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bd420d2a-caaf-4754-abee-4c0464761e3f | 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 |
924b39e6-bc54-412b-a95d-5e96d6e8ace7 | Mountain West Bank, N.A. v. Cherrad, LLC | 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. Trade 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. Trade 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 an idea 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 |
71f492de-afd4-482d-9fa3-60766fb37191 | Federal Home Loan v. Petty | 2013 MT 91N | DA 12-0445 | Montana | Montana Supreme Court | DA 12-0445 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 91N FEDERAL HOME LOAN MORTGAGE CORPORATION, Plaintiff and Appellee, v. JEFFREY S. PETTY and MEGAN A. PETTY, Defendants and Appellants. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-11-1313C Honorable Stewart E. Stadler, Presiding Judge COUNSEL OF RECORD: For Appellant: Timothy Baldwin, Lerner Law Firm, Kalispell, Montana For Appellee: Cassie R. Dellwo, Mackoff Kellogg Law Firm, Dickinson, North Dakota Submitted on Briefs: March 20, 2013 Decided: April 9, 2013 Filed: __________________________________________ Clerk April 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 quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Defendants Jeffrey S. Petty and Megan A. Petty appeal a decision of the Eleventh Judicial District Court, Flathead County, granting summary judgment to Plaintiff Federal Home Loan Mortgage Corporation (“Freddie Mac”). We affirm. ¶3 The Pettys executed a deed of trust on February 21, 2007, encumbering a tract of real property in Marion, Montana. The original beneficiary of the deed of trust, Mortgage Electronic Registration Systems, Inc., assigned its interest to BAC Home Loans Servicing, LP FKA Countrywide Home Loans Servicing LP (“BAC”), pursuant to an assignment of deed of trust executed December 18, 2009. Thereafter, BAC appointed ReconTrust Company, N.A., as substitute trustee. ¶4 The Pettys defaulted on their obligations under the deed of trust as stated in the Notice of Trustee’s Sale dated December 17, 2010. ReconTrust thereupon initiated a trustee’s sale, which was held May 3, 2011. BAC was the purchaser at the sale. On May 5, 2011, BAC conveyed the subject property by warranty deed to Freddie Mac. ¶5 The Pettys remained on the property after the trustee’s sale. As a result, Freddie Mac served the Pettys a Notice to Quit on July 19, 2011, advising the Pettys that the tenancy under which they remained on the property would not be renewed and that they 3 were required to quit and deliver possession of the property to Freddie Mac within thirty days. The Pettys refused to vacate. Freddie Mac served the Pettys a second Notice to Quit on October 3, 2011, stating that the Pettys’ tenancy had ended on August 19 and that they had three days to vacate the property. Still, the Pettys refused to vacate. ¶6 As a result, Freddie Mac initiated the instant unlawful detainer action against the Pettys on October 24, 2011. Following oral argument on June 5, 2012, the District Court granted Freddie Mac’s motion for summary judgment under M. R. Civ. P. 56(c), thus rendering other pending motions moot. Citing § 71-1-319, MCA, the court determined that Freddie Mac, as the successor in interest to the purchaser at the trustee’s sale, was entitled to possession of the subject property on May 15, 2011. The court observed that Freddie Mac had offered proof in support of its allegations, which the Pettys had not rebutted. Furthermore, the court concluded that the Pettys had failed to properly plead constructive fraud. After finding that notice and process were complete and that there were no genuine issues of material fact, the District Court determined that Freddie Mac was entitled to judgment as a matter of law. ¶7 The Pettys contend on appeal that the District Court erred in granting summary judgment in favor of Freddie Mac. We disagree. Pursuant to § 71-1-319, MCA, Freddie Mac was entitled to possession of the subject property as the successor to the purchaser at the trustee’s sale. Montana’s unlawful detainer statutes require a thirty-day notice to quit, § 70-27-104, MCA, and a three-day notice of reentry, § 70-27-106, MCA. Freddie Mac gave both notices prior to filing this unlawful detainer action. The Pettys continued to occupy and possess the property. Based on the record before us, it is clear that Freddie 4 Mac complied with the applicable provisions of law and is the owner of the property. The Pettys have presented no evidence suggesting that there are genuine disputes as to any material issues of fact. Furthermore, we agree with the District Court that the Pettys failed to properly plead fraud pursuant to M. R. Civ. P. 9(b). Accordingly, the District Court correctly granted summary judgment to Freddie Mac. ¶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 issues in this case are legal and are controlled by settled Montana law, which the District Court correctly applied. ¶9 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JIM RICE | April 9, 2013 |
48f530ca-49de-46cc-a5f5-7fa26d14d099 | 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 an 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 |
5eb68ee7-4e8d-47cd-8ffc-cb2562c37aa0 | In re D.A. | 2013 MT 191 | DA 12-0648 | Montana | Montana Supreme Court | DA 12-0648 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 191 IN THE MATTER OF: D.A. and M.A., Youths in Need of Care. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause Nos. CDN 10-064 and 10-065 Honorable Kenneth R. Neill, Presiding Judge COUNSEL OF RECORD: For Appellant: Elizabeth Thomas, Attorney at Law; Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant Attorney General; Helena, Montana Theresa L. Diekhans, Assistant Attorney General, Child Protection Unit; Great Falls, Montana Submitted on Briefs: March 6, 2013 Decided: July 16, 2013 Filed: __________________________________________ Clerk July 16 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 The Eighth Judicial District Court, Cascade County terminated T.A.’s (Mother’s) parental rights to her two daughters D.A and M.A. (collectively “Children”). Mother claims that the Department of Health and Human Services (Department) failed to comply with the provisions of the Indian Child Welfare Act (ICWA) and various other federal and state requirements. We affirm. ¶2 We address the following issues on appeal: ¶3 Whether the Department made sufficient active efforts to reunify Mother and the Children to satisfy ICWA? ¶4 Whether the Department provided sufficient evidence that reunification of Children with Mother would cause serious physical or emotional damage to the Children? ¶5 Whether the District Court properly determined that Mother had stipulated to the treatment plan? ¶6 Whether all stipulations in ICWA involuntary termination proceedings must be reduced to writing? FACTS ¶7 T.A. is the natural mother of M.A. and D.A. M.A. is nine years old and D.A. is seven years old. The Children and Mother are enrolled members of the Chippewa Cree Tribe. ¶8 Mother has a long history of illegal drug use that includes methamphetamine, marijuana, and benzodiazepine. Mother tested positive for methamphetamine in August 2005 when she was six months pregnant with D.A. The Department removed M.A. from Mother’s care the day after Mother’s positive methamphetamine test. ¶9 The District Court, in an earlier proceeding, had adjudicated M.A. a youth in need of 3 care and granted temporary legal custody (TLC) of M.A. to the Department. The Department removed D.A. from Mother’s care at birth in November 2005 due to Mother’s methamphetamine use while pregnant with D.A. The Department restored custody of M.A. and D.A. to Mother in 2007 after Mother successfully completed a treatment plan. ¶10 Mother also has a long history with the Department. Child Protective Services(CPS) has received at least twelve referrals regarding Mother since 2004. CPS undertook eight child investigative reports during that period. These referrals involved Mother’s other child too. The Department required Mother to attend treatment after Mother had left her daughter, A.A., at a daycare in October 2008. A.A. was around five months old at the time. The Department agreed to A.A.’s placement with her birth father with whom she still resides. ¶11 The Children’s maternal aunt and uncle agreed to care for the Children so that Mother could attend treatment after the incident with A.A. Mother walked away from that treatment program after two days. She chose instead to live at a rescue home without the Children. The Children remained with the aunt and uncle until April 2010 when the uncle informed the Department that the aunt and uncle no longer could care for the Children. ¶12 The Department placed the Children into protective custody on April 23, 2010. The Department filed a petition for emergency protective services, adjudication as youths in need of care, and TLC for the youths on April 28, 2010. The Department originally assigned Amanda Scott (Scott), a child protective specialist, to the case. Scott tried unsuccessfully to contact Mother through Mother’s sister, Mother’s probation officer, M.A.’s grandmother, and M.A.’s father. Scott finally contacted Mother in June 2010. 4 ¶13 The District Court held a show cause hearing and adjudicatory hearing on the Department’s petition on May 25, 2010. The Department notified the Chippewa Cree Tribe of the proceeding. The Tribe did not respond. Mother appeared through counsel as she was in custody. ¶14 The Department by this point had placed M.A. with a grandparent and D.A. with a maternal aunt. Mother’s counsel stipulated to the Department having temporary investigative authority (TIA) due to Mother’s satisfaction with the Children’s placement. Counsel contested TLC because of Mother’s absence. The Department agreed to limit its petition, for the time being, to TIA. The court inquired whether the Department needed to present the testimony of an ICWA expert before the court could grant TIA. The Department argued that Mother could waive the need for the ICWA expert. Mother’s counsel stipulated to waive the expert’s testimony. The court approved the Children’s current placements and granted the Department temporary investigative authority for 90 days. ¶15 The court held a show cause and adjudicatory hearing on the Department’spetition to convert the TIA to TLC on July 13, 2010. Mother appeared by telephone and was represented by counsel. The court informed Mother that she would have to undergo a treatment plan to regain custody of the Children if she agreed to the Department’s TLC. Mother agreed. ¶16 The Department had not yet completed Mother’s treatment plan. The Department represented that it would have Mother’s treatment plan ready within 20 days. Mother’s counsel again stipulated to waive ICWA expert testimony. Mother’s counsel also agreed to 5 treat this hearing as a dispositional hearing, on the condition that Mother could object to the contents of the treatment plan once the Department completed it. The Department agreed to allow Mother 10 days to object to the treatment plan once the Department filed the treatment plan with the court. ¶17 The court ordered the Children adjudicated youths in need of care on July 23, 2010. The court found that “[t]he treatment plan for the Mother, [T.A.], is reasonable and appropriate.” The District Court also stated that Mother had “reviewed the proposed treatment plan and she had signed the treatment plan and has already begun to complete the requirements of the treatment plan.” ¶18 The Department’s completion of Mother’s treatment plan took longer than the 20 days that the Department had represented. The Department finally submitted Mother’s treatment plan to the District Court on November 1, 2010. By this time, Mother had been transferred from the Cascade County Detention Center to Passages in Billings, and finally to Butte’s Pre-Release Center. Mother filed no objection to the content of the treatment plan. ¶19 Mother remained in the Butte Pre-Release Center for almost a year. Throughout this period, Mother maintained contact with the Children, the Department, and her parole officer. Mother also completed a psychological evaluation, attended parenting classes, and remained employed as required by her treatment plan. ¶20 Dr. Susan Day, a licensed clinical psychologist, performed Mother’s psychological evaluation. Dr. Day recommended that Mother demonstrate for six months that she could maintain her sobriety outside a monitored setting. Mother would need to be discharged from 6 Pre-Release in order to meet this recommendation. Dr. Day also recommended that Mother be required to establish a stable home, sobriety, and work for six continuous months in order to demonstrate that Mother was sufficiently stable to parent the Children. Mother never completed these goals. ¶21 Mother discharged from Pre-Release in Butte on November 22, 2011. She moved into the Pre-Release’s Alternative Reporting Component (ARC). ARC operates as a transitional living program that “provides a continuum of care” for those offenders who transition from Pre-Release back into the community. ARC afforded Mother the opportunity to establish a residence of her own. Mother still had to comply with certain rules and conditions of release, including those in her treatment plan. ¶22 The Department transferred D.A. from a foster home in Great Falls to a foster homein Butte in October 2011. The Department intended that D.A. would transition into Mother’s home while Mother completed ARC and met her release conditions. Scott worked with Joslin Swartz (Swartz), a Department child protection specialist in Butte, to facilitate D.A.’s transfer. ¶23 Swartz met with Mother on numerous occasions while Mother lived in Butte. Swartz met with Mother both at Swartz’s office and at Mother’s home. Swartz learned during one home visit that Mother had a live-in boyfriend. Mother falsely told Swartz the boyfriend was at a funeral in Washington. The boyfriend actually was in jail in Spokane, Washington. ¶24 Department policy prevented D.A.’s placement in Mother’s home until the Department had investigated the boyfriend’s background. Swartz informed Mother that the 7 boyfriend needed to provide fingerprints and to execute a release that would allow the Department to investigate his background. Swartz gave Mother the information release and fingerprint forms. The boyfriend submitted fingerprints, but he refused to sign the release. The boyfriend continued to live with Mother. ¶25 Mother and boyfriend went drinking on New Year’s Eve 2011. The boyfriend physically assaulted Mother that night and he was arrested for partner family member assault. The Department of Corrections (DOC) placed Mother in the Enhanced Supervision Program on January 25, 2012, for 90 days due to Mother’s violation of the terms of both her parole and her parenting plan. ¶26 The Department filed a petition for permanent legal custody and termination of parental rights on February 3, 2012. Mother absconded from her parole in March 2012. Mother remained on the lam until June when she was arrested and detained for having absconded. ¶27 M.A. lived with her paternal grandmother throughout most of these proceedings. The guardian ad litem continually has reported to the court that M.A. remains “well taken care of” by her grandmother. D.A. has been moved a number of times. Various relatives have cared for her and the Department has placed her in foster homes in Box Elder, Great Falls, and Butte. The Department returned D.A. to the foster home in Great Falls after the effort to reunite D.A. with Mother in Butte failed. ¶28 The District Court held a permanent legal custody and termination of parental rights hearing on August 29, 2012. Mother appeared with counsel. Dr. Day, Scott, Swartz, Tricia 8 Jory (Mother’s parole and probation officer in Butte), and Anna Fischer (an ICWA expert) testified for the Department. ¶29 The District Court granted the Department’s petition to terminate Mother’s parental rights on September 28, 2012. The District Court determined beyond a reasonable doubt that Mother had failed to comply with the treatment plan or show any indicia that she could begin to comport with the treatment plan within a reasonable period. The District Court determined beyond a reasonable doubt that Mother’s continued custody of the Children likely would result in serious emotional or physical damage to the Children. Mother appeals. STANDARD OF REVIEW ¶30 We review for abuse of discretion a district court’s termination of parental rights. In re B.M., 2010 MT 114, ¶ 14, 356 Mont. 327, 233 P.3d 338. We determine whether a district court’s findings of fact are clearly erroneous and whether its conclusions of law are correct. In re B.M., ¶ 14. Where ICWA applies, we will uphold a district court’s termination of parental rights if a reasonable fact finder could conclude beyond a reasonable doubt that continued custody of the child by the parent likely would result in serious emotional or physical damage to the child. In re I.B., 2011 MT 82, ¶ 18, 360 Mont. 132, 255 P.3d 56. DISCUSSION ¶31 Whether the Department made sufficient active efforts to reunify Mother and the Children to satisfy ICWA? ¶32 The District Court terminated Mother’s parental rights pursuant to § 41-3-609(1)(f), 9 MCA. The parties have stipulated that ICWA applies to Mother’s termination proceedings. See 25 U.S.C. § 1903(4) (2006). ICWA requires the Department to make active efforts toward reunification. 25 U.S.C. § 1912; In re I.B., ¶ 25. ¶33 Mother points to the lack of visitations with the Children as evidence of lack of active efforts by the Department for reunification. Mother contends that the Department should have provided more in-home services and worked more actively with Mother to attain reunification after Mother had re-engaged with the Department in June 2012. Mother also argues the Department’s documents contain insufficient use of the term “active efforts.” ¶34 Mother fails to acknowledge the impact that her incarceration and her own actions had on the availability of visitations with the Children. These proceedings extended from April 23, 2010, through the termination hearing on August 29, 2012. Mother was incarcerated, or otherwise under supervision and monitoring, throughout these 28 months with the exception of the two separate occasions when she absconded from her parole. Consequentially, we must consider Mother’s incarceration, her supervised status, and her absences while on the lam when we evaluate whether the Department undertook active efforts to reunify Mother with the Children. See A.A. v. Dept. of Fam. and Youth Servs., 982 P.2d 256, 261 (Alaska 1999). ¶35 Mother’s detours through the various levels of incarceration and supervision placed significant roadblocks in the Department’s ability to reunite Mother and the Children. The Department filed a petition for emergency protective services for the Children in April 2010. Mother had left the Children with their aunt and uncle almost two years earlier. Mother had 10 absconded from her parole. Department personnel finally found Mother in June 2010 at the Cascade County Detention Center. Authorities soon transferred Mother to Passages in Billings. Authorities transferred Mother from Passages to Pre-Release in Butte in September or October 2010. Mother received parenting classes at both Passages and Pre-Release. ¶36 The Department scheduled visitations between Mother and D.A when they lived in the same city. In fact, the Department moved D.A. to a foster family in Butte while Mother was at the Butte Pre-Release Center and later ARC. Swartz helped Mother receive services in Butte and monitored D.A. in foster care in Butte. ¶37 Swartz met with Mother to devise a plan to return D.A. to Mother’s care. Swartz visited Mother’s ARC program home. Swartz learned of Mother’s live-in boyfriend during one of these visits. Mother failed to return the boyfriend’s background check release. Mother knew that the Department policy would prevent home visits between Mother and D.A. until the Department had received the release. Swartz tried unsuccessfully to set up a meeting with the boyfriend. ¶38 Swartz tried to help Mother address her transportation problems. Mother needed a valid driver’s license so that she could get D.A. to school, daycare, and therapy. Mother missed some of her visits with D.A. due, in part, to Mother’s lack of a valid driver’s license. Swartz helped Mother gather the proper paperwork to obtain a license. Swartz also helped Mother with daycare referrals so that Mother’s reunification with D.A. would not require Mother to stop working. Mother never obtained the driver’s license or followed up on the daycare referrals. 11 ¶39 Swartz discussed with Mother the opportunity for Mother and the Children to be reunited through the “Michel’s House” program in Billings. Michel’s House would have offered Mother added support with parenting and attaining sobriety. Mother was “adamant” in her opposition to attending Michel’s House. ¶40 Swartz also supervised visits between Mother and D.A both at Swartz’s office and at Mother’s home. Swartz testified that Mother was “unsure how to interact with [D.A.]” and “had to be prompted on a lot of things.” Swartz also discussed with Mother the Intermountain program. Intermountain could have provided in home therapy sessions to Mother and D.A. Intermountain requires parent child reunification in order to enroll. Mother never achieved reunification. ¶41 D.A.’s return to Great Falls halted visits between Mother and D.A in Butte. Swartz testified that D.A. had exhibited behavior problems at her foster home in Butte. Specifically, Swartz testified that D.A. had started to exhibit sexual behaviors, was hitting other children, almost killed a kitten, and was yelling and screaming. These actions led D.A.’s Butte foster parents to fear that D.A.’s behavioral problems put at risk an infant who was in their home. No other foster homes were available in Butte. ¶42 Mother’s treatment plan required random urinalysis testing. Swartz tried to help Mother set up random urinalysis testing when Mother was placed in the ARC program. Mother never complied. ¶43 The Department attempted to arrange a meeting with Mother after Mother returned to supervised status in June 2012. The Department wanted to assess Mother’s plans for 12 complying with her treatment plan. Department personnel called to verify Mother would attend. Mother’s phone line had been disconnected. Mother failed to show up for the meeting. ¶44 The record establishes beyond a reasonable doubt that the Department undertook active efforts to reunite Mother and the Children as required under ICWA. The Department attempted to work around Mother’s incarceration, her supervision, and her chemical dependency problems. The Department’s active efforts matched the Department’s words in its desire to facilitate reunification. ¶45 Whether the Department provided sufficient evidence that reunification of Children with Mother would cause serious physical or emotional damage to the Children? ¶46 ICWA requires the “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) (emphasis added); see also § 41-3- 609(5), MCA. Nothing in 25 U.S.C. § 1912(f) requires a court to make this determination solely from the testimony of the ICWA expert. In Montana, at minimum, evidence in the record of serious physical or emotional damage must include an ICWA expert’s opinion that serious emotional or physical damage to the child would result if the child is left in the parent’s custody. In re K.B. and T.B., 2013 MT 133, ¶ 30, 370 Mont. 254, 301 P.3d 836. The court may review the evidence to supplement the expert’s conclusion regarding likely emotional or physical damage. See 25 U.S.C. § 1912(f). ¶47 Fisher qualifies as an ICWA expert. Fisher met with Mother. Fisher spoke with Scott 13 about the case. Fisher testified that she had “all the information necessary” to evaluate whether reunification posed a risk to the Children. Fisher opined that continued custody by Mother likely would result in serious emotional and physical damage to the Children. Fisher testified that it is not “within the norms of [an] Indian family for a mother to work this long and not get it together and be able to then parent her children.” ¶48 Fisher noted that Mother has not had her children for a single weekend since the Department became involved with the Children’s custody matter. No social worker hasbeen able to observe Mother actually parenting the Children except in a highly supervised setting. This lack of observation prevented the Department from achieving one of the goals stated in Mother’s treatment plan—to provide the Department the opportunity to assess the strengths, needs, and concerns of the family. ¶49 The parties submitted this case before our recent decision in K.B. and T.B. ¶¶ 29-30. The ICWA expert there testified only that the children would be “at risk” if placed in Mother’s custody and asserted that termination would be “in the best interest of the children.” K.B. and T.B., ¶ 29. The Department failed to ask the ICWA expert “whether Mother’s continued custody would likely result in serious emotional or physical damage.” K.B. and T.B., ¶ 29. We determined that the ICWA expert’s testimony failed to comply with the requirements of ICWA, when read in conjunction with Montana’s Parent-Child Relationship Termination Act of 1981. K.B. and T.B., ¶¶ 26-30. ¶50 Here the ICWA expert expressly affirmed that “continued custody by [Mother] would likely result in serious emotional or physical damage to the children.” The ICWA expert 14 further provided the basis for her opinion in that Mother’s inability to shake her addiction leaves her unprepared to care for the Children. Mother failed to provide safe and secure housing for the Children. Mother proved to be an unreliable caregiver for the Children as she absconded from her parole on several occasions. Fisher’s testimony satisfied the minimum requirements for an ICWA expert’s testimony in a termination proceeding in Montana. K.B. and T.B., ¶ 30. ¶51 Ample other evidence in the record further supported the District Court’s determination that the Children’s continued custody by Mother likely would result in serious emotional or physical damage to the Children. Mother’s drug use and her inability to beat her drug addictions despite multiple treatment programs constituted the primary source of concern. Evidence in the record shows a pattern of Mother relapsing when stressful situations emerge. Most recently, in 2012, Mother absconded from her probation, restarted drinking and drug use, and associated with a known felon after she learned that the Department intended to file a petition to terminate Mother’s parental rights. Treatment programs repeatedly have proven to be ineffective to prevent Mother from relapsing into alcohol and drug abuse. ¶52 Mother began her conditional release on November 21, 2011. Jory testified that Mother violated both the terms of her parole and her probation by drinking less than a month later. Mother absconded from her conditional release on March 17, 2012. Mother contacted Jory while on the lam. Mother admitted to the use of drugs and alcohol. Mother admitted to Jory that she was with a known felon. Mother promised to return. Mother failed to return. 15 ¶53 Mother has demonstrated an inability to maintain compliance with her treatment program as her level of supervision decreases. Mother transitioned from the Passages program, to Butte’s Pre-Release program, to the ARC program. Mother’s level of supervision decreased at each new stage. Mother’s progress towards reunification with D.A. and M.A. decreased as her level of supervision decreased. The evidence in the record supports the District Court’s determination that Mother’s custody of the Children would pose a likelihood of physical and emotional harm to the Children. ¶54 Whether the District Court properly determined that Mother had stipulated to the treatment plan? ¶55 Mother argues that the “circumstances surrounding the adoption of [her] treatment plan undermine a determination that the plan was appropriate.” The District Court issued an order that stated that Mother had stipulated to a treatment plan three months before any treatment plan had been presented to Mother. The District Court’s order further determined the treatment plan to be reasonable and appropriate without having seen the completed treatment plan. ¶56 Mother argues that § 41-3-443(2)(e), MCA, requires Mother’s signature in order for the treatment plan to be valid. Mother misapprehends the language of the statue. Section 41-3-443(2)(e), MCA, requires that a treatment plan contains a signature of the parent “unless the [treatment] plan is ordered by the court” (emphasis added). See also In re R.F., 2001 MT 199, ¶ 31, 306 Mont. 270, 32 P.3d 1257. The District Court ordered Mother’s 16 treatment plan. ¶57 Under these circumstances, we look to the treatment plan itself to determine whether the treatment plan is reasonable and appropriate. Mother makes no argument that the treatment plan contains unreasonable or inappropriate provisions. Mother made no objection in the District Court to any specific term of the treatment plan. Mother agreed at the show cause hearing on July 13, 2010, that she had 10 days after the Department filed the plan with the District Court to raise any objections. Mother stipulated at the show cause hearing that she would abide by the treatment plan unless she raised an objection to the plan. Mother made no objections to the treatment plan at any time before the Department filed its notice to terminate Mother’s parental rights. The District Court correctly determined that Mother had stipulated to the terms of the treatment plan. ¶58 Whether all stipulations in ICWA involuntary termination proceedings must be reduced to writing? ¶59 Mother urges this Court to reconsider its decision in In re J.M., 2009 MT 332, 353 Mont. 64, 218 P.3d 1213. ICWA’s § 1913(a) requires that a parent’s “voluntary consent” to terminate parental rights be reduced to writing in voluntary ICWA termination proceedings. See 25 U.S.C. § 1913(a). We determined In re J.M. that the writing requirement in § 1913(a) has no applicability to non-voluntary termination proceedings. In re J.M., ¶ 19. We decline Mother’s request to reconsider our holding in In re J.M.. ICWA’s 25 U.S.C. § 1913(a) applies only to a “voluntary consent” to terminate. See 25 U.S.C. § 1913(a); In re J.M., ¶ 19; In re Welfare of M.G., 201 P.3d 354 (Wash. App. 2009). 17 ¶60 Affirmed. /S/ BRIAN MORRIS We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ JIM RICE /S/ PATRICIA COTTER | July 16, 2013 |
