prone to generate confusion. ¶112 It is true that the miscarriage of justice exception is concerned with “actual innocence,” as distinct from “legal innocence.” This distinction was mentioned in 3 This is explicit in our discussion of Beach’s claims (Beach I, ¶¶ 44-45) but more subtle in our discussion of Pope (Beach I, ¶¶ 33-36). After Pope successfully passed through the gateway, the State conceded his constitutional claims, and we thus remanded for a new trial. Pope, ¶¶ 67-68, 70. In Beach I, we reasoned that the State’s concession “obviated the need to evaluate whether Pope’s newly discovered evidence demonstrated his substantive actual innocence.” Beach I, ¶ 35. (Notably, Pope had “not made a substantive claim that the DNA evidence proves that he is truly innocent.” Pope, ¶ 55.) We then suggested that Beach and Pope are similar in that they both relied on new evidence to pass through the gateway, but that they are different in that, once through the gateway, Pope obtained relief for alleged trial-based constitutional violations whereas Beach seeks relief based on his substantive innocence. Beach I, ¶¶ 36, 44. 71 Sawyer, 505 U.S. at 339-40, 112 S. Ct. at 2518-19, and can be traced back to Smith v. Murray, 477 U.S. 527, 537-38, 106 S. Ct. 2661, 2668 (1986). Stated concisely, “ ‘actual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623-24, 118 S. Ct. 1604, 1611 (1998). “A prototypical example of ‘actual innocence’ in a colloquial sense is the case where the State has convicted the wrong person of the crime.” Sawyer, 505 U.S. at 340, 112 S. Ct. at 2519. “Legal innocence,” in contrast, refers to a legal error in the trial that by itself requires reversal. Gandarela v. Johnson, 286 F.3d 1080, 1085 (9th Cir. 2002); Johnson v. Hargett, 978 F.2d 855, 859-60 (5th Cir. 1992). The miscarriage of justice exception applies only to a petitioner who demonstrates actual, factual innocence, not mere legal innocence. Indeed, that is the exception’s purpose: to permit review of an otherwise barred claim where the court is convinced that a constitutional violation has probably resulted in the conviction of one who is actually innocent. Schlup, 513 U.S. at 321, 115 S. Ct. at 864. ¶113 But to say that the exception concerns “substantive innocence, rather than . . . procedural innocence,” Beach I, ¶ 31, is confusing, as is the notion of an “interplay” between substantive and procedural innocence claims, Beach I, ¶¶ 36, 43-45. A claim of innocence, for purposes of the miscarriage of justice exception, “is procedural, rather than substantive.” Schlup, 513 U.S. at 314, 115 S. Ct. at 860. It is the mechanism by which the petitioner (if his showing of innocence is sufficient) may obtain review of an otherwise barred allegation of constitutional error in his original trial. A petitioner who shows actual innocence under the procedural/gateway standard has, in effect, established 72 that the miscarriage of justice exception should apply to him and that his trial-based claim should be reviewed on its merits. ¶114 A substantive claim of innocence, on the other hand, is an independent avenue of relief apart from the miscarriage of justice exception. Herrera, 506 U.S. at 404-05, 113 S. Ct. at 862-63; Carriger v. Stewart, 132 F.3d 463, 477 (9th Cir. 1997) (en banc). The confusion arises because both claims—procedural and substantive—require a showing of “actual innocence” based on new evidence (with the substantive claim requiring “more convincing proof of innocence” than the procedural claim). House, 547 U.S. at 555, 126 S. Ct. at 2087; Carriger, 132 F.3d at 477. But the essential distinction is this: A sufficient showing of actual innocence under a substantive claim is a basis for relief by itself, whereas a sufficient (but lesser) showing of actual innocence under a procedural claim is a basis for escaping a procedural bar on an underlying constitutional claim. Schlup, 513 U.S. at 313-15, 115 S. Ct. at 860-61. A successful substantive claim results in exoneration, whereas a successful procedural claim leads to judicial review of a trial- based constitutional claim which, if meritorious, then results in the grant of a new trial. See Opinion, ¶¶ 13, 14, 16. C. Standard of Proof ¶115 My final point concerns the standard of proof. For substantive claims, we stated that “Beach must show by clear and convincing evidence that, but for a procedural error, no reasonable juror would have found him guilty of the offense.” Beach I, ¶ 44. For 73 procedural claims, we stated that Beach must satisfy a modified version of the Clark test. Beach I, ¶¶ 45-48. I believe both standards are incorrect. 1. Standard for Substantive Claims ¶116 The “clear and convincing” standard we articulated in Beach I for substantive innocence claims can be traced to Sawyer. In that opinion, the Supreme Court examined the miscarriage of justice exception as applied to a petitioner who claimed that he was “actually innocent of the death penalty.” Sawyer had filed a petition seeking review of constitutional claims relating to his sentence, but the claims were procedurally barred. Hence, the issue was what showing he had to make in order to satisfy the miscarriage of justice exception. The Supreme Court held that he “must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty.” Sawyer, 505 U.S. at 336, 112 S. Ct. at 2517. ¶117 The Supreme Court adopted this standard for a procedural innocence claim related to a petitioner’s death sentence, not a substantive innocence claim related to a petitioner’s conviction. See Sawyer, 505 U.S. at 347-50, 112 S. Ct. at 2523-25; Schlup, 513 U.S. at 324-26, 115 S. Ct. at 865-67. As to the latter, the Supreme Court has indicated that a substantive/freestanding claim—assuming such claims are cognizable4—would require “more convincing proof of innocence” than a procedural/gateway claim; indeed, “the threshold for any hypothetical freestanding innocence claim [would be] ‘extraordinarily 4 The Supreme Court has only assumed, for the sake of argument, that substantive claims of innocence are possible under the federal Constitution. House, 547 U.S. at 554-55, 126 S. Ct. at 2086-87; Herrera, 506 U.S. at 417, 113 S. Ct. at 869. 74 high.’ ” House, 547 U.S. at 555, 126 S. Ct. at 2087 (quoting Herrera, 506 U.S. at 417, 113 S. Ct. at 869). With a freestanding claim—where there is no question about the fairness of the original trial—the new evidence must “unquestionably establish [the petitioner’s] innocence.” Schlup, 513 U.S. at 316-17, 115 S. Ct. at 862. With a gateway claim, on the other hand, the new evidence need only “raise[ ] sufficient doubt about [the petitioner’s] guilt to undermine confidence in the result of the trial without the assurance that that trial was untainted by constitutional error.” Schlup, 513 U.S. at 316-17, 115 S. Ct. at 862. The showing for a gateway claim is lower because a petitioner claiming he falls within the miscarriage of justice exception asserts constitutional error at trial, [and thus] his conviction is not entitled to the same degree of respect as one concededly free of constitutional taint. Accordingly, a petitioner asserting both innocence and constitutional error “need carry less of a burden” with respect to innocence than a petitioner like Herrera who claimed only innocence. Carriger, 132 F.3d at 477-78 (citing Schlup, 513 U.S. at 316, 115 S. Ct. at 861). ¶118 Beach I’s articulation of the showing required for a substantive innocence claim does not accurately reflect the high standard applicable to such claims. “[A] standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” Schlup, 513 U.S. at 325, 115 S. Ct. at 866 (internal quotation marks omitted). In Carriger, the Ninth Circuit concluded that a petitioner asserting a substantive/freestanding innocence claim “must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent.” 132 F.3d at 476. The 75 court cited Justice Blackmun’s Herrera dissent as the origin of this standard.5 Justice Blackmun, in turn, discussed two considerations that support the standard: First, new evidence of innocence may be discovered long after the defendant’s conviction. Given the passage of time, it may be difficult for the State to retry a defendant who obtains relief from his conviction or sentence on an actual-innocence claim. The actual-innocence proceeding thus may constitute the final word on whether the defendant may be punished. In light of this fact, an otherwise constitutionally valid conviction or sentence should not be set aside lightly. Second, conviction after a constitutionally adequate trial strips the defendant of the presumption of innocence. The government bears the burden of proving the defendant’s guilt beyond a reasonable doubt, but once the government has done so, the burden of proving innocence must shift to the convicted defendant. The actual-innocence inquiry is therefore distinguishable from review for sufficiency of the evidence, where the question is not whether the defendant is innocent but whether the government has met its constitutional burden of proving the defendant’s guilt beyond a reasonable doubt. When a defendant seeks to challenge the determination of guilt after he has been validly convicted and sentenced, it is fair to place on him the burden of proving his innocence, not just raising doubt about his guilt. Herrera, 506 U.S. at 442-43, 113 S. Ct. at 882-83 (Blackmun, Stevens, & Souter, JJ., dissenting) (citations omitted). Notably, Justice Blackmun rejected the Sawyer standard as ill-suited to the substantive innocence inquiry. Herrera, 506 U.S. at 442 & n. 6, 113 S. Ct. at 882 & n. 6 (Blackmun, Stevens, & Souter, JJ., dissenting). 5 In the Herrera majority opinion, Chief Justice Rehnquist only assumed, for the sake of argument, that a substantive innocence claim is cognizable, and he thus did not articulate the standard for such a claim, except to note that it would be “extraordinarily high.” Herrera, 506 U.S. at 417, 113 S. Ct. at 869. Justice Blackmun, on the other hand, concluded that a substantive claim is cognizable, and he thus articulated what showing he believed is necessary to obtain relief under it. Herrera, 506 U.S. at 437, 441-44, 113 S. Ct. at 880, 882-83 (Blackmun, Stevens, & Souter, JJ., dissenting). 76 ¶119 To summarize this discussion, the Herrera Court contemplated an “extraordinarily high” standard for a freestanding innocence claim. 506 U.S. at 417, 113 S. Ct. at 869. Likewise, the Schlup Court indicated that such a claim would fail unless the petitioner’s new evidence “unquestionably establish[es]” his innocence. 513 U.S. at 316-17, 115 S. Ct. at 862. A petitioner raising a substantive claim of innocence concedes that his conviction was the product of a fair and error-free trial. The government has proved his guilt beyond a reasonable doubt, and he has thus been stripped of the presumption of innocence. If successful on his substantive claim, the petitioner is forever exonerated and the State may not retry him (see Opinion, ¶ 13). In light of these considerations, it seems apparent that we understated the appropriate standard of proof for a substantive claim in Beach I, ¶ 44. It is not enough to show (even by clear and convincing evidence) that no reasonable juror would have found the petitioner guilty.6 To prevail on a substantive claim, the petitioner must go beyond raising doubt about his guilt; he must affirmatively, and unquestionably, establish his innocence. Moreover, he must do so based on reliable new evidence and in light of the proof of his guilt at trial. Herrera, 506 U.S. at 417-19, 113 S. Ct. at 869-70. I would overrule Beach I and apply the foregoing standard—which, I note, is consistent with our recognition in Pope, ¶¶ 48-49, that while a Schlup petitioner “only has to be successful in convincing the reviewing court that a reasonable jury would 6 For this reason, I would not apply the standard for freestanding claims stated at ¶ 13, ¶ 16, and ¶ 26 n. 4 of today’s Opinion in future cases. 77 not likely convict him in light of the new evidence,” a Herrera petitioner “must present new evidence that proves he or she did not commit the crime.” 2. Standard for Procedural Claims ¶120 As noted, we adopted a modified version of the Clark test as the framework for analyzing a procedural innocence claim. Beach I, ¶¶ 45-48. For the reasons already discussed, the Clark test was not envisioned to be used as a fundamental miscarriage of justice test, and it should not be applied for that purpose. See ¶¶ 107-110, supra. ¶121 As for the specific showing needed to prevail on a procedural/gateway claim, we opined in Beach I that Schlup, Redcrow, and Clark articulate “rough[ly] equivalen[t]” standards, and we thus directed the District Court to apply Schlup and Redcrow as part of Clark’s fifth factor. Beach I, ¶¶ 45, 48, 51. I do not agree that the standards from these three cases are equivalent, nor do I agree that they can or should be fused into one. ¶122 First, under the fifth factor of Clark, “the evidence must indicate that a new trial has a reasonable probability of resulting in a different outcome.” Clark, ¶ 34. Under Schlup, conversely, the petitioner must show that it is “more likely than not” that “no juror, acting reasonably, would have voted to find him guilty.” Schlup, 513 U.S. at 327, 329, 115 S. Ct. at 867, 868. We explained in Clark, ¶ 36, that the “reasonable probability” standard is lower than the “more likely than not” standard (albeit, using the terms “probably” and “51 percent or greater chance” in lieu of “more likely than not”). The Supreme Court has made similar observations. Schlup, 513 U.S. at 327 & n. 45, 115 S. Ct. at 867 & n. 45; Schlup, 513 U.S. at 332-33, 115 S. Ct. at 870 (O’Connor, J., 78 concurring). Showing “a reasonable probability of . . . a different outcome” is sufficient for granting a new trial to a defendant who files a motion within 30 days after a guilty verdict. But it is wholly insufficient for finding a fundamental miscarriage of justice that would warrant review of procedurally barred constitutional claims asserted years after the conviction. The miscarriage of justice exception must remain “rare” and be applied only in the “extraordinary case.” Schlup, 513 U.S. at 321, 115 S. Ct. at 864. ¶123 Second, in Redcrow, we applied the foregoing Schlup standard in our evaluation of the petitioner’s claims. Redcrow, ¶ 37. But near the end of that same paragraph, we then stated: “A fundamental miscarriage of justice arises only when a jury could find, in light of new evidence, that the defendant is actually innocent of the crime.” Redcrow, ¶ 37. This is the language adopted at ¶¶ 48 and 51 of Beach I. The question at the gateway stage, however, is not whether “a jury could find . . . that the defendant is actually innocent.” Redcrow, ¶ 37. It is whether “any reasonable juror would have reasonable doubt.” House, 547 U.S. at 538, 126 S. Ct. at 2077. The gateway analysis focuses on what reasonable jurors would do, not what a jury could do. See Schlup, 513 U.S. at 330, 115 S. Ct. at 868 (distinguishing the standard governing claims of insufficient evidence— i.e., whether any rational juror could have convicted—from the standard governing Schlup—i.e., whether no reasonable juror would have convicted; the former focuses on “the power” of the trier of fact to reach its conclusion, while the latter focuses on “the likely behavior” of the trier of fact). The quoted language from Redcrow, ¶ 37, is not a correct statement of the law under Schlup’s gateway innocence standard. 79 ¶124 Of course, in defining “fundamental miscarriage of justice” under Montana law, we are not required to adopt the same approach applied by the Supreme Court in federal habeas cases. Nevertheless, we purported to adopt the Schlup standard in Redcrow and Pope. In so doing, we indicated that “[t]he Supreme Court’s definition of fundamental miscarriage of justice comports with” our longstanding recognition of “the importance of applying procedural bars regularly and consistently.” Redcrow, ¶ 34. In my view, Schlup’s gateway approach is sensible and well-considered, and I would adhere to that approach in cases where a postconviction petitioner seeks to escape a procedural bar and obtain review of otherwise barred constitutional claims. When we inject into the analysis other standards and tests that were created for different purposes, we engender confusion and undermine Schlup’s clear analytical framework. For these reasons, I would overrule the Beach I test in its entirety and reaffirm the analytical approach set forth in Schlup. D. Summary ¶125 In sum, a postconviction petitioner who alleges constitutional errors in his original trial, but who is procedurally barred from bringing those claims, must demonstrate a fundamental miscarriage of justice in order to receive review of his claims on the merits. To do so, the petitioner must supplement his constitutional claims with a sufficient showing of factual innocence (as distinct from legal innocence). More specifically, the petitioner must come forward “with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S. Ct. at 865. The petitioner 80 must show that, in light of this new evidence, it is more likely than not that no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 327, 329, 115 S. Ct. at 867, 868. ¶126 The reviewing court, in turn, must examine all the evidence—old and new, incriminating and exculpatory—without regard to whether it would necessarily be admitted under the rules of admissibility that govern at trial.7 Based on this total record, the court must make a probabilistic determination about what reasonable, properly instructed jurors would do. Schlup, 513 U.S. at 327-29, 115 S. Ct. at 867-68; House, 547 U.S. at 538, 126 S. Ct. at 2077. The court’s function is not to make an independent factual determination about what likely occurred; rather, it is to assess how reasonable jurors likely would react to the overall, newly supplemented record. House, 547 U.S. at 538, 126 S. Ct. at 2077-78. While the standard is demanding, it does not require absolute certainty about guilt or innocence. The petitioner’s burden at the gateway stage “is to demonstrate that more likely than not, in light of the new evidence, . . . any reasonable juror would have reasonable doubt.” House, 547 U.S. at 538, 126 S. Ct. at 2077. If the petitioner makes this showing, then the court will review his constitutional claims on the 7 On this particular point, I believe our refusal in Pope to consider the petitioner’s confessions to the crime—one in a sworn statement; the other in open court—was error. See Pope, ¶¶ 6-10, 62. The State had promised not to use Pope’s confessions against him, but that did not preclude this Court from considering the confessions in determining whether he was “actually innocent” of the crime. By limiting our consideration of that question to “only admissible evidence,” Pope, ¶ 63, we violated Schlup’s command that the court consider all the evidence. Since the question is whether the petitioner is factually innocent, I agree with Justice Rice that the confessions were evidence of Pope’s guilt that should have been considered. Pope, ¶ 89 (Rice, J., & Gray, C.J., dissenting). 81 merits in a postconviction proceeding from which he previously was procedurally barred. If he prevails on his constitutional claims, then the petitioner is entitled to a new trial. ¶127 Distinct from this procedural/gateway innocence framework, a petitioner may seek relief under a substantive/freestanding claim of innocence. There, the petitioner does not allege constitutional errors in his trial; he concedes that the proceedings underlying his conviction and sentence were “entirely fair and error free.” Schlup, 513 U.S. at 314, 115 S. Ct. at 860. He instead claims that his conviction is factually incorrect and that his execution or continued imprisonment would thus violate the Constitution. This requires “more convincing proof of innocence” than the gateway innocence standard requires. House, 547 U.S. at 555, 126 S. Ct. at 2087. The petitioner must go beyond raising doubt about his guilt and must establish his innocence affirmatively, and unquestionably, based on reliable new evidence and in light of the proof of his guilt at trial. Schlup, 513 U.S. at 316-17, 115 S. Ct. at 862; Herrera, 506 U.S. at 417-19, 113 S. Ct. at 869-70; Carriger, 132 F.3d at 476. ¶128 Finally, the question arises as to how § 46-21-102(2), MCA, is to be applied consistently with the Schlup and Herrera analyses in cases where § 46-21-102(2), MCA, is available to the petitioner. This section states: A claim that alleges the existence of newly discovered evidence that, if proved and viewed in light of the evidence as a whole would establish that the petitioner did not engage in the criminal conduct for which the petitioner was convicted, may be raised in a petition filed within 1 year of the date on which the conviction becomes final or the date on which the 82 petitioner discovers, or reasonably should have discovered, the existence of the evidence, whichever is later. Section 46-21-102(2), MCA. ¶129 As discussed, we deemed it appropriate in Crosby to apply the Clark test to a timely petition filed under this section. Crosby, ¶¶ 15, 20. In light of the foregoing discussion of “actual innocence” claims, however, I question whether the Clark test is properly suited to analyzing such a petition. Under Clark, the defendant must show: (1) The evidence must have been discovered since the defendant’s trial; (2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant’s part; (3) the evidence must be material to the issues at trial; (4) the evidence must be neither cumulative nor merely impeaching; and (5) the evidence must indicate that a new trial has a reasonable probability of resulting in a different outcome. Clark, ¶ 34. These factors bear on whether a new trial should be granted under § 46-16-702, MCA (the “new trial” statute); § 46-21-102(2), MCA, on the other hand, says nothing about a new trial. The Clark test, moreover, requires only a reasonable probability that a new trial will result in a different outcome; § 46-21-102(2), MCA, conversely, requires the petitioner’s evidence to “establish” that he did not engage in the criminal conduct for which he was convicted. The Clark test requires the court to assess the defendant’s diligence; § 46-21-102(2), MCA, however, has its own diligence standard: the petition is timely if it is filed within one year of the date on which the conviction became final or the date on which the petitioner discovered, or reasonably 83 should have discovered, the existence of the evidence, whichever is later. The Clark test requires the evidence to be material to the issues at trial and not cumulative or merely impeaching; § 46-21-102(2), MCA, states no such criteria. In short, the Clark test and § 46-21-102(2), MCA, require distinct showings for differently situated individuals. ¶130 I note that the legislative history of § 46-21-102(2), MCA, while somewhat thin, is consistent with this conclusion. As originally proposed, House Bill 222 (1997) reduced the time limit on filing a petition for postconviction relief to one year, with no exceptions. Opponents of the bill argued that this categorical limitation ignored recent developments in DNA testing and would prevent courts from considering cases in which DNA testing proved unequivocally that the petitioner was innocent. Apparently in response to such objections, the House Judiciary Committee amended House Bill 222 to incorporate the “newly discovered evidence” exception now contained at § 46-21-102(2), MCA. ¶131 Based on the statute’s language, it appears § 46-21-102(2), MCA, is effectively— though perhaps not intentionally—a codification of the substantive/freestanding claim that the Supreme Court in Herrera (and again in House) only assumed, for the sake of argument, is cognizable under the federal Constitution and that this Court, likewise, has assumed exists but has never actually relied on to grant relief. An obvious difference is the one-year filing deadline in § 46-21-102(2), MCA. Neither the Supreme Court nor this Court specified whether a substantive innocence claim under the Constitution8 must be 8 Justice Blackmun concluded in Herrera that a substantive innocence claim is cognizable under the Cruel and Unusual Punishments Clause of the Eighth Amendment 84 filed within a particular timeframe of discovering the new evidence. I do not believe it is necessary to resolve that question here, however. Until such time as it is necessary to decide whether the statute’s one-year limit should not control constitutional-based claims as well, I would avoid further complicating an already complex area of law and simply apply the above-stated standards for a substantive claim of innocence whether it is brought under the Constitution or under § 46-21-102(2), MCA. Thus, the petitioner must affirmatively and unquestionably establish his innocence, based on reliable new evidence discovered within the twelve months preceding the filing of his petition and in light of the proof of his guilt at trial. V. Discussion of Beach’s Claim ¶132 The Court persuasively explains why Beach’s new evidence fails to satisfy the threshold requirement of the foregoing tests—specifically, his evidence is not “reliable.” Opinion, ¶¶ 23, 68-78. I agree with that analysis and join it. I also offer the following additional observations as to why Beach’s claims must fail. A. Substantive Innocence ¶133 Under the “extraordinarily high” standard required for a substantive/freestanding claim of innocence, simply pointing the finger at other possible perpetrators—as Beach has attempted to do here, based largely on hearsay—is inadequate. Likewise, attempting to poke holes in one’s confession to the crime—as Beach has also attempted here, using and under the Due Process Clause of the Fourteenth Amendment. 506 U.S. at 430-37, 113 S. Ct. at 876-80 (Blackmun, Stevens, & Souter, JJ., dissenting). These correspond with Article II, Sections 22 and 17, respectively, of the Montana Constitution. 85 the same arguments he made (and the jury rejected) in his 1984 trial—does not establish affirmatively and unquestionably that the petitioner is innocent. There is no DNA or other scientific evidence proving that Beach did not commit the crime. There is no trustworthy alibi evidence establishing that Beach was in another location when the crime occurred. There is no confession, let alone a reliable one, by another individual stating that he or she committed the crime and that Beach did not. The jury in Beach’s trial found beyond a reasonable doubt that Beach bludgeoned Nees to death with a crescent wrench and a tire iron. Even assuming9 that Beach raised a substantive innocence claim—i.e., that his conviction, although the product of a fair and error-free trial, is nevertheless factually incorrect—Beach’s evidence falls far short of proving that claim. B. Procedural Innocence ¶134 In conducting our analysis at the gateway stage we must decide, based on all the evidence, whether it is more likely than not that no reasonable juror would have voted to find Beach guilty beyond a reasonable doubt. With that standard in mind, I cannot agree with Beach’s contention that his new evidence sufficiently establishes his actual innocence. Beach confessed to the crime. He did not simply say, “I did it.” Rather, he provided intimate and minute details of exactly how he committed the crime and then disposed of the evidence. With perhaps one exception (the description of what Nees was wearing that night), the details of his confession were consistent with the crime scene. 9 Contrary to statements in Beach I that Beach brought “both substantive and procedural” innocence claims in his January 2008 petition, see Beach I, ¶¶ 43, 44, he actually raised only a procedural claim under Schlup, see ¶¶ 99-100, supra. 86 Opinion, ¶ 29 n. 6. Importantly, Beach provided details that investigators previously were unaware of. For instance, he stated that he used a garbage bag when dragging Nees’s body to the river, which explained the lack of blood along the drag trail. While Beach posits that the Louisiana officers planted such details of the crime in his head, the transcript of a telephone conversation between Sheriff Mahlum and Sergeant Via reflects that Beach himself provided the details.10 For example, Mahlum wanted to know exactly where Beach had thrown the pickup keys into the river. Beach replied that he had thrown the keys to his right, as he was facing Nees’s body, which meant upstream. ¶135 Contrary to Beach’s insinuations that Mahlum and the Louisiana officers engaged in a conspiracy to coerce him into giving a false confession to a crime he did not commit, there is no evidence substantiating this claim, let alone new evidence that the jury did not already consider when it rejected this theory back in 1984. Furthermore, Beach has never provided a coherent and consistent explanation as to why he—a supposedly innocent man—confessed to brutally murdering Nees. Beach has gone from alleging that Calhoun told him he would “fry in the electric chair” if he did not confess, to claiming that the officers threatened him with homosexual advances, to contending that he sought only to please the officers so he could be returned to Montana, to asserting that he felt helpless after being held incommunicado for several days. Beach even offered the theory that the 10 Following his confession, Beach asked to speak with Mahlum. Via got in touch with Mahlum and then put Beach on the line. Beach asked Mahlum “to kinda keep it away from my mother till I get a chance to talk to her” because “[s]he’ll take it pretty hard.” Thereafter, Via and Mahlum spoke without Beach on the line, though it appears that Beach was close enough to provide answers, through Via, to Mahlum’s questions. 87 officers drugged his milkshake while he was being fed before his confession; yet, he also alleged the contrary theory that he had not been fed and was suffering from extreme hunger at the time of his confession. Bottom line: Beach’s theories of why he confessed are inconsistent and continually evolving, which serves only to undermine the credibility of all of them. More to the point, Beach has never presented a shred of credible evidence substantiating any of his explanations for giving a supposedly false confession. ¶136 The Supreme Court’s opinion in House provides insight into the sort of showing necessary to pass through the gateway and obtain review of barred constitutional claims. Not even the DNA evidence calling into question House’s involvement in the crime and the “evidentiary disarray” surrounding the blood evidence were enough to overcome the prosecution’s evidence against him. House, 547 U.S. at 540-48, 126 S. Ct. at 2078-83. The Supreme Court also considered compelling evidence that another suspect had murdered the victim—in particular, the victim’s husband. Two witnesses had provided credible testimony that the husband actually confessed to the crime; two more had described suspicious behavior by the husband (a fight and an attempt to construct a false alibi) around the time of the crime; and still other witnesses described a history of abuse. House, 547 U.S. at 548-53, 126 S. Ct. at 2083-85. After its consideration of all the evidence, the Supreme Court concluded that while the case was not one of conclusive exoneration, “the central forensic proof connecting House to the crime—the blood and the semen—has been called into question, and House has put forward substantial evidence pointing to a different suspect.” House, 547 U.S. at 553-54, 126 S. Ct. at 2086. 88 Accordingly, the Supreme Court concluded that “although the issue is close, . . . this is the rare case where—had the jury heard all the conflicting testimony—it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt.” House, 547 U.S. at 554, 126 S. Ct. at 2086. In contrast, as explained in this Court’s Opinion, and for the reasons just stated, there is simply no reliable evidence that Beach falsely confessed to murdering Nees and that a “pack of girls” are instead responsible for her death. ¶137 Over the last 21 years, Beach has been through one federal habeas proceeding, including an appeal to the Ninth Circuit; two executive clemency proceedings; and two state postconviction proceedings. While he has persistently maintained his innocence throughout these proceedings, he has repeatedly failed to produce any reliable new evidence establishing that fact to the satisfaction of the board or tribunal involved. In its August 20, 2007 decision, the Montana Board of Pardons and Parole aptly observed that, “[u]ltimately, his statement to detectives that he had gone home after the murder and tried to convince himself that he did not do it, chilling as it is, provides what seems to this Board the likeliest explanation of what he is doing still.” As the Board further observed, in order to believe Beach’s claim that he did not do what his confession says he did, “we would have to believe that every single one of the law enforcement officers was steadfast in lying at the time the confession was taken, through the suppression hearing, through another trip to Montana for the trial, and even now when most have changed careers and 89 one faces a life-threatening health crisis.” To adopt such a belief would require a far more persuasive evidentiary showing than Beach has made here. VI. Conclusion ¶138 In conclusion, while I concur in the Court’s application of the Beach I analytical framework, I do so only for purposes of this case and Beach’s claims that are now before us. For purposes of future cases involving substantive or procedural claims of innocence, I would overrule Beach I and apply the standards that I have detailed above. Lastly, I agree fully with the Court’s analysis and conclusion that Beach’s new evidence is not reliable and, thus, that Beach’s innocence claims must fail. Opinion, ¶¶ 68-78. ¶139 I concur. /S/ LAURIE McKINNON Justice Beth Baker, Justice Jim Rice, and District Court Judge Richard A. Simonton join the Concurrence of Justice Laurie McKinnon. /S/ BETH BAKER /S/ JIM RICE /S/ RICHARD A. SIMONTON District Court Judge Richard A. Simonton sitting in place of Chief Justice Mike McGrath 90 Justice Brian Morris dissents. ¶140 This Court determined that Beach could petition for post-conviction relief, even though such relief was otherwise time-barred, if he could produce new evidence of actual innocence. Beach, ¶ 51. We remanded the case to the District Court to conduct an evidentiary hearing. The District Court applied the standards and procedures set forth in Beach. The District Court determined that Beach’s witnesses at the hearing offered new evidence that demonstrated Beach’s actual innocence and granted Beach a new trial. ¶141 We set forth the procedures and standards by which the District Court should evaluate Beach’s new evidence in light of his effort to obtain a new post-conviction relief hearing or to be found actually innocent. Beach, ¶ 51. These procedures serve as law of the case. This Court has long recognized that when the Court “states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case.” Fiscus v. Beartooth Elec. Coop., 180 Mont. 434, 437, 591 P.2d 196, 197 (1979); see also, Federated Mut. Ins. Co. v. Anderson, 1999 MT 288, ¶ 60, 297 Mont. 33, 991 P.2d 915. The law of the case “must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal” even if the Court “may be clearly of opinion that the former decision is erroneous.” Fiscus, 180 Mont. at 437, 591 P.2d at 197-98. ¶142 The District Court found the testimony of each of Beach’s witnesses to be credible and believable. The District Court observed the demeanor of each witness presented by Beach. The District Court carefully detailed what it found credible about each witness. 91 The District Court considered the fact that most witnesses had no connection to the town of Poplar, Beach, or Nees, and accordingly, had no motive to lie. The District Court, as the trier of fact, sits in a better position to observe the witnesses and determine credibility than this Court. State v. Finley, 2011 MT 89, ¶ 31, 360 Mont. 173, 252 P.3d 199; Double AA Corp. v. Newland & Co., 273 Mont. 486, 494, 905 P.2d 138, 142 (1995). The District Court has presided over at least 35 criminal trials and has experience gauging the credibility of witnesses. I cannot say from this vantage point that the District Court’s determination regarding the witnesses’ credibility and believability rises to the level of clearly erroneous. Clark, ¶ 39. ¶143 The District Court next weighed the evidence that the State presented at Beach’s original trial against Beach’s new evidence to determine whether Beach had demonstrated that no reasonable juror would find Beach guilty beyond a reasonable doubt. Beach, ¶ 48, Schlup, 513 U.S. at 331-32, 115 S. Ct. at 869. The Court concludes that the District Court ignored the evidence that the State had presented against Beach in the 1984 trial. ¶ 21. The District Court specifically addressed this concern, however, in its order on the State’s motion for stay. The District Court stated, “[i]t is [Beach’s] confession that constitutes the entirety of the State’s argument. That confession was considered by this court in its Order.” ¶144 Beach’s confession constituted “the focal point of this whole inquiry.” Concurring Opinion, ¶ 85. The State conceded at Beach’s trial that no reliable physical evidence retrieved from the crime scene tied Beach to the murder. Concurring Opinion, ¶ 83. The 92 District Court’s statement that it had compared the evidence at the hearing against Beach’s confession indicates that the District Court properly weighed the State’s evidence from Beach’s 1984 trial against the new evidence presented at the hearing. Beach, ¶ 48; Schlup, 513 U.S. at 331-32, 115 S. Ct. at 869. ¶145 The court’s weighing of the evidence led it to conclude that no need existed for Beach to have a new post-conviction relief hearing based on the fact that Beach had demonstrated his free standing actual innocence claim by meeting the higher burden of persuasion. Beach, ¶¶ 44-45; Schlup, 513 U.S. at 315, 115 S. Ct. at 861. The District Court concluded, “[n]o reasonable juror, properly instructed, could have combined that testimony [of Ms. Eagle-Boy] with the testimony of Ms. White Eagle-Johnson, Ms. Smith and Ms. Molar and not had reasonable doubt whether Mr. Beach committed the murder.” The District Court followed this Court’s instructions on remand from Beach, ¶ 51. ¶146 This ruling marks what likely will be the final chapter in the saga of Barry Beach. We oversee a criminal justice system that seeks to resolve a defendant’s guilt through processes created and administered by humans. Humans, by nature, are fallible and the processes that humans create share this same fallibility. The system requires that we make the final judgment on the District Court’s ruling. Justice Jackson, in a different era and a different context, described the United States Supreme Court’s role in reviewing the decisions of a state court: “[w]e are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen, 344 U.S. 443, 540, 73 S. Ct. 397, 93 427 (1953) (Jackson, J., concurring). The District Court scrupulously attempted to comply with its mandate from this Court to consider Beach’s alleged new evidence. Beach, ¶ 51. I cannot say that the District Court’s rulings rise to the level of abuse of discretion, Beach, ¶ 14, and, accordingly would affirm the order of the District Court. /S/ BRIAN MORRIS Justice Patricia Cotter and Justice Michael E Wheat join the Dissent of Justice Brian Morris. /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER | May 14, 2013 |
6c535a47-e726-4ce3-9d64-1212c20ca056 | State v. Stops | 2013 MT 131 | DA 11-0503 | Montana | Montana Supreme Court | DA 11-0503 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 131 STATE OF MONTANA, Plaintiff and Appellee, v. WILLIAM GARRETT STOPS, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 09-0186 Honorable Gregory R. Todd, 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, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana Scott Twito, Yellowstone County Attorney, Victoria Callender, Deputy County Attorney, Billings, Montana Submitted on Briefs: March 13, 2013 Decided: May 14, 2013 Filed: __________________________________________ Clerk May 14 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 William Garrett Stops (Stops) appeals from an order of the Thirteenth Judicial District Court, Yellowstone County, denying his motion to dismiss based on an alleged violation of his speedy trial rights. We affirm. ISSUES ¶2 Stops raises two issues on appeal. We restate these issues as follows: ¶3 1. Did the District Court provide sufficient findings of fact and conclusions of law to enable appellate review of Stops’ speedy trial arguments? ¶4 2. Did the District Court err in concluding that Stops’ speedy trial rights had not been violated? FACTUAL AND PROCEDURAL BACKGROUND ¶5 On April 9, 2009, Billings Police Department Officers Kostinko and Aguilar responded to a report of a possible drunk driver. A citizen complainant, who happened to be a retired Billings Police Officer, was following the suspected drunk driver and reported that the driver nearly caused two head-on collisions. Officer Kostinko located the suspect vehicle and executed a traffic stop. As Officer Kostinko exited his patrol car and approached the suspect, the suspect’s vehicle began slowly backing up and eventually collided with the patrol car. Officer Kostinko drew his sidearm and waited for backup to arrive. Once Officer Aguilar arrived, Officer Kostinko removed the driver from his vehicle. Officer Chaney arrived shortly thereafter and all three officers assisted in arresting the driver and bringing him into custody. The driver was later identified as Stops. The arresting officers noted that Stops demonstrated various signs of alcohol 3 impairment. Stops refused to perform field sobriety maneuvers and refused to provide a breath sample. ¶6 On April 14, 2009, Stops was arraigned on three charges: (1) operation of a motor vehicle while under the influence of alcohol (DUI), felony; (2) resisting arrest; and (3) operating a motor vehicle without proof of liability insurance. The City of Billings also requested restitution in the amount of $2,296.05 for damage to the patrol car. The charges constituted Stops’ seventh lifetime DUI and second felony DUI. Stops appeared with a public defender and pleaded not guilty to all three counts. ¶7 On April 15, 2009, the Office of the Public Defender notified Stops and the District Court that Stops did not qualify for representation by a public defender. Stops appeared for a status of counsel hearing on June 22, 2009, and informed the District Court that he had obtained counsel, but his counsel would not be available for another three months. Stops orally moved for a continuance and waived his speedy trial rights. The District Court continued the trial date and set another status hearing for September 22, 2009. ¶8 On September 22, 2009, Stops again appeared without counsel at the status of counsel hearing. Stops informed the District Court that he was still trying to come up with the retainer fee necessary to retain counsel. The District Court scheduled an omnibus hearing for October 26, 2009. Stops appeared at the omnibus hearing without counsel. Since trial was set for December 16, 2009, the District Court scheduled a status hearing for December 7, 2009. On December 7, 2009, Stops appeared with counsel and 4 moved to continue the trial date. Stops also filed a waiver of speedy trial rights. The District Court reset the trial date for April 29, 2010. ¶9 On March 23, 2010, Stops filed a motion to dismiss the charges against him. Stops alleged that the State intentionally suppressed evidence by withholding the video of the stop. Stops further alleged that the State impeded his right to an independent alcohol test by using excessive force while executing the arrest, which impaired his ability to make rational decisions. The State responded to Stops’ motion to dismiss on April 7, 2010. The State countered that it had requested the video of the stop numerous times and was advised that no video footage existed. After an additional request, Officer Chaney searched the archives once again and discovered a video of the stop on April 5, 2010. The State provided this video, which did not contain sound, to Stops on April 6, 2010. The State also argued that Stops did not request an independent blood test and his right to such a test was not impeded. The District Court set an April 23, 2010 hearing date to address Stops’ motion to dismiss. ¶10 On April 21, 2010, the State moved to continue the hearing on the motion to dismiss because two of the State’s witnesses were unavailable. The District Court vacated the April 23, 2010 hearing and rescheduled it for April 27, 2010. After hearing testimony and considering the parties’ briefing, the District Court denied Stops’ motion to dismiss. ¶11 Stops filed a motion to continue the trial on April 27, 2010, citing the State’s delay in providing the video and the fact that Stops recently provided his counsel with x-rays from Billings Clinic that purportedly supported his contention that the officers acted with 5 excessive force. The State objected to Stops’ motion to continue. Stops’ motion to continue was accompanied by a waiver of his right to a speedy trial. The District Court rescheduled the trial for November 22, 2010. ¶12 On November 15, 2010, the State moved for a continuance to accommodate the unavailability of one of the State’s witnesses. Once again, the District Court vacated the trial date and rescheduled trial for February 9, 2011. ¶13 On January 10, 2011, Stops filed a motion to dismiss based on a violation of his speedy trial rights. Stops filed his brief in support of his motion to dismiss on January 19, 2011. Stops argued that 530 of the 667 days of delay should be attributed to the State. The State countered that 217 days of delay should be attributed to the State with 138 days of the delay attributable to institutional delay. The State argued that much of the delay was attributable to Stops, and that Stops had not been prejudiced by the extended length of time between his arrest and trial. ¶14 On March 1, 2011, the District Court reset the trial date for April 19, 2011. The District Court held a hearing on the motion to dismiss on April 1, 2011. At the close of testimony, the District Court denied Stops’ motion to dismiss. The District Court issued its written order on April 7, 2011. The District Court accepted the State’s allocation of responsibility for the different periods of delay and determined that Stops’ speedy trial rights had not been violated. ¶15 Following a three-day jury trial taking place April 19-21, 2011, the jury found Stops guilty of felony DUI and not guilty of resisting arrest. Stops was sentenced as a persistent felony offender to 20 years in the Montana State Prison with 10 years 6 suspended, and ordered to pay $2,296.05 in restitution. The District Court entered its final judgment on August 3, 2011. Stops appeals. STANDARDS OF REVIEW ¶16 We review the district court’s disposition of a motion to dismiss on speedy trial grounds by reviewing the factual findings to determine if they are clearly erroneous. State v. Sartain, 2010 MT 213, ¶ 10, 357 Mont. 483, 241 P.3d 1032; State v. Houghton, 2010 MT 145, ¶ 13, 357 Mont. 9, 234 P.3d 904. Factual findings are clearly erroneous if they are not supported by substantial credible 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 made. Sartain, ¶ 10; Houghton, ¶ 13. Whether the defendant has been denied the right to a speedy trial presents a question of constitutional law, which we review de novo to determine whether the district court correctly interpreted and applied the law. State v. Couture, 2010 MT 201, ¶ 47, 357 Mont. 398, 240 P.3d 987; State v. Hardaway, 2009 MT 249, ¶ 14, 351 Mont. 488, 213 P.3d 776. DISCUSSION ¶17 Did the District Court provide sufficient findings of fact and conclusions of law to enable appellate review of Stops’ speedy trial arguments? ¶18 A criminal defendant’s right to a speedy trial is a fundamental constitutional right guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 24 of the Montana Constitution. Couture, ¶ 3; State v. Ariegwe, 2007 MT 204, ¶ 20, 338 Mont. 442, 167 P.3d 815. 7 ¶19 In 2007, this Court revised our framework for analyzing speedy trial claims to closely track the balancing approach utilized by the U.S. Supreme Court. See Ariegwe, ¶ 106 (citing Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972); Doggett v. U.S., 505 U.S. 647, 112 S. Ct. 2686 (1992)). We analyze a 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. Couture, ¶ 46; Ariegwe, ¶¶ 106-112. Next, we balance these factors with any other relevant circumstances to determine whether the right to a speedy trial has been violated. Couture, ¶ 46; Ariegwe, ¶ 112. ¶20 Pertinent to our resolution of this matter, we also held in Ariegwe “that the court must, of necessity, enter findings of fact and conclusions of law with respect to each of the four factors and how the four factors were balanced against each other.” Ariegwe, ¶ 117 (emphasis in original). In such situations where the district court fails to make the necessary findings of fact and conclusions of law, appellate review of the speedy trial claim is impossible, and we must remand the case back to the district court. Ariegwe, ¶ 117. ¶21 Stops contends that the District Court’s order denying his motion to dismiss based on an alleged violation of his speedy trial rights was “cursory” and merely “regurgitated the parties’ contentions.” Stops argues that the District Court failed to sufficiently analyze the four Ariegwe factors and did not explain how they were balanced against each other. In support of his argument, Stops asserts that this Court has routinely remanded speedy trial cases for entry of sufficient findings of fact, conclusions of law, 8 and analysis comporting with the Ariegwe factors. Stops directs the Court’s attention to a number of cases in support of this proposition,1 and urges the Court to take similar action here. However, the cases cited by Stops were all cases in which the district court applied the outdated speedy trial analysis from City of Billings v. Bruce, 1998 MT 186, 290 Mont. 148, 965 P.2d 866, instead of the revised speedy trial analysis announced in Ariegwe. Stops’ reliance on this line of cases is misplaced because the District Court correctly applied the Ariegwe speedy trial analysis in the instant case. ¶22 Though the District Court’s order denying Stops’ motion to dismiss based on a violation of his speedy trial rights is not a model of clarity, it effectively addresses each of the Ariegwe factors and balances these factors against the other circumstances in the case. The District Court accepted the full timeline of the case as set forth in the State’s briefing, and discussed each relevant period of delay. The record before this Court is sufficient to provide a basis for appellate review of Stops’ speedy trial claims. ¶23 Did the District Court err in concluding that Stops’ speedy trial rights had not been violated? A. The Ariegwe Speedy Trial Factors ¶24 As previously stated, we analyze a 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 1 Stops cites to the following cases: Hardaway, ¶¶ 7-8; State v. Herman, 2009 MT 101, ¶¶ 21-22, 350 Mont. 109, 204 P.3d 1254; State v. Rose, 2009 MT 4, ¶ 37, 348 Mont. 291, 202 P.3d 749; State v. Billman, 2008 MT 326, ¶ 7, 346 Mont. 118, 194 P.3d 58; State v. Howard, 2008 MT 173, ¶ 25, 343 Mont. 378, 184 P.3d 344; State v. Madplume, 2008 MT 37, ¶ 10, 341 Mont. 321, 176 P.3d 1071; State v. Smith, 2008 MT 7, ¶ 24, 341 Mont. 82, 176 P.3d 258. 9 delay. Couture, ¶ 46; Ariegwe, ¶¶ 106-112. Next, we balance these factors with any other relevant circumstances to determine whether the right to a speedy trial has been violated. Couture, ¶ 46; Ariegwe, ¶ 112. 1. Length of the Delay ¶25 The right of a defendant to a speedy trial commences once a defendant becomes an accused through an arrest, the filing of a complaint, or by indictment by information. See Ariegwe, ¶ 42; State v. Larson, 191 Mont. 257, 261, 623 P.2d 954, 957 (1981). Further speedy trial analysis is triggered when 200 days have elapsed from the date that the defendant became an accused and the trial date. Ariegwe, ¶ 41. We presume that a defendant has been prejudiced minimally at the 200-day trigger point, and that such prejudice intensifies over time. Ariegwe, ¶ 56. The State’s burden to provide valid justifications for the delay increases with the length of the delay. Ariegwe, ¶ 61. ¶26 The speedy trial clock started to run when Stops was arrested on April 9, 2009, and continued to tick away until Stops’ trial started on April 19, 2011. The interval between Stops’ arrest and his trial included a total of 740 days. Accordingly, the 200-day threshold that triggers further speedy trial analysis has been met. Given the more than two years that elapsed before Stops’ trial occurred, the presumption that Stops suffered prejudice and the State’s burden to provide valid justifications for the delay are significant in this case. 2. Reasons for the Delay ¶27 Under this factor, we must first identify each period of delay, attribute each period of delay to the appropriate party, and then assign weight to the periods of delay based on 10 the reasons for that delay. Ariegwe, ¶¶ 63-64. Since the State bears the duty to timely bring a defendant to trial, delay is charged to the State unless the defendant caused the delay or affirmatively waived the speedy trial right for the period of time in question. State v. Billman, 2008 MT 326, ¶ 20, 346 Mont. 118, 194 P.3d 58; Ariegwe, ¶¶ 64-65. Institutional delay and delay for valid reasons weigh less heavily against the State than delay resulting from the State’s lack of diligence or bad faith. Billman, ¶ 20; Ariegwe, ¶ 108. Institutional delays are inherent in the criminal justice system and frequently occur due to circumstances beyond the control of the defendant or the State. Billman, ¶ 20. Valid reasons for delay may include the unavailability of a key witness or additional time needed to prepare for a particularly complex trial. Billman, ¶ 20; Ariegwe, ¶ 70. a. The first delay ¶28 The first period of delay we must address is the 138 days from Stops’ arrest until his original August 25, 2009 trial date. The District Court attributed this period of delay to the State as institutional delay. The parties do not dispute that this period of delay should be attributed to the State as institutional delay. b. The second delay ¶29 The second period of delay stretched from August 25, 2009, to the second trial date on December 16, 2009. This period of delay totaled 113 days. On June 22, 2009, the District Court held a status of counsel hearing. Stops appeared at the hearing without counsel and informed the District Court that he had obtained counsel, but his counsel was unavailable for another three months. Stops was notified on April 15, 2009, that he did 11 not qualify for a public defender. Citing his need for more time to obtain proper counsel, Stops requested a continuance at the hearing. The District Court questioned Stops concerning his knowledge and understanding of his right to a speedy trial. Stops indicated that he had no questions about the District Court’s explanation or his speedy trial rights and he agreed to orally waive his right to a speedy trial. The District Court granted Stops a continuance and advised him of the importance of obtaining representation as soon as possible. The District Court attributed this second period of delay to Stops because he requested the continuance and waived his speedy trial rights. ¶30 Stops argues that his waiver of speedy trial rights was not made knowingly and voluntarily. Stops contends that the District Court did not sufficiently inform him of the consequences and significance of his waiver. Furthermore, Stops maintains that it was improper for the District Court to require him to waive his speedy trial rights to obtain a continuance. We recognize that a defendant cannot be forced to waive his right to be brought to trial promptly in order to exercise his right to prepare a defense. See Couture, ¶ 78 n. 5. Nonetheless, “[i]f the defendant caused a particular delay, it will be attributed to him regardless of whether he signed a waiver for that period.” Couture, ¶ 78 n. 5. ¶31 The record clearly demonstrates that the Stops caused the delay due to his inability to obtain counsel. The District Court explained to Stops that even once he retained a lawyer, it would likely take several months for the lawyer to become familiar with the case and prepare for trial. Stops indicated that he understood a continuance would cause a significant delay and affect his right to a speedy trial. Under these circumstances, we will not allow Stops to blame the State or the District Court for his own failure to timely 12 retain counsel. We agree with the District Court that this second period of delay consisting of 113 days should be attributed to Stops. c. The third delay ¶32 The third period of delay encompasses the interval between the second trial date on December 16, 2009, and the third trial date on April 29, 2010, amounting to 134 days. The District Court attributed this period of delay to Stops because Stops filed a motion for a continuance of the trial date on December 7, 2009. Stops also concurrently filed a waiver of his speedy trial rights. ¶33 We agree with the District Court’s decision to attribute this period of delay to Stops. Stops retained counsel only one week before the scheduled December trial date. Although Stops did not make this argument before the District Court, he now argues on appeal that only 53 days of the third period of delay should be attributed to him because he needed only 60 days to prepare for trial when he filed his motion for a continuance on December 7, 2009. We will not consider arguments presented for the first time on appeal. State v. Hendershot, 2009 MT 292, ¶ 31, 352 Mont. 271, 216 P.3d 754. Stops admitted in his briefing before the District Court that this third period of delay should be attributed to him in its entirety and he affirmatively waived his speedy trial rights for this period. We conclude that the 134 days constituting this third period of delay must be attributed to Stops. d. The fourth delay ¶34 Next, we consider the fourth period of delay, consisting of 217 days that occurred between the April 29, 2010 trial date and the November 22, 2010 trial date. The District 13 Court attributed this period of delay to Stops because he filed a motion for a continuance of the April 29, 2010 trial date and submitted a waiver of his speedy trial rights. Stops argues that this period of time should be attributed to the State because the State’s delay in providing him a video of the stop made it impossible to be prepared for trial on April 29, 2010. ¶35 The State asserts that it did not learn of the existence of the video until April 5, 2010. The State provided the video to Stops on April 6, 2010. Stops had 23 days to review the video and adjust his trial strategy. Stops asserted in his April 27, 2010 motion for a continuance that the reason he needed more time was because Stops provided his counsel with x-rays from Billings Clinic on April 26, 2010—only three days before trial. Stops admitted that he was unable to open the images and properly review them, but he believed they showed a fracture to Stops’ eye socket area and cheek bone. Stops specifically requested that the court continue the matter until the evidence could be reviewed and hospital records could be obtained. The State objected to Stops’ request for a continuance. Under these circumstances, we agree with the District Court that the fourth period of delay must be attributed to Stops. e. The fifth delay ¶36 The fifth period of delay totaled 79 days and ran from November 22, 2010, to the February 9, 2011 trial date. The District Court attributed this period of delay to the State and neither party disputes this conclusion. The State requested a continuance due to the unavailability of Officer Kostinko. Though this delay is attributable to the State, the 14 delay was premised on the unavailability of a key witness, which is a “valid reason” and is therefore weighed less heavily against the State. See Billman, ¶ 20; Ariegwe, ¶ 70. f. The sixth delay ¶37 The sixth and final period of delay we must address is the 69 days from the February 9, 2011 trial date to the April 19, 2011 trial. Due to the timing of Stops’ motion to dismiss for violation of his speedy trial rights, the District Court did not address this period of delay. ¶38 Delay directly attributable to the filing of a speedy trial motion less than thirty days before a scheduled trial date is attributable to the defendant, while delay attributable to a speedy trial motion filed thirty days or more prior to a scheduled trial will be charged to the State. Ariegwe, ¶ 116. We announced this rule in Ariegwe because “due consideration of a speedy trial motion generally requires time for an evidentiary hearing and a careful analysis of the facts pursuant to the four-factor balancing test set forth above (not to mention the time required for the parties to brief the issues fully), which cannot realistically be accomplished in less than thirty days without postponing the existing trial date.” Ariegwe, ¶ 115. ¶39 On January 10, 2011, which was exactly thirty days before the February 9, 2011 trial was scheduled, Stops filed his motion to dismiss for violation of his speedy trial rights. However, Stops did not file his brief in support of his motion to dismiss until January 19, 2011. The State filed its response brief on February 4, 2011, and Stops filed his reply brief on February 10, 2011. Stops’ filing of his opening brief when only 21 days remained before trial did not provide the parties with sufficient time to fully brief 15 the issues and did not allow the District Court enough time to make an informed decision. Stops’ reply brief was filed a day after the scheduled trial date, and the District Court did not have an opportunity to hold a hearing on the speedy trial motion until the trial date had passed. Accordingly, we conclude that the sixth period of delay must be attributed to Stops. 3. The Accused’s Response to the Delay ¶40 This Court evaluates a defendant’s various responses to the delays in bringing him to trial to determine whether the totality of the defendant’s conduct evinces a sincere desire to be brought to trial. Ariegwe, ¶ 85. Conduct that demonstrates a defendant’s desire to avoid trial weighs against him in the overall balancing. Ariegwe, ¶ 85. The District Court determined that Stops’ response to the delay in bringing his case to trial showed little concern for moving his case along. The District Court pointed to the fact that Stops took eight months to secure representation, and he filed three motions to continue and two motions to dismiss. Stops orally waived his right to a speedy trial even after the District Court warned him of the delay it could cause in resolving his case. Stops filed two subsequent written waivers of his speedy trial rights. Stops fails to point to any conduct during the more than two years during which his case was pending that suggests he was interested in moving his case along more quickly and getting to trial sooner. 4. Prejudice to the Accused ¶41 Under this factor, we consider prejudice to the defendant in light of the following three interests: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety 16 and concern of the accused; and (3) limiting possibilities of the defense being impaired due to the delay. Sartain, ¶ 21; Ariegwe, ¶ 88. As the delay lengthens beyond the 200-day trigger point, we require less proof from the defendant showing prejudice and more proof from the State showing a lack thereof. Sartain, ¶ 21; Ariegwe, ¶ 49. ¶42 The District Court determined that Stops did not demonstrate that he suffered any prejudice. Stops spent four days incarcerated following his arrest. Though the District Court noted that Stops expressed anxiety at the April 1, 2011 hearing, it concluded that all of Stops’ anxiety was connected to his alleged mistreatment by the police when he was arrested, and not to any delay in bringing his case to trial. ¶43 Stops argues that the concussive trauma he suffered on the night of his arrest has caused a continuing deterioration of his memory. Stops contends that the delay in the case caused prejudice because he was no longer able to accurately recall what he had testified to earlier in the proceedings and was unable to remember important facts. As a result of the long delay and his physical condition, Stops asserts that his credibility before the jury was damaged. ¶44 Even in his own briefing, Stops alleges that the prejudice was actually caused by the police. Stops failed to provide any evidence that his alleged memory problems were growing worse with time, and made no effort to bring this information to the District Court’s attention until nearly two years had passed. Our review of the trial transcript reveals that Stops had a clear memory of many of the details from the night of his arrest. He was able to fully remember his state of mind from the night in question and testified in detail to the events leading up to his arrest. Stops admits that the State’s attempt to 17 impeach his testimony at trial focused on “inconsequential details” and “minutiae” rather than the facts central to his defense. 5. Balancing the Four Factors ¶45 The length of the delay, which totaled 740 days, significantly exceeds the 200-day trigger point and weighs in favor of Stops. However, when we balance the reasons for the delay, the second factor weighs in favor of the State. We attributed 217 days of the delay to the State and 533 days of the delay to Stops. Of the 217 days attributed to the State, 138 of those days were the result of institutional delay, and valid reasons supported the remaining 79 days of delay. The third factor—the accused’s response to the delay— also weighs in favor of the State because Stops’ conduct did not demonstrate that he was particularly interested in advancing his case to trial. Stops failed to demonstrate substantial prejudice to his ability to defend himself and the State effectively showed a lack of prejudice, leading us to weigh the fourth factor—prejudice to the accused—in favor of the State. ¶46 Given the length of the delay, the cause of each period of delay, the totality of Stops’ responses to the delay, and the strength of the parties respective showings on the issue of prejudice, we conclude that Stops was not deprived of his constitutional right to a speedy trial. CONCLUSION ¶47 For the foregoing reasons, we affirm the District Court. /S/ PATRICIA COTTER 18 We Concur: /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ LAURIE McKINNON | May 14, 2013 |
385e8614-cebf-4c13-8fcf-b1bcf441591c | Matter of Q.R.K. YINC | 2013 MT 141N | DA 12-0670 | Montana | Montana Supreme Court | DA 12-0670 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 141N IN THE MATTER OF: Q.R.K., 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 09-53 Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD: For Appellant: Johnna K. Baffa; Van de Wetering Law Offices, P.C.; Missoula, Montana For Appellee: May 28 2013 2 Timothy C. Fox, Montana Attorney General; Katie F. Schulz; Assistant Attorney General; Helena, Montana Fred R. Van Valkenburg, Missoula County Attorney; Diane Connor, Deputy Missoula County Attorney; Missoula, Montana Submitted on Briefs: April 24, 2013 Decided: May 28, 2013 Filed: __________________________________________ Clerk 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 L.R., the biological mother of Q.R.K., appeals an order of the Montana Fourth Judicial District Court, Missoula County, terminating her parental rights to Q.R.K. and granting permanent legal custody to the Montana Department of Public Health and Human Services (DPHHS or the Department). We affirm. ¶3 In September 2009, Missoula County police officers were asked to check on the welfare of a woman, L.R., who was intoxicated and unconscious at a local restaurant with her three-year-old daughter, Q.R.K. The police arrested L.R. and a social worker referred Q.R.K.’s case to DPHHS. On the ground that L.R. had abused or neglected Q.R.K., the Department filed a petition for emergency protective services. In April 2010, by stipulation of the parties, the court adjudicated Q.R.K. as a youth in need of care and awarded temporary legal custody of the child to DPHHS, which placed Q.R.K. with a foster family. ¶4 On July 27, 2010, following a hearing, the District Court approved in open court a phase-one treatment plan for L.R., which it then formally adopted on September 14, 2010. The treatment plan stated that L.R.’s history of chemical dependency and mental health issues, which were consistent with schizophrenia, had impaired her ability to effectively care for and parent Q.R.K.—a special needs child diagnosed with reactive attachment disorder (RAD). The plan provided detailed tasks and goals, as well as measures of success including, among other factors, L.R.’s demonstration of “regular and improved 3 parenting” and “put[ting] Q.K. first.” On motion of the Department, the District Court subsequently extended the order for temporary legal custody until April 2011 to allow L.R. more time to work toward completion of the treatment plan. The court also approved the permanency plan of reunification if L.R. successfully completed her treatment plan within a reasonable time and reunification was found to be in the child’s best interest. ¶5 In April 2011, the Department filed a petition to terminate L.R.’s parental rights to Q.R.K. The District Court denied that petition, citing L.R.’s progress, as well as her persistence in attending counseling sessions, parent-coaching sessions and court hearings. Instead, the court approved a phase- two treatment plan, which stated in part that “[f]or reunification to occur, [L.R.] will need to demonstrate consistently that she can positively and safely parent [Q.R.K.] without any coaching or support.” ¶6 DPHHS filed a second petition to terminate L.R.’s parental rights in July 2012. The Department alleged that L.R. had failed to comply with the phase-two treatment plan and that the plan had not been successful. The District Court held a termination hearing on the matter over a period of three days in September 2012. ¶7 During the hearing, the District Court heard testimony from fourteen different witnesses, including mental health counselors, social workers, and four psychologists who had evaluated both L.R. and Q.R.K. Although the psychologists generally commended L.R. for her dedication to and love for Q.R.K., they also testified that L.R. lacked basic parenting skills and that she could not adequately care for a high needs child with reactive attachment disorder. One psychologist stated that children with RAD require high levels of structure, consistency and clear feedback. L.R. was unable to provide such support due to her mental illness, but another psychologist testified that Q.R.K.’s foster parents had 4 been able to do so. A third psychologist worried that Q.R.K. was “aging out” of the window in which attachment therapy, a means to address RAD, still would be effective. ¶8 The court also heard testimony from counselors who had provided hundreds of hours of parenting lessons to L.R. These counselors testified that L.R. could not provide the parental care that Q.R.K. needed, that any progress L.R. had made in her parenting skills was inconsistent at best, and that this was unlikely to change within a reasonable time. ¶9 After the termination hearing, the District Court entered findings of fact and conclusions of law. The court found that Q.R.K. could not successfully be parented by someone with “marginal or erratic skills” and that “even after nearly three years of parenting coaching, none of the professionals working with [Q.R.K.] have recommended even starting unsupervised visitation with her mother” because L.R. lacked the skills to parent Q.R.K. adequately. For those reasons, the court found that “L.R. has failed to fully comply with the . . . Phase Two Treatment Plan or, more likely, she is unable to comply” and that, in any event, the treatment plan had been unsuccessful. The court further found that L.R. would not be able to acquire the skills necessary to adequately parent Q.R.K. within a reasonable time. ¶10 Although the District Court acknowledged that L.R. loved Q.R.K., it determined that it had to give “primary consideration to [Q.R.K’s] needs” and that Q.R.K. could no longer wait for L.R. to improve her parenting skills. Finding that it was in Q.R.K’s best interests for the court to terminate L.R.’s parental rights and award custody to the Department so that Q.R.K. could be adopted by her foster family, the District Court ordered that L.R.’s parental rights be terminated pursuant to § 41-3-609(1)(f), MCA. ¶11 L.R. appeals. She contends that the District Court erred in finding that she had failed to comply with her treatment plan because she successfully had addressed her chemical dependency problems and because she had made progress in developing her parenting skills and addressing her mental health 5 issues. L.R. also asserted that the court erred by finding it was in Q.R.K.’s best interests to terminate her parental rights. ¶12 We review a district court’s order terminating parental rights for an abuse of discretion. In re J.M., 2009 MT 332, ¶ 12, 353 Mont. 64, 218 P.3d 1213. A district court abuses its discretion when it “acts arbitrarily without conscientious judgment or exceeds the bounds of reason.” In re J.C., 2008 MT 127, ¶ 33, 343 Mont. 30, 183 P.3d 22. We review the trial court’s findings of fact for clear error and its conclusions of law for correctness. In re D.B., 2008 MT 272, ¶ 13, 345 Mont. 225, 190 P.3d 1072. ¶13 A court may terminate parental rights 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.” Section 41-3-609(1)(f), MCA. Although a natural parent’s right to “care and custody of a child is a fundamental liberty interest,” parental rights may be terminated when a parent only partially complies with a treatment plan and fails to improve her parenting skills as required by her treatment plan. In re D.H., 2001 MT 200, ¶¶ 14, 29-30, 306 Mont. 278, 33 P.3d 616; see also In re C.H., 2003 MT 308, ¶¶ 27-28, 318 Mont. 208, 79 P.3d 822. ¶14 Although L.R. may have complied with her treatment plan’s terms regarding chemical dependency, L.R. never was able to demonstrate consistently that she could “positively and safely parent [Q.R.K.] without any coaching or support,” as required by her treatment plan. The court correctly concluded that Q.R.K. did not have to wait for her mother to improve her parenting, as Q.R.K.’s need for stability is “paramount.” In re Custody & Parental Rights of D.A., 2008 MT 247, ¶ 26, 344 Mont. 513, 189 P.3d 631. 6 ¶15 The District Court also found that the conditions rendering L.R. unfit were unlikely to change within a reasonable time, based primarily on L.R.’s inability to demonstrate that she adequately could care for Q.R.K.’s special needs, despite three years of coaching on her parenting skills. The record supports this finding. ¶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 made adequate findings of fact that find ample support in the record and its legal analysis correctly applied settled Montana law. Based on this record, we hold that L.R. has failed to establish that the District Court abused its discretion in terminating her parental rights. ¶17 Affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ BRIAN MORRIS | May 28, 2013 |
54150e97-2b84-4fd2-b80d-e1e66ea7d699 | State v. King | 2013 MT 139 | DA 12-0103 | Montana | Montana Supreme Court | DA 12-0103 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 139 STATE OF MONTANA, Plaintiff and Appellee, v. NATHAN GERALD KING, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDC 10-505(b) Honorable Julie Macek, Presiding Judge COUNSEL OF RECORD: For Appellant: Nancy G. Schwartz, NG Schwartz Law, PLLC; Billings, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan Mark Krauss, Assistant Attorney General; Helena, Montana John Parker, Cascade County Attorney, Susan Weber, Deputy County Attorney, Great Falls, Montana Submitted on Briefs: April 10, 2013 Decided: May 28, 2013 Filed: __________________________________________ Clerk May 28 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Nathan King (King) appeals from an order of the Eighth Judicial District Court, Cascade County, entered after a jury convicted him of one count of deliberate homicide and one count of aggravated assault. We affirm. ¶2 We address the following issues for review: ¶3 Issue One: Did the District Court err by excluding evidence of justifiable use of force as a defense to the charge of deliberate homicide? ¶4 Issue Two: Did the District Court err by excluding evidence of Terrey’s prior mental health history, suicide attempts and cutting behavior, and did this exclusion violate King’s Sixth Amendment right to compulsory process and confrontation and Fourteenth Amendment right to due process?1 FACTUAL AND PROCEDURAL BACKGROUND ¶5 In the afternoon of December 2, 2010, law enforcement was dispatched to a trailer park in Great Falls, Montana, regarding a report of disturbance possibly involving a homicide. Upon arrival at the trailer park, officers made contact with a young woman named 1 The State also raises the issue of whether King waived any challenge to his conviction for aggravated assault by failing to assert or adequately brief any grounds for reversal thereof. King responds that the “viability of [his] defense as to [the aggravated assault charge] rested upon a finding that [he] was not criminally culpable for the actions set forth in [the deliberate homicide charge].” He argues that if we find in his favor with respect to his challenges to his deliberate homicide conviction, we should remand the case for a new trial on both the deliberate homicide charge and the aggravated assault charge. King admits, however, that he did not make a separate argument challenging his aggravated assault conviction. He concedes that if we do not find in his favor with respect to his challenges to his deliberate homicide conviction, he has no basis to challenge the aggravated assault conviction. We do not find for King and, accordingly, do not address any argument pertaining to his aggravated assault conviction. 3 Sara Thompson (Thompson). Thompson had blood on her face and immediately informed the officers that her roommate, Christopher Terrey (Terrey), was in her trailer and in need of medical assistance. ¶6 The officers entered Thompson’s trailer, which was in complete disarray and had broken items strewn about. They quickly discovered Terrey, who was lying face down in a large pool of blood in the doorway of a bedroom. There was a broken blade of a knife underneath his body and a knife handle nearby. An officer determined Terrey was dead, and an autopsy later revealed the cause of death was blood loss as a result of a knife wound to his left carotid artery. There were several other scrapes and wounds on his body. ¶7 Meanwhile, law enforcement pursued a male suspect who was seen fleeing from the trailer when the officers first arrived. The suspect was unresponsive to the officers’ commands and was eventually tased and transported to jail. The suspect was identified as King. ¶8 Police interviews and trial testimony revealed a more detailed picture of the events of December 2, 2010. Thompson lived in the trailer with her boyfriend, King, their five-year- old daughter, Zoe, and their friend and co-worker, Terrey. At the time of the incident, King was 26 years old, Thompson was 25 years old, and Terrey was 20 years old. King, Thompson, and Terrey were CNAs at Park Place Healthcare, and all three worked the night shift that began December 1, 2010, and ended the morning of December 2, 2010, at approximately 6:45 am. After returning home from work on the morning of December 2, 4 Thompson went to her bedroom to sleep while King and Terrey stayed up to drink and play video games. ¶9 Over the next few hours, King and Terrey continued to drink, play video games, and wrestle with each other. At two different times, King and Terrey entered Thompson’s bedroom. Terrey got into Thompson’s bed and attempted to cuddle her; King told Thompson to “just go with it.” Thompson testified the behavior was strange and made her feel very uncomfortable. ¶10 Thompson became increasingly irritated at King and Terrey and frustrated that she was not able to sleep. After King and Terrey entered her bedroom the second time, Thompson decided to drive to a friend’s home. As Thompson was leaving her trailer, Terrey’s mother, Bonita, and cousin, Lyle, arrived. Bonita and Lyle stayed for a short period of time, briefly talking with Terrey and King, and then left. Thompson stayed at her friend’s home for just over an hour and then returned to her trailer. ¶11 During the roughly one-hour time period after Bonita and Lyle left Thompson’s trailer and before Thompson returned, Terrey and King were the only two people in the trailer. King’s version of events were provided in a recorded statement he made to law enforcement on February 4, 2011, which was shown to the jury during his trial. In the recording, King stated that after Bonita and Lyle left, King attempted to go to sleep on the couch in the living room. After hearing noises in the kitchen, King got up and found Terrey in a very agitated state. According to King, Terrey was upset and asked King if Thompson was going to be mad at them. Despite King assuring him that she would not, King said Terrey became very 5 emotional, told King that he was going to kill himself, and then grabbed a knife out of the butcher’s block. King maintained he was aware that Terrey had attempted suicide in the past and had marks on his arm from cutting himself. ¶12 King said he began yelling at Terrey to drop the knife. A struggle ensued during which he and Terrey fell to ground at least two times. King eventually grabbed a knife and held it to Terrey’s neck threatening to cut his head off. At some point, King’s knee was cut, and King allegedly began to fear for his own safety. King said he grabbed Terrey’s arms in a shoulder hold from behind and the two slipped on the linoleum and fell to the floor. King noticed Terrey immediately relax. According to King, the next thing he remembered was Thompson entering the trailer. ¶13 Thompson testified that when she arrived home she heard a bang. She entered the trailer and saw the Christmas tree and its decorations scattered all over the living room floor. Thompson noticed King in the kitchen, who looked “shock[ed], blank,” and had dried blood all over his bare chest. After Thompson asked King where Terrey was, Thompson testified that King replied, “[It] wasn’t supposed to be like this.” Thompson walked toward Terrey’s bedroom and saw Terrey lying flat down on his stomach with his head in a pool of blood. ¶14 Thompson proceeded to assure King that they “could fix this,” while backing into the bathroom. King followed her into the bathroom, put his hands around her throat, and began throwing her around. King grabbed Thompson’s phone from her and threw it. Thompson testified she somehow ended up in Terrey’s room on top of Terrey’s body. Terrey made a “death gurgle,” but was otherwise unresponsive. King proceeded to choke Thompson, slam 6 her into a wall, gouge her eye, and knock two teeth out of her mouth. Finally, Thompson managed to run to her vehicle, with King chasing behind her. Thompson drove to a nearby house and yelled for a neighbor to call 911. Law enforcement arrived on scene and arrested King. King was charged with one count of felony deliberate homicide of Terrey and one count of felony aggravated assault of Thompson. ¶15 Prior to trial, King filed a notice of intent to use the defense of justifiable use of force “in defense of his person and to try to prevent Christopher Terrey from committing suicide.” The State moved to deny King from asserting both theories of justifiable use of force—self- defense and justifiable use of force in defense of another—arguing an inherent conflict in doing so. The State also moved to limit the use of character evidence of Terrey, specifically as to the admissibility of Terrey’s mental health records. In response, King asserted that Terrey’s mental health records show a long mental health history with at least two suicide attempts as well as cutting behaviors. King maintained the records were relevant as to whether Terrey was attempting to commit suicide at the time of the incident. ¶16 The District Court held a hearing on the motions on August 24, 2011. The court granted the State’s motion regarding King’s affirmative defenses and prohibited King from arguing or presenting the legal theory of justifiable use of force in defense of another at trial. The court determined the defense only applies when the defendant reasonably believes the force is necessary to prevent imminent death or serious bodily harm to a third party. Accordingly, the court concluded that as a matter of law the defense was not available under 7 the facts and argument King presented—that King used deadly force against Terrey in order to prevent Terrey from killing himself. ¶17 The court did not preclude King from presenting a self-defense claim. The court pointed out, however, that it had been “provided with extremely limited information as to the factual basis” for such a defense, and that the factual theory presented by both the State and King was an accident theory. Noting that an accident theory is inconsistent with a justifiable use of force theory, the court stated there would have to be sufficient facts in the record to support the latter theory before the court would instruct the jury on it at trial. ¶18 With respect to the State’s motion to limit character evidence of Terrey, the court provided a detailed analysis of admissibility under M. R. Evid. 404(a), 404(c), and 405. The court concluded that any evidence regarding specific prior instances of suicide attempts or cutting in order to prove that it was more likely that Terrey was attempting suicide or cutting himself on the date of the incident was prohibited. However, the court determined that under the second exception provided in M. R. Evid. 405(b), such evidence was admissible as it related to the reasonableness of force used by King in self-defense so long as there were sufficient facts in the record to indicate that (1) King knowingly or purposely caused the death of Terrey; (2) King claimed it was necessary for him to use deadly force against Terrey; and (3) the specific instances of suicide attempts or cutting that were in fact known to King at the time of the incident would be relevant and admissible to prove that the level of force King used was reasonable. 8 ¶19 A jury trial was held September 12-23, 2011. King never admitted that he committed the crime of deliberate homicide, and he did not pursue a claim of self-defense at trial. Rather, King presented a defense of lack of intent and argued that Terrey’s death was an accident. On September 23, 2011, King was found guilty of one count of deliberate homicide and one count of aggravated assault. For the offense of deliberate homicide, the District Court sentenced King to 100 years in the Montana State Prison with a parole eligibility restriction of 25 years. For the offense of aggravated assault, the District Court sentenced King to 20 years in the Montana State Prison with a parole eligibility restriction of the entire 20 years. The two sentences were ordered to run consecutively. King appeals. STANDARD OF REVIEW ¶20 A district court’s decision regarding the admissibility of evidence will not be reversed absent an abuse of discretion. State v. Buslayev, 2013 MT 88, ¶ 9, 369 Mont. 428, 299 P.3d 324. A district court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811. In exercising its discretion, however, the district court is bound by the Rules of Evidence or applicable statutes. Derbyshire, ¶ 19. Therefore, to the extent the district court’s ruling is based on an interpretation of an evidentiary rule or statute, our review is de novo. Derbyshire, ¶ 19. ¶21 The Court exercises plenary review of constitutional issues. State v. Hauer, 2012 MT 120, ¶ 23, 365 Mont. 184, 279 P.3d 149. DISCUSSION 9 ¶22 Issue One: Did the District Court err by excluding evidence of justifiable use of force as a defense to the charge of deliberate homicide? ¶23 King argues the District Court prohibited him from presenting evidence supporting a justifiable use of force defense on the basis that it was inconsistent with his accident defense. He cites several cases that stand for the proposition that “the mere fact” that two defenses are inconsistent does not justify barring the defendant from presenting both. ¶24 Contrary to King’s assertion, however, the District Court did not preclude a self- defense or justifiable use of force in defense of another claim for “the mere fact” that they were inconsistent with an accident defense. As already explained, there was nothing in the District Court’s pretrial order that prevented King from raising a self-defense claim. The order only provided that prior to a jury instruction on self-defense, there would need to be “sufficient facts in the record to find that although the defendant purposely or knowingly caused the death of another he was justified in doing so because he reasonably believed that the use of deadly force was necessary to prevent imminent death or serious bodily harm to himself . . . .” King maintains even this requirement was in error, arguing that a defendant should not be forced to concede that he acted purposely or knowingly before he is entitled to a jury instruction on self-defense. ¶25 A district court’s discretion regarding jury instructions is broad, but is restricted by the overriding principle that jury instructions must fully and fairly instruct the jury regarding the applicable law. State v. Daniels, 2011 MT 278, ¶ 38, 362 Mont. 426, 265 P.3d 623. A district court must only instruct the jury on theories and issues that are supported by evidence 10 presented at trial. Daniels, ¶ 42. Section 45-3-102, MCA, governs the theory of justifiable use of force and states: A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the conduct is necessary for self-defense or the defense of another against the other person’s imminent use of unlawful force. However, the person is justified in the use of force likely to cause death or serious bodily harm only if the person reasonably believes that the force is necessary to prevent imminent death or serious bodily harm to the person or another or to prevent the commission of a forcible felony. ¶26 Section 45-3-115, MCA, further provides that justifiable use of force is an affirmative defense, “which we have defined as ‘one that admits the doing of the act charged, but seeks to justify, excuse or mitigate it.’” Daniels, ¶ 15 (quoting State v. Nicholls, 200 Mont. 144, 150, 649 P.2d 1346, 1350 (1982)). The act charged in this case was deliberate homicide under § 45-5-102(1)(a)(2009), MCA, which provides that the accused “purposely or knowingly caus[ed] the death of another human being.” Therefore, as we have previously stated, a defendant who relies upon the defense of justifiable use of force concedes that he acted purposely or knowingly. State v. Nick, 2009 MT 174, ¶ 13, 350 Mont. 533, 208 P.3d 864 (citing State v. Houle, 1998 MT 235, ¶ 15, 291 Mont. 95, 966 P.2d 147; State v. Sunday, 187 Mont. 292, 306, 609 P.2d 1188, 1197 (1980)). Given this, there was no error in the District Court’s order requiring evidence that King purposely or knowingly caused Terrey’s death before instructing the jury on self-defense. ¶27 With respect to justifiable use of force in defense of another, the District Court prohibited King from presenting the defense because it determined as a matter of law that the 11 defense was not available in a situation involving only two people. The District Court dissected § 45-3-102, MCA, and reasoned that defense of another must include three people: the defendant, the aggressor, and the third party who requires protection of the defendant from the aggressor. The court therefore concluded that King’s act of killing Terrey could not be legally justified on the grounds that King had to use deadly force against Terrey to keep Terrey from killing himself. ¶28 King challenges this ruling, and asserts that the availability of using force in the defense of others who are attempting to commit suicide is “not necessarily illogical and is actually codified in other states.” King cites § 161.205(4) of the Oregon Revised Statutes, which states that “[a] person acting under a reasonable belief that another person is about to commit suicide or to inflict serious physical self-injury may use physical force upon that person to the extent that the person reasonably believes it necessary to thwart the result.” While this statute may provide a defense for a person who uses force in attempt to prevent another’s suicide, and thereby demonstrate that such a defense is “not necessarily illogical,” it is comprised of completely different language than § 45-3-102, MCA, and cannot serve as guidance in our interpretation of our own statute. It is notable that the following section in the O.R.S.—§ 161.205(5)—provides that a person may use physical force upon another in self-defense or in defense of a third person. Oregon law has thus provided a specific defense for a person using force to prevent another from committing suicide, and a separate, more general defense for a person using force against another to protect oneself or a third party. 12 ¶29 In construing a statute, this Court’s job 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.” Section 1-2-101, MCA. We look first 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. When the language is clear and unambiguous, the statute speaks for itself and we will go no further. In re D.B.J., ¶ 40. Determining the plain meaning requires that we logically and reasonably interpret language by giving words their usual and ordinary meaning. In re D.B.J., ¶ 40. ¶30 As set forth above, § 45-3-102, MCA, has two parts. The first provides that “[a] person is justified in the use of force . . . against another when and to the extent that the person reasonably believes that the conduct is necessary for self-defense or the defense of another against the other person’s imminent use of unlawful force.” This language makes a clear distinction between the person who is being defended and “the other” person who presents imminent use of unlawful force. A defense of another claim under this portion of the statute would thus require three people’s involvement. ¶31 The second part of § 45-3-102, MCA, provides that “the person is justified in the use of force likely to cause death or serious bodily harm only if the person reasonably believes that the force is necessary to prevent imminent death or serious bodily harm to the person or another . . . .” King argues “another” may refer to the aggressor. However, considering § 45-3-102, MCA, as a whole, it is only logical that the three parties referred to in the first part of the statute are the same parties referred to in the second part. The purpose of the second part of § 45-3-102, MCA, is to provide the same defense as in the first—justifiable use of 13 force—just applied to a more serious situation involving deadly force or force likely to cause serious injury. There is nothing to indicate that the parties referred to are any different than those in the first part of the statute. ¶32 King’s argument that § 45-3-102, MCA, provides a defense for a person who reasonably believes that deadly force against another is necessary to prevent that person from killing himself is illogical. If the legislature intended justifiable use of force in defense of another to be available to a person attempting to prevent another from committing suicide, it could have expressly included such a defense and articulated the type of force allowed, as seen in § 161.205(4), O.R.S. There, the legislature notably limited the extent of force allowed to that which is necessary to “thwart the result.” It is clear that using deadly force to prevent someone from killing himself would not “thwart the result.” Our legislature did not include any comparable defense, and until it decides to do so we will not insert one. ¶33 In sum, a logical interpretation of § 45-3-102, MCA, is that justifiable use of force in defense of another involves three parties: the defendant, the person being defended, and the aggressor. There is nothing in the plain language of the statute, nor any authority provided to this Court, to suggest that the defense applies to a situation involving only two people. We therefore determine the District Court correctly interpreted § 45-3-102, MCA, and did not abuse its discretion in excluding evidence of justifiable use of force in defense of another. ¶34 Issue Two: Did the District Court err by excluding evidence of Terrey’s prior mental health history, suicide attempts and cutting behavior, and did this exclusion violate King’s 14 Sixth Amendment right to compulsory process and confrontation and Fourteenth Amendment right to due process? ¶35 King argues evidence of Terrey’s mental health history, including suicide attempts and cutting behavior, should have been admitted as “reverse 404(b) evidence.” The District Court’s failure to do so, King maintains, denied him a meaningful opportunity to present a complete defense and was a violation of his Sixth and Fourteenth Amendment rights. ¶36 The State counters that King failed to preserve these issues on appeal and therefore they should be dismissed. King concedes that he did not raise a “reverse 404(b)” argument before the District Court, but maintains it is nonetheless preserved under M. R. Evid. 103. King contends that M. R. Evid. 103(a)(2) provides a different standard for the preservation of error related to the exclusion of evidence, and that “King did all he needed to do by providing the [D]istrict [C]ourt with an offer of proof as to the evidence he wanted to admit.” ¶37 Montana Rule of Evidence 103 provides in relevant part: (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . (2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. The reason for M. R. Evid. 103(a)(2) “is to require that if evidence is excluded there must be an offer of proof so that neither the trial court nor this Court has to speculate concerning what the evidence would have been.” In re O.A.W., 2007 MT 13, ¶ 51, 335 Mont. 304, 153 P.3d 6. An offer of proof allows counsel the ability to get evidence on the record where the 15 court determines that it should be excluded. State v. Miller, 231 Mont. 497, 508, 757 P.2d 1275, 1282 (1988). An offer of proof should be specific as to the facts to be proven. Miller, 231 Mont. at 508, 757 P.2d at 1282. A trial court cannot commit error without the arguing party informing the court that a specific course of action is legally improper. Miller, 231 Mont. at 508, 757 P.2d at 1282. ¶38 At the August 24, 2011 motions hearing, the District Court required that King file Terrey’s mental health records for in camera inspection and to highlight or flag the specific portion of the records that King asserted should be admitted. In its subsequent order, the District Court pointed out that King filed approximately one hundred pages of medical records without any citation to the specific portions King contended were relevant. The court noted that as a result, there was “lack of a specific record based offer of proof.” Furthermore, King never argued to the District Court that the records were “reverse 404(b) evidence,” as he argues now, and the District Court’s rulings on the admissibility of the evidence were thus based only on its analyses under M. R. Evid. 404(a), 404(c), and 405. We have stated numerous times that we will not fault a district court where it was not given an opportunity to correct itself. In re B.I., 2009 MT 350, ¶ 16, 353 Mont. 183, 218 P.3d 1235. The District Court was not asked to determine whether the records were admissible as “reverse 404(b) evidence,” and we will not now fault it for refusing to admit them as such. In addition to King’s failure to properly preserve his “reverse 404(b)” argument, King has not referenced any place in the record where he objected on constitutional grounds to the exclusion of the evidence. 16 ¶39 This Court ordinarily does not consider issues raised for the first time on appeal. State v. Torres, 2013 MT 101, ¶ 37, 369 Mont. 516, ___ P.3d ___. We may, however, review a claimed error under the plain error doctrine if the appellant: (1) show[s] that the claimed error implicates a fundamental right and (2) ‘firmly convince[s]’ this Court that failure to review the claimed error would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial or proceedings, or compromise the integrity of the judicial process. Torres, ¶ 37. The decision to invoke plain error review is a discretionary one that is used sparingly, on a case-by-case basis, according to narrow circumstances, and by considering the totality of the case’s circumstances. State v. Mitchell, 2012 MT 227, ¶ 10, 366 Mont. 379, 286 P.3d 1196. “‘[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.’” Mitchell, ¶ 10. ¶40 In the case at hand, King has not specifically requested that we invoke the plain error doctrine. King asserts the claimed error denied him of his constitutionally protected right to present a defense, but he has not shown us how a failure to review the claimed error 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. In his reply brief, he argues that a statement made by the prosecutor in closing argument demonstrates the fundamentally unfair nature that resulted from the exclusion of evidence. Aside from the fact that we find his argument unpersuasive, and that King still did not explicitly request that we invoke the plain error doctrine, we have said before that we will not apply the plain error 17 doctrine when it was raised for the first time in a reply brief. State v. Raugust, 2000 MT 146, ¶ 19, 300 Mont. 54, 3 P.3d 115. We therefore decline to exercise plain error review. CONCLUSION ¶41 For the reasons stated above, we affirm the District Court’s judgment. ¶42 Affirmed. /S/ MICHAEL E WHEAT We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ JIM RICE /S/ BRIAN MORRIS | May 28, 2013 |
411ae269-b9a0-49da-9dcd-c8edef7d5486 | Bailey v. State Farm et al. | 2013 MT 119 | DA 12-0247 | Montana | Montana Supreme Court | DA 12-0247 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 119 BRENDA BAILEY AND J. STANLEY BAILEY, JR., Plaintiffs and Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, MARK OLSON AND DOES 1-3, Defendants and Appellees. APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Glacier, Cause No. DV-09-18 Honorable Laurie McKinnon, Presiding Judge COUNSEL OF RECORD: For Appellant: Michael J. George, Lucero & George, L.L.P., Great Falls, Montana For Appellee: Robert F. James, Jordan Y. Crosby, Ugrin, Alexander, Zadick & Higgins, P.C., Great Falls, Montana Submitted on Briefs: February 27, 2013 Decided: May 2, 2013 Filed: __________________________________________ Clerk May 2 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Brenda Bailey and J. Stanley Bailey, Jr. (the Baileys) appeal from an order of the Ninth Judicial District Court, Glacier County, granting summary judgment to State Farm and Mark Olson (Olson) on the Baileys’ claims that State Farm and Olson negligently failed to secure underinsured motorist (UIM) coverage for the Baileys. We reverse the District Court’s entry of summary judgment in favor of State Farm and Olson, and remand for further proceedings. ISSUES ¶2 The Baileys raise the following two issues on appeal: ¶3 1. Did the District Court err in granting summary judgment when it found no genuine issues of material fact with respect to the duty of State Farm and Olson to procure UIM coverage for the Baileys? ¶4 2. Did the District Court err in granting summary judgment by failing to recognize and impose a duty arising in negligence beyond a duty to procure requested coverage? FACTUAL AND PROCEDURAL BACKGROUND ¶5 On October 19, 2006, a drunk driver crossed the highway centerline and collided head-on with the Baileys’ vehicle. The Baileys sustained very serious injuries in the accident. Stan was flown to Harborview Medical Center in Seattle and remained a patient there for five months. Brenda spent a significant amount of time hospitalized in Kalispell and Cut Bank. Brenda remains wheelchair bound as a result of her injuries. The Baileys incurred medical expenses in excess of $1,000,000. 3 ¶6 The Baileys moved from Oregon to East Glacier, Montana, in March 1998. The Baileys had been State Farm customers for many years. On April 3, 1998, the Baileys went to the Mark Olson State Farm Agency in Cut Bank, Montana, to transfer their Oregon State Farm policy to Montana. Insurance agent Nola Peterson Softich (Softich) assisted the Baileys. The Baileys specifically recalled presenting their Oregon State Farm insurance cards to Softich and requesting that the same coverage they carried in Oregon be transferred to Montana. The Baileys also maintain that they requested full coverage. ¶7 Softich completed a computerized insurance application for each of the Baileys’ two vehicles. Each application listed twelve types of coverage and displayed a “Yes” or “No” next to each coverage to indicate whether that coverage was selected. The State Farm policies sold to the Baileys in Montana contained liability coverage limits of $250,000 per person and $500,000 per occurrence for bodily injury, $100,000 for property damage liability, $5,000 in medical payments coverage, and uninsured motorist (UM) coverage limits of $100,000 per person and $300,000 per occurrence. On both applications, Softich entered a “No” next to the UIM coverage. After Softich filled out the applications, Stan signed both applications. The application contained the following language directly above the signature line: I apply for the insurance indicated and state that (1) I have read this application, (2) my statements on this application are correct, (3) statements made on any other applications on this date for automobile insurance with this company are correct and are made part of this application, (4) I am the sole owner of the described vehicle except as otherwise stated, and (5) the limits and coverages were selected by me. 4 ¶8 Stan testified in his deposition that he typically did not read any insurance documents because he relied on his agent to provide him with the important information. Brenda recalled receiving insurance cards from State Farm, but did not recall reviewing any policies or other information from State Farm. State Farm and Olson maintained that the Baileys received new insurance cards and renewal notices listing the various coverages twice every year. ¶9 Although Softich had no independent recollection of her initial interaction with the Baileys, she testified that it was her habit and practice to always review the “ACHUW” coverages with new customers. “ACHUW” stands for: A – liability; C – medical payment; H – emergency towing; U – uninsured motorist; and W – underinsured motorist. Softich claimed that UIM coverage must have been offered to the Baileys. Softich also testified that she never advised customers to lower their UM or UIM coverage. Olson admitted that he did not know whether the Baileys were offered UIM coverage, but his staff is supposed to go through every coverage. The Baileys had no specific recollection of whether the “ACHUW” coverages were discussed when they met with Softich. ¶10 It is undisputed that the Baileys’ State Farm automobile insurance policy obtained in Montana did not match their previous policy from Oregon. The Baileys’ Oregon policies provided the following coverages: (1) bodily injury liability, $300,000 per person/$500,000 per occurrence; (2) property damage, $100,000; (3) personal injury protection (analogous to medical payments coverage) $100,000; (4) UM, $300,000 per person/$500,000 per occurrence; and (5) UIM, $300,000 per person/$500,000 per 5 occurrence. Notably, Oregon law mandates the UM coverage must include UIM protection. See Or. Rev. Stat. § 742.502(2)(a). In Oregon, State Farm combines the UM and UIM coverages and denotes both as a single “U” coverage. Olson and his staff admitted that before becoming involved in this litigation, they were unaware that “U” was used in Oregon to represent both UM and UIM coverage. ¶11 In May 2005, Stan called an employee of Olson, Jeannie Fetters (Fetters), on the telephone to discuss his State Farm policy. Fetters made note of the conversation in her records and recalled that Stan was interested in changing the deductibles on his collision coverage and removing his emergency road service coverage. During their conversation, Fetters reviewed his policy and mentioned to Stan that he did not have UIM coverage. Fetters admitted that the portion of the phone conversation dealing with UIM coverage lasted “maybe 30, 45 seconds, or a minute” and she did not discuss what UIM coverage entailed. Fetters testified that Stan told her that he was not interested and he only wanted to make the requested changes. ¶12 Following the automobile accident that occurred on October 19, 2006, the Baileys learned that they had only $5,000 in medical payments coverage and did not have any UIM coverage. In fact, the Baileys testified that they were unaware what UIM coverage was until after the accident. The drunk driver who caused the accident carried the statutory minimum automobile liability insurance limits. The Baileys’ medical expenses and other damages far exceeded the liability coverage of the drunk driver. ¶13 On May 20, 2009, the Baileys filed their complaint against State Farm and Olson alleging that Olson was negligent in failing to obtain the appropriate insurance coverages. 6 The Baileys requested declaratory relief and asked the District Court to reform the insurance policy to include UIM coverage in the same amount as their liability coverage. The Baileys also alleged that Olson breached his fiduciary duty by failing to secure UIM coverage and failing to advise them of the need to obtain UIM coverage. Lastly, the Baileys alleged that Olson’s actions constituted actual malice sufficient to support an award of punitive damages. ¶14 State Farm and Olson filed an answer to the complaint, in which they posited various defenses. However, they did not initially raise the affirmative defense of comparative fault. See M. R. C. P. 8(c). State Farm and Olson later sought to amend their answer to interpose the defense of “contributory negligence” on the part of the Baileys. However, in light of the court’s subsequent entry of summary judgment for State Farm and Olson, it never addressed the merits of the motion to amend. ¶15 On January 13, 2012, State Farm and Olson filed a motion for summary judgment on all of the Baileys’ claims. State Farm and Olson argued they were entitled to judgment as a matter of law because the Baileys declined UIM coverage in their insurance application and signed the application that listed the coverage limits. State Farm and Olson contended that Stan also declined UIM coverage when Fetters pointed out to him that he did not have UIM coverage during a phone conversation in May 2005. Furthermore, State Farm and Olson maintained that they only owed the Baileys a duty to obtain coverage that was requested, and they did not breach this duty. State Farm and Olson also argued that they did not owe the Baileys a fiduciary duty. 7 ¶16 In response, the Baileys countered that summary judgment would be inappropriate because genuine issues of material fact remained regarding whether the Baileys were advised about UIM coverage. The Baileys argued that the extent of an insured’s obligation to read an insurance policy depends on what is reasonable under the circumstances of each case and therefore cannot be decided as a matter of law. The Baileys asserted that their request for the same coverage as they had in Oregon qualifies as a request for specific insurance, so Olson’s failure to obtain the requested insurance constitutes a breach of his duty. Though they acknowledge that this Court has not yet recognized a fiduciary relationship between an insurance agent and a client, the Baileys contend that the facts of their case support recognition of such a relationship. ¶17 On February 8, 2012, the District Court held oral argument on the motion for summary judgment. The District Court issued its order on March 19, 2012, granting summary judgment to State Farm and Olson. The District Court framed the issue in terms of whether the Baileys’ statements, which were not contained within the application for insurance, could vary or alter the insurer’s obligation to procure specific insurance. The District Court determined that the undisputed facts established that State Farm and Olson provided the specific insurance requested by the Baileys in the insurance application that Stan signed. The District Court reasoned that the Baileys’ request for the same insurance as they had in Oregon cannot be construed as a specific request for UIM coverage or medical payments coverage in excess of $5,000 because the written application for insurance contained different terms. After determining that existing Montana law does not impose a heightened duty on an insurance agent, the District Court 8 concluded that no fiduciary relationship existed. The Baileys appeal from the District Court’s entry of summary judgment in favor of State Farm and Olson. STANDARDS OF REVIEW ¶18 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; 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 ¶19 Did the District Court err in granting summary judgment when it found no genuine issues of material fact with respect to the duty of State Farm and Olson to procure UIM coverage for the Baileys? ¶20 Under Montana law, it is “well established that an insurance agent owes an absolute duty to obtain the insurance coverage which an insured directs the agent to procure.” Monroe v. Cogswell Agency, 2010 MT 134, ¶ 32, 356 Mont. 417, 234 P.3d 79; Fillinger v. Northwestern Agency, 283 Mont. 71, 83, 938 P.2d 1347, 1355 (1997); Lee v. Andrews, 204 Mont. 527, 532, 667 P.2d 919, 921 (1983); Gay v. Lavina State Bank, 61 Mont. 449, 458, 202 P. 753, 755 (1921). If an insurance agent is instructed to procure specific insurance and fails to do so, he is liable for damages suffered due to the absence of such insurance. Fillinger, 283 Mont. at 83, 938 P.2d at 1355; Lee, 204 Mont. at 532, 667 P.2d at 921; Gay, 61 Mont. at 458, 202 P. at 755. 9 ¶21 We have previously recognized that an insurance policy is a contract and is therefore subject to the applicable contract law of Montana. Fillinger, 283 Mont. at 77, 938 P.2d at 1351 (citing Universal Underwriters Ins. Co. v. State Farm Mut. Auto. Ins. Co., 166 Mont. 128, 135, 531 P.2d 668, 673 (1975)). “Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any rider, endorsement, or application which is a part of the policy.” Section 33-15-316, MCA. ¶22 While it is generally presumed that a person who executes a written contract knows its contents and assents to them, an insured does not have an absolute duty to read an insurance policy. Robertus v. Farmers Union Mut. Ins. Co., 2008 MT 207, ¶ 42, 344 Mont. 157, 189 P.3d 582; Thomas v. Northwestern Nat’l Ins. Co., 1998 MT 343, ¶ 28, 292 Mont. 357, 973 P.2d 804 (citing Fillinger, 283 Mont. at 78, 938 P.2d at 1352). Instead, “the extent of an insured’s obligation to read the policy depends upon what is reasonable under the facts and circumstances of each case.” Robertus, ¶ 42 (quoting Thomas, ¶ 27). The relationship between the insured and the insurance agent is an important factor to consider when examining the insured’s duty to read the insurance contract. Fillinger, 283 Mont. at 77-78, 938 P.2d at 1352-53. Once an insured informs an insurance agent of his insurance needs and the agent’s conduct permits a reasonable inference that the agent is highly skilled in this area, an insured is justified in relying on an insurance agent to obtain the coverage that the agent has represented he will obtain. Fillinger, 283 Mont. at 78, 938 P.2d at 1352 (citing Fiorentino v. Travelers Ins. Co., 448 F. Supp. 1364, 1369 (E.D. Pa. 1978)). The insured’s failure to read an insurance policy 10 does not operate as a bar to relief as a matter of law, but it may constitute comparative negligence. See Fillinger, 283 Mont. at 78, 938 P.2d at 1352 (citations omitted). ¶23 The District Court determined that State Farm and Olson met their initial burden of establishing that they provided the specific insurance requested by the Baileys in their application for insurance. The District Court relied on the fact that the insurance coverage requested in the insurance application was actually provided to the Baileys. Since Stan signed the application for insurance, the District Court reasoned that the Baileys’ request for the same insurance they had in Oregon could not be construed as a specific request for UIM coverage and medical payments coverage in excess of $5,000. The District Court applied the parol evidence rule and concluded that it was arguable whether the Baileys’ oral request for the same insurance they carried in Oregon would be admissible to alter the terms of a clear and unambiguous application and policy. The District Court also emphasized Softich’s uncontroverted testimony that it was her normal practice to explain the coverages to clients, and Fetter’s testimony that she later informed Stan that he lacked UIM coverage before the accident occurred. Ultimately, the District Court concluded that negligence could be decided as a matter of law and entered judgment in favor of State Farm and Olson. ¶24 In Featherston by & ex rel. Featherston v. Allstate Ins. Co., 875 P.2d 937 (Idaho 1994), the Idaho Supreme Court addressed the duty owed by an insurer to an insured when the insured transfers a policy and requests that the insurer procure the same coverage. The insured in Featherston contacted an Allstate agent, provided the agent with the declarations page of his Farmers Insurance policy, and requested a price quote 11 for the same coverage with Allstate. Featherston, 875 P.2d at 938. After receiving a price quote, the insured transferred his insurance policy to Allstate. Featherston, 875 P.2d at 938. The insured admitted that he never read the Allstate policy. Featherston, 875 P.2d at 938. More than five years after transferring to Allstate, a member of the insured’s family was injured in an accident with an underinsured driver and the insured learned that he had no UIM coverage. Featherston, 875 P.2d at 938-39. The Court determined that “[t]he scope of Allstate’s duty depends on what the agent was asked to provide.” Featherston, 875 P.2d at 940. It reversed the trial court’s entry of summary judgment in favor of the insurer, concluding that a genuine issue of material fact existed as to what coverage was requested and the consequent duty that arose as a result of that request. Featherston, 875 P.2d at 940-41. ¶25 Our review of the record here similarly demonstrates that genuine issues of material fact exist as to whether State Farm and Olson acted negligently in transferring the Baileys’ Oregon policy to Montana. It is undisputed that the Baileys directed Olson’s agent, Softich, to procure the same insurance coverage as they had in Oregon. It is also undisputed that the Baileys’ Montana State Farm policy that they obtained through Olson did not contain the same coverages and limits as their Oregon policy. The Montana policy contained very high liability and UM limits, but very low medical payment coverage and no UIM protection. Notably, none of the agents at Olson knew that Oregon combined UM and UIM coverage and designated such coverages using different letters. The Baileys posit that these differences between coverages caused Softich to mistakenly 12 omit UIM coverage, when, given her expertise, she should have known the states handled such coverages differently. ¶26 Softich had no specific recollection of what she discussed with the Baileys, but testified that it was her usual practice to go through and explain each coverage with a new client. However, Softich also testified that she would not advise clients to decrease their coverage limits. Absent some specific recollection about what was discussed and why the Baileys did not receive the same coverages and limits as they had in Oregon, a genuine issue of material fact exists as to why the discrepancies in coverage occurred when the Baileys transferred their State Farm policy to Montana. ¶27 We next turn to the District Court’s conclusion that evidence of the Baileys’ oral statements during the meeting with Softich are arguably barred by the parol evidence rule. Contrary to the District Court’s assertion, the Baileys’ oral request for matching coverage in Montana is not barred by the parol evidence rule. Extrinsic evidence may be considered “when a mistake or imperfection of the writing is put in issue by the pleadings” or “when the validity of the agreement is the fact in dispute.” Section 28-2-905(1)(a)-(b), MCA. The Baileys have put the validity of the insurance application at issue by representing that they did not fill it out or understand all of its terms, and the application did not contain the terms that they requested. Since an insurance agent has a duty to obtain the coverage requested by a client, the Baileys’ claims that they orally requested “full coverage” and the same exact coverage as they had in Oregon must necessarily be considered when examining whether their insurance agent breached her duty. Based on the evidence in the record, a jury could reasonably conclude that Softich 13 transcribed different terms into the application than what the Baileys requested. The Baileys have produced sufficient evidence to survive summary judgment. ¶28 Furthermore, the District Court misapprehended the effect of Stan’s signing of the application for insurance. The insurance application was an electronic form that Softich completed. Softich was the person who selected the coverages and limits when filling out the form. After Softich completed the form, she printed it and Stan signed it. Given the Baileys’ uncontroverted testimony that they requested the same coverage as they had in Oregon and requested “full coverage,” a fact question may exist as to whether the Baileys acted reasonably in relying upon the representations of Softich rather than reading the application for insurance and the policy.1 As noted above, however, the District Court never reached the question of whether State Farm and Olson may amend their answer to allege that the Baileys’ conduct should be compared to that of State Farm and Olson. This will be a determination for the District Court to make on remand. ¶29 The remaining issue is the phone conversation that occurred in May 2005. Fetters testified that it was a short conversation, but her notes indicate that she mentioned to Stan that he did not have UIM coverage. Stan testified that he was under the impression that he had the same coverage as he had in Oregon, and therefore did not need any additional coverage. Fetters admitted that she did not explain what UIM coverage was during this 1 The dissent incorrectly asserts that the Court is adopting a “new, broadly-stated, ‘no-read’ principle.” This assertion is completely unfounded. As our case law clearly establishes and as addressed in ¶ 22, the extent of an insured’s obligation to read the policy is dictated by what is reasonable under the particular facts and circumstances of each case. A determination of what is reasonable is, of course, a fact issue for resolution by a jury. Thus, we do not adopt a new principle; we merely follow the law. 14 phone conversation with Stan, and the Baileys maintained that they did not even know what UIM coverage was until after the accident. The parties’ varying accounts of the conversation further demonstrate the need to submit these factual issues to the jury. ¶30 Under the facts and circumstances of this case, State Farm and Olson have not met their “heavy burden of demonstrating, in a manner sufficient to exclude any real doubt,” that the Baileys did not request different insurance than what they received. Monroe, ¶ 32. Negligence actions typically involve questions of fact and ordinarily are not susceptible to summary judgment. Questions of fact can be determined as a matter of law only when reasonable minds cannot differ. Meloy v. Speedy Auto Glass, Inc., 2008 MT 122, ¶ 10, 342 Mont. 530, 182 P.3d 741; Henricksen v. State, 2004 MT 20, ¶ 19, 319 Mont. 307, 84 P.3d 38. In deciding a motion for summary judgment, all reasonable inferences must be drawn in favor of the non-moving party so that if there is any doubt as to the existence of a genuine issue of material fact, that doubt must be resolved in favor of the party opposing summary judgment. Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 38, 345 Mont. 12, 192 P.3d 186; Newbury v. State Farm Fire & Cas. Ins. Co., 2008 MT 156, ¶ 14, 343 Mont. 279, 184 P.3d 1021. Drawing all reasonable inferences in favor of the Baileys, we conclude that reasonable minds could differ concerning whether State Farm and Olson acted negligently when placing the Baileys’ coverage. Therefore, the District Court erred in entering summary judgment in favor of State Farm and Olson on Baileys’ negligence claims. ¶31 Did the District Court err in granting summary judgment by failing to recognize and impose a duty arising in negligence beyond a duty to procure requested coverage? 15 ¶32 Because we reverse the entry of summary judgment and remand for trial on the merits under the negligence theory asserted by the Baileys, we deem it unnecessary to the resolution of this case to determine whether these circumstances may also give rise to a heightened duty on the part of Olson. We therefore decline to address the Baileys’ second issue. CONCLUSION ¶33 For the foregoing reasons, we reverse the District Court’s grant of summary judgment and remand for further proceedings in accordance with this Opinion. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS Justice Jim Rice, dissenting. ¶34 In my view, the record establishes that the District Court correctly granted summary judgment to the Defendants. ¶35 “The party moving for summary judgment has the initial burden of proving that no genuine issues of material fact exist. . . . The burden then shifts to the non-moving party to prove by more than mere denial and speculation that a genuine issue of material fact 16 exists.” Brown & Brown of MT, Inc. v. Raty, 2012 MT 264, ¶ 17, 367 Mont. 67, 289 P.3d 156 (citing Myers v. Dee, 2011 MT 244, ¶ 10, 362 Mont. 178, 261 P.3d 1054). State Farm presented sufficient evidence to carry its initial burden, demonstrating from the record that it had obtained the insurance coverage the Baileys had requested. The Court’s analysis impliedly reaches that conclusion also. Opinion, ¶¶ 23, 25, 30. However, although Baileys demonstrated a genuine issue of material fact with regard to some of State Farm’s evidence, they failed to satisfy their burden to demonstrate a genuine issue as to the entirety of State Farm’s evidence, and thus failed to carry their burden. ¶36 State Farm presented the testimony of Nola Softich, who testified that it was her custom and practice to provide a new customer with the “goldenrod pamphlet,” which was “included with every packet” given to customers. This pamphlet described all the coverages available for purchase from State Farm. Softich always reviewed those coverages with the customer, including uninsured and underinsured motorist coverages. This is evidence of the standard procedure Softich would have followed when meeting with the Baileys on April 3, 1998. As the District Court noted, the Baileys offered no evidence to specifically refute Softich’s testimony that these coverages had been discussed. However, the Baileys did testify that they gave their insurance card to the agency and requested the same coverages as they had in Oregon. Softich testified that she has never advised an insured to decrease uninsured or underinsured coverage. This evidence about the parties’ initial conversation reflects a genuine issue of fact about what understanding arose from that conversation. If there was no further evidence, denial of summary judgment would be appropriate. 17 ¶37 Based on that initial conversation, Softich then prepared two applications for coverage on Baileys’ two vehicles. The applications were one-page printed forms that listed 12 coverages in column form. The heading of this column was “Coverages Available.” Next to the column of available coverages was another column with the heading “Selected?” Under this heading, a “Yes” or “No” was entered next to each coverage indicating whether or not the applicant had selected that coverage. On both applications, the word “No” appeared next to the coverage for underinsured motor vehicle. However, the coverages were not identical on each application. A different list of coverages was selected for each vehicle, although UIM coverage was selected for neither vehicle. At the bottom of each application, as the Court notes in ¶ 7 of the Opinion, the form stated that the applicant was applying “for the insurance indicated,” that the applicant had read the form and the statements were correct, and that the applicant had personally selected the coverages. Stan Bailey signed both applications. These documents are the result of the parties’ initial conversation on April 3, 1998. ¶38 The Court cites the principle that an insured does not have an absolute duty to read an insurance policy. Opinion, ¶ 22. On the basis of this principle, the Court apparently excuses any obligation on the part of the Baileys to read or be accountable for the signed applications and statements made therein. However, we have applied the “no read” principle only in cases where an insurer made changes within the body of a policy and the insured was not otherwise notified of the change. Robertus, ¶ 42; Thomas, ¶¶ 26-27; Fillinger, 283 Mont. at 78-79, 938 P.2d at 1352. Never before have we held that an insurance applicant has no obligation to read a one-page application form that plainly 18 lists coverage choices and on which the applicant certifies that he has read the form and made the coverage choices as indicated. The Court cites no authority for this principle. The Court also holds that Baileys’ statement about wanting the same coverage as they had in Oregon is not barred by the parol evidence rule because, by merely alleging they did not understand its terms, the Baileys have made a proper challenge to “the validity of the insurance application” prepared by Softich. Opinion, ¶ 27. Such a weak factual assertion should not be permitted to create a genuine issue of fact about the signed applications. “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.’” Estate of Willson v. Addison, 2011 MT 179, ¶ 14, 361 Mont. 269, 258 P.3d 410. “Generally speaking, once an agreement is reduced to writing, it is considered to contain all terms of the agreement and extrinsic evidence concerning the intentions of the parties is not admissible. Section 28-2-905(1), MCA.” McCulley v. Am. Land Title Co., 2013 MT 89, ¶ 33, ___ Mont. ___, ___ P.3d ___. On this record, I would conclude that the Baileys did not present sufficient evidence to create a genuine factual issue about the signed applications, which were individually prepared for each of the Baileys’ two vehicles after the parties’ initial conversation, and signed by the Baileys underneath language stating that they had read the form and chosen the coverages as indicated. ¶39 Thereafter, the Baileys paid premiums for the next seven years and received insurance coverage cards, policies and booklets. The Baileys received new insurance cards at least two times a year for each policy, listing their coverages. They also received renewal notices two times a year for each policy, with each notice listing the coverages 19 and charges for each coverage. The Baileys simply allege that they didn’t read any of these and the Court, apparently under the new, broadly-stated, “no-read” principle, accepts this excuse and gives no significance to this evidence. However, this is further evidence that State Farm provided the coverages that the Baileys had requested. ¶40 Then, in 2005, Stan called the agency and talked to Jeannie Fetters to make some changes in his coverages. In that conversation, Fetters pointed out to Stan that he did not have UIM coverage, and Stan responded he did not want to add that coverage, but, rather, only wanted to make the changes he had called about. Fetters specifically remembered the conversation and also made notes about the conversation in State Farm’s master record. Baileys offered no contradictory evidence. However, the Court, citing the Baileys’ assertion that “they did not even know what UIM coverage was until after the accident,” concludes that there are “varying accounts” about this conversation. Opinion, ¶ 29. This is incorrect. Baileys offered nothing in contradiction to the very specific and recorded evidence offered by State Farm about this conversation. Baileys’ statement merely claims ignorance about the nature of UIM insurance—again, “gauzy” and speculative evidence—and nothing about the conversation. ¶41 To further rebut the evidence of this 2005 event, the Court again cites Stan’s abiding belief that he had the same coverage as he had in Oregon. The Court’s reliance on Stan’s Oregon coverage pales when it is recalled that the Baileys made that request seven years earlier in 1998, thereafter signed contrary application forms, paid contrary premiums, and received contrary coverage notices until 2005, when Stan called to change their coverages. By then, the “Oregon request” was long past and there is no evidence 20 that Stan was still trying to obtain the same coverage he had in Oregon. As we have recently stated, when reviewing the record for purposes of summary judgment, it is important to recognize the “chronology of events” that the evidence demonstrates. McCulley, ¶ 35. ¶42 I would conclude that the Baileys did not carry their burden to demonstrate genuine issues of material fact and that State Farm was entitled to summary judgment as a matter of law. I would affirm the District Court. /S/ JIM RICE Justice Beth Baker, dissenting. ¶43 I agree with Justice Rice that the District Court did not err in granting summary judgment to State Farm on this record. I write separately because of my concern that the Court has in fact imposed a heightened duty on an insurance agent, despite its statement to the contrary. Opinion, ¶ 32. ¶44 Baileys raised, as their second issue on appeal, the claim that State Farm and Olson had “a duty to advise the Baileys regarding UIM coverage,” and they urge this Court to “expand an agent’s duty beyond a mere duty to procure” the insurance requested by the insured. They cite numerous cases from other jurisdictions in which courts have held that an insurance agent’s duty is not limited to responding to a specific request for coverage, but that an agent may be liable under theories of professional negligence for 21 failing to recommend UIM coverage or advise the insured of coverage needs. They also point out “that no such heightened duty of care has yet been recognized under Montana law.” Monroe v. Cogswell Agency, 2010 MT 134, ¶ 31, 356 Mont. 417, 234 P.3d 79. By finding a factual issue for trial on the basis that Fetters did not explain UIM coverage when Stan called her in May 2005 to change his coverages (Opinion, ¶ 29), the Court is at least implicitly ruling that Olson and his agents had a heightened duty to advise or offer specific coverages, just as Baileys have requested. Without expressly so holding, the Court’s ruling today will generate additional confusion in the law regarding the scope of an insurance agent’s duty to the insured. /S/ BETH BAKER | May 2, 2013 |
b9c41883-34d1-45a6-be1f-946472a78a93 | City v. Hitshew | 2013 MT 116N | DA 12-0447 | Montana | Montana Supreme Court | DA 12-0447 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 116N CITY OF MISSOULA, Plaintiff and Appellee, v. BRET A. HITSHEW, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-12-100 Honorable Karen S. Townsend, 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, Katie F. Schulz, Assistant Attorney General, Helena, Montana Jim Nugent, Missoula City Attorney, Gary L. Henricks, Assistant City Attorney, Missoula, Montana Submitted on Briefs: April 10, 2013 Decided: April 30, 2013 Filed: __________________________________________ Clerk April 30 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 On May 18, 2011, Bret Hitshew and his girlfriend, Cheryl Westerland, were eating lunch at Taco Treat, located inside the Nickle Ante Casino in Missoula, when Hitshew’s former girlfriend appeared and confronted them. Hitshew and Westerland decided to leave, but first stopped to cash out with the casino attendant. As they did, Hitshew’s ex-girlfriend began screaming obscenities at Westerland. Hitshew and Westerland left and got into a 1988 Oldsmobile Delta 88 owned by Hitshew’s mother, with Hitshew driving. The ex-girlfriend followed in her car and eventually rammed the Oldsmobile. Officers with the Missoula City Police Department responded to the scene. Upon determining that Hitshew’s driver’s license was suspended or revoked, one of the officers cited him with violating § 61-5-212, MCA. ¶3 Hitshew appeared in Missoula Municipal Court on June 20, pleaded not guilty, and requested a public defender. Brian Yowell was appointed. Yowell and the Missoula City Attorney signed an Omnibus Hearing Memorandum on September 26. Among other things, the form expressly indicates that the defendant will not be asserting an affirmative defense. On October 25, the Municipal Court set a bench trial for December 14 at 9:00 a.m. ¶4 On December 13, Yowell realized that he had commitments in district court which conflicted with the time set for Hitshew’s trial in the Municipal Court. As a result, the Public Defender’s Office reassigned Hitshew’s case to Kelly Henkel at approximately 3:45 3 p.m. on December 13. After being assigned the case, Henkel met with Hitshew, became aware of a possible compulsion defense, and learned of two possible witnesses. ¶5 The next morning, Henkel appeared with Hitshew in the Municipal Court and moved for a continuance so that Yowell could represent Hitshew at trial. She explained the timing of her appointment, the shortcomings of her trial preparation, Hitshew’s willingness to have any delay attributed to him for speedy trial purposes, and his desire to raise a compulsion defense (namely, that he had driven while his license was suspended in order to avoid being assaulted by his ex-girlfriend). Henkel acknowledged that she could proceed with the trial that morning, but she asserted that she did not believe it would be in Hitshew’s best interests for her to do so. The City opposed the continuance because Hitshew had not given proper notice of an affirmative defense. Moreover, the City had its witnesses (the two City police officers) present, and they were on overtime. The City indicated that it was prepared to proceed. ¶6 The Municipal Court denied the requested continuance, but stated that it would allow Hitshew to present his compulsion defense. The City presented the testimony of the two police officers. Thereafter, Hitshew presented the testimony of a witness Henkel had located, who stated that she heard yelling and saw a woman push Hitshew in the back before he and Westerland left the casino. Hitshew also testified in his own defense. But at no point did he state that he believed he might suffer death or serious bodily harm if he did not drive away from the casino. See § 45-2-212, MCA. Nor did he testify that he had asked the proprietors of the casino to call the police. At the conclusion of trial, the court found Hitshew guilty. The court noted that it did not accept his compulsion defense because he had 4 taken the time to check out with the casino attendant before leaving and because, by his own admission, he had driven to the restaurant before the encounter with his ex-girlfriend. The court sentenced him to a fine, costs, and six months in jail with all but 16 days suspended. ¶7 Hitshew appealed to the Fourth Judicial District Court, Missoula County, arguing (1) that the Municipal Court abused its discretion when it denied his motion to continue and (2) that he received ineffective assistance of counsel. The District Court rejected both claims, and Hitshew now appeals to this Court. He raises only the question whether the Municipal Court abused its discretion in denying his motion to continue. ¶8 Section 46-13-202, MCA, governs continuances. All motions for continuance are addressed to the discretion of the trial court and must be considered in the light of the diligence shown on the part of the movant. Section 46-13-202(3), MCA. Moreover, in reviewing a continuance, an abuse of discretion can be present only when the trial court’s ruling has prejudiced the defendant. State v. DaSilva, 2011 MT 183, ¶ 24, 361 Mont. 288, 258 P.3d 419. Here, Hitshew has failed to demonstrate that he was prejudiced by the Municipal Court’s ruling. Henkel presented Hitshew’s defense of compulsion. She calleda witness whom Yowell had not previously discovered. As the District Court concluded, Henkel’s representation was not ineffective, and Hitshew has not challenged that conclusion on his appeal to this Court. Moreover, he has failed to explain, beyond conclusory allegations, how Henkel (or Yowell) would have been better prepared for trial or what additional, noncumulative evidence Henkel (or Yowell) would have presented in support of his defense, had the Municipal Court granted the requested continuance. 5 ¶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. Having reviewed the record and the parties’ briefs, we conclude that Hitshew has failed to establish prejudice resulting from the Municipal Court’s denial of his motion to continue. ¶10 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS | April 30, 2013 |
aa78453e-3c48-4029-b7ae-a11162720ff1 | State v. Steigelman | 2013 MT 153 | DA 12-0275 | Montana | Montana Supreme Court | DA 12-0275 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 153 STATE OF MONTANA, Plaintiff and Appellee, v. MICHAEL JAMES STEIGELMAN, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 09-417 Honorable G. Todd Baugh, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender; Kristen L. Larson, 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; Victoria Callender, Deputy County Attorney, Billings, Montana Submitted on Briefs: February 20, 2013 Decided: June 6, 2013 Filed: __________________________________________ Clerk June 6 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 The State of Montana (State) charged Michael James Steigelman (Steigelman) with felony DUI and two misdemeanors on July 29, 2009. Steigelman filed a motion to dismiss the charges based on an alleged violation of his right to a speedy trial on June 1, 2010, in the Thirteenth Judicial District Court, Yellowstone County. The District Court denied Steigelman’s motion. Steigelman later entered a guilty plea to DUI pursuant to a plea agreement with the State. In return, the State agreed to drop the two misdemeanor charges. Steigelman appeals the District Court’s denial of his motion to dismiss on the speedy trial grounds. We affirm. ¶2 We address on appeal whether the State violated Steigelman’s constitutional right to a speedy trial. FACTS AND PROCEDURAL BACKGROUND ¶3 A Billings, Montana police officer heard a loud crash at an intersectionon the evening of July 29, 2009. The officer saw a vehicle, driven by Steigelman, drive onto the road’s center cement median. Steigelman had struck a road sign and broke it off its mount. The officer observed Steigelman then swerve back onto the road. The officer stopped Steigelman. The officer approached him and immediately noticed that Steigelman’s eyes were bloodshot, that Steigelman’s speech was slurred, and that Steigelman smelled of alcohol. Steigelman admitted to having hit the sign and told the officer he had consumed “about eight to ten beers.” Steigelman failed to complete the standard field sobriety tests. He also refused to provide a breath sample. 3 ¶4 The State charged Steigelman with felony DUI and two misdemeanors. Steigelman appeared for his arraignment on August 3, 2009. The court released Steigelman on bail on August 6, 2009, after he had spent eight days in jail. ¶5 The District Court originally set Steigelman’s omnibus hearing for November 9, 2009, and his trial for January 19, 2010. Steigelman did not appear at the November 9, 2009, omnibus hearing. Steigelman’s appointed counsel advised the court at the hearing that Steigelman and he had not been in contact. Steigelman’s counsel indicated that he planned to seek a continuance of the trial. ¶6 The District Court designated a triple homicide case as the number one trial setting for January 19, 2010. This conflict required the court to reschedule Steigelman’s trial. The District Court reset the omnibus hearing for March 29, 2010, and the trial for June 8, 2010. Steigelman attended the omnibus hearing with counsel from the Office of the Public Defender. The District Court granted a motion to substitute Jeffrey Michael as Steigelman’s counsel on May 18, 2010. The court’s order included a notation of the June 8, 2010, trial date. Steigelman filed a motion to continue the trial on May 27, 2010. Steigelman waived his right to speedy trial as part of his motion. The District Court set a new trial date of September 28, 2010. ¶7 Steigelman filed a motion to dismiss the charges against him on June 1, 2010, based on the State’s alleged violation of his right to speedy trial. The parties briefed the motion and the court conducted a hearing on October 4, 2010. The court heard testimony from Steigelman, the arresting officer, and the State’s counsel in the triple homicide case that had 4 prompted the court to reset Steigelman’s first trial date. ¶8 The court agreed with Steigelman that the duration of the pretrial delay justified further review. The court attributed most of the delay to the State due to institutional causes. The court observed that Steigelman had made efforts to proceed to trial, but that he had not complained about previous delays. The court further observed that Steigelman had served only eight days in jail and that he had been unable to articulate any anxiety or concern beyond that normally associated with a person accused of a crime. ¶9 The court opined that pretrial delay likely had not caused prejudice to Steigelman’s defense, despite Steigelman’s claim of being unable to locate two potential witnesses. The court noted that Steigelman’s admission to having consumed eight to ten beers on the night of his arrest raised questions as to how those two potential witnesses—a former girlfriend and a bartender who had observed Steigelman earlier that evening— could have assisted his defense. The court noted further that the State’s only witness, the arresting officer, had been available for questioning and remained able to testify at trial. STANDARD OF REVIEW ¶10 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. Ariegwe, 2007 MT 204, ¶ 119, 338 Mont. 442, 167 P.3d 815. Whether the factual circumstances establish a speedy trial violation presents a question of law. Ariegwe, ¶ 119. We review de novo a district court’s conclusion of law. Ariegwe, ¶ 119. DISCUSSION 5 ¶11 Whether the State violated Steigelman’s constitutional right to a speedy trial? ¶12 The Sixth Amendment and Fourteenth Amendment to the United States Constitution, and Article II, Section 24 of the Montana Constitution, guarantee a criminal defendant the right to a speedy trial. We revised our framework to analyze speedy trial claims in Ariegwe to track the balancing approach outlined by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972). A court must balance four factors in considering a claim of denial of the right to speedy trial: (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. State v. Billman, 2008 MT 326, ¶ 11, 346 Mont. 118, 194 P.3d 58; Ariegwe, ¶ 20. ¶13 None of the four speedy trial factors, on its own, is dispositive. We must consider the related factors together with other relevant circumstances. Ariegwe, ¶ 153. Moreover, each factor’s significance depends on the unique facts and circumstances of the case. Ariegwe, ¶ 105. We now proceed to review and balance the four speedy trial factors. ¶14 Length of the delay. We consider the length of delay from the date that the State files the charges until the defendant’s trial date. Here 426 days elapsed between the time that the State charged Steigelman on August 3, 2009, and his September 28, 2010, trial date. We have established 200 days, regardless of fault for that delay, as the length of time that triggers further speedy trial analysis. Ariegwe, ¶ 62. No one contests that Steigelman’s delay exceeded the 200-day trigger. Thus, we must analyze the other speedy trial factors ¶15 Reasons for the delay. Under this factor, the court identifies and attributes responsibility for each period of delay in bringing the accused to trial. The weight assigned 6 to a period of delay depends on the type of delay and possible motive, if any, behind the delay. Ariegwe, ¶ 67. We characterize as institutional that delay due to the inherent nature of the criminal justice system. Institutional delay weighs less heavily than intentional attempts by the State to delay the trial. State v. Stops, 2013 MT 113, ¶ 27, ___ Mont. ___, ___ P.3d ___; Ariegwe, ¶ 108. ¶16 The District Court did not issue findings as to each period of delay. The court attributed the bulk of the total delay, however, to the State as institutional delay. For example, the 174 days between Steigelman’s arrest and the first trial date represents institutional delay attributable to the State. The court also attributed to the State the 140 days between the first trial date and the second trial date. This 140-day delay occurred as a result of a scheduling conflict between Steigelman’s first trial date and a deliberate homicide trial also set for that same date. We agree with the District Court that institutional delay properly attributed to the State constituted 314 days of the delay. ¶17 The third period of delay consisted of 112 days between Steigelman’s second trial setting on June 8, 2010, and his third trial setting on September 28, 2010. The court attributed this 112-day period to Steigelman due to his request for more time to investigate and develop his speedy trial claim. We agree. The 314 days that the District Court attributed to the State, on its own, however, exceeds the 200-day trigger for further speedy trial analysis. Ariegwe, ¶ 62. ¶18 The accused’s responses to the delay. Under the third speedy trial factor, the court evaluates the totality of the accused’s responses to the delay to ascertain “whether the 7 accused actually wanted a speedy trial.” Ariegwe, ¶ 79. An accused certainly has “‘no duty to bring himself to trial.’” Ariegwe, ¶ 82 (quoting Barker, 407 U.S. at 527, 92 S. Ct. at 2190). The defendant’s responses to the delay nevertheless represent “an ‘important’ consideration” in determining whether a defendant’s right to a speedy trial has been violated. Ariegwe, ¶ 76, (quoting Barker, 407 U.S. at 534, 92 S. Ct. at 2194). ¶19 We consider the totality of a defendant’s responses to the delay to ascertain whether the defendant “actually wanted a speedy trial” and what weight is to be given to the other three factors in our analysis. Ariegwe, ¶ 79. We consider circumstances such as the “timeliness, persistence, and sincerity of the objections, the reasons for the acquiescence, whether the accused was represented by counsel, [and] the accused’s pretrial conduct (as that conduct bears on the speedy trial right).” Ariegwe, ¶ 80. ¶20 The District Court recognized that, in many cases, “the last thing the defendant really wants is a speedy trial.” The court opined that a defendant often wants “to be able to complain about not having a speedy trial.” The court ultimately rejected the notion, however, that Steigelman wanted to postpone his trial. The court concluded that Steigelman’s conduct did not “fit[] the description” of a defendant seeking to manufacture a speedy trial violation. Nothing in the record leads us to disagree with the District Court’s conclusion that Steigelman’s actions did not constitute a tacit attempt to manufacture a speedy trial claim. State v. Sartain, 2010 MT 213, ¶ 25, 357 Mont. 483, 241 P.3d 1032. ¶21 Prejudice to the accused. We finally analyze the prejudice to Steigelman that may have occurred as a result of the State’s delay in bringing him to trial. We consider three sub- 8 factors when we evaluate prejudice to the accused: (1) oppressive pretrial incarceration; (2) undue prolonged disruption of the accused’s life and aggravated anxiety or concern; and (3) whether the delay has impaired the accused’s ability to present an effective defense. Ariegwe, ¶ 88 (citing Barker, 407 U.S. at 532, 92 S. Ct. at 2193; Doggett v. United States, 505 U.S. 647, 654, 112 S. Ct. 2686, 2692 (1992)). The delay exceeded 200 days and thus we require less proof of prejudice from the defendant and a greater showing of lack of prejudice from the State. Stops, ¶ 41. ¶22 Steigelman suffered minimal pretrial incarceration. The court released Steigelman on bond eight days after his arrest. The four days of pretrial incarceration served by the defendant in Stops comports with Steigelman’s experience. Stops, ¶ 42. We rejected a speedy trial claim in Stops. Stops, ¶ 46. By contrast, we affirmed a district court’s determination of a speedy trial violation in Billman where the defendant spent 278 days in jail before his trial. See Billman, ¶ 39. The eight days that Steigelman spent in jail fails to rise to the level of oppressive pretrial incarceration. Stops, ¶ 42; Billman, ¶ 39. ¶23 With respect to prolonged disruption, Steigelman argued that he had suffered stress due to the fact that his case had not moved ahead rapidly. We have recognized that criminal charges engender a certain amount of inherent anxiety and concern. Billman, ¶ 43. We focus on the extent to which the pretrial delay “has unduly prolonged the disruption of the accused’s life or aggravated the accused’s anxiety or concern.” Billman, ¶ 43, citing Ariegwe, ¶ 97. The generalized stress described by Steigelman differs little from the stress that any person accused of a crime would suffer. 9 ¶24 Other factors that we consider under this provision include employment loss, financial and economic loss, and whether the accused’s associations were curtailed. Ariegwe, ¶ 96. Steigelman claimed that a condition of his release on bond prevented him from driving. He testified that this condition forced him to ask his boss to drive him 200 miles for each of his court appearances. The State points out that Steigelman admitted that his Illinois driver’s license had expired before his arrest on the DUI charge. Steigelman failed to present evidence that he had obtained another valid license. It appears that the expiration of Steigelman’s Illinois driver’s license would have prevented him from driving lawfully even without the condition imposed by the court. ¶25 We agree with the District Court that Steigelman failed to present sufficient evidence to establish that the State’s institutional delay in bringing him to trial caused undue prolonged disruption of his life and aggravated anxiety or concern beyond what any person accused of a crime would suffer. Billman, ¶ 43. Steigelman did not put on evidence that the pretrial delay had caused him to lose his job or suffer economic loss. It appears that Steigelman maintained his employment throughout the period of pretrial delay as evidenced by his claim that his boss had to drive him to court appearances. ¶26 We likewise agree with the District Court that Steigelman failed to establish that the State’s institutional delay inhibited his ability to present an effective defense. Steigelman argued to the District Court that his brief eight-day pretrial incarceration and the prolonged delay in this trial that followed left him unable to locate two potential witnesses. Steigelman claimed that his former girlfriend and the bartender who served him could testify as to how 10 much he had to drink before his arrest. Nothing in the record indicates that Steigelman’s eight days of pretrial incarceration prevented him from locating his former girlfriend, whom he alleges had accompanied him for part of the night in question, and the bartender who served him. Steigelman could testify with no more specificity than the fact that he had broken up with his former girlfriend “not much longer after the arrest.” ¶27 Steigelman further testified as to efforts to locate the bartender who had served him. He claimed that the owner of the bar had been unable to locate the records due to the fact that “it’s been so long back.” Steigelman did not explain whether he attempted to locate the bartender in the days and weeks after his arrest. More importantly, the relevancy of the testimony of these two potential witnesses seems diminished in light of Steigelman’s admission that he had consumed eight to ten beers on the night of his arrest. The arresting officer further observed Steigelman’s vehicle drive onto the median and strike a road sign. The arresting officer also claimed to have witnessed Steigelman’s bloodshot eyes, his slurred speech, and the fact that Steigelman emanated an odor of alcohol. The arresting officer had been available for questioning during the entirety of the pretrial delay. ¶28 Steigelman argues finally that the District Court improperly gave too much weight to the State’s claimed lack of prejudice suffered by Steigelman from the institutional delay. He claims that the other three speedy trial factors—length of the delay, undue stress and anxiety caused by the delay, and his response to the delay—weigh heavily in his favor. He contends that these three speedy trial factors should tip the scales in favor of a speedy trial violation caused by the State’s institutional delay. Steigelman urges the Court to determine that the 11 426-day delay in his trial on uncomplicated charges was “simply too long.” He argues that the State alone had the duty to bring him to trial within an amount of time commensurate with his right to speedy trial. ¶29 The impairment of the accused’s defense from a speedy trial violation constitutes the most important factor in our prejudice analysis. Doggett, 505 U.S. at 654, 112 S. Ct. at 2692. The inability of the defendant “adequately to prepare his case skews the fairness of the entire system.” Doggett, 505 U.S. at 654, 112 S. Ct. at 2692. We agree with the conclusions reached by the District Court. Steigelman admittedly suffered substantial pretrial delay largely attributed to the State under institutional delay. We balance this substantial delay with the limited pretrial incarceration of eight days that Steigelman suffered. Steigelman failed to demonstrate that the delay aggravated his anxiety beyond the anxiety level expected of a person accused of a crime. Finally, Steigelman failed to demonstrate that he suffered substantial prejudice to the ability to defend himself. The State satisfactorily showed a lack of prejudice in Steigelman’s ability to defend against the charges. Stops, ¶ 45. On balance, these considerations lead us to agree with the District Court that the State did not violate Steigelman’s right to a speedy trial. ¶30 Affirmed. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON 12 /S/ JIM RICE Justice Beth Baker, concurring. ¶31 I concur in the disposition of Steigelman’s appeal, but I write to supplement the Court’s evaluation of the fourth Ariegwe factor. Steigelman expressly argues that where the length of delay is presumptively prejudicial and each of the first three speedy trial factors weighs in his favor, the District Court erred by placing a high burden on him to demonstrate prejudice. Steigelman points out that the District Court denied his motion to dismiss based on its finding that “the prejudice to the defendant is just simply not great in this case.” Noting that the State bears the burden of bringing him to trial, and since the delay was over twice the 200-day trigger, Steigelman argues that it was not his burden to prove “great” prejudice, but the State’s job to make a “highly persuasive showing that [he] was not prejudiced by the delay.” State v. Burns, 2011 MT 167, ¶ 22, 361 Mont. 191, 256 P.3d 944. ¶32 Steigelman raises a point on which our post-Ariegwe decisions have touched but that we have not further developed in analyzing the prejudice factor of the speedy trial analysis. That is, while Ariegwe counsels that no one factor is determinative but that all must be considered together with other relevant circumstances (Opinion, ¶ 13), must prejudice be affirmatively demonstrated in order for an accused’s speedy trial claim to prevail? ¶33 We made clear in Ariegwe that the length of delay plays a significant role in evaluating the prejudice factor. “Thus, the further the delay stretches beyond the trigger 13 date, the stronger is the presumption under Factor Four that the accused has been prejudiced by the delay.” Ariegwe, ¶ 107. In that case, and in several since, we have noted that as the delay increases beyond 200 days, “the State’s burden to justify the delay increases.” State v. Billman, 2008 MT 326, ¶ 18, 346 Mont. 118, 194 P.3d 58 (citing Ariegwe, ¶¶ 56, 62) (emphasis added); see also State v. Hendershot, 2009 MT 292, ¶ 28, 352 Mont. 271, 216 P.3d 754; State v. Stops, 2013 MT 131, ¶ 25, 370 Mont. 220, ___ P.3d ___. Importantly, justification for the delay is part of Factor Two of the speedy trial analysis, not the prejudice factor. We observed in Ariegwe that the length of delay plays a significant role in linking the second and fourth factors. Thus, as the delay stretches further beyond the 200-day trigger date, the required showing of prejudice lessens and the required showing of justification increases. Ariegwe, ¶ 107. ¶34 We also have referred to the “State’s burden” in discussing the prejudice factor, ruling in State v. Couture, 2010 MT 201, ¶¶ 49, 55, 357 Mont. 398, 240 P.3d 987, that the State was required to “make ‘a very persuasive showing’” and that the State bore “a heavy burden to show” that the defendant was not prejudiced by a 924-day delay in bringing the charges to trial. In Couture, while we stated that “the accused’s failure to submit affirmative proof of prejudice is not fatal to a speedy trial claim,” ultimately we concluded that the defendant had “not demonstrated an impaired ability to present an effective defense as a consequence of the delay,” and we therefore rejected his speedy trial claim. Couture, ¶¶ 67, 70. ¶35 Similarly, in State v. Lacey, 2010 MT 6, ¶¶ 24-26, 355 Mont. 31, 224 P.3d 1247, we rejected the defendant’s speedy trial claim notwithstanding a more than eight-year delay, 14 based on the combination of his intentional actions in avoiding being brought to trial and the lack of evidence of direct prejudice to his defense. We noted that, “under certain circumstances, where the length of delay is great, the accused’s burden of presenting affirmative evidence of prejudice is lessened.” Lacey, ¶ 23 (citing State v. Hardaway, 2009 MT 249, ¶ 26, 351 Mont. 488, 213 P.3d 776) (emphasis added). ¶36 Our cases reflect what the U.S. Supreme Court held directly in Doggett: that “affirmative proof of particularized prejudice is not essential to every speedy trial claim.” Doggett, 505 U.S. at 655, 112 S. Ct. at 2692. The Court recognized that “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.” Although it must be considered together with the other factors and “cannot alone carry” a speedy trial claim, presumptive prejudice “is part of the mix of relevant facts, and its importance increases with the length of delay.” Doggett, 505 U.S. at 655-56, 112 S. Ct. at 2692-93. The Court made clear that the government’s negligence in bringing an accused to trial is not “automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him.” Doggett, 505 U.S. at 657, 112 S. Ct. at 2693. The circumstances in Doggett represented the “middle ground” between bad-faith conduct by the government—in which case its eight-and-a-half-year delay in bringing the defendant to trial “would present an overwhelming case for dismissal”—and diligent attempts by the government to locate and prosecute the defendant—in which case his speedy trial claim would fail “as a matter of course however great the delay, so long as Doggett could not show specific prejudice to his defense.” Doggett, 505 U.S. at 656-57, 112 S. Ct. at 15 2693. ¶37 As we held in Ariegwe, “it is doubtful that the mere passage of time could ‘conclusively’ establish that the accused has been denied his or her right to a speedy trial.” Ariegwe, ¶ 60. Thus, although there may be cases where the absence of prejudice will not defeat a speedy trial claim, those cases will be few and far between—most likely a case involving government bad faith or conduct similarly egregious to that involved in Doggett, where the government’s negligence caused delay six times longer than the trigger for review and where “the presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant’s acquiescence, . . . nor persuasively rebutted [by the government].” Doggett, 505 U.S. at 658, 112 S. Ct. at 2694. That combination of factors is not present here. While, as Steigelman notes, several trial dates in this case simply “came and went without action” from the State to bring him to trial, the delay in this case largely was institutional and not attributable to either bad faith or negligence by the State of the sort that would entitle a presumption to carry the day without any showing of actual prejudice. Ariegwe, ¶ 60 (noting Doggett’s combination of excessive delay and the government’s lack of diligence). As the Court holds (Opinion, ¶ 29), the evidence in this case fell short in that showing and the District Court properly denied Steigelman’s motion. /S/ BETH BAKER Justice Laurie McKinnon joins in the concurring Opinion of Justice Baker. 16 /S/ LAURIE McKINNON | June 6, 2013 |
145cb535-45eb-4d03-915f-b9efbb98fcd4 | Molnar v. Fox | 2013 MT 132 | DA 12-0373 | Montana | Montana Supreme Court | DA 12-0373 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 132 BRAD MOLNAR, Petitioner and Appellant, v. MARY JO FOX, Respondent and Appellee. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 10-1718 Honorable Susan P. Watters, Presiding Judge COUNSEL OF RECORD: For Appellant: Kenneth D. Peterson; Attorney at Law; Billings, Montana For Appellee: Joel E. Guthals; Guthals, Hunnes & Ruess, P.C.; Billings, Montana For Amicus Curiae: Jay P. Dufrechou; Dufrechou Law Firm, P.C.; Helena, Montana (Montana Commissioner of Political Practices) Submitted on Briefs: January 23, 2013 Decided: May 14, 2013 Filed: __________________________________________ Clerk May 15 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Brad Molnar (Molnar) appeals from the order of the Thirteenth Judicial District Court affirming the decision of the Commissioner of Political Practices (the Commissioner) holding that Molnar violated the Code of Ethics. We affirm and address the following issues: ¶2 1. Did the District Court err by concluding that Fox had legal standing to file ethics complaints against Molnar? ¶3 2. Did the District Court err by concluding that Molnar received unlawful gifts in violation of § 2-2-104, MCA? ¶4 3. Did the District Court err by concluding that Molnar improperly used State facilities for political purposes in violation of § 2-2-121(3)(a), MCA? ¶5 4. Did the District Court err by concluding that the penalty statute for ethics violations, §2-2-136, MCA, was not unconstitutionally vague? FACTUAL AND PROCEDURAL BACKGROUND ¶6 Molnar served two terms as a Public Service Commissioner (PSC), representing District #2, which encompasses Billings and southeastern Montana. The PSC is comprised of five elected commissioners who supervise and regulate the operations of public utilities, common carriers, railroads, and other regulated industries. During the summer and fall of 2008, Molnar was serving his first term at the PSC and was also a candidate for reelection to his position. Mary Jo Fox (Fox), a resident of District #2 and campaign manager for Molnar’s opponent in the election, filed four complaints against Molnar with the Commissioner, alleging that Molnar had violated the statutory Code of Ethics by accepting gifts of substantial value from two corporations with which the PSC 3 regularly dealt, and by using state resources to aid his reelection campaign and for personal business. Molnar denied any wrongdoing. June 12, 2008 Complaint ¶7 Fox’s first complaint alleged that Molnar accepted unlawful gifts from corporate entities to support an event called the “Billings Brownout.” Molnar was the principal organizer of the event, wherein Billings residents and businesses voluntarily reduced electrical consumption for an hour—by turning lights off, for example—to raise awareness about energy conservation. Molnar solicited funds in support of the Brownout from several businesses. Fox took issue with Molnar’s receipt of money from NorthWestern Energy (NorthWestern) and PPL Montana (PPL). Molnar approached one of NorthWestern’s corporate officers, William Thomas, during a break in a PSC hearing in which NorthWestern was participating. Molnar explained the Brownout event and asked Thomas for “money for brochures” for the event. Thomas agreed, and NorthWestern sent a check for $1,000 to Molnar, made personally to him. Molnar deposited the check into his personal bank account. Molnar also requested $1,000 from PPL. PPL generates electricity at its coal-fired and hydroelectric power plants in Montana. While not directly regulated by the PSC, PPL regularly appears before the PSC for hearings, and intervenes in administrative proceedings. PPL agreed to help fund the Brownout and sent a $1,000 check to Molnar, also made personally to him. Molnar likewise deposited this check into his personal bank account. 4 ¶8 Molnar printed brochures that described the Brownout event, explained how to conserve electricity, and thanked sponsors. The brochures bore Molnar’s name and picture, and read, in part: Public Service Commissioner Brad Molnar Invites you to join your neighbors and take part in the Great Billings Brownout ¶9 The Brownout took place on December 6, 2007, and was, by all accounts, a success. In the spring of 2008, Molnar used some of the Brownout brochures by leaving them at homes while campaigning door-to-door for reelection. Meanwhile, in response to another request by Molnar, NorthWestern sent a check for $1,000 to Molnar to help sponsor a proposed event called the “Laurel Brownout.” However, when NorthWestern learned that Molnar was using the Brownout brochures in his campaign, it demanded repayment of the entire $2,000 donated to the two Brownout events. Molnar sent a personal check of $1,000 to NorthWestern as a refund for the Billings Brownout donation and returned the $1,000 check NorthWestern had just sent him for the Laurel Brownout. Molnar continued to use the brochures, but after NorthWestern and other Brownout contributors complained about the use of the brochures in his campaign, Molnar affixed an adhesive sticker over the complaining contributors’ names that read: The “Brown out” may be over. But the energy tips are still good! BRAD MOLNAR Your Conservation Candidate For Public Service Commissioner 5 October 9, 2008 Complaint ¶10 Fox’s second complaint accused Molnar of using his PSC e-mail address, PSC phone number, and PSC computer in his reelection campaign. Molnar created a four- page fundraising letter (the Fundraising Letter) dated July 21, 2008, in which he solicited campaign funds. The Fundraising Letter listed Molnar’s PSC email address and his PSC telephone number as his contact information. During this same time period, Molnar also listed his PSC email address as his contact information on his campaign website: http://molnar4psc.com (now defunct). October 16, 2008 Complaint ¶11 Fox’s third complaint alleged that Molnar unlawfully used his PSC-issued cellular phone to advertise his personal rental property. During his first term on the PSC, Molnar placed a newspaper advertisement soliciting a roommate to share a Helena residential unit that he leased. In the advertisement, Molnar listed his PSC cellular phone number and recorded a message on its voicemail for prospective roommates. Molnar used the PSC cell phone and voicemail because his former roommate had moved out and disconnected the residential landline. October 27, 2008 Complaint ¶12 Fox’s fourth complaint also accused Molnar of using his PSC-issued computer system, laptop computer, and email system for campaign purposes. Fox attached numerous emails to her complaint.1 During the summer of 2007, Molnar exchanged 1 Fox obtained from the PSC emails and documents from Molnar’s computer through a public information request. 6 emails with a representative of the Great Falls Rotary Club about an upcoming talk he was giving to the group. While the initial emails covered subjects typical of a speaking engagement—e.g., speaking topics, location, and directions—Molnar’s emails following the talk turned political: As you know, my position is an elected one and I’m up next election cycle. And earned media is free media. Would it be possible for you, or one of the others that seemed to enjoy my talk, to drop an editorial to the papers listed below? Just a simple thing about how lucky they are to have a commissioner that is so darn knowledgeable and willing to travel on his own dime to educate the public. . . . Please? Molnar thereafter listed the newspapers he wanted the editorial letter sent to, all within PSC District #2. ¶13 Between May 12 and May 13, 2008, Molnar sent three emails related to his campaign to the Billings Outpost newspaper (Billings Outpost emails) through his PSC email account. The first email was a campaign “press release” accusing his opponent of being too cozy with the companies regulated by the PSC. In the second, Molnar postured for an upcoming debate with his opponent: Dear Editor, Mr. Tussing desires to debate me? OK. Perhaps two debates. We can rent a phone booth to accommodate those that care about his revisionist rant of “deregulation” legislation passed eleven years ago and we can use the MSUB Theater to address those that are concerned about future policies and how they will be personally affected. The third email to the Billings Outpost was another campaign editorial. ¶14 Molnar also used his PSC email to make arrangements to attend the Miles City Bucking Horse Sale and parade. The record includes a photograph showing Molnar 7 wearing a “Brad Molnar” campaign t-shirt and walking in the Bucking Horse Sale parade with other candidates. Molnar reported the gasoline expenses incurred in traveling to and from this event as a campaign-finance expenditure. ¶15 William L. Corbett, a professor of law at the University of Montana (Professor Corbett), was appointed as hearing examiner, and conducted a three-day hearing on Fox’s complaints in November 2009. In March 2010, Professor Corbett issued a proposed decision, determining that Molnar violated § 2-2-104, MCA, two times by receiving “gifts of substantial value” from NorthWestern and PPL, and violated § 2-2-121, MCA, five times by using state facilities and equipment for election purposes, as follows: the Fundraising Letter, the campaign website, the Great Falls Rotary solicitation for a campaign letter to the editor, the Billings Outpost emails,2 and the Bucking Horse Sale campaign arrangements. Professor Corbett recommended that Fox’s October 16, 2008 complaint be dismissed because Molnar’s “very limited use” of the PSC cellular phone to find a roommate amounted to permissible, de minimus personal use of state equipment. Professor Corbett recommended a fine of $1,000 for each violation of § 2-2-104, MCA, ($2,000), and a fine of $750 for each violation of § 2-2-121, MCA, ($3,750), for a total fine of $5,750. ¶16 The Commissioner made minor revisions to Professor Corbett’s proposed decision and affirmed the result. In addition to the fines, the Commissioner ordered Molnar to pay $14,945 for the costs of the hearing. Molnar petitioned for judicial review of the 2 Professor Corbett treated the three emails to the Billings Outpost as one violation because they were sent in such “close proximity” to each other. 8 Commissioner’s decision, and the District Court affirmed the Commissioner’s order. Molnar appeals. STANDARD OF REVIEW ¶17 The same standards of judicial review of a final agency decision apply to the district court and this Court. Williamson v. Mont. Pub. Serv. Commn., 2012 MT 32, ¶ 25, 364 Mont. 128, 272 P.3d 71. Judicial review of a “final agency decision must be conducted by the court without a jury and must be confined to the record.” Williamson, ¶ 25 (citing § 2-4-704(1), MCA). We review agency findings of fact under the clearly erroneous standard. Williamson, ¶ 25. A finding of fact is “clearly erroneous” if “it is not supported by substantial evidence in the record, if the fact-finder misapprehended the effect of the evidence, or if a review of the record leaves the court with a definite and firm conviction that a mistake has been made.” Williamson, ¶ 25. We review agency conclusions of law de novo, to determine if the agency correctly interpreted and applied the law. Williamson, ¶ 25. DISCUSSION ¶18 Article XIII, Section 4 of the Montana Constitution requires that the Legislature “provide a code of ethics prohibiting conflict between public duty and private interest for members of the legislature and all state and local officers and employees.” In 1977, the Legislature enacted Montana’s Code of Ethics (the Code or Code of Ethics). See Laws of Montana 1977, ch. 569, §§ 1-11 (codified at §§ 2-2-101, MCA through 2-2-304, MCA). The Code recognizes that public confidence in the integrity of state officials, legislators 9 and state employees is paramount to the overall effectiveness and legitimacy of the government. Section 2-2-103(1), MCA. The Code prohibits “conflict between public duty and private interest,” § 2-2-101, MCA, by providing rules of conduct “the transgression of any of which is a violation of the public duty[.]” Section 2-2-103(3), MCA. The Commissioner is charged with investigating alleged violations of the Code. Section 2-2-136(2), MCA. ¶19 1. Did the District Court err by concluding that Fox had legal standing to file ethics complaints against Molnar? ¶20 The District Court concluded that Fox had standing to bring her ethics complaints because the Code of Ethics permits any “person” alleging a violation to file a complaint. Molnar argues that allowing any person to bring an ethics complaint runs afoul of the usual standing requirement that the complaining party be harmed in some way particular to her, and not merely in the same way as the general public. ¶21 Recently, in Williamson, we addressed standing in the context of administrative proceedings. There, a group of individuals filed a complaint with the PSC against NorthWestern, seeking to force NorthWestern to replace existing streetlight bulbs with energy-efficient LED bulbs. Williamson, ¶ 6. The individuals claimed that NorthWestern’s use of the existing, inferior bulbs affected them through higher property tax bills and damage to the environment. Williamson, ¶ 14. NorthWestern moved to dismiss the complaint because these harms did not meet the typical standing requirement that the alleged harm be “distinguishable from [an] injury to the public generally.” 10 Williamson, ¶ 15. We distinguished judicial standing requirements from those applicable to statutory administrative proceedings: While acknowledging that . . . standing requirements arose as limitations on the judicial power of Montana’s courts, NorthWestern seeks to import them into PSC proceedings. This is incorrect. “The judicial power of the state is vested in one supreme court, district courts, justice courts, and such other courts as may be provided by law.” Mont. Const. art. VII, § 1. The PSC is not a “court.” It is an Executive Branch agency. Williamson, ¶ 29. Because the PSC is an administrative agency, standing was governed by the statute designating those permitted to bring a complaint. Williamson, ¶ 31. That statute, § 69-3-321(1), MCA, provided that a complaint could be brought by a party “directly affected” by the challenged policy. Williamson, ¶ 32. Under the facts, we concluded that the individuals bringing the complaint were not “directly affected” by NorthWestern’s use of the existing streetlight bulbs because the alleged harms—higher property taxes and environmental damage—were “too attenuated” and “speculative” to be considered to directly affect them. Williamson, ¶¶ 34-43. Because the allegations failed to meet the “directly affected” standard, we held that the complainants lacked standing under the governing statute. Williamson, ¶ 43. ¶22 The analysis here is even more straightforward. The Office of the Commissioner is an “administrative agency.” See § 2-15-411, MCA (establishing the Executive Branch agency of the “commissioner of political practices”). Whether Fox has standing to bring an ethics complaint against Molnar depends on the statute that designates who may initiate an ethics complaint before the Commissioner. Williamson, ¶ 31; Baxter Homeowners Assn. Inc. v. Angel, 2013 MT 83, ¶ 17, ___ Mont. ___, ___ P.3d ___. 11 Section 2-2-136(1), MCA, provides, in pertinent part: “A person alleging a violation of this part by a state officer, legislator, or state employee may file a complaint with the commissioner of political practices.” By its simple terms, § 2-2-136(1), MCA, grants any “person” standing to file an ethics complaint. See also Admin. R. M. 44.10.604(1) (“A complaint may be filed with the commissioner by any person alleging a violation of the ethics code by a state officer, state employee, or a legislator . . . .”) (emphasis added). The District Court correctly determined that Fox had standing to bring an ethics complaint to the Commissioner against Molnar. ¶23 2. Did the District Court err by concluding that Molnar received unlawful gifts in violation of § 2-2-104, MCA? ¶24 The District Court concluded that the $1,000 Molnar received from both NorthWestern Energy and PPL were “unlawful gifts.” Molnar first asserts that these monies were not “gifts” under the Code. Alternatively, Molnar argues that even if the monies were gifts they were not “unlawful” because (1) the $2,000 would not have improperly influenced him to favor these companies in PSC proceedings, and (2) the money was used for educational activities permitted by the Code. ¶25 Under the Code, a breach of public duty occurs when a “public officer . . . accept[s] a gift of substantial value . . . that would tend improperly to influence a reasonable person in the person’s position to depart from the faithful and impartial discharge of the person’s public duty.” Section 2-2-104(1)(b)(i), MCA. A “gift of substantial value” is defined as “a gift with a value of $50 or more for an individual.” Section 2-2-102, MCA. 12 ¶26 The Code does not define “gift,” and Molnar urges us to adopt a narrow definition that would prohibit transfers only when the donee received the item or money “without restrictions.” Molnar argues that he did not receive the $2,000 “without restrictions” because NorthWestern and PPL donated the funds for the legitimate purpose of promoting “cost-effective energy conservation[.]” Admin. R. M. 42.29.106. However, Molnar misapprehends the focus of the inquiry. The Code governs the conduct of public officers and employees, not the conduct or motivations of donating parties. The focus of the Code is what the public officer has received. ¶27 The Commissioner has interpreted “gift” broadly to mean “something voluntarily transferred by one to another without compensation.” In re Complaint of the Mont. Democratic Party v. Judy Martz, at 16-17 (Sept. 25, 2002); In re Complaint of L. David Frasier v. Barb Charlton & Mark Simonich, at 7 (May 2, 2005). The Commissioner used that interpretation in this case. “[A]dministrative interpretations are not binding on the courts,” but “they are entitled to ‘respectful consideration.’” Mont. Power Co. v. Mont. PSC, 2001 MT 102, ¶ 25, 305 Mont. 260, 26 P.3d 91 (citation omitted). “[T]he long and continued contemporaneous and practical interpretation of a statute by the executive officers charged with its administration and enforcement constitutes an ‘invaluable aid in determining the meaning of a doubtful statute.’” Mont. Power Co., ¶ 24 (citation omitted). The Commissioner is an executive officer “charged with the administration” of § 2-2-104(1)(b)(i), MCA. In giving respectful consideration to the interpretation given 13 by the Commissioner in the past, we conclude that he properly defined “gift” under the statute. ¶28 Molnar thus accepted “gifts” of substantial value. NorthWestern Energy and PPL Montana each “voluntarily transferred” $1,000 to Molnar personally, and he deposited those monies into a personal bank account. Molnar did not exchange anything of that value with the companies. The amounts of these transfers were “substantial” because they had “a value of $50 or more.” Section 2-2-102(3)(a), MCA. ¶29 Next, whether Molnar’s acceptance of the two $1,000 gifts was unlawful turns on whether that money “would tend improperly to influence a reasonable person in [Molnar’s] position to depart from the faithful and impartial discharge of the person’s public duty.” Section 2-2-104(1)(b)(i), MCA. Under the plain meaning of this provision, the inquiry is not whether the gifts, in fact, influenced Molnar to depart from the faithful and impartial discharge of his public duties (a subjective standard), but, rather, whether the gifts would tend to improperly influence a “reasonable person” in Molnar’s position (an objective standard). ¶30 The PSC exerts economically significant regulatory authority over NorthWestern, including the rates that NorthWestern can charge. As Molnar admitted during his testimony, the PSC, technically, would have to decide whether NorthWestern could ultimately include the $1,000 gift to Molnar as an eligible expenditure in its rate base. If so, NorthWestern’s customers would ultimately pay for the contribution to the Billings Brownout. A reasonable person acting in Molnar’s position would likely support 14 inclusion of the expenditure within the rate base, given his promotion of the event. This would necessarily constitute a departure from an “impartial discharge” of Molnar’s duties as a PSC Commissioner. In other words, Molnar’s acceptance of gifts for that purpose would given him a vested interest in the expense determination. As Professor Corbett reasoned, for a regulator to look to the regulated as a source of money is fraught with problems of improper influence: A regulator who views those regulated as the source of current and future money gifts would be influenced by the transaction. The Latin maximum quid-pro-quo—something given for something given—is unmistakable. It is reasonable to conclude that an elected regulator who solicits money from the regulated will look for and find some way to repay the implied obligation. The repayment may not amount to a large gesture. It may be a quick look away, a nod of the head, or the acknowledgement one team player gives another. But the fact that they are in it together will not be forgotten, and in some way, the gift will be acknowledged. While individual intentions and motivations may remain strong to the contrary, the opportunity of a small deviation or slight hesitation from the faithful and impartial discharge of public duty may result. The deviation or hesitation may be so small that no one in the room will notice, and even the parties may not fully recognize the departure from public duty, but there it will be—the quid pro quo. We conclude the District Court correctly held that NorthWestern’s gift would tend to improperly influence a reasonable person in Molnar’s position. Section 2-2-104(1)(b)(i), MCA. ¶31 Unlike NorthWestern, the PSC does not directly regulate PPL. However, the record demonstrates that PPL “regularly” appears before the PSC as an intervening party. PPL lawyers call and cross-examine witnesses in these proceedings. While Professor Corbett addressed his above-quoted example to parties “regulated” by the PSC, we see no 15 reason why this logic would not also extend to parties whose interests include intervening and regularly participating in PSC proceedings, such as PPL. Given the similar closeness of this relationship, we cannot conclude that the Commissioner erred in holding that the donation of $1,000 would tend to improperly influence a reasonable person in Molnar’s position toward PPL. ¶32 Alternatively, Molnar argues that even if the $2,000 he received from NorthWestern and PPL were “gifts,” they were lawful because the money was to be used to educate the Billings community about energy conservation, including printing of educational materials (brochures) for the event. Molnar correctly points out that some gifts valued in excess of $50 are permitted by the Code. Section 2-2-102(3), MCA, provides that the term “gift of substantial value” does not include: (iii) educational material directly related to official governmental duties; [or] . . . (v) educational activity that: (A) does not place or appear to place the recipient under obligation; (B) clearly serves the public good; and (C) is not lavish or extravagant. ¶33 However, we conclude these exemptions do not apply here. Money given directly and personally to Molnar does not constitute “educational material” or “educational activity” contemplated by the statute. Molnar essentially asks us to revise the statute by adding the word “for” in each of these exemptions, thus permitting the personal receipt of money that is ultimately used “for” educational activity or “for” educational material. However, it is axiomatic that in the “construction of a statute, the office of the judge is 16 simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or omit what has been inserted.” Section 1-2-101, MCA. This case demonstrates the necessity of carefully applying the statute as written. If we were to read the educational exemptions as broadly permitting the transfer of money directly to state officers so long as the money was ultimately used “for” educational material or activity, the prohibition against receiving substantial gifts could be easily circumvented, as here. Molnar’s brochures were partly educational, but also partly self-promotional. They contained conservation tips but also included a picture of Molnar and a reference to his position on the PSC. Elected officials could easily include “educational” content in otherwise self-promotional materials to come within a broad reading of the educational exemptions, allowing the exception to swallow the rule. ¶34 The District Court correctly concluded that the exemptions did not apply because money transferred directly and personally to Molnar was neither an educational activity nor educational material. The gifts to Molnar were thus made in violation of the Code of Ethics. ¶35 3. Did the District Court err by concluding that Molnar improperly used State facilities for political purposes in violation of § 2-2-121(3)(a), MCA? ¶36 The District Court held that Molnar improperly used State resources for political purposes by: (1) including his PSC email address and PSC phone number on the Fundraising Letter, (2) using his PSC email address on his campaign website, (3) using his PSC email address to solicit a campaign editorial from the Great Falls Rotary Club, 17 (4) using his PSC email to send the Billings Outpost emails, and (5) using his PSC email to arrange accommodations for a campaign appearance at the Bucking Horse Sale. ¶37 The Code of Ethics prohibits any public officer or public employee from using “public time, facilities, equipment, supplies, personnel, or funds to solicit support for . . . the election of any person to public office . . . .” Section 2-2-121(3)(a), MCA. ¶38 The statute’s first prohibition is the use of “public time” to engage in election-related activities. For the typical public employee, this restriction would apply to those hours for which the employee receives compensation from his or her employer. However, as Molnar points out, elected officials do not have specified hours of employment, vacation leave or other off-duty time, and are thus considered to be on “public time” at all times. Applying a “public time” prohibition to elected officials results in a readily apparent absurdity: elected officials could never use their time to seek reelection without violating the Code of Ethics. “Statutory construction should not lead to absurd results if a reasonable interpretation can avoid it.” Bitterroot River Protective Assn. v. Bitterroot Conserv. Dist., 2008 MT 377, ¶ 72, 346 Mont. 507, 198 P.3d 219 (citing Mont. Sports Shooting Assn. v. State, 2008 MT 190, ¶ 11, 344 Mont. 1, 185 P.3d 1003). Such an interpretation would also raise constitutional concerns. See City of San Diego v. Roe, 543 U.S. 77, 80, 125 S. Ct. 521, 523 (1995) (“A government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment.”). We attempt to interpret a statute “so as to avoid an 18 unconstitutional interpretation whenever possible.” State v. Samples, 2008 MT 416, ¶ 14, 347 Mont. 292, 198 P.3d 803. ¶39 These same concerns were noted in a Montana Attorney General’s opinion interpreting this statute: Although “public time” is not defined, a reasonable construction would be those hours for which an employee receives payment from a public employer. Elected officials, of course, do not have specific hours of employment nor do they receive vacation leave or other time off duty. They receive annual salaries rather than hourly wages. Thus, they could be considered to be on “public time” at all times. However, as long as public facilities, equipment, supplies, or funds are not involved, elected officials are not restricted in the exercise of political speech by the provisions of Montana law. Mont. Atty. Gen. Op. 51-1, 2005 Mont. AG LEXIS 1 at **4-5. We agree. To avoid absurdity and constitutional problems, we construe § 2-2-121(3), MCA, to permit an elected official to use his or her time to pursue election-related activities so long as the official does not use “public facilities, equipment, supplies or funds.” In this case, whether Molnar violated § 2-2-121(3), MCA, depends on whether he used public facilities in his reelection campaign, not whether he used his time. ¶40 Molnar’s Fundraising Letter bore his PSC-issued email address and phone number, and his campaign website bore his PSC-issued email address. The Letter explicitly solicited financial support for Molnar’s 2008 reelection and, true to its purpose, Molnar’s campaign website likewise advocated for his reelection to the PSC with bold writing at the top “Brad Molnar for Public Service Commissioner.” Molnar thus employed public facilities to further his reelection effort. 19 ¶41 Molnar argues that state rules regarding telecommunications use permitted the use of his PSC email address and phone number, which he describes as a minimal use. The state telecommunications rule provides: “The use of the state’s telecommunication systems for essential personal business must be kept to a minimum, and not interfere with the conduct of state business.” Admin. R. M. 2.13.102 (2012) (emphasis added). Thus, while the regulation permits the use of state phones, internet and email to conduct minimal personal business, it does not authorize any political uses. This distinction is clear and important. ¶42 Molnar also argues that, even if he improperly used the PSC’s telecommunications system, the proper enforcement entity was the PSC, not the Commissioner. He cites Admin. R. M. 2.13.103 (2012), which provides that “[a]ll state agencies are individually responsible for enforcing rules relating to the use of the state’s telecommunications systems.” However, while this regulation imposes an affirmative duty on each state agency to enforce the state policy governing use of the state telecommunication system, it does not preempt enforcement of the ethical statutes by the Commissioner. Violation of a telecommunication policy may or may not also constitute a violation of the Code, and jurisdiction here by state agencies is overlapping in that regard. ¶43 Molnar argues that Fox failed to prove he actually sent out the Fundraising Letter. The record, however, shows that Molnar received a phone call from reporter Mike Dennison, who had received the Fundraising Letter and contacted Molnar to inquire about the letter and informed him it was illegal. There was thus sufficient evidence to 20 demonstrate the Letter had been sent or used. Finally, Molnar argues that if he did violate the Code in this manner, his violations were de minimus. However, as the Commissioner noted: “there is nothing minor about the violations. A re-election campaign document and website that directs citizens to contact the candidate at their official state office is exactly what the Code of Ethics was designed to prohibit.” ¶44 The District Court correctly concluded that Molnar used public facilities to solicit support for his reelection to the PSC in violation of § 2-2-121(3)(a), MCA, when he posted his PSC email address on his campaign website and listed his PSC address email and phone number as his contact information in the Fundraising Letter. ¶45 The remaining violations pertain to the Billings Outpost emails, the Great Falls Rotary Group email, and the emails Molnar sent to make accommodations for the campaign event at the Bucking Horse Sale. Molnar argues that he did not violate § 2-2- 121(3)(a), MCA, by sending these emails because there is no proof that he was “on the job” or at his “place of employment” when he sent them.3 However, § 2-2-121(3)(a), 3 Molnar cites to several decisions by the Commissioner in support of his position. Each is distinguishable, however. First, Molnar argues that the Commissioner’s decision In re Complaint of Michael Fasbender against Ken Toole (Feb. 21, 2012), held that an elected official does not violate the statute unless the official uses the public facility during working hours. But, that is not the principle articulated in that case. Rather, In re Complaint of Fasbender stands for the proposition that anyone, including elected officials, may use pictures taken in State-owned buildings for campaign purposes so long as the area is open to the general public. The Commissioner reasoned that it would make little sense to allow the general public to use photographs taken inside and outside public buildings but prohibit incumbents seeking reelection from doing so. Here, however, Molnar’s PSC email address is not open for use by the general public. The other Commissioner decisions cited by Molnar are likewise unhelpful to him because they involve a campaign contribution statute and not an ethics statute. The statute at issue in those cases, § 13-35-226(4), prohibits a public employee from soliciting support or opposition to a candidate while “on the job or at the place of employment.” See e.g. In re 21 MCA, does not prohibit the use of public facilities only while on the job or while at work. The statute clearly prohibits all use of “public facilities” for campaign purposes. It is improper for an elected official to send a campaign email from a State account at any time of the day. Likewise, geographic location is irrelevant under the statute. State “facilities” such as email accounts and laptop computers may readily be accessed and used at locations outside of state buildings. It is unlawful for an elected official to use state facilities for political purposes whether in a government office or elsewhere. ¶46 The District Court did not err in affirming the Commissioner’s conclusion that Molnar violated § 2-2-121(3)(a), MCA, by using “public facilities” to solicit support for his reelection. ¶47 4. Did the District Court err by concluding that the penalty statute for ethics violations, §2-2-136, MCA, was not unconstitutionally vague? ¶48 The Commissioner ordered Molnar to pay a $5,750 administrative penalty for his seven violations of the Code of Ethics. The Commissioner also ordered Molnar to pay $14,945 to the State as partial reimbursement of the costs in this matter. Molnar offers a very brief argument, with little citation to authority, that this penalty and cost assessment should be reversed because the Code’s penalty provision is unconstitutionally vague for failing to specify whether the Commissioner may impose a separate fine for each violation or only a single fine regardless of the number of violations. ¶49 “[A]ll statutes carry with them a presumption of constitutionality.” Mont. Auto Assn. v. Greely, 193 Mont. 378, 382, 632 P.2d 300, 303 (1981). Thus, a party Complaint against Dave Galt, at 2 (Jul. 26, 2004). The ethics statute at issue here, § 2-2-121(3), contains no such language. 22 challenging the constitutionality bears the heavy burden of proving the statute is unconstitutional “beyond a reasonable doubt.” Hernandez v. Bd. of County Commns., 2008 MT 251, ¶ 15, 345 Mont. 1, 189 P.3d 638. We conclude that Molnar’s brief argument fails to carry the burden of demonstrating that the statute is unconstitutional and that the Commissioner’s imposition of separate fines was otherwise unlawful. ¶50 We affirm the District Court on all issues raised on appeal. /S/ JIM RICE We concur: /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ BETH BAKER /S/ LAURIE McKINNON | May 15, 2013 |