1681bcbc-204f-4bec-8b66-751b1791df66 | Beals v. Beals | 2013 MT 120 | DA 13-0209 | Montana | Montana Supreme Court | 1 IN THE SUPREME COURT OF THE STATE OF MONTANA DA 13-0209 2013 MT 120 _________________ KATHERINE LOSEY BEALS, Petitioner and Appellee, v. JASON ERNEST BEALS, Respondent and Appellant. OPINION AND ORDER _________________ ¶1 Appellant Jason Ernest Beals appeals from the Findings of Fact, Conclusions of Law, and Final Decree of Dissolution entered by Standing Master Magdalena C. Bowen of the Eighteenth Judicial District Court, Gallatin County. Appellee Katherine Losey Beals has filed a motion to dismiss Jason’s appeal, with a supporting brief. Jason has responded to Katherine’s motion, and Katherine was granted leave to file a reply. We determine that Katherine’s motion is well-taken. ¶2 The following issue is presented for review: Whether a party may appeal directly to this Court from the decision of a standing master. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Katherine and Jason were married in Gallatin County in 2004. They remained married for approximately five years until separating in October 2009. During the period of their marriage, Katherine and Jason had three children and accumulated both real and personal property. May 2 2013 2 ¶4 Katherine filed a petition for dissolution in the District Court on September 27, 2010. Following protracted discovery and motion proceedings, the matter came before Standing Master Bowen for a contested two-day hearing on June 21 and 22, 2012. Katherine was represented by counsel, and Jason represented himself. On February 22, 2013, Standing Master Bowen issued her Findings of Fact, Conclusions of Law, and Final Decree of Dissolution, which incorporated by reference a Final Parenting Plan. Katherine filed a Notice of Entry of Judgment on March 4, 2013. ¶5 After the final decree was entered, Jason retained counsel, who filed a notice of appearance on March 21, 2013. Jason, through counsel, filed a notice of appeal in this Court on March 22 and in the District Court on March 25. Jason did not file any objections in the District Court to the Standing Master’s findings and conclusions within the ten-day period prescribed by § 3-5-126(2), MCA.1 DISCUSSION ¶6 On July 1, 2010, the judges of the Eighteenth Judicial District Court issued a standing order pursuant to § 3-5-124(1), MCA, to refer domestic relations cases to a standing master. The standing master position was created to provide assistance to the District Court judges in managing the large volume of filings in the area of family law. As stated in the Second Amended Standing Order of Reference, dated April 1, 2013, the 1 The District Court record contains a document, filed by Katherine on March 25, captioned “Petitioner’s Response to Respondent’s Motion for Extension of Time to Submit Specific Objections.” The document refers to a “Motion For Extension of Time To Submit Specific Objections to the Findings of Fact, Conclusions of Law And Decree,” which Jason evidently prepared and served on Katherine, but did not file with the court. The District Court directed that Katherine’s response be filed in the record. She argues in it that Jason had not shown grounds for avoiding the ten-day deadline. 3 guidelines and procedures for the powers of the standing master are governed by §§ 3-5-124 through -126, MCA. The standing order further provides: 4. Pursuant to § 3-5-126(1), MCA, and Rule 52(a), M.R.Civ.P., the Standing Master shall file and serve written findings of fact, conclusions of law, and a dispositive order for all contested proceedings tried upon the facts. The Standing Master shall file and serve a dispositive written decision and order for all contested proceedings not tried upon the facts. In a contested proceeding the provisions of § 3-5-126(2), MCA, for serving written specific objections shall apply. 5. In uncontested proceedings, this Court presumes that the parties are appearing before the Standing Master upon agreement for resolution of the issues presented to the Standing Master and for which there would be no objections to the findings of fact and conclusions of law and/or order or decree filed by the Standing Master. Accordingly, in an uncontested proceeding the Standing Master’s findings of fact and conclusions of law and/or order or decree shall be deemed to be the final order of the Court. Consequently, the objection procedure specified in § 3-5-126, MCA, shall not apply to any uncontested proceeding. Second Amend. Standing Or. of Ref., In the Matter of Referring Cases to the Standing Master 3-4 (Mont. 18th Jud. Dist. Apr. 1, 2013) (underlining/emphases in original). ¶7 The standing order is consistent with statutory provisions concerning the appointment, procedure, and powers of a standing master. Section 3-5-126, MCA, particularly provides: (2) Within 10 days after being served with notice of the filing of the findings and conclusions or order, any party may serve written specific objections upon the other parties or may apply to the court for an extension to serve. Application to the court for action upon the findings and conclusions or order and upon the filing of specific objections to the findings and conclusions or order must be by motion and upon notice as prescribed in Rule 6(d) of the Montana Rules of Civil Procedure. The court, after a hearing, may adopt the findings and conclusions or order and may modify, reject in whole or in part, receive further evidence, or recommit the findings and conclusions or order with instructions. (3) The effect of a standing master’s report is the same whether or not the parties have consented to the reference, but when the parties 4 stipulate that a standing master’s findings of fact are final, only questions of law arising upon the findings and conclusions may be considered. ¶8 Katherine maintains that there can be no direct appeal from a standing master’s ruling where the appellant has failed to make specific objections to those findings in the district court. Katherine cites In re Marriage of McMichael, 2006 MT 237, 333 Mont. 517, 143 P.3d 439, as support for her position. Jason, on the other hand, argues that, under § 3-5-113(1)(c), MCA, an appeal may be taken directly to this Court from the decree of a standing master because the standing master’s decree has the same force and effect as if made or rendered by the district court. ¶9 Beginning first with Jason’s argument, his reference to § 3-5-113(1)(c), MCA, is incorrect, as that statutory provision relates specifically to special masters and not standing masters such as in this case. A special master may preside over a civil action if his or her designation is “agreed upon in writing by the parties litigant or their attorneys of record” and he or she is appointed by the court as provided in § 3-5-115 or 3-20-102, MCA,2 and “sworn to try the cause before entering upon the duties in trying the cause.” Section 3-5-113(1)(a), MCA. A special master “has the authority and power of an elected district court judge in the particular civil action,” § 3-5-113(1)(b), MCA, and “[a]ny order, judgment, or decree made or rendered in a civil case by the . . . special master has the same force and effect as if made or rendered by the district court with the regular judge presiding,” § 3-5-113(1)(c), MCA. Thus, § 3-5-113, MCA, addresses the 2 Section 3-5-115, MCA, relates to the appointment of a judge pro tempore and waiver of the right to trial by jury. It is, therefore, inapplicable to these proceedings. Section 3-20-102, MCA, concerns the appointment of an asbestos claims judge and is similarly inapplicable here. 5 circumstance in which the parties have agreed to effectively replace the district court judge with a special master and thereby render an appeal directly to this Court the only procedure by which to obtain review. ¶10 The appointment of a standing master, however, is controlled by different statutory provisions (namely, §§ 3-5-124 through -126, MCA) and, in this instance, by the standing order entered by the judges of the Eighteenth Judicial District Court. The method for obtaining review of a decision made by a standing master is for the party to file with the district court written specific objections within ten days after being served with notice of the filing of the standing master’s findings and conclusions or order. Section 3-5-126(2), MCA. Thereafter, the district court may—following a hearing— adopt, reject (in whole or in part), or modify the findings and conclusions or order. Section 3-5-126(2), MCA. The district court may also conduct additional proceedings on the objections and receive further evidence. Section 3-5-126(2), MCA. The language of § 3-5-126(2), MCA, and the standing order is clear as to the procedures which must be employed in order to obtain review. Following review by a district court of the specific objections, an aggrieved party may then file an appeal in this Court. ¶11 We have previously considered a party’s failure to object to a standing master’s findings and conclusions. In McMichael, ¶¶ 15-16, we determined that a district court could not modify a standing master’s findings and conclusions unless a specific objection had first been made by one of the parties. While Jason argues that his objections can be made directly to this Court, McMichael demonstrates that we have required specific 6 objections to be made to the standing master’s findings and conclusions in the district court, before any modifications may be made. ¶12 As we stated in McMichael, “[a] reading of § 3-5-126(2), MCA, in its entirety demonstrates that a district court may modify a finding of fact or conclusion of law only to which a party has filed a ‘specific objection.’ The legislature twice referenced the requirement that parties file ‘specific objections’ to the findings or conclusions of a standing master.” McMichael, ¶ 15. Thus, § 3-5-126(2), MCA, and the District Court’s standing order require that Jason, as a prerequisite for perfecting his appeal to this Court, first file specific objections in the District Court to the Standing Master’s Findings of Fact, Conclusions of Law, and Final Decree of Dissolution. In accordance with the statutory provisions, the District Court would be required to set a hearing, consider the specific objections raised, and accept, modify, or reject the Standing Master’s findings and conclusions or conduct further proceedings regarding the objections. ¶13 These procedures were not followed in this case. Jason did not file objections to the Standing Master’s findings and conclusions within the allotted ten-day period. It appears that he initially considered a request for an extension of time for submitting his objections, see ¶ 5 n. 1, supra, but then commenced an appeal with this Court instead. Appealing directly to this Court was incorrect for the reasons set forth above. Furthermore, the District Court record does not reflect that an “[a]pplication to the court for action upon the findings and conclusions or order [of the Standing Master]” was ever requested. Section 3-5-126(2), MCA. Until such time as the District Court enters a final decision in accordance with § 3-5-126(2), MCA, an appeal to this Court is not ripe. 7 ¶14 Accordingly, based on the foregoing, ¶15 IT IS ORDERED that this appeal is DISMISSED WITHOUT PREJUDICE. Dated this 2nd day of May, 2013. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ JIM RICE | May 2, 2013 |
cefdfcb4-6bfa-4ae8-b045-4cae6ca74f21 | In re Marriage of Steab | 2013 MT 124 | DA 12-0416 | Montana | Montana Supreme Court | DA 12-0416 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 124 IN RE THE MARRIAGE OF: JOHN R. STEAB, Petitioner and Appellee, and LAUNA J. LUNA, Respondent and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDR-2002-82 Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD: For Appellant: Launa J. Luna (Self-Represented), Kaysville, Utah For Appellee: Robert T. Cameron, Gough, Shanahan, Johnson & Waterman, PLLP, Helena, Montana Submitted on Briefs: February 6, 2013 Decided: May 7, 2013 Filed: __________________________________________ Clerk May 7 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Launa Luna and John Steab were married in 1987. During the marriage, the couple had three children, two of whom have reached the age of majority. Steab and Luna divorced in October 2002 when their children were fifteen and twelve years of age and twenty-two months old. The children resided at different times with either their mother or father; therefore both Luna and Steab were at times obligated to the other for child support. Since their divorce, Steab and Luna have been repeatedly engaged in some form of litigation against one another and have been before this Court on a previous appeal. See Steab v. Luna, 2010 MT 125, 356 Mont. 372, 233 P.3d 351 (Steab I). The most recent proceeding, and the one from which this appeal arises, pertains to child support arrearages on the part of both parties and the interest to be imposed on those arrearages. The First Judicial District Court’s order resolved the raised issues in favor of Steab. Luna, representing herself, appeals. We affirm in part and reverse and remand in part. FACTUAL AND PROCEDURAL BACKGROUND ¶2 The factual background for this case is set forth in Steab I and will not be repeated here. This appeal challenges the legal conclusions set forth in the District Court’s June 4, 2012 Order Regarding Child Support Arrearage (June 4, 2012 Order). By the time this order was issued, the two older children had reached the age of majority. Also, both parents had had legal primary custody of their youngest daughter at different times and had failed to timely pay their child support obligations to the other. This resulted in an arrearage on the part of both parents, raising an issue of the balances due and the interest 3 owed on those balances. Additionally, Steab did not complete payment of his ordered portion of marital debt, and obtained an order of relief in U.S. Bankruptcy Court. ¶3 The District Court’s June 4, 2012 Order determined that Steab’s child support arrearage was to be offset against Luna’s larger child support arrearage. The court held, without factual findings, that after such offset Luna owed Steab $2,263.24 plus 12% interest per annum until paid. The court further ordered that Steab was not required to pay interest on his arrearages to Luna retroactive to October 2008, and that the marital debt owed by Steab had been discharged in Bankruptcy Court in 2011 and was no longer a debt owed by him to Luna. ¶4 It is from the June 4, 2012 Order that Luna appeals. ISSUE ¶5 Luna raises numerous issues on appeal. A restatement of those issues is: ¶6 Did the District Court commit reversible error when it did not issue findings of fact and conclusions of law with its June 4, 2012 Order Regarding Child Support Arrearage? ¶7 Did the District Court err in awarding Steab 12% retroactive interest on Luna’s arrearage? ¶8 Was Steab’s February 2012 Motion for Order Directing Child Support Enforcement Division to Offset Arrearage and Request for Attorney’s Fees timely filed with the District Court? 4 ¶9 Did the District Court abuse its discretion by taking judicial notice of a U.S. Bankruptcy Court determination that Steab’s marital debt was discharged by the Bankruptcy Court in 2011? STANDARD OF REVIEW ¶10 Determining the method to be used to calculate interest is an issue of law that this Court reviews to determine whether the district court’s application or interpretation of the law is correct. Weiss v. Weiss, 2011 MT 240, ¶ 8, 362 Mont. 157, 261 P.3d 1034. ¶11 We review a district court’s decision to take judicial notice of facts and law for an abuse of discretion. United States v. Chapel, 41 F.3d 1338, 1342 (9th Cir. 1994), cert. denied, 514 U.S. 1135, 115 S. Ct. 2017 (1995). DISCUSSION ¶12 This case has a long and complex procedural history. It is unnecessary to recite all of this history in order to resolve the discrete issues presented. The last three orders of the court are at issue here. In brief, they are: October 19, 2011 Order This Order amended and corrected the October 2, 2008 Order and Judgment to reflect that as of December 31, 2007, Steab owed $20,648 in child support arrears and $13,598.26 in marital debt rather than $34,246.26 in child support arrears. March 27, 2012 Order Regarding Child Support This order addressed the District Court’s August 18, 2011 Findings of Fact, Conclusions of Law and Order and the court’s October 19, 2011 Order and stated: 1. Steab’s motion requesting an order that the Child Support Enforcement Division (CSED) cease garnishing Steab’s wages was timely filed; 2. CSED was ordered to offset Steab’s March 27, 2012 $5,744.28 arrearage against Luna’s March 27, 2012 $7,378 arrearage; 5 3. CSED was to stop garnishing Steab’s wages; 4. Steab’s child support obligation was fulfilled; and 5. the parties were ordered to submit simultaneous interest calculations by May 15, 2012. June 4, 2012 Order Regarding Child Support Arrearage Based upon the parties’ submitted interest calculations, this order: 1. struck the amount of Luna’s arrearage referenced in the March 27, 2012 order; 2. entered a child support arrearage judgment in favor of Steab and against Luna for $2,263.24, which included a 12% interest on arrears and imposed a 12% annual interest rate until Luna’s arrearage was paid in full; 3. denied Luna’s request for interest retroactive to October 2008; and 4. took judicial notice that Steab’s marital debt had been discharged in Bankruptcy Court in 2011. ¶13 Did the District Court err when it did not issue findings of fact and conclusions of law with its June 4, 2012 Order Regarding Child Support Arrearage? ¶14 Luna notes that in the District Court’s March 27, 2012 Order Regarding Child Support, the court requested that both parties submit an interest calculation regarding child support arrearages to the court for its consideration. She claims that Steab included unsolicited information in his submission, in an attempt to “re-litigate the [March 27] 2012 Order Regarding Child Support.” She argues she had no opportunity to respond to Steab’s submission. She further claims that the District Court considered this unsolicited information and adopted it, without findings of fact “as to the evidentiary basis,” in the June 4, 2012 Order. Relying upon In re Marriage of Barron, 177 Mont. 161, 580 P.2d 936 (1978), In re Estate of Craddock, 173 Mont. 8, 566 P.2d 45 (1977), and Jones v. Jones, 190 Mont. 221, 620 P.2d 850 (1980), and arguing the importance of adequate findings, Luna asserts this is reversible error. 6 ¶15 While we acknowledge that this Court has underscored the critical importance of adequate findings of fact in the cases cited by Luna, we conclude these cases are distinguishable and inapposite. In Barron, we required findings of fact in order to establish the foundation for the court’s judgment. Barron, 177 Mont. at 164, 580 P.2d at 938. In Craddock, we remanded for findings of fact because the court had not explained the basis for admitting a contested will to probate. Craddock, 173 Mont. at 11-12, 566 P.2d at 46. In Jones, the appeal was from certain visitation arrangements contained in the parties’ settlement agreement and divorce decree. Thus, these cases concerned determinations made by the district court following trial. Here, by contrast, Steab had submitted interest calculations as directed by the court, and alerted the court in his submission that there was an error contained in the court’s previous order pertaining to Steab’s arrearage amount. Because it is apparent that the court simply adopted Steab’s analysis as set forth in his motion, it was unnecessary for the court to enter formal findings and conclusions. A district court is not required to state findings and conclusions when ruling on a motion. M. R. Civ. P. 52(a)(3). We therefore reject Luna’s challenge in this regard. ¶16 Did the District Court err in awarding Steab 12% interest on Luna’s arrearage? ¶17 In Luna’s submission of interest calculations, she calculated interest owed by Steab at the statutory rate of 10% per annum retroactive to October 2, 2008. Steab, on the other hand, proposed that interest be calculated beginning on November 1, 2011, 7 shortly after the District Court amended and corrected the October 2008 Order and Judgment.1 Additionally, he recommended a per annum rate of 12%. ¶18 When Steab submitted his interest calculations, he provided the District Court with two calculations—one based upon his arrearages as set forth in the March 27, 2012 Order Regarding Child Support and one using a corrected arrearage balance based upon CSED’s release of additional payments to Luna. The District Court adopted Steab’s calculation using the arrearage balances set forth in the March 27, 2012 order. ¶19 In his calculations, Steab applied a 12% annual interest rate on both parties’ arrearages from November 2011 forward. After performing his interest calculations, Steab determined that he owed $281.01 in interest and Luna owed $516.46 in interest. Adding these interest amounts to each arrearage balance, Steab concluded he owed Luna a total of $5,631.22 and Luna owed him $7,894.46. Performing the offset, he subtracted his arrearage from Luna’s, and derived a total due to him from Luna of $2,263.24. The District Court adopted this amount and ordered Luna to pay 12% annual interest on this balance until it was paid in full. ¶20 Citing § 25-9-205, MCA, Luna argues that Steab “cannot collect 12% interest retroactively” on her alleged arrearage. Section 25-9-205, MCA, provides that interest on a judgment, with certain exceptions, is at a rate of 10% per year and may not be compounded. In In re Marriage of Winters, 2004 MT 82, ¶ 49, 320 Mont. 459, 87 P.3d 1 On October 19, 2011, the court amended its October 2008 Order and Judgment by stating that Steab’s child support arrearage through December 2007 was not $34,246.26 as stated in the October 2008 Order and Judgment but rather his unpaid child support was $20,648 and his unpaid marital debt was $13,598.26. 8 1005, we held that the district court erred when it waived the interest on the husband’s child support arrearage. We noted that if a marital dissolution decree was silent as to interest, interest is automatically collectible by the judgment creditor spouse on past due support or maintenance payments. See also Williams v. Budke, 186 Mont. 71, 79, 606 P.2d 515, 519 (1980). As there was no interest provision in the dissolution decree nor was there a stipulated agreement between the parties to a higher interest rate, the District Court erred in adopting Steab’s calculations that included a 12% interest rate on both parties’ arrearages and in imposing 12% interest on Luna until her arrearage is paid in full. We therefore reverse the District Court’s ruling as to interest on the arrearages and remand for a recalculation of interest at the statutory rate of 10%. We also conclude, for the reasons discussed below, that the District Court erred in calculating interest beginning in November 2011. ¶21 Did the District Court err when it imposed interest on the parties’ arrearages beginning November 2011? ¶22 It is undisputed that Steab was delinquent in his child support payments beginning shortly after entry of the October 2002 dissolution decree. It is also well-established that delinquent child support payments become a judgment debt similar to any other money judgment and upon which statutory interest may be imposed. See In re Marriage of Brown, 263 Mont. 184, 867 P.2d 381 (1994) and In re Marriage of Hooper (Crittendon), 247 Mont. 322, 806 P.2d 541 (1991). However, in the case before us, the record does not provide accurate or complete records upon which to calculate interest on Steab’s 9 arrearages dating back to 2003 or 2004. The record does allow such a calculation beginning October 2, 2008. ¶23 While the October 2, 2008 Order and Judgment incorrectly combined Steab’s delinquent child support with his delinquent marital debt, it was well documented at that time that Steab owed Luna $20,648 in back child support. Therefore, based upon our case law, Luna’s request for interest beginning in October 2008, and the availability of an accurate arrearage balance upon which to calculate interest, we conclude the District Court should have imposed a 10% annual rate of interest on Steab’s arrearage beginning in October 2008. ¶24 Luna’s interest calculation on Steab’s arrearages submitted to the District Court on May 15, 2012, appears to be correct. Notably, Luna arrives at the same conclusion as CSED that Steab’s child support obligation was fulfilled and paid in full in January 2012, based upon payments and offsets. ¶25 We acknowledge this resolution does not provide Luna with interest payments retroactive to Steab’s earliest delinquency in 2003 and it does not address Steab’s claim that his delinquent child support was overstated based upon Luna’s alleged salary and asset misrepresentation to the District Court. However, it nonetheless represents the fairest resolution the District Court could have reached given the state of the record before us. ¶26 For the foregoing reasons, we reverse and remand this matter to the District Court with instructions to recalculate the interest on Steab’s arrearages back to October 2008 and on Luna’s arrearage back to July 2010 using the statutory interest rate of 10% per 10 annum, perform the offset calculation based upon the revised balances, determine Luna’s new arrearage balance if any, and impose a 10% interest rate on the balance until it is paid in full. ¶27 Was Steab’s Motion for Order Directing Child Support Enforcement Division to Offset Arrearage and Request for Attorney’s Fees timely filed with the District Court? ¶28 Luna argues that Steab’s February 14, 2012 motion requesting an order instructing CSED to offset his arrearage with Luna’s and to cease garnishing his wages should have been summarily denied because Steab failed to file a timely notice of entry of judgment after he prevailed in the previous motion proceeding. Luna provides no authority for her contention that failure to file a notice of entry of judgment under M. R. Civ. P. 77(d) precludes Steab from filing a subsequent M. R. Civ. P. 60 motion for the correction of an order within the time provided in Rule 60. The sole authority cited by Luna is Kenney v. Koch, 227 Mont. 155, 737 P.2d 491 (1987). Kenney, however, stands for the rule that if both parties prevail in an action, both parties have an obligation to comply with Rule 77(d) and if neither party complies, neither can argue that the other’s appeal is untimely because no notice of entry of judgment was served. There is nothing in Kenney to support a conclusion that one must file a notice of entry of judgment in order to preserve the right to later file a Rule 60 motion. We therefore reject this argument. ¶29 Did the District Court abuse its discretion by taking judicial notice of an order of the U.S. Bankruptcy Court that Steab’s marital debt was discharged by the Bankruptcy Court in 2011? ¶30 Finally, Luna claims that the marital debt owed to her by Steab “could not be released via bankruptcy.” Essentially, Luna is asking the District Court and this Court to 11 overturn, or simply ignore, a federal bankruptcy court ruling. We are not authorized to do so. ¶31 M. R. Evid. 201(d) authorizes the District Court to take judicial notice of facts when “requested by a party and supplied with the necessary information.” Moreover, M. R. Evid. 202(b)(6) allows a court to take judicial notice of law, including, “[r]ecords of any court of this state or of any court of record of the United States or any court of record of any state of the United States.” See Farmers Plant Aid, Inc. v. Fedder, 2000 MT 87, ¶ 27, 299 Mont. 206, 999 P.2d 315. Steab requested that the court take notice of the bankruptcy action and supplied the District Court with the necessary information. Luna’s claim of error is against the U.S. Bankruptcy Court, not the District Court. The District Court did not abuse its discretion by taking judicial notice of the U.S. Bankruptcy Court order. CONCLUSION ¶32 Based upon the foregoing, we reverse and remand the District Court’s June 4, 2012 Order Regarding Child Support Arrearage awarding Steab 12% retroactive interest and remand with instructions that the court calculate 10% per annum interest, per statute, on Steab’s arrearage back to 2008 and on Luna’s arrearage back to 2010. We affirm the District Court’s rulings as to the remaining issues on appeal. /S/ PATRICIA COTTER 12 We Concur: /S/ BRIAN MORRIS /S/ JIM RICE /S/ LAURIE McKINNON /S/ BETH BAKER | May 7, 2013 |
ecc3ac9e-3808-483f-9907-833010239fbc | Ensey v. Mini Mart, Inc. | 2013 MT 94 | DA 12-0339 | Montana | Montana Supreme Court | DA 12-0339 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 94 EZZIE ENSEY, Plaintiff and Appellant, v. MINI MART, INC., and JOHN DOES I-III, Defendants and Appellees. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDV 11-446 Honorable Kenneth R. Neill, Presiding Judge COUNSEL OF RECORD: For Appellant: Benjamin R. Graybill, Graybill Law Firm, P.C.; Great Falls, Montana For Appellee: Joshua B. Kirkpatrick, Littler Mendelson, P.C.; Denver, Colorado Submitted on Briefs: December 12, 2012 Decided: April 9, 2013 Filed: __________________________________________ Clerk April 10 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Ezzie Ensey (Ezzie) appeals the District Court’s order granting defendants Mini Mart, Inc. and John Does I-III’s (Mini Mart) motion to dismiss her amended complaint and finding § 39-2-915, MCA, constitutional. We affirm the court’s decision to grant Mini Mart’s motion to dismiss, but we set aside the court’s determination of the constitutionality of § 39- 2-915, MCA. Because we find that the court lost its authority to consider Ezzie’s amended complaint once she agreed to arbitration, the court also lost its authority to consider her constitutional challenge. ISSUES ¶2 We restate the issues on appeal as follows: ¶3 1. Did the District Court err by dismissing Ezzie’s amended complaint for lack of jurisdiction? ¶4 2. Did the District Court err in finding that § 39-2-915, MCA, does not violate Ezzie’s rights to a trial by jury, equal protection of the law, and due process? FACTUAL AND PROCEDURAL BACKGROUND ¶5 Ezzie worked at a Mini Mart store in Great Falls, Montana, for seventeen years. She eventually rose to the level of assistant manager. At some point, Mini Mart introduced a policy stating that it would immediately fire an “associate” if they failed to ask for a customer loyalty card on two occasions. Mini Mart sent secret shoppers to its stores to test this policy and Ezzie failed to ask one of these shoppers for a loyalty card. Ezzie was consequently fired. 3 ¶6 Ezzie brought a wrongful discharge claim against Mini Mart, Inc. and John Does I-III on May 18, 2011 under Montana’s Wrongful Discharge From Employment Act, § 39-2-901, et seq., MCA (WDEA). Her complaint demanded a jury trial. Mini Mart offered to arbitrate the dispute pursuant to § 39-2-914, MCA, on August 8, 2011. Ezzie accepted the offer to arbitrate on August 29, 2011. The letter of acceptance claimed that Ezzie felt compelled to accept the arbitration offer because § 39-1-915, MCA, would force her to pay Mini Mart’s attorney fees if she declined the offer and later lost at trial.1 Notwithstanding her acceptance of the offer to arbitrate, Ezzie also moved to amend her complaint to add destruction of evidence and declaratory judgment claims on August 29, 2011. Ezzie’s declaratory judgment claim alleged that § 39-2-915, MCA, was unconstitutional because it violated her rights to a jury trial, equal protection, and due process. Ezzie essentially argued that because she did not have the financial wherewithal to pay Mini Mart’s attorney fees, she could not risk an adverse judgment at trial and therefore could not exercise her right to a jury trial. ¶7 The District Court granted Ezzie’s motion to amend her complaint on August 31, 2011, two days after she accepted Mini Mart’s offer to arbitrate the dispute. Ezzie filed her amended complaint on September 2, 2011. Mini Mart moved to dismiss Ezzie’s amended complaint for lack of subject matter jurisdiction due to her acceptance of the arbitration offer. Ezzie opposed the motion, filed a motion for partial summary judgment on her declaratory 1 Section 39-2-914, MCA, allows a party to make a written offer to arbitrate a dispute that arises under the WDEA. Section 39-2-915, MCA, states: “A party who makes a valid offer to arbitrate that is not accepted by the other party and who prevails in an action under this part is entitled as an element of costs to reasonable attorney fees 4 judgment claim, and sought a motion to stay the arbitration. The District Court granted the motion to dismiss and vacated its earlier decision allowing amendment of her complaint. The court’s order concluded that it had lost jurisdiction over Ezzie’s claim once she accepted the offer to arbitrate. Without jurisdiction over the WDEA claim, the court reasoned that it could not grant Ezzie leave to amend her complaint. However, the court’s order went on to consider Ezzie’s challenge to § 39-2-915, MCA, noting the “dilemma” Ezzie faced regarding the appropriate time to raise her constitutional challenge. The court ruled that the statute was constitutional despite its simultaneous recognition that it did not have jurisdiction to consider the allegations contained in Ezzie’s amended complaint. Ezzie appeals both the dismissal of her amended complaint and the determination that § 39-2-915, MCA, is constitutional. We affirm the dismissal of Ezzie’s amended complaint and set aside the court’s determination of her constitutional claim. STANDARD OF REVIEW ¶8 Whether a court has subject matter jurisdiction is a question of law which we review for correctness. Gazette v. State, 2008 MT 287, ¶ 6, 345 Mont. 385, 190 P.3d 1126. A district court’s interpretation of a statute is reviewed de novo. State v. Hicks, 2013 MT 50, ¶ 14, 369 Mont. 165 (citing State v. Cooksey, 2012 MT 226, ¶ 32, 366 Mont. 346, 286 P.3d 1174; State v. Daniels, 2011 MT 278, ¶ 11, 362 Mont. 426, 265 P.3d 623). Our review of constitutional questions is plenary. Alexander v. Bozeman Motors, Inc., 2010 MT 135, ¶ 16, 356 Mont. 439, 234 P.3d 880. incurred subsequent to the date of the offer.” 