88e72ad6-0f80-4cf6-a3e9-291814efa6dd | In re D.S.B. | 2013 MT 112 | DA 12-0495 | Montana | Montana Supreme Court | DA 12-0495 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 112 IN THE MATTER OF: D.S.B. and D.S.B., Youths in Need of Care. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause Nos. DN 10-6 and DN 10-7 Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD: For Appellant: Elizabeth Thomas, Attorney at Law, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant Attorney General, Helena, Montana Lucy Hansen, Assistant Attorney General, Child Protection Unit, Missoula, Montana Submitted on Briefs: February 27, 2013 Decided: April 30, 2013 Filed: __________________________________________ Clerk April 30 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Birth father J.H. appeals from an order issued by the Fourth Judicial District Court, Missoula County, that terminated his parental rights to his two children, D.S.B. 1 and D.S.B. 2 (the children). We affirm. ¶2 We address the following issues on appeal: ¶3 Issue One: Whether the District Court properly concluded that J.H.’s treatment plans were appropriate. ¶4 Issue Two: Whether the State presented sufficient evidence to terminate J.H.’s parental rights under the Indian Child Welfare Act (ICWA). PROCEDURAL AND FACTUAL BACKGROUND ¶5 Through the Department of Public Health and Human Services (DPHHS), the State petitioned for Emergency Protective Services, Adjudication as Youths in Need of Care, and Temporary Legal Custody for the children on February 24, 2010. The State’s petition alleged that J.H. had sexually abused the children, medically neglected the children, physically neglected the children, and exposed the children to unreasonable risks. J.H. stipulated on June 11, 2010, that the children should be adjudicated as Youths in Need of Care. At a hearing on July 7, 2010, the District Court held that the children are Indian Children, and the ICWA applies. ¶6 The DPHHS prepared Phase I and Phase II treatment plans for J.H. The District Court approved the treatment plans on January 28, 2011. The treatment plans included a variety of tasks that J.H. had to complete that were intended to address the issues that led to the children being removed from the parents’ care. When the court approved the treatment 3 plans, J.H. was in the Department of Correction’s custody for failing to register as a violent offender. ¶7 The State petitioned for permanent legal custody and termination of J.H.’s parental rights on February 7, 2012. The District Court held hearings on February 24, 2012, May 2, 2012, May 29, 2012, and May 31, 2012. At the hearings, the court heard testimony from an ICWA expert, the State’s Child Protection Specialist (CPS), the children’s therapist, and J.H. The District Court issued an order on August 2, 2012, that terminated J.H.’s parental rights to the children. STANDARD OF REVIEW ¶8 We review a district court’s termination of parental rights for an abuse of discretion. In re A.N., 2005 MT 19, ¶ 17, 325 Mont. 379, 106 P.3d 556. A district court abuses its discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of reason. In re A.N., ¶ 17. We review a district court’s findings of fact to determine if they are clearly erroneous and its conclusions of law to determine if they are correct. In re I.B., 2011 MT 82, ¶ 18, 360 Mont. 132, 255 P.3d 56. DISCUSSION ¶9 Issue One: Whether the District Court properly concluded that J.H.’s treatment plans were appropriate. ¶10 J.H. argues that the District Court erroneously concluded that his treatment plans were appropriate because they were not narrowly tailored to fit his needs and circumstances. J.H. failed, however, to object to either of the treatment plans or any of their specific tasks. “A parent who does not object to a treatment plan’s goals or tasks waives the right to argue on 4 appeal that the plan was not appropriate.” In re H.R., 2012 MT 290, ¶ 10, 367 Mont. 338, 291 P.3d 583. We therefore refuse to consider J.H.’s argument that his treatment plans were not appropriate. We nevertheless note that substantial evidence supports the District Court’s finding that the treatment plans were appropriate because they sought to address J.H.’s reported sexual abuse of the children and his chemical dependency issues, the issues that caused the children to be adjudicated as youths in need of care. ¶11 Issue Two: Whether the State presented sufficient evidence to terminate J.H.’s parental rights under the ICWA. ¶12 Under Montana law, a district court may terminate parental rights if the child is adjudicated as a youth in need of care; an appropriate treatment plan has been approved by the court; the parent has not complied with the treatment plan or the treatment plan has not been successful; and the conduct or condition of the parent rendering him unfit is unlikely to change within a reasonable time. Section 41-3-609(1)(f), MCA. The parent must completely comply with the treatment plan. In re H.R., ¶ 12. Partial or even substantial compliance is insufficient. In re I.B., ¶ 27. A court must consider the best interests of the child as the paramount factor when determining whether the conduct or condition rendering the parent unfit is likely to change within a reasonable time. Section 41-3-609(3), MCA; In re B.S., 2009 MT 98, ¶ 32, 350 Mont. 86, 206 P.3d 565. ¶13 When the ICWA applies, the State additionally has to satisfy the court that it made “active efforts” to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts were unsuccessful. 25 U.S.C. § 1912(d). Because the State was seeking termination of J.H.’s parental rights, the State had 5 to prove that it had made “active efforts” beyond a reasonable doubt. In re G.S., 2002 MT 245, ¶ 33, 312 Mont. 108, 59 P.3d 1063. The ICWA also requires a state seeking termination of parental rights of an Indian child to prove beyond a reasonable doubt that the child would likely suffer serious emotional or physical damage if the parent was to maintain custody. 25 U.S.C. § 1912(f). The evidence that supports such a finding must include the testimony of a qualified expert. 25 U.S.C. § 1912(f). ¶14 Accordingly, we will affirm the District Court’s termination of J.H.’s parental rights if the District Court did not abuse its discretion when it determined that termination was warranted under § 41-3-609, MCA, a rational trier of fact could have concluded beyond a reasonable doubt that the State had made “active efforts” to provide J.H. with remedial services and rehabilitative programs, and a rational trier of fact could have concluded beyond a reasonable doubt that the children would have likely suffered serious emotional or physical damage if J.H. was to maintain custody. See In re I.B., ¶ 18. A. Active Efforts ¶15 J.H. argues that the State failed to prove beyond a reasonable doubt that it had made “active efforts” as required by the ICWA. “Active efforts” implies a heightened responsibility compared to passive efforts. In re T.W.F., 2009 MT 207, ¶ 27, 351 Mont. 233, 210 P.3d 174. Although the State cannot simply wait for the parent to complete a treatment plan under the ICWA, a court may consider the parent’s failure to participate when determining whether the State had made “active efforts.” In re T.W.F., ¶ 27. Additionally, a parent’s incarceration may limit the remedial and rehabilitative services that the State can 6 make available to the parent to prevent the breakup of the Indian family. That is not to say that the State’s obligation to make “active efforts” is excused if a parent is incarcerated, but we will not fault the State if its efforts are curtailed by the parent’s own criminal behavior. ¶16 Here, the State provided J.H. with two court-ordered treatment plans, assistance of a CPS, supervised visitation, drug testing, chemical dependency treatment, counseling, referrals to treatment providers, in-home services, and parenting coaching. J.H. refused to avail himself of those services even before he was incarcerated. After J.H. was incarcerated, the CPS attempted to help him keep in contact with the children, one of his Phase II treatment plan tasks. The CPS testified, however, that J.H. had only sent one letter to the children. ¶17 The “active efforts” that the State made to provide services for the birth mother and the children are also relevant to our review because the purpose of the ICWA is to prevent the breakup of the Indian family. The State provided the children with individual counseling, implemented a trial home visit with the birth mother, and attempted to place the children with Indian family members. Based on all of the evidence presented at the hearings, a rational trier of fact could have concluded that the State had made “active efforts” to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts were unsuccessful. B. Serious Emotional or Physical Damage ¶18 J.H. argues that the ICWA expert’s testimony at the termination hearings failed to establish beyond a reasonable doubt that the children would likely suffer severe emotional or physical harm if he was to maintain custody. Under the ICWA, the evidence supporting 7 termination of parental rights must include expert testimony. 25 U.S.C. 1912(f). Though expert testimony is required on the issue, a court’s finding that a child will likely suffer serious emotional or physical harm if the parent continues custody does not have to be based on that testimony alone. In re A.N., ¶ 32 (“a district court need not conform its decision to a particular piece of evidence or a particular expert’s report or testimony . . . .”). ¶19 The record contains more than sufficient evidence for a rational trier of fact to conclude beyond a reasonable doubt that the children would likely suffer serious emotional or physical harm if J.H. retained custody. The State’s ICWA expert testified that she believed that the children would suffer both emotional and physical harm if J.H. was to retain custody. The children’s therapist also testified that she would have concerns if J.H. was to retain custody. The therapist explained the children’s significant emotional needs, and testified that she did not think that those needs would be met if the children were placed in J.H.’s care. Moreover, the CPS testified that J.H. had failed to complete a single task on either of his treatment plans in twenty-five months and had failed to address the conduct or condition that had rendered him unfit to parent. Based on all of the evidence presented at the hearings, the District Court did not err when it concluded that the State had proven beyond a reasonable doubt that the children would likely suffer serious emotional or physical harm if J.H. was to retain custody. ¶20 For the reasons stated above, the order of the District Court is affirmed. /S/ MIKE McGRATH We concur: 8 /S/ JIM RICE /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ LAURIE McKINNON | April 30, 2013 |
00b4f1dc-3cc9-4c47-9c4e-81a0bd389c87 | State v. Spinks | 2013 MT 150N | DA 12-0561 | Montana | Montana Supreme Court | DA 12-0561 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 150N STATE OF MONTANA, Plaintiff and Appellee, v. BRIAN JOSEPH SPINKS, Defendant and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC-00-235 Honorable Holly Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Brian Joseph Spinks (Self-Represented), Great Falls, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Marty Lambert, Gallatin County Attorney, Todd Whipple, Deputy County Attorney, Bozeman, Montana Submitted on Briefs: April 17, 2013 Decided: June 4, 2013 Filed: __________________________________________ Clerk June 4 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 Brian Joseph Spinks (Spinks) appeals from an order of Montana’s Eighteenth Judicial District Court, Gallatin County, denying his petition for postconviction relief. On December 14, 2000, the State charged Spinks with two felony counts of sexual intercourse without consent in violation of § 45-5-503, MCA. The conduct forming the basis of the charges occurred on July 3, 2000. On May 1, 2001, Spinks pled guilty to amended misdemeanor charges of partner or family member assault and negligent endangerment. The District Court sentenced Spinks to one year in the custody of the Gallatin County Detention Center for each offense to run consecutively, and suspended all but the 116 days Spinks had already served for each offense. The District Court entered the sentence and judgment on May 30, 2001. ¶3 Spinks had previously pled guilty to partner or family member assault in Gallatin County Justice Court on July 5, 2000. Spinks alleges that his District Court sentence represents the second time that he was charged and sentenced for his conduct on July 3, 2000. On February 8, 2011, Spinks filed a letter with the District Court asserting that his conviction in District Court violated his constitutional double jeopardy rights. On March 8, 2011, Spinks filed a “Motion to Expunge or Retrial Due to Double Jeopardy 3 Conviction” in which he set forth his double jeopardy claim. The District Court noted that Spinks never raised any double jeopardy concerns during any earlier proceedings and did not appeal his conviction. On May 2, 2011, the District Court denied Spinks’ motion as untimely pursuant to M. R. App. P. 5(b)(i) and § 46-21-102(1), MCA. ¶4 On May 8, 2012, and July 16, 2012, Spinks filed additional motions for postconviction relief due to double jeopardy considerations. Once again, the District Court denied Spinks’ motions as untimely. Spinks appeals the District Court’s decision. We address the following issue on appeal: ¶5 Did the District Court err in denying Spinks’ petition for postconviction relief? ¶6 The District Court entered its sentence and judgment against Spinks on May 30, 2001. The judgment became final 60 days later when Spinks’ time to file a direct appeal lapsed. M. R. App. P. 5(b)(i). The statute of limitations for filing a petition for postconviction relief expired one year after the conviction became final pursuant to § 46-21-102(1), MCA. See e.g. Davis v. State, 2004 MT 112, ¶ 15, 321 Mont. 118, 88 P.3d 1285. We agree with the District Court’s conclusion that Spinks’ petition for postconviction relief and double jeopardy arguments raised for the first time nearly nine years after the expiration of the applicable statute of limitations was time-barred. ¶7 Spinks asserts that denial of his petition for postconviction relief would constitute a fundamental miscarriage of justice. However, the fundamental miscarriage of justice exception applies only to claims in which the petitioner alleges that newly discovered evidence establishes that he did not commit the offense. See State v. Evert, 2007 MT 30, ¶ 16, 336 Mont. 36, 152 P.3d 713; § 46-21-102(2), MCA. Spinks contends that the 4 victim recanted, but relies on evidence that was known to him at the time he pled guilty to the offenses. Therefore, Spinks cannot satisfy the fundamental miscarriage of justice exception. Spinks has failed to establish that any other exceptions or tolling apply to his petition. ¶8 Notwithstanding the multiple procedural bars present in this case, Spinks has failed to comply with the requirements of § 46-21-104, MCA. Spinks did not provide the District Court with any information or records pertaining to his earlier conviction in Justice Court. Even if it was determined to reach the merits, the District Court did not have sufficient evidence to evaluate the validity of Spinks’ double jeopardy claims. Accordingly, the District Court did not err in denying Spinks’ petition for postconviction relief. ¶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. 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/ BRIAN MORRIS /S/ JIM RICE | June 4, 2013 |
fd47167d-b711-4a67-bc14-be0c9cd24528 | Marriage of Hauser | 2013 MT 143N | DA 12-0582 | Montana | Montana Supreme Court | DA 12-0582 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 143N IN RE THE MARRIAGE OF: ALETA HAUSER, Petitioner and Appellant, v. JOSEPH HAUSER, Respondent and Appellee. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DR 09-550(B) Honorable Katherine R. Curtis, Presiding Judge COUNSEL OF RECORD: For Appellant: Aleta Hauser (self-represented), Columbia Falls, Montana For Appellee: Marybeth M. Sampsel; Measure, Sampsel, Sullivan & O’Brien, P.C., Kalispell, Montana Submitted on Briefs: May 1, 2013 Decided: May 28, 2013 Filed: __________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion of the Court. May 28 2013 2 ¶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 Aleta Hauser appeals the District Court’s Findings of Fact, Conclusions of Law, and Decree of Dissolution of Marriage, entered August 31, 2012. She contends that the District Court erred in valuing the parties’ business, and erred in proceeding with the trial without ruling on outstanding motions. We affirm. ¶3 The parties were married in 1995. In 2004 they used $265,000 that Joseph inherited from an uncle and received as a gift from his mother, to make a down payment on a business called the Montana Vortex & House of Mystery near Columbia Falls, Montana. They lived in a separate residence on the property. ¶4 Aleta commenced the action for dissolution of the marriage in September 2009 and the District Court conducted a bench trial in December 2011. At trial Aleta presented expert testimony that the business should be valued at $495,000, and Joseph agreed with that valuation. The District Court found that the business was encumbered with loans totaling $319,371, leaving a net equity of $175,629. The District Court found that after the parties separated, Aleta moved out of the residence and Joseph continued to run the business. The District Court found that after separation both parties took cash out of the business, and that Aleta took at least $85,000 in cash after separation. The District Court did not include that money as part of the marital estate. 3 ¶5 The District Court awarded the business and residence to Joseph, along with all the associated outstanding debt. The decree requires Joseph to obtain releases for Aleta’s personal liability on all of that debt. If he fails to do so within a year, the business and residence will be awarded to Aleta. The District Court specifically recognized that the distribution of assets favored Joseph by about $100,000, but that this was justified to account for Joseph’s use of inherited and gifted money to buy the business originally. ¶6 Upon review of the record, including the parties’ agreement on the valuation of the business, we conclude that the District Court equitably divided the parties’ property as required by § 40-4-202(1), MCA. A district court enjoys wide discretion in apportioning the marital estate, and equity does not require a 50-50 distribution. Collins v. Collins, 2004 MT 365, ¶ 30, 324 Mont. 500, 104 P.3d 1059. ¶7 Aleta also contends that the District Court erred by conducting the trial in this case without ruling upon her outstanding motions to compel discovery from Joseph. She contends that this information was necessary to place a proper valuation on the business. However, at trial Aleta presented expert evidence to support the $495,000 valuation for the business and testified that she agreed to that number. In addition, the record reflects that Aleta, through her attorney, chose to proceed with the trial without a resolution of those motions to compel. ¶8 Having agreed to proceed with trial and having agreed to the valuation of the business, Aleta may not now place the District Court in error. 4 ¶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 raised in this case are matters of judicial discretion and there clearly was not an abuse of discretion. ¶10 Affirmed. /S/ MIKE McGRATH We concur: /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ BRIAN MORRIS | May 28, 2013 |
f4da45ed-7c6c-4723-8485-e7762ede2e29 | In re Estate of Greene | 2013 MT 174 | DA 12-0735 | Montana | Montana Supreme Court | DA 12-0735 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 174 IN THE MATTER OF THE ESTATE OF LILLIANE M. GREENE, Petitioner and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DP 12-108 Honorable Karen Townsend, Presiding Judge COUNSEL OF RECORD: For Appellant: Don C. St. Peter, St. Peter Law Offices, P.C, Missoula, Montana For Appellee: Reid J. Perkins, Shane A. Vannatta, Patrick D. Dougherty, Worden Thane P.C., Missoula, Montana Submitted on Briefs: May 15, 2013 Decided: July 2, 2013 Filed: __________________________________________ Clerk July 2 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 William H. Greene appeals from the District Court’s Order filed December 5, 2012, denying as untimely his motion for substitution of judge. We affirm. ¶2 The sole issue on appeal is whether the District Court properly denied the motion for substitution. PROCEDURAL AND FACTUAL BACKGROUND ¶3 Lilliane Greene died testate on June 22, 2012. Her will named her daughter Dawn Bare as Personal Representative of the Estate. On June 28, 2012, Dawn filed an application for informal probate and for appointment of personal representative. The Clerk of Court accepted the application for informal probate and appointed Dawn the personal representative. Also on June 28 Dawn issued by mail a Notice and Information to Heirs and Devisees pursuant to § 72-3-603, MCA. The Notice specified that the Estate was “being administered by the Personal Representative under the Uniform Probate Code without supervision of the Court.” Appellant William is the decedent’s son and a devisee under her will. ¶4 On November 19, 2012, William’s attorney filed a notice of appearance in the informal probate, and also filed a Motion for Substitution of Judge pursuant to § 3-1- 804(1)(a), MCA. Subsequently, on November 28, 2012, William’s attorney filed several other pleadings in the probate, including a Petition for Supervised Administration pursuant to § 72-3-402, MCA. On December 4, 2012, the District Court denied the motion for 3 substitution as untimely, finding that William had 30 days from the date of the Notice and Information to Heirs and Devisees in which to file the motion. STANDARD OF REVIEW ¶5 A district court’s decision on whether a motion for substitution of judge is timely is a conclusion of law that this Court reviews to determine whether it is correct. In Re Marriage of Archibald, 1999 MT 258, ¶ 4, 297 Mont. 20, 993 P.2d 653. DISCUSSION ¶6 William sought to substitute the District Court judge under § 3-1-804, MCA, which provides that “[e]ach adverse party is entitled to one substitution of a district judge.” The right of substitution applies to all “judges presiding in district courts,” with the narrow exceptions of a judge sitting as a Water Court judge, the Workers’ Compensation Court judge, or a judge supervising the distribution of water under § 85-2-406, MCA. Section 3-1- 804, MCA; Patrick v. State, 2011 MT 169, ¶ 15, 361 Mont. 204, 257 P.3d 365. ¶7 Section 3-1-804, MCA, further provides: In a civil action . . . a motion for substitution by the party filing the action must be filed within 30 calendar days after the first summons is served or an adverse party has appeared. A motion for substitution by the party served must be filed within 30 calendar days after service has been completed in compliance with M. R. Civ. P. 4. Section 3-1-804(1)(a), MCA. A motion for substitution that is not timely is void, and the judge whose substitution is sought has jurisdiction to determine whether the motion is timely. Section 3-1-804(4), MCA. The District Court in the present case held that mailing the Notice and Information to Heirs and Devisees pursuant to § 72-3-603, MCA, is equivalent to service of summons referred to in § 3-1-804(1)(a), MCA. Since William 4 received that Notice on or about June 28, 2012, the District Court determined that he had 30 days in which to file his motion for substitution. Therefore, the District Court held that William’s November 19, 2012, motion was untimely. ¶8 When William filed his motion for substitution of judge on November 19, 2012, the proceeding was an informal probate of his mother’s estate. An application for informal probate is directed to the clerk of the district court, and not to the district judge. Section 72- 3-201, MCA. The clerk of the court determines whether the application for informal probate is complete and timely, § 72-3-212, MCA, and may deny the application if the statutory requirements are not met, § 72-3-214, MCA. The clerk of court makes the appointment of the personal representative when the statutory requirements are satisfied, § 72-3-225, MCA. ¶9 The right of substitution provided in § 3-1-804, MCA, applies in a “civil action” in which a “summons is served” and in which there is an “adverse party.” Pinnow v. State Fund, 2007 MT 332, ¶ 18, 340 Mont. 217, 172 P.3d 1273. None of these are present in an informal probate, which is not a contested proceeding and which does not take place under the supervision of the district court. ¶10 In the present case William petitioned for supervised administration pursuant to the provisions of Title 72, Chapter 3, Part 4, MCA, citing § 72-3-402, MCA. Supervised administration “is a single in rem proceeding to secure complete administration and settlement of a decedent’s estate under the continuing authority of the court . . . .” Section 72-3-401(1), MCA. When a petition for supervised administration is filed in an informal probate, the proceeding comes under the supervision of the district court and sufficiently partakes the elements of a civil action to trigger application of § 3-1-804, MCA. The District 5 Court was not involved in this probate until William filed his petition for supervised administration. At that point, § 3-1-804, MCA, became applicable in the proceeding. ¶11 A probate may come 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. Both proceedings require notice to be served on interested persons. See § 72-3-111(2), MCA. The timelines provided in § 3-1-804(1)(a), MCA, are triggered when that notice is given. ¶12 All of the attributes of an ordinary civil action referred to in § 3-1-804(1), MCA, may not be present in a supervised administration of an estate. At the same time, a supervised administration is not one of the three specified exclusions from coverage of the substitution statute. Patrick, ¶ 15. The function of this Court is to ascertain the meaning and intent of the statute and to arrive at a construction that gives effect to the words used. Mattson v. Montana Power, 2002 MT 113, ¶¶ 10, 13, 309 Mont. 506, 48 P.3d 34. We give effect to the words of § 3-1-804, MCA, under the facts of this case by construing it to apply in an informal probate only after a party’s petition to convert the proceeding to a court-supervised administration. ¶13 When William filed his motion for substitution of judge under § 3-1-804, MCA, the matter was an informal probate. The matter was not under the supervision of the district court, and therefore not a “civil action” for purposes of § 3-1-804, MCA. Consequently, the substitution statute did not apply. Section 3-1-804(4), MCA, provides that any motion for substitution that is not timely filed is void. Because William’s motion for substitution was 6 filed prematurely, it was not timely and was void. He could have filed another motion for substitution after filing the petition for supervised administration, but did not do so. ¶14 The District Court reached the proper conclusion, that the motion for substitution was not effective. We will affirm a district court when it reaches the correct result, even if it is for the wrong reason. In re B.A.M., 2008 MT 311, ¶ 24, 346 Mont. 49, 192 P.3d 1161. ¶15 William did not file a timely motion for substitution of judge under § 3-1-804(1), MCA, and the District Court’s decision denying his motion is affirmed. /S/ MIKE McGRATH We concur: /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT | July 2, 2013 |
e9548bb0-fcd8-4640-b63c-6113bf116f2a | City v. Magraw | 2013 MT 126N | DA 12-0610 | Montana | Montana Supreme Court | DA 12-0610 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 126N CITY OF HELENA, MONTANA, Plaintiff and Appellee, v. CHARLES ELLIOT MAGRAW, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDC 12-69 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellant: May 7 2013 2 Charles E. Magraw, self-represented; Helena, Montana For Appellee: Jeffrey M. Hindoien, Todd D. Baker; Office of the City Attorney; Helena, Montana Submitted on Briefs: April 17, 2013 Decided: May 7, 2013 Filed: __________________________________________ Clerk 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 Charles Elliott Magraw (Magraw) appeals from the order entered in this matter by the First Judicial District Court on August 13, 2012, affirming the judgment of the Helena Municipal Court that found Magraw guilty of two violations of § 5-2-14 of the Helena City Code, which prohibits animals from running at large. As he did in the District Court, Magraw challenges the application of the ordinance to his actions and also argues the ordinance is unconstitutionally vague. ¶3 Magraw was cited on May 5, 2011, and July 30, 2011, by the City of Helena’s animal control officer for owning or harboring “a dog that was running at large not on a leash” in alleged violation of the ordinance. He filed a motion to dismiss the citations, which was denied, and the two citations were consolidated for trial. A bench trial was conducted by the Helena Municipal Court on January 27, 2012, and Magraw was found guilty of both offenses. He appealed to the District Court, which rejected his arguments and affirmed his convictions. ¶4 On an appeal from municipal court, the district court functions as “an intermediate appellate court.” City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461; see §§ 3-5-303 and 3- 6-110, MCA. On subsequent appeal to this court, “we review the case as if the appeal originally had been filed in this Court.” Cantu, ¶ 10 (citation omitted). ¶5 Section 5-2-14 of the Helena City Code provides: 3 Animals Running at Large: No animal shall be allowed to run at large within the corporate limits of the city. Any person who owns, harbors or keeps an animal, or the parent or guardian of any such person under the age of eighteen (18) years, shall be strictly liable for any violation of this section. All animals not confined within an enclosure or on the owner’s property shall be kept on a leash not more than ten feet (10’) long, securely restrained, or held so as to prevent the animal from running at large, with the following exception: All dogs must be kept under control, either on a leash or within sight and under voice control of their owners or other competent persons when they are within any “natural park” as defined in section 7-12-1 of this code and as designated by the city commission. Dogs must be kept on a leash within one hundred (100) yards of any trailhead in any natural park. ¶6 Magraw acknowledges that he did not have his dog leashed at the times stated in the citations, but argues “if the dog is at-heel there is no violation” of the ordinance. Throughout this proceeding, Magraw has been long on legal argument about the construction and meaning of the ordinance, but short on development of a factual record. By asserting that his dog was “at-heel,” he apparently contends that he satisfied the requirements of the ordinance that the animal be “securely restrained” by being “within sight and under voice control of their owners or other competent persons” or otherwise held “as to prevent the animal from running at large.” However, even if Magraw’s interpretational arguments had merit, the problem is the lack of a factual record demonstrating exactly what Magraw and his dog were doing at the time the citations were issued. As the District Court noted, “[e]ven if Magraw’s interpretation is correct, there is no evidence that the dog was at heel, securely restrained, or held. Magraw introduced photographs at trial, all of which simply show a loose dog . . . there was no testimony about whether the dog did or did not stay.” ¶7 “[L]egal conclusions must emanate from a factual record, which is absent here.” Confederated Salish and Kootenai Tribes v. Clinch, 2007 MT 63, ¶ 31, 336 Mont. 302, 158 P.3d 377. The power of the courts is limited to “‘justiciable controversies.’” State v. Benn, 2012 MT 33, ¶ 9, 364 Mont. 153, 274 4 P.3d 47 (citations omitted). “‘[A] ‘controversy,’ in the constitutional sense, is one that is ‘definite and concrete, touching legal relations of parties having adverse legal interests’; it is ‘a real and substantial controversy, admitting of specific relief through decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts, or upon an abstract proposition.’” Benn, ¶ 9 (citations omitted). Even if we were to agree with Magraw’s interpretation of the ordinance, there would not be an evidentiary basis to reverse his conviction. We have no factual basis on which to render a legal judgment about proper application of the ordinance. ¶8 Magraw also contends that the ordinance is unconstitutionally vague, noting the differing interpretations that have been offered. This ordinance may well lack clarity, but difficulty in interpretation does not necessarily render an ordinance void for vagueness. Statutes are presumed to be constitutional, and challengers must satisfy the burden of proving them to be unconstitutional beyond a reasonable doubt. We conclude that Magraw has not met this burden. ¶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. The issues in this case are ones controlled by settled law that were correctly interpreted by the Municipal Court and the District Court. ¶10 Affirmed. /S/ JIM RICE We concur: 5 /S/ MIKE McGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON | May 7, 2013 |
e4726933-a3da-4389-9872-d7532569290b | In re Marriage of Pfeifer | 2013 MT 129 | DA 12-0536 | Montana | Montana Supreme Court | DA 12-0536 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 129 IN RE THE MARRIAGE OF: SUSAN J. PFEIFER, Petitioner and Appellee, v. PHILLIP CHRISTOPHER MEREDITH PFEIFER, Respondent and Appellant. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DR 94-197 Honorable C.B. McNeil, Presiding Judge COUNSEL OF RECORD: For Appellant: Fred Simpson, Reep, Bell & Laird, P.C., Missoula, Montana For Appellee: Brian L. Taylor, Joshua I. Campbell; Jardine, Stephenson, Blewett & Weaver, P.C., Great Falls, Montana Submitted on Briefs: April 10, 2013 Decided: May 14, 2013 Filed: __________________________________________ Clerk May 14 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Phillip Pfeifer appeals from the District Court’s Order Granting Motion to Enforce, filed August 6, 2012. We affirm. ¶2 Phillip presents the following issues for review: ¶3 Issue One: Whether the District Court erred by requiring Phillip to pay child support beyond the 18th birthday of the parties’ child. ¶4 Issue Two: Whether the District Court should have applied the doctrine of equitable estoppel to preclude Susan’s claim for back child support. PROCEDURAL AND FACTUAL BACKGROUND ¶5 The parties were married in 1988 and the marriage was terminated in a Decree of Dissolution entered in December, 1995.1 They had one child, a daughter born in 1988. Pursuant to the Decree, Phillip paid child support of $6,977 per month for over ten years, until their daughter’s eighteenth birthday in November, 2006. The Decree required that support payments would “continue until the child reaches majority, graduates from high school or is otherwise emancipated.” In June, 2012, Susan filed a petition seeking additional child support payments for the period between their daughter’s eighteenth birthday in November 2006, and her graduation from high school in July 2007. The District Court applied § 40-4-208(5), MCA, to determine that Phillip’s child support obligation did not 1 Appeals involving the parties’ dissolution proceedings have been brought to this Court several times. Pfeifer v. Pfeifer, 282 Mont. 461, 938 P.2d 684 (1997); In re the Marriage of Pfeifer, 1998 MT 228, 291 Mont. 23, 965 P.2d 895; In re the Marriage of Pfeifer, 2000 MT 100, 299 Mont. 268, 999 P.2d 340. 3 terminate until their daughter graduated from high school. The District Court granted the petition, awarding Susan a judgment of $55,816. ¶6 Phillip appeals. STANDARD OF REVIEW ¶7 The construction of the Decree of Dissolution and the application of § 40-4-208, MCA, involve conclusions of law, which we review to determine whether they are correct. In re Marriage of Pfeifer, 1998 MT 228, ¶ 9, 291 Mont. 23, 965 P.2d 895. DISCUSSION ¶8 Issue One: Whether the District Court erred by requiring Phillip to pay child support beyond the 18th birthday of the parties’ child. ¶9 The District Court determined that the Decree of Dissolution was ambiguous in providing that the obligation of child support continued until the child reaches majority, graduates from high school or is otherwise emancipated. That provision does not state whether the support obligation continues until the earlier or the later of those three dates and we agree with the District Court’s conclusion that it is ambiguous. Section 40-4-208(5), MCA, provides: Provisions for the support of a child are terminated by emancipation of the child or the child’s graduation from high school if the child is enrolled in high school, whichever occurs later, but in no event later than the child’s 19th birthday, unless the termination date is extended or knowingly waived by written agreement or by an express provision of the decree. (Emphasis added.) Under this statute, the obligation to pay child support in this case extended to the parties’ daughter’s graduation from high school, as the District Court 4 concluded. ¶10 Phillip contends that the statutory provisions have been waived by express provision of the decree. The statute allows the parties by written agreement or by an express provision included in the dissolution decree, to establish a specific termination date for child support payments. In re the Marriage of Gingerich, 269 Mont. 161, 166, 887 P.2d 714, 717 (1994). In that case this Court upheld enforcement of the decree, which provided that support continued “until the child reached majority or was earlier emancipated.” There is no applicable written agreement concerning the termination of child support in this case, and we find nothing in the 1995 Decree of Dissolution that expressly establishes the date for termination of child support. ¶11 Since the Decree of Dissolution did not expressly provide the termination date for child support payments, § 40-4-208(5), MCA, controls and provides for a termination date upon the daughter’s graduation from high school. ¶12 Issue Two: Whether the District Court should have applied the doctrine of equitable estoppel to preclude Susan’s claim for back child support. ¶13 Phillip contends that he ceased child support payments when his daughter turned 18 in 2006 and that Susan never made any demand for additional payments until she filed a motion with the District Court in 2012. Phillip further contends that after he ceased child support payments he made substantial payments for his daughter’s needs, including college tuition. He contends that had he known Susan’s position on child support, he would have requested that she pay a share of those needs. This, he argues, calls for the application of estoppel to 5 bar the claim for additional child support. The District Court did not expressly rule on the estoppel argument. ¶14 It is “established law in Montana that neither laches nor equitable estoppel applies to recovery of child support arrears.” Schmitz v. Engstrom, 2000 MT 275, ¶ 14, 302 Mont. 121, 13 P.3d 38, citing Fitzgerald v. Fitzgerald, 190 Mont. 66, 69-71, 618 P.2d 867, 869 (1980). The only exception is when the parties have agreed to modify the amount of child support provided for in a decree, and that agreement “is observed over a period of years.” In re the Marriage of Hooper, 247 Mont. 322, 324, 806 P.2d 541, 543 (1991); In re Marriage of Windhalm, 279 Mont. 97, 101, 926 P.2d 748, 751 (1996); In re Marriage of Jensen, 223 Mont. 434, 727 P.2d 512 (1986). Additionally, there must be a substantial and continuing change in circumstances rendering the original support decree inequitable; there must be a mutual agreement between the parties made in good faith; and there must be conduct consistent with the agreement over a period of years, all established by clear and convincing evidence. Hooper, 247 Mont. at 324, 806 P.2d at 543. This policy serves and protects the rights of the children. Schmitz, ¶ 14. ¶15 This Court upheld an exception to the general policy when the facts apparently demonstrated that the mother’s conduct supported an implied agreement that the father not pay child support. In re the Marriage of Shorten, 1998 MT 267, 291 Mont. 317, 967 P.2d 797. Shorten is overruled to the extent that it allows for application of general principles of estoppel to claims for unpaid child support in the absence of an agreement between the parties to accept a modification of the child support obligation. 6 ¶16 There is no evidence in this case of any agreement between the parties to modify the child support obligation provided in the Decree of Dissolution. Therefore estoppel does not apply. ¶17 The District Court correctly applied the law. We affirm. /S/ MIKE McGRATH We concur: /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ BRIAN MORRIS Justice Jim Rice dissents. ¶18 Curiously, the Court reasons that “the Decree of Dissolution did not expressly provide the termination date for child support payments,” Opinion, ¶ 11, and, therefore, the statute controls and sets the support termination date as the child’s graduation. The Decree provided that Phillip’s support obligation would “continue until the child reaches majority, graduates from high school or is otherwise emancipated.” Opinion, ¶ 5 (emphasis added). I don’t know how the Decree could have been clearer. The support obligation was to continue until the occurrence of any one of three events. The child reached majority in November 2006, and Phillip’s support obligation ended at that time. I would reverse. /S/ JIM RICE 7 | May 14, 2013 |
9bb27fe9-c19d-4f74-ac92-57a579c7f617 | Sullivan v. Continental Constr. of Mont., LLC | 2013 MT 106 | DA 12-0489 | Montana | Montana Supreme Court | DA 12-0489 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 106 MICHAEL SULLIVAN, Plaintiff and Appellant, v. CONTINENTAL CONSTRUCTION OF MONTANA, LLC, Defendant and Appellee. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV 11-119A Honorable Holly Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Todd Shea, Shea Law Firm, P.L.L.C.; Bozeman, Montana For Appellee: Edmond E. Koester; Coleman, Yovanovich & Koester, P.A.; Naples, Florida Dennis P. Clarke; Smith, Walsh, Clarke & Gregoire, PLLP; Great Falls, Montana Submitted on Briefs: February 27, 2013 Decided: April 23, 2013 Filed: __________________________________________ Clerk April 23 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Michael Sullivan (Sullivan) filed a wrongful discharge action in the Eighteenth Judicial District, Gallatin County. The District Court granted summary judgment in favor of Continental Construction of Montana, LLC (Continental Construction). Sullivan appeals. We affirm. ¶2 Sullivan presents the following issues on appeal: ¶3 Whether the District Court properly concluded that Continental Construction had good cause to terminate Sullivan’s employment? ¶4 Whether Continental Construction improperly considered hearsay evidence in deciding to terminate Sullivan’s employment? ¶5 Whether the District Court improperly considered hearsay evidence in concluding that Continental Construction had good cause to terminate Sullivan’s employment? ¶6 Whether the District Court properly concluded that Continental Construction did not violate the provisions of its employee handbook when it terminated Sullivan’s employment? PROCEDURAL AND FACTUAL BACKGROUND ¶7 Continental Construction operates a construction company from its headquarters in Florida. Continental Construction hired Sullivan as a construction site supervisor in April 2008. Sullivan directly supervised many of Continental Construction’s employees in Montana. Sullivan also worked directly with many of Continental Construction’s subcontractors and clients. 3 ¶8 Sullivan left Montana on a scheduled vacation on October 21, 2010. John Cecil (Cecil), the Vice President of Construction for Continental Construction, travelled to Montana from Florida to replace Sullivan while Sullivan was on vacation. A group of Continental Construction employees approached Cecil that same day. The employees informed Cecil that they were unhappy with Sullivan as a supervisor. Cecil understood that these employees were threatening to quit unless Continental Construction immediately terminated Sullivan’s position as their supervisor. ¶9 Cecil called Peg Wilson (Wilson), Continental Construction’s office manager in Florida, to inform her of the employees’ dissatisfaction with Sullivan. Wilson instructed Cecil to interview each of the employees individually about their experiences with Sullivan. John Wallace (Wallace), the administrator for Continental Construction in Montana, helped Cecil conduct these interviews the following day, on October 22, 2010. ¶10 These interviews revealed that many employees felt that Sullivan routinely made demeaning and derogatory comments about Continental Construction’s management to both employees and non-employees. Sullivan also made derogatory and demeaning comments to employees and subcontractors about their work. Several employees reported that Sullivan often showed up late to work and would disappear for extended periods of time during the working shift. Many employees believed that Sullivan negatively affected employee morale. ¶11 Wallace e-mailed to Wilson copies of his notes from the employee interviews that same day. Wilson shared the notes with James Murphy (Murphy), the sole owner and president of Continental Construction, and Michael Kluck (Kluck), a Continental 4 Construction supervisor in Florida. Wilson, Murphy, and Kluck determined that Sullivan’s conduct did not meet the standards for Continental Construction supervisors. Wilson, Murphy, and Kluck decided to terminate Sullivan’s employment immediately. ¶12 Continental Construction contacted Sullivan by telephone on October 26, 2010, to notify him that his employment had been terminated. Continental Construction provided Sullivan with a letter that set forth the reasons for his discharge. The letter stated that Sullivan had been discharged for treating employees and subcontractors in a demeaning manner; for having frequent unexplained absences from work; for speaking to others in a derogatory manner about customers and employees; and for behaving in a manner that did not meet the standards of Continental Construction. ¶13 Sullivan filed an action that alleged that Continental Construction had violated the Montana Wrongful Discharge from Employment Act (WDEA), §§ 39-2-901 to 39-2-915, MCA. Continental Construction defended on the basis that it had terminated Sullivan’s employment for a valid business reason. Sullivan and Continental Construction filed cross- motions for summary judgment. The District Court granted Continental Construction’s motion for summary judgment. Sullivan appeals. STANDARD OF REVIEW ¶14 We review de novo a district court’s grant of summary judgment. McConkey v. Flathead Elec. Coop., 2005 MT 334, ¶ 19, 330 Mont. 48, 125 P.3d 1121. We apply the same method of evaluation applied by the district court. McConkey, ¶ 19. Summary judgment is proper if no genuine issues of material fact exist and the moving party is entitled to judgment 5 as a matter of law. McConkey, ¶ 19. The party seeking summary judgment possesses the burden of establishing a complete absence of any genuine issues of material fact. McConkey, ¶ 19. Once the moving party has met its burden, the opposing party must present material and substantial evidence, rather than mere conclusory or speculative statements, to raise a genuine issue of material fact. McConkey, ¶ 19. DISCUSSION ¶15 Sullivan argues that he raised genuine issues of material fact to suggest that Continental Construction violated WDEA when it terminated Sullivan. Sullivan first argues that he raised genuine issues of material fact to demonstrate that Continental Construction had discharged him without good cause, in violation of § 39-2-904(1)(b), MCA. Sullivan claims that the District Court improperly relied upon hearsay evidence in finding that Continental Construction possessed good cause. Sullivan further argues that he raised genuine issues of material fact to demonstrate that Continental Construction had not followed the provisions of its employee handbook when it terminated his employment, in violation of § 39-2-904(1)(c), MCA. ¶16 Whether the District Court properly concluded that Continental Construction had good cause to terminate Sullivan’s employment? ¶17 A discharge is wrongful if no good cause exists for the termination. Section 39-2- 904(1)(b), MCA. Good cause includes a legitimate business reason. A legitimate business reason involves “a reason that is neither false, whimsical, arbitrary or capricious and it must 6 have some logical relationship to the needs of the business.” McConkey, ¶ 26 (quoting Buck v. Billings Mont. Chevrolet, Inc., 248 Mont. 276, 281-82, 811 P.2d 537, 540). ¶18 This Court has stressed the importance of the “right of an employer to exercise discretion” over whom “it will employ and keep in employment.” McConkey, ¶ 26 (quoting Buck, 248 Mont. at 282, 811 P.2d at 540). We afford employers the greatest discretion where an employee occupies a “sensitive” managerial position and exercises “broad discretion” in his job duties. McConkey, ¶ 26. We have emphasized that a court should not become involved in the day-to-day employment decisions of a business regarding its management. McConkey, ¶ 26 (quoting Buck, 248 Mont. at 282, 811 P.2d at 541). ¶19 This Court considered an employer’s desire to hire a trusted manager in Buck. Jim Buck (Buck) served as general manager at a Chevrolet dealership. Buck, 248 Mont. at 279, 811 P.2d at 539. F.S. Enterprises purchased the dealership and promptly terminated Buck’s employment. Buck, 248 Mont. at 280, 811 P.2d at 539. F.S. Enterprises did not allege that Buck had engaged in any wrongful conduct that merited termination. In fact, Buck had been an exemplary employee. Buck, 248 Mont. at 279, 811 P.2d at 539. F.S. Enterprises nevertheless replaced Buck as general manager with a longtime employee of F.S. Enterprises. ¶20 The controlling stockholder of F.S. Enterprises lived in Louisiana. He wanted a long- term employee whom he trusted to manage his new investment in Montana. Buck, 248 Mont. at 282, 811 P.2d at 541. This Court recognized that it would be “against common sense and rationality” to force F.S. Enterprises to “retain someone who it did not know or 7 perhaps even trust to manage a large dollar investment.” Buck, 248 Mont. at 282-83, 811 P.2d at 541. This Court agreed that F.S. Enterprises possessed a legitimate business reason to terminate Buck. Buck, 248 Mont. at 283, 811 P.2d at 541. ¶21 The Court cautioned, however, that its determination applied only to employees who “occupy sensitive managerial or confidential positions” that “require the exercise of broad discretion.” Buck, 248 Mont. at 283, 811 P.2d at 541. A company’s interest in “running its business as it sees fit” would not apply to a decision to terminate a lower echelon employee. Buck, 248 Mont. at 283, 811 P.2d at 541. ¶22 This Court considered again in McConkey a firm’s interest in employing a manager whom it could trust. Warren McConkey (McConkey) served as the general manager of Flathead Electric Cooperative (FEC). McConkey, ¶ 8. McConkey convinced FEC to acquire another utility. McConkey, ¶ 9. FEC’s debt to equity ratio fell to the low single digits after FEC’s acquisition of the other utility. McConkey, ¶ 27. FEC also substantially increased its electricity rates, including 6.9% in 2000, 29% in April 2001, and 12.5% in October 2001. McConkey, ¶ 11. The FEC Board of Trustees voted unanimously in February 2002 to terminate McConkey’s employment as the general manager. McConkey, ¶ 14. ¶23 This Court determined that FEC possessed a legitimate business reason to terminate McConkey’s employment. McConkey, ¶ 31. FEC believed that McConkey’s managerial decisions had caused substantial damage to the company. McConkey, ¶ 31. FEC possessed broad discretion to terminate employment of a general manager if he failed to perform his job satisfactorily. McConkey, ¶ 31. 8 ¶24 Sullivan, similar to McConkey and Buck, occupied a managerial position within his company. Continental Construction’s executives work in Florida. Continental Construction argues that the lack of daily oversight from its Florida executives made it especially important to employ a trustworthy construction site manager in Montana. See Buck, 248 Mont. at 282, 811 P.2d at 541. Sullivan had engaged in activities that Continental Construction feared would cause substantial damage to the company. See McConkey, ¶ 31. ¶25 Continental Construction possessed broad discretion to terminate a person in an executive position, like Sullivan, if he had failed to fulfill his job requirements. See McConkey, ¶ 31. Continental Construction also possessed broad discretion to terminate Sullivan if it believed it could not trust him as a manager to run the day-to-day operations. See Buck, 248 Mont. at 282, 811 P.2d at 541. Here, Continental Construction concluded on the basis of its investigation that Sullivan had failed to fulfill the requirements of his managerial position and had failed to act in a trustworthy manner. We agree with the District Court that Continental Construction made what it determined to be a legitimate business decision to terminate Sullivan’s employment. We afford considerable discretion to Continental Construction’s decision. See McConkey, ¶ 31; Buck, 248 Mont. at 282, 811 P.2d at 541. ¶26 Sullivan argues that he raised genuine issues of material fact to suggest that Continental Construction lacked good cause to terminate his employment. Sullivan points to statements by other Continental Construction employees who indicated that Sullivan had not acted inappropriately in their presence. Sullivan also argued that he regularly had invited his 9 employees over to his house for dinner and recently organized a group golf trip for his employees. ¶27 The fact that not every Continental Construction employee complained about Sullivan failed to undermine the validity of Continental Construction’s conclusion that Sullivan’s continued employment could threaten its future viability in Montana. Similarly, the fact that Sullivan apparently treated some employees well does not challenge the validity of the complaints made by other Continental Construction employees. Sullivan failed to present material and substantial evidence to raise a genuine issue of material fact as to whether Continental Construction possessed a legitimate business reason to terminate Sullivan’s employment. McConkey, ¶ 19. ¶28 Whether Continental Construction improperly considered hearsay evidence in deciding to terminate Sullivan’s employment? ¶29 Sullivan argues that Continental Construction improperly relied upon hearsay statements from Continental Construction employees when it made the determination to terminate Sullivan’s employment. Sullivan points out that the Continental Construction managers who made the decision to terminate Sullivan’s employment never had spoken directly with the employees who had complained about Sullivan. Sullivan contends that Continental Construction acted arbitrarily and capriciously when it terminated Sullivan’s employment based entirely on hearsay statements detailed in the interview notes. ¶30 No legal authority supports the notion that a business cannot rely on hearsay statements when it makes a business judgment regarding whether to terminate an employee. 10 The Montana Rules of Evidence, which limit the admissibility of hearsay evidence, apply only to courts, not to private businesses. See M. R. Evid. 101. Further, it would have been impractical to have required Continental Construction’s managers in Florida to conduct in- person interviews with each employee in Montana before having made a determination whether to terminate Sullivan’s employment. Nothing prohibited Continental Construction from directing two of its employees to conduct interviews in Montana and report their findings to the management in Florida. Nothing prohibited Continental Construction from relying on these reports when it made its determination whether to terminate Sullivan’s employment. ¶31 Whether the District Court improperly considered hearsay evidence in concluding that Continental Construction had good cause to terminate Sullivan’s employment? ¶32 Sullivan next argues that the District Court improperly considered hearsay evidence as it determined whether Continental Construction possessed good cause to terminate Sullivan’s employment. Hearsay is a statement, other than one made by the declarant while testifying, offered into evidence to prove the truth of the matter asserted. M. R. Evid. 801. Evidence introduced for a purpose other than to establish the truth of the statement is not hearsay. See Moats Trucking Co. v. Gallatin Dairies, 231 Mont. 474, 479, 753 P.2d 883, 886 (1988). ¶33 Continental Construction submitted the depositions of Cecil, Wallace, Wilson, Murphy, and Kluck in support of its motion for summary judgment. These Continental Construction managers described having conducted interviews with employees, having taken notes, having submitted those notes to the Florida office, and the decisions made in the 11 Florida office based on those notes. Continental Construction also submitted the underlying interview notes. Continental Construction admits that this evidence would have represented inadmissible hearsay if Continental Construction had offered it to prove the truth of the allegations against Sullivan. ¶34 Continental Construction argues instead that it introduced the interview notes and depositions to explain its subsequent decision to terminate Sullivan’s employment. Continental Construction contends therefore that this evidence did not represent inadmissible hearsay. See Moats, 231 Mont. at 479, 753 P.2d at 886. We agree. The statements contained in the reports that Continental Construction received from its employees formed the basis for its decision to terminate Sullivan’s employment. The District Court properly considered this evidence when it determined that Continental Construction possessed a legitimate business reason that was not false, whimsical, arbitrary or capricious, when it terminated Sullivan’s employment. See Moats, 231 Mont. at 479, 753 P.2d at 886. ¶35 Continental Construction further argues that the WDEA does not require it to prove the truth of the allegations of bad behavior against Sullivan. In light of Sullivan’s managerial status and the employer’s basis for dismissing him, the WDEA requires the District Court to consider whether Continental Construction possessed a business reason that was not arbitrary or capricious to terminate Sullivan’s employment. McConkey, ¶ 26. The District Court properly considered whether Continental Construction, based on the information that it had before it, acted arbitrarily or capriciously when it terminated Sullivan’s employment. Sullivan has not argued or provided any evidence that Continental 12 Construction fabricated the employee reports as a pretext to terminate Sullivan’s employment or that Continental Construction otherwise acted in bad faith. Nothing in the WDEA requires the District Court to conduct independent fact-finding to determine the truth of the allegations against Sullivan under the facts presented here. ¶36 Sullivan further alleges that Continental Construction terminated his employment based on a mistake. Sullivan argues, as a result, that the District Court should have evaluated the truth of the allegations against Sullivan. Sullivan cites a Ninth Circuit decision, Marcy v. Delta Airlines, 166 F.3d 1279 (9th Cir. 1999), for the proposition that the District Court needed to consider the truth of the allegations against Sullivan to conclude that Continental Construction had not terminated Sullivan’s employment based on a mistake. ¶37 The employer in Marcy terminated an employee after she had falsified her payroll records. The employee introduced evidence to suggest that she had falsified the payroll record inadvertently and therefore had been terminated based on a mistake. Marcy, 166 F.3d at 1280. The Ninth Circuit determined that Montana law precludes summary judgment when an employee claims that the employer terminated her employment based on a mistake, even if no evidence existed that the employer acted in bad faith. Marcy, 166 F.3d at 1287. ¶38 Sullivan has offered no evidence that Continental Construction decided to terminate Sullivan’s employment based on a mistake. Sullivan offered evidence that some employees and subcontractors stated that they had enjoyed working with Sullivan and that he had not acted inappropriately toward them. Continental Construction possessed substantial conflicting evidence in the interview notes. Continental Construction made a business 13 judgment to terminate an employee who acted inappropriately some, but perhaps not all, of the time. No issue of mistake existed here. The WDEA does not require the District Court to conduct independent fact-finding to determine the truth of the allegations against Sullivan under the facts presented here. ¶39 Whether the District Court properly concluded that Continental Construction did not violate the provisions of its employee handbook when it terminated Sullivan’s employment? ¶40 Sullivan next argues that Continental Construction wrongfully discharged him when it violated the protocols set forth in the employee handbook. Continental Construction provided Sullivan with no prior written warning. Sullivan argues that the employee handbook required Continental Construction to give him two prior written warnings before Continental Construction could terminate his employment. ¶41 Continental Construction’s employee handbook provides that “[a] violation . . . will result in the issuance of a written warning unless the seriousness of the violation calls for a stronger disciplinary action.” The employee handbook lists “types of conduct” that may lead to disciplinary action “up to and including immediate termination of employment.” The employee handbook preserved Continental Construction’s right to terminate immediately an employee based on the “seriousness of the violation.” ¶42 Continental Construction’s employee handbook provided that Continental Construction could terminate Sullivan immediately for any of the reasons enumerated in its termination letter. The employee handbook stated that “excessive tardiness or absenteeism” could result in termination of employment. Engaging in “conduct detrimental to Continental 14 Construction and/or its efficient operation” could result in immediate termination. The employee handbook further provided that “this is not an all-inclusive listing of unacceptable behaviors. Other types of conduct will be evaluated and handled according to the severity of the conduct.” ¶43 A review of Continental Construction’s employee handbook demonstrates that no guarantee existed that Sullivan would receive two written warnings before Continental Construction could terminate his employment. The employee handbook provides that Continental Construction could terminate employees immediately for a variety of misconduct. This misconduct includes the types of activities for which Continental Construction terminated Sullivan’s employment. ¶44 Further, Continental Construction possessed more leeway in determining whether to give written warnings or to terminate Sullivan’s employment immediately after Continental Construction learned that Sullivan, a manager, had engaged continually in multiple violations of the employee handbook. This Court may have more closely scrutinized Continental Construction’s decision to terminate Sullivan’s employment immediately if Continental Construction had learned of only one violation, or had learned of a violation committed by a lower echelon employee. See Buck, 248 Mont. at 283, 811 P.2d at 541. ¶45 Sullivan next argues that Continental Construction violated the employee handbook by failing to provide Sullivan with a “fair” and “thorough” hearing before it terminated his employment. Continental Construction provided Sullivan with no chance to explain his actions before it made the decision to terminate his employment. The employee handbook 15 does not guarantee, as Sullivan argues, that Continental Construction will “fairly” and “thoroughly” discuss disciplinary matters with an employee before it terminates his employment. The employee handbook discusses “fair” and “thorough” in a section entitled Grievance Problem-Solving. This section discusses the process that Continental Construction will follow when an employee complains about a problem that he is experiencing at work. The employee handbook does not discuss “fair” or “thorough” in relation to its disciplinary procedure. ¶46 Continental Construction attempted to address fairly and thoroughly concerns raised by its Montana employees regarding Sullivan’s conduct. Continental Construction interviewed each employee individually and provided the notes taken during those interviews to the office in Florida. Continental Construction ultimately determined that the employees’ concerns merited the removal of their immediate supervisor, Sullivan. Continental Construction did not violate the provisions of its employee handbook in the manner that it terminated Sullivan’s employment. ¶47 Affirmed. /S/ BRIAN MORRIS We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ BETH BAKER | April 23, 2013 |
a5bcfd29-6b4f-4720-a392-8b092c751520 | Bailey v. State Farm Auto. Ins. Co. | 2013 MT 119 | DA 12-0247 | Montana | Montana Supreme Court | DA 12-0247 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 119 BRENDA BAILEY AND J. STANLEY BAILEY, JR., Plaintiffs and Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, MARK OLSON AND DOES 1-3, Defendants and Appellees. APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Glacier, Cause No. DV-09-18 Honorable Laurie McKinnon, Presiding Judge COUNSEL OF RECORD: For Appellant: Michael J. George, Lucero & George, L.L.P., Great Falls, Montana For Appellee: Robert F. James, Jordan Y. Crosby, Ugrin, Alexander, Zadick & Higgins, P.C., Great Falls, Montana Submitted on Briefs: February 27, 2013 Decided: Filed: __________________________________________ Clerk May 2 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Brenda Bailey and J. Stanley Bailey, Jr. (the Baileys) appeal from an order of the Ninth Judicial District Court, Glacier County, granting summary judgment to State Farm and Mark Olson (Olson) on the Baileys’ claims that State Farm and Olson negligently failed to secure underinsured motorist (UIM) coverage for the Baileys. We reverse the District Court’s entry of summary judgment in favor of State Farm and Olson, and remand for further proceedings. ISSUES ¶2 The Baileys raise the following two issues on appeal: ¶3 1. Did the District Court err in granting summary judgment when it found no genuine issues of material fact with respect to the duty of State Farm and Olson to procure UIM coverage for the Baileys? ¶4 2. Did the District Court err in granting summary judgment by failing to recognize and impose a duty arising in negligence beyond a duty to procure requested coverage? FACTUAL AND PROCEDURAL BACKGROUND ¶5 On October 19, 2006, a drunk driver crossed the highway centerline and collided head-on with the Baileys’ vehicle. The Baileys sustained very serious injuries in the accident. Stan was flown to Harborview Medical Center in Seattle and remained a patient there for five months. Brenda spent a significant amount of time hospitalized in Kalispell and Cut Bank. Brenda remains wheelchair bound as a result of her injuries. The Baileys incurred medical expenses in excess of $1,000,000. 3 ¶6 The Baileys moved from Oregon to East Glacier, Montana, in March 1998. The Baileys had been State Farm customers for many years. On April 3, 1998, the Baileys went to the Mark Olson State Farm Agency in Cut Bank, Montana, to transfer their Oregon State Farm policy to Montana. Insurance agent Nola Peterson Softich (Softich) assisted the Baileys. The Baileys specifically recalled presenting their Oregon State Farm insurance cards to Softich and requesting that the same coverage they carried in Oregon be transferred to Montana. The Baileys also maintain that they requested full coverage. ¶7 Softich completed a computerized insurance application for each of the Baileys’ two vehicles. Each application listed twelve types of coverage and displayed a “Yes” or “No” next to each coverage to indicate whether that coverage was selected. The State Farm policies sold to the Baileys in Montana contained liability coverage limits of $250,000 per person and $500,000 per occurrence for bodily injury, $100,000 for property damage liability, $5,000 in medical payments coverage, and uninsured motorist (UM) coverage limits of $100,000 per person and $300,000 per occurrence. On both applications, Softich entered a “No” next to the UIM coverage. After Softich filled out the applications, Stan signed both applications. The application contained the following language directly above the signature line: I apply for the insurance indicated and state that (1) I have read this application, (2) my statements on this application are correct, (3) statements made on any other applications on this date for automobile insurance with this company are correct and are made part of this application, (4) I am the sole owner of the described vehicle except as otherwise stated, and (5) the limits and coverages were selected by me. 4 ¶8 Stan testified in his deposition that he typically did not read any insurance documents because he relied on his agent to provide him with the important information. Brenda recalled receiving insurance cards from State Farm, but did not recall reviewing any policies or other information from State Farm. State Farm and Olson maintained that the Baileys received new insurance cards and renewal notices listing the various coverages twice every year. ¶9 Although Softich had no independent recollection of her initial interaction with the Baileys, she testified that it was her habit and practice to always review the “ACHUW” coverages with new customers. “ACHUW” stands for: A – liability; C – medical payment; H – emergency towing; U – uninsured motorist; and W – underinsured motorist. Softich claimed that UIM coverage must have been offered to the Baileys. Softich also testified that she never advised customers to lower their UM or UIM coverage. Olson admitted that he did not know whether the Baileys were offered UIM coverage, but his staff is supposed to go through every coverage. The Baileys had no specific recollection of whether the “ACHUW” coverages were discussed when they met with Softich. ¶10 It is undisputed that the Baileys’ State Farm automobile insurance policy obtained in Montana did not match their previous policy from Oregon. The Baileys’ Oregon policies provided the following coverages: (1) bodily injury liability, $300,000 per person/$500,000 per occurrence; (2) property damage, $100,000; (3) personal injury protection (analogous to medical payments coverage) $100,000; (4) UM, $300,000 per person/$500,000 per occurrence; and (5) UIM, $300,000 per person/$500,000 per 5 occurrence. Notably, Oregon law mandates the UM coverage must include UIM protection. See Or. Rev. Stat. § 742.502(2)(a). In Oregon, State Farm combines the UM and UIM coverages and denotes both as a single “U” coverage. Olson and his staff admitted that before becoming involved in this litigation, they were unaware that “U” was used in Oregon to represent both UM and UIM coverage. ¶11 In May 2005, Stan called an employee of Olson, Jeannie Fetters (Fetters), on the telephone to discuss his State Farm policy. Fetters made note of the conversation in her records and recalled that Stan was interested in changing the deductibles on his collision coverage and removing his emergency road service coverage. During their conversation, Fetters reviewed his policy and mentioned to Stan that he did not have UIM coverage. Fetters admitted that the portion of the phone conversation dealing with UIM coverage lasted “maybe 30, 45 seconds, or a minute” and she did not discuss what UIM coverage entailed. Fetters testified that Stan told her that he was not interested and he only wanted to make the requested changes. ¶12 Following the automobile accident that occurred on October 19, 2006, the Baileys learned that they had only $5,000 in medical payments coverage and did not have any UIM coverage. In fact, the Baileys testified that they were unaware what UIM coverage was until after the accident. The drunk driver who caused the accident carried the statutory minimum automobile liability insurance limits. The Baileys’ medical expenses and other damages far exceeded the liability coverage of the drunk driver. ¶13 On May 20, 2009, the Baileys filed their complaint against State Farm and Olson alleging that Olson was negligent in failing to obtain the appropriate insurance coverages. 6 The Baileys requested declaratory relief and asked the District Court to reform the insurance policy to include UIM coverage in the same amount as their liability coverage. The Baileys also alleged that Olson breached his fiduciary duty by failing to secure UIM coverage and failing to advise them of the need to obtain UIM coverage. Lastly, the Baileys alleged that Olson’s actions constituted actual malice sufficient to support an award of punitive damages. ¶14 State Farm and Olson filed an answer to the complaint, in which they posited various defenses. However, they did not initially raise the affirmative defense of comparative fault. See M. R. C. P. 8(c). State Farm and Olson later sought to amend their answer to interpose the defense of “contributory negligence” on the part of the Baileys. However, in light of the court’s subsequent entry of summary judgment for State Farm and Olson, it never addressed the merits of the motion to amend. ¶15 On January 13, 2012, State Farm and Olson filed a motion for summary judgment on all of the Baileys’ claims. State Farm and Olson argued they were entitled to judgment as a matter of law because the Baileys declined UIM coverage in their insurance application and signed the application that listed the coverage limits. State Farm and Olson contended that Stan also declined UIM coverage when Fetters pointed out to him that he did not have UIM coverage during a phone conversation in May 2005. Furthermore, State Farm and Olson maintained that they only owed the Baileys a duty to obtain coverage that was requested, and they did not breach this duty. State Farm and Olson also argued that they did not owe the Baileys a fiduciary duty. 7 ¶16 In response, the Baileys countered that summary judgment would be inappropriate because genuine issues of material fact remained regarding whether the Baileys were advised about UIM coverage. The Baileys argued that the extent of an insured’s obligation to read an insurance policy depends on what is reasonable under the circumstances of each case and therefore cannot be decided as a matter of law. The Baileys asserted that their request for the same coverage as they had in Oregon qualifies as a request for specific insurance, so Olson’s failure to obtain the requested insurance constitutes a breach of his duty. Though they acknowledge that this Court has not yet recognized a fiduciary relationship between an insurance agent and a client, the Baileys contend that the facts of their case support recognition of such a relationship. ¶17 On February 8, 2012, the District Court held oral argument on the motion for summary judgment. The District Court issued its order on March 19, 2012, granting summary judgment to State Farm and Olson. The District Court framed the issue in terms of whether the Baileys’ statements, which were not contained within the application for insurance, could vary or alter the insurer’s obligation to procure specific insurance. The District Court determined that the undisputed facts established that State Farm and Olson provided the specific insurance requested by the Baileys in the insurance application that Stan signed. The District Court reasoned that the Baileys’ request for the same insurance as they had in Oregon cannot be construed as a specific request for UIM coverage or medical payments coverage in excess of $5,000 because the written application for insurance contained different terms. After determining that existing Montana law does not impose a heightened duty on an insurance agent, the District Court 8 concluded that no fiduciary relationship existed. The Baileys appeal from the District Court’s entry of summary judgment in favor of State Farm and Olson. STANDARDS OF REVIEW ¶18 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; 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 ¶19 Did the District Court err in granting summary judgment when it found no genuine issues of material fact with respect to the duty of State Farm and Olson to procure UIM coverage for the Baileys? ¶20 Under Montana law, it is “well established that an insurance agent owes an absolute duty to obtain the insurance coverage which an insured directs the agent to procure.” Monroe v. Cogswell Agency, 2010 MT 134, ¶ 32, 356 Mont. 417, 234 P.3d 79; Fillinger v. Northwestern Agency, 283 Mont. 71, 83, 938 P.2d 1347, 1355 (1997); Lee v. Andrews, 204 Mont. 527, 532, 667 P.2d 919, 921 (1983); Gay v. Lavina State Bank, 61 Mont. 449, 458, 202 P. 753, 755 (1921). If an insurance agent is instructed to procure specific insurance and fails to do so, he is liable for damages suffered due to the absence of such insurance. Fillinger, 283 Mont. at 83, 938 P.2d at 1355; Lee, 204 Mont. at 532, 667 P.2d at 921; Gay, 61 Mont. at 458, 202 P. at 755. 9 ¶21 We have previously recognized that an insurance policy is a contract and is therefore subject to the applicable contract law of Montana. Fillinger, 283 Mont. at 77, 938 P.2d at 1351 (citing Universal Underwriters Ins. Co. v. State Farm Mut. Auto. Ins. Co., 166 Mont. 128, 135, 531 P.2d 668, 673 (1975)). “Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any rider, endorsement, or application which is a part of the policy.” Section 33-15-316, MCA. ¶22 While it is generally presumed that a person who executes a written contract knows its contents and assents to them, an insured does not have an absolute duty to read an insurance policy. Robertus v. Farmers Union Mut. Ins. Co., 2008 MT 207, ¶ 42, 344 Mont. 157, 189 P.3d 582; Thomas v. Northwestern Nat’l Ins. Co., 1998 MT 343, ¶ 28, 292 Mont. 357, 973 P.2d 804 (citing Fillinger, 283 Mont. at 78, 938 P.2d at 1352). Instead, “the extent of an insured’s obligation to read the policy depends upon what is reasonable under the facts and circumstances of each case.” Robertus, ¶ 42 (quoting Thomas, ¶ 27). The relationship between the insured and the insurance agent is an important factor to consider when examining the insured’s duty to read the insurance contract. Fillinger, 283 Mont. at 77-78, 938 P.2d at 1352-53. Once an insured informs an insurance agent of his insurance needs and the agent’s conduct permits a reasonable inference that the agent is highly skilled in this area, an insured is justified in relying on an insurance agent to obtain the coverage that the agent has represented he will obtain. Fillinger, 283 Mont. at 78, 938 P.2d at 1352 (citing Fiorentino v. Travelers Ins. Co., 448 F. Supp. 1364, 1369 (E.D. Pa. 1978)). The insured’s failure to read an insurance policy 10 does not operate as a bar to relief as a matter of law, but it may constitute comparative negligence. See Fillinger, 283 Mont. at 78, 938 P.2d at 1352 (citations omitted). ¶23 The District Court determined that State Farm and Olson met their initial burden of establishing that they provided the specific insurance requested by the Baileys in their application for insurance. The District Court relied on the fact that the insurance coverage requested in the insurance application was actually provided to the Baileys. Since Stan signed the application for insurance, the District Court reasoned that the Baileys’ request for the same insurance they had in Oregon could not be construed as a specific request for UIM coverage and medical payments coverage in excess of $5,000. The District Court applied the parol evidence rule and concluded that it was arguable whether the Baileys’ oral request for the same insurance they carried in Oregon would be admissible to alter the terms of a clear and unambiguous application and policy. The District Court also emphasized Softich’s uncontroverted testimony that it was her normal practice to explain the coverages to clients, and Fetter’s testimony that she later informed Stan that he lacked UIM coverage before the accident occurred. Ultimately, the District Court concluded that negligence could be decided as a matter of law and entered judgment in favor of State Farm and Olson. ¶24 In Featherston by & ex rel. Featherston v. Allstate Ins. Co., 875 P.2d 937 (Idaho 1994), the Idaho Supreme Court addressed the duty owed by an insurer to an insured when the insured transfers a policy and requests that the insurer procure the same coverage. The insured in Featherston contacted an Allstate agent, provided the agent with the declarations page of his Farmers Insurance policy, and requested a price quote 11 for the same coverage with Allstate. Featherston, 875 P.2d at 938. After receiving a price quote, the insured transferred his insurance policy to Allstate. Featherston, 875 P.2d at 938. The insured admitted that he never read the Allstate policy. Featherston, 875 P.2d at 938. More than five years after transferring to Allstate, a member of the insured’s family was injured in an accident with an underinsured driver and the insured learned that he had no UIM coverage. Featherston, 875 P.2d at 938-39. The Court determined that “[t]he scope of Allstate’s duty depends on what the agent was asked to provide.” Featherston, 875 P.2d at 940. It reversed the trial court’s entry of summary judgment in favor of the insurer, concluding that a genuine issue of material fact existed as to what coverage was requested and the consequent duty that arose as a result of that request. Featherston, 875 P.2d at 940-41. ¶25 Our review of the record here similarly demonstrates that genuine issues of material fact exist as to whether State Farm and Olson acted negligently in transferring the Baileys’ Oregon policy to Montana. It is undisputed that the Baileys directed Olson’s agent, Softich, to procure the same insurance coverage as they had in Oregon. It is also undisputed that the Baileys’ Montana State Farm policy that they obtained through Olson did not contain the same coverages and limits as their Oregon policy. The Montana policy contained very high liability and UM limits, but very low medical payment coverage and no UIM protection. Notably, none of the agents at Olson knew that Oregon combined UM and UIM coverage and designated such coverages using different letters. The Baileys posit that these differences between coverages caused Softich to mistakenly 12 omit UIM coverage, when, given her expertise, she should have known the states handled such coverages differently. ¶26 Softich had no specific recollection of what she discussed with the Baileys, but testified that it was her usual practice to go through and explain each coverage with a new client. However, Softich also testified that she would not advise clients to decrease their coverage limits. Absent some specific recollection about what was discussed and why the Baileys did not receive the same coverages and limits as they had in Oregon, a genuine issue of material fact exists as to why the discrepancies in coverage occurred when the Baileys transferred their State Farm policy to Montana. ¶27 We next turn to the District Court’s conclusion that evidence of the Baileys’ oral statements during the meeting with Softich are arguably barred by the parol evidence rule. Contrary to the District Court’s assertion, the Baileys’ oral request for matching coverage in Montana is not barred by the parol evidence rule. Extrinsic evidence may be considered “when a mistake or imperfection of the writing is put in issue by the pleadings” or “when the validity of the agreement is the fact in dispute.” Section 28-2-905(1)(a)-(b), MCA. The Baileys have put the validity of the insurance application at issue by representing that they did not fill it out or understand all of its terms, and the application did not contain the terms that they requested. Since an insurance agent has a duty to obtain the coverage requested by a client, the Baileys’ claims that they orally requested “full coverage” and the same exact coverage as they had in Oregon must necessarily be considered when examining whether their insurance agent breached her duty. Based on the evidence in the record, a jury could reasonably conclude that Softich 13 transcribed different terms into the application than what the Baileys requested. The Baileys have produced sufficient evidence to survive summary judgment. ¶28 Furthermore, the District Court misapprehended the effect of Stan’s signing of the application for insurance. The insurance application was an electronic form that Softich completed. Softich was the person who selected the coverages and limits when filling out the form. After Softich completed the form, she printed it and Stan signed it. Given the Baileys’ uncontroverted testimony that they requested the same coverage as they had in Oregon and requested “full coverage,” a fact question may exist as to whether the Baileys acted reasonably in relying upon the representations of Softich rather than reading the application for insurance and the policy.1 As noted above, however, the District Court never reached the question of whether State Farm and Olson may amend their answer to allege that the Baileys’ conduct should be compared to that of State Farm and Olson. This will be a determination for the District Court to make on remand. ¶29 The remaining issue is the phone conversation that occurred in May 2005. Fetters testified that it was a short conversation, but her notes indicate that she mentioned to Stan that he did not have UIM coverage. Stan testified that he was under the impression that he had the same coverage as he had in Oregon, and therefore did not need any additional coverage. Fetters admitted that she did not explain what UIM coverage was during this 1 The dissent incorrectly asserts that the Court is adopting a “new, broadly-stated, ‘no-read’ principle.” This assertion is completely unfounded. As our case law clearly establishes and as addressed in ¶ 22, the extent of an insured’s obligation to read the policy is dictated by what is reasonable under the particular facts and circumstances of each case. A determination of what is reasonable is, of course, a fact issue for resolution by a jury. Thus, we do not adopt a new principle; we merely follow the law. 14 phone conversation with Stan, and the Baileys maintained that they did not even know what UIM coverage was until after the accident. The parties’ varying accounts of the conversation further demonstrate the need to submit these factual issues to the jury. ¶30 Under the facts and circumstances of this case, State Farm and Olson have not met their “heavy burden of demonstrating, in a manner sufficient to exclude any real doubt,” that the Baileys did not request different insurance than what they received. Monroe, ¶ 32. Negligence actions typically involve questions of fact and ordinarily are not susceptible to summary judgment. Questions of fact can be determined as a matter of law only when reasonable minds cannot differ. Meloy v. Speedy Auto Glass, Inc., 2008 MT 122, ¶ 10, 342 Mont. 530, 182 P.3d 741; Henricksen v. State, 2004 MT 20, ¶ 19, 319 Mont. 307, 84 P.3d 38. In deciding a motion for summary judgment, all reasonable inferences must be drawn in favor of the non-moving party so that if there is any doubt as to the existence of a genuine issue of material fact, that doubt must be resolved in favor of the party opposing summary judgment. Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 38, 345 Mont. 12, 192 P.3d 186; Newbury v. State Farm Fire & Cas. Ins. Co., 2008 MT 156, ¶ 14, 343 Mont. 279, 184 P.3d 1021. Drawing all reasonable inferences in favor of the Baileys, we conclude that reasonable minds could differ concerning whether State Farm and Olson acted negligently when placing the Baileys’ coverage. Therefore, the District Court erred in entering summary judgment in favor of State Farm and Olson on Baileys’ negligence claims. ¶31 Did the District Court err in granting summary judgment by failing to recognize and impose a duty arising in negligence beyond a duty to procure requested coverage? 15 ¶32 Because we reverse the entry of summary judgment and remand for trial on the merits under the negligence theory asserted by the Baileys, we deem it unnecessary to the resolution of this case to determine whether these circumstances may also give rise to a heightened duty on the part of Olson. We therefore decline to address the Baileys’ second issue. CONCLUSION ¶33 For the foregoing reasons, we reverse the District Court’s grant of summary judgment and remand for further proceedings in accordance with this Opinion. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS Justice Jim Rice, dissenting. ¶34 In my view, the record establishes that the District Court correctly granted summary judgment to the Defendants. ¶35 “The party moving for summary judgment has the initial burden of proving that no genuine issues of material fact exist. . . . The burden then shifts to the non-moving party to prove by more than mere denial and speculation that a genuine issue of material fact 16 exists.” Brown & Brown of MT, Inc. v. Raty, 2012 MT 264, ¶ 17, 367 Mont. 67, 289 P.3d 156 (citing Myers v. Dee, 2011 MT 244, ¶ 10, 362 Mont. 178, 261 P.3d 1054). State Farm presented sufficient evidence to carry its initial burden, demonstrating from the record that it had obtained the insurance coverage the Baileys had requested. The Court’s analysis impliedly reaches that conclusion also. Opinion, ¶¶ 23, 25, 30. However, although Baileys demonstrated a genuine issue of material fact with regard to some of State Farm’s evidence, they failed to satisfy their burden to demonstrate a genuine issue as to the entirety of State Farm’s evidence, and thus failed to carry their burden. ¶36 State Farm presented the testimony of Nola Softich, who testified that it was her custom and practice to provide a new customer with the “goldenrod pamphlet,” which was “included with every packet” given to customers. This pamphlet described all the coverages available for purchase from State Farm. Softich always reviewed those coverages with the customer, including uninsured and underinsured motorist coverages. This is evidence of the standard procedure Softich would have followed when meeting with the Baileys on April 3, 1998. As the District Court noted, the Baileys offered no evidence to specifically refute Softich’s testimony that these coverages had been discussed. However, the Baileys did testify that they gave their insurance card to the agency and requested the same coverages as they had in Oregon. Softich testified that she has never advised an insured to decrease uninsured or underinsured coverage. This evidence about the parties’ initial conversation reflects a genuine issue of fact about what understanding arose from that conversation. If there was no further evidence, denial of summary judgment would be appropriate. 17 ¶37 Based on that initial conversation, Softich then prepared two applications for coverage on Baileys’ two vehicles. The applications were one-page printed forms that listed 12 coverages in column form. The heading of this column was “Coverages Available.” Next to the column of available coverages was another column with the heading “Selected?” Under this heading, a “Yes” or “No” was entered next to each coverage indicating whether or not the applicant had selected that coverage. On both applications, the word “No” appeared next to the coverage for underinsured motor vehicle. However, the coverages were not identical on each application. A different list of coverages was selected for each vehicle, although UIM coverage was selected for neither vehicle. At the bottom of each application, as the Court notes in ¶ 7 of the Opinion, the form stated that the applicant was applying “for the insurance indicated,” that the applicant had read the form and the statements were correct, and that the applicant had personally selected the coverages. Stan Bailey signed both applications. These documents are the result of the parties’ initial conversation on April 3, 1998. ¶38 The Court cites the principle that an insured does not have an absolute duty to read an insurance policy. Opinion, ¶ 22. On the basis of this principle, the Court apparently excuses any obligation on the part of the Baileys to read or be accountable for the signed applications and statements made therein. However, we have applied the “no read” principle only in cases where an insurer made changes within the body of a policy and the insured was not otherwise notified of the change. Robertus, ¶ 42; Thomas, ¶¶ 26-27; Fillinger, 283 Mont. at 78-79, 938 P.2d at 1352. Never before have we held that an insurance applicant has no obligation to read a one-page application form that plainly 18 lists coverage choices and on which the applicant certifies that he has read the form and made the coverage choices as indicated. The Court cites no authority for this principle. The Court also holds that Baileys’ statement about wanting the same coverage as they had in Oregon is not barred by the parol evidence rule because, by merely alleging they did not understand its terms, the Baileys have made a proper challenge to “the validity of the insurance application” prepared by Softich. Opinion, ¶ 27. Such a weak factual assertion should not be permitted to create a genuine issue of fact about the signed applications. “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.’” Estate of Willson v. Addison, 2011 MT 179, ¶ 14, 361 Mont. 269, 258 P.3d 410. “Generally speaking, once an agreement is reduced to writing, it is considered to contain all terms of the agreement and extrinsic evidence concerning the intentions of the parties is not admissible. Section 28-2-905(1), MCA.” McCulley v. Am. Land Title Co., 2013 MT 89, ¶ 33, ___ Mont. ___, ___ P.3d ___. On this record, I would conclude that the Baileys did not present sufficient evidence to create a genuine factual issue about the signed applications, which were individually prepared for each of the Baileys’ two vehicles after the parties’ initial conversation, and signed by the Baileys underneath language stating that they had read the form and chosen the coverages as indicated. ¶39 Thereafter, the Baileys paid premiums for the next seven years and received insurance coverage cards, policies and booklets. The Baileys received new insurance cards at least two times a year for each policy, listing their coverages. They also received renewal notices two times a year for each policy, with each notice listing the coverages 19 and charges for each coverage. The Baileys simply allege that they didn’t read any of these and the Court, apparently under the new, broadly-stated, “no-read” principle, accepts this excuse and gives no significance to this evidence. However, this is further evidence that State Farm provided the coverages that the Baileys had requested. ¶40 Then, in 2005, Stan called the agency and talked to Jeannie Fetters to make some changes in his coverages. In that conversation, Fetters pointed out to Stan that he did not have UIM coverage, and Stan responded he did not want to add that coverage, but, rather, only wanted to make the changes he had called about. Fetters specifically remembered the conversation and also made notes about the conversation in State Farm’s master record. Baileys offered no contradictory evidence. However, the Court, citing the Baileys’ assertion that “they did not even know what UIM coverage was until after the accident,” concludes that there are “varying accounts” about this conversation. Opinion, ¶ 29. This is incorrect. Baileys offered nothing in contradiction to the very specific and recorded evidence offered by State Farm about this conversation. Baileys’ statement merely claims ignorance about the nature of UIM insurance—again, “gauzy” and speculative evidence—and nothing about the conversation. ¶41 To further rebut the evidence of this 2005 event, the Court again cites Stan’s abiding belief that he had the same coverage as he had in Oregon. The Court’s reliance on Stan’s Oregon coverage pales when it is recalled that the Baileys made that request seven years earlier in 1998, thereafter signed contrary application forms, paid contrary premiums, and received contrary coverage notices until 2005, when Stan called to change their coverages. By then, the “Oregon request” was long past and there is no evidence 20 that Stan was still trying to obtain the same coverage he had in Oregon. As we have recently stated, when reviewing the record for purposes of summary judgment, it is important to recognize the “chronology of events” that the evidence demonstrates. McCulley, ¶ 35. ¶42 I would conclude that the Baileys did not carry their burden to demonstrate genuine issues of material fact and that State Farm was entitled to summary judgment as a matter of law. I would affirm the District Court. /S/ JIM RICE Justice Beth Baker, dissenting. ¶43 I agree with Justice Rice that the District Court did not err in granting summary judgment to State Farm on this record. I write separately because of my concern that the Court has in fact imposed a heightened duty on an insurance agent, despite its statement to the contrary. Opinion, ¶ 32. ¶44 Baileys raised, as their second issue on appeal, the claim that State Farm and Olson had “a duty to advise the Baileys regarding UIM coverage,” and they urge this Court to “expand an agent’s duty beyond a mere duty to procure” the insurance requested by the insured. They cite numerous cases from other jurisdictions in which courts have held that an insurance agent’s duty is not limited to responding to a specific request for coverage, but that an agent may be liable under theories of professional negligence for 21 failing to recommend UIM coverage or advise the insured of coverage needs. They also point out “that no such heightened duty of care has yet been recognized under Montana law.” Monroe v. Cogswell Agency, 2010 MT 134, ¶ 31, 356 Mont. 417, 234 P.3d 79. By finding a factual issue for trial on the basis that Fetters did not explain UIM coverage when Stan called her in May 2005 to change his coverages (Opinion, ¶ 29), the Court is at least implicitly ruling that Olson and his agents had a heightened duty to advise or offer specific coverages, just as Baileys have requested. Without expressly so holding, the Court’s ruling today will generate additional confusion in the law regarding the scope of an insurance agent’s duty to the insured. /S/ BETH BAKER | May 2, 2013 |
fe4ee0df-6553-4809-8e11-973b1656c44f | State v. Baker | 2013 MT 113 | DA 12-0321 | Montana | Montana Supreme Court | DA 12-0321 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 113 STATE OF MONTANA, Plaintiff and Appellee, v. JEFFREY EDWARD BAKER, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDC 2011-3 Honorable Jeffrey M. Sherlock, Presiding Judge COUNSEL OF RECORD: For Appellant: Palmer A. Hoovestal, Attorney at Law, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman, Assistant Attorney General, Helena, Montana Leo J. Gallagher, Lewis and Clark County Attorney; Tara Harris and Melissa Broch, Deputy County Attorneys, Helena, Montana Submitted on Briefs: March 13, 2013 Decided: April 30, 2013 Filed: __________________________________________ Clerk April 30 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Jeffrey Edward Baker appeals from his conviction and sentence for sexual assault in violation of § 45-5-502, MCA. We affirm the conviction but decline to address the claim of ineffective assistance of counsel. ¶2 Baker presents issues for review which we restate as follows: ¶3 Issue One: Whether the District Court erred by admitting into evidence a recorded interview with the victim. ¶4 Issue Two: Whether there was sufficient evidence to support the conviction. ¶5 Issue Three: Whether the District Court erred in denying Baker’s motion for a new trial. ¶6 Issue Four: Whether Baker’s attorney provided ineffective assistance at trial. PROCEDURAL AND FACTUAL BACKGROUND ¶7 In 2006 Baker began a relationship with the mother of H.B., who was then age 2. When H.B. was age 4 she told her mother about sexual contact Baker had with her, which Baker denied. H.B.’s mother eventually moved out of Baker’s residence and in 2010 H.B. told her mother that Baker touched her inappropriately. “He touches his pee to my pee pee and it kind of hurts.” H.B.’s mother called the police. ¶8 A trained forensic interviewer, Dawn Spencer, interviewed H.B. prior to trial. H.B. was reluctant to talk about Baker but told Spencer that Baker touched her inappropriately “in a bad way,” and put his privates into her privates. 3 ¶9 In an interview with a Sheriff’s Department detective, Baker denied any inappropriate contact with H.B. In 2011 the State charged Baker with felony sexual assault based upon incidents of sexual contact with H.B. between 2006 and 2010. ¶10 H.B. was age 7 when she testified as the first witness at Baker’s jury trial in January, 2012. She testified that Baker was mean and that she was afraid of him but refused to elaborate. The following exchanges on direct examination are typical of H.B.’s testimony at trial: Q: And do you—do you and your dad [Baker] have a secret? A: Yes, but I’m not telling you it. Q: Why not? A: Because. Q: Tell me why not. A: I can’t. Q: Why can’t you tell me the secret? A: Because. Q: Did you tell anyone what the secret was? A: No. Q: Never ever? A: No. It’s me and my mom’s little secret. H.B. testified that she had a secret with Baker that she would not tell to anyone. H.B. did not recall the interview with Spencer. She denied drawing the penis that she drew during the Spencer interview. While she testified that Baker had touched her inappropriately, she would not be more specific other than to indicate that it would be inappropriate to touch her private parts. She also circled the groin area on a stick figure presented by the State, indicating the location of her private parts. She would not say what Baker touched her with. 4 She repeatedly stated that she did not want to tell. ¶11 On cross-examination by the defense, H.B. stated that she had not told her secret to anyone except her mother and that she would not tell the court either. She said that she would not tell because she was afraid. ¶12 From the time that the charging documents were filed, the State disclosed that Dawn Spencer had interviewed H.B., that there was a recording of the interview, and that Spencer would testify at trial. Spencer testified and was cross-examined about her background and experience, and about the circumstances of the recorded interview with H.B. Baker’s attorney filed a written objection to admission of the tape, based upon arguments that it was hearsay and denied his right to confront witnesses. The District Court denied the objection and a tape of that interview was admitted into evidence. ¶13 Spencer’s interview with H.B. was played to the jury. In the interview H.B. said that Baker touched her in a way she didn’t like. She said he had touched his privates into her privates in the front of her body, and had put his private part inside her private part. She said that this occurred more than once in bed and in the bath. H.B. stated more than once that Baker “touches into her” in the bath and that these things happened when her mother was not home. She said that it hurt. She drew a picture of a penis to show what had happened. ¶14 H.B.’s mother testified that H.B. had told her that Baker put his penis into H.B.’s mouth and took showers with her. She was 4 at the time. H.B.’s mother testified that later after she and Baker terminated their relationship, H.B. told her again that Baker had touched her inappropriately. H.B. said that Baker touched his pee pee into her pee pee and that it 5 hurt. H.B.’s therapist testified that H.B. said that Baker “tortured” her and did “something gross” that she didn’t want to talk about. ¶15 Baker did not testify at trial and the jury convicted him of sexual assault. The District Court sentenced him to 40 years at the Montana State Prison with 20 years suspended and restricted parole eligibility for 10 years. Baker appeals. DISCUSSION ¶16 Issue One: Whether the District Court erred by admitting the recorded interview with the victim. ¶17 Baker contends that the District Court’s decision to admit the recording of Spencer’s interview with H.B. violated his rights to confront witnesses against him. This Court’s review of constitutional issues is plenary, and we review de novo a district court’s decisions on those issues. State v. Stock, 2011 MT 131, ¶ 16, 361 Mont. 1, 256 P.3d 899. ¶18 Both the Montana Constitution, Art. II, Sec. 24, and the United States Constitution, Amend. VI, provide a defendant with the right to confront or to face the witnesses against him. State v. Maier, 1999 MT 51, ¶ 18, 293 Mont. 403, 977 P.3d 298; Stock, ¶ 23. The essential purpose of the right to confront witnesses is to secure the opportunity to test the witness’s testimony through cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1435 (1986); Stock, ¶ 26. ¶19 The right to confrontation “includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion or evasion.” United States v. Owens, 484 U.S. 554, 558, 108 S. Ct. 838, 842 (1988). The right 6 to confront includes only the opportunity for cross-examination, but not any guarantee that it will elicit helpful evidence. Owens, 484 U.S. at 559, 108 S. Ct. at 842. ¶20 Both Federal and State decisions establish that the right to confront witnesses is not violated when a testifying witness’s prior statement is admitted into evidence. California v. Green, 399 U.S. 149, 90 S. Ct. 1930 (1970); Maier, ¶ 44. When a witness appears at trial and is available for cross-examination, the right to confrontation does not constrain admission of prior testimonial statements by the witness. State v. Howard, 2011 MT 246, ¶ 33, 362 Mont. 196, 265 P.3d 606 (citing Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). ¶21 In Howard the defendant was charged with incest. Like the present case, the child victim testified at trial and the district court admitted a video of a nurse’s interview with the victim. On appeal Howard argued that his attorney was ineffective for failing to raise a Confrontation Clause objection to admission of the interview video. This Court held that it was not ineffective assistance of counsel to fail to make a Confrontation Clause objection to the admission of the recording of a prior interview with the victim. The defendant’s rights under the Confrontation Clause were protected because the victim testified at trial and was subject to cross-examination. Howard, ¶¶ 33-34. ¶22 In Maier, a witness identified a person other than Maier as the person who had shot the victim. The witness later told police that the first statement was a lie because he feared Maier, and that Maier was the shooter. At trial the witness refused to identify the shooter and claimed to not remember any prior statement implicating Maier. This Court upheld the district court’s admission of the witness’s prior statements to the police. Admission of the 7 statements did not implicate Maier’s right to confrontation because the witness was present at trial and subject to cross-examination. Maier, ¶ 30. ¶23 H.B. was present at Baker’s trial and was subject to cross-examination. Baker argues that his Confrontation Clause right to cross-examination of H.B. is the crux of his appeal. He asserts that this right was denied because the State did not ask H.B., on direct examination, about each statement she made during the prior recorded interview. Baker contends that this prevented his attorney from cross-examining H.B. on those important points. However, H.B. testified that Baker had touched her “inappropriately” and that an inappropriate touching involved “the private parts.” H.B. circled the private parts on a stick figure drawing and said that Baker’s inappropriate touching happened when her mother was at work. H.B. also testified that she had not previously told anyone but her mother about the inappropriate touching. ¶24 This testimony by H.B. provided sufficient opening for Baker’s attorney to cross- examine about the inappropriate touching, what it entailed, and whether H.B. had told anyone else about it. Baker cannot contend that his confrontation rights were violated because the Spencer statement was introduced after H.B. testified, Howard, ¶ 34. As noted, the right to confront includes only the opportunity for cross-examination, but not any guarantee that it will elicit helpful evidence. Owens, 484 U.S. at 559, 108 S. Ct. at 842. ¶25 It was clear from the initiation of the prosecution that H.B. had been interviewed by Spencer, that Spencer would testify at trial, and that the recording of the interview would be offered into evidence. Baker’s attorney cross-examined H.B. and Spencer about the circumstances of the interview and how it was conducted. Baker’s attorney also contended 8 in closing argument that H.B.’s statement was not reliable and that Spencer’s interview techniques were biased. ¶26 Baker has not shown that his attorney was limited in any material way in cross- examining H.B. or Spencer, or that any ruling by the District Court limited his cross- examination. He does not argue that he lacked the necessary information, such as the contents of the Spencer interview, to allow him to conduct cross-examination. There were no apparent restrictions on what Baker’s attorney could ask H.B. during cross-examination, about her testimony, her prior interview, or the sexual abuse by Baker. Baker’s right to confront the witness against him was not compromised by admission of the video of H.B.’s prior statement. ¶27 Because H.B. and Spencer testified at trial and were subject to cross-examination by Baker’s attorney, admission of H.B.’s prior statement did not violate Baker’s right to confrontation. ¶28 Baker further contends that admission of H.B.’s statement to Spencer violated several hearsay restrictions of the Montana Rules of Evidence. While admission of prior witness statements may raise hearsay issues, those issues do not necessarily implicate Confrontation Clause issues. State v. Mizenko, 2006 MT 11, ¶ 10, 330 Mont. 299, 127 P.3d 458. ¶29 Baker contends that admission of H.B.’s statement was testimonial hearsay and should have been excluded. However, by definition H.B.’s prior statement was not hearsay. Montana Rule of Evidence 801(d)(1), provides that a statement is not hearsay if: The declarant testifies at the trial or hearing and is subject to cross- examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony . . . . 9 M. R. Evid. 801(d)(1). Baker contends that H.B.’s trial testimony was not inconsistent with her prior statement and was therefore inadmissible hearsay. ¶30 Under M. R. Evid. 801(d)(1), testimony is inconsistent with a prior statement when the testimony is marked by “evasion, denial, and inability to remember,” Maier, ¶ 26; State v. Devlin, 251 Mont. 278, 282, 825 P.2d 185, 187 (1991). Further, admission of a prior statement is not barred because it contains assertions which are both consistent and inconsistent with trial testimony. Howard, ¶ 31. While some aspects of H.B.’s statement and testimony were consistent, others were not. For example, H.B. gave inconsistent statements about whether someone touched her inappropriately and about whether she had ever told someone other than her mother about such things. During the prior interview, H.B. told Spencer that Baker touched his “privates” into her “privates;” that this happened more than once, that it happened in bed and in the bath, and that it hurt. Baker acknowledges this primary inconsistency, arguing that the prior statement to Spencer contained “the only evidence of sexual abuse that was presented during the entire trial.” The prior statement was sufficiently inconsistent and did not constitute hearsay as defined by M. R. Evid. 801(d)(1). Because H.B.’s statement is not hearsay, then Baker’s arguments regarding her unavailability under Rule 804 are not pertinent. ¶31 Baker also relies upon Montana Rules of Evidence 613(b), which provides: Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon . . . . M. R. Evid. 613(b). Baker asserts that this required the prosecution to show the prior 10 statement to H.B. and obtain her denial or explanation of it prior to seeking admission of the prior statement. However, M. R. Evid. 613(b) only requires that the witness be available for cross-examination about the statement, its circumstances, and what she remembers about it. State v. Lawrence, 285 Mont. 140, 160-61, 948 P.2d 186, 198-99 (1997). In the present case, H.B. was available and was examined and cross-examined about whether she had told her “secret” to anyone besides her mother. She denied any prior statement. And, as noted, the existence and probable use of the prior statement were known from the inception of the prosecution. Therefore, Baker had both the opportunity and the means to elicit information from H.B., and then from Spencer, about the prior statement. Admission of the prior statement did not contravene M. R. Evid. 613(b). ¶32 The District Court did not err in admitting evidence of H.B.’s prior statement. ¶33 Issue Two: Whether there was sufficient evidence to support the conviction. ¶34 The standard of review of the sufficiency of evidence to sustain a conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Yuhas, 2010 MT 223, ¶ 7, 358 Mont. 27, 243 P.3d 409. ¶35 Baker argues that without evidence of H.B.’s prior statements, there was insufficient evidence to convict him. However, we have determined that H.B.’s prior statements were properly admitted and those statements constitute substantive evidence. Devlin, 251 Mont. at 282, 825 P.2d at 187. Therefore, there was sufficient evidence to convict under the criteria set forth in Yuhas. 11 ¶36 Issue Three: Whether the District Court erred in denying Baker’s motion for a new trial. ¶37 After trial Baker obtained a new attorney, who moved for a new trial, requesting that the District Court hold a hearing on the issue of the competency of Baker’s trial attorney. Baker concedes that the motion was not timely under § 46-16-702, MCA, but argues that the District Court should have exercised its inherent power to grant relief, State v. Brummer, 1998 MT 11, ¶ 35, 287 Mont. 168, 953 P.2d 250. Baker’s motion for a new trial was essentially a motion for postconviction relief, seeking a hearing in which he could raise non- record-based claims of ineffective assistance of counsel. ¶38 While 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. In Brummer, this Court held that while the district court has inherent power to grant a new trial, “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. . . .” Brummer, ¶ 46. There is no provision for extending the 30-day time limit of § 46-16-702, MCA. State v. McCarthy, 2004 MT 312, ¶ 42, 324 Mont. 1, 101 P.2d 288. ¶39 The District Court did not abuse it discretion and properly denied the motion for a new trial. ¶40 Issue Four: Whether Baker’s attorney provided ineffective assistance at trial. ¶41 Baker argues that he received ineffective assistance of counsel (IAC) at trial. He points to a number of events during the trial, including not filing a motion to suppress Baker’s interview with a police officer; not objecting to the testimony of H.B.’s therapist and 12 H.B.’s mother; not allowing Baker to testify; not objecting to the State’s closing argument and not moving to dismiss for insufficient evidence. ¶42 To prevail on an IAC claim, the defendant must establish that his attorney’s performance was deficient and that the deficiency prejudiced the defense. Baca v. State, 2008 MT 371, ¶ 16, 346 Mont. 474, 197 P.3d 948; Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). This Court will address a claim of IAC on direct appeal when the record is sufficient for review. However, when it is not apparent on the face of the record why counsel took a particular course of action, the claim is better raised in a petition for postconviction relief in district court, where a factual record can be developed. State v. Briscoe, 2012 MT 152, ¶ 10, 365 Mont. 383, 282 P.3d 657. Claims involving alleged omissions of trial counsel are often ill-suited for consideration on direct appeal. Briscoe, ¶ 15. ¶43 The record in the present case does not disclose why Baker’s attorney took the actions complained of, and Baker’s motion for a new trial acknowledges the need for an evidentiary record. Therefore, we decline to consider Baker’s IAC claims on direct appeal, and he may raise those claims in a petition for postconviction relief as provided by law. ¶44 For the reasons stated above, Baker’s conviction is affirmed, without prejudice, to his right to bring his claims alleging ineffective assistance of counsel in a petition to the District Court for postconviction relief. /S/ MIKE McGRATH We concur: 13 /S/ MICHAEL E WHEAT /S/ JIM RICE /S/ PATRICIA COTTER /S/ BRIAN MORRIS | April 30, 2013 |
ca87a6fd-7dd4-486f-aacb-f3d2e257ce02 | Wheaton v. Bradford | 2013 MT 121 | DA 12-0322 | Montana | Montana Supreme Court | DA 12-0322 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 121 BILLY KAYE WHEATON and BECKY JO CHILDERS, Co-Personal Representatives of the ESTATE OF MARGARET HOWARD, and BILLY WHEATON and BECKY CHILDERS, individually, Plaintiffs and Appellants, v. TOM BRADFORD and DANE BRADFORD, Co-Personal Representatives of the ESTATE OF JOHN BRADFORD, Defendants and Appellees. APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Carbon, Cause No. DV 10-113 Honorable Blair Jones, Presiding Judge COUNSEL OF RECORD: For Appellant: Michael G. Eiselein; Eiselein & Grubbs, PLLP; Billings, Montana Elizabeth A. Halverson; Elizabeth A. Halverson, P.C.; Billings, Montana For Appellee: Mark D. Parker, Shawn P. Cosgrove; Parker, Heitz & Cosgrove, PLLC; Billings, Montana Submitted on Briefs: January 3, 2013 Decided: May 7, 2013 Filed: __________________________________________ Clerk May 7 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Plaintiffs Billy Kaye Wheaton and Becky Jo Childers, co-personal representatives of the Estate of Margaret Howard (collectively “Howards”), filed a wrongful death and survivorship action against the co-personal representatives and the Estate of John Bradford (collectively “Bradfords”), alleging negligence. A jury found that John Bradford (John) was not liable in negligence for the death of Margaret Howard (Margaret). Howards appeal from the judgment entered in favor of the Bradfords. We affirm and address the following issues: ¶2 1. Did the District Court err by permitting the defense expert to offer opinions, including video simulations, without a sufficient evidentiary foundation? ¶3 2. Did Bradfords violate the Montana Rules of Civil Procedure by failing to supplement the disclosure of the defense expert? ¶4 3. Did the District Court err by denying Howards’ motion for a new trial? FACTUAL AND PROCEDURAL BACKGROUND ¶5 On June 12, 2010, Margaret was driving south and John was driving north on U.S. Highway 212, a two-lane highway, south of Red Lodge. The two vehicles collided, coming to rest along the fog line in Margaret’s southbound lane. Neither Margaret nor John survived, and there were no witnesses who could testify to the events leading up to the crash.1 Local resident Julia Higgins (Higgins) arrived at the scene shortly after the accident and provided a witness statement to Montana Highway Patrol (MHP). MHP troopers investigated the accident and ultimately prepared a report. 1 John’s wife, Lavetta, was a passenger in the Bradford vehicle, but she could not recall how the accident happened. 3 ¶6 At her deposition, Higgins stated that she was traveling south on Highway 212. She said she saw John’s truck approaching in the northbound lane but did not see Margaret’s vehicle until she after she had arrived at the scene of the accident. Higgins said the crash occurred on a section of Highway 212 that was obscured by a small rise when traveling southbound. Howards’ counsel asked: “Do you have any memory of seeing [Margaret’s] car before the accident at all?” to which Julia responded, “No. Never saw it.” ¶7 Both parties sought to reconstruct the accident. Howards retained two accident reconstructionists, but did not present the testimony of either at trial. Instead, they presented a partial accident reconstruction prepared by Trooper Hensley, who testified that, based on the final resting position of the vehicles, his opinion was that John’s vehicle crossed the center line and hit Margaret’s vehicle in the southbound lane. ¶8 Dr. Harry Townes (Townes), an engineer, was retained by Bradfords to reconstruct the accident. Townes visited the accident scene to take measurements and make observations. Townes used a computer program called the Engineering Dynamics Simulation Model of Automobile Collisions Version 4 (EDSMAC4) to simulate events leading up to the accident. The computer program pairs known variables with unknown pre-collision variables and runs trial scenarios to identify vehicle conditions before the accident. When a simulation of combined known and unknown variables results in a match of the known final resting positions of the vehicles, that combination of pre-collision conditions is considered, in Townes’ opinion, to be a viable explanation of the vehicle trajectory leading to the accident. 4 ¶9 Townes’ expert witness disclosure statement included his opinion that Margaret “made an excursion into the northbound lane” and John “made an evasive maneuver” to avoid Margaret’s oncoming vehicle. Townes’ disclosure stated that he formed his opinion based upon the computer simulation results that incorporated MHP measurements and his measurements taken from the accident scene, the physical dimensions and weights of the vehicles, and data from the airbag control module in Margaret’s vehicle. Townes’ disclosure did not reference witness Higgins or her statement. During Townes’ subsequent deposition, the following exchange took place: [Howards’ counsel]: Is there any physical evidence at the scene . . . to support my client being in your client’s lane of travel. [Townes]: Yes, there’s a witness. Physical evidence, no; there is a witness, yes. [Howards’ counsel]: And I’m asking you about physical evidence. [Townes]: No. [Howards’ counsel]: Okay. And the witness you’re referring to is Julia Higgins? [Townes]: Yes. [Howards’ counsel]: Okay. And that’s the only evidence that supports my client being in your client’s lane of travel prior to this accident, correct? [Townes]: No, the simulation is also evidence that supports it. Townes was asked about Higgins again later in the deposition: [Howards’ counsel]: Would you agree with me that we don’t know – Julia Higgins’ statement, and I understand that you’re relying on that – [Townes]: No, I’m not. [Howards’ counsel]: You’re not, okay. [Townes]: No. It’s not anywhere in my disclosure. [Howards’ counsel]: Well, then, setting aside Julia Higgins’ statement . . . ¶10 Howards filed a motion in limine prior to trial seeking exclusion of Townes’ opinions and the computer model simulations on the grounds they were “speculative, 5 unscientific or not proper subjects for expert opinion.” The District Court did not rule on Howards’ motion in limine before trial. ¶11 At trial, Townes testified, “I reviewed the information that was available to me. And that would include the Montana Highway Patrol report, the witness – one witness statement that Montana Highway Patrol took.” He further stated that he used known physical information as input variables in the computer simulations, including the MHP measurements of the final resting positions of the vehicles, his measurements from the accident scene, the physical properties of the vehicles, and the data from the control module sensor in Margaret’s vehicle. Townes testified that the computer program was “a well-recognized program, widely used, tested extensively.” Townes explained that his computer simulations led him to conclude that Margaret “made an excursion into the northbound lane” and John “made an evasive maneuver” to avoid Margaret’s vehicle. ¶12 The jury returned a verdict for Bradfords, finding John not negligent. Howards filed a motion for a new trial, which was denied by the District Court. Howards appeal. STANDARD OF REVIEW ¶13 Admissibility of evidence is a question for the district court, which we review for an abuse of discretion. Cottrell v. Burlington N. R.R., 261 Mont. 296, 301, 863 P.2d 381, 384 (1993). A district court has broad discretion in determining whether evidence is relevant and admissible. McCormack v. Andres, 2008 MT 182, ¶ 22, 343 Mont. 424, 185 P.3d 973. “The trial court is vested with great latitude in ruling on the admissibility of expert testimony.” Cottrell, 261 Mont. at 301, 863 P.2d at 384 (emphasis in original). We review a district court’s denial of a motion of a new trial for an abuse of discretion. 6 Perdue v. Gagnon Farms, Inc., 2003 MT 47, ¶ 8, 314 Mont. 303, 65 P.3d 570. “A district court abuses its discretion when it acts arbitrarily without employment of conscientious judgment or so exceeds the bounds of reason as to work a substantial injustice.” McCormack, ¶ 22. DISCUSSION ¶14 1. Did the District Court err by permitting the defense expert to offer opinions, including video simulations, without a sufficient evidentiary foundation? ¶15 Howards do not dispute that Townes was qualified to testify as an expert but argue that he laid insufficient factual information for his opinion testimony and that his methods of reconstruction were not reliable. They argue that Townes’ offered “nothing more than a mere possibility” and that his opinion was “so utterly lacking in foundation that it should never have seen the light of day in the courtroom.” (Emphasis in original.) Bradfords respond that Townes premised his expert opinion upon a sufficient foundation, and that the accident simulation program and the methods employed by Townes are widely accepted in the accident reconstruction field.2 ¶16 M. R. Evid. 702 provides the criteria for admission of expert opinions: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. 2 Bradfords also argue that “Howards repeatedly waived any objections to the admission of Dr. Townes’ simulations and opinions” by failing to object to them during trial. However, Howards filed a motion in limine prior to trial to exclude Townes’ testimony and the District Court did not expressly rule on the motion, leaving it unclear to what extent the District Court would permit Townes to testify as trial began. Under these circumstances we deem it appropriate to address the merits of Howards’ evidentiary claims preserved by the motion in limine. 7 Before a district court may allow an expert to express an opinion, an evidentiary foundation must be laid to demonstrate that the expert has adequate knowledge, by training or education, and sufficient factual information on which to base an opinion. Cottrell, 261 Mont. at 301, 863 P.2d at 384-85; Hulse v. State, 1998 MT 108, ¶ 48, 289 Mont. 1, 961 P.2d 75. We have stated that “it is better to admit relevant scientific evidence in the same manner as other expert testimony and allow its weight to be attacked by cross-examination and refutation.” Hulse, ¶ 53 (citations omitted).3 ¶17 Generally, accident reconstruction is not a novel science and has been commonly recognized and used in the courts. See Horn v. Bull River Country Store Props., 2012 MT 245, ¶ 48, 366 Mont. 491, 288 P.3d 218; Peterson v. St. Paul Fire and Marine Ins. Co., 2010 MT 187, ¶ 3, 357 Mont. 293, 239 P.3d 904; State v. Shauf, 2009 MT 281, ¶ 4, 352 Mont. 186, 216 P.3d 740. Accident reconstruction evidence involving computer simulations has been admitted after inquiry “regarding whether the reasoning or methodology behind the testimony is scientifically valid and whether the reasoning or methodology can be applied to the facts in issue.” Livingston v. Isuzu Motors, 910 F. Supp. 1473, 1494-95 (D. Mont. 1995); see also David L. Faigman et al., Modern 3 Expert testimony regarding novel scientific evidence must be reliable. Hulse, ¶ 52 (citing Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589, 113 S. Ct. 2786, 2795 (1993)). We have adopted non-exclusive factors to consider when determining whether novel scientific evidence is reliable, including testing, peer review, technique rate of error, standards of operation and general acceptance. See Hulse, ¶ 52 (citations omitted). Howards’ motion in limine made a Daubert challenge to Townes’ proffered testimony. On appeal, Howards do not frame a Daubert challenge to Townes’ testimony as novel science, but argue under Issue 2 that Bradfords’ failure to supplement Townes’ expert disclosure prevented the District Court from conducting a full Daubert analysis. 8 Scientific Evidence: The Law and Science of Expert Testimony vol. 5, § 44:12, 816-17 (2012-2013 ed., West 2012). ¶18 During trial, Townes testified he used factual information and physical evidence in his computer simulations, including measurements of the final resting positions of the vehicles taken by MHP, his own measurements and observations from the accident scene, the physical properties of the vehicles, and data from the control module sensor located in Margaret’s vehicle. Townes offered that his computer simulation models were based on scientific and mathematic principles that are accepted in the accident reconstruction field. Townes testified that the computer program is widely used and is tested extensively. ¶19 Based on this record, we conclude that the District Court did not abuse its discretion by ruling that Townes’ testimony was supported by an adequate factual foundation and by determining that the scientific method used by Townes to reconstruct the accident was reliable and admissible. Bradfords satisfied the requirements under M. R. Evid. 702 to present Townes’ expert opinion and testimony. ¶20 2. Did Bradfords violate the Montana Rules of Civil Procedure by failing to supplement the disclosure of the defense expert? ¶21 Howards assert that “[a]fter Townes was deposed on July 22, 2011, he changed the foundational basis of his ‘excursion’ theory” and that Bradfords’ “failure to supplement Townes’ opinions is a clear violation of Rule 26(e)(2) which mislead[s] the court and counsel.” Howards argue that Townes failed to disclose he was no longer relying upon the testimony of Higgins. Bradfords reply that, though he mentioned that 9 Higgins was a witness, Townes never relied on her statement and did not alter his opinion. Thus, there was no reason for his expert disclosure to be supplemented. ¶22 Expert witnesses disclosure statements, required by M. R. Civ. P. 26(b)(4), must “state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” M. R. Civ. P. 26(b)(4)(A)(i) (2011). The duty to supplement or correct discovery is described in M. R. Civ. P. 26(e), which states, in its entirety: (e) Supplementing Responses. (1) In General. A party who has responded to an interrogatory, request for production, or request for admission must supplement or correct its response: (A) in a timely manner if the party learns that in some material respect the response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court. (2) Expert Witness. For an expert whose opinion must be disclosed under Rule 26(b)(4), the party’s duty to supplement extends both to information included in the disclosure and to information given during the expert’s deposition. Any additions or changes to this information must be disclosed by the time of the preparation and submission of the pretrial order to the court. M. R. Civ. P. 26(e). As revised in 2011, M. R. Civ. P. 26(e) is nearly identical to F. R. Civ. P. 26(e). The Committee Notes to F. R. Civ. P. 26(e) provide the following guidance: The obligation to supplement disclosures and discovery responses applies whenever a party learns that its prior disclosures or responses are in some material respect incomplete or incorrect. There is, however, no obligation to provide supplemental or corrective information that has been otherwise made known to the parties in writing or during the discovery process, as when a witness not previously disclosed is identified during the taking of a 10 deposition or when an expert during a deposition corrects information contained in an earlier report. Proposed Amendments to the Federal Rules of Civil Procedure and Forms, 146 F.R.D. 535, 641 (1993). (Emphasis added.) A party must supplement or correct the expert disclosure statement when the party learns that “in some material respect” the information given in the expert’s statement “is incomplete or incorrect” and the updated information has not otherwise been disclosed to the other party during the discovery process. M. R. Civ. P. 26(e)(1)-(2); see also Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure vol. 8A, § 2049.1, 319 (3d ed., West 2010). “Information is ‘incomplete or incorrect’ in ‘some material respect’ if there is an objectively reasonable likelihood that the additional or corrective information could substantially affect or alter the opposing party’s discovery plan or trial preparation.” Robbins & Myers, Inc. v. J.M. Huber Corp., 274 F.R.D. 63, 77 (W.D.N.Y. 2011) (quoting F. R. Civ. P. 26(e); Sender v. Mann, 225 F.R.D. 645, 653-54 (D. Colo. 2004)). ¶23 Townes’ expert disclosure statement did not mention Higgins’ statement. During his deposition, Townes acknowledged that Higgins had provided a witness statement to MHP, but answered “No, I am not” when asked if he was relying on Higgins’ statement. If there was any uncertainty about whether Townes was relying on Higgins, rather than simply acknowledging the existence of her statement, it was dispelled during this latter part of his deposition. Howards’ counsel then acknowledged that Townes was not relying on Higgins as the deposition continued, stating, in a question, “Well, then, setting aside Julia Higgins’ statement . . .” At trial, Townes testified that, during the course of 11 his investigation, he had reviewed the information that had been given to him from MHP, including “one witness statement,” but did not testify that his opinions were based on the statement. ¶24 Consistent with his disclosure, Townes clarified during his deposition that his opinion did not rely upon Higgins’ statement. His position did not change at trial. Thus, his disclosure did not contain information that was “incomplete or incorrect” “in some material respect” that required correction or updating under M. R. Civ. P. 26(e). ¶25 3. Did the District Court err by denying Howards’ motion for a new trial? ¶26 Howards’ argument in favor of a new trial is premised upon the issues discussed above. Howards claim that Townes’ opinion lacked foundation and was admitted erroneously, which constitutes a “prejudicial irregularity” under § 25-11-102(1), MCA. They argue that the substantial changes in Townes’ reliance on witness testimony and Bradfords’ corresponding failure to revise his expert disclosure constituted unfair surprise. ¶27 A new trial may be granted for a reason listed in § 25-11-102, MCA, which materially affects the substantial rights of the aggrieved party, including, “irregularity in the proceedings of the court, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having a fair trial” or “accident or surprise that ordinary prudence could not have guarded against.” Section 25-11-102(1), (3), MCA. A party seeking a new trial because of a surprise under § 25-11-102(3), MCA, must demonstrate: 12 (1) the moving party was actually surprised; (2) the facts causing the surprise had a material bearing on the case; (3) the verdict or decision resulted mainly from these facts; (4) the surprise did not result from the moving party’s inattention or negligence; (5) the moving party acted promptly and claimed relief at the earliest opportunity; (6) the moving party used every means reasonably available at the time of the surprise to remedy it; and (7) the result of a new trial without the surprise would probably be different. Clark v. Bell, 2009 MT 390, ¶ 30, 353 Mont. 331, 220 P.3d 650 (citations omitted). A district court’s abuse of discretion in denying a new trial must be “so significant as to materially affect the substantial right of the complaining party” to be reversible. Perdue, ¶ 8. ¶28 In denying Howards’ motion for a new trial, the District Court concluded that “there was no impermissible surprise occasioned by Townes’ testimony.” We agree. As discussed above, Townes clearly articulated the basis for his opinion and there was not a reasonable basis for Howards to believe otherwise. Therefore, Howards have not established an “actual surprise” under § 25-11-102(3), MCA. Further, because Bradfords were not required to supplement Townes’ expert disclosure, there was no irregularity in the proceedings that warranted the granting of a new trial under § 25-11-102(1), MCA. Townes’ testimony was properly admitted and did not unfairly prejudice the Howards. ¶29 Affirmed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ BETH BAKER | May 7, 2013 |
6cfd741c-1018-4f35-8fb8-032fa00d2f79 | Walker v. Marshall | 2013 MT 110N | DA 12-0574 | Montana | Montana Supreme Court | DA 12-0574 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 110N IN RE THE PARENTING OF: N.N.W., Minor child. ROBERT WALKER, SR., Petitioner and Appellant, v. RUTH MARSHALL, Respondent and Appellee. APPEAL FROM: District Court of the Seventeenth Judicial District, In and For the County of Blaine, Cause No. DR 2012-4 Honorable John C. McKeon, Presiding Judge COUNSEL OF RECORD: For Appellant: James L. Vogel, Attorney at Law, Hardin, Montana For Appellee: Jennifer Erin Forsyth, Bosch, Kuhr, Dugdale, Martin & Kaze, PLLP; Havre, Montana Submitted on Briefs: March 13, 2013 Decided: April 23, 2013 Filed: __________________________________________ Clerk April 23 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 Robert Walker, Sr. (Robert) appeals from a judgment entered by the Seventeenth Judicial District Court, Blaine County, granting to his former girlfriend, Ruth Marshall (Ruth), primary custody of their one minor child, N.N.W. We affirm. ¶3 Ruth and Robert met and entered into a relationship sometime in 2008 or 2009. Ruth moved from the Pittsburgh, Pennsylvania area to Harlem, Montana where she and Robert resided together. Robert is an enrolled member of the White Clay Tribe of Fort Belknap Indian Reservation and is employed as an EMT with the Indian Health Service at Fort Belknap. Ruth is self-employed and is not an enrolled member of any Indian tribe. Ruth and Robert never married. ¶4 In November 2010, Ruth gave birth to the parties’ first and only child together, N.N.W. N.N.W. is an enrolled member of the White Clay Tribe of the Fort Belknap Indian Reservation. Ruth, Robert, and N.N.W. resided together in Harlem until January 2012, at which point Ruth moved back to Pittsburgh with N.N.W. Since then, Ruth and N.N.W. have lived in Ruth’s home in Pittsburgh. Robert continues to reside in Harlem. ¶5 On February 2, 2012, Robert petitioned the District Court for both an Interim and a Permanent Parenting Plan for N.N.W. After conducting a hearing on the request for an 3 Interim Parenting Plan on May 2, 2012, the District Court entered an order that placed N.N.W. with Ruth and provided for monthly supervised visits with Robert. ¶6 On August 14 and 15, 2012, the District Court held a hearing on the Permanent Parenting Plan. The parties presented witness testimony and other evidence to the court. On August 24, 2012, the District Court entered its Findings of Fact, Conclusions of Law and Decree for Parenting Plan. Among other findings, the court determined that Ruth has been the primary caretaker of N.N.W. since N.N.W.’s birth. The court found that both parties have a good relationship with N.N.W. and both parties should have substantial and continuing contact with N.N.W. However, the court found that Robert has shown erratic behaviors and has been disrespectful and occasionally aggressive at visitations. The court further found that although Ruth has a history of mental health issues, they do not represent a risk to N.N.W.’s well-being; Ruth is a fit and proper parent who presents a safe and consistent environment for N.N.W. The court concluded it is in the best interest of N.N.W. to remain in the primary residential care of Ruth in Pennsylvania, and allowed Robert four supervised visitations with N.N.W. per year. Robert appeals. We affirm. ¶7 We review a district court’s factual findings in a parenting plan action to determine if they are clearly erroneous. In re Parenting of C.W., 2012 MT 212, ¶ 10, 366 Mont. 278, 291 P.3d 1092. 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 the district court made a mistake. In re Parenting of C.W., ¶ 10. We have repeated on numerous occasions that the district court’s decision is to be afforded great deference because it is in a better position than 4 this Court to resolve child custody issues. In re Klatt, 2013 MT 17, ¶ 13, 368 Mont. 290, 294 P.3d 391. If the findings of fact are not clearly erroneous, we will not overturn the court in child custody matters unless we determine there has been a clear abuse of discretion. In re Parenting of C.W., ¶ 10. A district court abused its discretion if it acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. In re Parenting of C.W., ¶ 10. ¶8 We find no basis on which to reverse the District Court’s decision. This case presented conflicting accusations and assertions from the parties. District Court Judge McKeon heard nearly two days of testimony from witnesses for both Robert and Ruth. After careful consideration, Judge McKeon issued a detailed Findings of Fact, Conclusions of Law and Decree for Parenting Plan, in which he concluded it was in the best interest of N.N.W. to remain in the primary residential care of Ruth in Pennsylvania. The District Court was in the best position to view the witnesses, determine their credibility, and ultimately judge the child’s best interest. Based on a thorough review of the record, we determine the District Court’s findings are not clearly erroneous and the court did not abuse its discretion. ¶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. ¶10 Affirmed. /S/ MICHAEL E WHEAT We concur: 5 /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BRIAN MORRIS /S/ JIM RICE | April 23, 2013 |
3466b83b-aebb-449d-bbdb-de5a02c5f979 | Lane v. Caler | 2013 MT 108 | DA 12-0325 | Montana | Montana Supreme Court | DA 12-0325 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 108 MAXINE S. LANE, Petitioner and Appellant, v. LINDA CALER, Trustee of MAXINE LANE IRREVOCABLE TRUST, and STEWART TITLE OF MISSOULA, INC., Respondents and Appellees. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 11-883 Honorable Edward P. McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Raymond P. Tipp; Torrance L. Coburn; Tipp & Buley, P.C.; Missoula, Montana For Appellees: Spencer T. MacDonald; MacDonald Law Office, PLLC; Missoula, Montana Submitted on Briefs: February 13, 2013 Decided: April 23, 2013 Filed: __________________________________________ Clerk April 23 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Maxine S. Lane (Maxine or Beneficiary) appeals from the order of the Fourth Judicial District Court granting summary judgment in favor of Linda Caler (Linda or Trustee). We affirm, and address the issue: ¶2 Did the District Court correctly interpret the Maxine Lane Irrevocable Trust to require the Trustee to distribute $100,000 to Maxine’s brothers when the trust property was sold during Maxine’s lifetime? FACTUAL AND PROCEDURAL BACKGROUND ¶3 In 2003, with her mother’s contribution of the $50,000 down payment, Maxine was able to purchase a residence (the Property, house or residence) located in the Rattlesnake area of Missoula, where she lived until the Property was sold in July 2011. Maxine’s remaining debt for the Property’s purchase was originally secured by a fixed-rate mortgage, but she refinanced the debt with an adjustable-rate mortgage in 2004. When the interest rate spiked in 2007, Maxine was unable to continue to make the monthly mortgage payments. ¶4 Maxine’s family stepped in to help her keep the house. Her mother paid off the remaining $203,278.23 owed against the Property, leaving the title free and clear. Maxine transferred title of the Property to the newly created Maxine Lane Irrevocable Trust (the Trust). The Trust strictly prohibited any encumbrances on the Property. The Trust Agreement provided that if the Property was sold during Maxine’s lifetime, 3 $50,000 was to be paid to each of Maxine’s brothers, Homer J. Steiner III (Homer) and Karl Frederick Steiner (Karl), or a total payment of $100,000. Maxine’s daughter, Linda, was named as the Trustee of the Trust, Maxine was its sole beneficiary, and the Trust’s sole asset was the Property. The Trust’s only source of income was rent paid by Maxine and other tenants who lived in the Property, and this income was used for repair and maintenance. ¶5 In 2009, the house’s septic system began backing up. A septic company cleared the blockage, which prevented further backups so long as Maxine strictly monitored her water use. To permanently fix the problem, Linda suggested connecting the house to the city sewer system. However, at this point, the Trust funds were depleted because Maxine had stopped paying rent and the tenants had moved out. Maxine’s other daughter, Jackie, offered to make an interest-free, unsecured loan to the Trust to finance the sewer work. Jackie required no loan payments, asking only that the loan be repaid without interest when the house was sold, but did attach two conditions for the loan: (1) that Maxine comply with the Missoula City Ordinance governing the number of dogs allowed on the Property, and (2) that Maxine keep no more than four dogs on the Property even if the City permitted her to keep more. Jackie and Linda expressed concern that tenants would not be willing to rent rooms if Maxine continued to keep eight to twelve dogs in the house as she had in the past.1 Maxine rejected Jackie’s loan offer in favor of keeping the 1 Maxine bred and raised long-haired miniature Dachshunds. 4 dogs. Because the Trust prohibited any encumbrances on the Property, no commercial lender was willing to make an unsecured loan to cover the sewer work. ¶6 From January 2010 until the Property was sold in July 2011, Maxine lived in the house but did not pay rent. Because the Trust had no funds, Maxine’s mother and daughters contributed funds to the Trust to pay the property taxes and homeowner’s insurance for the Property. Maxine acknowledged that the house needed repairs for which the Trust lacked funds. In 2011, she agreed to move out and consented to the sale of the Property. The Property sold, and the Trust received $176,469.16 in net proceeds. Maxine’s desire was that the proceeds of the sale would be used to purchase a new house for her. However, the Trustee indicated she was obligated to first make the $50,000 distributions to Homer J. Steiner III and Karl Frederick Steiner as stated in the Trust, and then use the remaining proceeds for Maxine’s support. Maxine objected to the distributions. In the meantime, Maxine moved into a rental unit. The Trust paid for Maxine’s moving expenses, rental of a storage unit, the security deposit, and continues to pay her monthly rent. ¶7 On July 6, 2011, Maxine filed a declaratory judgment action in the District Court against Linda, in her capacity as Trustee.2 Maxine asked the court to determine whether the Trust required the sale proceeds to be used to purchase another residence for Maxine, or whether the Trust required the $50,000 distributions be made. The parties filed 2 Maxine joined Appellee Stewart Title to prevent it from distributing the proceeds of the sale until the District Court resolved the dispute. Stewart Title subsequently deposited all of the proceeds with the court and had no further involvement in the case. 5 cross-motions for summary judgment. The District Court granted summary judgment to Linda, concluding that the Trust mandated the Trustee to make the distributions. ¶8 Maxine appeals. STANDARD OF REVIEW ¶9 The District Court’s interpretation of a trust agreement “presents a question of law, which we review for correctness.” In re Charles M. Bair Family Trust, 2008 MT 144, ¶ 32, 343 Mont. 138, 183 P.3d 61 (hereinafter Bair Family Trust); In re Cecilia Kincaid Gift Trust for George, 2012 MT 119, ¶ 7, 365 Mont. 179, 278 P.3d 1026. DISCUSSION ¶10 Montana law requires a trustee to “administer the trust according to the trust instrument[.]” Section 72-34-101, MCA. Here, the Trustee interpreted the Trust to require the distribution of $50,000 each to Homer and Karl upon the sale of the Property. The District Court agreed with the Trustee’s interpretation. Maxine argues that the District Court’s interpretation eviscerates the purpose of the Trust: to provide her with suitable housing. To fulfill that purpose, she argues the District Court should have ordered the Trustee to purchase her a new home with the proceeds from the sale of the Property. The Trustee counters that the District Court correctly interpreted the Trust’s plain language, and that selling the Property was not inconsistent with providing for Maxine because the Trust has continued to support her. ¶11 The seven-page Trust Agreement is organized into ten Articles and a prefatory section. In the prefatory paragraphs, the Agreement explains that the Trust was created 6 for Maxine’s benefit “subject to the express directives and purposes described hereunder.” Article Two provides the Trust’s purposes, which include the first directive regarding the sale of the residence: 1. The purposes of this trust are to provide for the health, welfare and care of the Beneficiary, according to the following priorities. The primary purpose of this trust is to provide suitable housing for the beneficiary so long as the Beneficiary can live in her home, and to manage the trust’s financial resources for the long-term welfare of the Beneficiary. The Trustee shall effectuate the following trust purposes: a. To take title to the Beneficiary’s personal residence; b. To use Trust funds to pay the existing mortgage so that there is no indebtedness on the residence; c. To manage the real estate for the benefit of the beneficiary and use rental income from the residence and other trust assets to pay for maintenance, upkeep, regular bills and expenses of the property; d. To take other actions that Trustee determines is in the Beneficiary’s best interests, including the sale of the residence, and/or make other expenditures of trust property, principle [sic] or income, that in the Trustee’s discretion is necessary for the health, care and welfare of the Beneficiary; e. To make disbursements to Homer J. Steiner III and Karl Frederick Steiner up to the amount of $50,000 each, provided that the Beneficiary’s housing and other basic needs are met[.] Article Three provides that the sale of the residence is the event that triggers the distributions to Maxine’s brothers, Homer and Karl: In the event that the residence is sold during the Beneficiary’s lifetime, the Trustee shall promptly distribute a portion of the proceeds from the sale to Homer J. Steiner III and Karl Frederick Steiner or their respective lineal descendants, per stirpes, as set forth in Article Four Part 1 of this document. 7 Article Four Part 1 provides the directives to be followed upon the Beneficiary’s death, including sale of the Trust property and distribution of $100,000 to Homer and Karl. Article Nine sets forth the procedure for modification of the Trust. Although the Trustee is permitted to amend the Trust if amendment is “necessary to effectuate the purposes of this Trust,” it strictly prohibits any amendment that would eliminate the $50,000 distributions: This Trust is irrevocable. The Trust may be amended by the Trustee in the event that amendment is necessary to effectuate the purposes of this Trust, subject to the best interests of the Beneficiary. The Trust may not be amended so as to eliminate the requirement to make the payments to Homer J. Steiner III and Karl Frederick Steiner or their lineal descendents as set forth herein. ¶12 When interpreting a trust provision, this Court looks at the “entire trust agreement,” rather than just “a particular word or phrase.” Bair Family Trust, ¶ 32. We seek to interpret a trust’s language such that every expression gains “some effect,” rather than an interpretation that renders inoperative any of the expressions. Bair Family Trust, ¶ 32 (quoting In re Estate of Snyder, 2000 MT 113, ¶ 10, 299 Mont. 421, 2 P.3d 238). “When interpreting an instrument, we emphasize substance over form, and we construe the instrument’s words in their ordinary and grammatical sense, absent a clear opposite intention.” Bair Family Trust, ¶ 32. ¶13 In Bair Family Trust, ¶ 36, we held a trustee had a fiduciary duty to fulfill the “clear directives” of the trust agreement. There, the trustee and a board of advisors voted to permanently close the Charles M. Bair Family Museum in Martinsdale because of concerns about the museum’s economic viability; its outdated heating-and-ventilation 8 system, which failed to keep the museum at the proper humidity level for a museum; the absence of a fire-sprinkler system; the distance of the museum from the nearest police or fire department; and the lack of a closed-circuit television security system. Bair Family Trust, ¶ 25. The trustee and board argued that their actions were consistent with the trust agreement because the “driving force” or “primary purpose” of the trust was general philanthropy, not the specific creation of a museum. Bair Family Trust, ¶ 31. The trustee and board supported this interpretation by pointing out that no mention of a museum was included in the “Purposes of the Trust” section of the trust. Bair Family Trust, ¶ 31. The State intervened, challenging the closing of the museum as a breach of the trustee’s and board’s duty to administer the trust agreement. Bair Family Trust, ¶¶ 24, 26. The District Court ruled that the creation of the museum was merely authorized in a “precatory clause,” and therefore the trustee’s decision to create the museum was “discretionary.” Bair Family Trust, ¶ 30. On appeal, this Court reversed. We concluded that, contrary to the District Court’s interpretation that creation of the museum was merely “precatory” language, a full reading of the trust showed a “clear directive” to create the museum: The District Court’s determination that the Trust Agreement imposed no legal obligation on the Board to create the Museum would find some support if Alberta Bair only described her desire to establish the Museum as her “cherished aim and foremost desire.” Section § 6.2(e) [of the Trust] however, does more than advise or attempt to influence the Board to create Alberta Bair’s Museum; rather, her Trust Agreement provides a clear directive to the Board to create the Museum and provides the Board with direction and guidance on how to proceed. 9 Bair Family Trust, ¶ 36 (internal citation omitted). Ultimately, we concluded the trustee and board had breached their duty to the trust by not curing the shortcomings that prompted their decision to close the museum. Bair Family Trust, ¶ 60. ¶14 As in Bair Family Trust, ¶ 36, the Trust here does more than merely “advise or attempt to influence” the Trustee to make the $50,000 distributions. The Trust Agreement clearly directs that Homer and Karl are each to receive $50,000 upon the sale of the Property. Under Article Two the Trust states that the “Trustee shall effectuate the following trust purposes . . . . (e) To make disbursements to Homer J. Steiner III and Karl Frederick Steiner up to the amount of $50,000 each, provided that the Beneficiary’s housing and other basic needs are met.” (Emphasis added.) Article Three again directs that if the Property is sold during Maxine’s lifetime, “the Trustee shall promptly distribute a portion of the proceeds from the sale to Homer J. Steiner III and Karl Frederick Steiner . . . .” (Emphasis added.) Finally, the Trust prohibits amendment of this directive: “The Trust may not be amended so as to eliminate the requirement to make the payments to Homer J. Steiner III and Karl Frederick Steiner . . . .” ¶15 While we agree with Maxine that, as the Trust Agreement states, the “primary purpose” of the Trust is to provide her with suitable housing, it is also clear that the Trust had a secondary purpose of making the designated distributions to Homer and Karl. While these distributions are to be made “provided that the Beneficiary’s housing and other basic needs are met,” the Trust has been able to provide suitable housing for Maxine since the sale of the Property and has promised to continue to do so as long as the 10 Trust can maintain funds. Maxine’s interpretation of the Trust Agreement would render inoperative the provisions directing the Trustee to make the distributions. It is a well-settled rule of construction that we “seek to interpret a trust agreement’s language such that every expression gains some effect, rather than an interpretation that renders inoperative any of the expressions.” Bair Family Trust, ¶ 32. The triggering event for the distributions is the sale of the Property, at which point the distributions were to be made “promptly.” The Trust strictly prohibits any amendment that would modify this obligation. If we were to adopt Maxine’s interpretation and require the Trustee to use the entire sale proceeds to purchase a new house for Maxine, the provision for the prompt distribution to Homer and Karl upon sale of the Property would not be implemented. ¶16 Citing Article III of the Trust Agreement, Maxine argues that she was to be removed from the residence and the residence sold only “in consultation with the Beneficiary and in consultation with, and upon the advice of, appropriate health care and/or social workers.” However, it is clear from the record that Maxine acknowledged that the sale of the Property was necessary. She stated that “at the request of the Trustee, and because the property needed repairs for which there was little or no money to do them, I agreed to let the house be sold. . . .” (Emphasis added.) Despite the efforts of Maxine’s family, the Trust was without cash and something had to be done. Proceeding to sell the Property triggered the clearly stated provisions of the Trust Agreement to make the distributions to Homer and Karl. 11 ¶17 We hold that the District Court correctly concluded that the Trust Agreement required the Trust to make the $50,000 distributions upon the sale of the Property. Bair Family Trust, ¶ 36. ¶18 Affirmed. /S/ JIM RICE We concur: /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ BETH BAKER /S/ BRIAN MORRIS | April 23, 2013 |
32b0f08c-0ab5-4dc2-9418-a9ffdde18a25 | State v. MacDonald | 2013 MT 105 | DA 12-0218 | Montana | Montana Supreme Court | DA 12-0218 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 105 STATE OF MONTANA, Plaintiff and Appellee, v. ASHLI LEE MACDONALD, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 11-145 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 Van Valkenburg, Missoula County Attorney; Susan Boylan, Deputy County Attorney; Missoula, Montana Submitted on Briefs: February 13, 2013 Decided: April 23, 2013 Filed: __________________________________________ Clerk April 23 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Ashli MacDonald appeals the judgment and sentence of the Fourth Judicial District Court, following her convictions for two felonies—assault of a minor and aggravated assault—arising from incidents involving her infant son, John Doe. MacDonald raises two issues on appeal: ¶2 1. Did the District Court err by ordering a change in parenting arrangements for John Doe as part of the criminal sentence, despite pending dependency and neglect proceedings? ¶3 2. Did the District Court err or exceed statutory mandates by ordering MacDonald to pay fees, costs and surcharges without inquiring into her ability to pay? ¶4 We affirm, but remand for the District Court to strike a portion of its written judgment. PROCEDURAL AND FACTUAL BACKGROUND ¶5 On March 3, 2011, Ashli MacDonald brought her seven-week-old son, John Doe, to the Community Medical Center in Missoula, Montana, due to swelling and bruising in his upper right leg. She was accompanied by her boyfriend, Pete Lapham. An examination revealed that John Doe sustained a fracture to his upper right femur. Based on suspicion of “non-accidental trauma,” the doctor conducted a routine skeletal survey of John Doe, which revealed an older, already healing fracture in his right humerus. ¶6 MacDonald and Lapham were directed to the police station and separately interviewed. MacDonald initially indicated that she was unaware of any potential causes of her son’s injuries. After a break in the interview, however, she stated that she had recently become frustrated with John Doe when he was crying, grabbed him by his right 3 leg, jerked him up, and flipped him over. At that point, his crying changed to a “pain cry” and she knew that she had hurt him. She described another instance when she had become similarly irritated with John Doe’s crying and jerked his right arm. At her December 2011 jury trial, MacDonald testified that she had lied in her earlier statement because she wanted to “get out of there quicker” and return to the hospital to be with John Doe. She testified that Lapham, rather than she, was responsible for John Doe’s injuries. The jury convicted MacDonald of assault on a minor and aggravated assault, both felonies. ¶7 The District Court ordered a pre-sentence investigation report, which was prepared and filed with the court on January 24, 2012. The court held a sentencing hearing on February 8, 2012. Andrew Cox, John Doe’s father, appeared at the hearing and testified that he was concerned about John Doe’s safety and care based on MacDonald’s assault convictions and his observation that John Doe was often filthy and hungry while in MacDonald’s custody. Asked by the court about his preferred residential arrangement, Cox stated that John Doe should live primarily with him and that MacDonald should be permitted supervised visitation. MacDonald’s counsel noted that the parenting arrangements were being considered in MacDonald’s dependency and neglect companion case and suggested that the court await the outcome of those proceedings, rather than decide the issue at sentencing. The District Court stated that it would “defer to the dependent neglect matter,” but, “in the interim, we’ll place the child with the father, and we’ll order that the mother be given supervised visitation of three days per week, but, not 4 overnight.” At the close of the hearing, the court ordered MacDonald to deliver John Doe to Cox by 3:00 that afternoon. ¶8 In its February 15, 2012, written judgment, the District Court sentenced MacDonald to five years at the Montana Women’s Prison for the assault on a minor conviction and fifteen years in prison for the aggravated assault conviction, to be served concurrently, with both sentences suspended. The court also ordered MacDonald to pay fines, fees and surcharges, including prosecution and defense costs, summing $1,060 in total. The court recorded no findings regarding MacDonald’s financial situation. The judgment did not reflect that the court had inquired into MacDonald’s ability to pay the fines, fees and surcharges, nor was the issue of MacDonald’s financial ability raised by her counsel. The judgment identified three reasons for the sentence imposed: 1. The sentence takes into account the pre-sentence report. 2. The Court has considered the nature of the offense against the child and the injuries suffered by the child. 3. It is the Court’s opinion that the burden has now shifted and it’s on the mother to show that she should have unsupervised night visitation with the child. All presumptions are now that the father should have legal custody of the child unless the mother can show that she can provide a safe environment without any temper problems. MacDonald appeals the judgment. STANDARD OF REVIEW ¶9 We review “a criminal sentence for legality to determine whether the sentence is within the statutory parameters.” State v. Starr, 2007 MT 238, ¶ 7, 339 Mont. 208, 169 P.3d 697 (citing State v. Kotwicki, 2007 MT 17, ¶ 5, 335 Mont. 344, 151 P.3d 892). When suspending “all or a portion of execution of sentence,” the district court may 5 impose “reasonable restrictions or conditions considered necessary for rehabilitation or for the protection of the victim or society.” Section 46-18-201(4)(p), MCA. We review the imposition of sentencing conditions for an abuse of discretion. State v. Zimmerman, 2010 MT 44, ¶ 13, 355 Mont. 286, 228 P.3d 1109 (citing State v. Ashby, 2008 MT 83, ¶ 9, 342 Mont. 187, 179 P.3d 1164). We may review a criminal sentence “if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.” State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979). DISCUSSION ¶10 1. Did the District Court err by ordering a change in parenting arrangements for John Doe as part of the criminal sentence, despite pending dependency and neglect proceedings? ¶11 MacDonald argues that the District Court improperly altered and placed conditions on the parenting arrangements for John Doe during sentencing. She points out that the District Court changed custody—a civil matter with statutorily mandated procedures—in a criminal proceeding “without notice and without the presence of the attorney representing [MacDonald] in the companion case.” Although the civil case subsequently restored MacDonald’s custody of John Doe, MacDonald suggests the issue is not moot because the conditions imposed on the restoration of her custody could be misunderstood as applying throughout the course of her fifteen-year sentence. In particular, the “burden- shifting” language in the order could be “subject to misinterpretation as a judicial finding of fact and/or law of the case subject to judicial notice in any future civil proceedings.” As relief, she requests that this Court “strik[e] from the Judgment the above noted 6 reference to burden-shifting and a presumption that Cox should have legal custody of John Doe.” ¶12 Because MacDonald has regained custody of John Doe through the civil proceeding, we agree with the State that “her claim regarding the district court’s imposition of an emergency condition concerning the temporary custody of the young victim is moot” because it presents no actual controversy. See Serena Vista, L.L.C. v. State Dep’t of Nat. Resources & Conserv., 2008 MT 65, ¶ 14, 342 Mont. 73, 179 P.3d 510 (“[A] case will become moot for the purposes of an appeal where by a change of circumstances prior to the appellate decision the case has lost any practical purpose for the parties, for instance where the grievance that gave rise to the case has been eliminated[.]”) (internal quotation marks and citation omitted). During the sentencing hearing, the District Court acknowledged that custody of John Doe was being addressed in the pending abuse and neglect case and stated that it would defer to that decision. The court made clear that its order transferring custody to Cox was to be effective only “during the interim” for the purpose of protecting John Doe. Since the companion civil case has now been decided, the “interim” custody arrangement provided in the sentencing order no longer has any effect. ¶13 We do agree with MacDonald, however, that the statement in the court’s written judgment that the father should be presumed to have custody of John Doe should not have been included in the criminal sentence. The court recognized that custody of the child would be determined in the civil case, and it imposed no conditions on MacDonald’s suspended sentence relating to her contact with the child, except that she 7 comply with all recommendations in the treatment plan by Child and Family Services. The third statement in the court’s reasons for judgment, while not stated as a condition of the sentence, could be construed as a finding or conclusion with implications for any civil custody proceeding, despite the court’s professed intent not to make any such determination in the criminal case. Accordingly, the third statement of reasons for the sentence has no place in the judgment and must be stricken. ¶14 2. Did the District Court err or exceed statutory mandates by ordering MacDonald to pay fees, costs and surcharges without inquiring into her ability to pay? ¶15 MacDonald acknowledges that she did not object to the District Court’s failure to inquire into her ability to pay the fees, costs and surcharges and thus did not preserve the issue for appeal. She points out, however, that this Court may review any sentence that allegedly is “illegal or exceeds statutory mandates, regardless of whether an objection was made,” as discussed in Lenihan. She suggests that the “Lenihan exception may be invoked here” because the District Court’s failure to inquire into MacDonald’s ability to pay the fees “results in an illegal sentence that may not fall within statutory parameters.” See Lenihan, 184 Mont. at 343, 602 P.2d at 999-1000. Based on our holding in Kotwicki, we disagree with MacDonald’s argument. ¶16 We have on numerous occasions recognized that “a sentencing court’s failure to abide by a statutory requirement rises to an objectionable sentence, not necessarily an illegal one that would invoke the Lenihan exception.” Kotwicki, ¶ 13; see e.g. State v. Swoboda, 276 Mont. 479, 482, 918 P.2d 296, 298 (1996); State v. Park, 2008 MT 429, ¶ 19, 347 Mont. 462, 198 P.3d 321; State v. Jones, 2008 MT 440, ¶ 16, 347 Mont. 512, 8 199 P.3d 216 (overruled in part on other grounds, State v. Allen, 2010 MT 214, ¶ 35, 357 Mont. 495, 241 P.3d 1045). ¶17 In Kotwicki, we held that the sentencing court’s failure to inquire into the defendant’s financial circumstances prior to imposing fees, as required by statute, renders the sentence objectionable, but not illegal. Kotwicki, ¶¶ 21-22. After Kotwicki was convicted of five felonies, the sentencing court imposed fees summing $25,000, but failed to conduct an inquiry into the defendant’s ability to pay, as required by § 46-18- 231(3), MCA. Kotwicki did not object before the district court, but appealed the sentencing decision, arguing that the sentence was illegal and that the Lenihan exception applied. We noted that the record indicated Kotwicki had maintained employment as a construction worker for years and possessed a large sum of cash, but it was impossible to tell whether the court actually had considered those factors because it “made no specific findings as to Kotwicki’s ability to pay.” Kotwicki, ¶ 21. We also noted that the fines did not exceed the statutory parameters because the district court was authorized by statute to impose a fine of up to $50,000 for each felony offense. Kotwicki, ¶ 16. We held that “Kotwicki’s failure to object to the court’s oversight of Kotwicki’s ability to pay the $25,000 fine constituted a waiver that prevents us from reviewing the issue on appeal.” Kotwicki, ¶ 22. ¶18 We disagree with MacDonald’s suggestion that our holding in Kotwicki is limited to circumstances where the record reflects the defendant’s ability to pay. Our holding was explicitly based on the assumption “that the court failed to consider Kotwicki’s financial condition.” Kotwicki, ¶ 21. Moreover, here, as in Kotwicki, information about 9 the defendant’s financial circumstances was available for the District Court’s consideration: the pre-sentence investigation report listed MacDonald’s employment status, income, financial assets, and debts. MacDonald’s failure to object to any oversight by the court regarding her financial condition constituted a waiver of her claim on appeal. Kotwicki, ¶ 22. ¶19 MacDonald’s reference to Starr is misplaced. There, the district court rejected the pre-sentence investigation report’s recommendation of a $3,000 fine on its express finding that the defendant would not be able to pay it, but—in contradiction to that finding—then ordered Starr to pay more than $2,000 for fees of assigned counsel. Starr, ¶¶ 5, 8. Under those circumstances, we held that the sentence was illegal “[a]bsent an affirmative finding of Starr’s ability to pay the attorney’s fees.” Starr, ¶ 10. There is no mention in Starr of any failure by the defendant to object to the imposition of defense costs; thus, whether the claim was waived was not an issue on appeal. ¶20 As discussed, MacDonald has not made a “colorable claim” that her sentence was illegal. There is no indication that the imposition of fees totaling $1,060 fell outside of statutory parameters. The fees are authorized by law and the District Court could have imposed a fine up to $50,000 for the aggravated assault conviction. Section 45-5-202(2), MCA. At sentencing, the District Court considered a pre-sentence investigation report that detailed MacDonald’s financial circumstances and provided an itemized list of applicable fees. The District Court acted within its discretion in imposing fees and we decline to consider MacDonald’s claim absent objection before the sentencing court. Kotwicki, ¶ 21. 10 ¶21 For the foregoing reasons, we affirm the judgment of the District Court. The case is remanded with instructions to the District Court to strike the language identified as the third numbered paragraph of its reasons for judgment. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ JIM RICE /S/ BRIAN MORRIS | April 23, 2013 |
0f7ae867-ab3e-4550-aa70-c3d60c4b2fd5 | State v. Longfellow | N/A | DA 12-0630 | Montana | Montana Supreme Court | DA 12-0630 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 117N STATE OF MONTANA, Plaintiff and Appellee, v. WILLIAM F. LONGFELLOW, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDC-05-102 Honorable Kenneth R. Neill, Presiding Judge COUNSEL OF RECORD: For Appellant: William F. Longfellow (Self-Represented), Shelby, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana John W. Parker, Cascade County Attorney, Susan Weber, Deputy County Attorney, Great Falls, Montana Submitted on Briefs: April 17, 2013 Decided: April 30, 2013 Filed: __________________________________________ Clerk April 30 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 This is an appeal of a denial of a motion to compel production of a plea agreement filed by Appellant William Flynn Longfellow. ¶3 Longfellow was convicted by a jury on October 6, 2006, of sexual intercourse without consent before the Honorable Kenneth R. Neill, Eighth Judicial District Court, Cascade County. The District Court sentenced Longfellow to Montana State Prison for fifty years, with ten years suspended. Longfellow’s conviction was affirmed by this Court on October 9, 2008. See State v. Longfellow, 2008 MT 343, 346 Mont. 286, 194 P.3d 694. ¶4 Longfellow filed a petition for postconviction relief which was denied by the District Court on November 12, 2010. The denial of Longfellow’s petition for postconviction relief was affirmed by this Court in a memorandum opinion issued July 29, 2011. See Longfellow v. State, 2011 MT 181N. ¶5 On September 4, 2012, Longfellow filed in the District Court a Motion to Compel the prosecutor’s office and his former attorneys to produce copies of alleged plea agreements, written and oral, which may have been allegedly used during his 2005-2006 trial proceedings. On September 12, 2012, the District Court denied Longfellow’s 3 request stating that “Longfellow [has] exhausted his remedies of appeal. There is no pending matter before this Court. Longfellow has no meritorious reason needing any communications and written plea agreements.” Longfellow filed a motion for reconsideration which was denied by the District Court on September 26, 2012. Longfellow appeals to this Court the order denying his Motion to Compel. ¶6 The standard of review for the issue Longfellow raises is an abuse of discretion. State v. Ross, 269 Mont. 347, 889 P.2d 161 (1995) (applying the standard of abuse of discretion to matters of trial administration); Bartlett v. Allstate Ins. Co., 280 Mont. 63, 929 P.2d 227 (1996) (alleged discovery violations in a civil trial are reviewed for an abuse of discretion). Longfellow has not alleged any facts which would indicate that the information he seeks actually exists, let alone that the District Court has abused its discretion in denying his request for the purported plea agreement. This Court has repeatedly held that it will not consider unsupported issues or arguments on appeal. State v. Ochadleus, 2005 MT 88, ¶ 32, 326 Mont. 441, 110 P.3d 448; State v. Rodarte, 2002 MT 317, ¶ 15, 313 Mont. 131, 60 P.3d 983. ¶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. The issues in this case are ones of judicial discretion and there clearly was not an abuse of discretion. ¶8 Affirmed. /S/ LAURIE McKINNON 4 We Concur: /S/ MIKE McGRATH /S/ JIM RICE /S/ PATRICIA COTTER /S/ BETH BAKER | April 30, 2013 |
fec8bfcf-b0d0-4bbe-b6ee-e8d0371728dd | Parenting of O.M.C. | 2013 MT 98N | DA 12-0537 | Montana | Montana Supreme Court | DA 12-0537 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT IN THE PARENTING OF O.M.C., A Minor Child. WHITNEY GRANT, Petitioner and Appellant, v. CHRIS CARNAHAN, Respondent and Appellee. APPEAL FROM: District Court of the Seventeenth Judicial District, In and For the County of Phillips, Cause No. DR 12-01 Honorable John C. McKeon, Presiding Judge April 15 2013 2 COUNSEL OF RECORD: For Appellant: Lindsay Lorang; Lorang Law, PC; Havre, Montana For Appellee: Peter L. Helland; Helland Law Firm; Glasgow, Montana Submitted on Briefs: April 3, 2013 Decided: Filed: __________________________________________ Clerk 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by noncitable opinion and does not serve 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 The Seventeenth Judicial District Court entered a decree in August of 2012 establishing a parenting plan with respect to O.M.C., the minor child of Whitney Grant and Chris Carnahan. Whitney appeals, arguing that the final parenting plan was not supported by substantial evidence and is not in the best interests of O.M.C. We affirm. ¶3 The parties lived together in Malta, Montana, for about four years and, in May of 2007, Whitney gave birth to their son, O.M.C. The parties separated in February of 2011, after which they initially shared residential parenting equally. In June of 2011, they agreed that Chris’s residential parenting through September would be approximately every other weekend, so that he could participate in the summer drag racing circuit. After that time, they did not go back to the previous schedule. ¶4 In January 2012, Whitney petitioned the District Court to establish a parenting plan. She asked to be designated as O.M.C.’s primary residential parent and notified the court of her intent to move to Idaho with O.M.C. to live with her boyfriend. Chris responded with a proposed parenting plan under which he would be O.M.C.’s primary residential parent “whether Whitney moves to Idaho or remains in Malta.” 3 ¶5 After a hearing, the District Court determined that each parent has a good relationship with O.M.C. The court found that moving to Idaho for the school term would not be in O.M.C.’s best interests. It adopted the plan proposed by Chris, with modifications. Under the modified plan, O.M.C. will live with Chris during the school year and during the first week following the end of the school year and the last week of summer vacation from school. O.M.C. will live with Whitney during the summer. Whitney also shall have O.M.C. every other week during the school year from Wednesday at 6 p.m. until Sunday at 6 p.m., which shall occur in the Malta area if she moves to Idaho. Holidays will be alternated. The court stated that plan was in O.M.C.’s best interests and that it “provides the opportunity for equal residential parenting should [Whitney] decide to stay in the Malta area.” ¶6 After the District Court issued its order adopting the final parenting plan, Whitney advised the court that she no longer intended to move to Idaho. On appeal, she contends the District Court erred by ordering a parenting plan which substantially changed the residential schedule of the interim parenting plan, by failing to make specific findings for forming a change in the custodial schedule, and by failing to make findings as to why it was not in O.M.C.’s best interest to remain in her primary care if she remained in Malta. ¶7 The issues raised in this appeal are governed by review standards that call for great deference to a trial court’s determinations. A district court has “broad discretion when considering the parenting of a child. ‘Child custody cases often present the court with difficult decisions. We must presume that the court carefully considered the evidence and made the correct decision.’” In re Marriage of Tummarello, 2012 MT 18, ¶ 34, 363 Mont. 387, 270 P.3d 28 (quoting In re Parenting of N.S., 2011 MT 98, ¶ 18, 360 Mont. 288, 253 P.3d 863). ¶8 The standard of review for a parenting plan is whether the district court abused its discretion in 4 reaching the conclusions it did. Tummarello, ¶ 21. Furthermore, judgments regarding the credibility of witnesses and the weight to be given their testimony are within the province of the District Court, and we will not substitute our judgment for its determinations. Tummarello, ¶ 34. ¶9 As is often the case in decisions regarding parenting plans, the parties presented conflicting evidence at the hearing before the District Court. Given the deference that we appropriately give to district courts in cases such as this, we find no basis on which to reverse the decision here. It is not the appellate court’s prerogative to determine in the first instance what is an appropriate parenting plan for the parties’ child. Having observed and listened to the parties and heard the evidence, Judge McKeon was in the best position to judge O.M.C.’s best interests. His findings are supported by substantial evidence in the record. Though Whitney expresses concern that a period of ten days between visits between a mother and her young child is too long, the parenting plan allows the parties to agree to additional visitation, and they should do so when it is in the child’s best interests. Especially in light of the court’s encouragement of the parties to agree to equal residential parenting if Whitney stays in Malta, the parenting plan is consistent with the statutory preference for “frequent and continuing contact with both parents.” Section 40-4-212(1)(l), MCA. ¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for noncitable opinions. This appeal presents no constitutional issues or issues of first impression. It does not establish new precedent or modify existing precedent. In our opinion, it would not be of future guidance for citation purposes to the citizens of Montana, the bench, or the bar. The District Court did not abuse its discretion in adopting the parenting plan. The District Court’s order for final parenting plan filed August 9, 2012, is affirmed. 5 /S/ BETH BAKER We concur: ________________________________ Chief Justice ________________________________ ________________________________ ________________________________ Justices | April 15, 2013 |
c8245391-15de-429e-917d-5f6199970540 | Wittich v. O'Connell | 2013 MT 122 | DA 12-0199 | Montana | Montana Supreme Court | DA 12-0199 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 122 WITTICH LAW FIRM, P.C. Plaintiff and Appellee, v. VALERY ANN O’CONNELL and DANIEL O’CONNELL, Defendants and Appellants. APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DV-10-198 Honorable Wm. Nels Swandal, Presiding Judge COUNSEL OF RECORD: For Appellants: Daniel O’Connell, self-represented, Valery O’Connell, self-represented; Emigrant, Montana For Appellee: Carrie R. Wasserburger, Arthur V. Wittich; Wittich Law Firm, P.C.; Bozeman, Montana Submitted on Briefs: January 9, 2013 Decided: May 7, 2013 Filed: __________________________________________ Clerk May 7 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Plaintiff and Appellee Wittich Law Firm, P.C., (WLF) filed a complaint seeking unpaid legal fees in the Sixth Judicial District Court, Park County. The District Court entered a default judgment in favor of WLF. Defendants and Appellants Valery Ann and Daniel O’Connell (the O’Connells) moved to vacate the entry of default judgment some nine months later. The District Court denied the motion, and the O’Connells appealed this denial pro se. We affirm. STATEMENT OF THE ISSUES ¶2 We restate the issues on appeal as follows: ¶3 1. Did the District Court slightly abuse its discretion by denying the O’Connells’ motion to vacate its entry of default judgment? ¶4 2. Did the District Court err by awarding attorney fees and costs to the Wittich Law Firm, P.C.? ¶5 3. Did the District Court err by denying the O’Connells’ M. R. Civ. P. 59(e) and M. R. Civ. P. 60(b) motions seeking to either alter or set aside the court’s January 6, 2012 denial of the O’Connells’ motion to vacate the entry of default judgment? FACTUAL AND PROCEDURAL BACKGROUND ¶6 Plaintiff WLF filed a complaint on October 27, 2010 alleging that the O’Connells and WLF had previously entered into a contract for legal services and that the O’Connells had breached this contract by failing to fully pay for the legal services performed by WLF. The complaint requested a judgment in the amount of $2,892.26, interest, attorney fees, and costs. The O’Connells were each personally served with the complaint and a summons on November 1, 2010. The summonses notified the O’Connells that their answer was due 3 within 20 days after the completion of service of the summons and complaint. See M. R. Civ. P. 12(a) (2009). ¶7 The O’Connells failed to file an answer or otherwise appear within the required time period. WLF and the O’Connells did communicate about the alleged owed payments, however. WLF sent the O’Connells a letter on November 17, 2010, advising them that the account in question showed an outstanding balance of $2,232.56. This lower balance reflected a June 10, 2010 transfer of $662.25 from another of the O’Connells’ trust accounts with WLF. The letter requested that the O’Connells “pay the remaining $2,232.56 immediately so we can close out your account.” The O’Connells thereafter paid $2,138.57 on December 2, 2010. Immediately after receiving this payment, WLF sent the O’Connells another letter stating that they still owed the firm $93.99 and asking the O’Connells to remit this remaining payment by December 10, 2010. On December 1, 2010, while this correspondence was occurring, WLF requested an entry of default from the Clerk of the District Court, and the clerk ordered entry of a default on December 3, 2010. See M. R. Civ. P. 55(a) (2009). ¶8 The O’Connells did not send the requested $93.99 by December 10, and WLF filed an Application for Default Judgment on December 16, 2010. The attached brief and affidavit claimed that the O’Connells had last submitted a payment to WLF for outstanding legal fees on December 2, 2010, and claimed that the O’Connells still owed $93.99. An affidavit from Arthur Wittich attached a copy of the legal services contract between the O’Connells and WLF. This contract provided that the failure to pay costs and fees incurred in the course of 4 WLF’s representation would subject the O’Connells to “all collection costs, including attorney fees, for any action necessary” and that overdue balances would accrue interest at 12% per year. An attached accounting of the costs and fees WLF had incurred while pursuing the action showed a balance of $808.80. The District Court subsequently entered an order of default judgment against the O’Connells for $902.79 on March 9, 2011. ¶9 The O’Connells filed a “Motion to Vacate Default/Order” on December 5, 2011, roughly nine months after the entry of default judgment. Their motion sought to vacate the default judgment pursuant to M. R. Civ. P. 60(b).1 While the O’Connells did not state which Rule 60(b) reason their motion was based on, their motion largely contested WLF’s accounting of the owed legal fees, alleged various newly discovered “errors and hidden deceits,” and alleged that a WLF bookkeeper had committed fraud by leading them to believe that WLF’s complaint would be dropped. ¶10 The O’Connells’ motion also assumed that it was operating under the 2011 version of the Montana Rules of Civil Procedure, which provide that motions made under Rule 60(b)(1)-(3) must be made no more than a year after the entry of judgment or order or the date of the proceeding. The 2009 version of Rule 60(b) required that motions made for reasons (1)-(3) under Rule 60(b) must be made within 60 days of the judgment or order or service of the entry of judgment. The 2011 amendments to the Montana Rules of Civil Procedure became effective October 1, 2011. See Sup. Ct. Ord. No. AF 07-0157, April 26, 1 The applicable version of Rule 60(b), 2009 or 2011, is at issue and will be addressed in our discussion. 5 2011, eff. Oct. 1, 2011; M. R. Civ. P. 86 (2011). Because the O’Connells’ Rule 60(b) motion was made roughly nine months after the court’s order of default judgment, determining which version of Rule 60(b) applied to their motion would determine its initial validity if it alleged reasons (1)-(3) as a basis for relief. ¶11 The District Court denied the O’Connells’ December 5, 2011 motion to vacate the default judgment in a January 6, 2012 order. The court construed the O’Connells’ motion as most clearly alleging reason (3) as a basis for relief. The court also determined that the 2009 version of Rule 60(b) governed the O’Connells’ motion, rendering the motion untimely. The court also considered M. R. Civ. P. 60(b)(6) (2009) as a possible basis for the O’Connells’ motion. Rule 60(b)(6) (2009) allowed relief from a judgment pursuant to “any other reason” if filed “within a reasonable time.” See also, Bartell v. Zabawa, 2009 MT 204, ¶ 30, 351 Mont. 211, 214 P.3d 735 (“A successful M. R. Civ. P. 60(b)(6) motion requires that (1) the movant demonstrate extraordinary circumstances, (2) the movant acted to set aside the judgment within a reasonable time, and (3) the movant was blameless.”). The court denied the O’Connells’ motion under Rule 60(b)(6), finding that they failed to meet any of the standards that we set in Bartell. The court also ordered the O’Connells to pay WLF’s attorney fees and costs incurred in responding to the December 5, 2011 motion to set aside the default judgment. WLF submitted a request for an award of $2,860.00 in attorney fees and costs on January 12, 2012. The O’Connells failed to object to or otherwise contest the WLF’s accounting and the court ordered the O’Connells to pay the $2,860.00 in a February 3, 2012 judgment. 6 ¶12 The O’Connells subsequently filed two conglomerated motions, one on January, 31, 2012 (the January motion), and another on February 24, 2012 (the February motion). The January motion specifically asked for relief from the court’s January 6 order and alleged M. R. Civ. P. 59(e) and M. R. Civ. P. 60(b) as bases for relief. The February motion sought to alter or amend the court’s February 3 judgment awarding attorney fees and costs pursuant to Rule 59(e) and requested a stay of that judgment pursuant to M. R. Civ. P. 62. The District Court denied both motions in a March 20, 2012 order, finding that the O’Connells did not timely object to the award of attorney fees and that they provided insufficient justification for either an amendment or stay of the judgment. ¶13 The O’Connells filed a notice of appeal to this Court on March 23, 2012 indicating that they intended to appeal the January 6, 2012 order denying their motion to vacate the default judgment, the February 3 judgment awarding attorney fees and costs, and the March 9, 2011 order of default judgment. Their brief on appeal, however, claims they are appealing the January 6, 2012 order, February 3 judgment, and March 20, 2012 order denying the O’Connells’ January and February motions. For the reasons stated below, we affirm the decisions of the District Court on all counts and decline to address the O’Connells’ appeal of the March 20, 2012 order. See M. R. App. P. 4(4)(a). STANDARD OF REVIEW ¶14 Our standard of review of a district court’s ruling on a motion pursuant to M. R. Civ. P. 60(b) depends upon the nature of the final judgment, order, or proceeding from which relief is sought and the specific basis of the Rule 60(b) motion. Essex Ins. Co. v. Moose’s 7 Saloon, Inc., 2007 MT 202, ¶ 16, 338 Mont. 423, 166 P.3d 451. Here, because we do not favor default judgments, we will review the denial of the motion to set aside the default judgment for only a slight abuse of discretion. Nikolaisen v. Adv. Transformer Co., 2007 MT 352, ¶ 14, 340 Mont. 332, 174 P.3d 940. The party who seeks to set aside a default judgment bears the burden of persuasion. Nikolaisen, ¶ 14. ¶15 A decision on a request for an award of attorney fees is reviewed for an abuse of discretion unless a contract requires an award of fees, in which case a district court lacks the discretion to deny the request. Gibson v. Paramount Homes, 2011 MT 112, ¶ 10, 360 Mont. 421, 253 P.3d 903. An abuse of discretion occurs when a court acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason resulting in substantial injustice. Boyne USA, Inc. v. Spanish Peaks Dev., LLC, 2013 MT 1, ¶ 30, 368 Mont. 143, 292 P.3d 432. Last, we review a district court’s conclusions of law to determine if they are correct. Estate of Donald v. Kalispell Reg’l Med. Cntr., 2011 MT 166, ¶ 17, 361 Mont. 179, 258 P.3d 395. DISCUSSION ¶16 1. Did the District Court slightly abuse its discretion by denying the O’Connells’ motion to vacate the default judgment? ¶17 Montana Rule of Civil Procedure 55(c) provides that the court may set aside a default judgment in accordance with the reasons contained in Mont. R. Civ. P. 60(b). The 2009 version of Rule 60(b) provided, in relevant part: On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the 8 following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) when a defendant has been personally served, whether in lieu of publication or not, not more than 60 days after the judgment, order or proceeding was entered or taken, or, in a case where notice of entry of judgment is required by Rule 77(d), not more than 60 days after service of notice of entry of judgment. M. R. Civ. P. 60(b) (2009) (emphasis added). The 2011 version of Rule 60(b) differs in form and is also subject to the new timing requirements of Rule 60(c): (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (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. (c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time -- and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding. Motions provided by Rule 60(b) must be determined within the times provided by Rule 59 in the case of motions for new trials and amendment of judgment and if the 9 court shall fail to rule on the motion within the 60-day period, the motion must be deemed denied. M. R. Civ. P. 60(b) & (c) (2011) (emphasis added). Thus, the reasons that may justify granting relief from a default judgment remain the same, but the time limit for a motion based on reasons (1), (2), and (3) has been increased from 60 days to one year. ¶18 The O’Connells’ December 5, 2011, Rule 60(b) motion did not clearly state which subsections provided the basis of their motion. Indeed, the O’Connells’ December 5 motion largely advanced arguments, like the accounting and handling of their payments or the language of the legal services contract, that are irrelevant to the reasons listed under Rule 60(b). However, the District Court construed the motion as most clearly advancing subsection (3) due to their various assertions of fraud on the part of WLF. The court denied the O’Connells’ motion pursuant to reason (3) by applying the 2009 version of the rule, which required motions based on Rule 60(b)(1)-(3) to be filed not more than 60 days after the default judgment. Because the O’Connells’ motion was filed nine months after the default judgment, the court concluded that it was untimely insofar as it alleged a basis for relief under reasons (1)-(3). ¶19 The court also considered the O’Connells’ motion under Rule 60(b)(6). A movant cannot prevail under Rule 60(b)(6) unless they meet the higher burden of proving extraordinary circumstances while showing that they were blameless and acted within a reasonable amount of time. See Bahm v. Southworth, 2000 MT 244, ¶ 14, 301 Mont. 434, 10 10 P.3d 99. The court concluded that the O’Connells could not establish any of the elements of a Rule 60(b)(6) claim and denied their motion under this alternative theory. ¶20 Initially, while the court considered the O’Connells’ motion under Rule 60(b)(6) and the O’Connells continue to advance it as a basis for relief on appeal, we have recently reiterated the general rule that “where the circumstances underlying a default judgment raise grounds that are covered by Rule 60(b)(1)-(5), Rule 60(b)(6) is not available for application.” Green v. Gerber, 2013 MT 35, ¶ 35, 369 Mont. 20; Mont. Prof’l Sports, LLC v. Nat’l Indoor Football League, LLC, 2008 MT 98, ¶ 54, 342 Mont. 292, 180 P.3d 1142 (“Relief is available under M. R. Civ. P. 60(b)(6) ‘for situations other than those enumerated in the first five subsections of the rule.’”). Green’s reiteration of our interpretation of Rule 60(b) follows over twenty years of similar precedent. See In re Marriage of Waters, 223 Mont. 183, 187, 724 P.2d 726 (1986); Koch v. Billings Sch. Dist. No. 2, 253 Mont. 261, 265, 833 P.2d 181 (1992) (“‘[I]t is generally held that if a party seeks relief under any other subsection of Rule 60(b), it cannot also claim relief under 60(b)(6).”); Essex Ins. Co., ¶ 21. Our Waters opinion adopted the U.S. Supreme Court’s interpretation of the “any other reason” qualification in Rule 60(b)(6), stating “‘[i]n simple English, the language of the ‘other reason’ clause, for all reasons except the five particularly specified, vests power in court adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.”’ Waters, 223 Mont. at 187 (quoting Klaprott v. United States, 335 U.S. 601, 614-15, 69 S. Ct. 384 (1949)) (emphasis added). We further required that “before a party will be allowed to modify a final judgment under Rule 60(b)(6), he must first show that 11 none of the other five reasons in Rule 60(b) apply, and he must also demonstrate extraordinary circumstances in his case which justify relief.” Waters, 223 Mont. at 187. This interpretation of the rule was echoed by our opinion in Essex and reaffirmed in Green. Essex, ¶ 21; Green, ¶ 35. In re Marriage of Hopper, 1999 MT 310, ¶ 21, 297 Mont. 225, 991 P.2d 960. ¶21 The O’Connells therefore may not obtain relief under Rule 60(b)(6) if their claim arises under one of the first five subsections of the Rule. In re Marriage of Hopper, 1999 MT 310, ¶ 21, 297 Mont. 225, 991 P.2d 960. As in Hopper, because we treat the O’Connells’ claim as arising under Rule 60(b)(3), we will not consider their claim under Rule 60(b)(6). ¶22 As Rule 60(b)(6) is not available to the O’Connells if the circumstances underlying the default judgment are covered by subsection (1)-(5), we must initially determine whether the District Court slightly abused its discretion by construing the O’Connells’ motion as most clearly advancing subsection (3). The O’Connells’ motion never cited a specific subsection of Rule 60(b) as a basis for relief. Instead, the O’Connells largely focused on what they alleged were errors in the WLF’s accounting and handling of their legal fees. The O’Connells also repeatedly referenced an alleged promise by a WLF bookkeeper that WLF would “drop the complaint” if the O’Connells paid in full. The O’Connells claimed that because they believed this alleged promise, WLF’s continuation of the claim constituted fraud. 12 ¶23 As noted, the court determined that this argument most clearly raised subsection (3) as a basis for relief. We conclude that this was not an abuse of discretion, however slight. The O’Connells’ motion was utterly devoid of legal analysis or argument. The only reference to Rule 60(b) consisted of block quotations of the rule. The O’Connells never applied any subsection of the rule to the circumstances of the default judgment.2 However, the O’Connells did advance various allegations of fraud, misconduct, and misrepresentation by WLF to explain why they did not respond to WLF’s complaint and to support granting relief from the default judgment. These allegations most clearly align with subsection (3) of Rule 60(b), and it was not a slight abuse of discretion for the court to so construe the O’Connells’ motion. ¶24 After identifying subsection (3) as the most likely basis for the O’Connells’ motion, the District Court denied the availability of subsection (3) by concluding that the motion was untimely under the 2009 version of the rule.3 As noted, we review such conclusions of law for correctness. Estate of Donald, ¶ 17. The District Court applied the 2009 version of Rule 60(b) by looking to the language of M. R. 2 This lack of specificity arguably violated M. R. Civ. P. 7(b) (2009), which required that a motion for an order from a court shall “state with particularity” the grounds for seeking the order. Mere recitation of rules or statutes without stating with particularity the precise facts or circumstances relied upon in reference to those rules may cause a motion to be inadequate or defective. See Montana Williams Double Diamond Corp. v. Hill, 175 Mont. 248, 256, 573 P.2d 649 (1978). 3 Again, the 2009 version of the rule required motions based on Rule 60(b)(1)-(3) to be filed within 60 days. The 2011 version allows one year. The O’Connells filed their motion nine months after the default judgment. 13 Civ. P. 86 (2011). The 2011 version of Rule 86 provides the effective date of the new rules and amendments, and in relevant part provides: (a) In General. These rules and any amendments take effect at the time specified by the supreme court.4 They govern: (1) proceedings in an action commenced after their effective date; and (2) proceedings after that date in an action then pending unless: (A) the supreme court specifies otherwise; or (B) the court determines that applying them in a particular action would be unfeasible or work an injustice. The court determined that this language indicated that the 2011 version of Rule 60(b) would apply only to proceedings in new or pending actions. The court then determined that because the default judgment had been entered against the O’Connells on March 9, 2011, the action was neither new nor pending when the motion was filed on December 5, 2011. The court accordingly determined that the O’Connells’ December 5 motion remained subject to the 2009 version of Rule 60(b) and was consequently untimely. ¶25 We conclude that the court’s application of the 2009 version of Rule 60(b) was correct. A default judgment is a final decision of a court of law. See Green, ¶ 41. Once the default judgment was entered, there were no remaining or pending proceedings concerning WLF’s claim against the O’Connells. While the O’Connells could, and did, file a Rule 60(b) motion seeking relief from the default judgment, this did not render the judgment any less final or cause the judgment to become pending. Rule 60(b) allows a party relief from a final judgment if the movant shows that one of the six subsections applies. This does not mean 4 As noted above, we specified October 1, 2011 as the effective date of the 2011 rules in 14 that the filing of a Rule 60(b) motion by itself converts a final judgment into a pending proceeding. Rule 60(b) is an exception to the doctrine of finality of judgments only insofar as it allows relief from an otherwise final judgment “where a party was wronged through no fault of its own.” In re Marriage of Hopper, ¶ 29. Because the default judgment became a final decision of the court when it was ordered on March 9, 2011, it was neither new nor pending when the 2011 version of Rule 60(b) came into effect on October 1, 2011. The court therefore correctly applied the language of Rule 86 (2011) to determine that Rule 60(b) (2009) applied to the O’Connells’ motion. Further, because the O’Connells’ apparent Rule 60(b)(3) motion was filed well after the 60 day time limit of the 2009 version of the rule, it was not a slight abuse of discretion for the court to deny the motion as untimely. ¶26 We recognize that the O’Connells represented themselves before both this Court and the District Court, and we generally seek to afford pro se litigants a certain amount of latitude. Greenup v. Russell, 2000 MT 154, ¶ 15, 300 Mont. 136, 3 P.3d 124. This latitude, however, cannot be so wide as to prejudice the other party, “and it is reasonable to expect all litigants, including those acting pro se, to adhere to procedural rules.” Greenup, ¶ 15. The O’Connells did not file anything with the court for over a year after WLF filed the complaint. In doing so, the O’Connells ignored several deadlines and gave up opportunities to respond to WLF’s allegations, and they did so at their own peril. It was not a slight abuse of discretion to hold the O’Connells, self-represented or not, to basic procedural deadlines. See Greenup, ¶¶ 13-15. an April 26, 2011 order. 15 ¶27 2. Did the District Court err by awarding attorney fees and costs to the Wittich Law Firm, P.C.? ¶28 The O’Connells claim the court erred by awarding attorney fees “without a motion AND absent any damages, and granted solely due to alleged breech [sic] of the written contract by refusal of payment.” The O’Connells further claim that because the contract allows attorney fees for only “necessary” actions, the award should be reversed because the WLF’s complaint wasn’t necessary. ¶29 Montana generally follows the American rule that a party may not recover attorney fees in a civil action absent statutory or contractual authority. Hughes v. Ahlgren, 2011 MT 189, ¶ 13, 361 Mont. 319, 258 P.3d 439. Following this, we review a court’s decision that legal authority exists to award attorney fees for correctness. Hughes, ¶ 10. Section 7 of the legal services contract clearly provided that “[f]ailure to pay [fees and costs incurred in the course of representation] will also subject you [the O’Connells] to all collection costs, including attorney fees, for any action necessary.” Contractual authority for attorney fees undoubtedly existed. WLF therefore validly requested $808.80 in attorney fees incurred in pursuing the default judgment. This sum was correctly included in the March 3, 2011 order of default judgment. Whether or not the underlying action was “necessary” is not relevant to our review of the award. Similarly, the court properly awarded an additional $2,860.00 in attorney fees to WLF in its January 6 order, as these fees were likewise incurred in the course of pursuing the claim. Both awards came at the request of WLF and were based on sworn affidavits and accountings provided by WLF. Recognizing the clear language of the 16 legal services contract, and the O’Connells’ failure to contest the calculation of either award, we conclude that the court did not abuse its discretion by granting attorney fees to WLF in either instance. Indeed, because the contract expressly allowed the award of attorney fees if WLF brought a claim to recover legal fees, the court lacked the discretion to deny the requests. See Gibson, ¶ 10; Emmerson v. Walker, 2010 MT 167, ¶ 20, 357 Mont. 166, 236 P.3d 598. ¶30 3. Did the District Court err by denying the O’Connells’ M. R. Civ. P. 59(e) and M. R. Civ. P. 60(b) motions seeking to either alter or set aside the court’s earlier denial of the O’Connells’ motion to vacate the entry of default judgment? ¶31 The O’Connells finally attempt to raise issues with the District Court’s March 20, 2012 order dismissing their January and February motions. The O’Connells did not include this order in their notice of appeal. Rule 4(4)(a), M. R. App. P., requires that a notice of appeal designate the final “judgment or order or part thereof from which appeal is taken.” Following this, we will not consider an appeal from an order not designated in the notice of appeal. See In re K.C.H., 2003 MT 125, ¶ 29, 316 Mont. 13, 68 P.3d 788; Lewis v. Puget Sound Power & Light Co., 2001 MT 145, ¶ 27, 306 Mont. 37, 29 P.3d 1028. The O’Connells’ appeal from the District Court’s March 20, 2012 order denying their January and February motions is accordingly dismissed. CONCLUSION ¶32 The O’Connell’s Rule 60(b) motion seeking relief from the default judgment was untimely, their legal services contract with WLF clearly provided for attorney fees and costs, 17 and consideration of the O’Connells’ appeal of the court’s March 20, 2012 order is barred by operation of Rule 4(4)(a), M. R. App. P. Affirmed. /S/ MICHAEL E WHEAT We concur: /S/ JIM RICE /S/ LAURIE McKINNON Justice Beth Baker, concurring. ¶33 I concur in all respects in the Court’s opinion, as the law and the contract between the parties permit no other conclusion. I regret, however, that what appears to be a dispute over less than a $100 balance on the O’Connells’ attorney’s fee bill mushroomed into years of litigation, a judgment of nearly $3,000 against the O’Connells, and consumption of considerable time and resources of the parties, the District Court, and now this Court. ¶34 “It is the policy of the Supreme Court of Montana to encourage the informal resolution of fee disputes between attorneys who practice law in Montana and their clients.” Rule I, 1.1, Rules on Arbitration of Fee Disputes (2009) (R. Arb. F. D.). To that end, we have adopted rules on arbitration of fee disputes in those cases “where such informal resolution cannot be achieved.” Rule I, 1.1, R. Arb. F. D. The Rules provide for arbitration of disputed amounts of $500.00 or more (Rule IV, R. Arb. F. D.). At the time the Wittich Law Firm filed suit against the O’Connells, the disputed amount exceeded this threshold. After O’Connells paid most of the charges within a month of being served with the 18 complaint, the remaining fees in dispute did not amount to $500.00. However, the threshold should not be read to suggest that lesser disputes ought to be litigated in court, but appears to imply that informal resolution of lower amounts should be feasible. ¶35 Here, though the Wittich Law Firm was within its contractual and legal rights to pursue its claim for unpaid fees, members of the Bar should keep in mind that their own interests, the interests of their clients, the administration of the court system, and the general public would be well-served by adhering to the Court’s policy to resolve fee disputes without litigation. /S/ BETH BAKER Justice Patricia O. Cotter dissents. ¶36 TOTAL BALANCE CLAIMED UNDER FEE CONTRACT: $93.99. TOTAL SUM OF JUDGMENTS FOR WLF: $5,019.79. TOTAL ADDITIONAL FEES INCURRED ON APPEAL: ??? ¶37 After O’Connells paid WLF over $2,100 against their outstanding attorney fee account, O’Connells disputed the claimed final balance of $93.99, alleging billing errors. WLF advised O’Connells to pay the disputed balance by December 10, 2010. However, unbeknownst to O’Connells, and while they were corresponding with WLF in an attempt to resolve this minor dispute, WLF secured a default against their clients on December 3, 2010. WLF then secured a default judgment for the disputed balance of $93.99, plus its costs and attorney fees in the sum of $808.80. Then, when O’Connells later moved to vacate the judgment, WLF charged—and the court entered judgment for—$2,860 in fees, representing a claimed 22 hours of attorney time expended in responding to the motion to vacate. 19 Although not mentioned in the Court’s Opinion, the District Court entered yet another judgment in favor of WLF on April 20, 2012, in the sum of $1,257, in payment of additional charges claimed by WLF for time expended in responding to plaintiffs’ motions for relief from court orders. Finally, though the Court again does not address this in its Opinion, WLF is seeking attorney fees and costs incurred in the appeal. I have little doubt that the firm will seek an assessment of these fees on remand. ¶38 In its brief to this Court, WLF faults O’Connells for their “refusal/inability to understand why a balance remained.” It assails “O’Connells’ continued ignorance of the law and misplaced sense of entitlement.” In light of the financial carnage wreaked upon O’Connells for their refusal to pay a disputed $93, these affronts are incongruous. ¶39 The Court and the Concurrence are careful to note that WLF was within its contractual rights to exact the sums the District Court has ordered O’Connells to pay. Perhaps so. Nonetheless, I simply cannot join the Court in affirming this unconscionable result. I therefore dissent. /S/ PATRICIA COTTER | May 7, 2013 |