5 DISCUSSION ¶9 Mini Mart initially contends that the District Court’s order is not appealable under the Montana Rules of Appellate Procedure. Mini Mart claims that M. R. App. P. 6(3)’s “exhaustive” list of appealable orders in civil cases does not allow for an appeal from an order granting a motion to dismiss or denying a motion for partial summary judgment. Ezzie counters that our decision in Prentice Lumber Company, Inc.v. Hukill, 161 Mont. 8, 504 P.2d 277 (1972), allows for her appeal of the District Court’s order and claims that denying her appeal would foreclose her ability to seek review of the court’s order dismissing her claims. ¶10 Ezzie’s appeal does not fall within the list of civil appeals allowed under Rule 6(3). However, her appeal does not fall within Rule 6(5)’s list of orders and judgments that are not appealable, either. Rule 6(5)(b) declares that “Orders denying motions for summary judgment or motions to dismiss, or granting partial summary judgment” are not appealable, but Ezzie appeals an order granting a motion to dismiss and denying partial summary judgment. Moreover, as Ezzie points out, we have previously found that this court “has recently rendered decisions on the merits in appeals from orders dismissing complaints.” Prentice Lumber Company, Inc., 161 Mont. at 12. This is because we determined that the effect of a court’s order denying leave to amend the complaint and dismissing the cause of action was “substantially the same as a judgment for defendants.” Prentice Lumber Company, Inc., 161 Mont. at 12. We therefore held that “an order dismissing a complaint and denying leave to amend is equivalent to a final judgment for purposes of appeal.” 6 Prentice Lumber Company, Inc., 161 Mont. at 13. The District Court’s order in the present case vacated its prior order granting Ezzie leave to amend her complaint and dismissed her claims for destruction of the evidence and declaratory judgment. Because the court’s order denied Ezzie relief on her additional claims just as if judgment had been entered against her, we find that the District Court’s order is appealable. See also Burchett v. MasTec N. Am., Inc., 2004 MT 177, 322 Mont. 93, 93 P.3d 1247 (reviewing a district court’s grant of a motion to dismiss a claim under the WDEA for lack of subject matter jurisdiction); Tobacco River Lumber Co. v. Yoppe, 176 Mont. 267, 269-70, 577 P.2d 855 (1978). ¶11 1. Did the District Court err by dismissing Ezzie’s amended complaint for lack of subject matter jurisdiction? ¶12 Section 39-2-914(5), MCA, the arbitration provision of the WDEA, declares that: [i]f a valid offer to arbitrate is made and accepted, arbitration is the exclusive remedy for the wrongful discharge dispute and there is no right to bring or continue a lawsuit under this part. The arbitrator’s award is final and binding, subject to review of the arbitrator’s decision under the provisions of the Uniform Arbitration Act. The District Court determined that, pursuant to § 39-2-914(5), MCA, and our decisions in Dahl and Burkhart, it did not have subject matter jurisdiction to either amend Ezzie’s complaint or hear her additional claims once she accepted Mini Mart’s offer to arbitrate. ¶13 On appeal, Ezzie argues that the District Court did not lose jurisdiction over her claims for destruction of evidence or declaratory judgment when she accepted Mini Mart’s offer to arbitrate her WDEA claim. Ezzie specifically argues that the language of § 39-2- 914(5), MCA, is limited to wrongful discharge disputes, and that her claims for destruction 7 of the evidence and declaratory judgment are not subject to the statute because they are not, and are not based on, wrongful discharge claims. Ezzie relies on our decisions in Beasley v. Semitool, Inc., 258 Mont. 258, 853 P.2d 84 (1993); Dahl v. Fred Myer Inc., 1999 MT 285, 297 Mont. 28, 993 P.2d 6; and Burkhart v. Semitool, Inc., 2000 MT 201, 300 Mont. 480, 5 P.3d 1031, for support. ¶14 Mini Mart counters that the District Court correctly granted its motion to dismiss Ezzie’s amended complaint for lack of subject matter jurisdiction because the WDEA removed the court’s power to continue to hear the case once Ezzie accepted the offer to arbitrate. In essence, Mini Mart claims that the court couldn’t even entertain Ezzie’s later, additional claims because her wrongful discharge claim came under the operation of § 39-2- 914(5), MCA, when she accepted arbitration. See Burkhart, ¶ 21 (“The plain language of § 39-2-914(5), MCA, clearly provides that once an offer to arbitrate has been accepted, neither the district court nor the parties have a right to continue the lawsuit.”). Thus, Mini Mart’s argument does not hinge on whether Ezzie’s claims are so intertwined with her wrongful discharge claim as to fall within the ambit of § 39-2-914(5), MCA. Rather, Mini Mart argues that because Ezzie’s agreement to arbitrate preceded the amendment of her complaint, the court lost its authority to hear her claim from that point forward, except pursuant to its authority under the Uniform Arbitration Act, Title 27, chapter 5 of the Montana Code. See Section 39-2-914(5), MCA. ¶15 Initially, Ezzie’s citation to Beasley is misplaced. In Beasley, we considered whether a district court erred by concluding that the WDEA barred a plaintiff’s claims for breach of 8 contract and breach of the covenant of good faith and fair dealing. The district court concluded that the WDEA barred the additional contract and good faith claims based on its reading of § 39-2-913, MCA, which provides that “[e]xcept as provided in this part, no claim for discharge may arise from tort or express or implied contract.” While we reversed the district court’s decision, finding that the language of § 39-2-913, MCA, did not “bar all tort or contract claims merely because they arise in the employment context,” neither this holding nor the facts of the case are relevant to the current appeal. Beasley, 258 Mont. at 261-262. We did not consider the WDEA’s arbitration provision, the district court’s decision did not turn upon it, and a court’s continuing jurisdiction over WDEA claims submitted to arbitration was not at issue. ¶16 However, we did consider the effect of § 39-2-914, MCA, in Burkhart and Dahl. In Dahl, the plaintiff filed a WDEA claim alleging he was discharged without good cause and contrary to the defendant’s written personnel policy. Dahl, ¶ 3. Prior to the arbitration hearing, the defendant moved to dismiss the arbitration, claiming that the complaint actually stated a claim under federal law. The arbitrator agreed and dismissed the arbitration. Dahl, ¶ 4. The plaintiff then asked the district court for leave to amend his complaint to remove the portions raising a federal claim. The court did not rule on the motion to amend and instead issued an order confirming the arbitrator’s decision. Dahl, ¶ 13. The plaintiff alleged that this was error on appeal, and argued that the court should have granted his motion to amend his complaint and start over with a state law claim. Dahl, ¶ 14. We held that “[t]he District Court lost jurisdiction when the parties agreed to arbitration, and 9 therefore, did not have authority to allow Appellant to amend his complaint,” citing § 39-2- 914, MCA. Dahl, ¶ 15. ¶17 In Burkhart, the Plaintiff in a wrongful discharge case agreed to submit just the WDEA claims to arbitration pursuant to § 39-2-914, MCA. The defendant then filed a motion to dismiss all of the plaintiff’s claims, WDEA and non-WDEA, or compel arbitration on all of the claims. The court dismissed all of the plaintiff’s claims. Burkhart, ¶ 11. On appeal, the plaintiff argued that the district court erred because it no longer retained jurisdiction over the WDEA claims submitted to arbitration. We found § 39-2-914(5), MCA, to be controlling, and concluded that “the plain language” of the section “clearly provides that once an offer to arbitrate has been accepted, neither the district court nor the parties have a right to continue the lawsuit.” Burkhart, ¶ 21. ¶18 At the time Ezzie agreed to arbitrate, her complaint consisted only of a WDEA-based claim for wrongful discharge. Arbitration became the exclusive remedy for this WDEA claim once Ezzie agreed to arbitrate. Section 39-2-914(5), MCA. As Burkhart instructs, once an offer to arbitrate has been accepted, “neither the district court nor the parties have a right to continue the lawsuit.” Burkhart, ¶ 21. Thus, regardless of what the proposed amendments to the complaint sought to accomplish, the court was without authority to continue its consideration of the case. The court regains its authority over the case following arbitration, and may review the arbitrator’s decision under the Uniform Arbitration Act. Section 39-2-914(5), MCA. We accordingly affirm the District Court’s dismissal of Ezzie’s 10 additional destruction of evidence and declaratory judgment claims prior to arbitration of the WDEA claim. ¶19 2. Did the District Court err in finding that § 39-2-915, MCA, does not violate Ezzie’s rights to a trial by jury, equal protection of the law, and due process? ¶20 While we sympathize with the court’s effort to address Ezzie’s constitutional dilemma, we conclude, as we did above, that once Ezzie agreed to arbitrate, the District Court lost its authority to act further, and, thus, it could not, and should not have, considered Ezzie’s constitutional claim. Ezzie’s WDEA claim had been submitted to arbitration by operation of § 39-2-914(5), MCA, prior to the amendment of her claim, and the court could neither amend Ezzie’s complaint nor consider the claims Ezzie sought to add. Burkhart, ¶ 21. We consequently set aside the court’s determination of the merits of Ezzie’s constitutional claim. CONCLUSION ¶21 Because we find that the court lost its ability to consider Ezzie’s claim once she agreed to arbitration, we affirm the court’s dismissal of her amended complaint without prejudice and set aside its determination of the merits of her constitutional claim. /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ BETH BAKER 11 /S/ PATRICIA COTTER /S/ BRIAN MORRIS | April 10, 2013 |
827eb557-60ff-42b5-83f7-ab9fa2ade3a9 | Stewart v. Liberty Northwest Ins. Corp. | 2013 MT 107 | DA 12-0273 | Montana | Montana Supreme Court | DA 12-0273 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 107 SHARON STEWART, Petitioner, Appellee, and Cross-Appellant, v. LIBERTY NORTHWEST INSURANCE CORPORATION, Respondent/Insurer and Appellant. APPEAL FROM: Montana Workers’ Compensation Court, WCC No. 2008-2066 Honorable James Jeremiah Shea, Presiding Judge COUNSEL OF RECORD: For Appellant: Kelly M. Wills, Kathleen L. DeSoto, Garlington, Lohn & Robinson, PLLP, Missoula, Montana For Appellee and Cross-Appellant: Michael J. San Souci, Attorney at Law, Bozeman, Montana Submitted on Briefs: February 20, 2013 Decided: April 23, 2013 Filed: __________________________________________ Clerk April 23 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Liberty Northwest Insurance Corporation (Liberty) appeals an order of the Workers’ Compensation Court (WCC) determining that Sharon Stewart is entitled to continued payment for her pain medication. Stewart cross-appeals the WCC’s determination that she is not entitled to attorneys’ fees or the statutory penalty. ¶2 We have consolidated the appeal and cross-appeal issues into the following three issues: ¶3 1. Whether the WCC erred when it determined that Stewart was entitled to continued payment for the pain patches prescribed by her treating physician. ¶4 2. Whether the WCC erred when it determined that Stewart was not entitled to reimbursement for her attorneys’ fees. ¶5 3. Whether the WCC erred when it failed to impose the statutory penalty on Liberty, pursuant to § 39-71-2907, MCA.1 Factual and Procedural Background ¶6 On August 26, 2002, Stewart suffered an injury in the course and scope of her employment with Gallatin Laundry Company, Inc. (Gallatin). Liberty, which insured Gallatin, accepted liability for Stewart’s injury and paid wage loss and medical benefits with an 18% whole person impairment rating. 1 The statutes in effect on the date of Stewart’s work-related injury govern Stewart’s claim. Ford v. Sentry Cas. Co., 2012 MT 156, ¶ 32, 365 Mont. 405, 282 P.3d 687 (citing Fleming v. International Paper Co., 2008 MT 327, ¶ 26, 346 Mont. 141, 194 P.3d 77). Consequently, unless otherwise indicated, the statutes referenced in this decision refer to the 2001 version of the Montana Code Annotated. 3 ¶7 Stewart’s initial treating physician, Dr. John Campbell, diagnosed her injury as a “probable medial meniscal tear” of the right knee. Stewart underwent two arthroscopic surgeries over the next few months, but she continued to have issues with pain and range of motion in her knee. ¶8 In 2003, Dr. Lowell Anderson examined Stewart. He noted that she continued to have right knee pain with an “unknown etiology.” Dr. Anderson listed several possible causes for her pain including a “possible saphenous nerve neuroma.” Dr. Anderson assigned Stewart a 35% impairment rating based on his opinion that Stewart’s physical findings “most closely resemble the diagnostic findings in reflex sympathetic dystrophy.” Based on Dr. Anderson’s diagnosis, Stewart filed a petition with the WCC for an increased impairment rating. ¶9 An evidentiary hearing on Stewart’s petition was held on August 9, 2006. Despite his earlier statements, Dr. Anderson testified in his deposition in preparation for the hearing, that he did not know how Stewart’s saphenous nerve could have been injured during her surgeries, and that, while there was a good chance that Stewart suffered from a pain complex, he could not point to any medical evidence supporting the conclusion that there was a relationship between Stewart’s surgeries and her pain symptoms. ¶10 The WCC, in a decision entered September 14, 2007, determined that Stewart failed to carry her burden of proving causation, thus the court denied her request for an increased impairment rating. Stewart did not appeal the WCC’s decision. ¶11 On March 12, 2008, Stewart was informed by her pharmacist that Liberty would no longer approve or cover the expense of the pain patches that she had been using for 4 the past several years. This determination was initiated without any advance notice or warning to Stewart or her counsel. ¶12 On March 26, 2008, Stewart filed her Petition for Emergency or Expedited Declaratory Relief to Reinstate Medical Benefits. In her petition, Stewart sought reinstatement of medical benefits for the Lidoderm pain patches for her knee as well as for attorneys’ fees and penalties for Liberty’s failure to provide benefits to cover the patches.2 In support of her request for reinstatement of these benefits, Stewart had her medical records reviewed by Dr. Clifford Wheeless, an orthopedic surgeon licensed in North Carolina. Dr. Wheeless opined that more probably than not, either Stewart’s original knee injury or her resulting surgery were “absolutely” the cause of the chronic pain condition from which Stewart now suffers. ¶13 After the WCC denied Liberty’s Motion for Judgment on the Pleadings or Alternatively Rule 12(b)(6) Motion to Dismiss as well as Liberty’s Motion for Summary Judgment, the parties submitted the case to the WCC on a stipulated record. The WCC issued its Findings of Fact, Conclusions of Law and Judgment on April 11, 2012, wherein the court determined that Stewart had met her burden of showing that her knee pain and her need for medication for that pain, was causally related to her industrial injury and subsequent knee surgery, and that she was entitled to payment for her pain medication. The WCC also determined that Stewart was not entitled to her attorneys’ fees or to the statutory 20% penalty pursuant to § 39-71-2907, MCA. 2 After Stewart filed her petition, Liberty reinstated coverage for Stewart’s pain medication under a reservation of rights. 5 ¶14 In addition, the WCC noted in its judgment that in Stewart’s original proceeding, although Dr. Anderson believed there was a causal connection between the knee surgery and the pain, he could not provide a definite opinion as to how that connection existed. In contrast, Dr. Wheeless testified in the current proceeding that in his medical opinion either Stewart’s original knee injury or her resulting surgery were “absolutely” the cause of the chronic pain condition from which she now suffers. ¶15 Liberty appeals the WCC’s determination that Stewart is entitled to continued payment of benefits for the pain patches. Stewart cross-appeals the WCC’s decision denying Stewart’s request for attorneys’ fees and for payment of the statutory penalty. Standard of Review ¶16 We review the WCC’s conclusions of law to determine whether they are correct. Keller v. Liberty Northwest, Inc., 2010 MT 279, ¶ 20, 358 Mont. 448, 246 P.3d 434 (citing Schmill v. Liberty Northwest Ins. Corp., 2009 MT 430, ¶ 8, 354 Mont. 88, 223 P.3d 842; Lanes v. Mont. State Fund, 2008 MT 306, ¶ 16, 346 Mont. 10, 192 P.3d 1145). In addition, we review the WCC’s findings of fact to determine whether they are supported by substantial credible evidence. Keller, ¶ 20 (citing Schmill, ¶ 8; Lanes, ¶ 16; Van Vleet v. Mont. Ass’n of Counties Workers’ Comp. Trust, 2004 MT 367, ¶ 9, 324 Mont. 517, 103 P.3d 544). Issue 1. ¶17 Whether the WCC erred when it determined that Stewart was entitled to continued payment for the pain patches prescribed by her treating physician. 6 ¶18 Liberty maintains that Stewart’s petition in this case focused on whether her knee pain was causally connected to her industrial injury. Liberty contends that the issue of causation of Stewart’s knee pain was already litigated and decided in a prior proceeding, thus Stewart is collaterally estopped from challenging the WCC’s prior conclusion on causation. Conversely, Stewart argues that Liberty’s collateral estoppel defense fails because, contrary to Liberty’s contentions, the identical issue was not litigated in the prior proceeding. ¶19 The doctrine of collateral estoppel, “which embodies the concept of ‘issue preclusion,’ ” bars a party from re-litigating an issue where that issue has been litigated and determined in a prior suit. Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 65, 345 Mont. 12, 192 P.3d 186 (citing Baltrusch v. Baltrusch, 2006 MT 51, ¶ 15, 331 Mont. 281, 130 P.3d 1267; State v. Ditton, 2006 MT 235, ¶ 40, 333 Mont. 483, 144 P.3d 783). Collateral estoppel “favors a definite end to litigation” and prevents parties “from incessantly waging piecemeal, collateral attacks against judgments.” Baltrusch, ¶ 15 (citing Kullick v. Skyline Homeowners Ass’n, Inc., 2003 MT 137, ¶ 17, 316 Mont. 146, 69 P.3d 225; Olympic Coast Inv., Inc. v. Wright, 2005 MT 4, ¶ 26, 325 Mont. 307, 105 P.3d 743). Moreover, collateral estoppel “deter[s] plaintiffs from splitting a single cause of action into more than one lawsuit, thereby conserving judicial resources and encouraging reliance on adjudication by preventing inconsistent judgments.” Baltrusch, ¶ 15 (citing Smith v. Schweigert, 241 Mont. 54, 59, 785 P.2d 195, 198 (1990); Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 415 (1980)). 7 ¶20 We apply the following four-part test to determine whether collateral estoppel bars relitigation of an issue: (1) the identical issue raised was previously decided in a prior adjudication; (2) a final judgment on the merits was issued in the prior adjudication; (3) the party against whom collateral estoppel is now asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom preclusion is asserted must have been afforded a full and fair opportunity to litigate any issues which may be barred. Baltrusch, ¶ 18. ¶21 We have held that the most crucial element of collateral estoppel is the identity of issues. Watkins Trust v. Lacosta, 2004 MT 144, ¶ 28, 321 Mont. 432, 92 P.3d 620 (citing Fadness v. Cody, 287 Mont. 89, 96-97, 951 P.2d 584, 588-89 (1997)). In order to satisfy this element, the identical issue or “precise question” must have been litigated in the prior action. Watkins Trust, ¶ 28 (citing Fadness, 287 Mont. at 96-97, 951 P.2d at 588-89). The mere fact that each action arises from the same transaction does not necessarily mean that they each involve the same issues. Watkins Trust, ¶ 28 (citing Fadness, 287 Mont. at 96-97, 951 P.2d at 588-89). ¶22 To determine whether the issues decided in the prior adjudication are identical to those presented in the present case, “we compare the pleadings, evidence and circumstances surrounding the two actions.” Baltrusch, ¶ 25 (quoting Holtman v. 4-G’s Plumbing & Heating, Inc., 264 Mont. 432, 439, 872 P.2d 318, 322 (1994)). ¶23 In Lund v. State Compensation Mut. Ins. Fund, 263 Mont. 346, 868 P.2d 611 (1994), we held that because the question of petitioner’s entitlement to indemnity benefits in the current proceeding was based on different statutory criteria than his entitlement to 8 permanent partial disability benefits decided in a prior proceeding, the doctrine of collateral estoppel did not apply. In Lund, both actions arose from Lund’s July 8, 1986 workplace injury. The parties engaged in litigation in 1990 ending with a determination by the WCC that the petitioner was entitled to receive 500 weeks of permanent partial disability benefits pursuant to § 39-71-703, MCA (1985), at a weekly rate of $13.34. In September 1992, the petitioner withdrew his election to proceed under § 39-71-703, MCA (1985), and filed a petition to seek indemnity benefits under §§ 39-71-705 through -708, MCA (1985), at a rate of $149.50 per week. Lund, 263 Mont. at 347-49, 868 P.2d at 612-13. We determined in Lund that because the benefits sought in each action were based on two different statutes, the issues in each action were not identical, thus collateral estoppel did not apply. Lund, 263 Mont. at 351, 868 P.2d at 614. ¶24 In the case sub judice, the fact that the 2007 action and the current action both involved questions regarding causation does not mean the issues were identical. The issue in the prior proceeding specifically dealt with Stewart’s potential entitlement to an increased impairment rating given the overall deterioration in her condition, including increased pain symptoms. Unlike the prior proceeding, the issue in the current proceeding involves whether Stewart is still suffering from acute pain as a result of her initial work-related injury and whether Liberty continues to be liable for Stewart’s pain medication. ¶25 In addition, contrary to Liberty’s contention that the statutory criteria for Stewart’s original claim and Stewart’s current claim are the same, we conclude that each of Stewart’s claims was brought under a different statutory basis. Stewart’s original claim 9 was based on § 39-71-711, MCA, regarding impairment ratings, while Stewart’s current claim is based on § 39-71-704, MCA, regarding the payment of medical benefits, specifically the pain patches. ¶26 Based on the foregoing, we conclude that the question of Stewart’s entitlement to payment for her pain patches is a different question than her entitlement to an increased impairment rating, thus the doctrine of collateral estoppel does not apply. Accordingly, we hold that the WCC did not err when it determined that Stewart was entitled to continued payment for the pain patches prescribed by her treating physician. Issue 2. ¶27 Whether the WCC erred when it determined that Stewart was not entitled to reimbursement for her attorneys’ fees. ¶28 In its April 11, 2012 Findings of Fact, Conclusions of Law and Judgment, the WCC determined that “Liberty had a legitimate defense to liability for Stewart’s pain medication, based upon the earlier holding of this Court, but continued to pay the disputed medical benefits under a reservation of rights pending a resolution of the dispute.” Because the WCC determined that Liberty’s actions in this case were reasonable, the court determined that Stewart was not entitled to reimbursement for her attorneys’ fees. ¶29 Stewart argues by way of cross-appeal that the WCC erred, and that she is entitled to an award of her attorneys’ fees because Liberty’s “sudden, unexpected and unilateral” cancellation of Stewart’s ongoing pain prescription was “inherently unreasonable” within the meaning of § 39-71-611, MCA. Liberty contends on the other hand that Stewart is 10 not entitled to an award of attorneys’ fees because Liberty reasonably relied on the WCC’s prior determination that Stewart’s chronic knee pain was not causally connected to her industrial injury. ¶30 Section 39-71-611, MCA, provides in pertinent part: Costs and attorneys’ fees payable on denial of claim or termination of benefits later found compensable. (1) The insurer shall pay reasonable costs and attorney fees as established by the workers’ compensation court if: (a) the insurer denies liability for a claim for compensation or terminates compensation benefits; (b) the claim is later adjudged compensable by the workers’ compensation court; and (c) in the case of attorneys’ fees, the workers’ compensation court determines that the insurer’s actions in denying liability or terminating benefits were unreasonable. (2) A finding of unreasonableness against an insurer made under this section does not constitute a finding that the insurer acted in bad faith or violated the unfair trade practices provisions of Title 33, chapter 18. [Emphasis added.] Thus, a request for attorneys’ fees requires the WCC to find that the insurer acted unreasonably. ¶31 “Reasonableness is a question of fact.” Marcott v. Louisiana Pacific Corp., 275 Mont. 197, 202, 911 P.2d 1129, 1133 (1996) (citing Stordalen v. Ricci’s Food Farm, 261 Mont. 256, 258, 862 P.2d 393, 394 (1993)). As we indicated earlier in this Opinion, we review the WCC’s findings of fact to determine whether they are supported by substantial credible evidence. Keller v. Liberty Northwest, Inc., 2010 MT 279, ¶ 20, 358 Mont. 448, 246 P.3d 434. Substantial credible evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Keller, ¶ 20. “Indicating the high level of deference this Court accords to the WCC’s factual findings, we have stated that evidence 11 will be considered substantial even if it is contradicted by other evidence, even if it is somewhat less than a preponderance, and even if it is inherently weak.” Gamble v. Sears, 2007 MT 131, ¶ 20, 337 Mont. 354, 160 P.3d 537 (citing EBI/Orion Group v. State Compensation Mut. Ins. Fund, 249 Mont. 449, 453, 816 P.2d 1070, 1073 (1991); Simms v. State Compensation Ins. Fund, 2005 MT 175, ¶ 11, 327 Mont. 511, 116 P.3d 773; Wolfe v. Webb, 251 Mont. 217, 230, 824 P.2d 240, 248 (1992)). ¶32 Stewart argues that this case is analogous to this Court’s decision in Narum v. Liberty Northwest Ins. Corp., 2009 MT 127, 350 Mont. 252, 206 P.3d 964, wherein we upheld both the statutory penalty and the attorneys’ fees awards granted by the WCC. We disagree, however, and conclude that Narum is distinguishable from the instant case. ¶33 Narum worked in the beer and wine industry for 37 years. The last 17 of those years he spent driving a small semi-truck delivering beer. His job duties included heavy lifting and loading. In March 2003, Narum stepped out of his truck and either slipped and fell to the pavement or missed the last step and fell to the pavement, landing on his left side. At the time, Narum experienced only a slight pain in his left hip. When the pain did not subside within a few weeks, Narum filed a worker’s compensation claim. Narum, ¶ 2. Narum underwent numerous medical examinations and treatments with several doctors. Those medical examinations indicated that Narum would eventually need a hip replacement. Narum, ¶ 10. ¶34 Liberty was also the insurer in Narum. Liberty accepted liability for Narum’s claim and paid benefits through December 2003. At that time, Liberty informed Narum that it would no longer pay benefits, so Narum hired an attorney to negotiate a settlement 12 with Liberty. The parties reached a settlement agreement in February 2004 wherein Liberty agreed to pay Narum $25,000, and to allow Narum to reserve his medical benefits. Narum, ¶¶ 10-11. ¶35 In January 2006, Liberty sent a letter to one of Narum’s doctors asking questions about the cause of Narum’s hip condition. Based on the doctor’s response to the letter, Liberty refused to make further payments of medical benefits related to the treatment for Narum’s left hip. Narum, ¶ 13. Narum was receiving cortisone shots for his hip pain. Narum later testified that Liberty did not inform him that it would no longer pay for the cortisone shots. Instead, Narum received word of Liberty’s refusal to pay from his medical provider. In addition, Narum underwent hip replacement surgery in September 2007, but Liberty refused to pay for the surgery and related treatment. Narum, ¶ 14. ¶36 Narum filed a claim before the WCC. After reviewing all of Narum’s medical records, the WCC found that Liberty was liable for medical and hospital benefits related to treatment of Narum’s hip. And, because the WCC determined that Liberty acted unreasonably in denying payment for Narum’s medical benefits, the court awarded Narum a 20% penalty and his attorneys’ fees and costs. Narum, ¶ 15. The WCC based part of its determination that Liberty’s actions were unreasonable on the fact that Liberty denied payment for Narum’s hip replacement surgery even though hip replacement surgery was specifically identified as a possibility in the settlement agreement between the parties. The WCC also determined that Liberty had provided no persuasive explanation as to how it justified stopping payment for Narum’s ongoing treatment. 13 Narum, ¶ 34. This Court agreed with the WCC and affirmed the WCC’s decision to award attorneys’ fees and the statutory penalty. Narum, ¶¶ 35, 38-39. ¶37 The instant case is distinguishable from Narum because here Liberty did not breach a settlement agreement and, although it did stop payment for the pain patches without notice to Stewart, it did so in reliance on the previous factual and legal findings of the WCC. Liberty’s case manager, Sandy Scholl, testified that she only terminated payment for the pain patches after she reviewed the WCC’s 2007 Findings of Fact, Conclusions of Law and Judgment wherein the WCC denied Stewart’s request for an increased impairment rating because it did not see any causal relationship between the pain issues and Stewart’s injury. In addition, after a short break in the payments, Liberty resumed paying for the pain patches under a reservation of rights. ¶38 We conclude here that reliance on a prior order from the WCC creates a reasonable basis for denying liability, thus Liberty’s actions were not unreasonable. Accordingly, we hold that the WCC did not err when it determined that Stewart was not entitled to reimbursement for her attorneys’ fees. Issue 3. ¶39 Whether the WCC erred when it failed to impose the statutory penalty on Liberty, pursuant to § 39-71-2907, MCA. ¶40 The WCC determined that Liberty had “a legitimate defense to liability” for Stewart’s pain medication based upon the earlier holding of the WCC, thus Liberty’s actions were reasonable and “the application of a penalty under these facts is inappropriate.” 14 ¶41 Stewart argues in her cross-appeal that this was error on the WCC’s part because Liberty’s failure to provide a reasonable explanation for how it could justify the sudden and unilateral cessation of payment for her pain prescriptions warrants the imposition of the 20% penalty provided for in § 39-71-2907, MCA. Conversely, Liberty argues that Stewart is not entitled to an award of the statutory penalty because Liberty reasonably relied on the WCC’s prior determination that Stewart’s chronic knee pain was not causally connected to her industrial injury. ¶42 Under § 39-71-2907, MCA, the WCC may increase by 20% the full amount of benefits due to a claimant during the period of delay or refusal to pay if the insurer’s delay or failure to pay is deemed to be unreasonable. However, the penalty set forth in § 39-71-2907, MCA, was not intended to eliminate an insurer’s assertion of a legitimate defense to liability. Marcott, 275 Mont. at 202, 911 P.2d at 1132 (citing Paulson v. Bozeman Deaconess Foundation Hosp., 207 Mont. 440, 444, 673 P.2d 1281, 1283 (1984)). ¶43 As we stated in the previous issue, reliance on a prior order from the WCC creates a reasonable basis for denying liability, thus Liberty’s actions were not unreasonable. Accordingly, we hold that the WCC did not err when it failed to impose the statutory penalty on Liberty pursuant to § 39-71-2907, MCA. ¶44 Affirmed. /S/ LAURIE McKINNON 15 We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ JIM RICE /S/ BRIAN MORRIS | April 23, 2013 |