62b8352b-b59f-401b-bec4-2608880805ce | In re E.Z.C. | 2013 MT 123 | DA 12-0678 | Montana | Montana Supreme Court | DA 12-0678 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 123 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 No. DN 12-4 and 12-5 Honorable Laurie McKinnon, 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 Brett D. Linneweber, Park County Attorney; Livingston, Montana Submitted on Briefs: March 20, 2013 Decided: May 7, 2013 Filed: __________________________________________ Clerk May 7 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 J.C. (Mother) appeals from an order of the Sixth Judicial District Court, Park County, terminating her parental rights to her two children, E.B.C. and E.Z.C (the children). We affirm. ¶2 We review the following issue on appeal: ¶3 Did the District Court err when it found Mother subjected the children to chronic abuse or chronic, severe neglect and terminated her parental rights without requiring reunification efforts and a treatment plan? FACTUAL AND PROCEDURAL BACKGROUND ¶4 Mother and C.C. (Father) are the biological parents of the children. On January 18, 2012, law enforcement searched Mother’s home, where she resided with three-year-old E.B.C. and seven-year-old E.Z.C, and discovered methamphetamine and drug paraphernalia in Mother’s room. Mother and E.B.C. were home during the search; E.Z.C. was at school. Father was incarcerated in Lewis County Washington jail at the time. Mother was arrested for possessing methamphetamine and for criminal endangerment and the children were placed in foster care. ¶5 On January 25, 2012, the Department of Public Health and Human Services (Department) filed a petition for immediate protection and emergency protective services, for adjudication as youth in need of care and for temporary legal custody (TLC) in regard to the children. The District Court granted immediate protection and emergency protective 3 services and, after conducting a show cause hearing on February 28, 2012, determined there was probable cause the children were youths in need of care and granted the State TLC. ¶6 On April 2, 2012, the Department filed a petition to terminate Mother’s parental rights and approve a permanency plan. The Department asserted that Mother subjected the children to aggravated circumstances pursuant to § 41-3-423(2)(a), MCA, and reunification efforts were not required. An adjudicatory hearing was held on May 14, 2012, at which time the court heard testimony from several witnesses. Among them was Jacqui Poe (Poe), a Department social worker with extensive experience and training in the investigation of child abuse, neglect, and endangerment. Poe is the case worker assigned to this matter and was called upon to find placement for the children after law enforcement searched Mother’s home. Poe testified to the dirty conditions of the house—it was cluttered, had “stuff that was splattered on the side of the wall,” and smelled like “rotten food, garbage, dirty laundry, body odor, cigarette smoke . . . .” Poe observed rats and animal feces on the children’s bed, and noted the bed did not have any sheets on it. According to the children, the rats were pets. Poe stated E.B.C. was dirty with matted, tangled hair and had chocolate all over her face. E.B.C. told Poe that she consumed a candy bar for breakfast, and E.Z.C. later said that their diet was chips, candy, and popsicles. Poe also observed sores on E.B.C.’s face and scratches on her arms and legs. E.B.C. did not have warm winter clothing. ¶7 After transporting E.B.C. to a foster home, Poe picked up E.Z.C. from school and noted that he also did not have warm winter clothing. Poe testified that E.Z.C. told her he felt unsafe at home because he and E.B.C. were frequently left alone—sometimes at night— 4 and that he was required to take care of his three-year-old sister. Poe also stated that E.Z.C. described drug paraphernalia he had seen in his home and explained what Mother used them for. Poe testified that after the children were put in foster care, E.B.C. began to exhibit “bizarre behaviors” that were consistent with methamphetamine use. She had night sweats, was vomiting, and complained of things “crawling all over her.” Patrick Minno, a scientist who conducts drug testing at Omega Laboratories, testified that a hair follicle test performed on E.B.C. came back positive for a low level of methamphetamine use. ¶8 Poe briefly testified about Mother’s prior involvement with the Department and other child protective services. Specifically, Poe stated that in 2002, Mother relinquished her parental rights to a child in Washington State because the child was born with methamphetamine in his system. A few years later, in 2007, E.Z.C. was placed in foster care for approximately six months after Mother and Father were arrested for operating a marijuana grow operation and Mother admitted to using methamphetamine. ¶9 Detective Shawn Misner, one of the many detectives who searched Mother’s home on January 18, 2012, also testified at the adjudicatory hearing. Detective Misner described the methamphetamine and drug paraphernalia discovered in Mother’s bedroom, and noted the items were found in places that were “very accessible to a young child.” ¶10 Jim Huntzicker, the principal at E.Z.C.’s school, testified to E.Z.C.’s attendance and performance at school. Huntzicker informed the court that when E.Z.C. lived with Mother he missed approximately one quarter of his school days and often times did not complete his homework. During this time E.Z.C. was quiet, constantly complained of being hungry, and 5 on occasion was not picked up from school by Mother. Huntzicker testified to a drastic improvement in E.Z.C.’s attendance and school performance since being placed in foster care. ¶11 The court also heard from Dr. Todd Steinmetz and Dr. Kathryn Wells. Dr. Steinmetz is an expert in pediatric dentistry who has provided dental care to E.B.C. since 2009. Dr. Steinmetz testified that over the past few years he has treated E.B.C. for tooth decay and an “excessive amount of childhood cavities,” which included crowning and performing root canals on all four of E.B.C.’s front primary incisors. ¶12 Dr. Wells is an expert in child abuse pediatrics who testified about the risks and side effects associated with methamphetamine use. Specifically, Dr. Wells testified that methamphetamine ingestion by a young child could be toxic to the child and potentially fatal. Further, Dr. Wells addressed the concern that methamphetamine users cannot meet the needs of children, explaining that users often binge on the drug and then crash for days at a time during which they prioritize their drug use beyond anything else, including caring for their children. ¶13 At the end of the hearing, the District Court determined the children were “chronically and severely neglected” and were youths in need of care. The court ordered a dispositional hearing for June 26, 2012. ¶14 At the dispositional hearing, Poe expanded upon her testimony of the Department’s prior involvement with Mother. Poe explained that in March 2007, E.Z.C. was found wandering by a creek unattended. E.Z.C. was three at the time. Law enforcement attempted 6 to locate Mother and Father at their home; Father was home but would not come to the door, and Mother was at work. When Mother came home, law enforcement entered the house and observed that it was extremely dirty and unsanitary and contained a marijuana grow operation of fifty-two marijuana plants. Mother stated she had been using methamphetamine—she admitted she would use it in the bathroom when E.Z.C. was sleeping and then wipe down the surface of the table. E.Z.C. was placed in foster care and the Department offered Mother and Father treatment plans, which included professional addiction treatment. Mother and Father successfully completed the plans and E.Z.C. was returned to their care. ¶15 Poe testified that since the 2007 incident, Mother’s neglect has worsened. Specifically, she described E.B.C.’s severe dental decay, the extremely unsanitary conditions in which the children live—which include a rat feces infested bed—the exposure of both children to methamphetamine, and E.B.C.’s positive test for methamphetamine use. Further, Poe testified that there is a significant burden on E.Z.C. that did not exist in 2007—the duty to parent his three-year-old sister with such things as toileting, dressing, providing food, and running bath water because of Mother’s neglect. Poe also indicated that there were concerns of domestic violence in the home between Mother and her boyfriend, Kenney Swanson, and possible harassment of E.B.C. by Swanson. Poe stated E.B.C. was fearful of men when living with Mother and would often defecate in her pants whenever a male approached her. Poe testified that the children have been doing much better since their placement in foster care. 7 ¶16 Poe explained that the Department sought termination of Mother’s parental rights based on its ten-year involvement with Mother during which she parented with “a blatant disregard for the children’s safety.” Poe noted that the Department already offered Mother a treatment plan after the 2007 incident. Because the neglect has only worsened with time and Mother continues to expose the children to severe danger, Poe did not recommend another treatment plan before terminating Mother’s rights. ¶17 Laraine Lambert (Lambert), the CASA in the matter, also testified at the dispositional hearing. Lambert has observed Mother’s visits with the children since their removal, and testified to an improvement in their contact and bond. Lambert stated she was “on the fence” regarding whether Mother should receive a treatment plan or, rather, have her parental rights terminated. Lambert testified that based on her “gut feeling” she believed there was “some possibility and potential” with Mother, and she therefore recommended a treatment plan. ¶18 On October 11, 2012, the District Court entered an order terminating Mother’s parental rights. The court took judicial notice of the prior proceedings and testimony and incorporated them into its order. The court found the severity of the abuse and neglect had worsened over the Department’s ten-year involvement with Mother, and Mother had failed to place the best interests of the children above her drug-seeking behaviors. The court determined Mother subjected the children to circumstances listed in § 41-3-423(2)(a), MCA, which amount to chronic abuse or chronic, severe neglect that create a substantial risk of serious bodily injury or death. Accordingly, the court terminated Mother’s parental rights of the children without requiring reunification efforts or a treatment plan. 8 STANDARD OF REVIEW ¶19 We review a district court’s termination of parental rights for abuse of discretion. In re T.W.F., 2009 MT 207, ¶ 17, 351 Mont. 233, 210 P.3d 174. A 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. In re A.J.W., 2010 MT 42, ¶ 12, 355 Mont. 264, 227 P.3d 1012. We review the findings of fact to determine whether they are clearly erroneous and the conclusions of law to determine whether they are correct. In re T.W.F., ¶ 17. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the 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. In re T.W.F., ¶ 17. DISCUSSION ¶20 Did the District Court err when it found Mother subjected the children to chronic abuse or chronic, severe neglect and terminated her parental rights without requiring reunification efforts and a treatment plan? ¶21 A parent’s right to the care and custody of her child is a fundamental liberty interest which must be protected by fundamentally fair proceedings. In re A.J.W., ¶ 15. A court may terminate the parent-child legal relationship upon clear and convincing evidence that the parent has subjected a child to aggravated circumstances, including but not limited to abandonment, torture, chronic abuse, or sexual abuse or chronic, severe neglect of a child. Sections 41-3-609(1)(d) and -423(2)(a), MCA. If the District Court makes this finding, 9 reunification efforts and a treatment plan are not required. Sections 41-3-609(4)(a) and - 423(2)(a), MCA. ¶22 Clear and convincing evidence is Simply 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. In re A.J.W., ¶ 15 (citing 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.’” In re A.J.W., ¶ 15 (quoting § 41-3-609(3), MCA). ¶23 Mother contends the Department’s involvement with her case amounted to “random and sporadic incidents” that do not show by clear and convincing evidence that she subjected the children to chronic abuse or chronic, severe neglect. Mother cites In re D.S., 2005 MT 275, 329 Mont. 180, 122 P.3d 1239, and In re M.N., 2011 MT 245, 362 Mont. 186, 261 P.3d 1047, as the type of circumstances necessary for a district court to find chronic abuse or chronic, severe neglect, and maintains her case is distinguishable because her history with the Department is not as extensive and the neglect not as severe. ¶24 In D.S., the district court heard several witnesses testify to the impact that A.S.’s methamphetamine abuse had on her son, D.S. D.S. spent years floating from one person’s home to another while A.S. was incarcerated or undergoing drug treatment, and as a result 10 did not form the strong bonds or experience the stability necessary to develop normally. In re D.S., ¶ 25. Because of inconsistent caregiving and D.S. not feeling safe or secure in his surroundings, D.S. suffered from extreme anxiety and emotional problems and was diagnosed with anxiety disorder and reactive attachment disorder. In re D.S., ¶¶ 26-29. Once D.S. was placed in a foster home, he was “happy, calm and growing to trust adults.” In re D.S., ¶ 30. We concluded there was substantial evidence for the district court to find that A.S. subjected D.S. to chronic and severe emotional neglect and to terminate parental rights. In re D.S., ¶ 31. ¶25 In M.N., we again upheld a district court’s decision to terminate parental rights without requiring reunification efforts or a treatment plan due to a finding of aggravated circumstances. There, the Department’s involvement with the parents began in 2005 when the father’s two children from a previous marriage were adjudicated as youths in need of care. In re M.N., ¶ 2. The father failed to complete his treatment plan and the children were placed with his ex-wife. In re M.N., ¶ 2. Later, in an attempt to place the children back in the father’s care, the Department provided services to the parents to teach them how to maintain a safe home and instruct them on family skill building, behavior skill building, and organization. In re M.N., ¶ 2. However, the Department ultimately determined the children could not be placed in the parents’ home and the father relinquished his rights to the children. In re M.N., ¶ 3. ¶26 In 2008, a child protection specialist with the Department visited the parents’ home on three different occasions and found it progressively messy and below minimum safety 11 standards. In re M.N., ¶ 4. The parents had one child living with them at this time. The Department established a treatment plan for the parents and provided extensive services over the next fourteen months, including parenting and basic life skills training. In re M.N., ¶¶ 5- 6. However, in 2010 the parents ceased using all services and, not long after, their child was admitted to the hospital for a depressed skull fracture—the cause of the injury unknown. In re M.N., ¶¶ 6-7. At this time, a social worker observed the home to be extremely dirty and saw the mother with a moldy bottle. In re M.N., ¶ 8. The Department sought determination that reasonable efforts at reunification were not required under § 41-3-423(2)(a), MCA, and petitioned for termination of parental rights. In re M.N., ¶ 11. The district court granted the Department’s petition, determining the parents’ behavior was “‘not likely to change over time’ and despite the love they had for the children, it was clear the needs of the children were ‘simply above the parental capacity of these parents.’” In re M.N., ¶ 13. ¶27 On appeal, we noted that the legislature did not define the term “chronic” under Title 41, and we thus looked to the dictionary definition to determine the plain meaning of the word. In re M.N., ¶ 27. Webster’s Dictionary defines “chronic” as “marked by long duration, by frequent recurrence over a long time, and often by slowly progressing seriousness.” Webster’s Third New International Dictionary 402 (G & C Merriam Co. 1961); In re M.N., ¶ 27. We concluded “the parents’ history, combined with the neglect which precipitated the filing of the 2010 petition, amounted to recurring instances over a long time, or chronic neglect.” In re M.N., ¶ 30. Further, we found that the “unsafe and unsanitary home, a serious and unexplained head injury to their child, failure by the parents 12 to attend therapy treatments for the children, and cancellation of important family based services” was severe. In re M.N., ¶ 30. ¶28 In the case at hand, we disagree with Mother’s assertion that her “random and sporadic” incidents of neglect do not constitute chronic abuse or chronic, severe neglect. “Discrete instances of neglect, when viewed within a consistent pattern of similar behavior, provide a clear basis by which a district court can find ‘chronic, severe neglect.’” In re M.N., ¶ 30. Similar to D.S. and M.N., Mother’s history of drug use and neglect of her children began several years ago and, despite having received services and a treatment plan in the past, only worsened with time. First, Mother gave birth to a child with methamphetamine in his system. A few years later, Mother allowed three-year-old E.Z.C. to wander unattended by a creek. During this time, Mother had a marijuana grow operation in her dirty, unsanitary home, and admitted to using methamphetamine while parenting. Most recently, the Department observed Mother subjecting the children to similar types of abuse and neglect, although even more severe. The court heard substantial testimony about the exceptionally dirty and unsanitary conditions in which the children were living, their poor diet, E.B.C.’s extreme tooth decay, the children frequently being left unattended and exposed to drugs, and, perhaps most severe, E.B.C.’s positive test for methamphetamine use. ¶29 We conclude that like M.N., Mother’s actions amounted to chronic, severe neglect because they occurred over a long duration, were frequently recurring, and became increasingly serious. 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., ¶ 29. 13 ¶30 Mother asserts the District Court relied predominantly on Poe’s testimony and completely ignored the testimony offered by Lambert, which included a recommendation for a treatment plan. To the contrary, the court took Lambert’s testimony into consideration— noting in its order that Lambert testified she was on the fence between a treatment plan and termination, and that her decision had a lot to do with her gut feelings—but ultimately was persuaded by Poe’s testimony. It is within a court’s realm to determine the credibility of witnesses and the weight to be given their testimony. In re M.W., 2004 MT 301, ¶ 35, 323 Mont. 433, 102 P.3d 6. In this case, the record reveals the District Court’s conclusion that Mother’s abuse and neglect of her children has worsened over the past ten years and that reunification efforts and another treatment plan are not in the children’s best interests is supported by the testimony presented. ¶31 In her reply brief, Mother argues that the District Court also erred by failing to make a finding regarding whether Mother’s condition or conduct that caused the Department’s involvement was likely to change within a reasonable time. However, this argument was not raised in Mother’s opening brief, and we therefore will not address it. See M. R. App. P. 23(c); Pengra v. State, 2000 MT 291, ¶ 13, 302 Mont. 276, 14 P.3d 499 (holding that this Court will not address the merits of an issue presented for the first time in a reply brief). CONCLUSION ¶32 For the reasons stated above, we conclude the District Court did not abuse its discretion in terminating Mother’s parental rights without requiring reunification efforts and a treatment plan. 14 ¶33 Affirmed. _________________________________ /S/ MICHAEL E WHEAT We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ BRIAN MORRIS /S/ JIM RICE | May 7, 2013 |
ee43f602-0a21-4e6c-acc5-8aede568bd32 | Ecton v. Ecton | 2013 MT 114 | DA 12-0512 | Montana | Montana Supreme Court | DA 12-0512 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 114 DOUGLAS P. ECTON, Personal Representative of the Estate of Zales N. Ecton, Jr., Applicant and Appellant, v. ZALES N. ECTON, III, Respondent and Appellee. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DP-06-132A Honorable Holly Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Lynda S. White, Berg, Lilly & Tollefsen, P.C., Bozeman, Montana William E. McCarthy, Reid J. Perkins, Worden Thane, P.C., Missoula, Montana For Appellee: Cindy E. Younkin, Younkin Law, PLLC, Bozeman, Montana Cory J. Swanson, Attorney at Law, Helena, Montana Submitted on Briefs: March 6, 2013 Decided: April 30, 2013 Filed: __________________________________________ Clerk April 30 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Douglas P. Ecton (Doug), the personal representative of the estate of Zales N. Ecton, Jr. (Decedent), appeals from a final distribution order of the Eighteenth Judicial District Court, Gallatin County, which interpreted Decedent’s last will and testament to devise the entirety of Decedent’s real property known as the “Home Ranch” to Zales N. Ecton, III (Zales). We affirm. ISSUES ¶2 Doug raises the following two issues on appeal: ¶3 1. Did the District Court err in interpreting the requirement in the Decedent’s last will and testament that I.R.C. § 2032A property be distributed as part of the residuary estate, as requiring a specific devise of the I.R.C. § 2032A property to Zales rather than a devise to the residuary beneficiaries? ¶4 2. Did the District Court err in allowing Zales to raise an objection to the personal representative’s decision to award the income from the I.R.C. § 2032A property to the residuary beneficiaries more than thirty days after the proposed distribution was submitted for approval? FACTUAL AND PROCEDURAL BACKGROUND ¶5 This case involves a dispute between siblings over who was entitled to receive farm and ranch land owned by their parents. The real property at issue, the Home Ranch, consisted of over 1900 acres located near Amsterdam, Montana. ¶6 On October 26, 1990, Decedent executed his last will and testament. Decedent’s last will and testament was a reciprocal will with his wife, Patricia Ecton (Patricia). 3 Decedent and Patricia had three children: Zales, of Amsterdam, Montana; Doug, of Spokane, Washington; and Elaine E. Fulton (Elaine), of Spokane, Washington. Zales operated the farm and ranch business on the Home Ranch for nearly forty years. ¶7 Decedent’s last will and testament contained the following pertinent provisions: FIVE: (C)(1) Upon the death of my wife, the trust shall terminate. If the “Home Ranch” described in subparagraph (C)(3) or any portion of that ranch is then an asset of the trust estate, the trustee shall distribute the “Home Ranch” or so much of it as is part of the trust estate to my son ZALES N. ECTON III if (i) he is then living and (ii) if he pays Twenty-five Thousand Dollars ($25,000) each to my son DOUGLAS B. ECTON and my daughter ELAINE E. FULTON. Such may be paid on a deferred basis in annual installments for a period not to exceed ten (10) years with interest at the lowest I.R.S. permissible interest rate. If DOUGLAS is not then living, ZALES may receive the trust’s interest in the “Home Ranch” without any payment to DOUGLAS’ estate or distributees. If ELAINE is not then living, ZALES may receive the trust’s interest in the “Home Ranch” without any payment to ELAINE’s estate or distributees. If ZALES is not then living, the provisions of this paragraph concerning the distribution of the “Home Ranch” will not apply. (2) All of the then-remaining assets then contained in the trust shall be divided into equal separate shares, so as to provide one share for each child of mine, then living, and one share for the then-living descendants, collectively, of each then deceased child of mine. The trustee shall distribute each share set aside for a living child of mine to each such child. Additionally, the trustee shall distribute the share for the then-living descendents of any deceased child of mine to those descendants by right of representation. (3) The term “Home Ranch” refers to that land (and improvements thereon) that I have used for farming purposes located near Amsterdam in Gallatin County, Montana, and which consists of approximately 1,902 deeded acres of land and 480 acres of state leases. SIX: If my wife fails to survive me, my personal representative shall dispose of my residuary estate in the same fashion as provided for in Article FIVE (C). SEVEN: Notwithstanding the foregoing, if my personal representative concludes in good faith to elect special use valuation provided for in I.R.C. § 2032A, all devises of farm property to any child and to any descendent of 4 any deceased child are contingent upon said beneficiaries [sic] execution of the agreement required by I.R.C. § 2032A(d)(2). The failure of any beneficiary who has an interest in such farm property to timely execute such an agreement shall cause the devise to such beneficiary to lapse. Further, those who would otherwise take such a lapsed share, shall also be subject to the requirements of this Article. EIGHT: I recognize that my personal representative may elect special use valuation provided for in I.R.C. § 2032A. My personal representative shall confine such election to such tracts or fractional interests in real estate as shall be the minimum of the same necessary to produce the maximum reduction from fair market value allowable under § 2032A. I direct that my personal representative distribute such property as part of my residuary estate (Articles FIVE or SIX) and not as part of the marital deduction pecuniary devise (Article FOUR). ¶8 Decedent executed three codicils to his last will and testament: the first on December 20, 1990; the second on October 13, 1994; and the third on January 27, 2004. The first codicil added a provision that excluded adopted children from the definition of “descendants.” The second codicil changed the order of persons to be elected as trustee and personal representative of Decedent’s trust and estate by moving Doug from third to second priority, swapping his position with Zales. ¶9 Patricia died on March 13, 1998. At the time of her death, Patricia owned an undivided one-half interest in the Home Ranch as a tenant in common with Decedent. Patricia’s will created a trust and transferred her interest in the Home Ranch to the trust upon her death. Decedent was the sole income beneficiary of the trust. Patricia’s will dictated that the trust was to terminate upon the death of Decedent. A reciprocal provision of Patricia’s will provided that upon Decedent’s death, any portion of the Home Ranch that was an asset of the trust estate was to be distributed to her son, Zales. 5 Decedent remarried in 2000, but did not add any specific provision to his will or subsequent codicils providing for his new wife. ¶10 Decedent executed his third codicil on January 27, 2004. The third codicil provided that Doug was to be appointed as the personal representative of Decedent’s estate, with Elaine as next in line to fill the role of personal representative. The third codicil amended Article 5(C) of Decedent’s will to include the following language: FIVE: (C)(1) Upon my death, the trust shall terminate. If the “Home Ranch” described in subparagraph (C)(3) or any portion of that Ranch is then an asset of the trust estate, the trustee shall distribute the “Home Ranch” or so much of it as is part of the trust estate to my son ZALES N. ECTON III if he is then living. (2) All of the then-remaining assets then contained in the Trust shall be divided equally between my son, DOUGLAS B. ECTON and my daughter, ELAINE E. FULLTON [sic]. It is my intent that my son ZALES N. ECTON, III receive the “Home Ranch” and that my other son, DOUGLAS B. ECTON and my daughter ELAINE E. FULLTON [sic] receive the remaining residuary assets of my estate. If either DOUGLAS B. ECTON or ELAINE E. FULLTON [sic] pre-decease me there [sic] share shall be distributed to any of their respective decedents [sic] by right of representation. (3) The term “Home Ranch” consists of approximately 1,920 deeded acres of land. ¶11 Decedent died on November 3, 2006. Doug was appointed to serve as the personal representative of Decedent’s estate and successor trustee to Patricia’s trust. Doug surveyed and partitioned the Home Ranch so that one half of the real estate could be separately deeded to the trust beneficiary, Zales. The remaining acreage of the Home Ranch was subject to probate. Because the date of death valuations for all of Decedent’s assets exceeded the $2,000,000 exemption for federal estate tax purposes, Doug utilized a special valuation statute for farm property, I.R.C. § 2032A, to reduce the estate’s value 6 by classifying 528 acres of the Home Ranch as farm property. This alternative land valuation method allowed the 528 acres to be valued at its productive value instead of its fair market value. ¶12 On July 7, 2009, Doug filed a final accounting with the District Court. Relying on Article EIGHT of Decedent’s will, which states that “I direct that my personal representative distribute such property [property valued pursuant to I.R.C. § 2032A] as part of my residuary estate,” the final accounting proposed to distribute equally between Doug and Elaine the 528 acres of the Home Ranch that was subject to the I.R.C. § 2032A special use valuation. On July 31, 2009, Zales filed an objection to the final accounting. Zales argued that devising any portion of the Home Ranch to Doug and Elaine was contrary to Decedent’s testamentary intent as demonstrated by the express language of Decedent’s will. Doug and Zales briefed their respective positions before the District Court and each filed proposed distribution orders. ¶13 On March 29, 2011, the District Court issued its order of final distribution. The District Court determined that Article EIGHT of Decedent’s will did not require the land subject to the I.R.C. § 2032A election to be distributed as part of the residuary estate to Doug and Elaine in light of the mandates of Article FIVE as revised by the third codicil. The District Court determined that Decedent clearly intended to devise the entire Home Ranch to Zales. ¶14 Following the District Court’s entry of its order of final distribution, Doug submitted an amended final accounting. The amended final accounting distributed the 2009, 2010, and 2011 income from the I.R.C. § 2032A property to Doug and Elaine. 7 Zales filed an objection to the amended final accounting on December 16, 2011, arguing that he was entitled to the income associated with the I.R.C. § 2032A portion of the Home Ranch. On May 11, 2012, the District Court issued its order on Zales’ objection to the amended final accounting. The District Court determined that its order of final distribution, which directed distribution of “all the property known as the ‘Home Ranch,’ in its entirety” to Zales, would necessarily include any associated income and proceeds from the property. Therefore, the District Court granted Zales’ objection to the amended final accounting and awarded the 2009, 2010, and 2011 income from the I.R.C. § 2032A property to Zales. Doug appeals. STANDARDS OF REVIEW ¶15 “The judicial interpretation and construction of a will presents a question of law.” In re Estate of Ayers, 2007 MT 155, ¶ 12, 338 Mont. 12, 161 P.3d 833; In re Estate of Snyder, 2007 MT 146, ¶ 18, 337 Mont. 449, 162 P.3d 87 (Snyder II). We review a district court’s conclusions of law for correctness. Ayers, ¶ 12; Snyder II, ¶ 18. DISCUSSION ¶16 Did the District Court err in interpreting the requirement in the Decedent’s last will and testament that I.R.C. § 2032A property be distributed as part of the residuary estate, as requiring a specific devise of the I.R.C. § 2032A property to Zales rather than a devise to the residuary beneficiaries? ¶17 The object of a judicial interpretation of a will is to ascertain the intention of the testator. In re Estate of Bolinger, 284 Mont. 114, 121, 943 P.2d 981, 985 (1997) (citations omitted). The testator’s intent controls the distribution of assets pursuant to a will. Snyder v. Snyder, 2000 MT 113, ¶ 10, 299 Mont. 421, 2 P.3d 238 (Snyder I); In re 8 Estate of Evans, 217 Mont. 89, 94, 704 P.2d 35, 38 (1985). When construing a will, we interpret the words used in the will according to their ordinary and grammatical sense, unless a clear intention to use them in another sense can be ascertained. Ayers, ¶ 14; Snyder I, ¶ 10. Where the language of the will is unclear, the testator’s intent must be ascertained from a consideration of the instrument as a whole, and a comparison of its various parts in light of the circumstances surrounding the drafting of the will. Ayers, ¶ 14; Snyder I, ¶ 10. ¶18 The District Court determined that Decedent’s intent, as demonstrated by the language of his will, was to devise the entire Home Ranch to Zales. Doug argues that the District Court erred in interpreting Decedent’s will because the Decedent did not intend to devise the 528 acres of the Home Ranch subject to special value under I.R.C. § 2032A to Zales. Instead, Doug maintains that he and Elaine were entitled to receive this portion of the Home Ranch as part of the residuary estate. ¶19 Since Doug, as personal representative of Decedent’s estate, elected to pursue estate valuation pursuant to I.R.C. § 2032A, Article EIGHT of Decedent’s will took effect. Article EIGHT of Decedent’s will provides as follows: I recognize that my personal representative may elect special use valuation provided for in I.R.C. § 2032A. My personal representative shall confine such election to such tracts or fractional interests in real estate as shall be the minimum of the same necessary to produce the maximum reduction from fair market value allowable under § 2032A. I direct that my personal representative distribute such property as part of my residuary estate (Articles FIVE or SIX) and not as part of the marital deduction pecuniary devise (Article FOUR). 9 Article FIVE (C)(2), as amended by Decedent’s third codicil, controls the distribution of Decedent’s property and reads as follows: It is my intent that my son ZALES N. ECTON, III receive the “Home Ranch” and that my other son, DOUGLAS B. ECTON and my daughter ELAINE E. FULLTON [sic] receive the remaining residuary assets of my estate. Though we recognize that Article EIGHT does in fact state that the property subject to special valuation shall be distributed as part of Decedent’s residuary estate, when read together with Article FIVE, it is clear that Decedent did not intend to divide that portion of the Home Ranch between Doug and Elaine. ¶20 The Decedent’s testamentary intent is clearly ascertainable from the express language of Article FIVE (C)(2). In Article FIVE (C)(2), Decedent stated that: “It is my intent that my son ZALES N. ECTON receive the ‘Home Ranch.’ ” This Article goes on to state that Doug and Elaine are to receive the “remaining residuary assets” of Decedent’s estate. By including the word “remaining” in a description of the residuary assets directly following the Decedent’s stated intent to devise the Home Ranch to Zales, it is clear that the residuary estate divided between Doug and Elaine does not include any portion of the Home Ranch. Any contrary interpretation would ignore the clear, unambiguous, express intent of the Decedent to devise the Home Ranch to Zales. ¶21 Accordingly, we conclude that the District Court did not err in interpreting Decedent’s will to determine that Decedent intended to devise to Zales the 528 acres subject to special farm property valuation. 10 ¶22 Did the District Court err in allowing Zales to raise an objection to the personal representative’s decision to award the income from the I.R.C. § 2032A property to the residuary beneficiaries more than thirty days after the proposed distribution was submitted for approval? ¶23 It is undisputed that Zales filed a timely objection to the July 7, 2009 final accounting. However, Doug argues that Zales only objected to the proposed distribution of the real property subject to the I.R.C. § 2032A election, and therefore failed to timely object to the distribution of income from that property to Doug and Elaine. Doug contends that any objection to the final accounting must have been made within 30 days of the July 7, 2009 final accounting pursuant to § 72-3-903, MCA. Section 72-3-903(2), MCA, provides as follows: The right of any distributee to object to the proposed distribution on the basis of the kind or value of asset the distributee is to receive, if not waived earlier in writing, terminates if the distributee fails to object in writing received by the personal representative within 30 days after mailing or delivery of the proposal. Doug maintains that Zales waived his right to object to the distribution of income from the I.R.C. § 2032A property because he did not object on that basis until after the amended final accounting was drafted. ¶24 The District Court’s March 29, 2011 order of final distribution did not specifically address the distribution of income from the I.R.C. § 2032A property, although it directed that Zales was entitled to receive the entirety of the I.R.C. § 2032A property. Doug subsequently drafted an amended final accounting to reflect that the entire Home Ranch must be distributed to Zales. Upon receiving the amended final accounting, Zales filed an objection to the distribution of income from the I.R.C. § 2032A property to Doug and 11 Elaine. The District Court determined that its order of final distribution, which directed distribution of “all the property known as the ‘Home Ranch,’ in its entirety” to Zales, would necessarily include any associated income and proceeds from the I.R.C. § 2032A property. Accordingly, the District Court granted Zales’ objection to the amended final accounting and awarded the 2009, 2010, and 2011 income from the I.R.C. § 2032A property to Zales. We agree with the District Court’s decision. ¶25 Section 72-34-428(1), MCA, provides that “If property is specifically given to a beneficiary, by will or trust, the fiduciary of the estate or of the terminating income interest shall distribute the net income and principal receipts to the beneficiary who is to receive the property. . . .” “A specific devise differs from a general devise in that it is not intended by the testator to be paid out of the estate generally, but is to be paid solely by delivering to the devisee that specific article given by the will.” Holtz v. Deisz, 2003 MT 132, ¶ 25, 316 Mont. 77, 68 P.3d 828. Since the Home Ranch is a specific piece of property defined in Decedent’s will, Decedent’s language in his will stating that “It is my intent that my son ZALES N. ECTON, III receive the ‘Home Ranch’ ” plainly constitutes a specific devise. As such, § 72-34-428(1), MCA, controls the distribution of income from the Home Ranch and mandates that such income must be distributed to Zales. Zales timely objected to the final accounting that proposed to distribute the I.R.C. § 2032A property to Doug and Elaine. Once the District Court concluded that Zales was entitled to receive the I.R.C. § 2032A property, it follows that Zales was entitled to receive the income from such property. 12 ¶26 We hold that the District Court did not err in allowing Zales to object to the personal representative’s proposed distribution of income from the I.R.C. § 2032A property. CONCLUSION ¶27 For the foregoing reasons, we affirm the District Court. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON /S/ JIM RICE | April 30, 2013 |
4a345e4a-bb59-441f-9e5f-fd960a390e2f | Ellison v. Larson | 2013 MT 109N | DA 12-0568 | Montana | Montana Supreme Court | DA 12-0568 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 109N LOREN ELLISON, Plaintiff and Appellant, v. LAURENCE LARSON, Defendant and Appellee. APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Sweet Grass, Cause No. DV 09-42 Honorable Wm. Nels Swandal, Presiding Judge COUNSEL OF RECORD: For Appellant: Paula Saye-Dooper, Saye Law, PLLC, Billings, Montana For Appellee: James B. Lippert, Attorney at Law, Big Timber, Montana Submitted on Briefs: March 27, 2013 Decided: April 23, 2013 Filed: __________________________________________ Clerk April 23 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 Loren Ellison (Ellison) sued Laurence Larson (Larson) for damages arising out of an alleged breach of contract. The District Court granted summary judgment to Larson. We affirm. ¶3 On October 12, 2007, Larson and Ellison entered into a “Quarry Agreement” (Agreement) which authorized Ellison to excavate, quarry, and remove rock from Larson’s property, subject to an agreed per pound royalty. The Agreement contained eight (8) paragraphs, but the pertinent provisions of the Agreement state as follows: This Agreement will be for a term of two years and may be renewed for a like time under similar terms and conditions subject to negotiation of royalty payments. (Paragraph 4) Either party may terminate this Agreement upon 90 days written notice to the other. (Paragraph 6) The concluding paragraph of the Agreement states: THIS AMENDMENT contains the entire agreement between the parties, and may be modified or terminated only by written agreement of the parties, or their successors in interest. ¶4 Ellison commenced his excavation activities and in the process discovered a quantity of sandstone containing valuable dinosaur footprints. On October 7, 2009, Larson, through 3 his attorney, notified Ellison, in writing, that pursuant to paragraph 6 of the Agreement he was “terminating the [A]greement.” In November 2009, Ellison sued Larson for damages, asserting five theories of recovery: breach of contract, intentional interference with prospective economic advantage, intentional interference with contractual relations, breach of the covenant of good faith and fair dealing, and civil conspiracy. Ellison was later allowed to amend his complaint to assert an additional claim based on intentional and/or negligent misrepresentation. ¶5 Larson answered both complaints and moved for summary judgment on all of Ellison’s causes of action. The District Court granted the motion on the grounds that the Agreement was unambiguous regarding the right of either party to terminate the Agreement upon 90 days notice to the other, and that Larson lawfully exercised his right to terminate the Agreement. Thereafter, Ellison appealed to this Court requesting that we reverse the lower court’s decision because the Agreement is ambiguous and Ellison should be allowed a trial on the merits. ¶6 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. Accordingly, a moving party is entitled to summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Wagner v. Woodward, 2012 MT 19, ¶ 16, 363 Mont. 403, 270 P.3d 21. We agree with the District Court that there are no genuine issues of material fact in this matter that would preclude summary judgment. The Agreement states very clearly that it “may” be renewed—renewal is not automatic—and that 4 it may be terminated “upon 90 days written notice.” Larson elected not to renew the Agreement and provided written notice of termination in compliance with the Agreement. To the extent the final paragraph could be read to require written consent of the parties for termination of the Agreement, such a requirement would be inconsistent with the remainder of the Agreement and the parties’ clearly expressed intentions therein and must be rejected. Section 28-3-503, MCA. ¶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. The issues in this case are controlled by the terms of the parties’ Agreement, statutes and case law, all of which the District Court correctly interpreted and applied. ¶8 Affirmed. /S/ MICHAEL E WHEAT We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BETH BAKER /S/ BRIAN MORRIS | April 23, 2013 |
2154ba33-466c-49ac-a5e7-88c4460ed22a | Heppner v. DOLI | 2013 MT 96N | DA 12-0402 | Montana | Montana Supreme Court | DA 12-0402 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 96N DONALD HEPPNER, Petitioner and Appellant, v. STATE OF MONTANA, DEPARTMENT OF LABOR AND INDUSTRY, and BOARD OF REAL ESTATE APPRAISERS, Respondents and Appellees. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV 09-842(B) Honorable Katherine R. Curtis, Presiding Judge COUNSEL OF RECORD: For Appellant: Patrick F. Flaherty, Attorney at Law; Great Falls, Montana For Appellee: Don Edwin Harris, Special Assistant Attorney General, Department of Labor and Industry Board of Real Estate Appraisers; Helena, Montana Submitted on Briefs: March 13, 2013 Decided: April 9, 2013 Filed: __________________________________________ Clerk April 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 Donald Heppner (Heppner) appeals from the order of the Eleventh Judicial District Court, Flathead County, on judicial review of the decision of the Board of Real Estate Appraisers (Board) that Heppner had violated Rules 1 and 2 of Uniform Standards of Professional Appraisal Practice (Uniform Standards). We affirm. ¶3 Heppner works as a certified residential real estate appraiser on a license issued by the Board. The Uniform Standards apply to the licensed real estate appraisers when they develop or report an opinion of value. Real estate agent Elsa Putzier (Putzier) filed a complaint against Heppner on October 7, 2004, in which she alleged that Heppner improperly had prepared an appraiser report for Sherry Darsow (Darsow). ¶4 The Board’s screening panel determined that reasonable cause existed to believe that Heppner had violated the Uniform Standards. The Department of Labor and Industry (Department) appointed a hearing examiner to preside over the contested case proceedings. The hearing examiner issued proposed findings of fact, conclusions of law, and a recommended order. The Board adopted these recommendations with minor modifications on June 1, 2009. 3 ¶5 The Board placed Heppner’s license on probation for one year, required him to pay a $250.00 fine, required him to attend a fifteen hour Uniform Standards course, and required him to submit work for Board review. Heppner timely filed a petition for judicial review. The District Court found that Heppner’s repeated admissions that his work for Darsow had been an appraisal and that the purpose of the work had been to develop an opinion of value constituted judicial admissions. The District Court affirmed. Heppner appeals. ¶6 Heppner argues that both he and Darsow intended that he would perform a mere “consulting appraisal” despite the fact that he used what he describes as a “boilerplate appraisal form.” He alleged that Putzier was the only person harmed by his work due to the fact that Putzier had lost a real estate sale at a price that would have harmed Darsow. He further challenges the court’s interpretation of two relevant Uniform Standards’ definitions of “appraisal” and “appraisal consulting” and the hearing examiner’s decision to accord weight to testimony from the Department’s witness. Heppner finally challenges the District Court’s determination that substantial evidence supported the Board’s determination that Heppner had produced an appraisal. ¶7 A district court reviews an administrative agency's decision in a contested case to determine whether the findings of fact are clearly erroneous and whether the agency correctly interpreted the law. Mont. Solid Waste Contractors, Inc. v. Mont. Dep. of Pub. Serv. Reg., 2007 MT 154, ¶ 16, 338 Mont. 1, 161 P.3d 837. We employ the same standard when reviewing the district court's decision, and must accordingly determine whether an 4 agency’s findings of fact are clearly erroneous and whether its conclusions of law were correct. Solid Waste Contracors, ¶ 17. ¶8 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 provide for memorandum opinions. It is manifest on the face of the briefs and record before us that substantial evidence supports the agency’s findings and that the agency correctly applied the law. ¶9 Affirmed. /S/ BRIAN MORRIS We Concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH BAKER /S/ JIM RICE | April 10, 2013 |
35f792b4-3941-43de-9a3b-8a6c0500acd7 | Parenting of O.M.C. | 2013 MT 98N | DA 12-0537 | Montana | Montana Supreme Court | DA 12-0537 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 98N IN THE PARENTING OF O.M.C., A Minor Child. WHITNEY GRANT, Petitioner and Appellant, v. CHRIS CARNAHAN, Respondent and Appellee. APPEAL FROM: District Court of the Seventeenth Judicial District, In and For the County of Phillips, Cause No. DR 12-01 Honorable John C. McKeon, Presiding Judge April 15 2013 2 COUNSEL OF RECORD: For Appellant: Lindsay Lorang; Lorang Law, PC; Havre, Montana For Appellee: Peter L. Helland; Helland Law Firm; Glasgow, Montana Submitted on Briefs: April 3, 2013 Decided: April 15, 2013 Filed: __________________________________________ Clerk 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by noncitable opinion and does not serve 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 The Seventeenth Judicial District Court entered a decree in August of 2012 establishing a parenting plan with respect to O.M.C., the minor child of Whitney Grant and Chris Carnahan. Whitney appeals, arguing that the final parenting plan was not supported by substantial evidence and is not in the best interests of O.M.C. We affirm. ¶3 The parties lived together in Malta, Montana, for about four years and, in May of 2007, Whitney gave birth to their son, O.M.C. The parties separated in February of 2011, after which they initially shared residential parenting equally. In June of 2011, they agreed that Chris’s residential parenting through September would be approximately every other weekend, so that he could participate in the summer drag racing circuit. After that time, they did not go back to the previous schedule. ¶4 In January 2012, Whitney petitioned the District Court to establish a parenting plan. She asked to be designated as O.M.C.’s primary residential parent and notified the court of her intent to move to Idaho with O.M.C. to live with her boyfriend. Chris responded with a proposed parenting plan under which he would be O.M.C.’s primary residential parent “whether Whitney moves to Idaho or remains in Malta.” 3 ¶5 After a hearing, the District Court determined that each parent has a good relationship with O.M.C. The court found that moving to Idaho for the school term would not be in O.M.C.’s best interests. It adopted the plan proposed by Chris, with modifications. Under the modified plan, O.M.C. will live with Chris during the school year and during the first week following the end of the school year and the last week of summer vacation from school. O.M.C. will live with Whitney during the summer. Whitney also shall have O.M.C. every other week during the school year from Wednesday at 6 p.m. until Sunday at 6 p.m., which shall occur in the Malta area if she moves to Idaho. Holidays will be alternated. The court stated that plan was in O.M.C.’s best interests and that it “provides the opportunity for equal residential parenting should [Whitney] decide to stay in the Malta area.” ¶6 After the District Court issued its order adopting the final parenting plan, Whitney advised the court that she no longer intended to move to Idaho. On appeal, she contends the District Court erred by ordering a parenting plan which substantially changed the residential schedule of the interim parenting plan, by failing to make specific findings for forming a change in the custodial schedule, and by failing to make findings as to why it was not in O.M.C.’s best interest to remain in her primary care if she remained in Malta. ¶7 The issues raised in this appeal are governed by review standards that call for great deference to a trial court’s determinations. A district court has “broad discretion when considering the parenting of a child. ‘Child custody cases often present the court with difficult decisions. We must presume that the court carefully considered the evidence and made the correct decision.’” In re Marriage of Tummarello, 2012 MT 18, ¶ 34, 363 Mont. 387, 270 P.3d 28 (quoting In re Parenting of N.S., 2011 MT 98, ¶ 18, 360 Mont. 288, 253 P.3d 863). ¶8 The standard of review for a parenting plan is whether the district court abused its discretion in 4 reaching the conclusions it did. Tummarello, ¶ 21. Furthermore, judgments regarding the credibility of witnesses and the weight to be given their testimony are within the province of the District Court, and we will not substitute our judgment for its determinations. Tummarello, ¶ 34. ¶9 As is often the case in decisions regarding parenting plans, the parties presented conflicting evidence at the hearing before the District Court. Given the deference that we appropriately give to district courts in cases such as this, we find no basis on which to reverse the decision here. It is not the appellate court’s prerogative to determine in the first instance what is an appropriate parenting plan for the parties’ child. Having observed and listened to the parties and heard the evidence, Judge McKeon was in the best position to judge O.M.C.’s best interests. His findings are supported by substantial evidence in the record. Though Whitney expresses concern that a period of ten days between visits between a mother and her young child is too long, the parenting plan allows the parties to agree to additional visitation, and they should do so when it is in the child’s best interests. Especially in light of the court’s encouragement of the parties to agree to equal residential parenting if Whitney stays in Malta, the parenting plan is consistent with the statutory preference for “frequent and continuing contact with both parents.” Section 40-4-212(1)(l), MCA. ¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for noncitable opinions. This appeal presents no constitutional issues or issues of first impression. It does not establish new precedent or modify existing precedent. In our opinion, it would not be of future guidance for citation purposes to the citizens of Montana, the bench, or the bar. The District Court did not abuse its discretion in adopting the parenting plan. The District Court’s order for final parenting plan filed August 9, 2012, is affirmed. 5 /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON | April 15, 2013 |
dc6af010-41fd-4c9a-876b-a00fcd394650 | Archer v. State | 2013 MT 214N | DA 12-0690 | Montana | Montana Supreme Court | DA 12-0690 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 214N MAURICE RONALD ARCHER, Petitioner and Appellant, v. EIGHTEENTH JUDICIAL DISTRICT COURT, HON. JOHN C. BROWN; THE STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV 12-359C Honorable John C. Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Maurice Ronald Archer, self-represented; Shelby, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General; Helena, Montana Marty Lambert, Gallatin County Attorney, Ashley Whipple, Deputy County Attorney; Bozeman, Montana Submitted on Briefs: June 12, 2013 Decided: July 30, 2013 Filed: __________________________________________ Clerk July 30 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 Appellant Maurice R. Archer (Archer) appeals the order of the Eighteenth Judicial District Court, Gallatin County, denying his petition for post-conviction relief. We affirm. ¶3 The District Court found Archer guilty of sexual intercourse without consent and incest on January 24, 2007. Archer filed an appeal of his conviction to this Court. Archer’s counsel filed an Anders brief with this Court. We granted appellate counsel’s motion to withdraw on July 2, 2008, and dismissed Archer’s appeal. State v. Archer, Order, Mont. Sup. Ct., No. DA 07-0562. ¶4 Archer filed a petition for post-conviction relief on May 3, 2012. The District Court concluded that Archer had one year after his conviction became final to file a petition of post-conviction relief. Section 46-21-102(1)(b), MCA. Archer failed to file a petition for writ of certiorari with the United States Supreme Court. Therefore, Archer’s conviction became final 90 days after this Court’s denial of his appeal on July 2, 2008. Archer waited until May 3, 2012 to file his petition. The District Court denied, as time barred, Archer’s petition without a hearing. Archer appeals. ¶5 On appeal, Archer first claims that the District Court improperly deniedhis petition as time barred. Secondly, Archer argues that the District Court should have appointed him 3 counsel and allowed for discovery so he could prove that the victim provided false testimony. Finally, Archer argues that the District Court should have held an evidentiary hearing that would allow him to enter new evidence proving his innocence. ¶6 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. A petition for post-conviction relief may be filed within one year of the date that the conviction becomes final. Section 46-21-102(1)(b), MCA. The District Court’s determination that Archer’s petition was untimely was correct. ¶7 The District Court did not abuse its discretion when it did not hold an evidentiary hearing. A district court does not have to hold an evidentiary hearing in every post- conviction proceeding. A hearing was not necessary since Archer failed to meet the exception to § 46-21-102(2), MCA, for newly discovered evidence. The evidence Archer alleges is new is evidence he had knowledge of prior to his trial. ¶8 A court may dismiss a petition for post-conviction relief as a matter of law for failure to state a claim for relief. Herman v. State, 2006 MT 7, ¶ 15, 330 Mont. 267, 127 P.3d 422, citing § 46-21-201(1)(a), MCA. The District Court dismissed Archer’s petition as a matter of law when it determined the petition was untimely. Section 46-21-102(1)(b), MCA. Further, because Archer’s petition was untimely, the District Court correctly denied Archer’s request for appointed counsel. 4 ¶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 the District Court correctly applied the statutory and case law in deciding Archer’s claims. ¶10 Affirmed. /S/ MICHAEL E WHEAT We concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH BAKER /S/ JIM RICE | July 30, 2013 |
760e1e6d-a5d6-494d-a82f-5c51897f99bc | Sampson v. Sampson | 2013 MT 127N | DA 12-0328 | Montana | Montana Supreme Court | DA 12-0328 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 127NA MARY C. SAMPSON, Petitioner and Appellee, v. KENNY G. SAMPSON, Respondent and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DR 11-843 Honorable Edward McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Raymond P. Tipp; Torrance L. Coburn; Tipp and Buley, P.C. Missoula, Montana For Appellee: Klaus D. Sitte; ASUM Legal Services; Missoula, Montana Submitted on Briefs: April 10, 2013 Decided: May 7, 2013 Amended: May 15, 2013 Filed: __________________________________________ Clerk May 15 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. 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 The Missoula Municipal Court entered an order prohibiting Kenny G. Sampson from threatening or committing acts of violence against, harassing, annoying or disturbing the peace of, contacting or attempting to contact, or being within 500 feet of his former wife Mary C. Sampson. Kenny appealed to the Fourth Judicial District Court, which affirmed the Municipal Court’s order. Kenny now appeals the District Court’s decision, and we affirm. ¶3 The issue on appeal is whether the claims in Mary’s petition to the Missoula Municipal Court were barred by the doctrine of res judicata and a lack of sufficient evidence that Mary was in danger of harm absent the order of protection. ¶4 The parties divorced in 1995, after a 20-year marriage. In the Final Decree of Dissolution, the Ravalli County District Court found that Mary was “in need of a permanent restraining order except for the purposes of carrying out the provisions of the Marital Settlement Agreement,” and the Decree made permanent the Temporary Restraining Order she had obtained earlier in the proceedings. 3 ¶5 In October of 2011, Kenny asked the Ravalli County District Court to modify the decree of dissolution by removing the above-referenced order of protection. Mary did not appear to respond, and the court granted Kenny’s motion to remove the order of protection. ¶6 Three days later, Mary filed for an order of protection in Missoula County, where she then lived. The Missoula Municipal Court granted a temporary order of protection and, in November of 2011, held a hearing on whether it should continue, amend, or make the order of protection permanent. Both Mary and Kenny testified at the hearing, as did one of their adult daughters. Following the hearing, the court continued the order of protection. ¶7 Kenny now appeals to this Court. As he did in the Municipal Court and on appeal to the District Court, he argues that Mary’s claims before the Municipal Court are barred by the doctrine of res judicata, because they already have been adjudicated in Ravalli County. Kenny also argues that Mary failed to establish that she was in danger of harm if the order of protection was not issued. ¶8 Our standard of review is whether the Municipal Court abused its discretion in continuing the order of protection. See Edelen v. Bonamarte, 2007 MT 138, ¶ 6, 337 Mont. 407, 162 P.3d 847. ¶9 Under § 40-15-301, MCA, Montana courts have concurrent jurisdiction to enter orders of protection. Therefore, a protected individual is not precluded from pursuing cumulative remedies in multiple courts. The Municipal Court and the District Court were correct that res judicata did not bar Mary’s request for a protective order from the 4 Municipal Court. ¶10 In their testimony before the Municipal Court, Mary and her daughter both described a brutal history of domestic abuse by Kenny during the parties’ marriage. In addition, Mary testified about two recent events that caused her to fear for her safety from Kenny. The court stated it credited the recently-removed Ravalli County protective order for the relative lack of problems in the preceding 16 years. The court found that there is an uncontroverted history of violence in the relationship; that Mary’s fear of harm is real and palpable; and that without an order of protection she would reasonably be in danger. ¶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. The District Court correctly applied Montana law and did not abuse its discretion in affirming the Municipal Court’s grant of a continuing order of protection. ¶12 The District Court’s order is affirmed. /S/ BETH BAKER We concur: /S/ PATRICIA COTTER /S/ BRIAN MORRIS /S/ LAURIE McKINNON /S/ JIM RICE | May 15, 2013 |
06f6a5e2-67e3-44bd-902f-34578083f4fc | State v. Buslayev | 2013 MT 88 | DA 12-0118 | Montana | Montana Supreme Court | DA 12-0118 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 88 STATE OF MONTANA, Plaintiff and Appellee, v. SERGEY BUSLAYEV, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Mineral, Cause No. DC-2010-11 Honorable Robert L. Deschamps, III, 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, Pamela P. Collins, Assistant Attorney General, Helena, Montana Marcia Boris, Mineral County Attorney, Superior, Montana Submitted on Briefs: March 13, 2013 Decided: April 9, 2013 Filed: __________________________________________ Clerk April 9 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Sergey Buslayev appeals from a jury verdict in the Fourth Judicial District Court, Mineral County, finding him guilty of negligent homicide and criminal endangerment. Buslayev maintains that the District Court improperly admitted into evidence five photos of the victim’s body. We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶2 On December 17, 2008, Jerry Parrick, a volunteer with the West End Volunteer Fire Department, responded to a call regarding an overturned vehicle at McGee Point on westbound I-90, at mile marker 17 between Haugen and DeBorgia in Mineral County, Montana. Parrick responded in his firefighter uniform and in his personal pickup. Parrick’s pickup was equipped with emergency lighting. As rescue workers began their efforts to extricate a family from an overturned vehicle, Parrick moved his vehicle to a position that would establish a safety zone to alert oncoming traffic of the hazard and to provide an area for rescue personnel to work. At the time of the emergency, snow was falling, the Interstate was snow packed and slippery, and the temperature was five degrees. ¶3 Parrick was inside his pickup, facing west, and parked on the shoulder of I-90 to warn oncoming traffic of the accident. Buslayev, who was operating a commercial tractor trailer, approached Parrick’s vehicle and began merging into the left lane. Buslayev downshifted and used the brake which caused the tractor trailer to jackknife and hit Parrick’s pickup. The force of the collision pushed the cargo area of the pickup into the cab killing Parrick. 3 ¶4 An Information was filed on June 9, 2010, charging Buslayev with negligent homicide and criminal endangerment. Prior to trial, the parties entered into the following stipulation: The parties hereby stipulate that Jerry Parrick died as a result of injuries sustained when his vehicle was struck by a tractor-trailer driven by the Defendant on December 17, 2008. You should consider this fact to be proven; no other proof is required. ¶5 Buslayev filed a Motion in Limine requesting that five photos of the victim’s body, State’s Exhibits 1-5, 1-6, 1-7, 1-8, and 1-10, be excluded from evidence at trial. The photos depicted the victim’s body in his firefighter gear and how the victim was positioned within the cab of his pickup following impact. The victim’s face was covered with a cloth. Although Buslayev admits the photographs were not particularly gruesome or gory, he argues that the photos were highly prejudicial in that they depicted death and showed the victim in his firefighter gear. Buslayev maintains that the photos had no probative value because they could not establish the speed of Buslayev’s truck and, in light of the parties’ stipulation, were not probative of any issue the jury must decide. ¶6 The State argues that the photos were relevant to demonstrate that the victim’s position within the cab was due to Buslayev’s excessive speed. The State also maintains that the position of the victim’s body tended to show severe impact and excessive speed which rendered Buslayev’s statements to law enforcement that he was traveling at a slower speed incredible and not worthy of belief. ¶7 Both the State and Buslayev produced expert witnesses in crash reconstruction. A primary consideration for the jury was whether Buslayev was traveling at an excessive 4 rate of speed given the conditions of the roadway. The District Court noted that the photos helped explain how the accident happened and that they were not “unduly sensational.” The court granted Buslayev’s request as to one photo which depicted the victim’s face, but allowed the State to use the remaining photos which depicted the victim with a cloth over his head. ¶8 The sole issue on appeal is whether the District Court erred when it admitted the photos of the victim into evidence. STANDARD OF REVIEW ¶9 A district court’s decision regarding the admissibility of evidence will not be reversed absent an abuse of discretion. State v. Montgomery, 2005 MT 120, ¶ 7, 327 Mont. 138, 112 P.3d 1014 (citing State v. Snell, 2004 MT 334, ¶ 17, 324 Mont. 173, 103 P.3d 503). In considering the admissibility of photographs, a district court must determine whether the probative value of the photos outweighs any prejudicial effect. State v. Dunfee, 2005 MT 147, ¶ 26, 327 Mont. 335, 114 P.3d 217 (citing M. R. Evid. 403; State v. Henry, 241 Mont. 524, 531, 788 P.2d 316, 320 (1990)). “This Court has consistently held that photographs possessing instructive value are relevant and admissible provided their probative value is not substantially outweighed by the danger of unfair prejudice.” Dunfee, ¶ 26 (citing State v. Close, 267 Mont. 44, 47-48, 881 P.2d 1312, 1314 (1994)). “The test for abuse of discretion is whether the trial court acted arbitrarily or exceeded the bounds of reason resulting in substantial injustice.” State v. English, 2006 MT 177, ¶ 50, 333 Mont. 23, 140 P.3d. 454 (quoting State v. Kearney, 2005 MT 171, ¶ 12, 327 Mont. 485, 115 P.3d 214). 5 DISCUSSION ¶10 The jury had to decide if Buslayev committed the criminal offense of negligent homicide. A person commits the offense of negligent homicide “if the person negligently causes the death of another human being.” Section 45-5-104(1), MCA. Section 45-2-101(43), MCA, defines the mental state of “negligently” as: when the person consciously disregards a risk that the result will occur or that the circumstance exists or when the person disregards a risk of which the person should be aware that the result will occur or that the circumstance exists. The risk must be of a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. “Gross deviation” means a deviation that is considerably greater than the lack of ordinary care. ¶11 Evidence having any tendency to make the existence of a fact that is of consequence to an action more probable or less probable is relevant evidence. M. R. Evid. 401. Further, all relevant evidence is generally admissible. M. R. Evid. 402. A trial judge, faced with the potential admission of relevant but prejudicial evidence, is required, pursuant to M. R. Evid. 403, to determine whether the probative value of the evidence is substantially outweighed by the danger of “unfair prejudice.” As has been often noted by this Court, probative evidence is frequently prejudicial to the defendant. This does not, however, make it unfairly prejudicial and require its exclusion. State v. Heuther, 284 Mont. 259, 265-66, 943 P.2d 1291, 1295 (1997); State v. Bieber, 2007 MT 262, ¶ 59, 339 Mont 309, 170 P.3d 444; State v. Schauf, 2009 MT 281, ¶ 42, 352 Mont. 186, 216 P.3d 740. 6 ¶12 The photos to which Buslayev objects depict the victim’s body and his position within the interior of his cab. They are relevant in not only demonstrating the severity or the strength of the impact, but are additionally relevant in depicting the circumstances which establish Buslayev’s negligent conduct. As the District Court noted, the photos assist in explaining the accident and illustrate what happened. Although Buslayev stipulated that the victim died as a result of injuries sustained when his vehicle was hit by Buslayev’s truck, the photos illustrate not only the impact, but, as specifically noted by the District Court, that the truck jackknifed. The photos thus were probative of Buslayev’s negligence and the manner in which the collision occurred. ¶13 The District Court also considered the prejudicial value of the photos and determined that they were not “unduly sensational.” The District Court thus correctly balanced the probative value of the photos against their prejudicial effect. Having found the photos not “unduly sensational” and of explanatory or illustrative value, the District Court allowed their admission. ¶14 The balancing of probative value against unfair prejudice is a matter within the discretion of the trial court, and a ruling on the admissibility of photographs will not be disturbed on appeal absent an abuse of discretion. State v. Devlin, 251 Mont. 278, 283, 825 P.2d 185, 188 (1991); State v. Austad, 197 Mont. 70, 83, 641 P.2d 1373, 1380 (1982). We hold that the District Court properly considered admission of the photos under M. R. Evid. 403 and did not abuse its discretion in admitting them. ¶15 Affirmed. 7 /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ JIM RICE | April 9, 2013 |
663b25b8-9233-44a0-b6ba-05dbb4e20bd5 | 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 CONCLUSSION ¶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 |
52cb4cbd-e3f1-491f-af08-346651d054f8 | Weinheimer Ranch, Inc. v. Pospisil | 2013 MT 87 | DA 12-0264 | Montana | Montana Supreme Court | DA 12-0264 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 87 WEINHEIMER RANCH, INC., Claimant and Appellant, v. GEORGE A. POSPISIL, Objector and Appellee. APPEAL FROM: Montana Water Court, Lower Missouri Division, Judith River Basin, Cause No. 41S-A1 Honorable C. Bruce Loble, Chief WaterJudge COUNSEL OF RECORD: For Appellant: James A. Hubble, Hubble Law Firm, PLLP; Stanford, Montana For Appellee: Craig R. Buehler, Attorney at Law; Lewistown, Montana Submitted on Briefs: October 30, 2012 Decided: April 9, 2013 Filed: __________________________________________ Clerk April 9 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Weinheimer Ranch, Inc. (the Ranch) appeals from an order of the Montana Water Court (Water Court) that the Ranch had failed to support with sufficient evidence its motion to amend its previously filed claim’s historical right and priority date. We affirm. ¶2 We address the following issues on appeal: ¶3 Whether the facts in the record required an inference that the Ranch’s predecessor in interest mistakenly had listed Section 9 instead of Section 4 on his 1896 Notice of Appropriation? ¶4 Whether the Water Court properly determined that the Ranch had failed to present substantial evidence in support of its motion to amend its claim? BACKGROUND AND HISTORY ¶5 Pursuant to Article IX, Section 3(4), of the Montana Constitution, the legislature has provided for the administration, control, and regulation of water rights. Mont. Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, ¶ 2, 361 Mont. 77, 255 P.3d 179; see also, §§ 85-2-101, MCA to 85-2-907, MCA. The Water Court possesses the exclusive authority to adjudicate existing water rights. Section 85-2-216, MCA; Rule 1(a), Water Rights Adjudication Rules (W. R. Adj. R.). The Court has set forth the Water Court’s practices and procedures in the Montana Water Rights Adjudication Rules. See Rule 1(a), W. R. Adj. R. ¶6 Franz Weinheimer filed a notice of appropriation in 1971. The 1971 notice of appropriation alleges that Franz Weinheimer, through his predecessors in interest, had 3 appropriated 2,500 gallons per minute (gpm) from “an unnamed water course” in 1900. The notice lists a point in Section 4, Township 14 North, Range 16 East as the point of diversion. Franz’s son, Francis E. Weinheimer (Weinheimer), filed Claim 41S-W-100200-00 (Claim) with the Montana Water Court on December 7, 1981. The Claim generally tracks the 1971 Notice of Appropriation. Weinheimer transferred the property interests in the Claim to Weinheimer Ranch, Inc. (Ranch) on December 12, 1991. The Ranch now owns the rights to the Claim. ¶7 The Water Court issued a Temporary Preliminary Decree for the Judith Basin River on May 17, 1984. The Temporary Preliminary Decree provides George K. Pospisil (Pospisil) a priority date of 1897. Pospisil owns property adjacent to the Ranch. The same decree provides the Ranch with a 1900 priority date. Odenwald Creek serves as the listed point of diversion for the water rights of both Pospisil and the Ranch. No one objected to the Temporary Preliminary Decree with respect to the priority dates for Pospisil and the Ranch. ¶8 The Ranch diverts its water from Odenwald Coulee in Section 4. The Ranch diverts the water by a headgate and conveys the water by ditch to irrigate 20 acres of agricultural land. The Claim has a flow rate of 2,500 gpm for an annual volume of 60 acre-feet per year. The Claim includes a filed historical right with a priority date of December 31, 1900. Pospisil’s filed water right, with a priority date of 1897, currently stands senior to the Ranch’s Claim, with its priority date of 1900. ¶9 The Ranch filed a motion to amend the Claim on October 9, 2002. The Ranch filed a supplement to the motion on May 30, 2003. The Ranch’s motion seeks to amend the 4 Claim’s historical right, priority date, and source. Pospisil filed an objection to the amendment of the Claim’s historical right and priority date on August 25, 2003. ¶10 Pospisil does not contest the Ranch’s proposed source amendment. The source amendment seeks to correct an error by administrative officials of the Department of Natural Resources and Conservation (DNRC) who had changed the source, on their own accord, from Odenwald Coulee to Odenwald Creek. The DNRC officials thought that they were correcting a misdesignation in the Claim. The parties, the Water Master, and the Water Court all agree that the original Claim correctly stated the actual source as Odenwald Coulee. ¶11 Senior Water Master Kathryn L. W. Lambert (Water Master) held a hearing on the Ranch’s motion in April 2004. The Ranch relied on two separate documents to support its motion. The Ranch discovered both documents in 2002, after Pospisil had made a call on water on Odenwald Coulee. ¶12 The Ranch first presented the Notice of Appropriation of Water Right (1896 Notice) filed in 1896 by Adrian Odenwald (Odenwald), a predecessor in interest. Odenwald’s 1896 Notice provides as follows: That [Adrian Odenwald] has taken said water out of, and diverted it from said springs by means of a ditch which said ditch is 24 inches by 12 inches in size and carries or conducts 120 inches of water from said springs . . . arising in Sec. 9 Twp. 14 N R. 16 E. Odenwald further attested in the notarized 1896 Notice “that he knows the contents of said notice and statement foregoing, and that the matters and things therein stated are true.” 5 ¶13 Odenwald’s 1896 Notice lists a priority date of 1882. The 1896 Notice clearly states that Odenwald appropriated the water from “Sec. 9.” The Ranch argued, however, that Odenwald had intended to provide for a diversion from Section 4. The Ranch determined that Odenwald’s 1896 Notice represented the same water right reflected in its Claim. This determination prompted the Ranch to file the motion to amend the priority date for the Claim from 1900 to 1882. ¶14 The Ranch further relied upon a Montana Water Resources Survey of Fergus County (Resources Survey) conducted by the Montana Resources Board in 1969. The Resources Survey noted that Odenwald had filed the 1896 Notice for a water right claim to 120 miner’s inches of water from “a group of springs arising in Odenwald Coulie [sic]” with a priority date of March 1882. ¶15 Weinheimer, who has been familiar with the property since 1951, testified thathe had never seen a ditch passing from Section 9 to Section 4 as described in Odenwald’s 1896 Notice. Scott Irvin of the DNRC Lewistown Regional Office testified that he saw no traces of any ditch from Section 9 to Section 4 in a 1962 aerial photograph of the area. Pospisil conceded at the hearing that no evidence existed of any ditch that passed from Section 9 to Section 4 from at least the 1930’s until the present. The Water Master agreed that nothing in the record supported the notion that any flowing water existed in Section 9 in 1882, or any time since that date, from which Odenwald could have diverted the water that he claimed to have appropriated through the 1896 Notice. 6 ¶16 The Ranch further pointed to the undisputed fact that Odenwald never owned land in Section 9. Odenwald owned land only in Section 4. The Ranch also argued that the point of diversion listed in Odenwald’s 1896 Notice sits only one-quarter mile from the point of diversion in Section 4 from which the Ranch claimed that Odenwald actually had appropriated water. The Ranch finally pointed to the 1969 Resources Survey and its reference to Odenwald’s 1896 Notice. The Ranch argued that the Water Master should have inferred from these facts, pursuant to § 26-1-501, MCA (defining inference), that Odenwald mistakenly had described the point of diversion as Section 9 in his 1896 Notice. ¶17 The Water Master found it “unlikely” that any surface water ever flowed in Section 9. The Water Master did not call into question the Ranch’s assertions that Odenwald never owned land in Section 9, or that the point of diversion listed in Odedwald’s 1896 Notice sits one-quarter of a mile from where the Ranch claims that Odenwald actually diverted water. The Water Master nevertheless recommended that the Water Court deny the Ranch’s motion to amend the Claim’s historical right and priority date on the basis that Weinheimer had failed to support the motion with sufficient evidence. The Water Master noted that Odenwald’s notice “has been of record” since he filed it in 1896. The Water Master deemed it impossible to change “such a material component of that notice some one hundred years after the fact – a material component which Adrian Odenwald swore was true.” ¶18 The Water Court adopted the majority of the Water Master’s findings and conclusions. The Water Court dismissed as impermissibly speculative, however, the Water Master’s determination that no surface water ever existed in Section 9 going back to 1882. 7 The Water Court determined instead that the record supported a finding of no water in Section 9 going back only to the 1930’s. The Water Court adopted the Water Master’s overall recommendation and denied the Ranch’s motion to amend the Claim’s historic rate and priority date. STANDARD OF REVIEW ¶19 The Water Court reviews all objections to temporary preliminary decrees under authority granted in § 85-2-233, MCA. The Water Court reviews a Water Master’s findings of fact to determine whether they are clearly erroneous. Mont. R. Civ. P. 53(e)(2). We review the Water Court’s findings of fact to determine whether they are clearly erroneous. Interstate Prod. Credit Ass’n v. DeSaye, 250 Mont. 320, 323, 820 P.2d 1285, 1287 (1991). When a reader reasonably can deduce two or more inferences from the facts, the reviewing court lacks power to substitute its deductions for those of the finder of fact. Fegles Const. Co. v. McLaughlin Const. Co., 205 F.2d 637, 639 (9th Cir. 1953). We review for correctness the Water Court’s conclusions of law. Geil v. Missoula Irr. Dist., 2002 MT 269, ¶ 22, 312 Mont. 320, 327, 59 P.3d 398. DISCUSSION ¶20 Whether the facts in the record required an inference that the Ranch’s predecessor in interest mistakenly had listed Section 9 instead of Section 4 on his 1896 Notice of Appropriation? ¶21 A properly filed water claim constitutes prima facie proof of the claim’s content. Rule 19, W. R. Adj. R., citing § 85-2-227, MCA. A party may rebut this presumption through 8 other evidence that proves by a preponderance of the evidence that the elements of the claim “do not accurately reflect the beneficial use of the water right as it existed prior to July 1, 1973.” Rule 19, W. R. Adj. R. Rule 19 further provides that the preponderance of the evidence standard applies to “every assertion that a claim is incorrect including for claimants objecting to their own claims.” Rule 19, W. R. Adj. R. ¶22 The Ranch argues that the evidence in the record requires an inference that Odenwald intended to list the point of diversion for the 1896 claim as Section 4 instead of Section 9. The Ranch contends that the Water Court’s failure to make this inference should leave the Court with the “definite and firm conviction that a mistake has been committed” and that this conviction should require the Court to reverse the Water Master’s failure not to make the inference. DeSaye, 250 Mont. at 323, 820 P.2d at 1287. Without this inference, the Ranch argues that its Claim does not reflect accurately the beneficial use of its water right as it existed prior to July 1, 1973. ¶23 Section 26-1-502, MCA, provides that inferences made by a factfinder must be founded on: (1) a fact legally proven; and (2) a deduction from that fact “that is warranted by a consideration of the usual propensities or passions of people, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature.” The Ranch challenges the Water Master’s failure to infer from the evidence presented that Odenwald actually had intended to list “Section 4” as his point of diversion in his 1896 Notice. 9 ¶24 The Water Court recognized that the Water Master, as the trier of fact, possessed the authority to have made the inference urged by the Ranch. We agree. The Water Master declined to make the inference urged by the Ranch. The facts in the record prove insufficient for this Court to require the Water Master to have inferred that Odenwald had intended to list Section 4 instead of Section 9 on his 1896 Notice. ¶25 Odenwald’s 1896 Notice serves as prima facie evidence that the information contained in the notice is correct. Odenwald prepared and submitted the 1896 Notice. He further attested to its accuracy. No one challenged the accuracy of Odenwald’s 1896 Notice for more than a century. In fact, the Ranch and its predecessors in interest had filed claims on several occassions that listed a priority date of 1900. The extrinsic evidence presented by the Ranch did not rise to the level that required the Water Master to infer that Odenwald mistakenly had listed Section 9 as the source of his water in his 1896 Notice. The Water Master reasonably declined to infer that Odanwald had made a mistake in his 1896 Notice. Fegles Constr. Co., 205 F.2d at 639. ¶26 Whether the Water Court properly determined that the Ranch had failed to present substantial evidence in support of its motion to amend its claim? ¶27 The Ranch challenges the Water Master’s finding that the Ranch had not presented sufficient evidence to support its motion to amend the historical right or priority date of its Claim. We will not disturb a finding of fact unless the finding is clearly erroneous. See § 26-1-501, MCA; see also, DeSaye, 250 Mont. at 322, 820 P.2d at 1287. We have established a three-prong test to determine when factual findings are clearly erroneous. 10 DeSaye, 250 Mont. at 323, 820 P.2d at 1287. The three prongs are whether: (1) substantial evidence supports the findings of fact; (2) the fact finder misapprehended the effect of the evidence; and (3) a review of the record leaves the Court with the definite and firm conviction that a mistake has been committed. DeSaye, 250 Mont. at 323, 820 P.2d at 1287. ¶28 Substantial evidence in the record supports the Water Court’s finding. The Ranch properly filed the Claim pursuant to § 85-2-221, MCA. The Claim itself serves as prima facie evidence that the information contained in the claim is true. Rule 19, W. R. Adj. R. The Ranch’s claim will not be disturbed absent a showing by the preponderance of the evidence that the information in the claim is incorrect. Rule 19, W. R. Adj. R.; see § 89-813, RCM. This preponderance of the evidence standard applies to the Ranch’s proposed amendment of its Claim filed with the Water Court and its effort to correct what it claims to be an error in Odenwald’s 1896 Notice. See § 89-813, RCM; Rule 19, W. R. Adj. R. ¶29 Odenwald filed a sworn and notarized statement in the 1896 Notice in which he attested that “he [Adrian Odenwald] knows the contents of [his] notice and statement” and “that the matters and things therein stated are true.” The Water Master reasonably assumed that Odenwald stood in the best position to determine whether his point of diversion was in Section 9 or Section 4. Odenwald’s 1896 Notice makes no express reference to Section 4 as the point of appropriation. ¶30 Odenwald did not claim an 1882 priority date in the filing that the Ranch previously had relied upon to establish the Claim’s 1900 priority date. The Ranch’s predecessors in 11 interest previously did not file a claim with the Water Court that alleged an 1882 priority date. The Ranch did not seek to amend its claim until 2002 despite the fact that the Ranch admitted that Franz Weinheimer, “in 1969, was aware that he had a water right first appropriated by Adrian Odenwald in March of 1882.” ¶31 Further, Odenwald's 1896 Notice establishes a rebuttable presumption that the information contained in the 1896 notice is correct. See § 89-813, RCM; § 26-1-602(4), MCA. The Ranch argues that lack of water in Section 9 suggests that Odenwald must have meant Section 4. The Ranch asserts that the water that was the subject of the 1896 Notice “had to come from somewhere and that ‘somewhere’ was a group of springs in Section 4.” Water that was in existence at the time would “[have] to come from somewhere.” Whether the “somewhere” must have been from Section 4 remains uncertain. Even if the Ranch successfully had established that Section 9 never has contained water, the Ranch failed to provide sufficient evidence to support the conclusion that Odenwald meant to appropriate water in his 1896 Notice specifically from Section 4. ¶32 The fact that Odenwald owned no land in Section 9, on its own, fails to rebut the presumption created by Odenwald’s 1896 Notice. As the Water Court noted, “it [was] not unusual for a water user to appropriate water from a source outside the exterior boundaries of a water user’s property.” See, e.g., Smith v. Denniff, 24 Mont. 20, 60 P. 398 (1900). ¶33 We also must assume that Odenwald took ordinary care of his concerns. Section 26- 1-602(4), MCA. If Odenwald had a priority date for a claim in Section 4 going back to 1882, instead of 1900, we must assume that Odenwald would have taken efforts to 12 substantiate that claim in the same manner that he had taken to substantiate the information the Ranch later relied upon to establish the claims related to the 1900 priority date. ¶34 Finally, the Water Master and the Water Court also reviewed the 1969 Resources Survey. The Resources Survey describes two separate claims held by the Ranch’s predecessors in interest. The Ranch asserts that both claims apply to the same water. The Water Court determined that one of the claims – Claim 41S-W-100200-00 – constituted the claim that the Ranch later had filed with the Water Court in 1981. The Resources Survey also describes a second claim. This second claim originates in Section 9. The Water Court determined that this second claim had been abandoned due to the failure of the Ranch, or its predecessor in interest, to file the claim as required by § 85-2-221, MCA. See also, In re the Adjudication of the Yellowstone River, 253 Mont. 167, 171, 832 P.2d 1210, 1212 (1992). ¶35 The Ranch has argued that the water appropriated by Odenwald’s 1896 Notice and the Claim filed with the Water Court represent the same claim. The Resources Survey could be found, however, to support the opposite conclusion—that the two claims are distinct. Our review of the credible evidence in the record does not lead us to determine that the Water Master misapprehended the effects of the evidence. The Water Court determined that the preponderance of the evidence did not suggest that Odenwald necessarily had intended to list Section 4, instead of Section 9, in his 1896 Notice. Our review of the record similarly fails to leave us with a definite and firm conviction that the Water Court mistakenly denied the Ranch’s motion to amend its claim. DeSaye, 250 Mont. at 323, 820 P.2d at 1287. ¶36 Affirmed. 13 /S/ BRIAN MORRIS We Concur: /S/ BETH BAKER /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JIM RICE | April 9, 2013 |
6dab88d6-e87c-430b-93a1-e2ac6190f10d | Weinheimer Ranch v. Pospisil | 2013 MT 87 | DA 12-0264 | Montana | Montana Supreme Court | DA 12-0264 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 87 WEINHEIMER RANCH, INC., Claimant and Appellant, v. GEORGE A. POSPISIL, Objector and Appellee. APPEAL FROM: Montana Water Court, Lower Missouri Division, Judith River Basin, Cause No. 41S-A1 Honorable C. Bruce Loble, Chief WaterJudge COUNSEL OF RECORD: For Appellant: James A. Hubble, Hubble Law Firm, PLLP; Stanford, Montana For Appellee: Craig R. Buehler, Attorney at Law; Lewistown, Montana Submitted on Briefs: October 30, 2012 Decided: April 9, 2013 Filed: __________________________________________ Clerk April 9 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Weinheimer Ranch, Inc. (the Ranch) appeals from an order of the Montana Water Court (Water Court) that the Ranch had failed to support with sufficient evidence its motion to amend its previously filed claim’s historical right and priority date. We affirm. ¶2 We address the following issues on appeal: ¶3 Whether the facts in the record required an inference that the Ranch’s predecessor in interest mistakenly had listed Section 9 instead of Section 4 on his 1896 Notice of Appropriation? ¶4 Whether the Water Court properly determined that the Ranch had failed to present substantial evidence in support of its motion to amend its claim? BACKGROUND AND HISTORY ¶5 Pursuant to Article IX, Section 3(4), of the Montana Constitution, the legislature has provided for the administration, control, and regulation of water rights. Mont. Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, ¶ 2, 361 Mont. 77, 255 P.3d 179; see also, §§ 85-2-101, MCA to 85-2-907, MCA. The Water Court possesses the exclusive authority to adjudicate existing water rights. Section 85-2-216, MCA; Rule 1(a), Water Rights Adjudication Rules (W. R. Adj. R.). The Court has set forth the Water Court’s practices and procedures in the Montana Water Rights Adjudication Rules. See Rule 1(a), W. R. Adj. R. ¶6 Franz Weinheimer filed a notice of appropriation in 1971. The 1971 notice of appropriation alleges that Franz Weinheimer, through his predecessors in interest, had 3 appropriated 2,500 gallons per minute (gpm) from “an unnamed water course” in 1900. The notice lists a point in Section 4, Township 14 North, Range 16 East as the point of diversion. Franz’s son, Francis E. Weinheimer (Weinheimer), filed Claim 41S-W-100200-00 (Claim) with the Montana Water Court on December 7, 1981. The Claim generally tracks the 1971 Notice of Appropriation. Weinheimer transferred the property interests in the Claim to Weinheimer Ranch, Inc. (Ranch) on December 12, 1991. The Ranch now owns the rights to the Claim. ¶7 The Water Court issued a Temporary Preliminary Decree for the Judith Basin River on May 17, 1984. The Temporary Preliminary Decree provides George K. Pospisil (Pospisil) a priority date of 1897. Pospisil owns property adjacent to the Ranch. The same decree provides the Ranch with a 1900 priority date. Odenwald Creek serves as the listed point of diversion for the water rights of both Pospisil and the Ranch. No one objected to the Temporary Preliminary Decree with respect to the priority dates for Pospisil and the Ranch. ¶8 The Ranch diverts its water from Odenwald Coulee in Section 4. The Ranch diverts the water by a headgate and conveys the water by ditch to irrigate 20 acres of agricultural land. The Claim has a flow rate of 2,500 gpm for an annual volume of 60 acre-feet per year. The Claim includes a filed historical right with a priority date of December 31, 1900. Pospisil’s filed water right, with a priority date of 1897, currently stands senior to the Ranch’s Claim, with its priority date of 1900. ¶9 The Ranch filed a motion to amend the Claim on October 9, 2002. The Ranch filed a supplement to the motion on May 30, 2003. The Ranch’s motion seeks to amend the 4 Claim’s historical right, priority date, and source. Pospisil filed an objection to the amendment of the Claim’s historical right and priority date on August 25, 2003. ¶10 Pospisil does not contest the Ranch’s proposed source amendment. The source amendment seeks to correct an error by administrative officials of the Department of Natural Resources and Conservation (DNRC) who had changed the source, on their own accord, from Odenwald Coulee to Odenwald Creek. The DNRC officials thought that they were correcting a misdesignation in the Claim. The parties, the Water Master, and the Water Court all agree that the original Claim correctly stated the actual source as Odenwald Coulee. ¶11 Senior Water Master Kathryn L. W. Lambert (Water Master) held a hearing on the Ranch’s motion in April 2004. The Ranch relied on two separate documents to support its motion. The Ranch discovered both documents in 2002, after Pospisil had made a call on water on Odenwald Coulee. ¶12 The Ranch first presented the Notice of Appropriation of Water Right (1896 Notice) filed in 1896 by Adrian Odenwald (Odenwald), a predecessor in interest. Odenwald’s 1896 Notice provides as follows: That [Adrian Odenwald] has taken said water out of, and diverted it from said springs by means of a ditch which said ditch is 24 inches by 12 inches in size and carries or conducts 120 inches of water from said springs . . . arising in Sec. 9 Twp. 14 N R. 16 E. Odenwald further attested in the notarized 1896 Notice “that he knows the contents of said notice and statement foregoing, and that the matters and things therein stated are true.” 5 ¶13 Odenwald’s 1896 Notice lists a priority date of 1882. The 1896 Notice clearly states that Odenwald appropriated the water from “Sec. 9.” The Ranch argued, however, that Odenwald had intended to provide for a diversion from Section 4. The Ranch determined that Odenwald’s 1896 Notice represented the same water right reflected in its Claim. This determination prompted the Ranch to file the motion to amend the priority date for the Claim from 1900 to 1882. ¶14 The Ranch further relied upon a Montana Water Resources Survey of Fergus County (Resources Survey) conducted by the Montana Resources Board in 1969. The Resources Survey noted that Odenwald had filed the 1896 Notice for a water right claim to 120 miner’s inches of water from “a group of springs arising in Odenwald Coulie [sic]” with a priority date of March 1882. ¶15 Weinheimer, who has been familiar with the property since 1951, testified thathe had never seen a ditch passing from Section 9 to Section 4 as described in Odenwald’s 1896 Notice. Scott Irvin of the DNRC Lewistown Regional Office testified that he saw no traces of any ditch from Section 9 to Section 4 in a 1962 aerial photograph of the area. Pospisil conceded at the hearing that no evidence existed of any ditch that passed from Section 9 to Section 4 from at least the 1930’s until the present. The Water Master agreed that nothing in the record supported the notion that any flowing water existed in Section 9 in 1882, or any time since that date, from which Odenwald could have diverted the water that he claimed to have appropriated through the 1896 Notice. 6 ¶16 The Ranch further pointed to the undisputed fact that Odenwald never owned land in Section 9. Odenwald owned land only in Section 4. The Ranch also argued that the point of diversion listed in Odenwald’s 1896 Notice sits only one-quarter mile from the point of diversion in Section 4 from which the Ranch claimed that Odenwald actually had appropriated water. The Ranch finally pointed to the 1969 Resources Survey and its reference to Odenwald’s 1896 Notice. The Ranch argued that the Water Master should have inferred from these facts, pursuant to § 26-1-501, MCA (defining inference), that Odenwald mistakenly had described the point of diversion as Section 9 in his 1896 Notice. ¶17 The Water Master found it “unlikely” that any surface water ever flowed in Section 9. The Water Master did not call into question the Ranch’s assertions that Odenwald never owned land in Section 9, or that the point of diversion listed in Odenwald’s 1896 Notice sits one-quarter of a mile from where the Ranch claims that Odenwald actually diverted water. The Water Master nevertheless recommended that the Water Court deny the Ranch’s motion to amend the Claim’s historical right and priority date on the basis that Weinheimer had failed to support the motion with sufficient evidence. The Water Master noted that Odenwald’s notice “has been of record” since he filed it in 1896. The Water Master deemed it impossible to change “such a material component of that notice some one hundred years after the fact – a material component which Adrian Odenwald swore was true.” ¶18 The Water Court adopted the majority of the Water Master’s findings and conclusions. The Water Court dismissed as impermissibly speculative, however, the Water Master’s determination that no surface water ever existed in Section 9 going back to 1882. 7 The Water Court determined instead that the record supported a finding of no water in Section 9 going back only to the 1930’s. The Water Court adopted the Water Master’s overall recommendation and denied the Ranch’s motion to amend the Claim’s historic rate and priority date. STANDARD OF REVIEW ¶19 The Water Court reviews all objections to temporary preliminary decrees under authority granted in § 85-2-233, MCA. The Water Court reviews a Water Master’s findings of fact to determine whether they are clearly erroneous. Mont. R. Civ. P. 53(e)(2). We review the Water Court’s findings of fact to determine whether they are clearly erroneous. Interstate Prod. Credit Ass’n v. DeSaye, 250 Mont. 320, 323, 820 P.2d 1285, 1287 (1991). When a reader reasonably can deduce two or more inferences from the facts, the reviewing court lacks power to substitute its deductions for those of the finder of fact. Fegles Const. Co. v. McLaughlin Const. Co., 205 F.2d 637, 639 (9th Cir. 1953). We review for correctness the Water Court’s conclusions of law. Geil v. Missoula Irr. Dist., 2002 MT 269, ¶ 22, 312 Mont. 320, 327, 59 P.3d 398. DISCUSSION ¶20 Whether the facts in the record required an inference that the Ranch’s predecessor in interest mistakenly had listed Section 9 instead of Section 4 on his 1896 Notice of Appropriation? ¶21 A properly filed water claim constitutes prima facie proof of the claim’s content. Rule 19, W. R. Adj. R., citing § 85-2-227, MCA. A party may rebut this presumption through 8 other evidence that proves by a preponderance of the evidence that the elements of the claim “do not accurately reflect the beneficial use of the water right as it existed prior to July 1, 1973.” Rule 19, W. R. Adj. R. Rule 19 further provides that the preponderance of the evidence standard applies to “every assertion that a claim is incorrect including for claimants objecting to their own claims.” Rule 19, W. R. Adj. R. ¶22 The Ranch argues that the evidence in the record requires an inference that Odenwald intended to list the point of diversion for the 1896 claim as Section 4 instead of Section 9. The Ranch contends that the Water Court’s failure to make this inference should leave the Court with the “definite and firm conviction that a mistake has been committed” and that this conviction should require the Court to reverse the Water Master’s failure not to make the inference. DeSaye, 250 Mont. at 323, 820 P.2d at 1287. Without this inference, the Ranch argues that its Claim does not reflect accurately the beneficial use of its water right as it existed prior to July 1, 1973. ¶23 Section 26-1-502, MCA, provides that inferences made by a factfinder must be founded on: (1) a fact legally proven; and (2) a deduction from that fact “that is warranted by a consideration of the usual propensities or passions of people, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature.” The Ranch challenges the Water Master’s failure to infer from the evidence presented that Odenwald actually had intended to list “Section 4” as his point of diversion in his 1896 Notice. 9 ¶24 The Water Court recognized that the Water Master, as the trier of fact, possessed the authority to have made the inference urged by the Ranch. We agree. The Water Master declined to make the inference urged by the Ranch. The facts in the record prove insufficient for this Court to require the Water Master to have inferred that Odenwald had intended to list Section 4 instead of Section 9 on his 1896 Notice. ¶25 Odenwald’s 1896 Notice serves as prima facie evidence that the information contained in the notice is correct. Odenwald prepared and submitted the 1896 Notice. He further attested to its accuracy. No one challenged the accuracy of Odenwald’s 1896 Notice for more than a century. In fact, the Ranch and its predecessors in interest had filed claims on several occasions that listed a priority date of 1900. The extrinsic evidence presented by the Ranch did not rise to the level that required the Water Master to infer that Odenwald mistakenly had listed Section 9 as the source of his water in his 1896 Notice. The Water Master reasonably declined to infer that Odenwald had made a mistake in his 1896 Notice. Fegles Constr. Co., 205 F.2d at 639. ¶26 Whether the Water Court properly determined that the Ranch had failed to present substantial evidence in support of its motion to amend its claim? ¶27 The Ranch challenges the Water Master’s finding that the Ranch had not presented sufficient evidence to support its motion to amend the historical right or priority date of its Claim. We will not disturb a finding of fact unless the finding is clearly erroneous. See § 26-1-501, MCA; see also, DeSaye, 250 Mont. at 322, 820 P.2d at 1287. We have established a three-prong test to determine when factual findings are clearly erroneous. 10 DeSaye, 250 Mont. at 323, 820 P.2d at 1287. The three prongs are whether: (1) substantial evidence supports the findings of fact; (2) the fact finder misapprehended the effect of the evidence; and (3) a review of the record leaves the Court with the definite and firm conviction that a mistake has been committed. DeSaye, 250 Mont. at 323, 820 P.2d at 1287. ¶28 Substantial evidence in the record supports the Water Court’s finding. The Ranch properly filed the Claim pursuant to § 85-2-221, MCA. The Claim itself serves as prima facie evidence that the information contained in the claim is true. Rule 19, W. R. Adj. R. The Ranch’s claim will not be disturbed absent a showing by the preponderance of the evidence that the information in the claim is incorrect. Rule 19, W. R. Adj. R.; see § 89-813, RCM. This preponderance of the evidence standard applies to the Ranch’s proposed amendment of its Claim filed with the Water Court and its effort to correct what it claims to be an error in Odenwald’s 1896 Notice. See § 89-813, RCM; Rule 19, W. R. Adj. R. ¶29 Odenwald filed a sworn and notarized statement in the 1896 Notice in which he attested that “he [Adrian Odenwald] knows the contents of [his] notice and statement” and “that the matters and things therein stated are true.” The Water Master reasonably assumed that Odenwald stood in the best position to determine whether his point of diversion was in Section 9 or Section 4. Odenwald’s 1896 Notice makes no express reference to Section 4 as the point of appropriation. ¶30 Odenwald did not claim an 1882 priority date in the filing that the Ranch previously had relied upon to establish the Claim’s 1900 priority date. The Ranch’s predecessors in 11 interest previously did not file a claim with the Water Court that alleged an 1882 priority date. The Ranch did not seek to amend its claim until 2002 despite the fact that the Ranch admitted that Franz Weinheimer, “in 1969, was aware that he had a water right first appropriated by Adrian Odenwald in March of 1882.” ¶31 Further, Odenwald's 1896 Notice establishes a rebuttable presumption that the information contained in the 1896 notice is correct. See § 89-813, RCM; § 26-1-602(4), MCA. The Ranch argues that lack of water in Section 9 suggests that Odenwald must have meant Section 4. The Ranch asserts that the water that was the subject of the 1896 Notice “had to come from somewhere and that ‘somewhere’ was a group of springs in Section 4.” Water that was in existence at the time would “[have] to come from somewhere.” Whether the “somewhere” must have been from Section 4 remains uncertain. Even if the Ranch successfully had established that Section 9 never has contained water, the Ranch failed to provide sufficient evidence to support the conclusion that Odenwald meant to appropriate water in his 1896 Notice specifically from Section 4. ¶32 The fact that Odenwald owned no land in Section 9, on its own, fails to rebut the presumption created by Odenwald’s 1896 Notice. As the Water Court noted, “it [was] not unusual for a water user to appropriate water from a source outside the exterior boundaries of a water user’s property.” See, e.g., Smith v. Denniff, 24 Mont. 20, 60 P. 398 (1900). ¶33 We also must assume that Odenwald took ordinary care of his concerns. Section 26- 1-602(4), MCA. If Odenwald had a priority date for a claim in Section 4 going back to 1882, instead of 1900, we must assume that Odenwald would have taken efforts to 12 substantiate that claim in the same manner that he had taken to substantiate the information the Ranch later relied upon to establish the claims related to the 1900 priority date. ¶34 Finally, the Water Master and the Water Court also reviewed the 1969 Resources Survey. The Resources Survey describes two separate claims held by the Ranch’s predecessors in interest. The Ranch asserts that both claims apply to the same water. The Water Court determined that one of the claims – Claim 41S-W-100200-00 – constituted the claim that the Ranch later had filed with the Water Court in 1981. The Resources Survey also describes a second claim. This second claim originates in Section 9. The Water Court determined that this second claim had been abandoned due to the failure of the Ranch, or its predecessor in interest, to file the claim as required by § 85-2-221, MCA. See also, In re the Adjudication of the Yellowstone River, 253 Mont. 167, 171, 832 P.2d 1210, 1212 (1992). ¶35 The Ranch has argued that the water appropriated by Odenwald’s 1896 Notice and the Claim filed with the Water Court represent the same claim. The Resources Survey could be found, however, to support the opposite conclusion—that the two claims are distinct. Our review of the credible evidence in the record does not lead us to determine that the Water Master misapprehended the effects of the evidence. The Water Court determined that the preponderance of the evidence did not suggest that Odenwald necessarily had intended to list Section 4, instead of Section 9, in his 1896 Notice. Our review of the record similarly fails to leave us with a definite and firm conviction that the Water Court mistakenly denied the Ranch’s motion to amend its claim. DeSaye, 250 Mont. at 323, 820 P.2d at 1287. ¶36 Affirmed. 13 /S/ BRIAN MORRIS We Concur: /S/ BETH BAKER /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JIM RICE | April 9, 2013 |
dad6db50-4ddc-4332-8803-41140141b10b | Payne v. Berry's Auto, Inc. | 2013 MT 102 | DA 12-0371 | Montana | Montana Supreme Court | DA 12-0371 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 102 LINDA PAYNE, Plaintiff and Appellant, v. BERRY’S AUTO, INC., Defendant and Appellee. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 12-405 Honorable Russell C. Fagg, Presiding Judge COUNSEL OF RECORD: For Appellant: D. Michael Eakin; Montana Legal Services Association; Billings, Montana For Appellee: Peter T. Stanley; Attorney at Law; Billings, Montana Submitted on Briefs: December 19, 2012 Decided: April 16, 2013 Filed: __________________________________________ Clerk April 16 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Appellant Linda Payne (Payne) appeals the judgment of the Thirteenth Judicial District Court, which affirmed the holding of the Yellowstone County Justice Court, that Berry’s Auto, Inc. (Berry’s) disclaimed implied warranties for a used vehicle sold to Payne. Although we conclude that Berry’s failed to effectively disclaim implied warranties on the vehicle, we nonetheless affirm the District Court on alternate grounds. We address the following issues: ¶2 1. Did Berry’s effectively disclaim implied warranties of a used vehicle under § 30-2-316, MCA, when the transaction included purchase of a service contract for the vehicle? ¶3 2. Did the District Court err by affirming the Justice Court’s denial of Payne’s implied warranty claim? FACTUAL AND PROCEDURAL BACKGROUND ¶4 Payne, a resident of Dawson County, purchased a used 1997 Ford Explorer from Berry’s in Billings on September 4, 2007. Payne also purchased an extended service contract for the vehicle for an additional cost of $1,870.00. Payne signed several transactional documents, including the Buyer’s Guide, the Retail Installment Contract, the Retail Purchase Agreement, and the Extended Service Contract. ¶5 The Buyer’s Guide is a double-sided form designed to be affixed to the window of a used vehicle offered for sale and identifies the subject 1997 Ford Explorer. A section of the Buyer’s Guide is labeled “Warranties for this Vehicle” and sets forth various statements about the transaction that are placed beside boxes to be checked if the statement is applicable. The first statement reads: “AS IS – NO WARRANTY. YOU 3 WILL PAY FOR ALL COSTS FOR ANY REPAIRS. The dealer assumes no responsibility for any repairs regardless of any oral statements about the vehicle.” The box next to this statement was checked. Boxes next to statements describing full and limited warranties were not checked. However, the box next to the following statement was checked: “SERVICE CONTRACT: A service contract is available at an extra charge on this vehicle. Ask for details as to coverage, deductible, price, and exclusions. If you buy a service contract within 90 days of the time of sale, state law ‘implied warranties’ may give you additional rights.” (Emphasis added.) ¶6 The Retail Installment Contract and the Retail Purchase Agreement contain similar statements addressing warranties. The Retail Installment Contract reads: Warranties Seller Disclaims. You understand that the seller is not offering any warranties and that there are no implied warranties of merchantability, of fitness for a particular purpose, or any other warranties, express or implied by the seller, covering the vehicle unless the seller extends a written warranty or service contract within 90 days from the date of this contract. The Retail Purchase Agreement warranty clause states: We are selling this Vehicle to you AS-IS and we expressly disclaim all warranties, express or implied, including any implied warranties of merchantability and fitness for a particular purpose, unless the box beside “Used Vehicle Limited Warranty Applies” is marked below or we enter into a service contract with you at the time of, or within 90 days of, the date of this transaction. ¶7 The Extended Service Contract was offered through Wynn’s Extended Care, Inc., of Brea, California (Wynn’s). The Contract was discussed and sold by the same Berry’s salesman who negotiated the sale of the vehicle to Payne. The price of the service 4 contract was included in the amount Payne financed, but was paid to Wynn’s. The Extended Service Contract contains a clause stating, “[t]his Contract is not valid unless signed by both You and an authorized representative of the Selling Dealer.” The Extended Service Contract lists Berry’s as the selling dealer and was signed by both Payne and the Berry’s salesman. ¶8 On September 25, 2007, Payne returned the Explorer to Berry’s for minor repairs, which Berry’s completed. Payne picked up the Explorer the next day and, while driving on Interstate 94 to Glendive, the engine began making an abnormal sound and then stopped entirely. Payne contacted Berry’s and, after initially supplying Payne with a loaner vehicle, Berry’s told Payne it would not be responsible for repairs and that she should contact Wynn’s. On October 19, 2007, Wynn’s initially declined to cover the cost of the engine repair.1 ¶9 Payne filed a complaint in Justice Court in Yellowstone County in September 2009 seeking damages for Berry’s failure to honor implied warranties of the vehicle and for committing an unfair trade practice. A bench trial was held on October 12, 2011. The Justice Court issued Findings of Fact, Conclusions of Law, and a Judgment. It concluded that “[Berry’s] did not provide Payne a written warranty. The used vehicle was purchase[d] without a written warranty. The vehicle was purchased ‘as-is’ without a warranty. The ‘Buyer’s Guide’ affixed to the vehicle and signed by Payne made it clear to Payne assumed (sic) the risk and responsibility for repairs.” The Justice Court further 1 Payne testified at trial that negotiations with Wynn’s about the matter were ongoing. 5 concluded that “Payne had the option to obtain a service contract from Wynn to cover repairs and breakdowns. Implied warranties do not apply unless the service contract is made with the seller of the vehicle. 15 U.S.C. § 2308(a)(2)[.] Payne purchased the service contract from Wynn not Berry. If the breakdown is one covered under the service agreement, Payne should seek redress with Wynn, not Berry.” ¶10 Payne appealed the Justice Court Judgment to the Thirteenth Judicial District Court. The District Court, upon a review of the Justice Court record and the parties’ briefing, affirmed the Justice Court, reasoning: The extended service contract is clearly between [Payne] and Wynn’s. Berry’s did not “make any written warranty to the consumer,” nor did Berry’s “enter into a service contract with the consumer.” Wynn’s was the supplier referenced in 15 U.S.C. § 2308(a). Just because Berry’s offered the contract and sold the contract to [Payne], does not mean Berry’s was responsible for that contract. Payne appeals.2 STANDARD OF REVIEW ¶11 “‘In an appeal from a justice court established as a court of record, the district court functions as an appellate court and the appeal is confined to a review of the record and questions of law. . . . [B]oth the District Court and this Court review the Justice Court’s factual findings for clear error and its legal conclusions for correctness.’” Stanley 2 Berry’s did not file an appellee’s brief in answer to Payne’s briefing or otherwise participate in this appeal. Pursuant to M. R. App. P. 13, when the appellee fails to file a brief, this Court shall “take the appellant’s versions and positions as being correct if they are in fact supported by the record.” See Alden v. Bd. of Zoning Comm’rs, 165 Mont. 364, 365, 528 P.2d 1320, 1320 (1974); see also Wilson v. State, 2010 MT 278, ¶ 18, 358 Mont. 438, 249 P.3d 28. Before the Justice Court and the District Court, Berry’s raised additional legal defenses that we do not consider because of its failure to participate in the appeal. 6 v. Lemire, 2006 MT 304, ¶ 25, 334 Mont. 489, 148 P.3d 643 (citation omitted). We conduct a de novo review of a court’s mixed questions of law and fact. Blackmore v. Dunster, 2012 MT 74, ¶ 6, 364 Mont. 384, 274 P.3d 784; BNSF Ry. v. Cringle, 2012 MT 143, ¶ 16, 365 Mont. 304, 281 P.3d 203. ¶12 “We will not reverse a district court when it reaches the right result, even if it reached that result for the wrong reason.” Yellowstone River LLC v. Meriwether Land Fund I, LLC, 2011 MT 263, ¶ 58, 362 Mont. 273, 264 P.3d 1065 (citing Wells Fargo Bank v. Talmage, 2007 MT 45, ¶ 23, 336 Mont. 125, 152 P.3d 1275). DISCUSSION ¶13 1. Did Berry’s effectively disclaim implied warranties of a used vehicle under § 30-2-316, MCA, when the transaction included purchase of a service contract for the vehicle? ¶14 Payne challenged Berry’s asserted disclaimer of implied warranties of the vehicle under federal and state law. She argues that the federal Magnuson-Moss Warranty Act (Act), codified at 15 U.S.C. §§ 2301-2312, “bars a seller from disclaiming implied warranties when it also enters into a service contract with a consumer purchaser” and “[s]ince Berry’s sold the service contract to Payne, it cannot disclaim implied warranties.” Payne challenges the District Court’s conclusion that “Payne purchased the service contract from Wynn, not Berry.” Berry’s argued before the Justice Court and the District Court that it sold the service contract only on behalf of Wynn’s and did not itself “enter into” a service contract with Payne. 7 ¶15 The Act was implemented to prevent deceptive warranty practices and to improve the adequacy of information available to consumers. 15 U.S.C. § 2302(a) (2006). Under the Act, a dealer’s ability to disclaim implied warranties is limited when the dealer “enters into” a service contract covering the consumer product with the consumer. (a) Restrictions on disclaimers or modifications. No supplier may disclaim or modify (except as provided in subsection (b) of this section) any implied warranty to a consumer with respect to such consumer product if (1) such supplier makes any written warranty to the consumer with respect to such consumer product, or (2) at the time of sale, or within 90 days thereafter, such supplier enters into a service contract with the consumer which applies to such consumer product. 15 U.S.C. § 2308(a). The Act defines a service contract with a consumer as “a contract in writing to perform, over a fixed period of time or for a specified duration, services relating to the maintenance or repair (or both) of a consumer product.” 15 U.S.C. § 2301(8). ¶16 The primary legal conclusion upon which the Justice Court and District Court rested their holdings was that the Act did not prohibit Berry’s from disclaiming warranties in this transaction because Berry’s did not itself “enter into a service contract” with Payne, Wynn’s had done so. 15 U.S.C. § 2308(a). Having so concluded, the District Court did not address Payne’s alternate argument—that Berry’s did not effectively disclaim implied warranties under state law. The Justice Court went further than the District Court by also essentially concluding that Berry’s had effectively disclaimed any warranties, but did not specifically discuss state law. Because we believe the issue is resolved under state statutes, we do not address the application of the federal 8 Act. Even if Berry’s was not precluded from disclaiming implied warranties by the Act, there remains the question of whether Berry’s attempted disclaimer was effective under governing state provisions. As Payne argues, “it is necessary to look to federal law” only if “Montana law does not settle the issue.”3 ¶17 Payne argues that Berry’s did not effectively disclaim implied warranties because the language of the sale documents by which Berry’s is purporting to disclaim also states that the disclaimer may not apply if a service agreement is purchased, and, thus, does not “make plain” that there is no implied warranty. Payne asserts that “[i]t is certainly not ‘plain’ that there are no warranties when the disclaimer language indicates it may not apply when the service contract is purchased” and “[t]he common understanding of the qualifying language used by Berry’s is that there is an implied warranty if one purchases a service agreement.” Berry’s argued in the Justice Court and the District Court that it effectively disclaimed any implied warranty by satisfying the requirements for disclaimer under the Montana Uniform Commercial Code (U.C.C.). ¶18 Montana has adopted the U.C.C. to govern sales. See generally Title 30, Chapter 2, MCA. The U.C.C. specifically identifies implied warranties for merchantability, § 30- 3 We note that there is a jurisdictional split as to whether a dealer that sells a service contract as an agent for a third party “enters into” the service contract for purposes of § 2308(a) of the Magnuson-Moss Warranty Act. Compare e.g. Patton v. McHone, 822 S.W.2d 608, 617 n.16 (Tenn. Ct. App. 1991) (“That [the dealer] was acting as an agent for an extended warranty company when it sold the service contract to the Pattons is of no significance insofar as 15 U.S.C. § 2308(a) is concerned. . . . There is no indication in the language or legislative history of the Magnuson-Moss Act that the service contract must originate with or be the sole responsibility of the dealer.”) with e.g. Priebe v. Autobarn, Ltd., 240 F.3d 584, 588 (7th Cir. 2001) (Dealer that sold service contract, which was offered and administered by an unaffiliated third party, acted as an agent and did not “enter into” the service agreement.). As stated, we do not reach this issue herein. 9 2-314, MCA, and fitness for a particular purpose, § 30-2-315, MCA, for goods sold. These implied warranties apply to sales of consumer goods “unless excluded or modified” pursuant to § 30-2-316, MCA. See §§ 30-2-314(1), 30-2-315, MCA. Section 30-2-316, MCA, discusses exclusion of warranties, in pertinent part, as follows: (2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.” (3) Notwithstanding subsection (2): (a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is”, “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty[.] Sections 30-2-316(2), (3)(a), MCA. Thus, a writing purporting to disclaim implied warranties of merchantability or fitness must be “conspicuous” and state, as an example, “[t]here are no warranties. . .” Section 30-2-316(2), MCA. Further, notwithstanding these general rules for disclaimer, an implied warranty may also be disclaimed by use of colloquial language of common understanding, such as a product is being sold “as is,” which “makes plain” that there is no implied warranty, unless the circumstances would indicate otherwise. Section 30-2-316(3)(a), MCA; see U.C.C. § 2-316, cmt. 6 (2011) (The exceptions to the general rules in subsection 316(2), as set forth in paragraphs (a), (b), and (c) of subsection 316(3), “are common factual situations in which the circumstances surrounding the transaction are in themselves sufficient to call the buyer’s 10 attention to the fact that no implied warranties are made . . .”); see also James J. White, Robert S. Summers & Robert A. Hillman, Uniform Commercial Code §§ 13:11-12, 1104- 06 (6th ed., West 2012). ¶19 Here, although three sales documents contain language that is “conspicuous,” provide a message equivalent to the statutory example that “there are no warranties,” and use colloquial “as is” terms, those documents also clearly provide a directly contradictory message. Section 30-2-316(2), (3)(a), MCA. The Retail Installment Contract reads: “You understand that the seller is not offering any warranties . . . unless the seller extends a written warranty or service contract within 90 days from the date of this contract.” The Retail Purchase Agreement states: “We are selling this Vehicle to you AS-IS and we expressly disclaim all warranties . . . unless . . . we enter into a service contract with you at the time of, or within 90 days of, the date of this transaction.” Berry’s argument was that these provisions did not trigger an implied warranty because Berry’s itself did not “extend” or “enter into” the service contract—Wynn’s had done so. However doubtful that argument may be on its face, the language of the Buyer’s Guide was broader and removed any doubt: “If you buy a service contract within 90 days of the time of sale, state law ‘implied warranties’ may give you additional rights.” This provision did not condition implied warranties upon Payne’s purchase of a service contract directly from Berry’s; it only required that a service contract be purchased. Berry’s had employed the colloquial language disclaimer that the Explorer was being sold “as is,” but the circumstances here clearly “indicat[ed] otherwise,” and the contractual provisions that 11 specifically advised Payne that implied warranty rights may be available if she purchased a service contract negated the colloquial language that “[made] plain” that warranties were disclaimed. Section 30-2-316(3)(a), MCA. ¶20 Consequently, the sales documents used here by Berry’s failed to disclaim statutory implied warranties under the requirements of §§ 30-2-316(2), (3)(a), MCA. The District Court thus erred in affirming the Justice Court’s holding that Berry’s effectively disclaimed implied warranties for the vehicle. ¶21 2. Did the District Court err by affirming the Justice Court’s denial of Payne’s implied warranty claim? ¶22 Establishing the existence of an implied warranty for the vehicle is the first step in pursuit of a breach of warranty claim. The sale documents clearly state that implied warranties under state law may apply, and the fact that Berry’s failed to effectively disclaim those warranties eliminates only Berry’s disclaimer defense to the claim. As the official comments to the U.C.C. explain: “In an action based on breach of warranty, it is of course necessary to show not only the existence of the warranty but the fact that the warranty was broken and that the breach of the warranty was the proximate cause of the loss sustained.” U.C.C. § 2-314, cmt. 13; see e.g. Kraft Reinsurance Ir., Ltd. v. Pallets Acquisitions, LLC, 845 F. Supp. 2d 1342, 1356-57 (N.D. Ga. 2011); Nev. Contract Servs. Inc. v. Squirrel Cos., Inc., 68 P.3d 896, 899 (Nev. 2003). A noted authority on the U.C.C. offers the following summary of the necessary proof: First, the claimant must prove that the defendant made a warranty, express or implied, and so incurred an obligation under 2-313, 2-314, or 2-315. Second, the claimant must prove that the goods did not comply with the 12 warranty. Third, the claimant must prove that the injury was caused, proximately and in fact, by the defective nature of the goods. . . . Finally, the claimant must fight off all sorts of affirmative defenses, such as disclaimers, statute of limitations, privity, lack of notice, and assumption of the risk. James J. White, Robert S. Summers & Robert A. Hillman, Uniform Commercial Code § 10:1, 846 (6th ed., West 2012). ¶23 In addition to concluding that Berry’s had provided no warranty for the vehicle, the Justice Court entered findings from the evidence regarding the other elements of Payne’s breach of warranty claim: Payne provided no creditable evidence as to the actual cause of the vehicle’s engine problem or the repairs needed. Payne presented no expert testimony as to the cause of the breakdown or the actual cost to repair the vehicle. The vehicle was in the possession of Payne when it broke down. The vehicle had been driven about 2,000 miles by Payne. The breakdown could have been caused by unreasonable use by Payne or her failure to maintain the vehicle. Payne presented no creditable evidence that the breakdown was the result of a patent defect or malfunction. ¶24 After reviewing the testimony introduced at trial, we must conclude that these findings of fact by the Justice Court are not erroneous. Payne testified only that the engine had stopped and a mechanic had removed it. She offered no evidence whatsoever about the engine’s particular mechanical problem or what had caused the problem. There was no effort to demonstrate that the engine had stopped operating because it was not in the condition impliedly guaranteed by Berry’s, as opposed to any other cause for its failure to operate, such as lack of necessary maintenance. 13 ¶25 Payne’s breach of warranty claim failed for lack of evidence necessary to satisfy the elements of breach and causation. The parties also contested damages at trial, but the failure to establish liability makes it unnecessary to address that issue. ¶26 In affirming the Justice Court’s judgment in favor of Berry’s, the District Court reached the correct result. We will not reverse the district court when it reaches the right result, “even if it reached that result for the wrong reason.” Yellowstone River LLC, ¶ 58. ¶27 Affirmed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BETH BAKER | April 16, 2013 |
afb4670b-1d31-4c32-a857-0c24eb716bf6 | State v. Wagner | 2013 MT 159 | DA 12-0699 | Montana | Montana Supreme Court | DA 12-0699 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 159 STATE OF MONTANA, Plaintiff and Appellee, v. ROBERT A. WAGNER, Defendant and Appellant. APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DC-12-56 Honorable James B. Wheelis, Presiding Judge COUNSEL OF RECORD: For Appellant: Thane Johnson, Johnson, Berg & Saxby, PLLP, Kalispell, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant Attorney General, Helena, Montana Bernard G. Cassidy, Lincoln County Attorney; Robert Slomski, Deputy Lincoln County Attorney, Libby, Montana Submitted on Briefs: May 1, 2013 Decided: June 18, 2013 Filed: __________________________________________ Clerk June 18 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 The State charged Robert Andrew Wagner in Lincoln County Justice Court with driving under the influence of alcohol or drugs (third offense), a misdemeanor, in violation of § 61-8-401, MCA, or, in the alternative, § 61-8-406, MCA. Wagner filed a motion to suppress all evidence obtained during the stop of his vehicle. He argued that the officer lacked particularized suspicion for the traffic stop. Following a suppression hearing, the Justice Court denied Wagner’s motion. Wagner then pleaded guilty, reserving his right to appeal the Justice Court’s suppression ruling. ¶2 Wagner appealed to the Nineteenth Judicial District Court, Lincoln County. The District Court conducted an evidentiary hearing and thereafter denied Wagner’s motion to suppress, finding that there was particularized suspicion for the stop of his vehicle. Wagner now appeals to this Court, raising the following issue: Whether the District Court erred in denying Wagner’s motion to suppress based upon its determination that the officer had particularized suspicion to justify an investigative stop. We conclude that the District Court did not err, and we accordingly affirm. BACKGROUND ¶3 At approximately 2:40 a.m. on April 9, 2012, Lincoln County Sheriff’s Deputy John Davis was patrolling southbound on U.S. Highway 2 in Libby near Empire Foods and Town Pump, which are located at the southern edge of town. In front of him, Davis noticed a vehicle that was also traveling southbound on Highway 2. At this location, the highway consists of two southbound and two northbound lanes of travel. Davis’s 3 attention was drawn to the vehicle because it was straddling the two southbound lanes of travel; in other words, the vehicle was not in a single lane. Davis observed the vehicle continue to straddle both southbound lanes for 500 to 600 feet. There were no obstructions or roadwork that would have prevented the driver from traveling in one lane. Davis was aware that Montana law requires a vehicle to be operated as nearly as practicable entirely within a single lane. Section 61-8-328(1), MCA. ¶4 Davis followed the vehicle as it proceeded in a southerly direction. He observed the vehicle slowly move into the left southbound lane, without signaling. The vehicle continued in the left lane for roughly one-quarter mile. The vehicle’s right blinker then activated and the vehicle moved into the right lane. Davis observed the vehicle weave back and forth within the right lane. The vehicle’s left tires crossed the dividing line between the two southbound lanes on two separate occasions, and the vehicle’s right tires crossed the fog line on one occasion. The vehicle next signaled and turned right onto Pearl Street, and then signaled again and turned left onto Granite Street. At this point, Davis decided to initiate a traffic stop and activated his overhead lights. The vehicle began signaling and eventually pulled into a driveway. Davis pulled in behind and made contact with the driver, who he ascertained was Wagner. ¶5 Davis had been a deputy with the Lincoln County Sheriff’s Office for 15 months at the time he stopped Wagner. Davis had received specialized training for investigations involving driving under the influence. He had made other DUI stops and arrests prior to his stop of Wagner. Davis testified at the suppression hearing that, in light of his training and experience, he believed that Wagner’s driving was erratic and suspicious. Based on 4 his observations of Wagner straddling the two southbound lanes of travel, then drifting into the left lane, then weaving back and forth within the right lane, crossing the dividing line on two occasions and the fog line on one occasion, Davis concluded that Wagner might be impaired. ¶6 At the suppression hearing, Davis also discussed the video-recording equipment in his patrol car. He explained that the video camera runs on a continuous loop 24 hours a day, recording and rerecording over itself on the videotape. When the patrol car’s overhead lights are activated, however, the device automatically saves what was recorded during the 60 seconds before the overhead lights were activated, plus whatever occurs while the overhead lights remain on. As noted, Davis did not activate his overhead lights until Wagner turned onto Granite Street. As a result, the video recorder did not capture any of Wagner’s erratic driving observed more than a minute prior to his turning onto Granite Street. Davis acknowledged that he could have activated the video recorder manually, before turning on his overhead lights. He stated that he did not do so because his usual practice is to let the recorder operate automatically in conjunction with his overhead lights. ¶7 Wagner testified that he clearly remembered the night in question. He stated that he was familiar with the road and that he always drove on the inside southbound lane in order to avoid collisions with the many deer and moose in the area. Wagner denied straddling the line dividing the two southbound lanes. He testified that he stayed within the designated lanes of travel. 5 ¶8 The District Court entered findings of fact and conclusions of law. The court expressly found Davis’s testimony to be credible and Wagner’s testimony to lack credibility. The court concluded that “[t]he facts articulated by Deputy Davis, together with reasonable inferences from those facts, and taking into consideration Deputy Davis’ training and experience, led Deputy Davis to a resulting suspicion that Defendant was committing an offense.” The court thus ruled that Davis had particularized suspicion to justify an investigative traffic stop of Wagner’s vehicle. The District Court accordingly denied Wagner’s motion to suppress. STANDARDS OF REVIEW ¶9 We review the grant or denial of a motion to suppress to determine whether the court’s findings of fact are clearly erroneous and whether the court correctly interpreted and applied the law to those facts. State v. Nixon, 2013 MT 81, ¶ 15, 369 Mont. 359, 298 P.3d 408. A court’s determination that particularized suspicion exists is a question of fact, which we review for clear error. State v. Gill, 2012 MT 36, ¶ 10, 364 Mont. 182, 272 P.3d 60. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the lower court has misapprehended the effect of the evidence, or if our review of the record leaves us with a definite and firm conviction that a mistake has been made. State v. Cooper, 2010 MT 11, ¶ 5, 355 Mont. 80, 224 P.3d 636. DISCUSSION ¶10 Pursuant to § 46-5-401(1), MCA, “a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.” 6 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. Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842. Where a defendant has filed a motion challenging the legality of a stop, the State must show that there was objective data from which the officer could make inferences and deductions of some sort of criminal activity. State v. Clark, 2009 MT 327, ¶ 12, 353 Mont. 1, 218 P.3d 483. Whether particularized suspicion exists is evaluated under the totality of the circumstances confronting the officer at the time of the stop, and requires consideration of the quantity or content of the information available to the officer and the quality or degree of reliability of that information. City of Missoula v. Moore, 2011 MT 61, ¶ 16, 360 Mont. 22, 251 P.3d 679; Clark, ¶ 12. The officer’s experience and training are not the defining element of this analysis; they are only a factor in determining what sort of reasonable inferences the officer is entitled to make from his or her objective observations. Brown, ¶ 20. ¶11 We clarified in State v. Flynn, 2011 MT 48, 359 Mont. 376, 251 P.3d 143, that the inquiry turns on what the officer knew, observed, or suspected at the time of the stop, and not what the defendant subsequently testifies to. We stated: A defendant’s subsequent, valid explanation for conduct that objectively appeared suspicious may affect his or her ultimate liability for a charged offense, but it cannot affect the validity of a stop properly based on particularized suspicion. The particularized suspicion inquiry is a fact based assessment of the objective quantity, content and reliability of information available to the officer. An officer in the field need not 7 consider every possible innocent explanation or legal exception before concluding that particularized suspicion exists. Flynn, ¶ 11 (emphasis in original, citations and internal quotation marks omitted). ¶12 Moreover, while a statutory violation alone is sufficient to establish particularized suspicion for an investigative stop, it is not necessary that an officer observe a moving violation in order to support a particularized suspicion of driving under the influence. State v. Schulke, 2005 MT 77, ¶¶ 16-17, 326 Mont. 390, 109 P.3d 744; State v. Brander, 2004 MT 150, ¶ 6, 321 Mont. 484, 92 P.3d 1173. We do not require an officer to identify a particular statutory violation or cite a defendant for a moving violation to establish a particularized suspicion. Schulke, ¶ 18 (“the fact that Schulke was not cited for anything beyond DUI and minor in possession of alcohol does not destroy the officer’s particularized suspicion to make a stop based upon erratic driving”). The question, in other words, is not whether any one of the defendant’s driving aberrations was itself illegal; rather, it is whether the officer can point to objective and articulable facts which, taken together, with reasonable inferences that may be drawn therefrom, warranted a suspicion of criminal wrongdoing. Weer v. State, 2010 MT 232, ¶ 10, 358 Mont. 130, 244 P.3d 311; Brander, ¶ 6; Brown, ¶ 20. ¶13 Wagner argues that the absence of any erratic driving depicted in the patrol car video contradicts Davis’s testimony that Wagner drove his vehicle erratically. Wagner maintains that the District Court gave Davis’s testimony “preferential treatment” and that, when compared to this Court’s other cases involving investigative stops, Wagner’s driving does not rise to the level needed to establish particularized suspicion. 8 ¶14 The State, on the other hand, argues that Davis possessed particularized suspicion of an offense in light of Wagner’s erratic driving, which was indicative of driving under the influence of alcohol or drugs in violation of § 61-8-401 or -406, MCA, as well as Wagner’s failure to operate his vehicle as nearly as practicable entirely within a single lane of travel in violation of § 61-8-328(1), MCA. The State further maintains that the absence of video evidence of Wagner’s impaired driving (prior to Davis’s activation of his overhead lights) does not defeat Davis’s particularized suspicion. ¶15 We agree with the State that the circumstances observed by Davis at the time supported a particularized suspicion to conduct an investigative stop of Wagner’s vehicle. As an initial matter, we note that it is not this Court’s function, on appeal, to reweigh conflicting evidence or to substitute our evaluation of the evidence for that of the trial court. State v. Deines, 2009 MT 179, ¶ 20, 351 Mont. 1, 208 P.3d 857. We defer to the trial court in cases involving conflicting testimony because we recognize that the court had the benefit of observing the demeanor of witnesses and rendering a determination of the credibility of those witnesses. Deines, ¶ 20. ¶16 In the instant case, the District Court specifically noted that it found Davis’s testimony credible and Wagner’s testimony lacking credibility. Davis testified that he first observed Wagner’s vehicle at around 2:40 a.m. The vehicle was straddling the two southbound lanes of travel for 500 to 600 feet. It then drifted into the left lane without signaling. After about a quarter mile, the vehicle signaled and moved into the right lane. The vehicle weaved back and forth as it proceeded southbound in the right lane. It crossed the dividing line on two occasions and the fog line on one occasion. These 9 objective and articulable facts, taken together, substantiated Davis’s suspicion that the driver, Wagner, might be impaired. Additionally, Davis’s testimony also substantiates that Wagner violated § 61-8-328(1), MCA, which required him to operate his vehicle “as nearly as practicable entirely within a single lane.” Davis testified that there were no obstructions or roadwork that would have prevented Wagner from traveling in one lane. We conclude, therefore, that the District Court, upon accepting Davis’s testimony as credible, correctly determined that Davis had a particularized suspicion to justify the stop of Wagner’s vehicle. ¶17 Regarding the absence of video evidence of erratic driving, we have previously concluded that “there is no reason to view with distrust the failure of a police officer to record events creating particularized suspicion for a traffic stop.” Deines, ¶ 23. The absence of video evidence does not negate the sworn statements of a peace officer, whom the trial court finds credible, concerning his observations in the field. Deines, ¶¶ 20-22. Hence, the District Court’s determination that Davis’s sworn statements established a particularized suspicion, notwithstanding the absence of video evidence, was not clearly erroneous. CONCLUSION ¶18 We conclude that there were sufficient facts for Davis to form a particularized suspicion that Wagner was committing an offense and, thus, to initiate an investigative stop. Accordingly, the District Court did not err in denying Wagner’s motion to suppress. ¶19 Affirmed. 10 /S/ LAURIE McKINNON We Concur: /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ BRIAN MORRIS /S/ JIM RICE | June 18, 2013 |
37ad1f01-4a29-4258-a5d9-75ee0acd30cc | Marriage of Fenwick | 2013 MT 104N | DA 12-0419 | Montana | Montana Supreme Court | DA 12-0419 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 104N IN RE THE MARRIAGE OF JULIA FENWICK, Petitioner and Appellee, and DAVID FENWICK, Respondent and Appellant. APPEAL FROM: District Court of the Second Judicial District, In and For the County of Silver Bow, Cause No. DR 09-98 Honorable Kurt Krueger, Presiding Judge COUNSEL OF RECORD: For Appellant: David Fenwick (self-represented), Butte, Montana For Appellee: Palmer A. Hoovestal, Hoovestal Law Firm, Helena, Montana Submitted on Briefs: March 27, 2013 Decided: April 16, 2013 Filed: __________________________________________ Clerk April 16 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 The parties were married in 1986 and have three children, who are emancipated. David appeals from the District Court’s decree of dissolution and property division entered June 6, 2012. We affirm. ¶3 David contends that the District Court erred by not including property in a family trust in the marital estate, by failing to equitably distribute the marital assets, and by failing to require Julia to provide a final declaration of disclosure. ¶4 The parties established the Fenwick and Sons Family Trust to provide an inheritance for their children, with Julia and her mother as co-trustees. The Trust assets include several parcels of real property as well as some cash contributed by Julia’s grandmother and personal property. Julia retains a life estate in one of the houses. David contends that the Trust is revocable and that therefore the assets should be attributed to Julia in the property division. There is substantial evidence in the testimonial record that the Trust is independent and irrevocable. The Trust’s current terms were negotiated by David and his attorney, with Julia’s attorney. Changes in the Trust documents were implemented during the course of this proceeding to address David’s concerns about these same issues. The District Court 3 determined that the Trust is a valid and independent trust and ordered that the Trust assets “shall remain within the family trust” subject to its terms and conditions. ¶5 The issue of whether trust assets are marital property depends upon the circumstances of the trust, including whether it is revocable, whether it is for the present or future benefit of the beneficiaries, and whether the intent to create the trust is clearly ascertainable. In re the Marriage of Malquist, 227 Mont. 413, 415, 739 P.2d 482, 484 (1987). In a proceeding for dissolution of marriage the District Court is in the best position to hear the evidence, weigh the testimony, and exercise discretion on the issue of the disposition of a trust. In re Marriage of Epperson, 2005 MT 46, ¶ 23, 326 Mont. 142, 107 P.3d 1268. The District Court did not abuse its discretion by refusing to attribute the Trust’s assets to Julia. ¶6 David also contends that the District Court erred in the division of the parties’ marital property. Pursuant to § 40-4-202, MCA, a district court has broad discretion to distribute marital property equitably according to the circumstances. This Court will affirm a district court’s decision dividing marital property unless the findings are clearly erroneous or there has been an abuse of discretion. In re Marriage of Gerhart, 2003 MT 292, ¶¶ 15-16, 318 Mont. 94, 78 P.3d 1219. ¶7 The District Court listed each parcel of real property included in the marital estate, found that there were no mortgages on any of them, and awarded all of the parcels except one to David. The District Court awarded each party the personal property and household items then in their possession and made each party responsible for the marital debts then in 4 each party’s name. This included a $600,000 deficiency judgment against Julia arising from property in Idaho, and back tax obligations on the one piece of real property awarded to her. ¶8 David has not demonstrated that the District Court’s findings were clearly erroneous, nor has he demonstrated that the District Court abused its discretion in dividing the marital property. ¶9 David contends that Julia did not make a full financial disclosure during the dissolution proceedings and that the District Court erred by proceeding without such a disclosure. The District Court specifically concluded that the parties had fully disclosed their assets, income, and expenses, and that they had waived any further disclosures pursuant to § 40-4-253, MCA. That statute requires each party to serve a final declaration of income, expenses, and assets prior to trial. There is no provision for waiving the disclosures required by that statute. The District Court’s conclusion that the parties had waived further financial disclosures must be read in the context of the fact that the District Court also concluded that both parties had made full disclosures. ¶10 David does not contend that he requested any further disclosures from Julia and does not describe any disclosures that she failed to make. Therefore, we conclude that David cannot now on appeal contend that the District Court erred in not requiring further disclosures that he did not request below. ¶11 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 5 factual findings are supported by substantial evidence and there was clearly not an abuse of discretion. ¶12 Affirmed. /S/ MIKE McGRATH We concur: /S/ BETH BAKER /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ JIM RICE | April 16, 2013 |
193f1d1a-c55f-4f1f-b658-9d11f1f2bf37 | Parenting of O.M.C. | 2013 MT 98N | DA 12-0537 | Montana | Montana Supreme Court | DA 12-0537 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT IN THE PARENTING OF O.M.C., A Minor Child. WHITNEY GRANT, Petitioner and Appellant, v. CHRIS CARNAHAN, Respondent and Appellee. APPEAL FROM: District Court of the Seventeenth Judicial District, In and For the County of Phillips, Cause No. DR 12-01 Honorable John C. McKeon, Presiding Judge April 15 2013 2 COUNSEL OF RECORD: For Appellant: Lindsay Lorang; Lorang Law, PC; Havre, Montana For Appellee: Peter L. Helland; Helland Law Firm; Glasgow, Montana Submitted on Briefs: April 3, 2013 Decided: Filed: __________________________________________ Clerk 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by noncitable opinion and does not serve 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 The Seventeenth Judicial District Court entered a decree in August of 2012 establishing a parenting plan with respect to O.M.C., the minor child of Whitney Grant and Chris Carnahan. Whitney appeals, arguing that the final parenting plan was not supported by substantial evidence and is not in the best interests of O.M.C. We affirm. ¶3 The parties lived together in Malta, Montana, for about four years and, in May of 2007, Whitney gave birth to their son, O.M.C. The parties separated in February of 2011, after which they initially shared residential parenting equally. In June of 2011, they agreed that Chris’s residential parenting through September would be approximately every other weekend, so that he could participate in the summer drag racing circuit. After that time, they did not go back to the previous schedule. ¶4 In January 2012, Whitney petitioned the District Court to establish a parenting plan. She asked to be designated as O.M.C.’s primary residential parent and notified the court of her intent to move to Idaho with O.M.C. to live with her boyfriend. Chris responded with a proposed parenting plan under which he would be O.M.C.’s primary residential parent “whether Whitney moves to Idaho or remains in Malta.” 3 ¶5 After a hearing, the District Court determined that each parent has a good relationship with O.M.C. The court found that moving to Idaho for the school term would not be in O.M.C.’s best interests. It adopted the plan proposed by Chris, with modifications. Under the modified plan, O.M.C. will live with Chris during the school year and during the first week following the end of the school year and the last week of summer vacation from school. O.M.C. will live with Whitney during the summer. Whitney also shall have O.M.C. every other week during the school year from Wednesday at 6 p.m. until Sunday at 6 p.m., which shall occur in the Malta area if she moves to Idaho. Holidays will be alternated. The court stated that plan was in O.M.C.’s best interests and that it “provides the opportunity for equal residential parenting should [Whitney] decide to stay in the Malta area.” ¶6 After the District Court issued its order adopting the final parenting plan, Whitney advised the court that she no longer intended to move to Idaho. On appeal, she contends the District Court erred by ordering a parenting plan which substantially changed the residential schedule of the interim parenting plan, by failing to make specific findings for forming a change in the custodial schedule, and by failing to make findings as to why it was not in O.M.C.’s best interest to remain in her primary care if she remained in Malta. ¶7 The issues raised in this appeal are governed by review standards that call for great deference to a trial court’s determinations. A district court has “broad discretion when considering the parenting of a child. ‘Child custody cases often present the court with difficult decisions. We must presume that the court carefully considered the evidence and made the correct decision.’” In re Marriage of Tummarello, 2012 MT 18, ¶ 34, 363 Mont. 387, 270 P.3d 28 (quoting In re Parenting of N.S., 2011 MT 98, ¶ 18, 360 Mont. 288, 253 P.3d 863). ¶8 The standard of review for a parenting plan is whether the district court abused its discretion in 4 reaching the conclusions it did. Tummarello, ¶ 21. Furthermore, judgments regarding the credibility of witnesses and the weight to be given their testimony are within the province of the District Court, and we will not substitute our judgment for its determinations. Tummarello, ¶ 34. ¶9 As is often the case in decisions regarding parenting plans, the parties presented conflicting evidence at the hearing before the District Court. Given the deference that we appropriately give to district courts in cases such as this, we find no basis on which to reverse the decision here. It is not the appellate court’s prerogative to determine in the first instance what is an appropriate parenting plan for the parties’ child. Having observed and listened to the parties and heard the evidence, Judge McKeon was in the best position to judge O.M.C.’s best interests. His findings are supported by substantial evidence in the record. Though Whitney expresses concern that a period of ten days between visits between a mother and her young child is too long, the parenting plan allows the parties to agree to additional visitation, and they should do so when it is in the child’s best interests. Especially in light of the court’s encouragement of the parties to agree to equal residential parenting if Whitney stays in Malta, the parenting plan is consistent with the statutory preference for “frequent and continuing contact with both parents.” Section 40-4-212(1)(l), MCA. ¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for noncitable opinions. This appeal presents no constitutional issues or issues of first impression. It does not establish new precedent or modify existing precedent. In our opinion, it would not be of future guidance for citation purposes to the citizens of Montana, the bench, or the bar. The District Court did not abuse its discretion in adopting the parenting plan. The District Court’s order for final parenting plan filed August 9, 2012, is affirmed. 5 /S/ BETH BAKER We concur: ________________________________ Chief Justice ________________________________ ________________________________ ________________________________ Justices | April 15, 2013 |
b338ed1d-b368-4f93-a99a-d3f889b8570f | State v. Torres | 2013 MT 101 | DA 12-0212 | Montana | Montana Supreme Court | DA 12-0212 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 101 STATE OF MONTANA, Plaintiff and Appellee, v. ZACHARIAH TORRES, Defendant and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 09-258(A) Honorable Stewart E. Stadler, Presiding Judge COUNSEL OF RECORD: For Appellant: Brian K. Gallik; Goetz, Gallik & Baldwin, P.C.; Bozeman, Montana Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, Washington For Appellee: Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant Attorney General; Helena, Montana Ed Corrigan, Flathead County Attorney; Alison Howard, Travis Ahner, Deputy County Attorneys; Kalispell, Montana Submitted on Briefs: January 3, 2013 Decided: April 16, 2013 Filed: __________________________________________ Clerk April 16 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Zachariah Torres appeals a judgment of the Eleventh Judicial District Court after a Flathead County jury convicted him of aggravated assault, burglary, criminal endangerment, and assault on a peace officer, all felonies. We consider the following issues on appeal: ¶2 1. Was the aggravated assault conviction supported by sufficient evidence? ¶3 2. Was the burglary conviction supported by sufficient evidence? ¶4 3. Should the Court exercise plain error review of Torres’s argument that the convictions for aggravated assault and criminal endangerment violated statutory and constitutional double jeopardy protections? ¶5 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶6 On May 28, 2009, Zachariah Torres (Torres) and his wife, Grendy Torres, got into an argument at their Whitefish, Montana, home. Torres had discovered that Grendy was taking money from him and his family and sending it to her family in her home country of Costa Rica. At some point during the argument, Grendy left for the home of her coworker, Marina Sunell. Torres came to Marina’s house looking for Grendy and knocked on Marina’s door. Marina refused to open the door and called 911. When police arrived, Torres was not present and Grendy and Marina were reluctant to speak with the officers. After the police left, Torres returned and resumed ringing the doorbell and knocking on the door. Grendy followed Marina’s instructions to go upstairs. Torres broke down the door, entered Marina’s home, found Grendy, and left with her. Marina 3 again called 911 and reported that Torres had broken down her door and taken Grendy. When officers arrived, they found Marina “very upset.” She told them Torres had grabbed Grendy “like a piece of rag” and dragged her from the house. ¶7 Torres and Grendy got into Torres’s Subaru and began driving toward their residence. They continued to argue as Torres drove. During the trip, Grendy hit her head on the windshield, causing a small crack in the glass. Torres then punched the windshield, causing a second, larger break. ¶8 When Torres and Grendy arrived home, Grendy went to their upstairs bedroom. Torres retrieved a Glock .45 from his truck and followed Grendy upstairs, pointing the gun at his own head. As officers who had been dispatched in response to Marina’s second 911 call approached, they heard a muffled gunshot from the direction of the Torres residence. Torres had opened the sliding glass door from their bedroom and fired a shot at the ground. ¶9 When officers arrived and surrounded the Torres property, Torres’s younger brother came out of the house. He told the officers that Torres and Grendy were arguing, told them Torres had a Glock .45, and provided Torres’s phone number. An officer called the number and identified himself. A male voice reportedly answered the phone, said “go fuck yourself,” then hung up. The police could hear Torres and Grendy arguing in Spanish upstairs and heard Grendy yelling “no, no, don’t,” “stop,” and “quit.” One officer reported hearing Torres use the Spanish words for “kill” and “die.” Officers then heard a male voice yell something to the effect of, “come in and get me you fucking 4 pussies, I’ll blow your heads off,” which they took to be a threat. Officer Stan Ottosen was standing on the top of a trailer in order to get a better view inside the home. Torres saw Officer Ottosen aiming a rifle in his direction and closed the sliding glass door. Torres then fired a second shot that hit the top of the sliding glass door, shattered the glass, and passed above the officers’ heads. ¶10 Shortly thereafter, Grendy came out of the house and was taken into custody. Officers testified that she was frantic, crying and shaking, and left the house at a fast-paced walk or jog. Torres remained inside the house and fired a third shot into the bedroom floor. He then surrendered himself to police. ¶11 Officer Dorothy Browder took Grendy to the Flathead County Sheriff’s Office, where the two spoke as they awaited the arrival of a detective. Grendy stated in English that Torres told her he wanted to show people he had a big gun. She also stated that she had been afraid she would die that night and wanted help returning to Costa Rica. ¶12 An officer also interviewed Torres at the station. Torres said that Grendy did not seem to want to leave Marina’s house that day and acknowledged that she may have said so, but said that he grabbed her firmly by the arm and led her to the car. He stated that he had not harmed anyone and did not believe there was any reason for law enforcement to become involved in the situation. When asked about his use of the firearm, he explained that he fired the first shot because he wanted Grendy to understand the severity of the situation she had caused. He also grabbed Grendy and held her close because Officer Ottosen was pointing a rifle at the house and Torres was “unsure of the situation.” He 5 stated that the second and third shots were accidental and not directed at the officers or at anyone else. He said he was not intending to hurt himself, but was trying to send a message to Grendy that this was a “serious situation.” ¶13 On May 29, 2009, the following day, Grendy provided a full statement to Detective Kirby Adams and Deb Knaff, a victim’s advocate. She stated that Torres had taken her from Marina’s home against her will. She also stated that, while driving in the Subaru, Torres had been hitting her and pushed her head into the windshield, causing the first small crack. He then punched the windshield in frustration and anger, causing the larger break. ¶14 At Torres’s January 2011 jury trial, however, Grendy provided a different account of those events. Grendy testified that she willingly departed Marina’s house with Torres and that they were holding hands as they left. Marina similarly changed her account at trial. Asked whether Grendy left the house willingly or by force, she responded, “half and half.” Grendy also changed her account of the events that occurred while driving in the Subaru. She testified that she had been “pushing [Torres], hitting him and pulling him” and that she “slipped from pulling and hit her head” on the windshield, since she was not wearing a seatbelt. She testified that Torres then punched the windshield because he “felt bad because I hit my head[.]” A copy of Torres’s interview was entered into evidence and played for the jury. ¶15 On January 14, 2011, following five days of trial, the jury convicted Torres of four felonies: aggravated assault, burglary, criminal endangerment, and assault on a peace 6 officer. On February 7, 2012, the District Court entered judgment and sentenced Torres to eight years in prison with five years suspended. Torres appeals. STANDARD OF REVIEW ¶16 We review de novo whether sufficient evidence supports a conviction. State v. Trujillo, 2008 MT 101, ¶ 8, 342 Mont. 319, 180 P.3d 1153 (citing State v. Swann, 2007 MT 126, ¶ 19, 337 Mont. 326, 160 P.3d 511). We view the evidence in the light most favorable to the prosecution and determine whether “any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt.” Trujillo, ¶ 8 (citing State v. Gladue, 1999 MT 1, ¶ 34, 293 Mont. 1, 972 P.2d 827). On direct appeal, “the appellant is limited to those issues that were properly preserved in the district court and to allegations that his or her sentence is illegal.” State v. Rosling, 2008 MT 62, ¶ 76, 342 Mont. 1, 180 P.3d 1102 (citations omitted). DISCUSSION ¶17 1. Was the aggravated assault conviction supported by sufficient evidence? ¶18 Torres mounts two challenges to the sufficiency of evidence supporting his conviction for aggravated assault. First, he contends that the prosecution improperly combined separate incidents to accumulate proof of all the elements of aggravated assault. Torres points out that neither the charging documents nor the State’s case at trial clarified which specific events gave rise to the charge. He divides his course of conduct on the evening of May 28, 2009, into three episodes: (1) the events at Marina’s home; (2) the events in the Subaru; and (3) the events at the Torres home. He contends that the 7 three episodes may not be viewed together to comprise the crime because aggravated assault is not a “continuous” offense. He argues that none of the three events considered in isolation yielded sufficient evidence at trial to prove the crime’s elements. The State responds that “the continuous events that started when Torres broke down Marina’s door and took Grendy away and ended when Grendy left her home” could be viewed together in support of the aggravated assault charge. Torres argues, secondly, that regardless of how the events are viewed, the State’s case at trial rested on uncorroborated prior inconsistent statements that are legally insufficient to sustain his conviction. ¶19 Under § 45-5-202(1), MCA, “[a] person commits the offense of aggravated assault if the person purposely or knowingly causes serious bodily injury to another or purposely or knowingly, with the use of physical force or contact, causes reasonable apprehension of serious bodily injury or death in another.” The State argued in closing that the aggravated assault occurred when Torres employed a firearm while he was in the bedroom with Grendy: And with regard to aggravated assault – and that’s with regard to his wife – you have to find that the Defendant intentionally or knowingly caused reasonable apprehension of serious bodily injury or death. And the first point here is the State would submit that when we’re talking serious bodily injury or death, we’re talking that possibility when we bring in a loaded handgun. ¶20 Torres argues that there was insufficient evidence that he used force or caused Grendy reasonable apprehension of serious bodily injury or death while in the bedroom. He notes that, according to Grendy’s trial testimony, Torres “never hit her or threatened to do so in that room—instead, he was trying to kill himself.” Thus, Torres contends that 8 the testimony was insufficient to prove “any actions or force by [Torres] placing Grendy in reasonable apprehension that she herself would suffer serious bodily injury or death[.]” We conclude that a reasonable juror could find sufficient evidence of aggravated assault based on evidence of what occurred at the Torres residence. ¶21 Officer Browder testified that Grendy willingly left the Torres residence to approach law enforcement and was crying and upset as she was transported to the police station. As Officer Browder kept Grendy company until a detective arrived, Grendy told the officer that she was very afraid she was going to die that night, asked for help in returning to Costa Rica, and expressed fear of having any further contact with Torres. When asked whether she would like to stay with Marina that night, Grendy expressed concern about what would happen if Torres came there. Though Officer Browder told Grendy that Torres would be in jail and could not come find her, Grendy decided to stay at a hotel that night. ¶22 The next day, Grendy told police that once she and Torres reached their house, Torres told her he would kill her and would also kill himself. Torres retrieved his Glock .45 and brought it upstairs to “show that he had a big gun.” Grendy told the officers that Torres “wanted to kill” and that she was afraid she would die. When Torres broke down and started to cry, she “talk[ed] nice to him” and he let her leave. She stated that she ran from the house at that point. Torres acknowledged to police that he fired the gun intentionally to get Grendy’s attention and that he held onto her while they were in the bedroom, though ostensibly because he was concerned about the police outside. 9 ¶23 When viewed in the light most favorable to the prosecution, this evidence is sufficient to establish the elements of aggravated assault. Torres contends, however, that Grendy’s prior inconsistent statements were not sufficiently corroborated by other evidence and that, without those statements, the evidence did not establish the elements of the offense. At trial, Grendy testified through an interpreter that she had lied to the police during those earlier statements. She stated that she placed the blame on Torres because she was afraid that she was being arrested and did not realize that criminal charges could be filed against Torres. She explained as follows: Well, because when I left the house that day there were so many police pointing to me that I thought that I was arrested. And they put a police car was that division when you are arrested [sic], and this is not my country, I don’t have money, and the easiest way for me was to say lies and that he – and that he had problems, not me. But at the same time in my culture and my way of thinking nobody is setting him with charges, that’s what I thought. And nothing that I said was true, and I thought that he was going to be in jail for three days and then that he was going to be out and that’s it, we were going to be together. At trial, she described herself as feeling tired and wanting to leave Marina’s home when Torres first knocked on the door, and testified that she walked out of the house holding his hand. She also testified that she was free to leave the bedroom of the Torres home, but did not leave due to her concern for Torres’s safety. She insisted that she had been afraid of the police that night, rather than afraid of Torres. Finally, she stated that she slept in a hotel on May 28 because she was embarrassed to return to the Torres residence after sending her husband to jail “for a bunch of stuff that was not true.” 10 ¶24 Torres relies on State v. White Water, 194 Mont. 85, 634 P.2d 636 (1981), and State v. Giant, 2001 MT 245, 307 Mont. 74, 27 P.3d 49, in arguing that insufficient evidence supports his conviction. In White Water, we held that a conviction could not be based solely on an uncorroborated prior inconsistent statement. 194 Mont. at 89, 634 P.2d at 639. The defendant was charged with sexual intercourse without consent based on the victim’s unsworn statement to police. White Water, 194 Mont. at 88, 634 P.2d at 638. At trial, however, the victim contested ever stating that penetration had occurred and testified that the sheriff had twisted her words in his written documentation of their conversation. White Water, 194 Mont. at 87-88, 634 P.2d at 637. Since there was no other evidence to establish the element of penetration, the prior inconsistent statement the victim made to the sheriff was “the only evidence upon which a conviction could be based.” White Water, 194 Mont. at 87, 634 P.2d at 637. Under such circumstances, we concluded that the evidence was legally insufficient to find guilt beyond a reasonable doubt and required dismissal of the case. We discussed the rationale behind Fed. R. Evid. 801(d)(1)(A), which permits the admission of prior inconsistent statements: In many cases, the inconsistent statement is more likely to be true than the testimony of the witness at the trial because it was made nearer in time to the matter to which it relates and is less likely to be influenced by the controversy that gave rise to the litigation. The trier of fact has the declarant before it and can observe his demeanor and the nature of his testimony as he denies or tries to explain away the inconsistency. Hence, it is in as good a position to determine the truth or falsity of the prior statement as it is to determine the truth or falsity of the inconsistent testimony given in court. 11 White Water, 194 Mont. at 89, 634 P.2d at 638 (quoting Advisory Committee’s Note to Fed. R. Evid. 801(d)(1)(A)). As we explained in White Water, the Rule does not address the sufficiency of evidence to send a case to the jury, but merely its admissibility. 194 Mont. at 89, 634 P.2d at 639. We held that the charges properly were dismissed because the prior inconsistent statement provided the sole evidence of one essential element of the offense. White Water, 194 Mont. at 88-89, 634 P.2d at 638-39. ¶25 In Giant, we further clarified that sufficient corroboration of a prior inconsistent statement could not be found in other evidence that, by itself, could not constitute sufficient evidence of guilt. Giant, ¶¶ 39-40. A woman who had been assaulted in her home initially identified her husband as the assailant. A warrant was issued for her husband’s arrest and he fled from Montana for four months before turning himself in to law enforcement. Giant, ¶¶ 4-5. When the victim testified at trial that the assailant was her son and not her husband, the State attempted to corroborate her prior inconsistent statement through other evidence. We concluded that the husband’s flight was the only evidence presented to independently corroborate the victim’s initial identification of him as the assailant. Because “flight evidence cannot be the sole basis of guilt,” Giant, ¶ 38, it could not serve to corroborate the prior statement. “Holding that two forms of evidence, each unreliable in its own right, nonetheless, when taken together, are sufficient to prove guilt beyond a reasonable doubt, accords the sum of the evidence a characteristic trustworthiness that neither of its constituent parts possesses.” Giant, ¶ 39. 12 ¶26 By contrast, when independent evidence corroborates a prior statement, the fact-finder may use that evidence in evaluating witness credibility and decide which statement is believable. State v. Finley, 2011 MT 89, ¶¶ 31-32, 360 Mont. 173, 252 P.3d 199. In that instance, the holding of White Water is inapplicable. In Finley, the defendant was charged with partner or family member assault based on his wife’s statements to the police. She retracted those statements at trial, testifying that she disliked that her husband was drunk and had fabricated a story so that the police would remove him from the home. Finley, ¶ 12. We recognized that White Water did not apply because the prior statement was corroborated by other evidence of the assault—the victim’s 911 call, physical evidence of assault within her home, and testimony of police officers regarding her appearance and demeanor immediately following the incident. Finley, ¶ 32. ¶27 Torres seems to suggest that the prior statements should not even be considered in reviewing the sufficiency of the evidence, but Montana law unquestionably permits such statements to be admitted as substantive evidence. Giant, ¶ 16; White Water, 194 Mont. at 88-89, 634 P.2d at 638. Prior inconsistent statements properly are considered in determining whether the evidence is sufficient to sustain the conviction; they just cannot be the sole evidence to prove an element of the offense. White Water, 194 Mont. at 88-89, 634 P.2d at 638-39. Nor may the necessary corroboration be supplied only by other evidence that is not sufficient to prove guilt. Giant, ¶ 39. In this case, for example, if Marina’s prior inconsistent statement were the only evidence corroborating Grendy’s 13 prior inconsistent statements, Giant might be more analogous. As long as each element of the offense finds support in some independent, reliable evidence of guilt besides the prior statement, however, corroboration will be sufficient. ¶28 During Torres’s trial, the State played portions of the video recordings of both interviews of Grendy with the sound turned off so that the jury could observe her demeanor immediately following the incident. The State also played the video recording of Officer Browder’s interview with Torres, which corroborated several portions of Grendy’s prior statements. Torres admitted that Grendy did not want to leave Marina’s house and that he grabbed her firmly by the arm and led her to the car. Torres’s statements also established that he had physical contact with Grendy, holding her while in the bedroom with a powerful weapon in his hand. The evidence was undisputed that Torres intentionally fired shots from the bedroom. Torres reiterated several times in his statement to police that he shot the first bullet to make Grendy realize the “seriousness” of the situation “she had caused.” The officers testified about their observations of Grendy’s behavior and demeanor when she left the house, which indicated that she was very upset and afraid for her safety. And Grendy stayed in a hotel that night rather than returning home. Each of these pieces of evidence bears on an element of aggravated assault and corroborates Grendy’s prior inconsistent statements. The jury had to consider the evidence as a whole in evaluating which version of events was accurate and whether Grendy’s reasons for changing her account were believable. 14 ¶29 This case is similar to Finley. Grendy retracted her previous statements and testified that she had lied in order to place blame on her husband, rather than on herself. The jury, however, considered her testimony in light of conflicting evidence that corroborated her previous version of events. The admission of Grendy’s prior inconsistent statements as substantive evidence of Torres’s guilt also served the purpose of Mont. R. Evid. 801(d)(1)(A)—the jury could observe Grendy’s “demeanor and the nature of [her] testimony as [she] denie[d] or trie[d] to explain away the inconsistency” and was “in as good a position to determine the truth or falsity of the prior statement as it [was] to determine the truth or falsity of the inconsistent testimony given in court.” White Water, 194 Mont. at 89, 634 P.2d at 638. ¶30 For the foregoing reasons, we conclude that there was sufficient evidence of aggravated assault. A reasonable jury could find that Torres used force when he fired the first gunshot in order to impress upon Grendy the seriousness of the situation. Grendy told the police that Torres’s conduct caused her to be afraid that she would die that night. Her fear was reasonable under the circumstances: Torres had broken down Marina’s door, allegedly forced Grendy to leave Marina’s home, told her that he would kill her and himself, pushed Grendy’s head into the windshield of the Subaru, and punched the windshield—all before retrieving his Glock .45 and firing a shot. We have clarified that when a weapon is employed under § 45-5-202(1), MCA, “[i]t is only necessary that the evidence show that the weapon was used in such a manner at the time and place and on that victim so that serious bodily injury was capable of being inflicted.” State v. George, 15 203 Mont. 124, 129, 660 P.2d 97, 100 (1983) (quoting State v. Klemann, 194 Mont. 117, 122, 634 P.2d 632, 636 (1981)). Based on the evidence presented at trial, including Grendy’s prior inconsistent statements, a reasonable jury could have found that standard was met when Torres fired the first gun shot. ¶31 Torres’s argument that the State combined separate events to pull together enough evidence for an aggravated assault charge is unavailing. The elements of the offense were established by Torres’s conduct inside the home. The events at Marina’s house and in the Subaru certainly were not isolated incidents or removed from what occurred later, but contributed to the reasonableness of Grendy’s apprehension or fear of serious bodily injury or death. They did not, however, result in the charging of aggravated assault as a “continuous offense.” There was sufficient evidence to support the conviction. ¶32 2. Was the burglary conviction supported by sufficient evidence? ¶33 For the same reasons, we conclude that there was sufficient evidence for a reasonable jury to find the elements of burglary beyond a reasonable doubt. Under § 45- 6-204, MCA, a person “commits the offense of burglary if the person knowingly enters or remains unlawfully in an occupied structure and: (a) the person has the purpose to commit an offense in the occupied structure; or (b) the person knowingly or purposely commits any other offense within that structure.” The Information charged Torres with knowingly entering and remaining unlawfully in Marina’s residence with the intent to commit “Unlawful Restraint and/or Assault” therein. A person commits unlawful restraint “if the person knowingly or purposely and without lawful authority restrains 16 another so as to interfere substantially with the other person’s liberty.” Section 45-5-301, MCA. ¶34 Torres argues that there was no evidence that he committed either assault or unlawful restraint, or that he intended to do so after breaking down the door to Marina’s home. According to Torres’s statement and Grendy’s initial statement to the police, however, Grendy did not want to leave Marina’s home. The following exchange was played for the jury: Adams: . . . would you say that she left with you willingly? Did she want to leave with you? Torres: No. Adams: She didn’t? Torres: Uh-uh. Adams: She wanted to stay there. You made her leave. Torres: Yeah. Adams: And you think you have that right. Torres: Yes. Adams: Because you’re her husband. Torres: Uh-huh. This statement is not only direct evidence that Torres intended to commit unlawful restraint, but as discussed, also corroborates Grendy’s prior statement that she was forced by Torres to leave. A reasonable juror could conclude on the basis of both statements that Torres “interfered substantially” with Grendy’s liberty. Thus, the jury could 17 conclude that he knowingly entered and remained unlawfully in Marina’s residence with the intent to commit unlawful restraint therein. Section 45-6-204, MCA. ¶35 3. Should the Court exercise plain error review of Torres’s argument that the convictions for aggravated assault and criminal endangerment violated statutory and constitutional double jeopardy protections? ¶36 Under § 45-5-207(1), MCA, “[a] person who knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another commits the offense of criminal endangerment.” Torres argues that the elements of criminal endangerment are included in those of aggravated assault. Convicting him of both offenses, “at the same time and place, against the same victim, based on the same single discharge and the same intent,” he argues, violates Montana’s statutory double jeopardy clause protection as well as the double jeopardy clauses of the Montana and U.S. Constitutions (emphasis added). ¶37 Torres acknowledges that he did not raise the double jeopardy claim before the District Court. This Court ordinarily does not consider issues raised for the first time on appeal. State v. Longfellow, 2008 MT 343, ¶ 19, 346 Mont. 286, 194 P.3d 694. We may, however, discretionarily review a claimed error under the plain error doctrine if the appellant: (1) show[s] that the claimed error implicates a fundamental right and (2) ‘firmly convince[s]’ this Court that failure to review the claimed error would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial or proceedings, or compromise the integrity of the judicial process. 18 State v. Norman, 2010 MT 253, ¶ 17, 358 Mont. 252, 244 P.3d 737 (citing State v. Taylor, 2010 MT 94, ¶¶ 14-17, 356 Mont. 167, 231 P.3d 79 and State v. Finley, 276 Mont. 126, 137, 915 P.2d 208, 215 (1996)). The decision to invoke plain error review is a discretionary one that is used sparingly on a case-by-case basis. State v. Hayden, 2008 MT 274, ¶ 17, 345 Mont. 252, 190 P.3d 1091. ¶38 We have on numerous occasions declined to exercise plain error review of double jeopardy claims raised for the first time on appeal. See State v. LeDeau, 2009 MT 276, ¶ 18, 352 Mont. 140, 215 P.3d 672 (declining to review statute-based double jeopardy claim) (overruled in part on other grounds); State v. Minez, 2004 MT 115, ¶ 30, 321 Mont. 148, 89 P.3d 966 (same); State v. Becker, 2005 MT 75, ¶ 17, 326 Mont. 364, 110 P.3d 1 (explicitly declining to exercise plain error review of double jeopardy claim, but considering the issue instead in reviewing ineffective assistance of counsel claim). The State argues that Torres fails to demonstrate that the alleged error in this case is “plain” because “there are no Montana cases demonstrating that criminal endangerment is a lesser included offense of aggravated assault.” ¶39 We conclude that Torres has not demonstrated plain error since the criminal endangerment charge, unlike the charge for aggravated assault, was based on Torres’s conduct towards “others,” rather than being limited to Grendy. The Information charged that Torres “knowingly engaged in conduct that creates a substantial risk of death or serious bodily injury to others, namely law enforcement officers, Grendy Torres, and/or adjacent neighbors . . . .” At trial, the prosecution sought to prove that Torres’s use of the 19 Glock .45 endangered police and neighbors. In closing argument, the prosecution stated as follows: Lastly we have criminal endangerment, intentionally or knowingly creating a risk of serious bodily injury. Again, we’re talking a handgun and we’re talking bullets that go through glass and go through walls and go through people’s yards and neighbors’ yards where mailmen and kids and all sorts of people are, and we’re talking whether or not he’s creating a risk – either intentionally creating that risk or whether or not you should know when you start blasting towards houses that there’s a risk. ¶40 Thus, whether or not the elements of aggravated assault include the elements of criminal endangerment, charging both crimes was not plain error under the facts of this case since different victims were involved. ¶41 The judgment of the District Court is affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BRIAN MORRIS | April 16, 2013 |