fdad23c3-aec9-4a92-86f0-691b5a8ca024 | State v. McDonald | 2013 MT 97 | DA 11-0779 | Montana | Montana Supreme Court | DA 11-0779 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 97 STATE OF MONTANA, Plaintiff and Appellee, v. RAMAH IRENE MCDONALD, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 10-474 Honorable Edward P. McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender; Jacob Q. Johnson, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman, Assistant Attorney General; Helena, Montana Fred R. Van Valkenburg, Missoula County Attorney; M. Shaun Donovan, Deputy County Attorney; Missoula, Montana Submitted on Briefs: January 31, 2013 Decided: April 10, 2013 Filed: __________________________________________ Clerk April 10 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Ramah Irene McDonald (McDonald) appeals the judgment entered by the Fourth Judicial District Court, Missoula County, following a trial by jury that found her guilty of Assault on a Peace Officer, a felony. ¶2 McDonald raises the following issue: ¶3 Did the prosecutor’s comments during closing argument constitute plain error? PROCEDURAL AND FACTUAL BACKGROUND ¶4 McDonald was an inmate at the Missoula County Detention Center and became involved in a heated exchange with Detention Officer Paige Pavalone (Pavalone) over McDonald’s disagreement with an instruction that she remove paper from the window of her cell that obstructed the view into the cell. Hearing the loud conversation, Detention Officers Eric Lechleitner (Lechleitner) and Michael Gauci (Gauci) stepped into the area. The matter escalated when McDonald refused to comply with the instructions of the officers to immediately report to the maximum security unit. A physical altercation ensued, wherein McDonald bit Pavalone on the arm. McDonald was charged with one count of felony assault on a police officer in violation of § 45-5-210, MCA.1 The first trial resulted in a mistrial when the jury was unable to reach a verdict. ¶5 The case was retried to a jury on September 26-27, 2011. Pavalone testified she had been bitten by McDonald, and Lechleitner and Gauci testified that Pavalone had 1 At the time of the altercation, McDonald had been detained pending resolution of a petition to revoke a previous sentence for felony assault. While the case sub judice was proceeding, McDonald’s sentence in the prior case was revoked and her new sentence was affirmed by this Court in State v. McDonald, 2011 MT 259N, 363 Mont. 413. 3 yelled that she was being bitten during the altercation. Detention Officer Corey Hawkins testified that he observed a red mark with what appeared to be saliva on Pavalone’s arm after the altercation. McDonald testified she had not bitten Pavalone, and Katie Garding, another inmate, testified that she did not see McDonald bite Pavalone. The prosecutor’s closing arguments included the following statements: Did Paige Pavalone get bit? She said, she got bit . . . During the time of this incident, both Officer Gauci and Officer Lechleitner heard Paige say—stop biting me, or whatever. . . . And as you’re looking at the credibility of these witnesses . . . think about these officers. . . . It would have been a very easy thing—for instance, Officer Hawkins to say—oh, sure, I heard her say something similar—but, they didn’t do that. They were making a real effort to be as clear with you, as they possibly could. It’s only about what they remember. But, even, with that, you have Paige Pavalone and two other officers saying that in the middle of this, she said—stop biting my arm. Why in the world—why in the world would she say that, unless that was happening to her? . . . Look at their appearance, their manner, their fairness, their candor, their intelligence. What is their interest in the outcome of the case? I’m not telling you that none of the officers care about how this case comes out. . . . But, their interest in this is way, way, way less than the Defendant’s interest in this. She’s going on trial—she’s the one who would be convicted. We don’t really have anything here in terms of character and truthfulness. We have some conflicts with our statements. This instruction says the evidence from one witness, you believe, is sufficient. This case could have been the State calling one witness—Paige Pavalone. . . . If you believe her, that could be the end of the case. That’s all the testimony the State would have been obligated to provide. If you believe that one witness—now, obviously, we want to provide as much we can, so we provided the other witnesses. But, she’s a completely believable witness. Ask yourselves, as you deliberate this—what’s not to believe about her testimony? It’s supported by everything. . . . ¶6 During his rebuttal, the prosecutor stated: 4 [W]hat I’d like to do is go through some of the comments that [defense counsel] Mr. Daly made. I don’t agree with his characterization that this is an overreaction, that there was too much force used—I should say, I don’t personally—my personal—has nothing to do with this. It’s not even proper for you to consider, but I don’t believe the evidence shows that there was an overreaction here by officer Pavalone. I don’t believe their evidence shows there was excessive force used. I don’t believe that the evidence shows Ms. McDonald was injured, significantly. I don’t believe that the evidence shows that this was a fight picked by Paige Pavalone. . . . Officer Pavalone’s testimony—Mr. Daly says she couldn’t remember much. . . . I don’t think there’s any flaw in what [Pavalone] said, that’s significant. There’s certainly, differences. What does that mean? That means these people didn’t rehearse their testimony. They’re coming in and telling you the truth. This isn’t some story, they’re telling you. They’re telling you what they, honestly, remember. (Emphasis added.) ¶7 McDonald’s counsel did not object to any of these comments. The jury returned a guilty verdict. McDonald appeals. STANDARD OF REVIEW ¶8 “We generally do not review on appeal issues that were not raised before the district court. However, we may undertake review of such an issue under the plain error doctrine in situations that implicate a defendant’s fundamental constitutional rights when failing to review the alleged error may result in 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. Hayden, 2008 MT 274, ¶ 17, 345 Mont. 252, 190 P.3d 1091 (citing State v. Daniels, 2003 MT 247, ¶ 20, 317 Mont. 331, 77 P.3d 224). The decision to invoke plain error review is a discretionary one that is to be used 5 sparingly on a case-by-case basis. Hayden, ¶ 17 (citing State v. Rosling, 2008 MT 62, ¶ 77, 342 Mont. 1, 180 P.3d 1102). DISCUSSION ¶9 Did the prosecutor’s comments during closing argument constitute plain error? ¶10 Both the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee criminal defendants the right to a fair trial by a jury. Hayden, ¶ 27. “A prosecutor’s misconduct may be grounds for reversing a conviction and granting a new trial if the conduct deprives the defendant of a fair and impartial trial.” Hayden, ¶ 27 (citing Clausell v. State, 2005 MT 33, ¶ 11, 326 Mont. 63, 106 P.3d 1175). “We consider alleged improper statements during closing argument in the context of the entire argument.” State v. Makarchuk, 2009 MT 82, ¶ 24, 349 Mont. 507, 204 P.3d 1213 (citing State v. Roubideaux, 2005 MT 324, ¶ 15, 329 Mont. 521, 125 P.3d 1114). “We will not presume prejudice from the alleged misconduct, rather the defendant must show that the argument violated his substantial rights.” Makarchuk, ¶ 24 (citing Roubideaux, ¶ 11). ¶11 McDonald argues that the prosecutor’s comments during closing arguments constitute misconduct and warrant reversal of her conviction under plain error review. She argues that the prosecutor repeatedly made direct comments about the reliability of the witnesses. Specifically, she focuses on the phrases used by the prosecutor, highlighted in the above block quotation, to describe the State’s witnesses as “telling you the truth,” that “their interest in this is way, way, way less than the Defendant’s interest in 6 this,” that Paige Pavalone was “a completely believable witness,” and that the prosecutor “did not believe” McDonald’s arguments.2 She relies primarily on our decision reversing the defendant’s conviction for prosecutorial misconduct in Hayden. ¶12 We exercised plain error review and reversed the defendant’s conviction in Hayden for multiple errors committed by the prosecutor. Hayden, ¶¶ 31-32. Without objection, the prosecutor asked the investigating officer about the credibility of the witnesses and elicited his impression about the credibility of the statements they had given at the time of the alleged crime. Hayden, ¶ 31. The prosecutor “went so far as to ask [the officer] directly whether he believed [the witness] was telling the truth when he was interviewed, eliciting a response that they were telling the truth in their initial statements.” Hayden, ¶ 31. Noting that a witness may not comment on the credibility of another witness’s testimony, we held that “[t]his line of questioning, which elicited [the officer’s] opinion on the credibility of other witnesses, is unacceptable and invades the province of the jury.” Hayden, ¶ 31 (citing State v. St. Germain, 2007 MT 28, ¶ 27, 336 Mont. 17, 153 P.3d 591). ¶13 The prosecutor in Hayden had also “impinged on the jury’s role by offering his own opinion as to witnesses’ testimony during his closing argument” when he argued that the state’s witnesses were “believable” and that the jury could rely upon the officer’s 2 As noted in the block quotation, the full text of this rebuttal comment by the prosecutor was: “I don’t believe the evidence shows that there was an overreaction here by Officer Pavalone. I don’t believe their evidence shows there was excessive force used. I don’t believe that the evidence shows Ms. McDonald was injured, significantly. I don’t believe that the evidence shows that this was a fight picked by Paige Pavalone.” 7 testimony. Hayden, ¶ 32. The prosecutor also improperly testified “by vouching for the efficacy of the search of Hayden’s residence and by stating his opinion that a scale found in the residence was used for drugs.” Hayden, ¶ 32. We reasoned that the prosecutor’s arguments had “unfairly added the probative force of his own personal, professional, and official influence to the testimony of the witnesses.” Hayden, ¶ 33. We concluded that the prosecutor’s conduct had “invaded the role of the jury, and . . . created a clear danger that the jurors adopted the prosecutor’s views instead of exercising their own independent judgment.” Hayden, ¶ 33. ¶14 We have explained that “[d]uring closing argument, a prosecutor may comment on ‘the gravity of the crime charged, the volume of evidence, credibility of witnesses, inferences to be drawn from various phases of evidence, and legal principles involved, to be presented in instructions to the jury . . . .’” State v. Green, 2009 MT 114, ¶ 33, 350 Mont. 141, 205 P.3d 798 (quoting State v. Staat, 251 Mont. 1, 10, 822 P.2d 643, 648 (1991). “While it is generally improper for the prosecution to offer personal opinions as to the credibility of the accused or the witnesses . . . ‘it is proper for a prosecutor to comment on conflicts and contradictions in testimony, as well as to comment on the evidence presented and suggest to the jury inferences which may be drawn therefrom.’” Green, ¶ 33 (quoting State v. Gladue, 1999 MT 1, ¶ 15, 293 Mont. 1, 972 P.2d 827) (emphasis added). As noted above, we review alleged improper comments “in the context of the entire argument.” Makarchuk, ¶ 24. 8 ¶15 Unlike Hayden, the thrust of the prosecutor’s comments at issue here was argument about the evidence and the instructions, rather than interjecting his personal opinion. McDonald cites the prosecutor’s repeated comment that he “did not believe” McDonald’s case, but the context demonstrates he was actually arguing he “did not believe the evidence shows” that McDonald’s assertions of Pavalone being responsible for the fight were supported. McDonald argues that the prosecutor vouched for the State’s witnesses by stating “their interest in this is way, way, way less than the Defendant’s interest,” but this was argument about the model criminal jury instruction that told the jury to determine whether a witness was “worthy of belief” by considering “whether the witnesses have an interest in the outcome of the case or any motive.” The prosecutor’s comment about Pavalone being “completely believable” was made in the context of arguing the model instruction that the testimony of one witness, if believed, was sufficient to prove any fact in the case. Additionally, unlike Hayden, the prosecutor here made no effort to personally testify about the evidence or to elicit witness testimony about the credibility of other witnesses. ¶16 Prosecutors do need to choose their words circumspectly while arguing their case to the jury. Taken in isolation, the prosecutor’s comments that Pavalone was “completely believable” and that the State’s witnesses were “telling you the truth” raise facial concerns that the prosecutor was attempting to vouch for the witnesses and interject his personal opinion. However, when viewed in context of the entire argument, the 9 comments were very brief deviations from the prosecutor’s overall approach and are a far cry from the egregious conduct of the prosecutor in Hayden. ¶17 We do not presume that alleged prosecutorial misconduct was prejudicial, and the defendant “must show that the argument violated his substantial rights.” Makarchuk, ¶ 24. Further, in order to exercise plain error review, this Court considers whether the “fundamental fairness of the proceedings” or “the integrity of the judicial process” is at stake. Hayden, ¶ 17. When an issue of prosecutorial misconduct has been properly preserved for appeal by way of a motion for mistrial or motion for new trial, the district court has discretion in its handling of the matter. This Court’s review of such preserved issues is for abuse of that discretion. See State v. Tadewaldt, 2010 MT 177, ¶ 9, 357 Mont. 208, 237 P.3d 1273 (district court ruling on motion for mistrial for prosecutorial misconduct reviewed for abuse of discretion); State v. Whitlow, 285 Mont. 430, 446, 949 P.2d 239, 249 (1997) (district court ruling on motion for new trial based upon prosecutorial misconduct reviewed for abuse of discretion). We are mindful that accepting an unpreserved issue of this nature by plain error review bypasses the exercise of discretion by the district court and our proper review thereof. See State v. Stearns, 2008 MT 356, ¶ 19, 346 Mont. 348, 195 P.3d 794 (Generally, “[a]bsent an objection, an alleged error is not appropriate for review. . . . We will not fault a trial court where that court has no opportunity to correct itself if warranted.”). In consideration of these principles, we conclude that the challenged comments made in closing argument did not 10 raise the specter of prosecutorial misconduct necessitating the exercise of plain error review to protect fundamental fairness of this proceeding. ¶18 Affirmed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BETH BAKER Justice Patricia O. Cotter dissents. ¶19 I dissent from the Court’s Opinion. ¶20 As the Court notes, the concern we voiced in Hayden was that the prosecutor “unfairly added the probative force of his own personal, professional, and official influence to the testimony of the witnesses.” Hayden, ¶ 33. We said “that it is improper for a prosecutor to offer personal opinions as to witness credibility.” Hayden, ¶ 28. We cited State v. Stringer, 271 Mont. 367, 381, 897 P.2d 1063, 1072 (1995), in which we said the “Court has been unequivocal in its admonitions to prosecutors to stop improper comments and we have made it clear that we will reverse a case where counsel invades the province of the jury.” Hayden, ¶ 28. Unfortunately, the Court now abandons this “unequivocal” high ground. 11 ¶21 I agree with the Court that it is not improper for a prosecutor to comment on conflicts and contradictions in testimony. Opinion, ¶ 14. It is also acceptable to tell the jurors they have a right to believe one witness over another. The breach occurs when the prosecutor attests personally to the veracity of a witness, and tells the jurors whom he personally believes to be telling the truth. This is what occurred in Hayden, leading a unanimous Court to conclude that plain error was established “as the record leaves unsettled the question of the fundamental fairness of the proceedings.” Hayden, ¶ 33. The same result is compelled here. ¶22 Our effort to distinguish Hayden from this case is unavailing. The prosecutor’s comments were replete with his beliefs of who was telling the truth. He told the jury that he did not believe the evidence shows that these officers overreacted, he did not believe the evidence shows there was excessive force, he did not believe the evidence shows that McDonald was injured. He told the jury: “They’re [the officers] coming in and telling you the truth.” He told the jury: “[S]he’s [Pavalone] a completely believable witness.” How is this different from Hayden, in which we faulted the prosecutor for telling the jury that the social worker and the detective are “believable” and that the jury could rely on those witnesses? It isn’t, the Court’s strained distinctions notwithstanding. As we said in Hayden, “[i]t is for the jury, not an attorney trying a case, to determine which witnesses are believable and whose testimony is reliable.” Hayden, ¶ 32. ¶23 In State v. Arlington, 265 Mont. 127, 875 P.2d 307 (1994), we were asked to exercise plain error review after the prosecutor commented on the credibility of the 12 defendant, among other alleged errors. We concluded that the prosecutor did commit error in making such comments but declined to reverse because the evidence against Arlington was “overwhelming.” Arlington, 265 Mont. at 158, 875 P.2d at 325. However, we observed that had there not been overwhelming evidence of Arlington’s guilt, “the prosecution in this case might well be looking forward to a new trial by reason of the prosecutor’s comments.” Arlington, 265 Mont. at 158, 875 P.2d at 325. ¶24 Here, the evidence against McDonald was anything but “overwhelming.” As the Court notes, in fact, the first trial of this case ended with a hung jury. Opinion, ¶ 4. At the close of this trial, the prosecutor acknowledged that a photograph of the officer’s arm “doesn’t really show much of anything.” There being no direct evidence that Pavalone had been bitten, the entire case therefore boiled down to whom the jury would believe— McDonald and her supporting witness, or Pavalone and her supporting witnesses. The prosecutor wrongly inserted himself into this critical determination by telling the jurors which witnesses were believable. It is precisely this type of close case that presents “a clear danger that the jurors adopted the prosecutor’s views instead of exercising their own independent judgment.” Hayden, ¶ 33. ¶25 We err in ignoring our well-reasoned analysis in Hayden and condoning this prosecutor’s repeated invasion of the province of the jury with his personal opinions of witness veracity. I would reverse and remand for a new trial. /S/ PATRICIA COTTER | April 10, 2013 |
d377c2c3-fd89-4061-9009-52f9e8c906d7 | Stubblefield v. Town of W. Yellowstone | 2013 MT 78 | DA 12-0207 | Montana | Montana Supreme Court | DA 12-0207 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 78 MATT STUBBLEFIELD, JOHN KNAPP, and NEIL COURTIS, Plaintiffs and Appellants, v. TOWN OF WEST YELLOWSTONE, Defendant and Appellee. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. 08-807AX Honorable John C. Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Stephen C. Pohl, Paul Grigsby, Attorneys at Law, Bozeman, Montana For Appellee: James D. McKenna, Michael Q. Davis, Jr., McKenna Law, P.C., Bozeman, Montana Submitted on Briefs: November 21, 2012 Decided: March 26, 2013 Filed: __________________________________________ Clerk March 26 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Plaintiffs Matt Stubblefield, John Knapp, and Neil Courtis (plaintiffs), police officers in West Yellowstone, Montana, appeal the District Court’s denial of their combined motions to amend the judgment and for a new trial. We affirm. ¶2 We restate the issue on appeal as follows: ¶3 1. Did the District Court err by denying the plaintiffs’ combined M. R. Civ. P. 59 motions for a new trial and to amend the judgment? FACTUAL AND PROCEDURAL BACKGROUND ¶4 Plaintiffs are employed as police officers by the defendant Town of West Yellowstone, Montana (the Town). West Yellowstone is a small community in Gallatin County and serves as the western entrance to Yellowstone National Park. West Yellowstone receives thousands, if not millions, of visitors during the summer months due to its proximity to Yellowstone. During the off-season, however, services and amenities are limited, expensive, or altogether unavailable. Despite its relative remoteness, the town is attractive for its proximity to a variety of outdoor activities. ¶5 Officer Stubblefield has been employed as police officer in West Yellowstone since 2004, while Officers Knapp and Courtis have been employed by the Town since 2007. The plaintiffs largely relocated to West Yellowstone to partake in its recreational opportunities. However, the plaintiffs contend that the Town’s on-call policy for police officers prior to 2009 was so restrictive that they could not engage in personal activities between shifts. They 3 thus claim that they should have been compensated for their time spent on call under the Fair Labor Standards Act, § 29 U.S.C. 201, et seq. (2011) (FLSA). ¶6 The following facts concerning the on-call policy are undisputed. During the relevant time frame, the Town generally employed four police officers. One police officer was on duty at all times, with one officer working the day shift (6 a.m. to 6 p.m.) and another working the night shift (6 p.m. to 6 a.m.). Work periods lasted for two weeks, and officers worked three 12-hour shifts one week and four 12-hour shifts the next, totaling 84 hours of work per 14-day period.1 From the beginning of their employment until a change in the collective bargaining agreement in March 2009, each officer was also required to be on-call for the 12 hours immediately preceding their shift. Thus, if an officer worked the Monday, Tuesday, and Wednesday day shifts, he would be on call Sunday, Monday, and Tuesday nights from 6 p.m. until the start of his shift at 6 a.m. the next morning. ¶7 This on-call requirement stemmed from the Town’s policies requiring an additional police officer to provide backup for certain more-dangerous situations like crimes in progress, most disorderly conduct calls, and partner or family member assault. Other requests for backup were made according to the responding officer’s discretion. Because the on-call requirement was intended to provide backup for potentially dangerous situations, the on-call officer was provided a cell phone and expected to be reachable at all times. This responsiveness required the plaintiffs to stay within cell service areas and keep their phone ringers loud enough to wake them if a call came while they were sleeping. The officers were 4 also apparently expected to respond immediately, be in some sort of clothing that identified them as police officers, to have their police gear, and to respond in a patrol car. If an officer was actually called out while on call, they would receive a minimum of 2.5 hours of overtime pay. The officers were not otherwise compensated for their on-call time. ¶8 The parties did dispute the nature and length of the response-time requirement. The plaintiffs claimed that unwritten policies required a five to ten minute response. Witnesses for the Town, including the Chief of Police, claimed the response time requirement was flexible, informal, and often longer. However, all parties agreed that the small size of West Yellowstone allowed for generally quick response times. ¶9 The plaintiffs brought a complaint against the Town under the FLSA on October 6, 2008 alleging that they should be compensated for all their time spent on call, and not just for call outs. Plaintiffs specifically alleged that the on-call rules were so restrictive that the on-call time was spent predominantly for the Town’s benefit and, thus, they should have been compensated. Plaintiffs claimed they were owed compensation in the form of overtime pay for their on-call hours. Plaintiffs also claimed liquidated damages pursuant to 29 U.S.C. § 216, interest, costs, and attorney fees. ¶10 A jury trial was conducted during the week of November 14-17, 2011. Both sides presented documentary and testimonial evidence concerning the details of the Town’s on-call policy and the plaintiffs’ activities during their on-call shifts. The plaintiffs generally 1 Under exception 7(k) to the Fair Labor Standards Act, § 29 U.S.C. 207(k), police officers may work more than 40 hours per week without incurring overtime. 5 claimed that the on-call requirements hindered their sleep, prevented them from running errands or doing certain chores around the house, interfered with their relationships, denied them the opportunity to hold second jobs, and prevented them from recreating outside West Yellowstone between shifts. As the Town no longer requires police officers to be on-call between shifts, the plaintiffs claimed that they can now engage in personal and family activities that would have formerly been reserved for their off-duty days. The plaintiffs repeatedly highlighted the isolated nature of West Yellowstone and the immediate response requirement for the on-call officer, claiming that these factors restricted their ability to engage in personal activities and rendered their on-call time primarily for the Town’s benefit. ¶11 The plaintiffs also argued that their on-call hours were spent primarily for the benefit of the town by contending that their availability for backup furthered important public safety interests. The plaintiffs claimed that the elimination of the mandatory on-call requirement in March of 2009 left the Town, public, and on-duty officers less safe. The testimony of several of the dispatchers in West Yellowstone similarly indicated that the elimination of the on-call requirement made their jobs more stressful and potentially rendered the town less safe. ¶12 The Town’s evidence largely questioned the plaintiffs’ claimed inability to engage in personal activities or sleep. The Town sought to refute the allegedly burdensome response requirements by eliciting testimony that officers had previously either failed to show up for a call or had shown up late without any consequences. The Town also developed testimony that the plaintiffs received seven days off out of every 14 day work period, that other 6 agencies could potentially provide backup if the on-call officer didn’t respond, and that a plaintiff believed the compensation rate for call outs was fair. The Town further claimed that the infrequent nature of calls lessened the burden of on-call shifts. A summary of the plaintiffs’ timesheets proffered by the Town showed that Sergeant Stubblefield was called out 18 times in 609 on-call shifts, that Officer Knapp was called out three times in 234 on- call shifts, and that Officer Courtis was called out six times in 186 on-call shifts. Each of the plaintiffs disputed these calculations, but they did not offer any evidence supporting their belief that call outs were more frequent. ¶13 After reviewing the evidence and testimony, the jury rendered a verdict in favor of the Town on November 17, 2011. The court entered judgment on December 7, 2011. The plaintiffs subsequently filed a Combined Motion to Amend Judgment and Motion for New Trial (the Motion) pursuant to M. R. Civ. P. 59(a) and (e) on January 4, 2012. The Motion argued that there was insufficient evidence to support the jury’s verdict. The Motion largely summarized the evidence the plaintiffs presented at trial and applied these facts to the law contained in the jury instructions. The Motion essentially argued that the plaintiffs supported their contention with a “great quantity” of “uncontroverted” evidence while arguing that the Town only offered evidence of how the plaintiffs spent their days off. As relief, the Motion requested that the court “amend the judgment and rule that the Plaintiffs’ time spent while on-call was compensable” and order a new trial to determine damages and the statute of limitations. The Motion alternatively requested that the court order a new trial if it declined 7 to amend the judgment. The court denied the Motion in a February 29, 2012, order, and this appeal followed. STANDARD OF REVIEW ¶14 Where the basis of a Rule 59 motion is insufficiency of the evidence, we have clarified that our standard of review is de novo. Giambra v. Kelsey, 2007 MT 158, ¶ 26, 338 Mont. 19, 162 P.3d 134. This is because the assessment of the sufficiency of the evidence and the application of the law to that assessment is a question of law that cannot involve discretion. Johnson v. Costco Wholesale, 2007 MT 43, ¶ 19, 336 Mont. 105, 152 P.3d 727. An assessment of the sufficiency of the evidence is a question of law and no deference can be given to the trial court. Johnson, ¶ 19. “There either is, or is not, sufficient evidence to convict, and the determination is not a matter of discretion,” regardless of whether the appeal is from the denial of a M. R. Civ. P. 59(a) or (e) motion. State v. Swann, 2007 MT 126, ¶ 19, 337 Mont. 326, 160 P.3d 511. ¶15 In the course of our review of whether the evidence was sufficient to support the jury’s verdict, we do not ask whether the jury made the right decision. Wise v. Ford Motor Co., 284 Mont. 336, 343, 943 P.2d 1310 (1997). Instead, we only ask whether there is substantial credible evidence in the record to support the jury’s verdict. Wise, 284 Mont. at 343, 943 P.2d at 1314. Substantial credible evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. C. Haydon Ltd. v. Mont. Min. Props., Inc., 286 Mont. 138, 151, 951 P.2d 46 (1997). This evidence “may be less than a preponderance of the evidence, but must be more than a ‘mere scintilla.’ ” Murray v. Whitcraft, 2012 MT 8 298, ¶ 7, 367 Mont. 364, 291 P. 3d 587 (quoting Styren Farms, Inc. v. Roos, 2011 MT 299, ¶ 11, 363 Mont. 41, 265 P.3d 1230). A jury’s verdict may be supported by substantial credible evidence even if it is contradicted by other evidence or inherently weak. D.R. Four Beat Alliance, LLC v. Sierra Prod. Co., 2009 MT 319, ¶ 23, 352 Mont. 435, 218 P.3d 827 (quoting Tinker v. Mont. State Fund, 2009 MT 218, ¶ 36, 351 Mont. 305, 211 P.3d 194). DISCUSSION ¶16 On appeal, the plaintiffs maintain their argument that substantial evidence did not support the jury’s verdict in favor of the Town. The plaintiffs further term the jury’s decision “baffling” and “inconsistent” in light of the District Court’s decision following our remand as directed in Sands v. Town of W. Yellowstone, 2007 MT 110, 337 Mont. 209, 158 P.3d 432. We find both arguments unpersuasive, as outlined below. I. SUFFICIENCY OF THE EVIDENCE ¶17 The United State Supreme Court has held that time spent waiting “on call” is compensable if the waiting time is spent “primarily for the benefit of the employer and his business.” Armour & Co. v. Wantock, 323 U.S. 126, 132, 65 S. Ct. 165 (1944). “Whether time is spent predominately for the employer’s benefit or for the employee’s is a question dependent upon all the circumstances of the case.” Armour & Co., 323 U.S. at 133. The key, according to the Court, is whether the employee was engaged to wait, which is compensable, or whether the employee waited to be engaged, which is not compensable. Skidmore v. Swift & Co., 323 U.S. 134, 137-39, 65 S. Ct. 161 (1944). The jury instructions related these holdings. The instructions also listed a variety of factors that courts have found 9 relevant in determining whether on-call time is compensable. These factors included: (1) the extent to which there was an on-premises living requirement; (2) the extent to which there were excessive geographical restrictions on employee movements; (3) the extent to which the frequency of calls was unduly restrictive; (4) the extent to which a fixed time limit for on-call response was unduly restrictive; (5) the extent to which employees could easily trade on-call responsibilities; (6) the extent to which the use of a pager or cell phone could ease restrictions; (7) the duration and danger of calls; (8) the extent to which employees benefitted financially from the on-call policy; (9) the extent to which the policy was based upon an agreement between the parties; and (10) the extent to which on-call employees engaged in personal activities during on-call time. The court instructed that no one factor was dispositive and neither party contests these instructions on appeal. The jury determined that, based on the evidence presented and the applicable legal standards, the plaintiffs’ on-call time was not compensable. ¶18 The plaintiffs claim that this verdict was not supported by substantial evidence and that the jury wrongly ignored credible evidence that the on-call time was primarily for the Town’s benefit. In support, the plaintiffs largely recount the evidence they offered at trial and apply this evidence to the law contained in the jury instructions. However, “[a] jury's verdict which is challenged as not supported by the evidence may be overturned only in the complete absence of any credible evidence to support the verdict.” Papich v. Quality Life Concepts, Inc., 2004 MT 116, ¶ 29, 321 Mont. 156, 91 P.3d 553. As noted, this substantial evidence need be only more than a mere scintilla of evidence, need not be more than a 10 preponderance, and may be based on weak and conflicting evidence. Campbell v. Canty, 1998 MT 278, ¶ 18, 291 Mont. 398, 969 P.2d 268. All evidence and the inferences drawn therefrom must be considered in the light most favorable to the adverse party, the Town. Campbell, ¶ 19. Essentially, appellants may not use a Rule 59 motion to relitigate their claim and we will not disturb a jury’s findings “unless they are inherently impossible to believe.” Wise, 284 Mont. at 339, 943 P.2d at 1312. ¶19 While we review the sufficiency of the evidence de novo, it is clear from the foregoing that this Court does not invade the province of the jury and weigh the credibility or persuasiveness of the evidence presented. We do not second-guess or seek to replace the jury. We merely determine whether “substantial” evidence—more than a scintilla but perhaps less than a preponderance—supported the jury’s verdict. Campbell, ¶ 18. Here, that translates to at least some evidence that the plaintiffs’ time was not spent primarily for the benefit of the town, or that the plaintiffs were waiting to be engaged. Sands, ¶ 19. The question, then, is not whether substantial evidence supported the plaintiffs’ contention; rather, it is whether some evidence supported the proposition that the plaintiffs’ time was spent primarily for their own benefit. Indeed, under our conception of what constitutes substantial evidence, there may be a scintilla of evidence supporting several contentions. It is for the jury to weigh these competing bits of evidence and determine which is more credible. See Papich, ¶ 29; Campbell, ¶ 19; Wise, 284 Mont. at 339, 943 P.2d at 1312. ¶20 Both sides presented evidence to the jury. The Town called three witnesses, proffered ten exhibits, and elicited testimony through the cross-examination of the plaintiffs and their 11 witnesses. This “substantial” evidence demonstrated that the plaintiffs spent much of their on-call time asleep, eating meals, doing various household chores, or watching movies. Officer Conlon, who was not a plaintiff, testified that his on-call shifts were primarily spent going to movies, going to dinner, and going to bed. The plaintiffs testified that they generally slept and ate meals during their on-call shifts, but also stated their sleep was often interrupted by calls not related to their on-call duty. The Town also presented “substantial” evidence that the officers received few call-outs and were not disciplined in the instances where they missed a call. There was not an on-premises living requirement for the plaintiffs, but former Police Chief William Pronovost did tell Sergeant Stubblefield he could not live outside town if it would inhibit his ability to respond to calls and the plaintiffs generally stayed within West Yellowstone during their on-call shifts. The plaintiffs thought the compensation rate for actual call outs was fair, but wished they would have been called out more. The plaintiffs were apparently able to take vacation and trade shifts but there were some restrictions. ¶21 The jury received evidence from both the Town and the plaintiffs that related to the factors listed in the jury instructions. The Town challenged the plaintiffs’ credibility through cross-examination. The jury was free to judge the credibility and persuasiveness of the testimony and evidence submitted. The Town presented more than a mere scintilla of evidence that would support the jury’s verdict. The jury’s verdict was therefore based on “substantial” evidence. Campbell, ¶ 18. The plaintiffs have failed to show that the jury’s 12 verdict is either inherently impossible to believe or that there was a complete absence of evidence in support of the verdict. Campbell, ¶ 19. II. RELEVANCE OF SANDS ¶22 Plaintiffs also claim that because “[t]his case is a direct descendant of” Sands v. Town of W. Yellowstone, 2007 MT 110, 337 Mont. 209, 158 P.3d 432, we must either order the District Court to enter judgment in favor of the plaintiffs or order a new trial. Like the present case, Sands dealt with a FLSA claim against the Town of West Yellowstone. Unlike the present case, the plaintiffs prevailed on their FLSA claim after a bench trial. The plaintiffs essentially claim that this success, when coupled with the similarities between the cases, requires us to reverse the court’s judgment and the jury’s verdict. However, we are not persuaded by plaintiffs’ contention that this case is “essentially a retrial” of Sands. ¶23 Sands dealt with a FLSA claim brought by EMTs against the Town of West Yellowstone in 2003. The plaintiffs contested the 1/4 wages the Town paid for the hours they spent on call but not actually responding to a call. Following a bench trial, the district court entered judgment for the plaintiff EMTs. Some of the factors the district court considered to determine compensability mirror the factors presented to the jury in this case. For example, the Sands court considered response time requirements, whether employees could use on-call time for personal pursuits, the frequency and duration of call-outs, and geographic restrictions on employees. ¶24 The district court in Sands applied these similar factors to the evidence to determine that the plaintiffs should have been fully compensated for their on-call time. Some of the 13 facts the court considered in this analysis are similar to the facts in the present case. For instance, the EMTs were paid for their “response” time when they responded to a call, but were not fully compensated for all their on-call hours. The EMTs similarly worked 12-hour on-call shifts and were required to respond within five to seven minutes in uniform. Sands, ¶ 7. The Sands plaintiffs also testified that the on-call requirements interrupted their sleep and interfered with their ability to run personal errands, travel for services or shopping, or recreate. ¶25 Despite these initial similarities, the Sands case is not as “identical” to the present case as the plaintiffs allege. The foremost difference is the fact that the case on remand was conducted as a bench trial. The Sands EMTs also operated under a different collective bargaining agreement. Sands, ¶ 5. Moreover, if an EMT failed to respond in the required five to seven minute range, they would be disciplined. Sands, ¶ 7. Here, there is no evidence that any police officer has ever been disciplined for failing to immediately respond to a call. The Sands plaintiffs also testified that trading on-call hours was difficult, if not impossible. Here, the plaintiffs testified that trading shifts was at least possible. Significantly, the Sands plaintiffs received call-outs almost 50% of the time they were on call. In the present case, the plaintiffs were rarely called out. ¶26 While Sands presented a superficially similar claim, involving EMTs in West Yellowstone seeking compensation for on-call time, the case is not “identical” to the plaintiffs’ claim in the present case. The Sands plaintiffs worked under a separate agreement, were subject to different response requirements, and received significantly more 14 call outs. In addition, the district court’s order in Sands was, somewhat surprisingly, admitted into evidence at trial. The jury had an opportunity to compare the Sands decision to the present case and they apparently decided that the cases were distinguishable. The jury was free to do this, just as they are free to weigh the persuasiveness of any evidence presented at trial. See Wise, 284 Mont. at 339, 943 P.2d at 1312 (“[T]he credibility and weight given to the evidence is in the jury’s province and we will not disturb the jury’s findings unless they are inherently impossible to believe.”). ¶27 It is important to emphasize that our review of an appeal alleging insufficiency of the evidence is confined to a determination of whether substantial evidence supported the jury’s verdict. Campbell, ¶ 17. If there was evidence that a reasonable mind might accept as adequate to support the jury’s conclusion, our review ends. Campbell, ¶ 18. A prior district court’s determination of an arguably similar case has no bearing on this analysis. The jury was free to consider, and reject, the persuasiveness of the Sands decision just as it could consider, and reject, the persuasiveness of the plaintiffs’ testimony. Because there was sufficient evidence to support the jury’s verdict, we affirm the District Court’s denial of the Motion, regardless of Sands. CONCLUSION ¶28 Because we conclude that there was sufficient evidence to support the jury’s verdict in favor of the Town, we affirm. ¶29 Affirmed. /S/ MICHAEL E WHEAT 15 We Concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BRIAN MORRIS /S/ JIM RICE | March 26, 2013 |
857db358-a293-49e8-9c50-9fbee6a6528f | State v. Jay | 2013 MT 79 | DA 10-0269 | Montana | Montana Supreme Court | DA 10-0269 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 79 STATE OF MONTANA, Plaintiff and Appellee, v. COREY BROOKS JAY, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 09-0016 Honorable Susan P. Watters, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender; Jennifer A. Hurley, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Tammy K Plubell, Assistant Attorney General; Helena, Montana Scott Twito, Yellowstone County Attorney; David Carter, Deputy County Attorney; Billings, Montana Submitted on Briefs: December 19, 2012 Decided: March 26, 2013 Filed: __________________________________________ Clerk March 26 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Corey Brooks Jay (Jay) appeals from the judgment of the Thirteenth Judicial District Court adjudging him guilty of two counts of negligent homicide and two counts of negligent endangerment. He challenges the District Court’s rulings, which denied his challenge of a prospective juror for cause, excluded his expert witness from testifying about complex partial seizures, denied his request for a lesser-included offense jury instruction, and ordered him to pay $600 in restitution to the State and an undetermined amount of restitution to the victims and their family members for mental health treatment. We affirm in part and reverse in part, and address the following issues: ¶2 Did the District Court err by denying Jay’s challenge for cause? ¶3 Did the District Court err by excluding Jay’s expert witness on complex partial seizures? ¶4 Did the District Court err by denying Jay’s request to instruct the jury on DUI as a lesser-included offense of Vehicular Homicide While Under the Influence? ¶5 Did the District Court err by ordering Jay to pay restitution to the State and the victims and their family members? FACTUAL AND PROCEDURAL BACKGROUND ¶6 At around 8 p.m. on October 3, 2008, Jay was traveling westbound on Interstate 90 (I-90) between Laurel and Billings. Commuters on I-90 watched as Jay’s pickup suddenly made a sharp turn into the grass median that separated the eastbound and westbound traffic. His pickup continued through the median before turning onto I-90 and driving into the oncoming eastbound traffic. Jay traveled the wrong way on I-90 for approximately one-fifth of a mile. Two cars successfully avoided colliding with Jay’s 3 pickup by driving off the road. However, Jay’s pickup struck a third car, carrying David Hanson (Hanson) and Janice Thomas (Thomas) at a high rate of speed. Hanson and Thomas suffered traumatic injuries that resulted in their deaths at the scene of the crash. ¶7 Emergency medical technicians (EMTs) assisting Hanson, Thomas, and Jay at the scene smelled the odor of alcoholic beverage on Jay’s breath. When asked, Jay volunteered that he had drunk two beers and that this would teach him a lesson in “driving tired.” Jay suffered a small laceration above his left eye and an open fracture on his left leg. EMTs transported Jay to St. Vincent’s Hospital in Billings for treatment. ¶8 Troopers Kyle Hayter (Trooper Hayter) and Shane Warehime (Trooper Warehime) of the Montana Highway Patrol investigated the crash. Trooper Hayter arrived on scene at 8:22 p.m. He determined that Jay had traveled one-fifth of a mile the wrong way on I-90 before colliding with Hanson and Thomas. Nonhuman factors did not explain the crash: the weather was fine, there was no debris on the roadway, and the deliberate nature of the trajectory of Jay’s truck was not consistent with mechanical problems. Data recovered from the power control module1 of Jay’s pickup revealed that Jay had not applied the brakes during the 25 seconds preceding the crash. Trooper Warehime photographed the crash scene, spoke with witnesses, and went to St. Vincent’s Hospital to talk to Jay. Jay told Trooper Warehime he had drank two beers and had fallen asleep behind the wheel. 1 According to trial testimony, a power control module is “a relatively simple computer that’s used to control engine function.” In the case of Jay’s pickup, the module recorded the data that could then be downloaded and analyzed. 4 ¶9 Dr. Rentz, a surgeon, treated Jay at St. Vincent’s Hospital. Jay was coherent. He understood that he was in the emergency room, and why he was there. While Jay appeared alert, Dr. Rentz smelled alcohol on Jay and noted that he was behaving like he had been drinking. A neurosurgeon performed a head CT scan, which came back non-remarkable; the neurosurgeon did not recommend any follow up treatment for a brain injury or disorder. Jay told Dr. Rentz that he did not have a history of seizures. At 9:20 p.m., St. Vincent’s Hospital staff drew a plasma blood sample from Jay as part of his medical treatment. Subsequent testing registered Jay’s blood alcohol content (BAC) between 0.0706 and 0.088.2 ¶10 The State charged Jay with two counts of Vehicular Homicide While Under the Influence for the deaths of Hanson and Thomas. In the alternative, the State charged Jay with two counts of Negligent Homicide for Hanson’s and Thomas’s deaths. The State also charged Jay with two counts of Criminal Endangerment for forcing other drivers off the road to avoid colliding with Jay. ¶11 Jay pleaded not guilty to the charges and sought to prove at trial that his driving was the result of losing consciousness before the crash, perhaps because of a seizure. Prior to trial, Jay disclosed he intended to call Dr. Dale Peterson, a specialist in neurology, to testify as an expert on seizure disorders and their symptoms, effects, and 2 Because the Montana State Crime Laboratory measures BAC based on a whole blood sample, toxicology experts converted Jay’s plasma sample BAC to a whole blood sample BAC. Different experts used slightly different conversion rates to convert plasma BAC to whole blood BAC. According to the State’s expert, Jay had a BAC of between 0.0765 and 0.0818. According to Jay’s expert, Jay’s BAC was between 0.0706 and 0.088. 5 diagnosis. The State moved to exclude Dr. Peterson after its interview with him revealed that he had never examined Jay; his only basis of knowledge about Jay’s medical status and about what happened on October 3, 2008, consisted of a 30-minute electroencephalogram (EEG)3 that was “unremarkable,” in that it did not show Jay was suffering from seizures, and an oral account of events provided by Jay’s lawyer. ¶12 On November 24, 2009, the District Court conducted a hearing on pretrial motions, including the State’s motion to exclude Dr. Peterson. Jay’s counsel advised the court that Dr. Peterson would not be offering an opinion as to whether Jay suffered a seizure while driving; rather, Dr. Peterson would merely explain the typical symptoms of complex partial seizures and the difficulty in diagnosing them. The District Court excluded Dr. Peterson from testifying pursuant to M. R. Evid. 402, 403, and 702. ¶13 During voir dire, Jay’s counsel questioned prospective jurors about their feelings on the presumption of innocence. Following this questioning, Jay challenged for cause potential juror Bennett because she voiced concerns about her ability to be impartial given the issue of drinking and driving. The District Court denied the challenge and Jay removed Bennett by exercising a peremptory challenge. During the settling of jury instructions, Jay requested the court to instruct the jury on the lesser-included offense of Driving Under the Influence (DUI) to the charges of Vehicular Homicide while Under the Influence. The court denied the request, reasoning that while DUI was a 3 During an EEG, the patient’s brainwaves are measured by means of electrodes applied to the scalp. The physician can identify a neurological disorder by matching the patient’s brainwaves to signature brainwaves associated with a particular disorder. Dorland’s Illustrated Medical Dictionary 600 (32d ed., Elsevier Saunders 2012). 6 lesser-included offense, the facts of Jay’s case did not support the instruction. The court did instruct the jury on the lesser-included offense of Negligent Endangerment to the charges of Criminal Endangerment. ¶14 The jury convicted Jay of two counts of Negligent Homicide and two counts of Negligent Endangerment. The District Court imposed a thirty year sentence in the Montana State Prison with ten years suspended. The court further ordered, over Jay’s objection, that he pay the State $600 in restitution for expenses incurred in interviewing Dr. Peterson and that he was “financially responsible for the cost of mental health treatment for the victims and their family members.” Jay appeals. STANDARD OF REVIEW ¶15 This Court reviews a district court’s denial of a challenge for cause to a prospective juror for abuse of discretion. State v. Allen, 2010 MT 214, ¶ 20, 357 Mont. 495, 241 P.3d 1045. We review the district court’s determination regarding the qualification and competency of an expert witness for an abuse of discretion. State v. Bollman, 2012 MT 49, ¶ 22, 364 Mont. 265, 272 P.3d 650. The trial court has “great latitude” in ruling on the admissibility of expert testimony. State v. Crawford, 2003 MT 118, ¶ 30, 315 Mont. 480, 68 P.3d 848 (emphasis in original). A district court’s refusal to give an instruction on a lesser-included offense is also reviewed for abuse of discretion. State v. Feltz, 2010 MT 48, ¶ 14, 355 Mont. 308, 227 P.3d 1035. Finally, we review restrictions or conditions on a sentence for both legality and abuse of discretion. State v. Hafner, 2010 MT 233, ¶ 13, 358 Mont. 137, 243 P.3d 435. 7 DISCUSSION ¶16 Did the District Court err in denying Jay’s challenge for cause? ¶17 Jay argues that the District Court should have removed Bennett from the jury pool because her statements during voir dire that she had strong feelings against drinking and driving showed that she could not be impartial and presume Jay was innocent. The State counters that Bennett demonstrated that she was willing to put her personal feelings about drinking and driving aside, be impartial, and apply the law as instructed by the court. ¶18 Jay’s counsel began his voir dire with a discussion of the presumption of innocence. Several potential jurors explained their understanding of “innocent until proven guilty.” One potential juror said that she needed to see the facts of the case before deciding innocence or guilt but felt that Jay should not have been driving if he had been drinking. Shortly after, Jay’s counsel had the following colloquy with a different potential juror, Bennett: DEFENSE COUNSEL: Miss Bennett, how about you? Is that—do you think it’s a natural thing, first of all, to think that because my client is sitting up here that he probably did something wrong? BENNETT: I don’t think it feels natural in this instance, because of, you know, the questions that are being asked at this time and, you know, sort of the situation. You know, I kind of feel like, you know, in any case, I’m right in the middle until I see evidence one way or the other, just like everyone else has talked about. But, we’re here for a reason. And if we’re here for a reason, then I can’t assume complete innocence. DEFENSE COUNSEL: Okay. If you—the Judge is going to read some jury instructions, and that will be one of the jury instructions is that you are required actually to presume him innocent and maintain that presumption of innocence until you have heard all of the evidence. Is that a jury instruction—is that an instruction that you can follow? 8 BENNETT: I think it would be very difficult to follow, just having heard what we’ve heard today. DEFENSE COUNSEL: So you’re saying that basically— BENNETT: You know, if chosen for the jury trial and that’s an instruction from the Judge, I’m going to follow that instruction. Personally, I would find it difficult. DEFENSE COUNSEL: Do you think you’ll be able to ultimately overcome those personal feelings? BENNETT: I would hope that, you know, based on the evidence that’s provided to us, that I would make a decision based purely on what I see and what facts I have laid out in front of me. DEFENSE COUNSEL: Okay. Do you have some fear that maybe you won’t be able to do that? BENNETT: You know, I feel very passionately about driving under the influence, so there’s a possibility, yes. DEFENSE COUNSEL: Okay. Let me ask you this, if you were my client, would you want someone with your mindset in the jury? BENNETT: Probably not. DEFENSE COUNSEL: Okay. And is that because, ultimately, you think you might have insurmountable difficulties putting aside those sorts of passions that you have? BENNETT: Yes. DEFENSE COUNSEL: Your honor, I would request that she be excused for cause. The State questioned Bennett about her views. PROSECUTOR: Your honor, just a moment. Miss Bennett, everyone comes in this courtroom with beliefs, feelings, attitudes. The question is, can you follow the law? 9 BENNETT: Yes. PROSECUTOR: Okay. So you had mentioned on Defense counsel’s questions, asked, just unprompted, that if that’s what the Judge instructed you to do, you could follow the law? BENNETT: Yes. PROSECUTOR: If the State showed you what happened and why it happened, and obviously we don’t have any facts, I mean that’s just the way a jury trial works, but the State proved its case beyond a reasonable doubt that the Defendant committed vehicular homicide or negligent homicide, manslaughter, to either David Hanson or Janice Thomas, could you find the Defendant guilty? BENNETT: Yes. PROSECUTOR: If the State did not prove the case beyond a reasonable doubt, based on what the Judge tells you, and what you believe at that time, after watching every witness and seeing every exhibit after every day of the trial, could you find the Defendant not guilty? BENNETT: Yes. PROSECUTOR: And simply because you have a strong feeling on DUI, is that going to affect that? Will you say he’s guilty because I don’t like drunk drivers, or will you say he’s not guilty because the State did not prove its case? BENNETT: I would say I would make my decision based on the evidence. If it was proved beyond a reasonable doubt, I would—you know, I would have no problem finding the Defendant guilty. PROSECUTOR: And I’m the prosecutor, so—he’s the Defense attorney, but he’s entitled to that. Because in theory, right, wrong or otherwise, we would hope, in theory, anyone could be sitting in that chair. So you don’t have a problem rendering verdict solely on the evidence and the instructions by the Court? BENNETT: No. 10 PROSECUTOR: You Honor, I would actually object. I think everyone comes in this courtroom with some belief or understanding. And if that’s the standard, then no one could ever sit on a jury. THE COURT: That motion is denied. ¶19 Section 46-16-115(j), MCA, provides that a potential juror may be removed for cause if she has “a state of mind in reference to the case or to either of the parties that would prevent the juror from acting with entire impartiality and without prejudice to the substantial rights of either party.” To determine whether a juror should be excused, courts must look to the “totality of the circumstances” of the witness’s voir dire examination. State v. Robinson, 2008 MT 34, ¶ 8, 341 Mont. 300, 177 P.3d 488 (overruled on other grounds in State v. Gunderson, 2010 MT 166, ¶ 54, 357 Mont. 142, 237 P.3d 74). If questioning raises “serious doubts” as to the “juror’s ability to be fair and impartial,” the court should err on the side of caution and remove the juror. Robinson, ¶ 8. A prospective juror’s “spontaneous statements” are given more weight than “coaxed recantations” elicited by counsel because spontaneous statements are “most likely to be reliable and honest.” Robinson, ¶ 11; State v. DeVore, 1998 MT 340, ¶ 28, 292 Mont. 325, 972 P.2d 816 (overruled on other grounds in State v. Good, 2002 MT 59, ¶ 63, 309 Mont. 113, 43 P.3d 948). ¶20 If a prospective juror makes statements to the effect that she cannot suspend her fixed beliefs and follow the law, that juror should be excused for cause. Robinson, ¶ 13. On the other hand, a juror should not be removed merely because she voices a concern about being impartial—every person comes to jury duty with preconceptions. Robinson, 11 ¶ 13 (it is “reasonable and logical” for a prospective juror to presume that there is “some reason” that the State charged the defendant with a crime). When a juror makes comments suggesting a fixed opinion as to the defendant’s guilt but then says she can set that opinion to the side and follow the law, it is “within the discretion of the district court” to decide whether the juror will be able to be impartial: When a juror makes conflicting statements . . . the decision whether to grant a challenge for cause is within the discretion of the trial court, who has the ability to look into the eyes of the juror in question, and to consider her responses in the context of the courtroom, and then determine whether serious doubts exist about the juror’s ability to be impartial. Robinson, ¶ 13. ¶21 Our prior cases illustrate the difference between a potential juror who has a “fixed opinion” and a potential juror who has mere preconceptions. In State v. Falls Down, 2003 MT 300, ¶¶ 25-26, 28, 31, 33, 318 Mont. 219, 79 P.3d 797, four potential jurors indicated that they had formed opinions as to Falls Down’s guilt of deliberate homicide based on media coverage. Upon further questioning, they all agreed that they would be able to set their preconceptions aside, follow the law, and presume Falls Down was innocent until proven guilty. We affirmed the district court’s refusal to remove the potential jurors for cause because they were not “fixed” or “set” in their opinions of the defendant’s guilt. Falls Down, ¶¶ 27, 30, 32, 35. ¶22 In contrast, in DeVore, ¶ 16, two potential jurors indicated that DeVore was “guilty of something” or he would not have been charged with a crime. DeVore challenged these jurors for cause, on the grounds that their statements showed they could 12 not be impartial and presume DeVore innocent until proven guilty. DeVore, ¶¶ 17-18. Before ruling, the district court instructed DeVore’s counsel to discuss the presumption of innocence with the jurors. DeVore, ¶ 17. The two prospective jurors responded to this discussion by stating that, although they would not find DeVore guilty until they heard all of the evidence, they still thought he was “involved” or “guilty of something” or he would not have been charged. DeVore, ¶¶ 18-19. The district court rejected DeVore’s challenge for cause, and we reversed. DeVore, ¶¶ 1, 20. We held that because the potential jurors had continued to adhere to their beliefs about DeVore’s guilt, the district court should have excused them for having a fixed opinion: “[D]isqualification based on a juror’s alleged prejudice is necessary only where jurors ‘form fixed opinions on the guilt or innocence of the defendant which they would not be able to lay aside and render a verdict based solely on the evidence presented in court.’” DeVore, ¶ 21 (quoting Great Falls Tribune v. Dist. Ct., 186 Mont. 433, 439-40, 608 P.2d 116, 120 (1980)). We reached the same conclusion under similar facts in State v. Braunreiter, 2008 MT 197, ¶ 13, 344 Mont. 59, 185 P.3d 1024 (holding that prospective juror’s lukewarm agreement to follow the law was insufficient to dissipate concerns raised by his initial responses). ¶23 Here, Bennett’s comments are closer to the juror statements in Falls Down than the juror comments in DeVore or Braunreiter. While Bennett was clear that she had preconceptions about people that drink and drive, she did not make comments demonstrating a “fixed opinion” as to Jay’s guilt. Indeed, without prompting, Bennett told Jay’s counsel that although she would find it personally difficult to presume Jay 13 innocent, she could and would do so: “You know, if chosen for the jury trial and that’s an instruction from the Judge, I’m going to follow that instruction. Personally, I would find it difficult.” It was following this initial, spontaneous response that Jay’s counsel asked Bennett a series of leading questions that revealed the difficulty Bennett would have in setting aside her feelings, and the prosecutor asked a series of leading questions revealing that Bennett would set her personal feelings aside, apply the law, and presume Jay innocent until proven guilty. ¶24 Bennett’s somewhat contradictory responses to counsels’ leading questions are why we give more weight to “spontaneous” statements than “coaxed recantations.” Robinson, ¶ 8. Bennett expressed agreement both with Jay’s counsel that it would be difficult for her to be impartial and with the prosecutor that she would be impartial and follow the law. The response “most likely to be reliable and trustworthy,” Robinson, ¶ 8, was Bennett’s earlier spontaneous statement that she would follow the law even though she would find it personally difficult. This statement demonstrated a preconception and not a “fixed opinion.” We conclude that the record fails to demonstrate that Bennett had “a state of mind in reference to the case or to either of the parties that would prevent the juror from acting with entire impartiality and without prejudice to the substantial rights of either party.” Section 46-16-115(j), MCA. The District Court did not abuse its discretion in denying the challenge for cause. 