63754c21-3617-44e5-809e-19824ffd9e76 | Johnston v. Centennial Log Homes & Furnishings, Inc. | 2013 MT 179 | DA 12-0405 | Montana | Montana Supreme Court | DA 12-0405 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 179 GREG JOHNSTON, ELVIRA JOHNSTON, ELVIRA JOHNSTON TRUST, Plaintiffs, Appellants and Cross-Appellees, v. CENTENNIAL LOG HOMES & FURNISHINGS, INC., RANDY TOAVS, JOSH HARMON, Defendants, Appellees and Cross-Appellants. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DV 09-322 Honorable C.B. McNeil, Presiding Judge COUNSEL OF RECORD: For Appellants: P. Bradford Condra; Milodragovich, Dale & Steinbrenner, P.C.; Missoula, Montana For Appellees: Todd A. Hammer, Angela K. Jacobs; Hammer, Hewitt, Jacobs & Quinn, PLLC; Kalispell, Montana Submitted on Briefs: March 6, 2013 Decided: July 8, 2013 Filed: __________________________________________ Clerk July 8 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Greg and Elvira Johnston and the Elvira Johnston Trust appeal an order of the Twentieth Judicial District Court, Lake County, granting summary judgment to Centennial Log Homes & Furnishings, Inc. (Centennial) on the Johnstons’ claims for negligence, breach of warranty and violations of the Montana Consumer Protection Act and Unfair Trade Practices Act. We consider the following issues on appeal: ¶2 1. Whether the District Court erred in concluding as a matter of law that the Johnstons’ claims are barred by the applicable statutes of limitations. ¶3 2. Whether the District Court erred in determining that the release executed by the Leonards is binding on the Johnstons. ¶4 3. Whether the District Court abused its discretion in granting the Johnstons’ motion to dismiss Keeko Log Homes, Ltd. as a defendant. ¶5 We reverse in part and remand the case for further proceedings. PROCEDURAL AND FACTUAL BACKGROUND ¶6 In 2001, Robert and Sandy Leonard purchased property in Bigfork, Montana. That same year, the Leonards entered into contracts with Centennial for the sale of a log home kit and construction of a custom log home on the property. After completion of the home—a three story residence with a loft floor and daylight basement—the Leonards moved in. By grant deed dated July 1, 2002, the Leonards granted 36% of the interest in the property to the Johnstons, who are Sandy Leonard’s parents. ¶7 In October or November, 2002, the Leonards observed that their wood floors had begun to “bubble,” heave and raise, and they discovered extensive mold underneath the flooring. The Leonards discussed these problems with the Johnstons and Greg Johnston 3 suggested that the Leonards hire an attorney. In an e-mail to the Leonards, Greg Johnston stated, “since I own 34% [sic] of the house, I could have a lawyer friend write a letter also to instill into Centennial that we mean business.” The Leonards hired Peter Leander to represent them and began to meet with him. The Johnstons did not attend those meetings. On December 16, 2002, Leander wrote a letter to Centennial’s counsel that provided a “non-inclusive” list of additional problems with the home, such as cracked tile grout in two bathrooms, a broken shower light, a missing soap dish, stairs that were not to code, and the splitting apart of the corner of the office wall. Sandy Leonard recalled during her May 6, 2011 deposition that she considered the items on this list to be “some minor things.” ¶8 On April 10, 2003, the Leonards executed a “General Release” in favor of Centennial, describing the Leonards’ “casualty” as: Defective construction of log home in Sunset Heights, Woods Bay, Lake County, Montana; mold infestation and eradication due to defective construction; bodily injury claims due to mold infestation. The Leonards released Centennial from “any and all” claims for damages, “asserted or unasserted, known or unknown, foreseen or unforeseen, arising out of the described casualty” and, as consideration, Centennial paid $6,000 to the Leonards, extinguished the remaining $59,704.13 due on their construction contract, and released the construction lien on the property. The release covered “all claims for defective construction or warranty arising out of the construction of the premises described above.” The release also covered future damages associated with the Leonards’ casualty: 4 Inasmuch as the damages and losses resulting from the events described herein may not be fully known and may be more numerous or more serious than it is now understood or expected, the Releasors agree, as further consideration of this agreement, that this Release applies to any and all injuries, damages and losses resulting from the casualty described herein, even though now unanticipated, unexpected and unknown, as well as any and all injuries, damages and losses which have already developed and which are now known or anticipated. The Leonards, Centennial and all of Centennial’s subcontractors were parties to the release. The Johnstons were not parties, though they held a 36% interest in the property at the time the release was signed. ¶9 On March 31, 2004, the Johnstons granted their 36% interest to the Elvira M. Johnston Trust (Johnston Trust). The following year, on April 5, 2005, the Leonards granted their 64% interest in the property to the Johnston Trust. ¶10 In 2004 and 2005, the Johnstons employed Innovative Builders to conduct routine maintenance of the log home. Innovative Builders provided a “punch-list” of repairs to be performed, which included leveling of the home, chinking and staining the exterior logs, repairing the exterior railing and stairway, repairing exterior rock around a post, and replacing a structure beam on the deck in front of the south garage. The Johnstons paid Innovative Builders approximately $50,000 to repair stairs, decks, and problems with settling of the logs. ¶11 The Leonards moved out in 2005 and the home was used as a rental. In 2007, James Johnson and his wife began renting the home. In the spring of 2008, the Johnsons observed that the logs within the home had begun to split in an unusual manner. Johnson, who had worked extensively in the construction and architectural design industries, 5 documented the progression of each occurrence. He observed that “the main support for the roof above the loft was twisting due to the shrinking and splitting of the surrounding support members” and determined that intervention was needed. ¶12 In April 2008, Guy Clare of Rocky Mountain Design inspected the home due to the excessive log cracking and post and beam movement in the loft area. He noted: . . . cracked and rotting handrails on the outside deck, and major exterior siding problems. The majority of the “cedar skirl” siding on the upper level of the home had begun to peel away from the wall from lack of proper fastening. The exterior stair posts had been set at ground level and moisture had begun to rot the lower section of each post. Clare advised the Johnstons to hire a structural engineer “because of the severity of the log splitting and structural movement of the log roof beams located at the upper loft.” ¶13 John Thomas of A2Z Engineering performed site visits on May 7, 2008 and May 21, 2008 to evaluate the home’s structural integrity and the impact of extensive checking on its structural performance. His report explained that “[l]og homes are inherently prone to maintenance, settlement, and checking issues. However, with proper construction techniques the impact of these issues can be greatly mitigated.” He outlined steps that generally are taken in the harvesting and drying of logs to mitigate checking—the splits in logs as they dry and shrink over time, which, Thomas described, “extend radially from the center of the log and widen as they approach the log’s exterior”—and concluded that these techniques likely had not been employed in construction of this home. Thomas noted that, according to the homeowners and tenants, significant interior checking had not occurred until the spring of 2008. He also noted that, between his May 7, 2008 and 6 May 21, 2008 visits, the checking had become “significantly more advanced.” He concluded that the logs had likely been sealed in a moist or “green” condition, which was consistent with delayed onset and rapid acceleration of the wood checking: During my site visit I observed significant checking of the majority of beam and column logs in the residence. The fact that this checking has occurred 6 years after the construction of the home suggests to me that the logs were processed and sealed in a moist or “green” condition. Because the logs were heavily sealed it would take a much longer time for the log to lose enough moisture to initiate checking. However, once checking began the log would then have an avenue to rapidly lose moisture through the check and further drying would then proceed rapidly. . . . Homeowner testimony of the windows breaking/jamming and multiple large screw jack adjustments add to the likelihood that high moisture content material was used. According to Thomas, there was no way to ascertain the moisture content of the logs if moisture samples were not taken at the time of construction. He discovered additional problems, including several connections along the ridge beam of the structure which were not code compliant, an intermediate valley support that appeared to push toward the ridge beam, creating potential for large roof deflections and failure of the roof under snow loads, and an inadequate header above the garage door, creating risk of significant structural collapse. ¶14 Based on Thomas’s recommendations, Clare of Rocky Mountain Design estimated the total repair cost to be $125,000, but clarified that the estimate pertained only to the “current problems that can be seen as of this writing.” He noted again that there had been “significant changes” to the interior logs of the home since his first visit in April 2008. 7 ¶15 In October 2008, A2Z Engineering conducted another structural evaluation, limited to the high glass gable wall facing the lake, the lower garage door header facing the lake, the main floor beam spanning into the header, and the ridge-splice support connection. The report revealed numerous areas of deficiency under the 1997 Uniform Building Code (UBC), applicable at the time of construction. The report concluded, among other things, that the lower floor garage header had twice the amount of “sag” permitted by the UBC, that the ridge beam splice connection had an “alarming likelihood of failure”—since no method had been used to secure the connection—and that the glass gable wall construction was inadequate to withstand a seismic event. ¶16 In December 2008, James Johnson discovered sheets of ice cascading down the exterior walls of the home. Water also was flowing down the interior walls, causing extensive flooding throughout the home, including the basement. Inspections performed by Rocky Mountain Design and A2Z Engineering revealed that a copper pipe running through the ceiling space beneath the home’s upper floor had ruptured. The pipe had frozen in the recent below-zero temperatures, as a direct result of failure to insulate the upper floor space. A2Z Engineering reported that “[g]aps between the soffit and siding were found to be in excess of one inch and in some instances as great as two or three inches . . . in substantial deviation from accepted standards of construction.” Additionally, the large gaps allowed rodents to “enter the home and eat the insulation off the electrical wiring,” which, the report concluded, created substantial risk of fire damage: 8 . . . had the home not flooded[,] it likely would have been an eventual loss due to fire. Full culpability for this incident lies with the general contractor for not properly sealing and weatherproofing the home. A2Z Engineering recommended that the home “immediately be dried out by a qualified disaster restoration team” and that the pipes be drained and filled with antifreeze. ¶17 Beaudette Consulting Engineers inspected the home twice in October 2009 and found numerous structural defects—including lateral shifting of ridge corbels at post locations in the roof, lack of positive fasteners in the roof framing between the ridges and purlins to log columns, improperly sized log joists, excessively loaded floor joists, laterally unstable stairs, an overstressed header beam above the garage door, and inadequate log wall pinning. The report clarified that these findings were considered “preliminary in nature.” ¶18 In January 2010, the Johnstons hired Rocky Mountain Design to deconstruct the home. Clare prepared an expert report regarding the cost to dismantle and rebuild the home—$25,900 and $627,000, respectively—and provided a list of the major problems discovered upon deconstruction. “During the demolition phase of the home,” he reported, “we discovered many deficiencies that are too numerous to list.” According to Clare, the number of “hidden defects with the home, and the fact that many of the deficiencies affected the structural integrity of the house,” confirmed that he would not have been able to renovate the old structure and that demolition was the “correct course of action.” 9 ¶19 Defects discovered upon demolition included: (1) Both decks were supported solely by rotten structural logs, which “disintegrated and broke” during removal and “would probably have gone unnoticed until the collapse of the deck.” The rotting resulted from the “lack of any proper valley drainage” coupled with a “very poor roof/valley design.” (2) Outside water infiltration from the second level deck, resulting from a poorly designed roof valley, caused rotting of the structural log wall under the apex of the deck. (3) Outside water infiltration from the second level deck resulted in extensive interior water and mold. (4) A lack of sealing and weatherproofing allowed air infiltration and massive rodent infestation in “almost every wall and ceiling cavity of the home,” with up to fifteen dead mice found in one wall cavity. (5) Logs within the home had checked excessively, in violation of the building code. (6) The post and beam in the upper loft connection were turning, rolling and splitting, as was the corbel supporting that intersection—to the point of nearly splitting in two. Directly above that intersection, a third ridge beam, which supported the roof, lacked any mechanical connectors. (7) The log structure was not secured to the foundation with mechanical fasteners; during deconstruction, Rocky Mountain Design was able to slide the home off the main sub-floor where it had been resting. (8) No hurricane connectors or structural hold downs had been applied to the thirty-three-foot tall glass gable. (9) The deck joists used on the exterior decks were not nailed properly—many sat loose within their hangers or had fallen out. (10) Poor and inconsistent framing practice throughout the house resulted in loose stair treads and a wobble to the finished staircase. Incomplete or missed framing in 10 the basement, including a two- or three-inch gap where it should have connected to the front gable and little connection between the entire basement level and the gable, would subject the gable wall to complete failure during a catastrophic event. The two-story chimney was primarily supported by the main floor framing, with no additional structural support. (11) The header above the garage door was overstressed and sagging due to having a large span and being undersized, the condition being exacerbated by an additional beam supporting the main floor attached to the garage door header. (12) The bottom of the posts supporting the decks showed signs of decay because they had been set at ground level, without protection from the ground surface. Due to the rotting support columns, the entry stairway was very unstable. Additionally, the log deck railing was visibly rotting. (13) The cedar skirl siding was loose, cupping and falling away from the wall, due to improper installation using staples, rather than nails. ¶20 In June 2008, Greg Johnston consulted with Charles Lewis, an attorney from Chicago, regarding the home. Lewis revised a letter written on behalf of Elvira Johnston to Centennial. In his e-mail to which the redrafted letter was attached (which was included in Centennial’s summary judgment submission to the District Court), Lewis stated to Greg Johnston: “I don’t want to refer to the earlier problems or the fact that the structural problems have existed for some time. This will lead to a statute of limitations defense.” ¶21 On October 8, 2009, the Johnstons filed a complaint against Centennial, alleging negligent construction of the home, breach of statutory and implied warranties, and 11 violations of the Montana Consumer Protection Act and Montana Unfair Trade Practices Act. In their Amended Complaint, filed May 12, 2010, the Johnstons added as a defendant Keeko Log Homes, Ltd. (Keeko), “the designer and/or manufacturer of the log home package which was constructed by Centennial and others.” ¶22 On September 2, 2011, Centennial filed a motion for summary judgment arguing that the Johnstons’ claims were time-barred under the applicable statutes of limitations and also that their claims were waived by the Leonards’ release. The District Court granted summary judgment to Centennial on both grounds. The court concluded that the 2004 and 2005 repairs “should have put Plaintiffs on notice of the need to have the home evaluated by someone with a background in residential home construction,” at which point the “alleged self-concealing defects would have become apparent[.]” The Johnstons’ negligence and Unfair Trade Practices Act claims thus accrued by 2005 and should have been filed by 2008 and 2007, respectively. The court also concluded that because “[a]ll of the Trust’s ownership interest in the property arose after the execution of the release and the Trust was plainly a ‘successor’ to the Leonards’ interest in the property,” the release applied to the Johnstons’ interest in the property and waived all of their claims. The court stated in a footnote: “Even if the release didn’t bar all of Plaintiffs’ claims, which it does, it would at the very least bar at least 64% of Plaintiffs’ damages.” The Johnstons appeal the District Court’s summary judgment ruling. 12 ¶23 On June 4, 2012, the Johnstons filed a motion to dismiss their claims against Keeko under M. R. Civ. P. 41(a)(1), which the District Court granted on June 7, 2012. Centennial cross-appeals the District Court’s dismissal of Keeko. STANDARD OF REVIEW ¶24 We review de novo a district court’s summary judgment ruling. Meloy v. Speedy Auto Glass, Inc., 2008 MT 122, ¶ 10, 342 Mont. 530, 182 P.3d 741. Under M. R. Civ. P. 56(c), 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 moving party has the burden of demonstrating the absence of a genuine issue of material fact. We draw all reasonable inferences and view all of the evidence in the light most favorable to the non-moving party. Fasch, ¶ 16. 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.” Fasch, ¶ 17 (quoting Andersen v. Schenk, 2009 MT 399, ¶ 2, 353 Mont. 424, 220 P.3d 675) (internal quotation marks admitted). ¶25 In Montana, “the law of contracts governs releases.” Sperry v. Mont. State Univ., 239 Mont. 25, 30, 778 P.2d 895, 898 (1989). “The construction and interpretation of a contract is a question of law” that we review for correctness. Mary J. Baker Revocable Trust v. Cenex Harvest States, Coops., Inc., 2007 MT 159, ¶19, 338 Mont. 41, 164 P.3d 13 851. Whether an ambiguity exists in a contract also “is a question of law” that we review for correctness. Doble v. Bernhard, 1998 MT 124, ¶ 19, 289 Mont. 80, 959 P.2d 488. ¶26 We review for an abuse of discretion a district court’s discretionary rulings, including the court’s order granting voluntary dismissal under M. R. Civ. P. 41(a)(2). Teal, Inc. v. Wiedrich, 259 Mont. 323, 326, 856 P.2d 543, 545 (1993). DISCUSSION ¶27 1. Whether the District Court erred in concluding as a matter of law that the Johnstons’ claims are barred by the applicable statutes of limitations. ¶28 The Johnstons’ claims for negligence and breach of warranty were subject to a three-year statute of limitations. Section 27-2-204(1), MCA. Their claims under the Unfair Trade Practices Act were subject to a two-year statute of limitations. Section 27- 2-211(1)(c), MCA (providing that statute of limitations for “a liability created by statute” generally is two years). The Johnstons allege that they “were unaware and could not reasonably have been aware” of many of the serious structural problems until mid-2008 and that some of the problems with the home were not discoverable until the home was deconstructed in 2010. They argue that the applicable statutes of limitations should have been tolled under the “discovery rule,” which provides: The period of limitation does not begin on any claim or cause of action for injury to person or property until the facts constituting the claim have been discovered or, in the exercise of due diligence, should have been discovered by the injured party if: (a) the facts constituting the claim are by their nature concealed or self concealing; or 14 (b) before, during, or after the act causing the injury, the defendant has taken action which prevents the injured party from discovering the injury or its cause. Section 27-2-102(3), MCA. In short, “[t]he discovery rule applies where the facts constituting the injury by their nature are concealing, or the defendant has taken some action that prevents the injured party from discovering the injury or its causes.” Burley v. Burlington N. & Santa Fe Ry. Co., 2012 MT 28, ¶ 17, 364 Mont. 77, 273 P.3d 825. “[W]hen 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.” Siebken v. Voderberg, 2012 MT 291, ¶ 23, 367 Mont. 344, 291 P.3d 572 (quoting Nelson v. Nelson, 2002 MT 151, ¶ 24, 310 Mont. 329, 50 P.3d 139) (internal quotation marks omitted). ¶29 The parties dispute whether genuine issues of material fact exist regarding applicability of the discovery rule. The District Court granted summary judgment in favor of Centennial based on its conclusion that the repairs the Leonards made to the home during 2004 and 2005 “should have put Plaintiffs on notice” that an inspection report was needed and its further conclusion that an inspection conducted in 2005 would have revealed the structural defects that the Leonards later discovered: Even assuming the Leonards’ issues with the home in 2002 and 2003 did not put Plaintiffs on notice of their claim, Plaintiffs made repairs to the home in 2004 and 2005 to correct numerous problems. Plaintiffs spent approximately $50,000 doing so. That Plaintiffs did not know the exact nature of the construction defects is irrelevant . . . . At the very least, the numerous repairs made in 2004 and 2005 should have put Plaintiffs on notice of the need to have the home evaluated by someone with a background in residential home construction. Had Plaintiffs done so, the 15 alleged self-concealing defects would have become apparent, as is evident from the inspection report eventually they obtained. ¶30 The Johnstons allege that the issues with the home in 2002 were “minor flooring and aesthetic problems” and that they considered the repairs made to the home in 2004 and 2005 to be “routine maintenance issues.” They argue that, in comparing the minor defects discovered in 2002 and 2005 with the problems discovered in 2008, 2009 and 2010, “it becomes clear there is no rational relationship between the two distinct categories.” Thus, they contend that whether they “‘should have known’ of hidden defects such as the lack of critical log wall pinning, hidden mold and lack of connection to the foundation in 2005 should not have been resolved on summary judgment.” Viewing the facts in the light most favorable to the Johnstons, we conclude that genuine factual issues exist regarding whether the Leonards reasonably were put on notice of the more serious structural problems by 2005, as well as whether the problems experienced by 2005 were related to those discovered in 2008 and 2010. ¶31 As noted, in 2002, the Leonards observed problems with the bubbling and heaving of their wood floors, discovered extensive mold underneath the floors and began to discuss these issues with Leander. Leander’s December 2002 letter to Centennial’s counsel complained of the flooring and mold issues and provided the following list of additional problems with the home: 1. Kids’ bathroom tile – grout is cracking 2. Master bathroom tile – grout is cracking 3. Kids’ bathroom is missing a soap dish (promised by Centennial for over 3 months) 4. Master bathroom shower light has fallen apart 16 5. Kitchen vent still needs to be replaced 6. Stairs still not to code 7. Loft railing needs to be sanded and repaired 8. Office wall (corner) is splitting apart (plus wood in ceiling) 9. Total site cleanup 10. Pipes need adjusting (noise) The inclusion of a building code violation and cracking of the walls and ceiling, while supporting Centennial’s argument, does not eliminate factual questions regarding applicability of the discovery rule. According to the Johnstons, these additional defects, though adding to their frustration, fairly were characterized as aesthetic problems. As noted, Sandy Leonard’s deposition testimony indicated that the Leonards viewed those problems as “some minor things,” their true concerns being limited to the improperly laid flooring and resulting mold infestation. A follow-up letter Leander wrote to Centennial’s counsel in 2003 noted faulty installation of stairways and railings, but stated that Centennial’s “malfeasance” consisted of laying flooring over gyp-crete that had not been properly cured, failing to use standard plywood for the sub-flooring, and failing to attach the sub-flooring to the gyp-crete. ¶32 Additionally, the Johnstons were aware that the logs in a newly constructed home are prone to settlement issues and require maintenance in order to stabilize. In his May 2008 report prepared on behalf of A2Z Engineering, Thomas explained that “[l]og homes are inherently prone to maintenance, settlement, and checking issues.” Josh Harmon, owner of Centennial, indicated during his deposition that a “log house is designed to settle and shift” and that screw jack adjustments and other maintenance may be required in leveling the home. Centennial points out that, in 2004 and 2005, Innovative Builders 17 performed repairs of more than one staircase, as well as the home’s decks, and that the Johnstons paid them approximately $50,000—an expense Centennial suggests exceeds the cost of mere maintenance. The Johnstons allege that, as first-time owners of a log home, they reasonably considered the work performed by Innovative Builders as constituting “routine maintenance” of a log home—regardless of the cost—and were led by Centennial to believe that it could take five to ten years for the home to settle. Harmon represented during his deposition that, as a log home settles, the movement of windows and doors—even to the point where they fail to close—typically is not a construction defect, but instead indicates that screw jack adjustments are required: The log house is designed to settle. The windows and doors are installed in such a manner that the logs can continue to settle. If a door were to bind up or a window would not open, that is – that tells you that the house is – that the jacks need to be adjusted in the house. The jacks are located on vertical posts that don’t shrink in height. Logs shrink in diameter only. So there’s support places in the house that have a[n] adjustable jack on them. If those jacks aren’t adjusted properly then you can have issues with the doors and windows. The parties thus have offered conflicting evidence regarding whether the problems discovered in 2002 and the extent of repairs made in 2004 and 2005 reasonably put the Leonards on notice of the serious nature of the problems with their home. Our well- established summary judgment standard dictates that we may not weigh the evidence or choose one disputed fact over another. Fasch, ¶ 17; see also Tacke v. Energy W., Inc., 2010 MT 39, ¶ 16, 355 Mont. 243, 227 P.3d 601; Andersen v. Schenk, 2009 MT 399 ¶ 2, 353 Mont. 424, 220 P.3d 675. 18 ¶33 We also agree with the Johnstons that factual questions arise in determining the extent to which the problems discovered by 2005 are related to the issues discovered between 2008 and 2010. As discussed, in 2008, the Johnsons discovered a burst water pipe that resulted from Centennial’s failure to insulate the upper level of the home. Upon deconstruction of the home in 2010, Clare of Rocky Mountain Design documented many “hidden defects” and provided a list of structural problems, some of which had not been discovered through previous inspections. These included, among others, the rotting of structural logs and posts supporting the decks, due to the lack of valley drainage and lack of protection of the logs from the ground surface, the failure to seal and waterproof the walls of the home, the failure to secure the front gable to the basement level, and the failure to secure the entire log structure to the foundation. Even if the Johnstons were on notice that some structural problems existed, the evidence raised a question of fact as to whether, in the exercise of due diligence, they should reasonably have become aware of the severity of those problems prior to the time the home was deconstructed. ¶34 We disagree with Centennial that the case simply raises disputes about whether the extent of the plaintiffs’ damages was known. Thus, Centennial’s reliance on E.W. v. D.C.H., 231 Mont. 481, 754 P.2d 817 (1988), is misguided. There, E.W., who had been molested during childhood by the defendant, filed a complaint more than twenty years later alleging various torts based on psychological damage resulting from the molestation. E.W., 231 Mont. at 483, 754 P.2d at 818. The Court observed that E.W. “‘always knew’ she had been molested and had sought help for her psychological problems since late 19 adolescence” but only much later came to associate those psychological problems with the molestation. E.W., 231 Mont. at 487, 754 P.2d at 820. The Court refused to apply the discovery rule and granted summary judgment to the defendant based on our conclusion that “[t]his is not a case in which the plaintiff was unaware of the tortious conduct or the injury has failed to manifest itself.” E.W., 231 Mont. at 486, 754 P.2d at 820. In contrast to E.W., who was “clearly aware of the wrongful conduct,” E.W., 231 Mont. at 487, 754 P.2d at 820, factual questions exist as to whether the Johnstons were, or reasonably could have become, aware by 2005 of the defendants’ tortious conduct—including the failure to insulate the home or secure the walls to the foundation. ¶35 For similar reasons, we agree with the Johnstons that Deschamps v. Treasure State Trailer Ct., Ltd., 2010 MT 74, 356 Mont. 1, 230 P.3d 800, factually is distinguishable. Having purchased a mobile home park from the defendant, Deschamps became aware in July 2003 of problems with the park’s water distribution system: a water system well pump had failed and Deschamps replaced it. Deschamps, ¶ 8. In the fall of 2003, a consultant informed Deschamps that the water system was “seriously and dangerously defective.” Deschamps, ¶ 35. By December 2003, one-half of Deschamps’s tenants vacated the park, allegedly due to dissatisfaction with the water system failure. Deschamps, ¶ 34. Deschamps proceeded to excavate a portion of the water system in May 2004, at which point he discovered that it had been constructed with improper materials. Deschamps, ¶ 9. Deschamps filed a claim for actual and constructive fraud in 2007. We concluded that the fraud claim had accrued by December 2003, when 20 Deschamps learned that the water system was seriously defective and observed the occupancy rate dropping dramatically in response to water issues. The claim was thus time-barred by a two-year statute of limitations. Deschamps, ¶ 35. Importantly, the undisputed facts showed that Deschamps had been alerted to the serious nature of his water system failure by 2003, when he received the consultant’s opinion. ¶36 Here, as discussed, evidence of when the Johnstons should have first discovered the serious construction defects in their home is “inconsistent and unclear.” See Thompson v. Nebraska Mobile Homes Corp., 198 Mont. 461, 469, 647 P.2d 334, 338 (1982). Factual questions exist as to whether the 2004 and 2005 repairs to the log home should have alerted the Johnstons to the potential for more serious underlying structural defects and whether those defects were self-concealing. We conclude that the question whether the facts constituting the Johnstons’ claims were by their nature concealed or self-concealing or, alternatively, whether they reasonably should have been discovered by 2005 cannot be resolved at this stage in the proceedings and should be decided by the jury. Section 27-2-102(3), MCA; Siebken, ¶ 23; Burley, ¶¶ 92-93 (tolling of statute of limitations for nuisance may be a jury question). ¶37 Centennial argues as an alternative ground for dismissal of the Johnstons’ Consumer Protection Act claim that “[t]he Johnstons do not fall within the definition of ‘consumers’” under the Act. Because the District Court ruled in Centennial’s favor on an alternative ground, it did not reach this issue. The parties discuss one case, Estate of Donald v. Kalispell Reg. Med. Ctr., 2011 MT 166, 361 Mont. 179, 258 P.3d 395, 21 regarding the issue of privity. We did not use the term “privity” in Donald, but rejected the estate’s Consumer Protection Act claim because the plaintiff had not shown any relationship with the defendant—a service provider—that would support a claim under the Act. Donald, ¶¶ 30-31. The Johnstons claim that they did have a sufficient relationship with Centennial to qualify as “consumers” under the Act and that the Act does not require a direct relationship in any event. Despite the language in § 30-14-104, MCA, that due consideration “shall be given” to parallel federal law, the parties cite little other authority in support of their arguments. Given its lack of development in the record or in the parties’ briefs, we decline to consider this question for the first time on appeal. ¶38 2. Whether the District Court erred in determining that the release executed by the Leonards is binding on the Johnstons. ¶39 The Johnstons argue, first, that insofar as the Johnstons were not parties to the release, it applies only to the Leonards’ interest in the property. Secondly, they argue that “the Leonards released only those claims relating to mold and flooring issues and not the significant latent deficiencies which were later found in the home.” We reverse the District Court’s decision that the release applied to the Johnstons’ 36% interest in the property, but agree with the court’s determination that the unambiguous language of the release waived the Leonards’ subsequent claims. ¶40 The Leonards signed the release on April 10, 2003, at which time they owned a 64% interest and the Johnstons owned a 36% interest in the property. The Johnstons were not a party to the release and thus, the terms of the release cannot be applied to their 36% interest. See Fordyce v. Musick, 245 Mont. 315, 319, 800 P.2d 1045, 1047 (1990) 22 (“It is elementary that a contract binds no one but the contracting parties.”) (citing Gambles v. Perdue, 175 Mont. 112, 115, 572 P.2d 1241, 1243 (1977)). That the Leonards and Johnstons each later transferred their interest to the Johnston Trust, thus rendering the Trust “successor” to both interests, does not change the analysis. The release can be binding only on the interests owned by the Leonards at the time that they signed it; thus, as recognized by the District Court in its footnote, the release bars 64% of any damages proven by the Johnston Trust. We disagree with the Johnstons, however, that, to the extent the release applies to the Trust’s interests, its terms are “reasonably susceptible to multiple interpretations” and therefore ambiguous. ¶41 Centennial cites Rich v. Ellingson, 2007 MT 346, 340 Mont. 285, 174 P.3d 491, where we considered the scope of a release that included similar terms. Rich had hired an attorney, Ellingson, to secure uninsured motorist and underinsured motorist (UIM) coverage from her insurer, as well as a potential Unfair Trade Practices Act or bad faith claim. Rich, ¶¶ 4-6. When Rich’s UIM claim was dismissed due to Ellingson’s failure to timely serve the insurer, she filed a malpractice claim against him. She thereafter executed a release in which she received $175,000 and agreed to absolve Ellingson from “[a]lleged legal malpractice of any kind”—including claims “asserted or unasserted, known or unknown, foreseen or unforeseen[.]” Rich, ¶ 9. When she later learned that her Unfair Trade Practices Act claims had been dismissed due to expiration of the statute of limitations, she filed a second legal malpractice claim against Ellingson. Rich, ¶ 10. We rejected her argument that the term “alleged,” as used in the casualty description, 23 rendered the release ambiguous with regard to scope. Rich, ¶¶ 16-18. We also rejected her argument that the release applied only to the malpractice “alleged” prior to its execution, and declined to consider extrinsic evidence of the parties’ intentions at the time the release was executed. We concluded that the release “clearly and unambiguously” barred any future malpractice claims against Ellingson and therefore affirmed summary judgment in his favor, noting that “[a] party’s ‘latent discontent’ with a release, without more, is an insufficient basis upon which to premise an alteration of an express agreement.” Rich, ¶¶ 17, 21. ¶42 Contrary to the Johnstons’ assertion, the casualty described in the release clearly extends beyond the mold and flooring issues because it applies to “[d]efective construction of log home in Sunset Heights, Woods Bay, Lake County, Montana; . . . .” The Johnstons point out that the release repeatedly refers to mold issues and that the Leonards specifically reserved a claim for mold-related injury to Sandy Leonard’s unborn child. The specific language regarding mold issues, however, does not limit or conflict with the release’s broader application to all other construction defects, known or unknown. The Johnstons cite no authority supporting their argument that the release “can only encompass those defects the Leonards knew about or could have known about with reasonable diligence at the time of its execution.” To the contrary, the explicit language of the release covered “all claims for defective construction or warranty,” including claims for “any and all injuries, damages and losses resulting from the casualty described herein, even though now unanticipated, unexpected, or unknown . . . .” As discussed, the 24 “casualty” was defined to include “defective construction of log home,” as one on a list of three items separately designated. ¶43 Similar to Rich, the Johnstons refer to extrinsic evidence of the parties’ intentions at the time the document was executed—such as correspondence between the parties’ attorneys—in suggesting that the contract is ambiguous. As in Rich, we conclude that the terms of the release are clear and unambiguous; thus, we must “apply the language as written.” Rich, ¶¶ 13, 15. ¶44 Because the Johnstons were not a party to the release, and given our conclusion that the release was not binding on their 36% interest in the property, we need not reach the Johnstons’ alternative argument that the release should be rescinded on the basis of mutual mistake. ¶45 3. Whether the District Court abused its discretion in granting the Johnstons’ motion to dismiss Keeko Log Homes, Ltd. as a defendant. ¶46 Centennial argues that the District Court abused its discretion when it granted the Johnstons’ motion to dismiss Keeko, three days after that motion was filed, without giving Centennial an opportunity to respond. Centennial also argues that the Johnstons’ voluntary dismissal should have taken place under M. R. Civ. P. 41(a)(2), through discretionary court order, rather than under Rule 41(a)(1). ¶47 Under M. R. Civ. P. 41(a)(1), a plaintiff voluntarily may dismiss a defendant without a court order by filing “a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.” Rule 41(a)(1) applies when “the defendant has already been joined in the lawsuit” and preserves the “unqualified right of 25 the plaintiff to a dismissal without prejudice prior to the filing of defendant’s answer.” Rich v. St. Farm Mut. Automobile Ins. Co., 2003 MT 51, ¶¶ 18, 23, 314 Mont. 338, 66 P.3d 274 (quoting Jangula v. U.S. Rubber Co., 147 Mont. 98, 113-14, 410 P.2d 462, 470 (1966)) (internal quotation marks omitted). We have clarified that voluntary dismissal under Rule 41(a)(1) “automatically terminates the action upon the filing of the notice of dismissal with the clerk of court” and thus, “no court order is required.” Rule 41(a)(2), by contrast, “gives the district court discretion to dismiss an action upon the plaintiff’s motion and ‘upon such terms and conditions as the court deems proper.’” U.S. Fidelity & Guar. Co. v. Rodgers, 267 Mont. 178, 184, 882 P.2d 1037, 1040-41 (1994). Here, the Johnstons filed a motion in the District Court to dismiss the defendant Keeko. Although that motion sought dismissal under Rule 41(a)(1), the District Court issued an order granting voluntary dismissal, in apparent reliance on Rule 41(a)(2). ¶48 The Johnstons cite State ex rel. Butte Teamsters Local v. Dist. Ct., 140 Mont. 581, 374 P.2d 336 (1962), where we applied Rule 41 to dismiss one of multiple defendants. We followed the U.S. Court of Appeals for the Third Circuit in concluding that, under Rule 41(a)(2), the district court has discretion to dismiss the case as to fewer than all of the defendants, where “[n]o objecting defendant has served any cross-claim against a moving defendant.” Butte Teamsters, 140 Mont. at 600-01, 374 P.2d at 346. We reasoned that “[t]he joinder of the moving defendants by plaintiffs gave their fellow defendants no vested interest in the presence of the moving defendants as co-parties”; instead, the joinder of additional defendants by the plaintiff “was a voluntary gift to their 26 co-defendants by plaintiffs and plaintiffs, having given, could take away.” Butte Teamsters, 140 Mont. at 601, 374 P.2d at 346. ¶49 The Johnstons point out that Keeko had not filed an answer or a motion for summary judgment at the time that the Johnstons moved for voluntary dismissal and that Centennial had not filed a cross-claim against Keeko. Nonetheless, the Johnstons’ motion stated that Centennial opposed dismissal of Keeko and, additionally, Centennial argues that its answer to the Johnstons’ complaint included an affirmative defense alleging Keeko’s liability. The answer averred that Centennial “constructed a log home manufactured and designed by Keeko Log Homes” and reserved “the defense of negligence and/or fault of other parties,” as well as entitlement to “contribution or indemnification or causal apportionment.” We conclude that the District Court should have provided Centennial the opportunity to brief its opposition to the motion before ordering dismissal of Keeko under Rule 41(a)(2). CONCLUSION ¶50 For the foregoing reasons, we reverse the District Court’s summary judgment ruling and remand the case for further factual development on the issue whether the Johnstons’ claims are time-barred under the applicable statutes of limitations. The decision on remand will apply only to the 36% interest in the property owned by the Johnstons at the time that the release was executed. We affirm the District Court’s conclusion that the release is binding on the Leonards’ 64% interest, later transferred to the Johnston Trust. We also reverse the District Court’s dismissal of Keeko and remand 27 for further consideration following full briefing on the Johnstons’ Rule 41 motion to dismiss. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ JIM RICE /S/ MICHAEL E WHEAT Justice Laurie McKinnon, dissenting. ¶51 I would affirm the judgment of the District Court concluding that the Johnstons’ claims are time-barred as a matter of law. In my view, the undisputed facts establish that the Johnstons were actually aware, or reasonably should have been aware, by 2005—if not 2002—of the wrongful act that resulted in their injuries. I believe this Court, in its Opinion today, has rendered the statutory period of limitations provided by the Legislature meaningless. I do not believe it is the function of this Court to selectively resurrect stale claims when the plaintiffs here actually knew of the alleged wrongful act and concomitant injuries as early as 2002. ¶52 The Legislature has determined that the statutory period for bringing an action in negligence and breach of warranty is three years. Section 27-2-204(1), MCA. Claims for violations of the Unfair Trade Practices Act have a two-year statute of limitations. 28 Section 27-2-211(1)(c), MCA; Osterman v. Sears, Roebuck & Co., 2003 MT 327, ¶ 24, 318 Mont. 342, 80 P.3d 435. “The fact that a person entitled to an action has no knowledge of his right to sue, or of the facts out of which his right arises, does not, as a general rule, prevent the running of the statute, or postpone the commencement of the period of limitation, until he discovers the facts or learns of his right thereunder.” E.W. v. D.C.H., 231 Mont. 481, 484-85, 754 P.2d 817, 819 (1988) (internal quotation marks omitted) (citing Kerrigan v. O’Meara, 71 Mont. 1, 227 P. 819 (1924), Carlson v. Ray Geophysical Div., 156 Mont. 450, 481 P.2d 327 (1971), and Bennett v. Dow Chem. Co., 220 Mont. 117, 713 P.2d 992 (1986)). “Only the vigilant are viewed favorably under the law.” E.W., 231 Mont. at 485, 754 P.2d at 819; see also § 1-3-218, MCA (“The law helps the vigilant before those who sleep on their rights.”). ¶53 We have previously recognized that “[t]he policy underlying the bar imposed by statutes of limitations is, at its roots, one of basic fairness. Our system of jurisprudence is designed to achieve substantial justice through application of the law after the parties have had an opportunity to fully present both sides of a controversy.” E.W., 231 Mont. at 484, 754 P.2d at 819. The ability to adequately prepare and present an effective defense necessarily depends on the recovery and presentation of evidence. Thus, “ ‘[s]tatutes of limitations are regarded as statutes of repose governing the period within which actions must be brought and are designed to compel the exercise of a right of action within a reasonable time, while the evidence remains fresh in the memory of the witnesses.’ ” 29 E.W., 231 Mont. at 484, 754 P.2d at 818-19 (quoting Monroe v. Harper, 164 Mont. 23, 26, 518 P.2d 788, 790 (1974)). ¶54 This Court has recognized, however, that some types of injuries preclude a strict application of the statutory bar. In particular, the statutory bar will not be applied to prevent the bringing of an action when the injury is self-concealing. This principle is codified in the discovery rule, § 27-2-102(3), MCA. We first applied the discovery rule in a medical negligence action where the injury was self-concealing. Johnson v. St. Patrick’s Hosp., 148 Mont. 125, 417 P.2d 469 (1966). We have since extended the discovery rule to other situations where the injury is not readily apparent. See Grey v. Silver Bow County, 149 Mont. 213, 425 P.2d 819 (1967). We have never extended the discovery rule, however, to situations where the plaintiff was aware, or in the exercise of due diligence should have been aware, of the injury. The central premise of the discovery rule is that “the plaintiff was unaware, and could not reasonably have been aware, of the wrongful act which later resulted in his or her injury until after the statute of limitations had run.” E.W., 231 Mont. at 486, 754 P.2d at 820. ¶55 Significantly, it is not necessary for the plaintiff to know the total extent of damages that an act causes in order to begin the running of the statutory bar. Moreover, the failure to understand the causal relationship between the wrongful conduct and the injury does not serve to toll the statutory bar. E.W., 231 Mont. at 487, 754 P.2d at 820. “The law does not contemplate such discovery as would give complete knowledge before the cause of action accrues.” E.W., 231 Mont. at 487, 754 P.2d at 820 (citing Mobley v. 30 Hall, 202 Mont. 227, 657 P.2d 604 (1983)). To apply the discovery rule to toll the statutory bar beyond discovery of the cause of an injury would have the effect of postponing the statutory period indefinitely and denying defendants the protections of a statute of limitations. ¶56 In October or November 2002, the Leonards observed that their wood floors had begun to heave and rise, and they discovered extensive mold underneath the flooring. The Leonards communicated these problems to the Johnstons. Additionally, they noted that the stairs had not been installed according to building code and that the corner of the office wall was splitting apart. They determined that the cause of these injuries was the faulty construction of their home by Centennial. This is evidenced by the fact that the Johnstons suggested hiring counsel, Peter Leander, to notify Centennial of the problems with the home, to demand repair or compensation, and “to instill into Centennial that we mean business.” Despite the Johnstons’ characterization of these injuries as “minor,” Centennial paid $6,000.00 and agreed to extinguish $59,704.13 still owing from the Leonards and the Johnstons on the construction contract. In return, the Leonards executed a release on April 10, 2003, for the benefit of Centennial and its subcontractors which covered “all claims for defective construction or warranty arising out of the construction” of their log home. Finally, in 2004 and 2005, the Johnstons hired a building contractor, Innovative Builders, to conduct extensive repairs to stairs, decks, and problems with settling of the logs. The Johnstons paid Innovative Builders approximately $50,000.00 to make the repairs. 31 ¶57 Deposition testimony from the Leonards and the Johnstons established that the repair work performed in 2004 and 2005 by Innovative Builders was for structural damage. Sandy Leonard testified in her deposition that Innovative Builders “redid the stairs and . . . adjust[ed] the doors.” Innovative Builders also repaired the outside decks and “some of the foundation in front of the house [that] was starting to crack.” Moreover, Innovative Builders “fixed gaps in the doors” which had developed because Centennial “didn’t leave room for the house to slide.” Sandy explained that, due to this defect, “the house was falling on top of each other and pushing the doors out” and also “pushing the wall out.” Innovative Builders had to “go in and cut out places for the house to move on top of each other.” Sandy indicated that the work was for structural repair and was separate from the mold problem. Sandy was asked the following by Centennial’s counsel during the deposition: Q. So prior to your leaving in 2005 you were starting to experience some problems with the home, windows, difficulty closing, doors not shutting, logs starting to move and some of the railings becoming loose; is that correct? A. Correct. ¶58 The Johnstons’ position that they did not know the cause of their injuries until 2008 is particularly untenable, as noted by the District Court, in light of email correspondence with their new counsel, Charles Lewis, in June 2008. Lewis revised a letter written on behalf of Elvira Johnston to Centennial. In his email to Greg Johnston attaching the redrafted letter, Lewis explained: “I don’t want to refer to the earlier 32 problems or the fact that the structural problems have existed for some time. This will lead to a statute of limitations defense.” ¶59 In light of these undisputed facts establishing that the Johnstons actually knew of the cause of their injuries as early as 2002, I cannot conclude that there is any genuine factual dispute concerning application of the discovery rule sufficient to submit the issue to a jury. Our legal precedent is clear that it is not necessary for the Johnstons to have known the full extent of their damages or the causal relationship between Centennial’s alleged wrongful acts and their injuries. Any failure of the Johnstons to understand their legal rights is likewise insufficient to toll the statute of limitations. E.W., 231 Mont. at 487, 754 P.2d at 820. ¶60 The Court today submits for decision by a jury, Opinion, ¶ 36, an issue that ought to be decided as a matter of law based on clear and undisputed facts. In doing so, we have failed to follow the directives of a statute and the policy behind it—that is, the suppression of stale claims which, due to the passage of time, inhibit a party’s ability to mount an effective defense. We have elevated what we apparently believe is these particular plaintiffs’ entitlement to bring an action over a legislative directive designed to require all plaintiffs to be vigilant in their pursuit of a remedy. ¶61 I therefore would affirm the District Court in its decision that the Johnstons’ claims are time-barred. The undisputed facts establish that the Johnstons either did discover, or in the exercise of due diligence should have discovered, the facts underlying their claims by, at the latest, 2005. The Johnstons were required to file their Unfair Trade 33 Practices Act claim no later than 2007 and their negligence and breach of warranty claims no later than 2008. As the Johnstons did not file their suit until 2009, their claims are barred by the statute of limitations. ¶62 Given that the Johnstons’ action is time-barred, it is not necessary to address any remaining issues. ¶63 I dissent. /S/ LAURIE McKINNON | July 8, 2013 |
84248e66-7205-4cb1-9095-4e15716b435d | State v. Kelm | 2013 MT 115 | DA 12-0239 | Montana | Montana Supreme Court | DA 12-0239 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 115 STATE OF MONTANA, Plaintiff and Appellant, v. KRISTIN ELIZABETH KELM, Defendant and Appellee. APPEAL FROM: District Court of the Fifteenth Judicial District, In and For the County of Sheridan, Cause No. DC 46-2011-9 Honorable Katherine M. Bidegaray, Presiding Judge COUNSEL OF RECORD: For Appellant: Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General; Helena, Montana Steven Howard, Sheridan County Attorney; Plentywood, Montana Nickolas C. Nurnion, Special Deputy Sheridan County Attorney; Glasgow, Montana For Appellee: Brad W. Fjeldheim; O’Toole Law Firm; Plentywood, Montana Submitted on Briefs: January 23, 2013 Decided: April 30, 2013 Filed: __________________________________________ Clerk April 30 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 The State of Montana appeals an order of the Montana Fifteenth Judicial District Court, Sheridan County, granting defendant Kristin Kelm’s motion to suppress evidence. We affirm in part, reverse in part, and remand the action for further proceedings. ¶2 We address the following issues on appeal: ¶3 1. Did the District Court incorrectly conclude that, because the arresting officer did not follow § 46-6-312, MCA, all evidence gathered after Kelm’s arrest should be suppressed? ¶4 2. Did the District Court incorrectly conclude that the officer’s failure to advise Kelm of her Miranda rights at the time of her arrest required suppression of all evidence obtained after her arrest? ¶5 3. Did the District Court incorrectly conclude that evidence seized from Kelm’s vehicle must be suppressed? PROCEDURAL AND FACTUAL BACKGROUND ¶6 In the early-morning hours of February 19, 2011, Sheridan County Sheriff’s Deputy Robert Krause (Krause) observed a blue pickup truck driven by Kristen Kelm cross the center line of a Plentywood, Montana street and drive onto the local highway. Krause followed Kelm for several miles and “observed [her] vehicle weaving within its lane touching both the fog line and the center line and then actually crossing the center line two or three times.” 3 ¶7 Krause initiated a traffic stop on Kelm’s vehicle and she pulled over to the side of the road. When Krause approached the driver’s-side window, Kelm immediately provided her driver’s license. Krause informed Kelm that he had stopped her for crossing the center line of the highway. He then remarked to Kelm that her eyes looked “bloodshot and glassy” and asked if she had been drinking. Kelm denied that she had consumed alcohol that evening. ¶8 Without having Kelm get out of the car, Krause proceeded to administer a horizontal gaze nystagmus test (HGN) to help determine whether Kelm was intoxicated. He observed a “lack of smooth pursuit in both eyes as well as distinct and sustained nystagmus at maximum deviation in both eyes” and gave her a score of four out of a possible six points, which indicated intoxication. Krause again asked Kelm if she had been drinking alcohol, and she admitted to consuming one drink. ¶9 After Krause had finished administering the HGN test, he determined that Kelm needed to pass standardized field sobriety tests before she could resume driving. Because the temperature was minus-one degree Fahrenheit and ice and snow covered the highway, Krause asked Kelm if she would agree to perform sobriety tests at the Sheridan County Jail, where the climate-controlled conditions would give her the best chance of passing the tests. Kelm agreed, turned off her truck, and gave her keys to Krause. In accordance with department policy, Krause put Kelm in handcuffs before placing her in the backseat of his patrol vehicle. Krause did not inform Kelm that she was under arrest. 4 ¶10 As Krause was helping Kelm buckle her seatbelt, he smelled alcohol on Kelm’s breath. Krause asked Kelm to confirm that she had only had one drink that evening. He then informed her that he could smell alcohol, and asked if she was certain that she had only had one drink; Kelm said yes. ¶11 Krause then noticed that Kelm had not turned off her truck’s lights. Kelm gave him permission to turn off the lights before they drove away so that the truck’s battery would not die. Krause unlocked the pickup, reached in from the driver’s side, and turned off the lights. As he was walking back to his patrol car, he noticed that the truck’s dome lights still were illuminated. He opened the driver’s-side door a second time and immediately noticed a half-full beer bottle on the floor as well as a plastic cup filled with a green liquid that smelled like alcohol in the passenger cup holder. After emptying the beer bottle and plastic cup in front of his cruiser, Krause asked Kelm about the green liquid. Kelm could not identify the liquid and denied that she had been drinking it. ¶12 Krause drove Kelm to the booking room at the Sheridan County Jail, where she performed three field sobriety tests under the direction of Sheriff Deputy Darren Ginn (Ginn): a second HGN test, a “walk and turn” test, and a “one-leg stand” test. Kelm failed each test. Like Krause, Ginn observed a “lack of smooth pursuit” and “distinct nystagmus at maximum deviation” during the HGN test. During the walk and turn test, Kelm failed to follow directions by walking too soon, raising her arms while walking, and making an improper turn. She also was unable to walk in a straight line in a heel-toe fashion. During the one-leg stand, she swayed back and forth, raised her arms, and put 5 her foot down too soon. Ginn and Krause did not ask Kelm any potentially incriminating questions while administering the sobriety tests. ¶13 Following the sobriety tests, Ginn read to Kelm an implied consent advisory form. Ginn informed Kelm that she was under arrest for driving a motor vehicle while under the influence of alcohol and that, under Montana law, she was deemed to have given her implied consent to either a blood or breath test for alcohol. This was the first time a law enforcement officer told Kelm that she was under arrest. Ginn also explained that Kelm’s Miranda right to an attorney did not apply during the testing procedure and advised her of the consequences if she refused to take the test. Kelm signed the form and agreed to take a breath test. The test showed that her blood alcohol content was 0.198— over twice the legal limit. Krause then read Kelm her Miranda rights for the first time. Kelm signed a form indicating that she understood her rights and stated she did not wish to further speak with law enforcement. Krause then formally booked Kelm into the Sheridan County Jail. ¶14 Later that day, Kelm appeared before the Sheridan County Justice Court and was charged with three separate counts: (1) unlawful possession of an open alcoholic beverage container in a motor vehicle, in violation of § 61-8-460, MCA; (2) failure to drive on the right side of a roadway, in violation of § 61-8-321, MCA; and (3) driving under the influence of alcohol, first offense, in violation of § 61-8-401, MCA. After the Justice Court denied Kelm’s motion to suppress all evidence collected after her arrest, 6 Kelm pleaded guilty to all three charges, but gave notice of her intention to appeal the denial of her motion to the District Court pursuant to § 46-12-204(3), MCA. ¶15 On October 17, 2011, Kelm filed motions requesting the District Court to order the evidence against her suppressed. Kelm asserted that the State should not be allowed to introduce evidence obtained during the HGN test Krause administered, evidence of the half-full beer bottle and plastic cup that Krause took from Kelm’s car as he was trying to turn off her lights, and “all evidence gathered prior to [her] Miranda warning.” ¶16 The District Court held a hearing on the matter, and entered an order on March 28, 2012. The court denied Kelm’s motion regarding the HGN test and concluded that the State could introduce evidence of Krause’s HGN test after laying a proper foundation.1 The District Court disagreed with the State’s contention that Krause’s seizure of the beer bottle and plastic cup fell within the plain view doctrine because Krause was not “lawfully present” in Kelm’s vehicle; consequently, the court granted Kelm’s motion to suppress that evidence. The court also granted Kelm’s motion to suppress “all evidence the State gathered between her arrest and [when the] Miranda warnings finally [were] articulated” at the Sheridan County Jail. The District Court agreed with Kelm’s argument that, because Deputy Krause did not satisfy § 46-6-312, MCA, and did not apprise Kelm of her Miranda rights immediately after arresting her, her arrest was unlawful and all evidence subsequently obtained must be suppressed. The State appeals. 1 Kelm has not cross-appealed this finding and it is not at issue on appeal. 7 STANDARD OF REVIEW ¶17 The State may appeal from any court order or judgment in a criminal case “the substantive effect of which results in . . . suppressing evidence.” Section 46-20- 103(2)(e), MCA. When reviewing a district court’s ruling on a motion to suppress, we determine “whether the findings of fact are clearly erroneous and whether the court correctly interpreted the law and applied it to those facts.” State v. Nixon, 2013 MT 81, ¶ 15, 369 Mont. 359, ___ P.3d ___ (quoting State v. Haldane, 2013 MT 32, ¶ 15, 368 Mont. 396, ____ P.3d ___). A factual finding is clearly erroneous if it is “not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if this Court’s review of the record leaves us with a definite or firm conviction that a mistake has been made.” Nixon, ¶ 15 (quoting State v. Morrisey, 2009 MT 201, ¶ 14, 351 Mont. 144, 214 P.3d 708). ¶18 Our review of constitutional questions is plenary, State v. Dugan, 2013 MT 38, ¶ 14, 369 Mont. 39, ___ P.3d ___, and we “review for correctness a district court’s interpretation of constitutional law.” Nichols v. Dept. of Just., 2011 MT 33, ¶ 8, 359 Mont. 251, 248 P.3d 813. Likewise, to the extent a district court’s ruling is based on interpretation of a statute, our review is de novo. State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811. 8 DISCUSSION ¶19 1. Did the District Court incorrectly conclude that, because the arresting officer did not follow § 46-6-312, MCA, all evidence gathered after Kelm’s arrest should be suppressed? ¶20 The District Court concluded that even though Krause had probable cause to arrest Kelm, he failed to satisfy the requirements of § 46-6-312, MCA, when arresting her. That statute provides: A peace officer making an arrest without a warrant shall inform the person to be arrested of the officer’s authority, of the intention to arrest that person, and of the cause of the arrest, except when the person to be arrested is actually engaged in the commission of or in an attempt to commit an offense or is pursued immediately after its commission, after an escape, or when the giving of the information will imperil the arrest. Section 46-6-312, MCA. Because Krause did not satisfy those requirements, the District Court concluded that his arrest of Kelm was unlawful and, consequently, the court suppressed “all evidence the State gathered after Deputy Krause arrested [Kelm].” ¶21 For purposes of our analysis of this case, we begin with the State’s concession that “at the moment Kelm was placed in handcuffs in the back of the patrol car, she was ‘for all intents and purposes . . . arrested.’”2 The State argues that Kelm’s arrest was lawful because Krause had probable cause to arrest her and that Krause satisfied the requirements of § 46-6-312, MCA, because “the circumstances of the stop and arrest 2 The State suggests on appeal that “[i]t was arguable on the facts presented that Kelm was not ‘under arrest’ during the short trip to the station to complete field sobriety tests, but only reasonably and temporarily detained for appropriate investigative purposes made necessary under the circumstances.” It agrees, however, that it is bound by its concession before the District Court. We therefore assume without deciding that Kelm was under arrest. 9 evident in the record are more than sufficient to establish that Kelm was informed of the necessary statutory requirements[.]” ¶22 When interpreting a statute, “we look first to the plain meaning of the words it contains.” Kluver v. PPL Mont., LLC, 2012 MT 321, ¶ 55, 368 Mont. 101, 293 P.3d 817. When the language of a statute “is clear and unambiguous, the statute speaks for itself and we will not resort to other means of interpretation.” Kluver, ¶ 55. The language of § 46-6-312, MCA, makes plain that, unless certain exceptions apply, a law enforcement officer making a warrantless arrest “shall inform” the person being arrested of: (1) the officer’s authority to arrest her; (2) the officer’s intention to arrest her; and (3) the reason why she is being arrested. ¶23 During the suppression hearing, Krause agreed that “at no point in time did [he] tell Ms. Kelm out at the scene of the stop that she was under arrest.” We are unconvinced by the State’s argument that, based on the facts and circumstances of the traffic stop, Kelm “was informed” that she was under arrest. ¶24 Whether or not Krause met the technical requirements of the statute, however, the District Court erred in concluding that his failure rendered Kelm’s arrest unlawful. The court determined that an officer’s failure to inform the arrestee of the arrest “is a structural defect to the arrest itself rendering it unlawful.” We have held, however, that the exclusionary rule will not apply to violations of statutory requirements unless the violation affects the accused’s substantial rights. State v. West, 1998 MT 282, ¶¶ 8-9, 291 Mont. 435, 968 P.2d 289 (citing State v. Pipkin, 1998 MT 143, ¶ 27, 289 Mont. 240, 10 961 P.2d 733); see also § 46-5-103(1)(b), (c), MCA. The purpose of statutes like § 46-6- 312, MCA, is to ensure that an officer communicates adequately his authority and actions when there is no written warrant authorizing the arrest. State v. Bradshaw, 53 Mont. 96, 99, 161 P. 710, 711 (1916) (holding that the officer must “make known his official character, or it must be known to the offender; else there is no obligation upon the latter to submit”) (emphasis added). Kelm does not allege that she lacked actual knowledge of Krause’s authority to arrest her, his intention to arrest her, or the reasons why he was taking her into custody. Consequently, we conclude that Krause’s failure to use the words, “you are under arrest,” when he placed her in the patrol car, did not impair Kelm’s substantial rights. ¶25 The lawfulness of a warrantless arrest turns on the existence of probable cause. An officer “must have probable cause to justify a warrantless arrest.” State v. Williamson, 1998 MT 199, ¶ 12, 290 Mont. 321, 965 P.2d 231 (citing § 46-6-311(1), MCA). Thus, probable cause is the “standard set by the Constitution” by which the reasonableness of a seizure is measured to determine whether the arrestee’s constitutional rights have been protected. Henry v. U.S., 361 U.S. 98, 102, 80 S. Ct. 168, 171 (1959); see also Carroll v. U.S., 267 U.S. 132, 161, 45 S. Ct. 280, 288 (1925). Probable cause exists “where the facts and circumstances within an officer’s personal knowledge prove sufficient to warrant a reasonable person to believe that someone is committing or has committed an offense.” State v. Ellington, 2006 MT 219, ¶ 16, 333 Mont. 411, 143 P.3d 119 (citing Williamson, ¶ 12). If supported by facts demonstrating probable cause, a 11 warrantless arrest will be held lawful. Virginia v. Moore, 553 U.S. 164, 171, 128 S. Ct. 1598, 1604 (2008). Krause lawfully arrested Kelm because he had probable cause to believe that Kelm was driving under the influence of alcohol. He observed Kelm driving her truck erratically across the center and fog lines of the highway, her eyes were “bloodshot and glassy,” and the HGN test he administered indicated Kelm was intoxicated. Kelm did not dispute that these facts were sufficient to establish probable cause for her arrest. ¶26 With no indication that Kelm’s substantial rights were impaired, probable cause for the arrest protects her constitutional right to be free from unreasonable seizures, despite any noncompliance with the arrest statute. Applying that standard, Krause’s arrest of Kelm was lawful. Because the arrest was lawful, Krause’s failure to satisfy all of the requirements prescribed in § 46-6-312, MCA, did not require the suppression of evidence obtained after the arrest. The District Court erred in concluding otherwise. ¶27 2. Did the District Court incorrectly conclude that the officer’s failure to advise Kelm of her Miranda rights at the time of her arrest required suppression of all evidence obtained after her arrest? ¶28 The District Court concluded that “[a]t the point of arrest, [Kelm] was entitled to a Miranda warning.” Because Krause did not read Kelm her Miranda rights immediately after arresting her, the court concluded that Kelm’s arrest was unlawful and it suppressed all evidence collected by the State after the arrest. The State concedes that the answers to two questions posed by Krause to Kelm while Kelm was in the patrol car should be 12 suppressed. Nevertheless, the State contends that the court “erred when it suppressed evidence obtained from Kelm that was not derived from custodial interrogation.” Kelm was not entitled to a Miranda warning prior to the second HGN test, the field sobriety tests that she completed at the jail, or the Intoxilyzer breath test, according to the State, because the results of those tests were not self-incriminating statements that must be suppressed in the absence of a Miranda waiver. We agree with the State that Kelm’s responses to Krause’s two questions comprise the only evidence that must be suppressed. ¶29 The Fifth Amendment to the United States Constitution and Article II, Section 25 of the Montana Constitution both provide that no person shall be compelled, in any criminal case, to be a witness against himself. State v. Larson, 2010 MT 236, ¶ 28, 358 Mont. 156, 243 P.3d 1130 (citing State v. Olson, 2003 MT 61, ¶ 13, 314 Mont. 402, 66 P.3d 297). When an individual “is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning,” he “‘must be adequately and effectively apprised of his [Miranda] rights and the exercise of those rights must be fully honored.’” Morrisey, ¶ 28 (quoting Miranda v. Arizona, 384 U.S. 436, 467, 478, 86 S. Ct. 1602, 1624, 1630 (1966)) (emphasis added); see also § 46- 6-107, MCA. Failure by law enforcement officers to provide a Miranda warning and obtain a waiver of rights prior to a custodial interrogation “generally requires exclusion of any statements obtained.” Morrisey, ¶ 28 (emphasis added). ¶30 Although the constitutional protections under Miranda are afforded during a custodial interrogation, those protections generally do not attach during field sobriety 13 tests or breath tests because “the privilege against self-incrimination does not extend to real or objective evidence.” State v. Van Kirk, 2001 MT 184, ¶ 22, 306 Mont. 215, 32 P.3d 735; see also Schmerber v. Cal., 384 U.S. 757, 764, 86 S. Ct. 1826, 1832 (1966). The Fifth Amendment “offers no protection against compulsion . . . to assume a stance, to walk, or to make a particular gesture.” State v. Armfield, 214 Mont. 229, 235, 693 P.2d 1226, 1229-30 (1984) (overruled on other grounds, State v. Reavley, 2003 MT 298, ¶ 41, 318 Mont. 150, 79 P.3d 270). Consequently, a “mere request that the suspect perform a series of sobriety tests, done without any interrogation of the suspect, does not constitute a custodial interrogation” and does not require law enforcement officers to read a suspect his or her Miranda rights prior to administering those tests. Van Kirk, ¶ 22; see also State v. Thompson, 237 Mont. 384, 386-88, 773 P.2d 722, 723-24 (1989). Similarly, the Fifth Amendment offers no protection against compulsion to submit to a breath test because “[t]he results of a breath test are not self-incriminating communications,” but instead are “unprotected ‘physical or real’ evidence.” Armfield, 214 Mont. at 235, 693 P.2d at 1229- 30; see also State v. Michaud, 2008 MT 88, ¶ 61, 342 Mont. 244, 180 P.3d 636. Because a compulsory breath test is not a custodial interrogation, a law enforcement officer is not required to read a suspect his or her Miranda rights prior to administering the test. Missoula v. Forest, 236 Mont. 129, 133-34, 769 P.2d 699, 701-02 (1989). ¶31 The District Court erred in concluding that Krause’s failure to give Kelm a Miranda warning immediately following her arrest required suppression of all evidence subsequently obtained. A Miranda warning is required only prior to a custodial 14 interrogation. The State concedes that the District Court properly suppressed the two self-incriminating statements Kelm made in response to Krause’s questions after he placed her in the patrol vehicle. The results of the second HGN test, the field sobriety tests, the Intoxilyzer test and other non-testimonial evidence gathered at the jail should not have been suppressed, however, because those results are real or objective evidence not protected by the right against self-incrimination. Accordingly, we reverse the District Court’s suppression of that evidence. ¶32 3. Did the District Court incorrectly conclude that evidence seized from Kelm’s vehicle must be suppressed? ¶33 The State argued that Krause lawfully seized the beer bottle and plastic cup containing alcohol from Kelm’s truck without a warrant under the plain view doctrine, which “permits the seizure of evidence that otherwise could not be seized without a warrant[.]” State v. Lewis, 2007 MT 295, ¶ 24, 340 Mont. 10, 171 P.3d 731. The District Court rejected the State’s argument that the seizure fell within the plain view doctrine because it concluded that Krause was not “lawfully present” in Kelm’s truck when he seized the evidence. ¶34 We use three criteria for determining whether a police officer’s seizure of evidence was valid under the plain view doctrine: (1) “the officer must be lawfully at the place from which he could plainly view the evidence”; (2) “the item must be in plain view and its incriminating character be immediately apparent”; and (3) the officer “must also have a lawful right of access to the object itself.” State v. Doyle, 1998 MT 195, ¶ 11, 15 290 Mont. 287, 963 P.2d 1255. We addressed an issue similar to that raised by Kelm in State v. Delao, 2006 MT 179, 333 Mont. 68, 140 P.3d 1065. A highway patrol officer arrested Delao and placed him in the backseat of his cruiser while Delao’s vehicle, which was parked on the side of the road, remained unsecured with the doors unlocked and the windows opened. Delao, ¶¶ 5-6. As the officer attempted to secure the vehicle, he seized a bottle of vodka in plain view in the vehicle. Delao, ¶¶ 7-8. We concluded that the officer “had an obligation to secure Delao’s vehicle” so as to prevent damage to or theft of the vehicle because doing so “fell within the ambit of the slight duty of care that [the officer] owed to Delao” as a gratuitous bailee. Delao, ¶¶ 18-20 (citing State v. Sawyer, 174 Mont. 512, 517-18, 571 P.2d 1131, 1134 (1977)). For that reason, we concluded that the officer “was lawfully present inside Delao’s vehicle” when he seized the bottle of vodka. Delao, ¶ 31. ¶35 Kelm argues that the District Court properly distinguished Delao because the windows of Kelm’s truck were rolled up and the doors were locked. The court determined that “[t]here was no better chance that the contents of [Kelm’s] vehicle itself would be damaged or taken if Deputy Krause left the lights on than if he did not.” Although Kelm also contends that Krause exceeded his duty under Delao because he stood “at the open door of Ms. Kelm’s pickup for more than a minute talking on the phone” prior to seizing the evidence, she did not raise this argument before the District Court and we refuse to consider it for the first time on appeal. State v. Ferguson, 2005 MT 343, ¶ 38, 330 Mont. 103, 126 P.3d 463. 16 ¶36 Consistent with precedent, we conclude that Krause’s decision to turn off the lights in Kelm’s truck prior to driving her to the jail fell within the slight duty of care that he owed Kelm as her gratuitous bailee. Delao, ¶¶ 18-20 (citing Sawyer, 174 Mont. at 517-18, 571 P.2d at 1134). Kelm’s truck was parked on the side of an icy highway in sub-zero temperatures. It was reasonable for Krause to believe that, if he did not turn off the truck’s lights, the truck’s battery would go dead while Kelm was performing her sobriety tests. If she passed those tests, Krause would then have to return Kelm to a vehicle parked on the side of the road in sub-zero temperatures that could not start. In such an event, Krause would be slightly responsible for Kelm’s safety and the condition of her truck. Given these circumstances, Krause made a reasonable effort to perform the duty of care set forth in Sawyer and Delao. Delao, ¶ 20. In light of this conclusion, we need not consider Kelm’s argument that her consent to have Krause turn off the headlights in her truck was not freely given. ¶37 We hold that Krause was lawfully present in Kelm’s vehicle when he seized the beer bottle and plastic cup. Delao, ¶ 31. Krause had lawful access to the beer bottle and plastic cup. Those items were in plain view and the incriminating nature of those items immediately was apparent. Accordingly, the District Court erred in granting Kelm’s motion to suppress those items. See Delao, ¶ 31. CONCLUSION ¶38 The District Court erred in suppressing all of the evidence gathered after Kelm was taken into custody, except for Kelm’s answers to two questions asked by Krause 17 while Kelm was handcuffed and in the backseat of Krause’s patrol car. Because we affirm the District Court’s suppression of those statements, Kelm “prevails on appeal” as contemplated by § 46-12-204(3), MCA, and, pursuant to that statute, she must be allowed to withdraw the guilty plea she entered in Justice Court. Section 46-12-204(3), MCA. ¶39 Affirmed in part, reversed in part, and remanded to the Sheridan County Justice Court to provide Kelm the opportunity to withdraw her guilty plea and proceed to trial. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BRIAN MORRIS | April 30, 2013 |
3d0fb143-b963-4350-88c7-06c5dd16bb34 | Grimes v. Rantz | 2013 MT 118N | DA 12-0692 | Montana | Montana Supreme Court | DA 12-0692 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 118N BURLY MICHAEL GRIMES, Plaintiff and Appellant, v. LIZ RANTZ, MEDICAL DIRECTOR, MONTANA STATE PRISON, (Individual Capacity), Defendant and Appellee. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDV-2012-505 Honorable Jeffrey M. Sherlock, Presiding Judge COUNSEL OF RECORD: For Appellant: Burly Michael Grimes, self-represented; Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Ira Eakin, McKenzie Hannan, Special Assistant Attorneys General; Helena, Montana Submitted on Briefs: April 3, 2013 Decided: April 30, 2013 Filed: __________________________________________ Clerk April 30 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 Burly Michael Grimes (Grimes), appeals from the order entered in this matter by the First Judicial District Court on October 22, 2012, which granted the motion to dismiss this matter filed by Liz Rantz (Rantz). This is a declaratory action that is related to a tort action also filed by Grimes in the First Judicial District Court against Rantz. The tort action alleges negligence and violation of Grimes’s civil rights by Rantz as a result of Rantz’s alleged refusal, in her capacity as medical director for the Department of Corrections, to authorize proper medical care for Grimes. The State’s Tort Defense Division is defending Rantz in that action pursuant to her contract with the State, which provides that the State will defend and indemnify Rantz for duties performed on behalf of the State pursuant to § 2-9-305, MCA. Section 2-9-305, MCA, governs immunization, defense, and indemnification of public officers and employees. ¶3 Grimes filed this declaratory action “seeking a formal decree as to the Statutory and Contractual legal standing” of Rantz. His petition alleges, and he argues on appeal, 3 that Rantz is not a state employee, but rather a private contractor who is not entitled to legal representation or indemnification by the State. He further argues that the provision of Rantz’s contract with the State that provides for indemnification constitutes an illegal object of contract. Grimes asserts that, without a declaration as to Rantz’s legal status, the provisions of § 2-9-305(5), MCA, “would prohibit [Grimes] from recovering judgment against [Rantz] separately should the State ‘suddenly decide to take the position that it owes [Rantz] no duty of indemnification.’” ¶4 Grimes’s briefing does not address the basis for the District Court’s granting of Rantz’s motion to dismiss, other than to argue that he has an unspecified constitutional right to the declaratory ruling he requests. The District Court reasoned that the question of whether Rantz is a state employee or a contractor may be an issue in the tort case, but cannot be answered in this declaratory proceeding. Issues such as whether the State would be required to pay damages to Grimes would also be determined in the tort proceeding. Thus, the District Court concluded that there was no justiciable controversy in this case and that Grimes sought only an advisory opinion. ¶5 “The decision to dismiss a complaint for declaratory relief is within the sound discretion of the district court.” Renville v. Farmers Ins. Exch., 2003 MT 103, ¶ 9, 315 Mont. 295, 69 P.3d 217 (citation omitted). ¶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 4 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. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BETH BAKER | April 30, 2013 |
73132ca8-21a7-4cde-9dc7-b6f76edde5d6 | Moline v. Saint-Denis | 2013 MT 103N | DA 12-0442 | Montana | Montana Supreme Court | DA 12-0442 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 103N HOWARD EDWARD MOLINE, a/k/a ED MOLINE and CYNTHIA M. MOLINE, a/k/a CINDY MOLINE, Plaintiffs and Appellants, v. CHRISTAL SAINT-DENIS, DESHAZER REAL ESTATE, INC., and DOREEN GULLINGSRUD, Defendants and Appellees. APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DV-08-190 Honorable Stewart E. Stadler, Presiding Judge COUNSEL OF RECORD: For Appellant: Gary A. Crowe, Attorney at Law, Kalispell, Montana For Appellee Christal Saint-Denis: Bryce R. Floch, Attorney at Law, Kalispell, Montana For Appellees Deshazer Real Estate, Inc. and Doreen Gullingsrud: Mark L. Stermitz, Crowley Fleck PLLP, Missoula, Montana Submitted on Briefs: April 3, 2013 Decided: April 16, 2013 Filed: __________________________________________ Clerk April 16 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 Howard Edward and Cynthia M. Moline purchased a house in Troy, Montana, in the spring of 2007. In August 2008, the Molines filed the instant action in the Nineteenth Judicial District Court, Lincoln County, against their realtor (Coldwell Banker Beaglewood Realtors), their real estate agent (Jim Jones), the seller of the house (Christal Saint-Denis), the seller’s realtor (Deshazer Real Estate), the seller’s real estate agent (DoreenGullingsrud), the seller’s builder (Gene Bushnell), the appraiser (Brad Kelsch), and the appraiser’s firm (Howell & Associates). ¶3 The District Court granted summary judgment to Kelsch and to Howell & Associates, and that order has not been appealed. The Molines reached a settlement with defendants Coldwell Banker and Jones, and these defendants were dismissed from the lawsuit. Bushnell also was dismissed from the lawsuit by stipulation of the parties. Finally, the District Court granted summary judgment to the remaining defendants (Saint-Denis, Deshazer Real Estate, and Gullingsrud). The Molines appeal the grant of summary judgment as to these last three parties. ¶4 This case arose out of alleged defects in the roof, water well, and septic system of the house the Molines purchased from Saint-Denis. Prior to the sale, tenants living in the house advised Saint-Denis that the roof leaked. Saint-Denis contracted with Bushnell to remove 3 the cedar shakes and replace the roof with tin. Bushnell was not hired to replace the roof structure itself, and he gave no written warranty for the roof. After Bushnell completed his work, Saint-Denis’s tenants did not report any further leaking. The tenants never reported any problems with the well or the septic system. ¶5 In late 2007, following their purchase of the house, the Molines contacted Bushnell and complained that the roof leaked. Bushnell inspected the roof and advised the Molines that the roof was not the problem; rather, the “leaking” was actually condensation forming in the house and running into the ceiling and interior of the house. The Molines did not contract with Bushnell to do any repair or other work on the roof or any other part of the house. ¶6 In granting summary judgment to Saint-Denis, the District Court determined that the Molines had failed to offer any evidence raising a genuine issue of material fact regarding their claims of negligent misrepresentation, constructive fraud, actual fraud, breach of the covenant of good faith and fair dealing, and punitive damages. Saint-Denis never lived at the house. She was unaware of any defects in the roof following Bushnell’s replacement of the cedar shakes with metal roofing. She received no complaints from her tenants regarding the roof after Bushnell’s repairs. Saint-Denis also was not aware of the alleged problems with the well and the septic system. Her tenants never reported any such problems. Moreover, despite the Molines’ contention that a home inspection would have revealed all of the alleged problems, the Molines waived a home inspection. Instead, the Molines themselves inspected the house. In so doing, they had adequate opportunity to make the observations that they now claim establish that the roof leaked. In fact, the Molines contend 4 that, at the time they viewed the house, there were stains on the ceiling and signs that water was leaking from the roof or gathering under the eaves and leaking into the house. Yet, the Molines purchased the house despite this evidence. Likewise, the Molines were aware of the condition of the well prior to the purchase, as they had the well log which showed a sufficient water flow. They also had a copy of the septic permit, and thus were aware of the age and size of the septic system. The Molines failed to produce any evidence that Saint- Denis had any knowledge of the condition of the well and the septic system, other than that each was adequate. ¶7 As to Deshazer Real Estate and Gullingsrud, the District Court observed that the provisions set forth in Title 37, chapter 51 of the Montana Code Annotated “govern the relationships between brokers or salespersons and buyers or sellers and are intended to replace the duties of agents as provided elsewhere in state law and replace the common law as applied to these relationships.” Section 37-51-313(1), MCA (emphasis added). The Molines, however, had not alleged any violations of Title 37, chapter 51, MCA. Moreover, even if the Molines had properly pleaded the violation of a duty under § 37-51-313(3), MCA (detailing a seller agent’s obligations to the buyer), the District Court observed that neither Deshazer Real Estate nor Gullingsrud had any knowledge (either actual knowledge or imputed knowledge from Saint-Denis) whether the roof leaked, and they in fact believed that the roof was in perfect condition since it recently had been replaced with tin. They also had no knowledge regarding defects in the well or the septic system. Finally, as to the Molines’ claims against Deshazer Real Estate under § 30-14-103, MCA (prohibiting unfair or deceptive acts or practices), Admin. R. M. 23.19.101 (listing unlawful acts or practices), and 5 § 37-51-321, MCA (enumerating the grounds for revoking or suspending a real estate broker’s or salesperson’s license), the District Court again observed that, given the unrefuted assertion of Saint-Denis that she had no knowledge of the roof leaking or of any problems with the well or the septic system, there was no knowledge of such problems that could be imputed to Gullingsrud and, by extension, to Deshazer Real Estate. ¶8 The Molines contend on appeal that the District Court erred in granting summary judgment to Saint-Denis, Gullingsrud, and Deshazer Real Estate. At the summary judgment stage, a district 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, depositions, answers to interrogatories, admissions on file, and 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. 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 did the district court. Lucas v. Stevenson, 2013 MT 15, ¶ 12, 368 Mont. 269, 294 P.3d 377. Having reviewed the record and the parties’ briefs on appeal, we agree with the District Court that the Molines have failed to demonstrate a genuine issue of material fact with respect to their claims against Saint-Denis, Gullingsrud, and Deshazer Real Estate, and that these defendants are entitled to judgment as a matter of law. 6 ¶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. The District Court correctly applied the rules for evaluating a motion for summary judgment. ¶10 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JIM RICE | April 16, 2013 |
80932493-6172-437c-9094-f0f52a55cdc2 | Feller v. First Interstate Banksystem, Inc. | 2013 MT 90 | DA 12-0406 | Montana | Montana Supreme Court | DA 12-0406 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 90 MARILYN JEAN FELLER, Plaintiff and Appellant, v. FIRST INTERSTATE BANCSYSTEM, INC. and FIRST INTERSTATE BANK, Defendant and Appellee. APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Big Horn, Cause No. DV 2011-28 Honorable Blair Jones, Presiding Judge COUNSEL OF RECORD: For Appellant: Rodney T. Hartman, Matthew B. Gallinger, Tolliver Law Firm, P.C., Billings, Montana For Appellee: David L. Charles, Danielle A. R. Coffman, Crowley Fleck, PLLP, Billings, Montana Submitted on Briefs: February 13, 2013 Decided: April 9, 2013 April 9 2013 2 Filed: __________________________________________ Clerk 3 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Marilyn Jean Feller (Feller) appeals from an order of the Twenty-Second Judicial District Court, Big Horn County, granting summary judgment to First Interstate Bancsystem, Inc. and First Interstate Bank (collectively the Bank) on Feller’s claims of negligence, actual and constructive fraud, wrongful conversion, intentional and negligent infliction of emotional distress, deceit, breach of contract, breach of the covenant of good faith and fair dealing, and negligent misrepresentation. We affirm the District Court’s entry of summary judgment in favor of the Bank on all of Feller’s claims. ISSUES ¶2 Feller raises the following three issues on appeal: ¶3 1. Did the District Court err by granting summary judgment to the Bank based on preemption by the federal Fair Credit Reporting Act? ¶4 2. Did the District Court err in denying Feller’s motion for partial summary judgment and granting the Bank’s motion for summary judgment on Feller’s conversion claim? ¶5 3. Did the District Court err in dismissing Feller’s emotional distress claims? FACTUAL AND PROCEDURAL BACKGROUND ¶6 Feller’s allegations stem from the actions of a former Bank employee, Diane Becker (Becker), who is now serving a sentence in federal prison related to an embezzlement scheme. Becker worked as a vice president of the Bank’s Hardin branch and assisted Feller with her banking and finances. Feller also had a personal relationship with Becker. Becker is married to Feller’s ex-husband and Feller described her as a 4 friend. Becker’s criminal scheme involved booking phony loans or lines of credit in the names of relatives or acquaintances and appropriating these funds for her personal use. Becker was suspended from her employment at the Bank in late 2007. ¶7 Feller had been a customer of the Bank for many years and had a home mortgage loan through the Bank. Becker was Feller’s primary contact at the Bank. After Becker’s suspension, the Bank’s audit department sent Feller a letter on December 28, 2007, asking Feller to confirm whether the Bank’s records accurately reflected the loan and account balances in her name. The letter contained information on two loans other than her home mortgage loan. Feller checked the box on the form stating that that information was correct, and returned the documents to the Bank on January 3, 2008. ¶8 In April 2008, Federal Bureau of Investigation (FBI) agents visited Feller and questioned her about her knowledge of financial dealings involving Becker. At the time of the interview, Feller was aware that Becker had been suspended by the Bank but claimed that she did not know the reasons for the suspension. Feller testified in a deposition that she was “terrified” by the interview because it was intimated that Feller was somehow involved in Becker’s illegal actions. Feller went on to testify in her deposition, however, that the FBI agents were professional and did nothing improper. Feller was told not to talk about the investigation. The Bank was not involved in the questioning of Feller. ¶9 Soon after the FBI questioning, Feller spoke with Bank employee Tom Hopfauf (Hopfauf) about refinancing her home mortgage to avoid an upcoming balloon payment. Hopfauf informed Feller that she had two other loans besides the home mortgage that 5 needed to be taken care of. Feller claims that she disputed whether the two other loans belonged to her, but felt unable to talk with Hopfauf about it due to the FBI’s involvement. Feller was unable to refinance through the Bank and was also turned down by another financial institution. ¶10 In May 2008, despite her awareness that Becker was under investigation, Feller asked Becker to assist her in refinancing her home mortgage. With Becker’s assistance, Feller obtained a loan from Guild Mortgage, an institution unrelated to the Bank. After helping Feller refinance, Becker allegedly took some of the loan proceeds. Feller explained that she allowed Becker to take some of this money because she thought Becker would repay it. The loan from Guild Mortgage was used to pay off Feller’s home mortgage loan at the Bank. ¶11 Feller returned to the Bank in late 2008 and spoke with Bank employee Sandy Struck (Struck) about withdrawing the balance of her escrow account. Struck told Feller that Feller should speak with Bank president Bill Fisher (Fisher). Feller chose not follow up with Fisher, later citing the request of the FBI agents that she not discuss any matters related to the investigation. ¶12 In December 2009, Becker was sent to prison after pleading guilty to federal fraud and money laundering charges. Becker admitted to illegally siphoning funds totaling more than $1.6 million over a five-year period. Even after Becker was sent to prison, Feller admits that she did not try to contact Fisher or anyone else at the Bank to secure the return of her escrow account balance. 6 ¶13 On April 20, 2011, Feller filed a complaint against the Bank containing the following seven counts: (1) negligent supervision; (2) actual and constructive fraud; (3) wrongful conversion; (4) intentional and/or negligent infliction of emotional distress; (5) deceit; (6) breach of contract and the covenant of good faith and fair dealing; and (7) negligent misrepresentation. Feller alleged that she was “severely traumatized” by the actions of Becker and the Bank. Specifically, she claims that her financial standing and credit reputation were damaged, and she suffered extreme physical and emotional distress. ¶14 On May 13, 2011, the Bank sent a check to Feller for $582.13, which represented the $449.40 escrow account balance plus ten percent interest. The Bank filed a motion for summary judgment on October 14, 2011. The Bank asserted that all claims relating to its obligations to report loans to credit reporting agencies and any claims that Feller’s credit was damaged were preempted by the Fair Credit Reporting Act (FCRA). The Bank also claimed that Feller’s independent cause of action for intentional and negligent infliction of emotional distress could be disposed of through summary judgment because Feller failed to demonstrate that she suffered the requisite level of “serious” or “severe” distress. The Bank argued that Feller’s conversion claim was moot because the money in her escrow account had been returned with interest. Finally, the Bank contended that Feller suffered no damages. Feller filed a cross-motion for partial summary judgment on her conversion claim on December 23, 2011. The District Court held a hearing on the pending motions for summary judgment on January 25, 2012. 7 ¶15 On May 30, 2012, the District Court issued its order granting the Bank’s motion for summary judgment and denying Feller’s motion for partial summary judgment. First, the District Court determined that Feller’s state law causes of action were preempted by the FCRA. Next, the District Court concluded that summary judgment was appropriate on Feller’s stand-alone emotional distress claims because Feller failed to provide sufficient evidence that she actually experienced serious or severe emotional distress. Lastly, the District Court denied Feller’s motion for summary judgment and entered summary judgment for the Bank on Feller’s conversion claim because Feller failed to establish the element of unauthorized control. Feller appeals. STANDARDS OF REVIEW ¶16 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; 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 ¶17 Did the District Court err by granting summary judgment to the Bank based on preemption by the federal Fair Credit Reporting Act? ¶18 The FCRA, 15 U.S.C. § 1681 et seq., establishes standards for the collection, communication, and use of consumer information for business purposes. Roybal v. 8 Equifax, 405 F. Supp. 2d 1177, 1181 (E.D. Cal. 2005). The stated purpose of the FCRA is to “require that consumer reporting agencies adopt reasonable procedures” to ensure the accuracy and fairness of credit reporting. 15 U.S.C. § 1681; see also Curtis v. Citibank, 2011 MT 247, ¶ 8, 362 Mont. 211, 261 P.3d 1059. ¶19 The FCRA contains two provisions that function to preempt state law causes of action. The first, 15 U.S.C. § 1681h(e), reads as follows: [N]o consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against any consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency, based on information disclosed pursuant to section 609, 610, or 615 [15 USCS § 1681g, 1681h, or 1681m], or based on information disclosed by a user of a consumer report to or for a consumer against whom the user has taken adverse action, based in whole or in part on the report, except as to false information furnished with malice or willful intent to injure such consumer. The second preemption provision, 15 U.S.C. § 1681t(b)(1)(F), provides that “No requirement or prohibition may be imposed under the laws of any State . . . with respect to any subject matter regulated under . . . [15 USCS § 1681s-2], relating to the responsibilities of persons who furnish information to consumer reporting agencies. . . .” 15 U.S.C. § 1681t(b)(1)(F). Section 1681s-2 addresses the responsibilities of those who furnish information in the ordinary course of business to consumer reporting agencies. The FCRA requires that furnishers of information provide accurate information and take action when notified of a dispute. 15 U.S.C. § 1681s-2. The Bank focused its preemption argument on § 1681t(b)(1)(F). 9 ¶20 Feller complains that because the Bank released credit information relating to her loans with the Bank—including the two loans she initially claimed as hers but later denied having taken—her credit was damaged and she was unable to secure additional loans. The Bank argued that all of Feller’s claims relating to the Bank’s obligations to accurately report loan information to credit reporting agencies and those claims based on an alleged injury to her credit were preempted by § 1681t(b)(1)(F). The Bank primarily relied on Roybal v. Equifax, 405 F. Supp. 2d 1177 (E.D. Cal. 2005). The Roybals brought state and federal claims against various furnishers of credit information and credit reporting agencies after discovering that their credit report contained inaccurate information. Roybal, 405 F. Supp. 2d at 1178-79. The court reasoned that “[o]n its face, the FCRA precludes all state statutory or common law causes of action that would impose any ‘requirement or prohibition’ on the furnishers of credit.” Roybal, 405 F. Supp. 2d at 1181. Since the Roybals’ state claims were based on alleged injury arising purely from the reporting of credit information by a furnisher of credit, the court held that the Roybals’ state claims were preempted in their entirety. Roybal, 405 F. Supp. 2d at 1181-82. The Bank also pointed to other similar federal court decisions. See e.g. Riley v. GMAC, 226 F. Supp. 2d 1316, 1322 (S.D. Ala. 2002); Hasvold v. First USA Bank, N.A., 194 F. Supp. 2d 1228, 1239 (D. Wyo. 2002); Jaramillo v. Experian Info. Solutions, Inc., 155 F. Supp. 2d 356, 361-62 (E.D. Pa. 2001). ¶21 Feller countered that her claims were not preempted by the FCRA. Feller referred to two cases for the proposition that Montana should follow California’s example by not allowing the FCRA to frustrate private remedies. The first case cited by Feller, Cisneros 10 v. U.D. Registry, Inc., 39 Cal. App. 4th 548, 46 Cal. Rptr. 2d 233 (Cal. App. 1995), was decided prior to the enactment of § 1681t(b)(1)(F) in 1996. The second case cited by Feller, Nelson v. Chase Manhattan Mortg. Corp., 282 F.3d 1057 (9th Cir. 2002), once again does not address preemption pursuant to § 1681t(b)(1)(F). Feller conceded that any independent claims brought under the FCRA would be preempted, but maintained that her state law claims were not preempted. ¶22 Feller’s complaint contained the following seven claims: (1) negligent supervision; (2) actual and constructive fraud; (3) wrongful conversion; (4) intentional and/or negligent infliction of emotional distress; (5) deceit; (6) breach of contract and the covenant of good faith and fair dealing; and (7) negligent misrepresentation. Feller attached her credit report to her complaint and alleged that it contained incorrect information about several loans and accounts. Feller alleged that the Bank was subject to the responsibilities of fair and accurate credit reporting as set forth in the FCRA, and she also claimed she was entitled to attorney fees under the FCRA. In granting summary judgment to the Bank, the District Court determined that the FCRA preempted all of Feller’s claims except for her conversion claim and her independent cause of action for emotional distress. ¶23 After reviewing Feller’s complaint, we agree with the District Court. Feller’s claims of negligent supervision, fraud, deceit, breach of contract and the covenant of good faith and fair dealing, and negligent misrepresentation, all stem from her contention that the Bank failed to accurately report information to credit reporting agencies and that as a result, Feller’s credit was damaged. All of the damages alleged under these claims 11 are directly related to Feller’s credit reputation and related repercussions. Such allegations stemming from the Bank’s duties as a furnisher of credit information to accurately report information and take action when notified of a dispute are preempted by the FCRA. Feller fails to cite any authority to the contrary. To allow these state common law claims to proceed would ignore the plain language of § 1681t(b)(1)(F), which precludes all state statutory or common law causes of action that impose any requirement or prohibition on furnishers of credit. ¶24 Accordingly, we hold that the District Court did not err in granting summary judgment to the Bank on the foregoing claims, based on preemption by the FCRA. ¶25 Did the District Court err in denying Feller’s motion for partial summary judgment and granting the Bank’s motion for summary judgment on Feller’s conversion claim? ¶26 A plaintiff alleging a claim of conversion must establish the following four elements: (1) property ownership by the plaintiff; (2) plaintiff’s right of possession of the property; (3) defendant’s unauthorized control over the property; and (4) damages. St. Peter & Warren, P.C. v. Purdom, 2006 MT 172, ¶ 19, 333 Mont. 9, 140 P.3d 478 (citing King v. Zimmerman, 266 Mont. 54, 60, 878 P.2d 895, 899 (1994)). Conversion is “a distinct act of dominion wrongfully exerted over one’s property in denial of, or inconsistent with, the owner’s right . . . .” Bird v. Hiller, 270 Mont. 467, 472, 892 P.2d 931, 934 (1995) (citing Gebhardt v. D.A. Davidson & Co., 203 Mont. 384, 389, 661 P.2d 855, 858 (1983)). ¶27 The District Court determined that Feller failed to establish that the Bank exercised unauthorized control over her escrow account funds. Feller argues that she 12 requested the return of her escrow account funds in late 2008 and the Bank refused to return her money. Feller also asserts that when the Bank issued her a check for the amount of the escrow account plus interest, the Bank admitted it had wrongfully converted her funds. The Bank counters that Feller never followed through in requesting her escrow account balance, and as soon as she filed suit against the Bank and it became aware that she was requesting the funds at issue, the Bank immediately issued a check for her escrow account balance that included ten percent interest. The Bank further maintains that even if Feller could establish unauthorized control, she is unable to show that she suffered any damages as a result of the conversion. ¶28 Feller’s deposition testimony demonstrates that she failed to establish the element of unauthorized control. Feller testified as follows in her deposition: Q. (By Mr. Charles, attorney for the Bank) You and Sandy [Struck] talked the end of 2008 about the escrow balance. That’s 400 some dollars? A. (By Feller) Yes. Q. That was involved in this lawsuit. Right? A. Yes, sir. Q. All right. And she said, “You will have to talk to Bill Fisher.” You didn’t want to talk to Bill Fisher because the FBI agents said, “Don’t talk about the case.” Am I right on that? You have to answer out loud. A. Yes, sir. . . . Q. But at some point you apparently came to the judgment that you were no longer bound by the FBI agents telling you not to talk about this and felt free you could talk about the fact that the FBI agents had interviewed you, I assume. 13 A. I didn’t feel that until probably after she [Becker] went to prison. Q. I’m understanding that was December 15, 2009. A. Yes, sir. Q. All right. Did you, on December 15 or December 16, 2009, or any time after that, go back and talk to Bill Fisher about the escrow balance? A. No, sir. Q. Did you talk to anybody at the bank? A. No, sir. The undisputed facts in the record demonstrate that Feller made no attempt to obtain the funds in her escrow account before filing suit against the Bank. Feller initially asked a Bank employee about the escrow balance, but when she was referred to the proper person at the Bank who could return her money to her, she chose not to pursue her inquiry any further. As such, the record does not show that the Bank’s dominion over Feller’s funds was “unauthorized” or in any way deprived her of her right to retrieve these amounts. ¶29 Further, even if Feller could establish that the Bank exercised unauthorized control over her escrow account funds, she has failed to demonstrate that she suffered any damages as a result of the alleged conversion. Section 27-1-320, MCA, provides that the damages for a conversion claim include “the value of the property at the time of conversion with the interest from that time . . . .” It is undisputed that the Bank returned Feller’s full escrow account balance and included ten percent interest. 14 ¶30 Despite having received the full amount of the disputed sum plus interest, Feller claims that summary judgment is inappropriate because she suffered emotional distress from the alleged conversion and is also entitled to punitive damages. However, our review of Feller’s deposition testimony, pleadings, and evidence establishes that none of Feller’s alleged emotional distress stems from her cause of action for conversion. Feller claims that the interview with the FBI agents caused her emotional distress and she was worried that people would suspect that she was somehow involved in Becker’s illegal activities. Feller was also worried about her credit and how it would affect her overall financial situation. Feller failed to assert at any time before the District Court that the alleged conversion of $449.40 was the cause of her emotional distress. ¶31 Because Feller has failed to establish that she incurred damages as a result of the Bank’s ostensible conversion, she cannot state a claim for punitive damages arising from that claim. It is axiomatic that one cannot recover punitive damages in a cause of action unless she first recovers compensatory damages. Jacobsen v. Allstate Ins. Co., 2009 MT 248, ¶ 67, 351 Mont. 464, 215 P.3d 649; Stipe v. First Interstate Bank – Polson, 2008 MT 239, ¶ 23, 344 Mont. 435, 188 P.3d 1063. Therefore, we decline to address the punitive claim further. ¶32 Since Feller failed to establish that the Bank exercised unauthorized control over her property and failed to demonstrate that she suffered any damages, we hold that the District Court did not err in granting summary judgment to the Bank on Feller’s conversion claims. ¶33 Did the District Court err in dismissing Feller’s emotional distress claims? 15 ¶34 Under Montana law, a plaintiff’s independent or “stand alone” claim for intentional or negligent infliction of emotional distress can be maintained only upon a showing that the plaintiff suffered “serious” or “severe” emotional distress as the reasonably foreseeable consequence of the defendant’s act or omission. Sacco v. High Country Indep. Press, 271 Mont. 209, 237, 896 P.2d 411, 428 (1995). To constitute “serious” or “severe,” the emotional distress must be “so severe no reasonable person could be expected to endure it.” Sacco, 271 Mont. at 234, 896 P.2d at 426. In Sacco, we explained this requirement in further detail: Emotional distress passes under various names, such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that the liability arises. Complete emotional tranquillity is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable [person] could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity. Severe distress must be proved. . . . The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor had knowledge. Sacco, 271 Mont. at 234, 896 P.2d at 426 (quoting Restatement (Second) of Torts § 46 cmt. j (1965)). The requirement that the emotional distress be serious or severe was imposed to alleviate concerns of opening the floodgates to numerous and perhaps even fraudulent claims. Sacco, 271 Mont. at 237, 896 P.2d at 428. ¶35 This Court further clarified the serious or severe requirement discussed in Sacco in Henricksen v. State, 2004 MT 20, ¶ 79, 319 Mont. 307, 84 P.3d 38. We explained that 16 “[i]n cases where there is a physical manifestation of bodily harm resulting from emotional distress, such as PTSD, this bodily harm is sufficient evidence that the emotional distress suffered by the plaintiff is genuine and severe.” Henricksen, ¶ 79. Relying on the Restatement (Second) of Torts § 46 cmt. k, the Court reiterated that “normally, severe emotional distress is accompanied or followed by shock, illness, or other bodily harm, which in itself affords evidence that the distress is genuine and severe.” Henricksen, ¶ 79. ¶36 In Renville v. Fredrickson, 2004 MT 324, 324 Mont. 86, 101 P.3d 773, we examined a mother’s negligent infliction of emotional distress claim to determine whether her emotional distress was serious or severe enough to be compensable. Renville’s claims arose from an automobile accident in which her adult son was killed. Renville, ¶ 4. Renville did not witness the accident, but when she was informed of what had happened, she “began to scream and cry and her body shook.” Renville, ¶ 14. The Court took note of the following factors in determining that Renville had not presented sufficient evidence to establish that the distress caused by her son’s death was so severe that no reasonable person should be expected to endure it: there was no indication of any physical manifestation of grief; no counseling was sought or recommended; she chose not to take antidepressants; her use of medication did not dramatically increase; she did not have continuous nights of sleeplessness or days without appetite; and she maintained close relationships with family and friends. Renville, ¶ 15. While the Court recognized that she suffered a traumatic loss, it affirmed the district court’s grant of summary 17 judgment after concluding that the evidence presented did not demonstrate severe, compensable emotional distress. Renville, ¶¶ 15-16. ¶37 The intensity and duration of the distress are important factors in evaluating whether the alleged emotional distress is truly serious and severe. Czajkowski v. Meyers, 2007 MT 292, ¶ 36, 339 Mont. 503, 172 P.3d 94. In Czajkowski, we determined that the Meyers had adequately established a compensable independent claim for intentional infliction of emotional distress after their neighbors subjected them to “an unrelenting barrage of obscene gestures, vile verbal abuse in which the Czajkowskis employed the coarsest and most offensive words in our language, and on-going surveillance of their every outdoor activity for over four years.” Czajkowski, ¶¶ 36-37. This was in contrast to Renville, where the source of distress was a single painful event that would begin to heal with time. Czajkowski, ¶ 36. Even though the Meyers did not seek medical or psychological care, Virginia Meyers “would cry, her hands would shake, she lost weight, and gave up sleeping,” and Nick Meyers felt extremely angry, apprehensive, embarrassed, and was always looking over his shoulder. Czajkowski, ¶¶ 34-38. ¶38 In her briefing before the District Court, Feller contended that “it is likely that plaintiff will see a forensic psychologist to provide expert testimony and an opinion that her grievous, great, severe emotional distress passes muster” under Sacco. The Bank countered that it would be improper to allow an expert to provide a legal conclusion on whether her emotional distress was sufficiently severe pursuant to Sacco, and Feller cannot defeat summary judgment by predicting what future evidence she may be able to produce. The District Court determined that Feller could not maintain an independent 18 claim for intentional or negligent infliction of emotion distress because she could not show that her distress was “serious” or “severe” as required by Sacco and its progeny. We agree with the District Court. ¶39 Feller testified in her deposition that she was scared after being interviewed by the FBI, she was worried about her financial situation and what others would think of her, she experienced headaches, her sleep was interrupted, the stress caused tightness in her shoulders, and she took herbal remedies for anxiety. Feller further explained in an answer to an interrogatory that she agonized over her credit reputation, she had anxiety attacks, severe headaches, shoulder pain, bathroom difficulties, sleeplessness, overeating from stress, and she needed activities like computer games to take her mind off of the bank issues. However, she offers no evidence to buttress her claims. ¶40 Feller offers speculation that at some point in the future she might be able to produce some type of evidence to establish that her intentional and negligent infliction of emotional distress claims are compensable and that her emotional distress was sufficiently severe. A party responding to a motion for summary judgment must present “substantial evidence,” and cannot defeat summary judgment by simply reciting conclusory, unsupported, or speculative statements. See Ternes v. State Farm Fire & Cas. Co., 2011 MT 156, ¶ 27, 361 Mont. 129, 257 P.3d 352; Abraham v. Nelson, 2002 MT 94, ¶ 26, 309 Mont. 366, 46 P.3d 628. “It is for the court to determine whether on the evidence severe [serious] emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.” Renville, ¶ 16 (quoting Sacco, 271 Mont. at 233, 896 P.2d at 425). Feller has failed to produce substantial evidence 19 tending to show that her emotional distress was so severe that no reasonable person could be expected to endure it. Pursuant to Sacco and Renville, it is for the Court to determine whether on the evidence severe emotional distress can be found. ¶41 We conclude that the District Court did not err in granting summary judgment to the Bank on Feller’s intentional and negligent infliction of emotional distress claims. CONCLUSION ¶42 For the foregoing reasons, we affirm the District Court’s grant of summary judgment in favor of the Bank. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ JIM RICE /S/ LAURIE McKINNON /S/ BETH BAKER | April 9, 2013 |