14 ¶25 Did the District Court err in excluding Jay’s expert witness on complex partial seizures? ¶26 The District Court excluded Dr. Peterson from testifying about complex partial seizures on the ground that Jay failed to demonstrate a “nexus” between such a seizure and his driving. Jay argues this was error because the unexplained nature of his driving was enough to raise the possibility that he had suffered a seizure. ¶27 The admission of expert testimony is governed by M. R. Evid. 701-705. M. R. Evid. 702 provides that expert testimony in the form of “an opinion or otherwise” is admissible if it will assist the jury in deciding the case: 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. (Emphasis added.) The Commission Comments to Rule 702 explain that the “or otherwise” language allows “an expert to give testimony which need not be in the form of opinion, but which informs the jury so they may render the correct decision.” Section 26- 10-Rule 702, Commission Comments at 393 (2012).4 Commentators have opined that 4 This is consistent with the official comments of Fed. R. Evid. 702, which provides, in pertinent part: Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts. Since much of the criticism of expert testimony has centered upon the hypothetical question, it seems wise to recognize that opinions are not indispensable and to encourage the use of expert testimony in non-opinion form when counsel believes the trier can itself draw the requisite inference. 15 Rule 702 permits an expert to “give test results, describe recognized principles of their specialized knowledge, provide general background, or simply to explain other evidence.” Charles Alan Wright & Victor James Gold, Federal Practice and Procedure, vol. 29, § 6263, 197 (West 1997). ¶28 State v. Cassill, 70 Mont. 433, 227 P. 49 (1924) illustrates the use of such testimony. In Cassill, bank employees were charged with falsifying a bank’s ledgers and financial disclosures. Cassill, 70 Mont. at 435-36, 227 P. at 50-51. During trial, the State called witnesses experienced in accounting and bookkeeping to explain the meaning of various entries in the bank’s ledgers to the jury. Cassill, 70 Mont. at 448, 227 P. at 55. These experts did not testify as to whether the defendants had falsified entries; rather, they explained how a ledger worked and what different entries meant. Cassill, 70 Mont. at 448-49, 227 P. at 55. We “found the explanations illuminative and useful and have no doubt served to enlighten the jury” and affirmed the District Court’s admission of the testimony. Cassill, 70 Mont. at 449, 227 P. at 55. ¶29 Of course, not all exposition testimony will necessarily “assist” or “enlighten the jury.” Like all evidence, expert testimony must be relevant, or have the “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M. R. Evid. 401. Thus, it has been noted that “in order for expert testimony to be relevant there must be a (Emphasis added.) Drawing upon the comment’s language, some commentators refer to this testimony as “exposition” testimony. See Daniel D. Blinka, Expert Testimony and the Relevancy Rule in the Age of Daubert, 90 Marq. L. Rev. 173, 219-20 (2006). 16 connection between the expert’s [testimony] and fact testimony.” 32 C.J.S. Evidence § 804, at 465 (West 2008); accord U.S. v. Downing, 753 F.2d 1224, 1242 (3rd Cir. 1985) (“An additional consideration under Rule 702—and another aspect of relevancy—is whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.”); Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002) (noting that expert testimony is only relevant when it is “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.”) (internal quotation marks omitted). ¶30 In seeking to introduce Dr. Peterson’s exposition testimony about complex partial seizures, Jay’s counsel explained that Dr. Peterson’s testimony would educate the jury without giving an opinion as to whether Jay, in fact, had suffered a seizure: [W]hen you look at Rule 702, experts do not have to give statements in terms of opinions only. They can be opinions or testimony, or other testimony. In this case, I think the other testimony that Dr. Peterson could give would be educating the jury about complex partial seizures and how that, how you can’t rule that out in this case when, you know, the level of proof for defense is to show that there is a reasonable doubt. Thus, Jay’s position was that the basis for educating the jury about complex partial seizures was that Dr. Peterson could not rule out the possibility that Jay had suffered a seizure while driving. ¶31 However, Dr. Peterson had never spoken to Jay or any of his previous treating physicians; he had not been provided with Jay’s medical history, other than an “unremarkable” EEG; nor had he been provided with the medical history of Jay’s family. Dr. Peterson’s testimony was potentially complicated and, as Jay acknowledges, 17 “seizures are difficult to diagnose, even for experts.” No evidentiary connection was established between seizures and Jay’s driving. Dr. Peterson’s testimony would not serve to assist the jury as in Cassill, where expert testimony about bookkeeping methods gave the jury the tools necessary to determine if the bank’s ledgers accurately reflected its assets. While we agree that Jay did not need to provide a “definitive medical diagnosis of a seizure,” he was required to establish some factual connection between the offered expert testimony and his driving in this case to make the testimony relevant. M. R. Evid. 402. Expert testimony about a causal theory that was not connected to the facts of the case could well serve to confuse the jury. We conclude the District Court did not abuse its discretion in excluding Dr. Peterson’s expository testimony. ¶32 Jay argues alternatively that even if the District Court properly applied Rule 702, the exclusion of Dr. Peterson’s testimony nonetheless violated his right to present a defense. The Due Process Clause of the Fourteenth Amendment and the Compulsory Process and Confrontation Clause of the Sixth Amendment “guarantee[] criminal defendants ‘a meaningful opportunity to present a complete defense.’” Holmes v. S.C., 547 U.S. 319, 324, 126 S. Ct. 1722, 1731 (2006) (quoting Crane v. Ky., 476 U.S. 683, 690, 106 S. Ct. 2142, 2142 (1986)). This right to present a defense can be “abridged by evidence rules that infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve.” Holmes, 547 U.S. at 324, 126 S. Ct. at 1731 (internal brackets and quotation marks omitted). 18 ¶33 The Ninth Circuit Court of Appeals has rejected a similar due process challenge. Moses v. Payne, 555 F.3d 742, 760 (9th Cir. 2008). In Moses, the defendant was charged with shooting and killing his wife. The defendant alleged that she shot herself. The defendant sought to call at trial a doctor who would testify that the victim was depressed and that depression increased the likelihood of suicide. Moses, 555 F.3d at 749. The trial court excluded the evidence under Rule 702. Moses, 555 F.3d at 750. In a subsequent habeas proceeding, the Ninth Circuit held that this application of Rule 702 did not impermissibly infringe on the defendant’s right to present a defense. Moses, 555 F.3d at 760. The Ninth Circuit recognized that unlike the state evidentiary rules that have been struck down by the Supreme Court,5 Rule 702 was a “‘well-established rule of evidence’ that permits a court to exercise its discretion in admitting expert testimony when relevant”: Indeed, Rule 702 is different in kind from the rules [struck down by the Supreme Court]. The evidentiary rules in those cases, by their terms, required the trial court to exclude crucial evidence that had a critical effect on the trial, with little or no rational justification. In general, the rules precluded a defendant from testifying, excluded testimony from key percipient witnesses, or excluded the introduction of all evidence relating to a crucial defense. In contrast, Rule 702 does not require a trial court to exclude evidence. Rather, it authorizes a court to admit expert testimony if it will assist the trier of fact to understand the evidence or a fact in issue. 5 These evidentiary rules required trial courts to exclude evidence based on dubious, irrational reasoning. See Holmes, 547 U.S. at 328-31, 126 S. Ct. 1727 (evidentiary rule prevented defendant from presenting evidence that a third party had committed crime if the judge determined the prosecutor’s case was strong); Rock v. Ark., 483 U.S. 44, 107 S. Ct. 2704 (1987) (evidentiary rule prohibited witness from testifying about memories recalled after hypnosis); Washington v. Tex., 388 U.S. 14, 87 S. Ct. 1920 (1967) (evidentiary rule prohibited alleged accomplice from testifying on the defendant’s behalf but he could testify for the government). 19 Moses, 555 F.3d at 758 (internal quotation marks omitted) (quoting Holmes, 547 U.S. at 326, 126 S. Ct. 1227). Because Rule 702 is rationally related to the important goal of admitting only expert testimony that has a logical connection to the central issues of the case, the Ninth Circuit upheld it as constitutional. Moses, 555 F.3d at 758. ¶34 We concur with the Ninth Circuit’s reasoning in Moses. Here, the District Court determined that Dr. Peterson’s testimony would not assist the jury because it had a weak, arguably nonexistent, connection to Jay’s driving on October 3, 2008. Therefore, the District Court’s application of Rule 702 did not abridge Jay’s constitutional right to present his defense. ¶35 Finally, Jay argues that if the District Court properly excluded Dr. Peterson’s testimony because it bore no connection to Jay’s driving, then his lawyer provided ineffective assistance by failing to establish a connection. Jay argues his lawyer could have made that connection by: (1) submitting Jay’s family’s history of seizures to the court, and/or (2) having Dr. Peterson run medical tests on Jay to determine if he had a seizure. Jay’s lawyer did neither. The State argues that Jay’s ineffective assistance claim is non-record based and, therefore, must be addressed in postconviction proceedings. ¶36 “This Court may review a claim of ineffective assistance of counsel 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. 427, 288 P.3d 210 (quoting State v. Deschon, 2004 MT 32 ¶ 31, 320 Mont. 1, 85 P.3d 756). In State v. White, 2001 MT 149, ¶ 20, 306 Mont. 58, 30 P.3d 340, we explained 20 that “the definitive question that distinguishes and decides which actions are record and which are non-record is why? . . . [D]oes the record fully explain why counsel took the particular course of action?” (Emphasis in original.) “When ineffective assistance of counsel claims are non-record based, the proper avenue for review is through a petition for postconviction relief.” Longjaw, ¶ 20. ¶37 Here, the record does not “fully explain” why Jay’s counsel did not make further effort to establish a connection between seizures and Jay’s driving. While Jay claims that his counsel was deficient by failing to submit to the District Court evidence that members of his family had suffered seizures, thereby showing that he is genetically predisposed to seizures, there is no evidence in the record of his family’s medical history. Jay also claims his counsel was deficient for failing to have Dr. Peterson test Jay to determine if he had suffered a seizure. However, Jay’s counsel may have had a tactically sound strategy for not doing so—he may have believed that a full medical examination would hurt Jay’s case. Jay’s counsel may have sought to gain the benefits of Dr. Peterson’s testimony (providing the jury with an alternative explanation of Jay’s driving) without incurring any risks (Dr. Peterson concluding after examining Jay that he had not suffered a seizure). This strategy is not foreclosed by the record and thus does not fully explain why Jay’s counsel “took the particular course of action” he did. Longjaw, ¶ 20. Jay’s claim is appropriately reserved for postconviction proceedings. ¶38 Did the District Court err when it refused to instruct the jury on DUI as a lesser- included offense of Vehicular Homicide While Under the Influence? 21 ¶39 The District Court rejected Jay’s request to instruct the jury on DUI as a lesser-included offense of Vehicular Homicide while Under the Influence because it concluded that the evidence did not support the instruction. To determine if a lesser-included offense instruction should have been given at trial, we follow the two-step approach articulated in State v. Castle, 285 Mont. 363, 368, 948 P.2d 688, 690-91 (1997). First, we determine if, as a matter of law, the offense for which the instruction is requested is a lesser-included offense of the offense charged. Then, we determine if the lesser-included instruction is supported by the evidence of the case. ¶40 A lesser included offense is defined as an offense that “is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]” Section 46-1-202(9)(a). “‘[F]acts’ ‘in subsection (a) of § 46-1-202(9), MCA refers to the statutory elements of the charged offense and not to the individual facts of the case.’” State v. Molenda, 2010 MT 215, ¶ 7, 358 Mont. 1, 243 P.3d 387 (quoting State v. Beavers, 1999 MT 260, ¶ 30, 296 Mont. 340, 987 P.2d 371). ¶41 Vehicular Homicide While Under the Influence occurs when a “person negligently causes the death of another human being while the person is operating a vehicle in violation of 61-8-401 or 61-8-406.” Section 45-5-106, MCA. The statute incorporates the elements of a DUI offense as necessary elements of the Vehicular Homicide offense. Therefore, a DUI offense is “established by proof of the same or less than all the [elements] required to establish the commission of [Vehicular Homicide While Under the Influence],” and is a lesser-included offense. Section 46-1-202(9)(a), MCA. 22 ¶42 Under the second step of Castle, a lesser-included offense instruction must be given when “the jury, based on the evidence, could be warranted in finding the defendant guilty of a lesser included offense.” Section 46-16-607(2); Castle, 285 Mont. at 369, 948 P.2d at 691. “A lesser-included offense instruction is not supported by the evidence when the defendant’s evidence or theory, if believed, would require an acquittal.” State v. Burkhart, 2004 MT 372, ¶ 39, 325 Mont. 27, 103 P.3d 1037; State v. German, 2001 MT 156, ¶ 11, 306 Mont. 92, 30 P.3d 360; State v. Martinez, 1998 MT 265, ¶ 10, 291 Mont. 306, 968 P.2d 705; State v. Schmalz, 1998 MT 210, ¶ 23, 290 Mont. 420, 964 P.2d 763; State v. Howell, 1998 MT 20, ¶ 34, 287 Mont. 268, 954 P.2d 1002; State v. Grindheim, 2004 MT 311, ¶ 41, 323 Mont. 519, 101 P.3d 267. ¶43 Grindheim was charged with sexual intercourse without consent arising from allegations that he forced a 12-year-old girl to put her mouth on his penis while the two were sharing a couch for the night. Grindheim, ¶¶ 11, 14. The girl accused Grindheim of grabbing her and forcing her head down on his penis even though she had told him “no” and that “she did not want to.” Grindheim, ¶ 11. Grindheim’s defense at trial was that the girl had awoken him in the middle of the night by touching him in a sexual manner, and that he had responded by immediately leaving the couch and sleeping outside. Grindheim, ¶ 41. Grindheim asked the court to instruct the jury on the lesser-included crime of “endangering the welfare of a child.” Grindheim, ¶¶ 38-39. The trial court refused the instruction, and we affirmed, reasoning that Grindheim’s theory of the facts supported his outright acquittal, not a conviction for endangerment of children: 23 Even were we to accept Grindheim’s assertion that the offense of endangerment of children was a lesser-included offense, the evidence in this trial would not have supported Grindheim’s conviction of that offense, but rather, would instead have supported Grindheim’s acquittal. Grindheim’s evidence and theory was that some “unknown person” unzipped his sleeping bag and began “messing around” with him in a sexual manner. After he realized what was going on, he asserted that he jumped off the couch, took his sleeping bag, and went out to sleep in the yard. Thus, Grindheim’s evidence and theory does not offer proof of “assisting, promoting or encouraging” a child to engage in sexual conduct pursuant to § 45–5–622(2)(b)(ii), MCA. Therefore, we conclude the District Court did not abuse its discretion in denying Grindheim’s requested lesser-included offense instruction. Grindheim, ¶ 41. ¶44 Here, Jay’s theory of the facts supported his outright acquittal, not a conviction for DUI. Jay’s defense was that he was unconscious when his pickup drove through the grass median, into oncoming traffic, and the wrong way on I-90 for one-fifth of a mile. Jay testified that he drank a few beers prior to the crash, but that he did not feel impaired and, consistent with this testimony, Jay’s counsel extensively argued during closing arguments that Jay was unconscious and not under the influence of alcohol. Thus, Jay’s theory was that he had “lost consciousness” for a reason other than alcohol consumption. Because Jay’s “theory, if believed, would require an acquittal,” a lesser-included instruction for DUI was “not supported by the evidence[.]” Burkhart, ¶ 39; German, ¶ 11; Martinez, ¶ 10, Schmalz, ¶ 23; Howell, ¶ 34; Grindheim, ¶ 41. The District Court did not abuse its discretion by refusing to give the lesser-included instruction to the jury. 24 ¶45 Did the District Court err when it ordered Jay to pay restitution to the State and the victims and their family members? ¶46 The District Court ordered Jay to pay restitution to the State in the amount of $600 for the costs related to its pretrial interview of Dr. Peterson. The court also ordered that Jay was “financially responsible” for the cost of “mental health treatment for the victims and their family members[,]” but did not impose a specific amount of this obligation. Jay argues that the $600 award to the State was improper because the State was not the victim of the crime, and the obligation to pay for the victims’ mental health treatment was improper because the total amount of restitution was not specified. ¶47 The State concedes that the District Court’s open-ended restitution award for mental health treatment was error. Section 46-18-244(1) requires the sentencing court to “specify the total amount of restitution that the offender shall pay.” ¶48 We conclude that the District Court’s restitution award of $600 to the State for costs incurred in interviewing Dr. Peterson was also error. Section 46-18-201(5) provides: [I]f a person has been found guilty of an offense upon a verdict of guilty . . . and the sentencing judge finds that a victim, as defined in 46-18-243, has sustained a pecuniary loss, the sentencing judge shall, as part of the sentence, require payment of full restitution to the victim[.] Section 46-18-243(2)(a) defines “victim” to include a governmental entity only when that entity suffers property damage in the commission of a crime, or incurs costs in the investigation or apprehension of an escaped person. Here, the State did not suffer property damage or incur costs apprehending Jay, but rather incurred expenses by 25 interviewing a potential defense witness. The State was not a “victim” entitled to restitution. State v. Setter, 2001 MT 101, ¶ 21, 305 Mont. 253, 25 P.3d 893 (“restitution is statutorily limited to the ‘victim’ of the crime for which a defendant is convicted”) (overruled on other grounds in State v. Herman, 2008 MT 187, ¶ 12 n. 1, 343 Mont. 494, 188 P.3d 978); State v. Horton, 2001 MT 100, ¶ 25, 305 Mont. 242, 25 P.3d 886 (same). ¶49 Accordingly, we vacate the $600 restitution award to the State. We reverse the open-ended restitution award for the victims’ mental health treatment and remand this matter to the District Court for entry of an amended judgment specifying the amount for such treatment, in accordance with the statute. ¶50 Affirmed in part, reversed in part, and remanded for entry of an amended judgment consistent herewith. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT | March 26, 2013 |
300e5bd3-b440-462c-9c25-318cdd18e38c | Newman v. Scottsdale Ins. et al. | 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. ¶33 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. ¶34 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. ¶35 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. ¶36 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. ¶37 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.” ¶38 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. ¶39 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. ¶40 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). ¶41 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. ¶42 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. ¶43 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. ¶44 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 ¶45 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. ¶46 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. ¶47 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. ¶48 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 ¶49 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. ¶50 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.” ¶51 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. ¶52 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. ¶53 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 ¶54 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. ¶55 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. ¶56 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. ¶57 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. ¶58 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” ¶59 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.” ¶60 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 ¶61 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 ¶62 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 ¶63 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. ¶64 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. ¶65 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 ¶66 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. ¶67 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. ¶68 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. ¶69 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. ¶70 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. ¶71 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. ¶72 Did the District Court err in calculating and awarding attorney’s fees to Newman? ¶73 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. ¶74 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. ¶75 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. ¶76 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. ¶77 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. ¶78 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. ¶79 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. ¶80 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). ¶81 Did the District Court err in finding that Montana law controls? ¶82 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 ¶83 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. ¶84 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 ¶85 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. ¶86 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. ¶87 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. ¶88 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 |
1da678f8-13c9-4de2-89aa-7fe0d1fce5dd | O Connell v. Gray | 2013 MT 196N | DA 13-0097 | Montana | Montana Supreme Court | DA 13-0097 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 196N VALERY A. O’CONNELL d/b/a CELLULAR SENSE, LLC (dissolved), and DANIEL K. O’CONNELL, Petitioners and Appellants, v. KRIS GRAY, Respondent and Appellee. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADV-2011-762 Honorable Dorothy McCarter, Presiding Judge COUNSEL OF RECORD: For Appellants: Valery O’Connell (Self-Represented), Daniel K. O’Connell (Self-Represented), Emigrant, Montana For Appellee: Kris Gray (Self-Represented), Livingston, Montana Submitted on Briefs: June 12, 2013 Decided: July 16, 2013 Filed: __________________________________________ Clerk July 16 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 The O’Connells previously operated a cell-phone business in Livingston, Montana, called Cellular Sense. In September 2009, Kris Gray was hired to work for the company. Gray claims she was terminated on February 11, 2010. On February 19, 2010, Gray filed a wrongful termination claim with the Department of Labor and Industry (DOLI) against Cellular Sense seeking unpaid wages. DOLI assigned compliance specialist Amy Smith to investigate Gray’s claim. Smith sent a letter to O’Connells at two separate addresses requesting a written response to Gray’s claim by a date specific but Smith did not receive a response. ¶3 On March 11, 2010, Smith issued her determination that Gray was entitled to wages due. The determination was mailed to O’Connells at the same addresses to which Smith had mailed the request for a written response. O’Connells confirmed that one of the addresses was their correct mailing address and they requested a redetermination of the claim, asserting that Gray was an independent contractor rather than an employee. In July 2010, after further investigation, the Independent Contractor Central Unit (ICCU) of DOLI concluded that Gray was an employee, and Smith subsequently issued a 3 redetermination finding wages due to Gray. O’Connells did not appeal the redetermination. ¶4 In October 2010, Smith issued an Order on Default, which set forth explicit appeal rights, and mailed the Order to O’Connells. After receiving no petitions for judicial review, DOLI applied to the First Judicial District Court and received a Final Order of Judgment for Gray, which was then mailed to O’Connells. DOLI filed a satisfaction of judgment on January 27, 2011. ¶5 In May 2011, O’Connells filed a civil petition and claim for redress with the Sixth Judicial District Court, Park County, Cause No. DV 11-96. In July 2011, the Sixth Judicial District Court dismissed O’Connells’ petition as untimely. ¶6 In August 2011, O’Connells filed a confusing document denominated “Civil Petition/Claim for Relief Review, & Redress” with the First Judicial District Court, Lewis & Clark County, naming DOLI, “including ICCC [sic], Wage & Hour Unit, Unemployment Insurance Division, Accounts Receivable Unit including their agents Erin Barton, Amy Smith, Robert E. Bailey and other unknown agents, and Kris Gray” as defendants. DOLI, interpreting O’Connells’ petition as a motion to set aside the judgment, filed a response in opposition, arguing that O’Connells had notice of the proceedings from the early stages but did not seek timely redress or appeal, and that their motion to set aside judgment was therefore untimely and should be denied. The District Court, confused by O’Connells’ petition, requested “a clear, concise statement of allegations setting forth claims for relief that are independent of the wage claim issues resulting in the default judgment[].” On September 16, 2011, O’Connells filed an equally 4 confusing and nearly identical petition to their original petition. DOLI promptly moved for a dismissal of the action under M. R. Civ. P. 12(b)(6) and 41(b). O’Connells then moved to remove DOLI and its agents from their petition. The District Court granted O’Connells’ motion and dismissed DOLI and its agents from the case. This left Kris Gray as the only remaining defendant. ¶7 The case lay dormant for approximately one year, and on September 17, 2012, O’Connells moved to have a default entered against Gray for Gray’s failure to respond to O’Connells’ September 16, 2011 re-submitted petition. The District Court concluded that the issues raised by O’Connells in their re-submitted petition were the same issues as those that were barred pursuant to the Sixth Judicial District Court order that dismissed the action as untimely. The First Judicial District Court, noting that “there are no remaining viable causes of action against Defendant Gray,” denied O’Connells’ motion for default and dismissed the action with prejudice. O’Connells appeal and we affirm. ¶8 The issues O’Connells raised before the First Judicial District Court appear to be the same issues raised before and resolved by the Sixth Judicial District Court and therefore are barred by res judicata. We review a district court’s application of res judicata for correctness. Hartsoe v. Christopher, 2013 MT 57, ¶ 9, 369 Mont. 223, 296 P.3d 1186. The doctrine of res judicata bars relitigation of a claim that a party has already had the opportunity to litigate. Hartsoe, ¶ 14. O’Connells litigated their claim involving Gray in the Sixth Judicial District Court. They are not entitled to litigate it again in the First Judicial District Court. 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. 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/ BRIAN MORRIS /S/ JIM RICE /S/ BETH BAKER /S/ LAURIE McKINNON | July 16, 2013 |
63c6cec8-f720-4577-8d10-25ec0db8f335 | Molder v. State | 2013 MT 85N | DA 11-0706 | Montana | Montana Supreme Court | DA 11-0706 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 85N KIRK R. MOLDER, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. BDV 08-500 Honorable Julie Macek, Presiding Judge COUNSEL OF RECORD: For Appellant: Kirk R. Molder, Sr. (self-represented), Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant Attorney General, Helena, Montana John Parker, Cascade County Attorney; Kory Larsen, Deputy County Attorney, Great Falls, Montana Submitted on Briefs: February 13, 2013 Decided: April 3, 2013 Filed: __________________________________________ Clerk April 3 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Kirk R. Molder (Molder) appeals from an Order from the Montana Eighth Judicial District Court, Cascade County, that denied his Petition for Postconviction Relief. The issue on appeal is whether the District Court properly concluded that Molder had failed to prove that he had received ineffective assistance of counsel and was, therefore, not entitled to relief. We affirm. ¶3 On November 10, 2004, a jury convicted Molder of five counts of Sexual Intercourse Without Consent and four counts of Incest. For each count, the District Court sentenced Molder to 75 years in the Montana State Prison with the terms to run concurrently. Molder appealed, arguing that the trial court should have continued the trial because counsel was not prepared and because he and his attorney disagreed on the trial strategy. This Court affirmed his convictions in February of 2007. State v. Molder, 2007 MT 41, 336 Mont. 91, 152 P.3d 722. ¶4 Molder filed a Petition for Postconviction Relief on April 14, 2008. The District Court appointed counsel to assist Molder with his petition. On July 29, 2010, Molder filed an Amended Petition for Postconviction Relief in which he claimed that he had received ineffective assistance from his trial counsel for a litany of reasons. Molder also argued that, 3 should the District Court determine that any of his claims were record based and thus procedurally barred, then his appellate counsel was ineffective for failing to raise those issues on direct appeal. ¶5 Specifically, Molder argued that his trial counsel, who has since died, was ineffective because he: 1) refused to offer into evidence certain medical examination reports; 2) refused to offer evidence and elicit testimony regarding one of the victim’s prior sexual conduct to explain the victim’s genital injuries; 3) failed to elicit testimony regarding the victims’ prior sexual conduct to establish a motive for them to fabricate the allegations; 4) failed to challenge his Incest charges with a prior court order from a Youth in Need of Care proceeding that established that he had no legal relationship to the victims that would entitle him to participate in that proceeding; 5) failed to seek a specific unanimity instruction; 6) failed to object to the prosecutor’s definition of “reasonable doubt” during voir dire; 7) failed to challenge certain prospective jurors for cause; 8) failed to object to a detective’s testimony that he thought the victims had been coached to deny abuse; and 9) failed to challenge the State’s rebuttal child sexual abuse expert. In addition to claiming that he had been prejudiced by each supposed error, Molder also claimed that he had been prejudiced by his trial counsel’s cumulative errors. ¶6 The District Court held an evidentiary hearing on October 5, 2011. At the conclusion of the hearing, the District Court denied a number of Molder’s claims. The court determined at the hearing that the question of whether Molder could be charged with Incest was not the same question as whether he had parental rights that would allow him to participate in the victims’ Youth in Need of Care proceedings. The court also concluded that Molder’s 4 counsel had no reason to object to the prosecution’s comments during voir dire regarding what a “reasonable doubt” means, and there was no basis for Molder’s complaint about trial counsel’s performance while selecting the jury. Lastly, the court denied Molder’s claim that his trial counsel provided ineffective assistance by failing to challenge the detective’s testimony because his counsel did, in fact, object to the testimony. The District Court took the rest of Molder’s claims under advisement. ¶7 The District Court denied the remaining claims in a detailed written order issued on January 18, 2012. The court concluded that it was sound trial strategy for Molder’s counsel to refuse to offer into evidence the medical records that Molder wanted admitted. Those records had little exculpatory value and even Molder admitted that they would have been problematic if put in front of the jury. Instead, Molder’s counsel addressed the records while questioning witnesses and during closing arguments. ¶8 The court also determined that Molder’s counsel did not err by refusing to offer evidence of the victims’ prior sexual conduct to impeach the victims and to offer an alternative explanation for one of the victim’s injuries. The court held, and we agree, that the evidence that Molder wanted admitted was inadmissible under § 45-5-511(2), MCA, Montana’s Rape Shield Statute. ¶9 The court also concluded that trial counsel’s performance was not deficient for failing to request a unanimity instruction because, “there was in fact no genuine possibility whatsoever that different jurors would conclude that Molder committed disparate illegal acts subsumed under the single count [without a unanimity instruction].” Lastly, the court determined that Molder’s trial counsel’s performance was not deficient for failing to 5 challenge the State’s rebuttal child sexual abuse expert because counsel did, in fact, register a number of objections to the expert’s testimony. Counsel specifically advised the jury that he had made a strategic tactical decision not to cross-examine the expert and instead address the testimony during his closing argument. The District Court found that decision to be objectively reasonable. ¶10 Molder appeals the denial of each of his claims. A defendant claiming ineffective assistance of counsel must prove that counsel’s representation was deficient and that counsel’s deficient performance prejudiced the defense. State v. Whitlow, 2001 MT 208, ¶ 17, 306 Mont. 339, 33 P.3d 877; Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052. Counsel’s performance was deficient if it fell below “an objective standard of reasonableness.” State v. Roedel, 2007 MT 291, ¶ 42, 339 Mont. 489, 171 P.3d 694. The defendant must overcome a strong presumption that counsel’s performance falls within the wide range of reasonable professional assistance and was based on sound trial strategy. Whitlow, ¶ 17. The defendant was prejudiced by counsel’s performance if, but for the unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. Price v. State, 2007 MT 307, ¶ 12, 340 Mont. 109, 172 P.3d 1236; Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. ¶11 After reviewing the record and the District Court’s Orders, we conclude that the District Court correctly determined that all of Molder’s claims lacked merit. Molder has failed to establish that his trial counsel’s performance was deficient or that he suffered prejudice as a result of counsel’s performance. Further, given that he cannot establish that counsel was deficient at trial, Molder cannot meet his burden of establishing that his counsel 6 on appeal was deficient for failing to raise these same issues. The gravamen of the issues raised in Molder’s Petition for Postconviction Relief was the basis for the issues that he raised on direct appeal in 2005. The Court held specifically that, “[w]e cannot determine, on the record presented, that counsel’s strategy was unreasonable.” Molder, ¶ 26. ¶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, which provides for memorandum opinions. The issues are clearly controlled by settled Montana law, and we find no reason in fact or law to disturb the District Court’s order. ¶13 For the reasons stated above and for the reasons set forth by the District Court, the denial of Molder’s Petition for Postconviction Relief is affirmed. /S/ MIKE McGRATH We concur: /S/ BETH BAKER /S/ PATRICIA COTTER /S/ BRIAN MORRIS /S/ JIM RICE | April 3, 2013 |
69499a20-51c2-48e1-8363-69522d2a20f6 | State v. Robins | 2013 MT 71 | DA 12-0096 | Montana | Montana Supreme Court | DA 12-0096 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 71 STATE OF MONTANA, Plaintiff and Appellee, v. CHRISTOPHER STEVEN ROBINS, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADC 10-450 Honorable Thomas M. McKittrick, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade M. Zolynski, Chief Appellate Defender; Garrett R. Norcott, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Katie Schulz, Assistant Attorney General, Helena, Montana John Parker, Cascade County Attorney; Josh Racki, Deputy County Attorney, Great Falls, Montana Submitted on Briefs: November 28, 2012 Decided: March 19, 2013 Filed: __________________________________________ Clerk March 20 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Christopher Steven Robins (Robins) appeals from his convictions of Sexual Assault, Incest, and Attempted Sexual Intercourse Without Consent, all felonies, in the Eighth Judicial District Court, Cascade County. We affirm. ¶2 The issue we address on appeal is whether the District Court abused its discretion when it allowed the State to present expert testimony regarding child sexual abuse victims. PROCEDURAL AND FACTUAL BACKGROUND ¶3 Robins was convicted of molesting his step-daughter, C.G., between the spring and fall of 2010. C.G. was thirteen years old during the abuse and fourteen at the time of trial. According to C.G., Robins first abused her during a family trip to Georgia in the spring of 2010. The abuse continued through October 29, 2010. At trial, C.G. recounted a number of incidents when Robins molested her. C.G. testified that Robins touched her breasts and vagina on a number of occasions. He also performed oral sex on her multiple times and unsuccessfully attempted to penetrate her vagina with his fingers, a vibrator, and his penis. ¶4 C.G. testified that, at first, it made her feel loved when Robins told her that she was beautiful and kissed her “how a mother should kiss a father.” She also testified that Robins started to treat her better than her siblings after the abuse began. He gave her daily rides to school and bought her breakfast at McDonald’s, took her to the shooting range without her siblings, and bought her gifts, including a new hunting bow and a motorcycle. ¶5 In the fall of 2010, C.G. took an eighth-grade sex education class. The sex education class made C.G. realize what Robins had been doing to her was wrong. C.G. wrote a note to Robins on October 29, 2010. She put the note under Robins’s pillow inside the pillowcase 3 because she did not want anyone else to see it. The note mentioned the abuse and expressed C.G.’s frustration with Robins. C.G.’s mother found the note only because she took a nap on Robins’s pillow. Robins was charged with Incest and two counts of Attempted Sexual Intercourse Without Consent on December 3, 2010. One charge of Sexual Assault was added on May 3, 2011. ¶6 The State filed a Notice of Expert (NOE) on February 2, 2011, to identify Wendy Dutton (Dutton) as an expert that would testify at trial. The NOE specified that Dutton, a child sex abuse expert, would testify to “the various aspects of child sexual abuse including victimology, grooming, disclosure issues, interviewing techniques, and credibility of child sex victims.” Robins filed a motion in limine on May 13, 2011, to preclude Dutton from testifying at trial. Robins argued that Dutton should not be allowed to testify because the danger of unfair prejudice would substantially outweigh her testimony’s probative value. The District Court heard oral arguments on the motion on May 16, 2011, and took the matter under advisement for the time being. The jury was selected and given preliminary instructions later the same day. During trial, the court allowed Dutton to testify but gave the jury a cautionary instruction that her testimony could not be used as substantive evidence or as her opinion that Robins had committed the alleged crimes. ¶7 Dutton testified about the process of victimization, how victims disclose abuse, children’s typical reactions to abuse, the most common situations when children make false allegations, and the proper protocol for conducting a forensic interview with a child. Dutton did not discuss the specifics of Robins’s case and did not offer an opinion of whether C.G. had been abused. 4 ¶8 The jury convicted Robins of all four charges. On July 14, 2011, however, the District Court dismissed one count of Attempted Sexual Intercourse Without Consent because the State had failed to establish jurisdiction for that charge. The District Court sentenced Robins to thirty years in the Montana State Prison for each of the three standing convictions, all to run consecutively. Robins timely appealed his final judgment. STANDARD OF REVIEW ¶9 Whether an expert is allowed to testify at trial is an evidentiary ruling. Doyle v. Clark, 2011 MT 117, ¶ 22, 360 Mont. 450, 254 P.3d 570. We review a district court’s evidentiary rulings for an abuse of discretion. State v. Hardman, 2012 MT 70, ¶ 8, 364 Mont. 361, 276 P.3d 839. 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. Hardman, ¶ 8. DISCUSSION ¶10 Robins argues that he should be given a new trial because Dutton should not have been allowed to testify. He contends that Dutton’s testimony improperly invaded the jury’s obligation to assess C.G.’s credibility. ¶11 It is solely the jury’s duty to determine the credibility of witnesses. State v. Harris, 247 Mont. 405, 409, 808 P.2d 453, 455 (1991). Thus, an expert witness generally cannot comment on the credibility of the alleged victim. Harris, 247 Mont. at 409-10, 808 P.2d at 455. A narrow exception allows an expert to comment directly on a victim’s credibility in child sexual abuse cases in limited situations. Harris, 247 Mont. at 410, 808 P.2d at 455. The exception applies only when the accuser is a young child, see State v. Hensley, 250 5 Mont. 478, 482, 821 P.2d 1029, 1032 (1991), testifies at trial, see State v. J.C.E., 235 Mont. 264, 269, 767 P.2d 309, 313 (1988) (overruled in part on other grounds), his or her credibility is brought into question, see Harris, 247 Mont. at 410, 808 P.2d at 455-56, and the expert is properly qualified as such in the field of child sexual abuse, see State v. Scheffelman, 250 Mont. 334, 342, 820 P.2d 1293, 1298 (1991). Even if the abuse occurred when the accuser was young, the exception does not apply if the accuser is not a young child at the time of the trial. Hensley, 250 Mont. at 482, 821 P.2d at 1032 (exception did not apply when the accuser was nearly seventeen at the time of trial even though the abuse allegedly started when she was seven). ¶12 To be clear, this exception allows an expert to directly comment on the victim’s credibility. State v. Scott, 257 Mont. 454, 465, 850 P.2d 286, 292 (1993); State v. French, 233 Mont. 364, 367-68, 760 P.2d 86, 88-89 (1988). In very few other situations, if any, do we permit experts to directly testify that they believe that a witness has told the truth. Expert testimony that only indirectly bears on a child sexual abuse victim’s credibility does not have to satisfy the exception’s requirements to be admissible. See State v. Morgan, 1998 MT 268, 291 Mont. 347, 968 P.2d 1120. The exception is implicated only when the expert directly comments on the victim’s credibility. ¶13 Our decision in Morgan is particularly instructive in that regard. In Morgan, a qualified expert testified about patterns of child sexual abuse and factors to consider in the evaluation of a child’s sexual abuse report. The expert did not investigate the facts of the case and did not offer an opinion concerning the victim’s credibility or any other specific aspect of the case. Morgan, ¶ 26. In holding that the expert’s testimony was admissible, we 6 did not apply the exception that permits direct expert testimony on credibility. Rather, we only considered whether the expert’s testimony was proper under M. R. Evid. 702. ¶14 As in Morgan, we do not consider whether Dutton’s testimony was proper pursuant to the exception that allows direct comment on credibility because she did not comment directly on the victim’s credibility. Although Robins suggests otherwise, the fact that Dutton’s testimony was consistent with the victim’s allegations does not mean that Dutton vouched for the victim or commented on her credibility. Like the expert in Morgan, Dutton limited her testimony and only testified about general child sexual abuse patterns. She did not review any of the victim’s statements before testifying. She did not offer an opinion of whether the victim was credible. She did not offer an opinion about what happened in this case, and specifically did not offer an opinion as to whether the victim was sexually assaulted. Dutton did not vouch for C.G. or otherwise comment on C.G.’s credibility. ¶15 Robins argues that we must nevertheless consider the propriety of Dutton’s testimony under the exception because the State indicated in its NOE that Dutton would testify to the credibility of child sex victims, among other things, and because the State relied, in part, on the exception to defeat Robins’s motion in limine. The fact that the State indicated that Dutton may testify to the credibility of child sex victims and cited legal authority saying that she could do so does not mean that we must apply law that is not otherwise implicated. We review Dutton’s testimony at trial and consider whether that testimony was proper. Because Dutton did not directly comment on the victim’s credibility, we only consider whether her testimony was admissible under M. R. Evid. 702 and do not apply the exception discussed above. 7 ¶16 Generally, an expert may testify about scientific, technical, or other specialized knowledge if it will help the jury understand the evidence or determine a fact in issue. M. R. Evid. 702. We have consistently upheld the use of experts to explain the complexities of child sexual abuse. Morgan, ¶ 29. Child sexual abuse is a topic that many or most jurors have no common experience with. Scott, 257 Mont. at 456, 850 P.2d at 292. This is particularly so when the alleged victim and perpetrator are family members. State v. Geyman, 224 Mont. 194, 198, 729 P.2d 475, 478 (1986) (citing Minnesota v. Myers, 359 N.W.2d 604, 609-10 (1984)). Child sexual abuse victims often respond to the abuse with seemingly puzzling and contradictory behavior. Scott, 257 Mont. at 465, 850 P.2d at 292. The expert’s testimony educates and enlightens the jury. Scott, 257 Mont. at 465, 850 P.2d at 292-93. The jury can then make a more informed decision when it assesses the victim’s credibility. Scott, 257 Mont. at 465, 850 P.2d at 292-93. ¶17 Dutton’s testimony qualifies under M. R. Evid. 702 as educational testimony on a topic outside of most jurors’ common experience. Dutton’s testimony was intended to help the jury comprehend some of C.G.’s behavior that might have otherwise seemed inconsistent with abuse. For example, Dutton explained that it was not unusual for sexual abuse victims to not report the abuse, especially when the victim has a close relationship with the perpetrator, or for the victim to act inappropriately when discussing the abuse. Dutton also may have helped the jury see Robins’s actions as a pattern of abuse. Dutton’s testimony did not impinge upon the jury’s obligation to ultimately decide C.G.’s credibility; it merely allowed the jurors to make an informed decision. 8 ¶18 Moreover, the District Court alleviated any concern of unfair prejudice by giving the jury a cautionary instruction before Dutton testified. The judge told the jury that it should consider Dutton’s testimony only for the limited purpose of deciding whether the victim’s acts and words after the alleged crime were consistent with those of other sexually abused children. The court specifically instructed the jury that it could not consider Dutton’s testimony as her opinion that the victim was telling the truth. Dutton’s testimony presented no danger that Robins would suffer unfair prejudice. ¶19 For the reasons stated above, we affirm Robins’s convictions. The District Court acted well within its discretion when it allowed Dutton to testify at trial. /S/ MIKE McGRATH We concur: /S/ BETH BAKER /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS | March 20, 2013 |
dff1f038-0e0e-4632-8ca6-2edc8b6370ce | Baxter Homeowners Ass'n, Inc. v. Angel | 2013 MT 83 | DA 12-0301 | Montana | Montana Supreme Court | DA 12-0301 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 83 BAXTER HOMEOWNERS ASSOCIATION, INC., Petitioners, Appellees and Cross-Appellants, v. GEOFFREY ANGEL, Respondent and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause Nos. DV 11-133B and DV 11-440CX Honorable Mike Salvagni, Presiding Judge COUNSEL OF RECORD: For Appellant: Geoffrey C. Angel, Angel Law Firm; Bozeman, Montana For Appellees: Brian K. Gallik; Goetz, Gallik & Baldwin, P.C.; Bozeman, Montana Arthur V. Wittich, Margot Barg Ogburn; Wittich Law Firm, P.C.; Bozeman, Montana Timothy Little, Department of Labor and Industry; Helena, Montana Submitted on Briefs: February 27, 2013 Decided: April 2, 2013 Filed: __________________________________________ Clerk April 2 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 This matter comes before the Court on cross-appeals of the Eighteenth Judicial District Court’s orders reversing the Human Rights Commission’s finding of discrimination and award of $6,000 damages to Geoffrey Angel and denying both parties’ requests for attorneys’ fees. We affirm the District Court’s orders. The dispositive issue on appeal is whether Angel possessed proper standing to file a complaint of discrimination on behalf of his unidentified and potential clients. We hold that he did not. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Geoffrey Angel, a Bozeman, Montana, attorney, rented second-floor office space in the Baxter Hotel in downtown Bozeman. The first floor, the mezzanine level, and the second floor of the former hotel are rented for commercial purposes to businesses open to the public. The top four floors house residential condominium units. The building contains a single elevator and a stairway that permit access to all floors. Angel also owned one of the upper-floor residential units and, as such, was a member of the Baxter Homeowners Association (BHA). The BHA’s Declarations, as amended in 1997, require that the elevator be locked at all times “in order to secure the safety of the occupants and their possessions.” ¶3 In 2007, the BHA board of directors began receiving complaints about the hotel’s elevator not being locked as required by the Declarations. In response to the complaints, the board voted in January 2008 to restrict access to the elevator by only permitting unit 3 owners and their tenants to access the elevator via swipe key cards. Members of the public could access the elevator only when accompanied by someone in possession of a swipe key card. The stairwell remained unlocked during business hours. ¶4 Angel complained to the Baxter’s property manager that locking the elevator was inappropriate because it denied persons with disabilities access to his second-floor law office. Angel’s complaint was brought to the board’s attention and the board directed its attorney to look into whether locking the elevator was discriminatory. Angel filed a complaint with the Montana Human Rights Bureau on March 24, 2008. At its April 2008 meeting, the board discussed options for resolving the elevator dispute and began to explore alternatives. The issue was discussed during each of the board’s monthly meetings for the next several months until, in the fall of 2008, the board voted to install a time clock system that would keep the elevator unlocked during business hours and locked at night. The installation was completed in January 2009; since then, the elevator has remained unlocked during normal business hours. Angel moved his law office out of the building in July 2008, relocating to a home he owned in Bozeman where he would not have to pay rent. That home did not have a handicapped-accessible entrance. ¶5 In the meantime, Angel’s public accommodations discrimination complaint was investigated by the Montana Human Rights Bureau, which found reasonable cause to proceed with the complaint. BHA filed a motion for summary judgment in the administrative proceedings on the ground that Angel lacked standing to bring the complaint. As summarized by the Hearing Officer, BHA claimed that Angel: 4 cannot show that he is associated with disabled persons, is not an affected person within the meaning of the Montana Human Rights Statute, cannot prove that he has any damages, cannot prove that he moved out of the Baxter Hotel because the elevator was locked and allegedly denying disabled clients access to his office, and cannot seek any affirmative relief because that relief has already been completed. ¶6 The Hearing Officer issued an order on April 6, 2009, denying BHA’s motion for summary judgment, but foreclosing Angel’s ability to recover damages for lost profits, should he prevail on his claim, because he had failed or refused to identify any client or prospective client who had been denied access to his office because of the locked elevator. The Hearing Officer concluded summarily that because Angel is a licensed attorney who intends to practice discrimination law, “and because he was a tenant at the Baxter Hotel and could engage in discrimination law practice, he can fairly state within the confines of his complaint that he had a specific legal interest to be protected by the Human Rights Act.” ¶7 The matter proceeded to a contested case hearing in April 2009, following which the Hearing Officer concluded that Angel had not been discriminated against because installation of the automated time clock was a reasonable accommodation for disabled persons and the delay in implementation of the accommodation was not so long as to constitute a failure to accommodate. ¶8 Angel appealed the Hearing Officer’s determination. BHA did not cross-appeal the denial of its motion for summary judgment. The Human Rights Commission rejected the Hearing Officer’s proposed decision, concluding that the Hearing Officer applied an incorrect legal standard. The Commission ruled that, once Angel met his burden of 5 showing that he had requested a modification and that the modification was reasonable, BHA had the burden to prove that the requested modification would fundamentally alter the nature of the public accommodation. ¶9 On remand, the Hearing Officer concluded that BHA violated § 49-2-304(1)(a), MCA, when it failed to provide a reasonable alteration to the elevator to permit disabled persons to have unfettered access to the second floor business offices in the Baxter Hotel during business hours, and that such a modification would not have fundamentally altered the nature of the public accommodation that BHA provided. The Hearing Officer further concluded that BHA’s discrimination did not cause Angel to vacate his office space and, therefore, he was not entitled to damages for relocating his office. The Hearing Officer did award Angel $6,000 in damages for the assessments he paid as a member of BHA to cover attorneys’ fees and expenses in defending Angel’s discrimination claim, together with interest in the amount of $815.08. Both Angel and BHA appealed the Hearing Officer’s decision to the Commission; BHA did not raise the standing issue argued in its earlier summary judgment motion. In an order dated January 31, 2011, the Commission affirmed the Hearing Officer’s decision. ¶10 Both parties petitioned for judicial review. The Department of Labor and Industry reserved its right to intervene if issues pertaining to the Department arose, but did not intervene before the District Court. BHA argued before the District Court that Angel lacked standing to pursue his claim. The District Court held a hearing on both petitions on August 18, 2011. It ruled on both petitions on November 3, 2011, reversing the 6 Hearing Officer’s and Commission’s finding of discrimination and award of damages to Angel and denying Angel’s petition for judicial review and request for attorneys’ fees. In a separate order entered April 6, 2012, the court denied BHA’s motion for reasonable attorneys’ fees on the ground that Angel’s complaint of discrimination was not “frivolous, unreasonable, or groundless” and that Angel did not “continue to litigate after it clearly became so.” See McCann v. Trustees, Dodson Sch. Dist., 249 Mont. 362, 364, 816 P.2d 435, 437 (1991). Both parties appeal. STANDARD OF REVIEW ¶11 On appeal of a district court’s ruling on judicial review of a contested case proceeding under the Montana Administrative Procedure Act, we review findings of fact for clear error and conclusions of law for correctness. Briese v. Mont. Pub. Employees Ret. Bd., 2012 MT 192, ¶ 11, 366 Mont. 148, 285 P.3d 550. Issues of justiciability, such as standing, are questions of law, for which our review is de novo. Reichert v. State, 2012 MT 111, ¶ 20, 365 Mont. 92, 278 P.3d 455. The District Court’s decision to grant or deny an award of attorneys’ fees is reviewed for abuse of discretion. Wohl v. City of Missoula, 2013 MT 46, ¶ 29, 369 Mont. 46, ___ P.3d ___. DISCUSSION ¶12 Angel contends that the District Court erred in reversing the Commission’s determination of discrimination and in reversing the award of damages. Angel also claims that he obtained affirmative relief in this action and is the prevailing party entitled to an award of attorneys’ fees, even though he represented himself throughout the 7 proceedings. BHA contends that Angel lacks standing to claim discrimination because he was not an aggrieved party under the statute and there was no evidence of discrimination against any individual. In the alternative, BHA argues that the Hearing Officer applied the correct legal standard in the first hearing and the Commission erred by requiring the Human Rights Bureau to apply the “fundamentally alter” test instead of the “reasonable accommodations” test. ¶13 The Department of Labor has filed an Appellee’s Brief, arguing that BHA failed to exhaust its administrative remedies on the issue of standing because, though briefing its arguments to the Commission on two separate appearances, it never raised Angel’s lack of standing through a cross-appeal or otherwise. The Department additionally argues, along with Angel, that the District Court erred in reversing the Commission’s finding of discrimination because it incorrectly interpreted public accommodations analysis by incorporating the “reasonable accommodation” standard unique to the employment discrimination context instead of looking to the “reasonable modification” standard used in public accommodations cases.1 ¶14 As a preliminary matter, the parties dispute the status of Angel’s standing as an “aggrieved party” as defined by § 49-2-101(2), MCA, and we find this issue to be determinative. The question of standing is an exception to the general rule that we will not address issues not properly preserved for appeal. Armstrong v. State, 1999 MT 261, 1 To the extent that the Department’s arguments are presented for the first time in this appeal, we decline to consider them. See Gary & Leo’s Fresh Foods, Inc. v. State, 2012 MT 219, ¶ 16, 366 Mont. 313, 286 P.3d 1218. 8 ¶ 4, 296 Mont. 361, 989 P.2d 364. Parties cannot waive objections to standing. Jones v. Mont. Univ. Sys., 2007 MT 82, ¶ 48, 337 Mont. 1, 155 P.3d 1247. “Standing . . . ‘is a threshold requirement in every case[,] which we must address and decide sua sponte even if it is not raised by a litigant.’” In re K.H., 2012 MT 175, ¶ 23, 366 Mont. 18, 285 P.3d 474 (quoting Dick Anderson Constr., Inc. v. Monroe Constr. Co., LLC, 2009 MT 416, ¶ 46, 353 Mont. 534, 221 P.3d 675). ¶15 In relation to the courts, the doctrine of standing evaluates whether a party is entitled to have a court decide the dispute, and is determined as of the time the action is brought. Heffernan v. Missoula City Council, 2011 MT 91, ¶ 30, 360 Mont. 207, 255 P.3d 80. One of the recognized prudential limits on standing is that “the plaintiff generally must assert her own legal rights and interests.” Heffernan, ¶ 32. The Supreme Court has allowed limited exceptions to this rule, recognizing that a litigant may bring an action on behalf of third parties, “provided three important criteria are satisfied”: The litigant must have suffered an “injury in fact,” thus giving him or her a “sufficiently concrete interest” in the outcome of the issue in dispute . . . ; the litigant must have a close relation to the third party . . . ; and there must exist some hindrance to the third party’s ability to protect his or her own interests. Powers v. Ohio, 499 U.S. 400, 410-11, 111 S. Ct. 1364, 1370-71 (1991) (citations omitted). The Court declined to invoke this exception in Kowalski v. Tesmer, 543 U.S. 125, 125 S. Ct. 564 (2004). Though recognizing that under certain circumstances an attorney-client relationship may be sufficient to confer third-party standing, the Court denied standing to attorneys who lacked a sufficiently “close relationship” with as-yet 9 unknown clients allegedly affected by Michigan’s statutory procedure for appointing appellate counsel for indigent defendants who pled guilty. Kowalski, 543 U.S. at 130-31, 125 S. Ct. at 568. Even though standing has been conferred “to litigate the rights of third parties when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights,” the litigant still must establish “a close relationship” with the third party, which the Court found could not exist with respect to hypothetical clients. Kowalski, 543 U.S. at 131, 125 S. Ct. at 568. ¶16 The question in this case is Angel’s standing before the Human Rights Bureau and the Human Rights Commission. We have explained that a litigant’s standing before an administrative agency depends on the language of the statute and regulations which confer standing before that agency.2 Williamson v. Mont. Pub. Serv. Commn., 2012 MT 32, ¶ 30, 364 Mont. 128, 272 P.3d 71. Angel’s complaint of discrimination was filed under § 49-2-304, MCA, which makes it an unlawful discriminatory practice for an owner of a public accommodation to deny a physically disabled person any of the accommodation’s goods, services, or facilities. The Montana Human Rights Act allows a person claiming to be aggrieved by a discriminatory practice to bring suit under the Act. Section 49-2-501(1), MCA. An “aggrieved party” means someone “who can demonstrate a specific personal and legal interest, as distinguished from a general interest, and who has been or is likely to be specially and injuriously affected” by a 2 We have recognized that the Bureau and the Commission are administrative agencies. See e.g. CEnTech Corp. v. Sprow, 2006 MT 27, ¶¶ 12, 20, 331 Mont. 98, 128 P.3d 1036; Benjamin v. Anderson, 2005 MT 123, ¶ 30, 327 Mont. 173, 112 P.3d 1039; see also §§ 2-15-1706, 49-2-204, 49-2-504(7), 49-2-505, MCA. 10 violation of the Act. Section 49-2-101(2), MCA. Angel argues that the Human Rights Bureau’s administrative rules support his right to bring a discrimination complaint because of his association with persons with disabilities. The rules make clear that unlawful discrimination in public accommodations may occur by “denying equal access to the . . . facilities . . . of a public accommodation to a person because of the person’s relationship with or association with a member of a protected class.” Admin. R. M. 24.9.609(2)(b). ¶17 We conclude that the definition of “aggrieved party” in § 49-2-101(2), MCA— requiring the person to have “a specific personal and legal interest”—places a limitation on administrative standing before the Human Rights Bureau and the Human Rights Commission similar to the prudential limitation on judicial standing in the courts which, as explained above, generally limits the plaintiff to asserting his or her own legal rights and interests. Montana’s prohibition against discrimination in public accommodations is substantially similar to that found in Title III of the Americans With Disabilities Act. 42 U.S.C. § 12182(a). Federal law provides a right of action under Title III “to any person who is being subjected to discrimination on the basis of disability in violation of [that statute].” 