a75e2550-1fdb-4578-88df-0b5c618536f3 | Mountain West v. Cherrad et al. | 2013 MT 99 | DA 12-0281 | Montana | Montana Supreme Court | DA 12-0281 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 99 MOUNTAIN WEST BANK, N.A., Plaintiff and Appellee, v. CHERRAD, LLC, MERRITT & MARIE, LLC, MAX & V, LLC, CONRAD M. HALE, CHERYL HALE, MARK OLSON, THE ESTATE OF CRAIG KINNAMAN, and John Does 1 through 10, Defendants and Appellees. CHERRAD, LLC, MERRITT & MARIE, LLC, MAX & V, LLC, CONRAD M. HALE, and CHERYL M. HALE, Cross-Claimants and Appellees, v. ESTATE OF CRAIG KINNAMAN, Cross-Claimant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV-2008-48 Hon. Kathy Seeley, Hon. Thomas C. Honzel, Presiding Judges COUNSEL OF RECORD: For Appellant: James Kommers, Kommers Law Firm, Bozeman, Montana For Appellee Mountain West Bank: April 16 2013 2 Amy Randall, Mountain West Bank, N.A.; Helena, Montana For Appellees Cherrad, LLC, Merritt & Marie, LLC, Max & V, LLC, Conrad and Cheryl Hale: Candace Payne, Luxan & Murfitt; Helena, Montana Submitted on Briefs: February 20, 2013 Decided: April 16, 2013 Filed: __________________________________________ Clerk 3 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 The Estate of Craig Kinnaman (the Estate) appeals from an order of the First Judicial District Court, Lewis and Clark County, granting summary judgment to Cherrad, LLC (Cherrad), Merritt & Marie, LLC (Merritt & Marie), Max & V, LLC (Max & V), and Conrad and Cheryl Hale (the Hales) (collectively “the Hale interests”) and Mountain West Bank (MWB) and declaring the Estate’s construction lien invalid. The Estate also appeals from the final judgment of the First Judicial District Court, Lewis and Clark County, determining Cherrad owes the Estate the sum of $76,278 for work that Craig Kinnaman (Kinnaman), dba CK Design and Construction (CK Design), performed on a condominium construction project. We affirm. ¶2 We review the following issues on appeal: ¶3 Issue One: Did the District Court err when it granted summary judgment to the Hale interests and MWB, determining that the Estate’s construction lien was invalid due to its failure to comply with § 71-3-535, MCA? ¶4 Issue Two: Did the District Court err when it calculated the amount of money Cherrad owed the Estate for costs related to the condominium construction project? FACTUAL AND PROCEDURAL BACKGROUND ¶5 This case arises out of several business transactions entered into by parties involved in the development of condominiums at Lakeside Village on Hauser Lake, Lewis and Clark County, Montana. Cherrad, Merritt & Marie, and Max & V are Montana limited liability companies owned by the Hales. Kinnaman was sole proprietor of a business called CK 4 Design. In 2003, Merritt & Marie purchased the Hauser Lake property. The following year, the Hales and Kinnaman discussed plans to develop a portion of the property. The plans involved construction of twelve condominiums—the Lakeside Village Condominiums—in six buildings, a full-service marina, a road and sewer system. Cherrad was to be the developer. ¶6 MWB was Cherrad’s lender for purposes of developing the condominium project. MWB made three loans to Cherrad. The first loan was made on April 20, 2006 in the principal amount of $1,385,215. The second loan, a letter of credit, was made on July 26, 2006 for the maximum principal amount of $78,602.22. The third loan was made on May 18, 2007 in the principal amount of $152,319. All three loans were secured by the Hauser Lake property and guaranteed by Merritt & Marie, Max & V, and the Hales. ¶7 Before making any of these loans to Cherrad, MWB required Cherrad and CK Design to execute a formal construction contract to secure financing. Accordingly, Cherrad and CK Design entered into two contracts—“AIA contracts”—in the spring of 2006. The first contract governed the construction of the condominium buildings. It provided that CK Design would build two condominium buildings for $650,000 each, for a total of $1.3 million, plus a 10% management fee. The buildings were to be substantially completed within 180 days of execution of the contract. The second contract governed the construction of the condominium infrastructure and the marina. It provided that Cherrad would pay CK Design $1,323,600 plus a 10% management fee. The contract required substantial completion of the work within 365 days of the date of the contract. 5 ¶8 The AIA contracts provided multiple provisions that were not followed by the parties, including those describing the method of payment from Cherrad to CK Design. Specifically, the AIA contracts provided that CK Design would submit bi-weekly invoices to Cherrad, through the project’s architect, which would detail the costs incurred by CK Design. Cherrad would then make progress payments to CK Design within a specified period of time. The contracts also provided that with each invoice CK Design would submit a partial release of liens. ¶9 CK Design began construction on the infrastructure project in late 2004 and on the condominiums in late summer 2005. Rather than Cherrad paying CK Design as invoices were submitted, as agreed to in the AIA contracts, the parties engaged in a practice where CK Design was paid as the units sold. Unit 1 was sold in October 2006 for $625,000, and CK Design was paid $350,000 from these proceeds. Unit 4 was sold in March 2007 for $630,512, and CK Design was paid $300,000 from these proceeds. The reason CK Design was not paid the $350,000 for unit 4 that it was paid for unit 1 was because CK Design was behind schedule and the marina was not complete at the time of sale—it was only approximately two-thirds complete. ¶10 CK Design continued to suffer delays in the project, and several subcontractors and suppliers began filing liens on the property claiming they had not yet been paid for their work. As a result, MWB refused to further finance the project unless CK Design and Cherrad entered into an agreement shielding MWB’s first security position from the liens of subcontractors and suppliers. Accordingly, on May 18, 2007, MWB, CK Design, Cherrad 6 and the Hales, individually, entered into a “Subordination Agreement” in which CK Design agreed to subordinate its interest in the condominium project, including its right to file a construction lien, to MWB. ¶11 Prior to completion of building two, CK Design began construction of building three, containing units 5 and 6. This work was not covered by a written contract. Not long after, on July 28, 2007, Conrad Hale told Kinnaman that CK Design could no longer proceed on the condominium project; CK Design left the project at that time. ¶12 The parties entered into another agreement on September 6, 2007, entitled “Agreement Regarding Outstanding Debts.” The agreement provided that any construction liens on unit 2 would either be paid in full before the closing of the sale of unit 2 or paid from the proceeds of the sale of unit 2 before any funds were dispersed to CK Design or Cherrad. In the agreement, Kinnaman provided a list of all outstanding debts on the construction project—not just on unit 2. Kinnaman warranted that the total amount owed to subcontractors and suppliers was approximately $180,731. ¶13 Unit 2 was sold to a third party in September 2007 for $700,000. Pursuant to the Agreement Regarding Outstanding Debts, all of the unpaid subcontractors, suppliers, and creditors were paid first. The amount owed to unpaid subcontractors and suppliers was actually $223,898, approximately $50,000 more than the figure Kinnaman warranted on the agreement. Out of the remaining funds, Cherrad was paid $63,739.18 and the Estate was paid the leftover funds of approximately $57,360. 7 ¶14 Unit 5 was sold to a third party “as is” in October 2008 for $225,635. Unit 6 was sold to a third party “as is” in October 2008 for $212,132. Unit 3 was sold to a third party in February 2010 for $325,000. CK Design never completed construction on any of these units. CK Design received nothing from the sale of units 3, 5, and 6. ¶15 Kinnaman committed suicide in September 2007. On November 29, 2007, the Estate recorded with the Lewis and Clark County Clerk and Recorder a $3.3 million construction lien on the Lakeside Village Condominiums. This was done through Nancy Kinnaman (Nancy), Kinnaman’s widow and the personal representative of the Estate. The $3.3 million lien was supported by an attached summary of invoices prepared by CK Design that alleged unpaid costs of labor and materials due to CK Design for the condominium project. The amount of the lien made it impossible for Cherrad to borrow money to continue the development of the condominium project. ¶16 MWB brought this action on January 14, 2008, against the Hale interests and the Estate.1 MWB sought foreclosure on the three secured loans that MWB made to Cherrad that were guaranteed by Merritt & Marie, Max & V, and the Hales. Although Cherrad was not behind on any payments of its loan to MWB, MWB alleged it was adversely affected and insecure because of the Estate’s $3.3 million construction lien against the real property that secured the loans that were the subject of the action. MWB also requested that the District Court declare the Estate’s construction lien inferior to the secured interests of MWB. 1 Mark Olson, a contractor who filed a construction lien against Lakeside Village Condominiums, was also originally a defendant in the action. He was subsequently 8 ¶17 The Hale interests filed an answer and cross-claim against the Estate for slander of title and intentional interference with contract.2 The Estate filed an answer, counter-claim, and cross-claim against the Hale interests alleging various claims including breach of contract and unjust enrichment. MWB and the Hale interests each moved for summary judgment against the Estate. They argued the Estate’s construction lien was invalid because it failed to comply with the statutory requirements of § 71-3-535, MCA, and was not based on the personal knowledge of Kinnaman because Nancy filed the lien. ¶18 On September 17, 2008, the District Court granted the motions for summary judgment and declared the construction lien invalid. The court determined that because the Estate failed to include all the requisite information under § 71-3-535(3), MCA, the Estate did not comply with the procedural requirements for a valid construction lien. ¶19 The Estate’s counterclaim against MWB was subsequently dismissed by the District Court. The cross-claims made between the Hale interests and the Estate proceeded to bench trial on November 7-8, 2011. At trial, the parties presented evidence and witness testimony to the court. Among several witnesses was Fred Flanders, an expert for the Hale interests. Flanders has worked in the banking industry for over forty years. Flanders discussed the effect of the delay in the development of the condominiums. He testified that had the timeline in the AIA contracts been followed, the units would have been available for sale at dismissed after MWB settled his construction lien. 2 The Hale interests also filed a third-party complaint against Nancy alleging various claims that are not at issue in this appeal. Thus, they will not be discussed further. 9 the peak of the market; instead, the delay resulted in much reduced sales prices. He also testified that the construction lien filed in this case caused the project to come to a standstill and restricted Cherrad’s ability to sell any of the units that were covered by the lien. ¶20 Krista Mach, the former bookkeeper for CK Design, testified for the Estate. Among other duties, Mach was responsible for preparing invoices for work that was performed by CK Design for the Lakeside Village project. Mach testified that CK Design regularly received invoices from vendors on the project. Mach stated she would use the information from the invoices to create new invoices to send to Cherrad. Forty-one invoices were admitted. Three lien releases were admitted as well, indicating that some of the invoices had been paid. ¶21 The District Court entered its findings of fact, conclusions of law and order on March 22, 2012. The court determined that multiple provisions of the AIA contracts were disregarded by the parties and that the practice for paying CK Design for building the condominium units was as follows: CK Design was to be paid $350,000 from the sale of each unit as the unit closed. CK Design was expected to pay all subcontractors and suppliers from its share of the proceeds of the sale. ¶22 The court determined the parties’ course of conduct established by the distribution of sale proceeds from units 1, 2, and 4 was the best evidence of the agreement between the parties, and that payment to CK Design for the sale of units 3, 5, and 6 did not conform to this practice. The court therefore found that CK Design was entitled to be paid some amount for units 3, 5, and 6. The court reasoned that because no further amounts were owed on 10 materials for units 3, 5, and 6—these amounts were paid pursuant to the Agreement Regarding Outstanding Debts—a fair price to award CK Design was 10 percent of the units’ selling prices. Accordingly, the court ordered Cherrad to compensate the Estate in the amount of $76,278. ¶23 In reaching its conclusion, the court analyzed the 41 invoices prepared by Mach, finding each one was supported by copies of bills, statements, invoices, and hours of labor incurred by CK Design from December 27, 2004 to July 5, 2007. The court found the invoices appeared to “generally support the amount of the $3.3 million construction lien . . . .” However, it recognized the amount was “astronomically higher” than the amount of $180,731 that Kinnaman warranted owing on September 6, 2007. The court also pointed out that the $3.3 million, if accurate, would mean that CK Design was roughly $1.5 million over the contract price set forth in the AIA contracts. The court found that CK Design did not timely, or ever, complete the condominium project. Although the amount of the construction lien was supported by the invoices provided by CK Design, the court concluded the invoices were “difficult to credit” and the lien was “not supportable given the warranty made by Craig Kinnaman on September 6, 2007 and the practice of the parties regarding payment to CK Design.” ¶24 The Estate appeals the District Court’s order granting summary judgment to MWB and the Hale interests and its final judgment awarding the Estate $76,278. STANDARD OF REVIEW 11 ¶25 We review the grant of summary judgment de novo, using the same M. R. Civ. P. 56 criteria used by the district court. Dubiel v. Mont. DOT, 2012 MT 35, ¶ 10, 364 Mont. 175, 272 P.3d 66. Summary judgment is appropriate when the moving party establishes both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. Dubiel, ¶ 10. ¶26 We review a district court’s findings of fact to determine whether they are clearly erroneous. Dubiel, ¶ 10. 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 a review of the record leaves this Court with a definite and firm conviction that a mistake has been made. Larsen v. Richardson, 2011 MT 195, ¶ 25, 361 Mont. 344, 260 P.3d 103. In determining whether substantial evidence supports the district court’s findings, we view the evidence in the light most favorable to the prevailing party. Larsen, ¶ 25. ¶27 We review an award of damages to determine whether the trial court abused its discretion. Wohl v. City of Missoula, 2013 MT 46, ¶ 28, 369 Mont. 108 __ P.3d __. A district court’s determination of damages is a factual finding that must be upheld if it is supported by substantial evidence. Lewistown Miller Constr. Co. v. Martin, 2011 MT 325, ¶ 16, 363 Mont. 208, 271 P.3d 48. We will not overturn a district court’s determination of damages unless it is clearly erroneous. Lewistown, ¶ 16. We review a district court’s conclusions of law for correctness. Lewistown, ¶ 17. DISCUSSION 12 ¶28 Issue One: Did the District Court err when it granted summary judgment to the Hale interests and MWB, determining that the Estate’s construction lien was invalid due to its failure to comply with § 71-3-535, MCA? ¶29 The Estate challenges the District Court’s interpretation of Montana’s construction lien statutes and argues the court erred in its determination that the Estate’s $3.3 million construction lien was invalid. In response, the Hale interests contend the issue of the validity of the construction lien is moot because the properties formerly encumbered by the lien have been purchased, for value, by third parties in good faith. Accordingly, the Hale interests assert we should avoid ruling on the issue. We agree. ¶30 We have explained many times that the judicial power of Montana courts is limited to justiciable controversies, which are controversies that can be disposed of and resolved in the courts. Gateway Opencut Mining Action Group v. Bd. of Co. Commrs., 2011 MT 198, ¶ 16, 361 Mont. 398, 260 P.3d 133. Among several central concepts of justiciability is mootness. Gateway Opencut, ¶ 16. A matter is moot when, due to an event or happening, the issue has ceased to exist and no longer presents an actual controversy. Shamrock Motors, Inc. v. Ford Motor Co., 1999 MT 21, ¶ 19, 293 Mont. 188, 974 P.2d 1150. In deciding whether a matter is moot, we determine whether the court can grant effective appellate relief. Not in Mont.: Citizens Against CI-97 v. State, 2006 MT 278, ¶ 7, 334 Mont. 265, 147 P.3d 174. Mootness is a threshold issue which must be resolved before addressing the substantive merits of a dispute. Progressive Direct Ins. Co. v. Stuivenga, 2012 MT 75, ¶ 17, 364 Mont. 390, 276 P.3d 867. 13 ¶31 The Estate argues that since MWB failed to present the issue of mootness before the District Court and raises it now for the first time on appeal it should be dismissed. Regardless of whether this issue was brought before the District Court, this Court has an independent obligation to determine whether jurisdiction exists and, thus, whether constitutional justiciability requirements, such as mootness, have been met. Plan Helena, Inc. v. Helena Reg’l Airport Auth. Bd., 2010 MT 26, ¶ 11, 355 Mont. 142, 226 P.3d 567. This Court lacks jurisdiction over non-justiciable matters; thus, if a matter is moot it exceeds our jurisdiction. Not in Mont., ¶ 7. If we determine we lack jurisdiction, we may take no further action in the matter other than to dismiss it. Plan Helena, ¶ 11. It is therefore necessary we determine as a preliminary matter whether this issue is moot.3 ¶32 The District Court invalidated the Estate’s construction lien in its September 17, 2008 order. Since then, the Estate has failed to take any action to seek a stay of the order or an injunction to prevent the sale of the property. See M. R. App. P. 22. Although a party is not required to seek a stay of execution, a party choosing not to seek such a stay runs the risk of having the appeal become moot. Progressive, ¶ 45. We have previously warned against the “‘particular danger of dismissal for mootness’ where the sale of property to a third party is involved.” Charlotte Mills, Clerk & Recorder v. Alta Vista Ranch, 2008 MT 214, ¶ 22, 344 Mont. 212, 187 P.3d 627 (quoting Turner v. Mt. Engr. and Constr., Inc., 276 Mont. 55, 63, 3 Additionally, we point out that at the time of the District Court’s order granting summary judgment and declaring the construction lien invalid, the properties were not yet sold, and mootness not yet an issue. When the case went to bench trial, the lien had already been declared invalid and was not an issue before the court. Therefore, a 14 915 P.2d 799, 804 (1996)). In such circumstances there is a “‘special need for seeking a stay.’” Charlotte Mills, ¶ 22 (quoting Turner, 276 Mont. at 63, 915 P.2d at 804). ¶33 Here, each of the units named in the construction lien—units 2, 3, 5, and 6—have been sold to third-party purchasers in good faith. Each of these purchasers took title to the units free of any encumbrances placed upon them by the Estate. Even if we were to agree with the Estate that the District Court incorrectly determined the construction lien was invalid, there is no effective relief we can grant to the Estate at this point without implicating the validity of the third-party sales. Therefore, the sale of the property to bona fide third parties renders moot the Estate’s claim regarding the validity of its lien. ¶34 Issue Two: Did the District Court err when it calculated the amount of money Cherrad owed the Estate for costs related to the condominium construction project? ¶35 As noted above, the District Court rejected the Estate’s $3.3 million claim and instead ordered Cherrad to pay the Estate $76,278. The Estate argues the District Court misapprehended the effect of the evidence of the amount CK Design owed to its suppliers. Specifically, the Estate claims the District Court erroneously reasoned that because CK Design mistakenly represented by $50,000 the amount owed to its suppliers, Cherrad did not owe CK Design the $3.3 million amount of the lien. The Estate argues the District Court abused its discretion when determining that Cherrad does not owe CK Design the $3.3 million amount in the construction lien. mootness argument would not have been relevant to the case before the District Court. 15 ¶36 First, the Estate’s interpretation of the court’s factual findings is incorrect. In its finding of fact number 44, the court stated: Krista Mach, CK Design’s bookkeeper, identified 41 invoices she prepared and mailed to Cherrad at 5295 York Road, Helena, Montana. Each invoice was supported by copies of bills, statements, invoices, and hours of labor incurred by CK Design from December 27, 2004 to July 5, 2007. The invoices appear to generally support the amount of the $3.3 million construction lien filed by Nancy Kinnaman as personal representative for the Estate, even considering amounts over $1.2 million that Cherrad had paid CK Design for the infrastructure and buildings. Nonetheless, that amount is astronomically higher than the amount Craig Kinnaman warranted was owing on September 6, 2007. It would also mean that CK Design[] was around $1.5 million over the contract price set forth in the AIA contracts prepared by Craig Kinnaman. The invoices are therefore difficult to credit. Testimony at trial also established that CK Design did not timely, or ever, complete the infrastructure or any of the condominium units. The court further provided in its finding of fact number 64: As noted above, the amount of the construction lien filed by Nancy Kinnaman as personal representative of the Estate is not supportable given the warranty made by Craig Kinnaman on September 6, 2007 and the practice of the parties regarding payment to CK Design. However, the amount of the lien was supported by the invoices found at the offices of CK Design. ¶37 Contrary to what the Estate asserts, the District Court did not determine that CK Design’s inaccurate reporting of outstanding debts was the reason CK Design was not awarded $3.3 million. Rather, it found that while the invoices generally supported the amount of the construction lien, other evidence undermined their credibility. This evidence included the contract price originally agreed to in the AIA contracts, the parties’ course of conduct regarding payment to CK Design, CK Design’s failure to finish the project, and the amount CK Design warranted to owing subcontractors and suppliers in September 2007. 16 ¶38 The District Court was in the best position to judge the credibility of testimony and proffered evidence, and as such, we will defer to its resolution of conflicting evidence. In re Marriage of Haberkern, 2004 MT 29, ¶ 34, 319 Mont. 393, 85 P.3d 743. We will not substitute our judgment for that of the District Court if there is evidence to sufficiently support a factual finding, even where there is evidence in the record to support contrary findings. Trad Indus., Ltd. v. Brogan, 246 Mont. 439, 447, 805 P.2d 54, 59-60 (1991). If there is substantial credible evidence to support the lower court’s determination, that determination will be upheld. Trad Indus., 246 Mont. at 447, 805 P.2d. at 59. ¶39 Upon a thorough review of the record, we determine there was substantial credible evidence to support the District Court’s findings that a proper amount to award CK Design for its work on units 3, 5, and 6 was 10% of the sale prices, and not the $3.3 million supported by the invoices. The court was presented with conflicting evidence from which to calculate the amount owed from Cherrad to CK Design—among them being the amount provided in the AIA contracts, the amount reflected by the invoices, and the amounts paid from prior sales of the units. Although the court looked at the AIA contracts to get anidea of the expected contract price between Cherrad and CK Design, it determined that since many of the contract provisions were ignored by the parties, they were not the best evidence of the parties’ agreement. The court likewise determined the invoices were not the best evidence of the parties’ obligations. Not only were the invoices for an amount much greater than what the parties had originally agreed to, but they were also much greater than what CK Design had warranted owing subcontractors and suppliers in the Agreement Regarding Outstanding 17 Debts. In this agreement, CK Design warranted that all of the outstanding debts on the project amounted to $180,731. In actuality, the total amount of outstanding subcontractor and supplier debts against the project was $223,898. Because the amount in the invoices was “astronomically higher” than the amount in the agreement, the court found the invoices were difficult to credit. The court therefore determined the parties’ conduct was the best evidence of their agreement. ¶40 The parties’ conduct did not involve Cherrad paying CK Design for each invoice it received from every subcontractor CK Design owed money. Rather, the parties’ practice was for Cherrad to pay CK Design $350,000 from the sale of each unit as it closed, and CK Design was expected to pay all subcontractors from its share of the proceeds of the sale. However, CK Design quickly fell behind schedule and did not timely, or ever, complete construction on the units or the infrastructure. When unit 4 was sold—the second unit to sell—CK Design was paid less from the proceeds because of its untimely work. This demonstrates that the parties’ agreement regarding the amount Cherrad would pay CK Design took into consideration whether the work was completed in a timely manner; delays would result in reduced pay. The delays continued and affected the sales of units 3, 5, and 6, which were all sold only partially completed and for a much lower price than units 1, 2, and 4. Since the amounts owed for materials for construction on units 3, 5, and 6 were already paid upon the sale of unit 2, the amount owed to CK Design was for its labor. Given the delays and the fact that CK Design never completed the condominium units and the 18 infrastructure, the District Court’s finding that a proper amount to award CK Design for its work on units 3, 5, and 6 was 10% of the sale prices was not clearly erroneous. ¶41 Finally, the Hale interests request attorney fees in the appellate litigation of the construction lien issue pursuant to § 71-3-124(1), MCA. This statute provides: In an action to foreclose any of the liens provided for in Title 71, chapter 3, part 3, 4, 5, 6, 8, 10, or 16, the court shall allow as costs the money paid and attorney fees incurred for filing and recording the lien and reasonable attorney fees in the district and supreme courts. The costs and attorney fees must be allowed to each claimant whose lien is established, and the reasonable attorney fees must be allowed to the defendant against whose property a lien is claimed if the lien is not established. The Estate’s lien was filed under Title 71, Chapter 3, Part 5, and therefore § 71-3- 124(1), MCA, is applicable. Accordingly, the Hale interests are entitled to reasonable attorney fees incurred in both the District Court and this Court. The District Court has issued an order entitling the Hale interests to its reasonable attorney fees incurred in the District Court. Because the Hale interests were successful in defending against the Estate’s lien, we remand for a determination of the Hale interests’ reasonable attorney fees incurred in the appellate litigation of the construction lien issue. CONCLUSION ¶42 For the reasons stated above, we affirm the District Court’s judgment. We remand to the District Court for a determination of the Hale interests’ reasonable attorney fees incurred on appeal. ¶43 Affirmed. 19 /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JIM RICE | April 16, 2013 |
c9fe93b6-bed0-465e-a2de-9172d2685dab | CHS, Inc. v. State Dep't of Revenue | 2013 MT 100 | DA 12-0378 | Montana | Montana Supreme Court | DA 12-0378 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 100 CHS, INC., Plaintiff and Appellant, v. MONTANA STATE DEPARTMENT OF REVENUE, Defendant and Appellee. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause Nos. DV 10-133, DV 10-2080 Honorable Susan P. Watters and Honorable Gregory R. Todd, Presiding Judges COUNSEL OF RECORD: For Appellant: Jared M. Le Fevre, Jon Dyre, James P. Site, Crowley Fleck PLLP, Billings, Montana For Appellee: Derek R. Bell, Brendan R. Beatty, Special Assistant Attorneys General, Montana Dept. of Revenue, Helena, Montana Submitted on Briefs: February 6, 2013 Decided: April 16, 2013 Filed: __________________________________________ Clerk April 16 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 CHS, Inc., asked the Thirteenth Judicial District Court, Yellowstone County, for a declaratory judgment that the Montana Department of Revenue (DOR) used improper or illegal methods of assessing CHS’s Montana properties for property tax purposes in 2009 and 2010. The court granted summary judgment for DOR on CHS’s claims, ruling that the substantive arguments must be presented to the appropriate administrative tax appeal boards. CHS appeals. We affirm. ¶2 CHS sets forth three issues on appeal: ¶3 1. Is the CHS challenge to the methods and procedures of assessment used by DOR to assess CHS’s property within the scope of declaratory judgment actions that may be brought directly in a Montana district court under § 15-1-406, MCA, without first appealing to administrative tax appeals boards? ¶4 2. Is the CHS claim that DOR violated state law when it failed to equalize its valuation of CHS’s property with similar properties within the scope of declaratory judgment actions that may be brought directly in a Montana district court under § 15-1- 406, MCA, without first appealing to administrative tax appeal boards? ¶5 3. Was DOR’s assessment of CHS’s property made too late for tax year 2009? FACTUAL AND PROCEDURAL BACKGROUND ¶6 CHS is a Minnesota corporation licensed to do business in Montana. This case relates to state property taxes assessed on CHS’s coking refinery in Laurel, Montana, and on its petroleum marketing terminals in Gallatin and Missoula Counties. 3 ¶7 As part of Montana’s state property tax appraisal process, CHS must submit an annual Property Reporting Form to DOR. In 2009, CHS requested two separate extensions of time to return its Property Reporting Form, and DOR granted those extensions. On May 29, 2009, two months after the second agreed-upon extension deadline, CHS notified DOR that certain figures it had reported were in error and required adjustment. ¶8 DOR issued its original 2009 assessment of CHS’s property on or about August 22, 2009. CHS requested an informal review of the 2009 assessment notice, which is the first step in protesting a tax assessment under § 15-7-102(3), MCA. Following the informal review, DOR issued a revised assessment in January of 2010. ¶9 CHS remained dissatisfied with the 2009 assessment of its property. An aggrieved taxpayer who is not satisfied by the results of informal review with DOR may continue the administrative appeal process by appealing to the county tax appeal board, the State Tax Appeal Board (STAB), and, eventually, petitioning for judicial review of the administrative decisions. See §§ 15-2-301 through -303, 15-7-102(3) and (6), and 15-15- 101 through -104, MCA. In addition, § 15-1-406(1)(a), MCA, allows an aggrieved taxpayer to bring a declaratory judgment action directly in a district court to establish that an administrative rule or method or procedure of assessment or imposition of tax adopted or used by DOR is “illegal or improper.” ¶10 CHS paid its 2009 property taxes under protest and then pursued both administrative review and the declaratory judgment option for challenging its property tax assessment. It filed this declaratory judgment action and, contemporaneously, filed 4 appeals with the county tax appeal boards in Yellowstone, Gallatin, and Missoula Counties. In 2010, CHS again requested an informal review of its property tax assessment with DOR, and then later filed a second declaratory judgment action, challenging DOR’s assessment of its property taxes for tax year 2010. The two declaratory judgment actions are consolidated for purposes of this appeal. The county tax appeal boards have stayed the administrative proceedings before them, pending the outcome of this action. ¶11 DOR filed a motion asking the District Court to grant it summary judgment. DOR argued that CHS had failed to present facts stating a claim under § 15-1-406, MCA, and that the types of challenges being made by CHS must first be presented to the administrative tax appeal boards provided for under Montana statutes. In addition, DOR requested summary judgment on CHS’s claims that DOR had failed to equalize CHS’s properties with similar properties or to timely assess the property under the statutory deadline contained in § 15-8-201, MCA. ¶12 In support of its motion for summary judgment, DOR filed a 10-page affidavit by its appraiser, Seth Carlson. Carlson averred that he used a cost approach to valuation of the property, making substantial deductions for physical depreciation and functional obsolescence, but that he could not identify any economic obsolescence. He considered performing an income approach to valuation, but ultimately did not do so because he lacked the necessary income and expense information from CHS.1 Carlson also 1 The Property Reporting Form did not require disclosure of income or expense information, and CHS declined DOR’s requests that it provide such information. 5 considered employing a market data approach to valuation, but he did not identify any particular sales that were comparable or useful. Carlson stated that, upon CHS’s request for informal review with DOR, he reviewed and considered information that CHS provided from its outside appraisers, Duff and Phelps. However, “[f]or a variety of reasons,” Carlson determined the Duff and Phelps analysis could not serve as a legitimate basis to modify or adjust the market value of CHS’s property. ¶13 In response to the motion for summary judgment, CHS provided the District Court with an affidavit from a new outside consultant, Michael Remsha, who had analyzed the values of CHS’s properties for purposes of this action. Remsha opined that DOR had not taken into account all items of depreciation and obsolescence, resulting in an excessive assessment. Remsha further stated that he had identified sales of comparable refineries and used them to value the Laurel refinery, and that he also had identified applicable revenues, expenses, and capitalization and discount rates to appraise the refinery under the income approach. ¶14 Following briefing and a hearing, the District Court granted summary judgment for DOR as to all of the CHS claims. The court determined that DOR had established the nonexistence of material facts as to the illegality of the tax imposed on CHS, and that CHS then had failed to meet its burden of presenting evidence that the method or procedure of assessment was illegal or improper. The court ruled that Remsha’s affidavit went to valuation, and not to illegal taxation. The court deferred to the appropriate tax appeal boards the merits of the equalization argument, and it ruled that CHS had established no prejudice as a result of the “late” assessment notice in 2009. 6 STANDARDS OF REVIEW ¶15 We review de novo a district court’s grant of summary judgment. In re Estate of Harmon, 2011 MT 84, ¶ 14, 360 Mont. 150, 253 P.3d 821. In so doing, we apply the same standards used by the district court under M. R. Civ. P. 56: summary judgment should be rendered if the pleadings, discovery, and other materials on file with the court establish that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. ¶16 The interpretation and application of a statute to a particular set of circumstances are questions of law subject to de novo review for correctness. Ramsey v. Yellowstone Neurosurgical Assocs., 2005 MT 317, ¶ 18, 329 Mont. 489, 125 P.3d 1091. DISCUSSION ¶17 Issue One: Is the CHS challenge to the methods and procedures of assessment used by DOR to assess CHS’s property within the scope of declaratory judgment actions that may be brought directly in a Montana district court under § 15-1-406, MCA, without first appealing to administrative tax appeals boards? ¶18 As indicated above, § 15-1-406, MCA, allows an aggrieved taxpayer to bring a declaratory judgment action seeking a declaration that a “method or procedure of assessment” is “illegal or improper.” Section 15-1-406(4)(a), MCA, further provides that: The remedy authorized by this section may not be used to challenge the . . . market value of property under a property tax unless the challenge is to the legality of a particular methodology that is being applied to similarly situated taxpayers[.] The parties agree that Albright v. State, 281 Mont. 196, 933 P.2d 815 (1997), is the foundation for discussion of which “methods or procedures of assessment” may be 7 challenged directly in a district court under § 15-1-406, MCA. ¶19 Albright was a challenge to the constitutionality of the statewide reappraisal of all residential and commercial property in Montana between 1987 and 1992, pursuant to § 15-7-111, MCA. The case involved application of two statutory requirements. Section 15-8-111(1)-(2)(a), MCA, required that “[a]ll taxable property must be assessed at 100% of its market value except as otherwise provided. Market value is the value at which property would change hands between a willing buyer and a willing seller[.]” Section 15-7-112, MCA, required that “[t]he same method of appraisal and assessment shall be used in each county of the state to the end that comparable property with similar true market values and subject to taxation in Montana shall have substantially equal taxable values at the end of each cyclical revaluation program[.]” ¶20 In Albright, we concluded the legislature intended DOR to use both the cost approach and the market data approach to valuation of property, depending on the available market data. We also concluded that DOR’s use of various approaches to valuation does not contravene the mandate that appraisals be done by the same “method” statewide. [T]he term “method” refers to a consistent process for arriving at market value, the details of which may vary from place to place, depending on available data, and which will necessarily include a number of different approaches—e.g., the market data approach, the income approach, the cost approach—or some combination of these approaches, depending on the market in the area where appraisals occur. Albright, 281 Mont. at 208-09, 933 P.2d at 823. Ultimately, we concluded that DOR’s market-based method utilizing a combination of approaches--the market data approach, 8 the income approach, and the cost approach--did not violate Article VIII, Section 3, of the Montana Constitution. We went on to advise property owners who feel that fair, accurate, and consistent valuations have not been achieved to avail themselves of the administrative property tax appeal process set forth at §§ 15-15-101 through -104, MCA. Albright, 281 Mont. at 213-14, 933 P.2d at 826. ¶21 Acknowledging that Albright is a controlling precedent, CHS relies on Devoe v. Department of Revenue, 263 Mont. 100, 866 P.2d 228 (1993), to argue that using the cost approach to valuation alone, without consideration of any market factors, is inadequate as a matter of law because it does not take into account market influences on property values. CHS also cites Devoe and Albright for the holding that DOR is obliged to assess property at 100% of its market value and that the courts have the power to determine whether the methods used by DOR are adequate to meet that obligation. CHS’s position is that Albright and Devoe require that all three ways of determining market value--cost approach, income approach, and comparable sale or market data approach--can and should be used, depending on the context, rather than only the cost less depreciation approach. ¶22 “Depending on the context” is key. The clear language of Albright set forth above indicates that, while the “method” of appraisal requires consideration of more than one approach to valuation, use of these approaches may be limited by “available data” and the “market in the area where appraisals occur.” Albright, 281 Mont. at 209, 933 P.2d at 823; see also PacifiCorp v. State, 2011 MT 93, ¶ 48, 360 Mont. 259, 253 P.3d 847. 9 ¶23 CHS asserts repeatedly that it is not asking the courts to make detailed findings of valuation of its property, but instead is asking them to rule on how to assess property. But method of assessment necessarily varies with the situation. See Albright and PacifiCorp. Where, as here, the record reveals that the property owner is unwilling to provide DOR with income information, DOR will not be able to use the income approach. Where DOR is unable to locate comparable sales, and the property owner offers DOR no evidence of any, DOR will be unable to use the comparable sales or market data approach. ¶24 DOR appraiser Carlson stated in his affidavit to the District Court that he considered using an income approach to value in 2009 and 2010, and that he asked CHS for the type of information he needed to come up with a valuation using an income approach, and explained why it was necessary. CHS did not, however, provide the information necessary for Carlson to perform an income approach to value using generally acceptable appraisal principles. ¶25 Carlson further averred that he had tracked developments in the oil and gas industry and researched whether sales of comparable properties might have occurred during the relevant time period. In Carlson’s opinion, there simply did not exist sufficiently comparable sales to calculate an opinion of value under that approach. Notably, CHS has not identified any particular sale that it believes should be considered under a market data approach. ¶26 As stated above, CHS presented to the District Court an affidavit of its appraisal expert Michael Remsha concerning the proper methods to insure that a refinery is 10 assessed properly at market value. CHS contends Remsha’s affidavit states a valid challenge to the “method or procedure of assessment” under § 15-1-406(1)(a), MCA. The District Court, however, largely disregarded Remsha’s affidavit, correctly concluding that “the only subject matter to which an expert appraiser may speak with any expertise are matters of valuation; not the legality or impropriety of the method under Montana law.” And, to the extent that Remsha’s affidavit contains opinions regarding valuation, those opinions are speculative and conclusory, such as “the Department of Revenue did not take into account all items of depreciation and obsolescence,” and do not create a genuine issue of material fact to survive summary judgment. ¶27 CHS contends it is proper for a court to make a legal ruling on DOR’s method of assessment. In Department of Revenue v. Grouse Mountain Dev., 218 Mont. 353, 707 P.2d 1113 (1985), owners of golf course property near Whitefish, Montana, sought judicial review of STAB’s valuation of their property. The only issue on review was whether a district court may reverse a STAB valuation determination if there was substantial evidence in the record to support STAB’s decision. CHS states this Court did not defer to STAB’s findings in Grouse Mountain, and gave no deference to its method of assessment. That is something of a misstatement. We did affirm the district court’s finding, based on the administrative record, that STAB had abused its discretion in approving an appraisal based on a cost of replacement approach only, without consideration of the effect on the property’s value of a public use restriction. But we also stated, “[t]ax appeal boards are particularly suited for settling disputes over the appropriate valuation of a given piece of property, and the judiciary cannot properly 11 interfere with that function.” Grouse Mountain, 218 Mont. at 355, 707 P.2d at 1115. Notably, we remanded the case to STAB with instructions. Grouse Mountain, 218 Mont. at 358, 707 P.2d at 1116. ¶28 In his affidavit, Remsha opined that the one method of assessment used by DOR was done improperly, because DOR failed to take into account all items of depreciation and obsolescence, resulting in an improper or illegal method of assessment. But § 15-8- 111(2)(b), MCA, does not require DOR’s appraisers to simply accept a taxpayer’s assertions concerning depreciation or obsolescence. See PacifiCorp, ¶¶ 37-48. ¶29 CHS cites PacifiCorp and Department of Revenue v. Burlington N., Inc., 169 Mont. 202, 545 P.2d 1083 (1976), for the proposition that “[a] taxpayer’s right to submit new information on appeal is well-established.” Those cases involved appeals of STAB decisions, and the reference was to STAB’s statutory authority to hold a de novo hearing and receive new evidence. That procedural posture is very different from a declaratory judgment action such as this one. ¶30 This issue can be decided based on the undisputed material facts and the applicable law. Our review convinces us that DOR established that there are no genuine issues of material fact regarding illegal or improper methods or procedures of valuation. CHS did not meet its burden of establishing a genuine issue of material fact as to whether DOR used an illegal or improper method or procedure to assess CHS’s property. The District Court was correct in ruling that CHS’s claims of material issues of fact go to valuation, not illegal taxation, and thus must be raised in administrative proceedings. 12 ¶31 Issue Two: Is the CHS claim that DOR violated state law when it failed to equalize its valuation of CHS’s property with similar properties within the scope of declaratory judgment actions that may be brought directly in a Montana district court under § 15-1-406, MCA, without first appealing to administrative tax appeal boards? ¶32 Article VIII, Section 3, of the Montana Constitution requires the state of Montana to “appraise, assess, and equalize the valuation of all property which is to be taxed in the manner provided by law.” CHS states DOR’s appraised market value of CHS’s refinery is higher than those of refineries owned by Phillips 66 and ExxonMobil in Yellowstone County. CHS cites Department of Revenue v. State Tax Appeal Bd. (DOR v. STAB), 188 Mont. 244, 613 P.2d 691 (1980), for the idea that a taxpayer is entitled to relief if he can show that his property was assessed at a higher proportion of its actual value than the ratio existing between the assessed and actual valuations of similar and comparable properties. ¶33 DOR v. STAB involved a request for judicial review of a STAB decision. In that case, we adopted the six-factor “Maxwell test” as a basis for determining equalization among like properties. The factors are: (1) that there are other similar properties within a reasonable area; (2) the amount of assessments on those properties; (3) the actual values of those properties; (4) the actual value of the subject property; (5) the assessment complained of; and (6) by comparison, the subject property is assessed at a higher portion of its actual value than the ratio existing between the assessed and actual values of the similar properties. The Maxwell test thus requires several valuation-related findings of fact. In DOR v. STAB, we remanded to allow the state tax appeal board to hold a hearing at which evidence of the true and assessed values of commercial and residential property 13 could be introduced. We also noted that the burden is on the taxpayer to establish DOR’s failure to equalize. DOR v. STAB, 188 Mont. at 250, 613 P.2d at 694. ¶34 The affidavit filed by DOR appraiser Carlson in the present case states Carlson relied on the cost approach to estimating value, in an identical manner for the three Yellowstone County refineries. DOR thus established its entitlement to judgment as a matter of law on the equalization question; according to the affidavit, each was treated the same. At that point CHS was required to meet its burden of establishing a genuine issue of material fact as to whether DOR acted illegally or improperly by failing to equalize its valuation of CHS’s property with similar properties. CHS’s submission of Remsha’s affidavit, with a conclusory statement that DOR failed to equalize, did not suffice to meet CHS’s burden of establishing a genuine issue of material fact. ¶35 Thus, we conclude the District Court was correct in granting DOR summary judgment on this claim, which was not within the scope of a declaratory judgment action. ¶36 Issue Three: Was DOR’s assessment of CHS’s property made too late for tax year 2009? ¶37 Section 15-8-201(1), MCA, provides that, “between January 1 and the first Monday of August in each year, [DOR shall] ascertain the names of all taxable inhabitants and assess all property subject to taxation in each county.” The third claim in CHS’s complaint for declaratory judgment is that DOR’s 2009 assessment of its property was not timely. ¶38 In Albright, 281 Mont. at 218, 933 P.2d at 829, we ruled that a statutory requirement that property be “assessed” by a date certain did not equate to a requirement 14 that assessment notices be sent out by the date specified. The statutory language has been amended since our Albright decision, but a requirement that property be “assessed” by a date certain remains. See § 15-8-201(1), MCA. ¶39 In the present case, the District Court ruled that “there still remains no evidence that DOR failed to ‘assess’ CHS’s property by the statutorily prescribed deadline.” As CHS points out, however, DOR appraiser Carlson admitted by affidavit that DOR’s 2009 assessment occurred shortly after the first Monday in August. Thus, the situation here is a step beyond that presented in Albright. ¶40 In applying the date certain requirement to the circumstances of this case, we observe the rule that we must adopt a statutory construction, if possible, that will give effect to all statutes the legislature has enacted on the subject. See § 1-2-101, MCA. We observe that §§ 15-7-102 (appeals) and 15-8-601 (assessment revision), MCA, address situations in which DOR is required to issue assessments after the conclusion of events that fall after the first Monday in August. Nothing in § 15-8-201, MCA, explicitly or implicitly grants an extension of time to accommodate revised assessments that must issue at the conclusion of revision or appeals under §§ 15-7-102 or 15-8-601, MCA. Yet CHS is not arguing that those assessments are invalid. ¶41 In addition, § 15-8-308, MCA, provides that “[n]o assessment . . . is illegal . . . because the same was not completed within the time required by law.” CHS says this statute applies only to DOR’s internal deadlines, not to substantive statutory deadlines. But the language of § 15-8-308, MCA, contains no such limitation. In addition, we observe that, for the year 2009, Chapter No. 483, Section 12, L. 2009, provided that “[a]s 15 a result of the changes . . . it may not be possible to comply with certain statutory deadlines relating to appraisals . . . . Therefore, for tax year 2009, all deadlines are extended as necessary and reasonable . . . .” ¶42 Finally, CHS claims DOR’s reasons for missing the statutory assessment deadline raise issues of fact, and therefore summary judgment on this issue was improper. But Albright created a prejudice test for invalidating a “late” assessment: absent the possibility that a late assessment may impede a taxpayer’s ability to appeal a changed property valuation, missing the statutory deadline does not render those assessments invalid. See Albright, 281 Mont. at 217-18, 933 P.2d at 828-29. In the present case, as the District Court noted, CHS has raised no genuine issues of material fact that would demonstrate any prejudice it has suffered as a result of the assessment notice being issued to it on August 22 instead of by the first Monday in August in 2009. ¶43 We conclude the District Court did not err when it granted DOR summary judgment on CHS’s claim that the 2009 assessment of its property was “illegal or improper” because it was not completed by the first Monday in August of that year. CONCLUSION ¶44 The CHS challenges to the methods and procedures of assessment used by DOR to assess CHS’s property must be raised through the administrative tax appeal process. Similarly, the CHS claim that DOR failed to equalize its valuation of CHS’s property is the type of challenge that must be pursued administratively. As a result, the District Court did not err in granting DOR summary judgment on those claims. Finally, the court did not err when it granted DOR summary judgment on the CHS claim that the 2009 16 assessment of its property was illegal or improper because it was “late.” ¶45 Affirmed. /S/ MIKE McGRATH We concur: /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ PATRICIA COTTER /S/ BETH BAKER | April 16, 2013 |
323f6adc-11fd-4e4f-a880-e681ab7abf93 | State v. Birthmark | 2013 MT 86 | DA 11-0613 | Montana | Montana Supreme Court | DA 11-0613 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 86 STATE OF MONTANA, Plaintiff and Appellee, v. MICHAEL TODD BIRTHMARK, Defendant and Appellant. APPEAL FROM: District Court of the Seventeenth Judicial District, In and For the County of Valley, Cause No. DC-2010-33 Honorable John C. McKeon, 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; Katie F. Schulz, Assistant Attorney General, Helena, Montana Nickolas Murnion, Valley County Attorney; C. David Gorton, Deputy County Attorney, Glasgow, Montana Submitted on Briefs: February 13, 2013 Decided: April 9, 2013 Filed: __________________________________________ Clerk April 9 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Michael Todd Birthmark appeals from his conviction of the offense of Partner or Family Member Assault (PFMA), a felony, after a jury trial on June 21, 2011. We affirmthe conviction and remand for correction of the written judgment. ¶2 Birthmark presents the following issues for review: ¶3 Issue One: Whether Birthmark’s attorney provided ineffective assistance of counsel by failing to object to the mental state instructions given at trial. ¶4 Issue Two: Whether this Court should exercise plain error review as to whether the District Court properly instructed the jury as to the mental state required to convict for PFMA. ¶5 Issue Three: Whether the written judgment should be corrected. PROCEDURAL AND FACTUAL BACKGROUND ¶6 In November 2010 Birthmark visited Glasgow, Montana, and stayed at the house shared by his mother, brother and sister. Late on the night of November 16 Birthmark and his sister went to a party at his aunt’s nearby house. He got into an argument with someone at the party and at about 1:30 a.m. returned to his mother’s house angry and intoxicated. When he arrived, his brother was awake and watching TV, while his mother was asleep. Birthmark was loud enough that he woke his mother and she came into the living room. Birthmark then began staring at his mother and brother, and called them “inbreds” and snitches. He grabbed a piece of lumber and said he was going to “bash [their] heads in;” that 3 he was going to slice their necks and kill them; and that he would do the same to the people at the party. This conduct went on for some time. ¶7 When Birthmark left the living room for the kitchen, saying he was going to find a knife, his mother left the house and called 911. Glasgow Police Officer Weber responded and found Birthmark’s mother outside the house. She was upset, crying and “scared to death.” Weber saw Birthmark’s brother coming out of the house with Birthmark close behind, but when Birthmark saw Weber he quickly went back inside. Birthmark’s brother was concerned for his mother and warned Weber that Birthmark had a knife. Birthmark came out of the house at Weber’s request without the piece of lumber or a knife. Weber observed that Birthmark was intoxicated and “worked up.” ¶8 The State charged Birthmark with PFMA in violation of § 45-5-206(1)(c), MCA, for causing reasonable apprehension of bodily injury by his mother and brother. The charge was his third or subsequent such offense and was therefore a felony, § 45-5-206(3)(iv), MCA. At trial, Birthmark testified that he had been “jumped” by people at the party; that he was concerned for his sister who was at the party; and that his anger displayed at his mother’s house was not directed at his mother and brother but was directed toward the people at the party. Birthmark testified that his mother and brother “inferred . . . or assumed” that his threats were directed at them. ¶9 At trial, Birthmark’s attorney did not offer any proposed jury instructions, and stated that he had no objection to the instructions proposed by the State. The jury convicted Birthmark of PFMA and the District Court sentenced him to the Department of Corrections 4 for four years with one year suspended and with credit for 273 days served. Birthmark appeals and requests that this Court undertake plain error review of the jury instruction issue. STANDARD OF REVIEW ¶10 This Court reviews issues arising from a district court’s decisions on jury instructions for abuse of discretion. State v. Gerstner, 2009 MT 303, ¶ 15, 353 Mont. 86, 219 P.3d 866. The inquiry, viewing the instructions as a whole, is whether the district court fully and fairly instructed the jury on the applicable law. State v. Dethman, 2010 MT 268, ¶ 12, 358 Mont. 384, 245 P.3d 30. Claims of ineffective assistance of counsel are mixed questions of fact and law that this Court reviews de novo. State v. Mitchell, 2012 MT 227, ¶ 11, 366 Mont. 379, 286 P.3d 1196. ¶11 Under plain error review, this Court may review errors not objected to at trial. Plain error review may occur under § 46-20-701(2), MCA, or as a matter of discretion under this Court’s inherent common law powers. State v. Finley, 276 Mont. 126, 915 P.2d 208 (1995). Plain error review is used sparingly and only in situations that implicate a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process. State v. Main, 2011 MT 123, ¶ 53, 360 Mont. 470, 255 P.3d 1240. The initial burden on a defendant seeking plain error review is to demonstrate that there was an error at trial. State v. Mitchell, 2012 MT 227, ¶ 13, 366 Mont. 379, 286 P.3d 1196. DISCUSSION 5 ¶12 Issue One: Whether Birthmark’s attorney provided ineffective assistance of counsel by failing to object to the mental state instructions given at trial. ¶13 Birthmark contends that his trial attorney provided ineffective assistance of counsel by not objecting to the instructions given by the District Court. To prevail on an IAC claim the defendant must establish that his attorney’s performance was deficient and that the deficiency prejudiced the defense. Baca v. State, 2008 MT 371, ¶ 16, 346 Mont. 474, 197 P.3d 948; Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052. A defendant must establish both of these factors in order to establish a claim of ineffective assistance of counsel. Whitlow v. State, 2008 MT 140, ¶ 11, 343 Mont. 90, 183 P.3d 861. ¶14 Birthmark was charged with PFMA under § 45-5-206(1)(c), MCA, which provides that a person commits PFMA if he “purposely or knowingly causes reasonable apprehension of bodily injury in a partner or family member.” “Purposely” is defined in § 45-2-101(65), MCA, and “knowingly” is defined in § 45-2-101(35), MCA. The District Court instructed the jury that “[a] person acts purposely when it is his conscious object to engage in conduct of that nature,” and, in a separate instruction, that “[a] person acts knowingly when the person is aware of his or her conduct.” The District Court also instructed the jury that Purpose and knowledge ordinarily may not be proved directly because there is no way of fathoming or scrutinizing the operations of the human mind. But you may infer the Defendant’s state of mind, including his purpose and knowledge, from the Defendant’s acts and all other facts and circumstances in evidence which indicate his state of mind. Birthmark contends that the District Court’s definitions of “purposely” and “knowingly” were improper because they were “conduct-based” definitions and not “result-based” 6 definitions. ¶15 Birthmark did not materially contest his actions at his mother’s house: staring at his brother and mother, using loud language, name-calling, picking up a large stick, talking about finding a knife, threatening to bash their heads in and to slit their throats. His defense was that he did not intend these actions to cause his brother and mother to have a reasonable apprehension of bodily injury. He contends that the jury should have been instructed that the State was required to prove that he intended his actions to cause his mother and brother to have reasonable apprehension of bodily injury. ¶16 Birthmark’s subjective intent while he undertook his actions was not the issue in the PFMA charge. It is well established that under the “reasonable apprehension” portion of the PFMA statute, the standard for determining whether there has been an offense is whether a reasonable person under similar circumstances as the victim would have a reasonable apprehension of bodily injury. State v. Vukasin, 2003 MT 230, ¶ 19, 317 Mont. 204, 75 P.3d 1284; State v. McCarthy, 1999 MT 99, ¶ 27, 294 Mont. 270, 991 P.2d 629; State v. Martel, 273 Mont. 143, 150, 902 P.2d 14, 19 (1995). “The standard is objective, asking whether a reasonable person under similar circumstances would have reasonably apprehended bodily injury.” State v. Finley, 2011 MT 89, ¶ 29, 360 Mont. 173, 252 P.3d 199. The only mental state required to convict is that the defendant have a “conscious object to engage in [the] conduct” or that he be “aware of his . . . conduct” as defined in § 45-2-101(35) and (65), 7 MCA.1 Those conduct definitions were in the instructions that the District Court gave to the jury here. ¶17 In State v. Martin, 2001 MT 83, 305 Mont. 123, 23 P.3d 216, Martin was charged with a number of offenses following an attempt to cash a forged check at a bank. He was charged with felony assault under § 45-5-202(2)(b), MCA, for purposely or knowingly causing reasonable apprehension of seriously bodily injury after pointing a pistol at a pursuing officer. Martin testified that he did not intend to cause the officer to reasonably apprehend serious bodily injury, and argued on appeal that his mental state, and not the perception of the officer, determined the mental state required for conviction. This Court disagreed, holding that the only mental state required as to Martin was proof that he acted purposely or knowingly. The separate element of the offense—causing reasonable apprehension of serious bodily injury—is established by the perception of the victim. Martin, ¶¶ 54-55. See also State v. Hagberg, 277 Mont. 33, 39-40, 920 P.2d 86, 89 (1996) (victim’s testimony of reasonable apprehension of serious bodily injury satisfies element of assault); State v. Matt, 249 Mont. 136, 146, 814 P.2d 52, 58 (1991) (overruled on other grounds, State v. District Court, 2010 MT 263, ¶ 3, 358 Mont. 325, 246 P.3d 415) (in felony assault charge the defendant must act purposely or knowingly, and the reasonable apprehension element is proved by the victim’s perceptions). 1 Compare, § 45-8-213(1)(a), MCA, which establishes the offense of violating privacy in communications, and which requires that the State prove that the defendant acted with a “purpose to terrify, intimidate, threaten, harass, annoy or offend . . . .” State v. Dugan, 2013 MT 38, ¶ 50, 369 Mont. 39, __ P.3d __. There is no such requirement in § 45-5-206(1)(c), MCA. 8 ¶18 The District Court properly instructed the jury in the applicable law on the mental state for the PFMA offense. Birthmark was not entitled to an instruction that the jury be required to find that he intended to cause his mother and brother to have reasonable apprehension of bodily injury. If such an instruction had been offered the District Court could have properly refused to give it. ¶19 The District Court’s instructions were proper in this case. To establish deficient performance, an appellant must overcome the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Mitchell, ¶ 21. The record here clearly demonstrates that Birthmark has not met his burden to establish deficient performance, and his attorney’s assistance was therefore not ineffective. ¶20 Issue Two: Whether this Court should exercise plain error review of whether the District Court properly instructed the jury as to the mental state required to convict for PFMA. ¶21 Birthmark requests that this Court undertake common law plain error review of the instruction issue, and does not rely upon § 46-20-701(2), MCA, the statutory provision on plain error. The threshold requirement for any plain error review of matters not objected to at trial is that there be error. As discussed above, the instructions given by the District Court properly defined “purposely” and “knowingly” for purposes of the PFMA charge against Birthmark, and there was no error. Without error there is no reason for further review of the instruction issue. ¶22 Issue Three: Whether the written judgment should be corrected. 9 ¶23 After Birthmark’s opening brief was filed in this appeal, his attorney contacted the State’s attorney about an error in the District Court’s written judgment. The error was that the written judgment imposed terms and conditions to apply during any term of parole or conditional release. The State concedes that the District Court may not impose conditions of parole or conditional release, citing State v. Burch, 2008 MT 118, ¶¶ 24-26, 342 Mont. 499, 182 P.3d 66, and that the written judgment should be amended. The State also agrees that this issue should be addressed in this appeal. ¶24 Accordingly, this matter is remanded to the District Court for the sole purpose of removing language in the August 22, 2011, judgment, page 4, line 22, that imposes terms and conditions of parole or conditional release. ¶25 This matter is remanded to the District Court for purposes of correcting the written judgment as discussed above, but is otherwise affirmed. /S/ MIKE McGRATH We concur: /S/ BETH BAKER /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT /S/ JIM RICE | April 9, 2013 |
2b09200f-f4e5-4f93-8982-b9fc6bc7a5c2 | IN RE THE RULES OF CONTINUING LEGAL | N/A | AF 06-0163 | Montana | Montana Supreme Court | IN THE SUPREME COURT OF THE STATE OF MONTANA No. AF 06-0163 ______________ IN RE REVISION OF THE RULES FOR ) CONTINUING LEGAL EDUCATION ) O R D E R ) _____________ The Montana Commission of Continuing Legal Education has filed a petition asking the Court to amend the Rules for Continuing Legal Education. The Court published the proposed changes and accepted public comment on them. One comment was filed. IT IS ORDERED that the amendments proposed to the Rules for Continuing Legal Education are adopted, effective beginning with the 2013-2014 reporting year. A copy of this order and the attached rules shall be published on the Court’s website. The Clerk is directed to provide copies of this Order and the attached rules to K. Paul Stahl, Chair of the Commission of Continuing Legal Education, and to the State Bar of Montana. DATED this 2nd day of April, 2013. /S/ MIKE McGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ JIM RICE April 3 2013 1 RULES FOR CONTINUING LEGAL EDUCATION In the Supreme Court of the State of Montana Principles 1. The primary purpose of Mandatory Continuing Legal Education (MCLE) in Montana is to improve the competence of attorneys. 2. The MCLE program should function in the interest of consumer protection, assisting Montana attorneys in remaining abreast of changes in the law and in the practice of law in order to better serve the public. 3. Regulatory authority for MCLE rests with the Montana Supreme Court. In light of the authority of the Court provided in Article VII, Section 2 of the Montana Constitution permitting the Court to make rules governing admission to the bar and the conduct of its members, the Court oversees the continuing legal education system withthe same thoughtful deliberation it devotes to deciding cases. 4. The MCLE program should be a means of inculcating principles of ethics and professional conduct, as well as providing knowledge and training in substantive areas of the law. 5. Based on the belief that interaction with fellow attorneys contributes to the learning process and advances the goal of civility in the practice of law, a significant portion of the MCLE requirement should be satisfied by interactive seminars or by such methods thatallow for interaction among the participants and the instructor by electronic means. 6. Because the profession’s obligation to the public is paramount, all active attorneys must comply with MCLE, subject to the need to accommodate special circumstances, as long as they remain in the practice. 7. The MCLE program should be administered for the Court by the State Bar in a cost effective manner, with the aim being neither to generate revenue nor produce financial losses for the Bar. 8. There should be an on-going evaluation of the effectiveness of MCLE, particularly in terms of whether it helps attorneys meet their obligations to the public. Rule 1 – Purpose 2 These rules establish standards for the continuing legal education required of all persons licensed to practice law in the State of Montana. It is of primary importance to the members of the State Bar of Montana and to the public that attorneys continue their legal education throughout their active practice of law. Rule 2 – Definitions A. “Active Member” means any person who is licensed to practice law in the State of Montana and who pays “Active Member” dues to the State Bar of Montana. B. “Approved Legal Education Activity” means an individual seminar, course, or other activity approved by the Commission. C. “Commission” means the Montana Commission of Continuing Legal Education. D. “Board of Trustees” means the Board of Trustees of the State Bar of Montana. E. “Legislator Member” means a member of the State Bar of Montana who is holding office as a duly elected or appointed member of the Montana House of Representatives or the Montana Senate. F. “Chairperson” means the chairperson of the Commission. G. “Credit Hour” means sixty (60) minutes of approved legal education activity. H. “Emeritus Members” are those who have been granted emeritus status under Article I, Section 3(g) of the By-Laws of the State Bar of Montana. I. “Inactive Member” means any person who is licensed to practice law in the State of Montana and who pays “Inactive Member” dues to the State Bar of Montana. J. “MCLE Administrator” is the person designated by the Commission, with the approval of the Executive Director of the State Bar of Montana. K. “Rule” or “Rules” refers to the Rules for Continuing Legal Education. L. “Reporting Year” means April 1st through March 31st. Rule 3 - Commission A. Membership, Appointment, and Terms. The Commission consists of nine (9) members, six (6) of whom shall be admitted to practice law in the State of Montana, and three (3) of whom shall be residents of the State not admitted to the practice of law. The State Bar shall nominate and the Court shall appoint members for three-year terms. Each yearly class of members shall include two lawyers and one layperson. In addition, one member of the Montana Supreme Court shall serve as an ex- officio member of the Commission. The Commission shall designate one of its attorney members to serve as Chairperson for a term of two years. A Commission member may serve no more than two consecutive terms 3 as Chairperson. The MCLE Administrator shall serve as Secretary to the Commission. The Court may terminate membership on the Commission in accordance with the By-Laws of the State Bar. In the event of a vacancy, a successor will be appointed by the State Bar of Montana to serve the unexpired term. The successor will be given first consideration for appointment to a full term at the expiration of the interim appointment. The Commission has authority to act when a quorum is present. A quorum of the Commission consists of five (5) or more of its members. B.Powers of the Commission. 1. The Commission shall administer and interpret these Rules. 2. The Commission shall: a. Determine whether, under Rules 6 and 7, all or portions of individual courses and programs not presented by an Accredited Sponsor are approved legal education activities; b. Determine the number of credit hours allowed for each approved legal education activity, including those of Accredited Sponsors; c. Designate Accredited Sponsors and annually review such designations; d. Report annually to the Board of Trustees; e. Assess annual affidavit filing fees to pay the reasonable and necessary costs of administering these rules, assess penalty fees for failure to file affidavits as required by Rule 5, assess a fee for the reinstatement to active practice of attorneys under Rule 12, assess sponsor fees, and assess other fees deemed necessary by the Commission; f. Meet at least three times per year. The time, method, and place of meetings shall be at the discretion of the Commission, subject to these Rules; and g. Place upon any member seeking to qualify under these rules the burden of proof. h. Direct the State Bar of Montana to transfer attorneys not in compliance with Rule 5 from active status to inactive status. 3. The Commission may take other action deemed necessary to administer these rules. C.Committees. The chairperson may appoint one or more committees, which shall either be standing or ad hoc, as appropriate, but there shall be a standing committee known as the “Accreditation Committee”, consisting of a least three (3) members of the Commission. The Accreditation Committee shall have the interim authority to determine requests for exemption or extension under Rule 4 and earned hours of accreditation under Rules 6 and 7. D. Expenses of the Commission. Members of the Commission shall not be compensated except for actual and necessary expenses incurred in the performance of Commission duties. E. Annual Budget. The Commission shall submit an annual budget to the Board of Trustees for approval. 4 Expenses of the Commission shall not exceed the annual budget approved by the Board of Trustees. F. MCLE Administrator. The Commission may delegate its power to the MCLE Administrator pursuant to guidelines established by the Commission. At each meeting of the Commission, the MCLE Administrator shall report on all determinations made since the preceding meeting of the Commission. G. Authority. The Commission shall operate, for administrative purposes only, under the general authority of the Board of Trustees. For all other purposes including amendments to the rules, recommendations for changes in the methods of operation, and reports on the effectiveness of enforcement, the Commission shall operate under the authority of the Court. Rule 4 – Education Requirements, Exemptions, and Extensions A. Active Member Minimum MCLE Requirements: Each active member must earn a minimum of fifteen (15) credit hours of approved continuing legal education each reporting year. Of those fifteen (15) credit hours, at least ten (10) credit hours must be earned by attendance at interactive seminars as defined in Rule 7. No more than five (5) credit hours may be earned through “other methods” as defined in Rule 7. Of the fifteen (15) credit hours of continuing legal education required each reporting year, at least two (2) credit hours must be in ethics. “Ethics” means the accepted principles of professional conduct and responsibility as established by the Montana Rules of Professional Conduct or established by other state or national rules of professional conduct for lawyers. Approved programs on the relationship between substance abuse, chemical dependency, or debilitating mental illness as they relate to a lawyer’s professional responsibilities, satisfy the requirement for ethics credits. If a member earns more interactive credits than required in any year, the excess interactive credits may be carried forward and applied to satisfy the requirements of these rules in one or both of the next two reporting years. A maximum of thirty (30) interactive credit hours may be carried forward. Credits, including ethics credits, earned in any reporting year by “other methods” as defined in Rule 7, may not be carried forward or applied to satisfy any requirement of these rules for any subsequent reporting year. B.Emeritus Member Continuing Legal Education Requirement: 5 Each emeritus member shall complete a minimum of ten (10) credit hours of approved continuing legal education activity each year. Each of those ten (10) credit hours must be certified by a qualified provider of legal services, as defined in Section 3(g)(vi) of the By- laws of the State Bar of Montana, as training prescribed for emeritus lawyers and related to the field of law for which such lawyers provide legal services to persons unable to pay for such services. In addition, of the ten (10) credit hours, at least five (5) credit hours must be earned by attendance at interactive seminars as defined in Rule 7. No more than five (5) credit hours may be earned through “other methods” as defined in Rule 7. If an emeritus member accumulates more interactive credits than required in a year, the excess interactive credits may be carried forward and applied to either or both of the next two succeeding years. Credits earned by “other methods” may not be carried forward. A maximum of twenty (20) interactive credit hours may be carried forward. Emeritus members are subject to the same requirements as active members for credit hours in ethics. All CLE filing fees shall be waived for emeritus members. C.Inactive Member Continuing Legal Education Exemption: An inactive member is exempt from the continuing legal education requirement of these rules. D. Legislator Member and Governor Continuing Legal Education Exemption: A legislator member or the Governor of the State of Montana is exempt from the continuing legal education requirement of these rules during his or her term of office as a member of the Montana House of Representatives, as a member of the Montana Senate, or as the Governor. E. Judiciary Member Continuing Legal Education Exemption: A full-time judge or retired judge eligible for temporary judicial assignment and not engaged in the practice of law is exempt from the continuing education requirement of these rules. A full-time judge is an elected or appointed member of the Judiciary who devotes his or her full-time professional activity to his or her position as a judge. The Judiciary includes Montana Supreme Court justices, Montana district court judges, tribal judges, Montana water court judge, Montana workers’ compensation judge, Montana justices of the peace, Montana city judges, Montana municipal judges, and federal administrative law judges, U.S. circuit court judges, U.S. district court judges, U.S. Magistrates, and U.S. bankruptcy judges. F.Other Exemptions: Exemptions may be granted by the Commission as follows: 1. Exemptions due to special circumstances: Upon written and sworn application, accompanied by the annual filing fee required by Rule 3B2(e), the Commission may exempt an attorney from all or a portion of the continuing legal education requirement for a period of not more than one (1) year upon a finding by the Commission of special circumstances, 6 unique to that member, constituting undue hardship. Such circumstances include: a. Severe or prolonged illness or disability of the member that prevents the member from participating in approved continuing legal education activities. If the member is disabled or hospitalized, a sworn statement from another person who is familiar with the facts may be accepted; b. Extended absence from the United States; or c. Other extenuating circumstances. 2. An exemption may not be granted in successive years for the same or similar hardship. 3. Exemption during year of admission: An active member is exempt from the continuing legal education requirement of these rules during the balance of the reporting year during which he or she is admitted. G. Waiver: If an active member requests to become an inactive member after the Commission has notified the Court of noncompliance, the Commission may waive the continuing legal education requirement for the previous year. H. Extensions: The Commission may grant an extension of time for the reporting requirement of Rule 5, upon a finding by the Commission of special circumstances unique to that member constituting undue hardship. I. Burden of Proof: The burden is on the member to submit and satisfy the requirements of these rules. Rule 5 – Reporting Requirements A. Report. On or before April 15 of each year, the Commission shall provide each active member, except those granted an exemption under Rule 4, a preliminary report of all CLE credits accumulated by that member in the previous reporting year. If the member finds the preliminary report to be inaccurate or incomplete, he or she shall provide corrections in writing to the CLE administrator by May 15. If the Commission determines the corrections incomplete or ambiguous, additional information may be required from the reporting member. The preliminary report, including Commission-approved corrections, if any, will be deemed the official report on June 1. B. Fee. 7 The Commission shall require payment of a fee not to exceed twenty-five dollars ($25.00), which each reporting attorney must pay to defray the cost of maintaining records and enforcing the Rules. The prescribed fee shall accompany the Supreme Court License Tax and the State Bar of Montana Membership Dues submitted by each attorney. Failure to pay the prescribed fee constitutes noncompliance under Rule 12. C. Noncompliance Fees. In addition to the filing fee prescribed in Rule 3B2(e), attorneys deemed noncompliant who correct the deficiency on or before July 1, as provided in Rule 12A, shall be assessed an additional fee. Non-compliance after July 1 shall be governed by Rule 12. D. Burden. The burden is on the member to submit and satisfy the requirements of these rules, and failure to respond in a timely manner shall constitute noncompliance under Rule 12. Rule 6 – Credit Hours and Accreditation Standards A. Credit Hours. The Commission shall designate the number of credit hours to be earned by participation in or teaching of approved continuing legal education activities. Credit shall be earned on the basis of one (1) credit hour for each sixty (60) minutes actually spent by a member in attendance at an approved activity or in preparation for and teaching of an approved activity. Credit will not be earned for time spent in introductory remarks, coffee and luncheon breaks, or business meetings. Further, credit will not be earned for speeches presented at, or attendance at, luncheons or banquets. Repetition of an activity does not qualify for credit. B.Accreditation and Accreditation Standards - General. The Commission may approve continuing legal education activities when consistent with these Rules. The following standards as to content shall govern the approval of a continuing legal education activity: 1. It shall have significant legal content; 2. Its primary objective shall be to increase professional competence as a lawyer; 3. It shall constitute an organized program of learning dealing with matters directly related to the practice of law, professional conduct, or the ethical obligations of lawyers; 4. It shall be conducted by an individual or group qualified by practical or academic experience in a setting physically suited to the educational activity of the program; and 5. It should include thorough, high-quality, and carefully prepared written materials to be distributed to all attendees at or before the time the course is presented. While it is recognized that written materials are not suitable or readily available for some types of 8 subjects, the absence of written materials for distribution should be the exception and not the rule. 6. It shall not be offered on a basis that discriminates against attendees on account of race, color, sex, sexual orientation, culture, social origin or condition, or political or religious ideas. C. The burden is on the member to submit and satisfy the requirements of these rules. Rule 7 – Types of Programs and Activities that Qualify for Credit A. All activities must meet the standards set forth in Rule 6B. The following methods of presentation will be considered for credit: 1. Interactive seminars - a minimum of ten (10) credit hours per year must be earned by attending interactive seminars. An interactive seminar is an activity where the instructor and at least four other participants are available to interact with each other for the purpose of further discussion or answering questions. 2. Other methods – a maximum of five (5) credit hours per year may be earned by participation in any one or a combination of the following other methods: a. Using audio- or video-produced material; b. Participating in online seminars that do not involve interaction with instructors and other participants; c. Writing an article which appears in any Law Review published by an ABA- accredited law school; d. Attending courses taught at an ABA-accredited law school subsequent to being admitted to the State Bar of Montana; e. Teaching and preparing written materials for an approved activity. Repetition of such teaching activity does not qualify for credit; f. Attending in-house courses offered by law firms, corporate legal departments, or similar entities primarily for the education of their employees or members. The standards set forth in Rule 6B are applicable to the approval of individual in-house courses. In addition, the following additional standards must be met: i. An application for approval must be filed with the Commission before the date on which the course is to be held. The Applicant will be expected to furnish curriculum materials and a schedule and to provide assurances that client-related matters and case studies are not part of the credit hours being sought; ii.The course must be attended by five (5) or more lawyers, including the instructor; iii. The course must be scheduled at a time and location so as to be free of interruption from telephone calls and other office matters; iv. The applicant must agree to permit any member of the Commission, or a designee of the Commission, including the MCLE Administrator, to be in attendance at the 9 activity if deemed necessary by the Commission; g. Satisfactorily completing an approved self-study program; or h. Utilizing any other method if the applicant can demonstrate the activity has significant legal content and the primary objective of the activity is uniquely connected to the practice of law. 3. The burden is on the member to submit and satisfy the requirements of these rules. B.The following will not be considered for credit: 1. Bar Review Courses. Credit shall not be earned for any bar review course offered in any state or for any other course attended before admission to practice law in any state. 2. Teaching at Educational Institutions. Teaching in scheduled activities of any educational institution by an attorney who has an employment relationship with the institution, either as an employee or as a contractor, or by an attorney who is a guest speaker on a regular basis is not an approved continuing legal education activity under this rule. Rule 8 – Presumptive Accreditation The Commission may recognize and presumptively accredit courses that have been accredited by and held in other states. The Commission will grant the same number of credits to each course that was granted in the state in which the course was presented. The Commission retains the right to reject accreditation of any course that it believes does not meet the standards set out in rule 6(B) or for which documentation of accreditation is not provided. Rule 9 - Accreditation A. A sponsor (other than an Accredited Sponsor) or an individual member may seek advance approval on a form provided by the Commission, accompanied with a filing fee in an amount to be determined by the Commission each year. The same procedure may be followed after presentation of the activity, except that, unless waived by the Commission, requests for approval of activities must be submitted before March 31 of the reporting year in which the activity was presented. Courses submitted after the March 31 deadline will incur a late filing fee not to exceed fifty dollars ($50.00). The Commission, with the MCLE Administrator, shall advise the applicant in writing whether the activity is approved and, if approved, the number of credit hours allowed. B. Except as provided above, no credit will be recognized without application and approval. Any delay which takes place in making a determination on a request for approval does not relieve the member from compliance with the Rules. 10 Rule 10 Accredited Sponsors A. An Accredited Sponsor is an organization designated as such by the Commission. Continuing legal education activities presented by an Accredited Sponsor are approved legal education activities. B. An application for approval as an Accredited Sponsor shall be submitted annually on a form provided by the Commission and accompanied by a filing fee in an amount to be determined by the Commission each year. Applications shall be evaluated under criteria defined in Rules 6 and 7. A sponsor shall not be accredited unless it has offered five or more separate continuing legal education activities during the preceding year. C. Upon approval as an Accredited Sponsor, the organization is exempt from the requirement of applying for approval of individual programs. Documentation for individual programs must be submitted prior to December 31 of the calendar year in which the activity was presented. Documentation submitted after the December 31 deadline will not be considered unless accompanied by a late filing fee not to exceed fifty dollars ($50.00). The Commission will determine the number of credit hours for each continuing legal education activity. D. The Commission may at any time re-evaluate and revoke the status of an Accredited Sponsor if a program fails to meet either the accreditation standards set forth in Rule 6B or the methods of presentation set forth in Rule 7. E. A list of organizations or groups which are approved as Accredited Sponsors of continuing legal education activities will be maintained by the MCLE Administrator in the office of the State Bar of Montana. A current list of Accredited Sponsors will be published in the Montana Lawyer. Rule 11 – Appeals An attorney or sponsoring agency disagreeing with a determination of the Commission, the Accreditation Committee, or the MCLE Administrator, other than the noncompliance provisions of Rule 12, shall submit his or her statement, together with supporting data, to the Commission. The Commission shall consider the matter at its next regular meeting. The Commission shall send written notice to the sponsoring agency or attorney advising of the date, time, and location of the meeting and advise that he or she has the right to appear at the meeting and present any evidence on his or her behalf. Consideration of the matter is not an 11 adversarial or contested proceeding, and formal rules of evidence shall not apply. The Commission shall determine the matter by majority vote of those present and its decision shall be final. Rule 12 – Noncompliance A. Notice of Noncompliance. The Commission shall, by June 1 of each year, send a written notice of noncompliance to each attorney who has not fulfilled the CLE requirements for the previous year as documented by the official report compiled through the procedure outlined in Rule 5. The notice of noncompliance shall describe the nature of the noncompliance and shall state that, unless the attorney files an acceptable update to the official report with the Commission by July 1 of that year showing that the noncompliance has been corrected and pays the appropriate fees, the Commission will direct the State Bar of Montana to transfer the attorney to inactive status until the noncompliance is corrected and the fees required by Rule 5 are paid. B. Notice of Transfer. No later than ten (10) Business days after July 1, the Commission shall furnish the names of the attorneys and the effective date of their transfers to inactive status to the named attorneys, to the Montana Supreme Court, to the Clerk of the Montana Supreme Court, to the Clerks of the District Courts of the State of Montana with the request that they provide a copy to the district judges in their judicial districts, to the Clerk of the Federal District Court of the District of Montana, with a request that the Clerk provide a copy to the United States District Judges in Montana and to the Clerk of the Circuit Court of Appeals of the Ninth Circuit. C. Transfer Not Punishment. The transfer of an attorney to inactive status pursuant to this Rule shall not be deemed a punishment or disciplinary action for purposes of the Montana Rules of Professional Conduct or the Montana Rules for Lawyer Disciplinary Enforcement. D. Fee for Reinstatement. An attorney transferred to inactive status pursuant to this Rule shall apply for reinstatement as provided in Section 3 of the By-Laws of the State Bar of Montana and shall pay to the State Bar of Montana a fee equal to the greater of two hundred dollars ($200.00) or the usual and customary fee charged by the State Bar of Montana for transferring a member from inactive to active status. 12 Rule 13 – CLE Requirement Upon Reinstatement to Active Status or After Suspension This rule applies to an attorney transferred to inactive status in accordance with Rule 12 or suspended from the practice of law who applies for reinstatement to active practice. The attorney may be reinstated by the Court upon the payment of all fees required by the Commission and certification by the Commission that the attorney has completed the minimum continuing legal education requirements. The attorney shall have completed fifteen (15) hours of approved continuing legal education for each 12-month period the attorney was on inactive status or suspended from the practice of law. The total continuing legal education requirement under all of the foregoing shall not exceed thirty (30) hours. The Commission may consider hours of approved continuing legal education that the attorney has completed within twenty-four months prior to the application for reinstatement. Rule 14 – CLE Requirement Upon Change From Voluntary Inactive or Resigned Status to Active Status This rule applies to an attorney who voluntarily switched from active to inactive status or who resigned membership in the State Bar and who applies for reinstatement to active status. Within 6 months of re-admission to active status by the Court, the attorney shall complete 15 hours of approved continuing legal education for each 12-month period of inactive or resigned status, not to exceed a total of 30 hours. The Commission may consider hours of approved continuing legal education which the member has completed within 24 months prior to the application for reinstatement to active status. Attorneys who believe their occupations during inactive or resigned status are sufficient to warrant readmission to active status without being required to make up continuing legal education credits may submit petitions to the Court for such re-admission setting forth the grounds for re-admission. If an active member requests to become an inactive member, the continuing legal education requirement may be waived for the preceding year. Rule 15 – Confidentiality Unless otherwise directed by the Supreme Court or these Rules, the files, records and proceedings of the Commission, as they relate to or arise out of any failure of any attorney to satisfy the requirements of these Rules, shall be deemed confidential and shall not be disclosed, except in furtherance of the duties of the Commission, upon the request of the Commission on Practice, or the attorney affected, or as introduced into evidence or otherwise produced in proceedings under these Rules. After the Commission directs the State Bar of Montana to transfer an attorney to inactive status, the matter becomes one of public record 13 and is no longer confidential. | April 3, 2013 |
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