42 U.S.C. § 12188(a)(1). Title III states that it is discriminatory “to exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.” 42 U.S.C. § 12182(b)(1)(E). Under these statutes, 11 “generalized references to association with disabled persons or to advocacy for a group of disabled persons are not sufficient to state a claim for associational discrimination” by which to confer third-party standing. Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216 (4th Cir. 2002).3 Since the statute permits a suit under Title III only by a person directly subjected to or targeted by the alleged discrimination, federal courts have denied standing to a litigant that “‘is not itself being subjected to . . . discrimination.’” Equal Rights Ctr. v. Abercrombie & Fitch Co., 767 F. Supp. 2d 510, 521 (D. Md. 2010) (“E.R.C.”) (quoting Clark v. McDonald’s Corp., 213 F.R.D. 198, 210 (D. N.J. 2003)). Courts thus have allowed an advocacy organization to bring claims on its own behalf (“organizational standing”), premised on alleged discrimination against disabled individual members of the organization, only where the organization meets the Kowalski standards for third-party standing. E.R.C., 767 F. Supp. 2d at 520, 523. An organizational litigant also may have “associational standing” to bring suit as a representative of its members under certain circumstances, one of which is that the organization must “include at least one member with standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association.” United Food & Commer. Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 555, 116 S. Ct. 1529, 1535 (1996); see also Heffernan, ¶¶ 42-46 (discussing and applying principles of associational standing); E.R.C., 767 F. Supp. 2d at 524-25 (concluding that The Equal 3 We have found federal precedents persuasive in interpreting the justiciability requirements of our own Constitution. Heffernan, ¶ 30 n. 3. We also have relied on federal interpretations in construing Montana’s discrimination laws. BNSF Ry. Co. v. Feit, 2012 MT 147, ¶ 9, 365 Mont. 359, 281 P.3d 225. 12 Rights Center, while it lacked organizational standing, had associational standing to litigate the alleged discrimination against its members). ¶18 These authorities are instructive in our construction of the Montana Human Rights Act and related administrative rules. Again, the statute requires “a specific personal and legal interest” in order to confer aggrieved party status. Section 49-2-101(2), MCA. Angel has not alleged a specific personal and legal interest. Rather, he asserts the interests of third parties, namely, potential clients who are disabled. The administrative rule Angel cites is not applicable here. That rule would apply only if Angel were the one allegedly subjected to discrimination because of his relationship with disabled clients— which is akin to the concept of “associational discrimination” discussed in the Freilich case. Admin. R. M. 24.9.609(2)(b). Nor does Angel have “associational standing” under the principles articulated in the E.R.C. case. Angel is not an organization for the purposes of establishing associational standing. ¶19 As noted, there are limited exceptions under which a litigant may bring an action on behalf of third parties. We conclude, however, that Angel has not come close to establishing standing to assert a third party’s claim. Like the lawyers in Kowalski, he failed to show a “close relationship” with a person who was unlawfully discriminated against by the limited access to the Baxter facilities or that such a third party faced some obstacle to asserting his or her own right. Angel protests that he was right to challenge the locking of the elevator—a challenge sustained by the Human Rights Bureau and upheld by the Commission. Nonetheless, Angel could not demonstrate that he suffered 13 an actual injury during the months in which the elevator was locked or that he possessed third-party standing to assert the rights of a person who did suffer discrimination. We hold that Angel was not an “aggrieved party” within the meaning of § 49-2-101(2), MCA, since he failed to demonstrate “a specific personal and legal interest” and that he “has been or is likely to be specially and injuriously affected” by a violation of the Act. ¶20 Finally, the award of attorneys’ fees being discretionary, and upon review of the record, we find no basis to disturb the District Court’s decision not to award fees to either party. ¶21 Affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ JIM RICE | April 2, 2013 |
b7472492-a5a8-4ee8-a2cd-802489a618d2 | State v. Wilson | 2013 MT 70 | DA 11-0699 | Montana | Montana Supreme Court | DA 11-0699 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 70 STATE OF MONTANA, Plaintiff and Appellee, v. JAMES RONALD WILSON, Defendant and Appellant. APPEAL FROM: District Court of the Sixteenth Judicial District, In and For the County of Rosebud, Cause No. DC 09-34 Honorable Gary L. Day, 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, Tammy Ann Hinderman, Assistant Attorney General; Helena, Montana Michael B. Hayworth, Rosebud County Attorney; Forsyth, Montana; Dan Guzynski, Assistant Attorney General, Special Deputy County Attorney; Helena, Montana Submitted on Briefs: January 16, 2013 Decided: March 19, 2013 Filed: __________________________________________ Clerk March 20 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 James Wilson (Wilson) appeals his conviction in the Sixteenth Judicial District, Rosebud County. Wilson argues that the District Court deprived Wilson of his fundamental right to be present at all critical stages of the proceedings against him. Wilson was not present at a sidebar conference during jury selection after which the District Court removed a potential juror from the jury pool. We affirm. ¶2 Wilson presents the following issue on appeal: ¶3 Whether Wilson’s absence from the sidebar conference during jury selection requires reversal of the trial verdict? PROCEDURAL AND FACTUAL BACKGROUND ¶4 Wilson was drinking at the Whiskey Gulch Saloon in Colstrip, Montana, on December 10, 2009. Jason Burnett, Spencer Benson, Heath Becker, Terran Harris and a group of friends also were at Whiskey Gulch Saloon to celebrate Burnett’s recent engagement. Burnett’s family owned the saloon. Wilson started a fistfight with Harris. Burnett and others helped to break up the fight. Burnett ordered Wilson to leave. ¶5 Wilson returned to the saloon approximately thirty minutes later with a gun. Becker was standing outside the saloon near the back deck. Wilson killed Becker with a shot to his head. Benson also was outside the saloon near his own car. Wilson killed Benson with a shot to his chest. Wilson then entered the saloon and walked toward Burnett and his friends. Wilson shot Burnett in the head, injuring, but not killing Burnett. Harris and others disarmed Wilson. 3 ¶6 The State charged Wilson with deliberate homicide. The list of potential jurors included several of the EMTs who had responded to the shooting. The Court discussed this fact with the parties at the beginning of the jury selection process. The prosecutor noted that he had listed these same EMTs as potential witnesses. The prosecutor explained that he no longer anticipated calling any of the EMTs as witnesses. As a result, the prosecutor would not stipulate at that time that all of the EMTs were unfit for jury service. ¶7 The first group of potential jurors called by the clerk included Amanda McCarthy (McCarthy), one of these EMTs. The record reflects the following interaction: THE COURT: Would the clerk call the next prospective juror? THE CLERK: Amanda M. McCarthy. [DEFENSE COUNSEL]: Your Honor, may we have a sidebar with this juror? (Wherein, a sidebar is held with all attorneys and the Court in attendance.) THE COURT: I’m sorry, Ms. McCarthy. We should have caught this ahead of time. By stipulation you are excused. Thank you. ¶8 Wilson was present in the courtroom during the jury selection process, including during this interaction. The court reminded counsel and informed Wilson at the beginning of the jury selection in Wilson’s trial that Wilson had a right to be present. The District Court stated that “the Defendant must always be present. I know we all understand that rule. But at every conference in here, outside the presence of the jury, anything like that, I will expect – jury instructions being settled, anything like that, the Defendant must be present.” Wilson did not join his counsel at the sidebar conference. The jury found Wilson guilty of deliberate homicide, attempted deliberate homicide, and negligent homicide. The District Court sentenced Wilson to 220 years at the Montana State Prison. Wilson argues that the District 4 Court violated his fundamental right to be present at all critical stages of the proceedings when he was absent from the sidebar conference after which the District Court removed McCarthy from the pool of potential jurors. STANDARD OF REVIEW ¶9 We exercise plenary review over constitutional questions, including alleged violations of a criminal defendant’s right to be present at critical stages of the proceedings against him. State v. Charlie, 2010 MT 195, ¶ 21, 357 Mont. 355, 239 P.3d 934. DISCUSSION ¶10 Whether Wilson’s absence from the sidebar conference during jury selection requires reversal of the trial verdict? ¶11 Both the Montana Constitution and the United States Constitution guarantee a defendant the right to be present at all “critical stages” of the criminal proceedings against him. State v. Matt, 2008 MT 444, ¶¶ 16-17, 347 Mont. 530, 199 P.3d 244 (partially overruled on other grounds by Charlie, ¶ 45); Charlie, ¶ 40. A critical stage includes “any step of the proceeding where there is potential for substantial prejudice to the defendant.” Matt, ¶ 17. A violation of a defendant’s right to be present at all critical stages does not require automatic reversal. State v. Price, 2009 MT 129, ¶ 24, 350 Mont. 272, 207 P.3d 298. We reverse for a new trial only if the defendant suffered prejudice from missing a critical stage. Price, ¶ 24. We emphasize, however, that a trial court should make every effort to ensure that a defendant appears at all critical stages of the proceedings, or, in the alternative, 5 that the trial court accepts on the record the defendant’s waiver of his right to appear at a particular proceeding. ¶12 We generally first consider whether the defendant missed a critical stage of the proceedings. Matt, ¶ 19; Price, ¶ 23. We next consider whether the defendant waived his right to be present at the critical stage of the proceedings. Matt, ¶ 23; Price, ¶ 23. We finally consider whether this constitutional violation of missing a critical stage caused prejudice to the defendant. Matt, ¶ 38; Price, ¶ 24. ¶13 This Court has not yet addressed whether a sidebar conference during voir dire constitutes a critical stage. We conclude, however, that Wilson’s absence from the sidebar conference did not cause him prejudice. Accordingly, we need not consider the initial questions of whether the sidebar conference constituted a critical stage of the criminal proceedings or whether Wilson waived his right to attend. See Price, ¶ 25. We instead will assume for the purposes of our analysis that Wilson missed a critical stage of the criminal proceedings and that he did not waive his right to be present. See Price, ¶ 25. ¶14 For the prejudice analysis, the State bears the burden of persuasion that no reasonable probability exists that this constitutional violation caused prejudice to Wilson. Charlie, ¶ 45. The State cannot meet this burden of persuasion if Wilson’s absence from the sidebar conference constituted a structural error. A structural error contaminates the very framework within which the trial proceeds. Matt, ¶ 32. The State could not demonstrate that no reasonable probability of prejudice exists due to the fact that structural errors “necessarily 6 render a trial fundamentally unfair.” Matt, ¶ 32. Structural errors therefore require automatic reversal. Matt, ¶ 32. ¶15 Wilson argues that his absence from the sidebar conference constituted a structural error. The United States Supreme Court has recognized only a limited number of structural errors. Matt, ¶ 31. These structural errors include the lack of an impartial trial judge, Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437 (1927), total deprivation of the right to counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963), and the right to self-representation at trial, McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944 (1984). See Matt, ¶ 31. This Court determined under the Montana Constitution that a defendant’s absence during the voir dire questioning of a potential juror constituted a structural error. State v. Bird, 2002 MT 2, ¶ 40, 308 Mont. 75, 43 P.3d 266. ¶16 Wilson argues that our determination in Bird, that a defendant’s absence from voir dire of the juror constitutes a structural error, controls our determination here. The trial court in Bird granted the State’s motion to conduct in chambers individual voir dire of any potential juror who had personal experience with domestic violence. Bird, ¶ 12. Bird was absent from the voir dire questioning of a potential juror who made comments that suggested she would be biased against Bird. The potential juror explained that she worked as an emergency room nurse and often had to treat victims of domestic violence. Bird, ¶ 13. ¶17 The trial court denied a motion by Bird’s counsel to remove this potential juror for cause. The court removed eight of the eleven potential jurors who were questioned in chambers. Bird’s counsel used all of his peremptory challenges to remove other potential 7 jurors, rather than to remove the emergency room nurse whom he earlier had sought to remove for cause. Bird, ¶ 16. The emergency room nurse then became a member of Bird’s jury. We determined that Bird’s absence constituted a structural error. The emergency room nurse’s inclusion as part of the jury affected the framework of Bird’s trial and rendered the entire trial fundamentally unfair. Bird, ¶ 40. ¶18 Wilson argues that the sidebar conference included voir dire questioning of McCarthy. Wilson points to the transcript as proof that McCarthy attended the sidebar conference. The transcript reflects that Wilson’s counsel requested a sidebar “with” McCarthy. The transcript’s list of people who attended the sidebar conference omits any reference to McCarthy. The transcript simply states that “a sidebar is held with all attorneys and the Court in attendance.” The record does not demonstrate that McCarthy was present at the sidebar conference. Further, the court’s comment at the end of the sidebar conference, that “[w]e should have caught this ahead of time,” implies that the topic of the sidebar conference dealt with previously available information, rather than information gathered from voir dire questioning of McCarthy. Nothing in the record or the court’s comments after the sidebar indicates that either the court or the parties engaged McCarthy in any voir dire examination. The court then announced that McCarthy had been removed “[b]y stipulation” of the counsel, rather than having been removed for cause. ¶19 Nothing in the transcript indicates that Wilson missed any voir dire questioning of McCarthy. Additionally, McCarthy did not serve on Wilson’s jury. Wilson could not have suffered, therefore, from the type of structural error that arose in Bird of having a potentially 8 biased juror serve as a member of his jury. See Bird, ¶ 40. Bird does not control our determination on whether Wilson’s absence from the sidebar conference constituted a structural error. The State argues that no particular event took place at the sidebar conference that necessarily rendered the entire trial fundamentally unfair in a manner similar to a biased judge, lack of counsel, or a biased juror. See Matt, ¶¶ 31, 40. We agree. Wilson’s absence from the sidebar conference does not rise to the level of structural error under these circumstances. ¶20 We now must consider whether the State has met its burden of persuasion of demonstrating that no reasonable probability exists that this constitutional violation caused prejudice to Wilson. Charlie, ¶ 45. The State argues that Wilson had no right to have a particular juror sit on his jury, only the right to a fair and impartial jury. State v. Taylor, 168 Mont. 142, 146, 542 P.2d 100, 102 (1975). The State further argues that no prejudice could have resulted to Wilson when the prosecutor and Wilson’s counsel apparently agreed to stipulate to the removal of McCarthy from the group of potential jurors. ¶21 We have considered several times whether a defendant suffered prejudice by missing a conference that ultimately resulted in the removal of a juror. One of the jurors spoke with one of the prospective witnesses about the ongoing trial in State v. Kennedy, 2004 MT 53, ¶ 1, 320 Mont. 161, 85 P.3d 1279. The court met alone with the juror in chambers. Kennedy, Kennedy’s counsel, and the prosecutor were not present. Kennedy, ¶ 10. The court met with counsel in chambers only after the court had spoken alone with the juror. Kennedy was not present at this second meeting. 9 ¶22 The prosecutor moved to replace the juror with an alternate juror and to exclude the witness from testifying. The court granted the motions. Kennedy, ¶ 11. Kennedy claimed prejudice from the missed opportunity to question the juror about his interaction with the prospective witness. We determined that no prejudice to Kennedy resulted from his absence from this critical stage. The Court mooted any prejudice that Kennedy may have suffered when it removed the juror from the jury panel and the witness did not testify. Kennedy, ¶ 34. ¶23 We again considered in Price whether the defendant suffered prejudice by not attending a conference where the court had decided to remove a juror. One of the jurors informed the court during the trial that she recognized a prospective witness. Price, ¶ 35. The court conducted a conference with the juror, the prosecutor, and Price’s counsel. Price was not present. The juror admitted at the conference that she would be less likely to believe the witness’s testimony based on her personal knowledge of this prospective witness. Price, ¶¶ 35-36. The court granted the request by Price’s counsel to remove the juror. The court’s removal of the juror mooted any potential prejudice toward Price. Price, ¶ 38. ¶24 As previously noted, we lack a full transcript of the sidebar conference. We considered in State v. Tapson, 2001 MT 292, 307 Mont. 428, 41 P.3d 305, how to analyze prejudice when no record existed of the conversation that the defendant did not attend. The court in Tapson personally carried a substitute verdict form into the jury room. The prosecutor, Tapson’s counsel, and Tapson were not present. No record existed of what occurred in the jury room, including whether the trial judge answered any questions for the jury. The lack of a record made it impossible to determine that the encounter caused no 10 prejudice to the defendant. Tapson, ¶ 31. We contrasted the absence of a record in Tapson in both Price and Kennedy, where a full record existed to describe what occurred while the defendant had been absent. Kennedy, ¶ 32; Price, ¶ 33. ¶25 We likewise have analyzed potential prejudice to the defendant where only a partial record of an omnibus hearing existed in State v. Heavygun, 2011 MT 111, 360 Mont. 413, 253 P.3d 897. Heavygun did not attend an omnibus hearing. No verbatim record of the hearing existed, but a memorandum set forth the topics that the court and counsel had addressed. Heavygun, ¶ 18. Heavygun could have suffered prejudice if his counsel had failed to raise an affirmative defense or potential objections at the hearing. Heavygun suffered no prejudice, however, as the memorandum reflected the fact that his counsel had raised an affirmative defense and had made motions on his behalf. Heavygun, ¶¶ 18-19. Heavygun later did not seek to make any motions or raise any defenses that were barred due to a failure by his counsel to have raised them at the hearing. Heavygun, ¶ 18. This Court determined that Heavygun had suffered no prejudice based on the partial record of the hearing. Heavygun, ¶ 19. ¶26 Although we lack a full transcript of the sidebar conference that Wilson did not attend, the record provides sufficient evidence as to the topic of the conference: the alleged bias of potential juror McCarthy. Wilson’s counsel requested the sidebar conference directly after McCarthy had been called for voir dire. The court announced at the conclusion of the sidebar conference that McCarthy had been dismissed by stipulation. 11 ¶27 Wilson argues that he suffered prejudice due to his inability to have taken part in the discussion regarding whether to stipulate to the removal of McCarthy. This situation differs greatly from Tapson where the court interacted directly with the jury without the defendant or defendant’s counsel present, and without a record. The court in Tapson potentially could have influenced the jury through comments that it made during this unrecorded encounter with the jury. The lack of a record prevented this Court from determining that no possibility of prejudice existed. Tapson, ¶ 31. Here the record sufficiently demonstrates the nature of the potential prejudice to Wilson. See Heavygun, ¶ 18. Wilson missed the opportunity to participate in the decision of whether to remove potential juror McCarthy from the jury pool. ¶28 Though he was not present when that discussion occurred, Wilson possesses no right to have any particular juror, including McCarthy, sit as a member of the jury. Taylor, 168 Mont. at 146, 542 P.2d at 102. The prosecutor and defense counsel both have the opportunity to use peremptory challenges to remove jurors without cause. Armstrong v. Gondeiro, 2000 MT 326, ¶ 20, 303 Mont. 37, 15 P.3d 386; M. R. Civ. P. 47(b). Either Wilson’s counsel or the prosecutor could have removed McCarthy with a peremptory challenge. This Court determined that no prejudice arose when the court removed empanelled jurors in Kennedy and Price. A greater potential for prejudice exists when a court removes a juror who has sat through a portion of the trial than when a court removes a potential juror before trial. See State v. Pease, 222 Mont. 455, 470, 724 P.2d 153, 162 (1986) (describing defendant’s concern that the alternate juror had not been paying attention during the trial). 12 ¶29 Wilson possesses a right to an impartial jury. Taylor, 168 Mont. at 146, 542 P.2d at 102. Wilson has not alleged that any member of the jury demonstrated any bias against him. Further, the court’s removal of potential juror McCarthy in no way limited Wilson’s ability to raise challenges for cause or to remove potential jurors with peremptory strikes. Wilson’s claim of prejudice likely would resonate more strongly if the court instead had insisted at the sidebar conference that McCarthy remain in the pool of potential jurors. This scenario likely would have forced Wilson later to exercise a peremptory strike to remove McCarthy. The court removed McCarthy, however, and Wilson retained his full complement of peremptory strikes to remove other potential jurors. McCarthy’s removal did not affect Wilson’s right to a fair and unbiased jury. See Taylor, 168 Mont. at 146, 542 P.2d at 102. ¶30 The record sufficiently establishes that the only potential prejudice to Wilson arose from his loss of an opportunity to participate in the decision of whether to keep McCarthy in the potential jury pool. Similar to Kennedy and Price, however, the court mooted this potential prejudice when it announced that McCarthy had been removed from the potential jury pool by stipulation. See Kennedy, ¶ 34; Price, ¶ 38. ¶31 Affirmed. /S/ BRIAN MORRIS We Concur: /S/ LAURIE McKINNON /S/ BETH BAKER /S/ PATRICIA COTTER /S/ JIM RICE 13 | March 20, 2013 |
4af39110-d0a7-443c-924c-d980ac19e3fd | State v. Andress | 2013 MT 12, 2013 MT 12A | DA 11-0297 | Montana | Montana Supreme Court | DA 11-0297 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 12A STATE OF MONTANA, Plaintiff and Appellee, v. JOSHUA KAYE ANDRESS, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 2010-487 Honorable Edward P. McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender, Jennifer A. Hurley, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana Submitted on Briefs: November 21, 2012 Decided: January 22, 2013 Amended: March 26, 2013 Filed: __________________________________________ Clerk March 26 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 The defendant Joshua Kaye Andress appeals from his conviction of felony violation of a permanent order of protection and tampering with a witness. We affirm in part and reverse and remand in part. ¶2 Under the terms of a permanent order of protection (POP) dated March 2009, Joshua Andress is prohibited from any contact with his ex-girlfriend, Sara Nichols. In October 2010, Andress saw Nichols in a Missoula bar. It is undisputed that he was within fifteen hundred feet of Nichols in violation of the POP. Andress was on felony probation at this time for previous violations of this POP. Nichols called the police and Andress was subsequently arrested and charged with violating the order of protection. ¶3 While incarcerated at the Missoula County Detention Center, Andress created various notes he claimed were for his attorney. One note, however, was obtained by a soon-to-be-released cellmate, Paul Randleas. Randleas claimed Andress gave him the note to give to one of Andress’s acquaintances, Morgan Styles. The note asked Styles to make an untruthful statement to the authorities to help Andress. Randleas turned the note over to the police upon his release which resulted in Andress being charged with tampering with a witness. Following a jury trial in the Fourth Judicial District Court, Andress was convicted on both counts and sentenced from the bench to 15 years for each charge with 10 years for each charge suspended, to be served concurrently. The subsequent written sentence contained 26 terms and conditions that were not expressly stated during oral pronouncement of sentence, and imposed fines and fees in the amount of $260. 3 ¶4 On appeal, Andress does not challenge any action taken by the District Court nor does he challenge his sentence; rather, he claims his attorney was ineffective in offering erroneous jury instructions and in failing to file a motion to conform the written sentence to the orally-pronounced sentence. ISSUE ¶5 The issue on appeal is whether counsel rendered ineffective assistance. FACTUAL AND PROCEDURAL BACKGROUND ¶6 In March 2009, after a few years of dating, Sara Nichols sought and obtained a permanent order of protection against Josh Andress, claiming physical and mental abuse. Andress responded by leaving at least ten extremely profane and frightening messages on Nichol’s answering machine. These calls and other actions quickly resulted in multiple violations of the POP, the third and subsequent offenses being felonies. ¶7 On October 16, 2010, while on probation for these charges, Andress entered the Rhino Bar in Missoula and immediately saw Nichols. He left the bar but returned shortly thereafter at which time he saw Nichols was still there and he left again. Nichols claimed he subsequently left and re-entered two more times. She also claimed that he approached her after his third entrance, tapped her on the shoulder and spoke to her.1 He then left the bar and returned for the last time. Nichols left and called 9-1-1. The police came and interviewed Nichols, Nichols’ companion, and Andress, but did not arrest Andress that night. The following day, Nichols called Andress’s probation officer, the county 1 Andress denied that he touched or spoke with Nichols, but while in the Missoula County Detention Center he purportedly told Paul Randleas that he had done so. 4 attorney’s office, and one of the responding police officers. Andress was subsequently arrested and charged with violating the POP. ¶8 While jailed in Missoula County, Andress made numerous notes about his case. He claims he made these notes to discuss with his attorney. One note, however, came into the possession of a soon-to-be-released cellmate, Randleas. Randleas testified that Andress gave him the note and asked that he deliver the message contained in it to Morgan Styles, a former co-worker of Andress. The note asked Styles to testify that he saw Andress at the Rhino Bar on the night of October 16 but that Andress spoke with no one and left the bar without returning. Styles never received the note, however, because Randleas, a police informant, turned it over to the police. The police contacted Styles who reported that he was not at the Rhino Bar that night and was out of town for that entire weekend. Andress was charged with tampering with a witness. ¶9 A jury trial was conducted on January 31, 2011, and Andress’s defense was that his contact with Nichols at the bar was unintentional and he never intended to violate the order of protection. He also admitted writing the Styles note but denied giving it to Randleas for delivery. A unanimous jury convicted Andress on both charges. ¶10 On March 23, 2011, the District Court judge orally pronounced sentence, sentencing Andress, as a persistent felony offender, to Montana State Prison (MSP) for 15 years for each charge with 10 years for each charge suspended. The sentences were to run concurrently with each other but consecutive to a two-year sentence that had been 5 imposed on Andress the day before in another Montana district court.2 On March 25, 2011, the District Court issued its written judgment which included the prison sentence as well as 26 terms and conditions of probation and the requirement that Andress pay $260 in fines and fees. ¶11 Andress filed a timely appeal claiming his trial counsel was ineffective for offering jury instructions that set forth an incorrect mental state for the charged offenses, and for failing to move the District Court to conform Andress’s written sentence to his oral sentence in accordance with § 46-18-116(2), MCA. ¶12 We affirm in part and reverse and remand in part. STANDARD OF REVIEW ¶13 We review claims of ineffective assistance of counsel under the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To prevail under Strickland, a defendant must show (1) that counsel’s performance was deficient, and (2) that counsel’s deficient performance prejudiced him or her. Both prongs of this test must be satisfied; thus, an insufficient showing on one prong negates the need to address the other. This Court must also “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” State v. Mitchell, 2012 MT 227, ¶ 21, 366 Mont. 379, 286 P.3d 1196. Claims of ineffective assistance of counsel are mixed questions of law and fact which this Court reviews de novo. St. Germain v. State, 2012 MT 86, ¶ 7, 364 Mont. 494, 276 P.3d 886. 2 On March 22, 2011, Andress appeared before Judge Robert Deschamps on a Petition to Revoke his probation for felony and misdemeanor violations of this same order of protection. Judge Deschamps revoked Andress’s probation and sentenced him to two years at MSP. 6 ¶14 Jury instructions serve an important role in trial. They guarantee decisions consistent with the evidence and the law, which can be accomplished when the instructions are as plain, clear, concise, and brief as possible. District courts have broad discretion when issuing jury instructions, but this discretion is restricted by the overriding principle that jury instructions must fully and fairly instruct the jury regarding the applicable law. The instructions must prejudicially affect the defendant’s substantial rights to constitute reversible error. State v. Hovey, 2011 MT 3, ¶ 10, 359 Mont. 100, 248 P.3d 303 (citations omitted). ¶15 The Supreme Court reviews a district court’s imposition of sentence for legality only. This is a question of law which we review to determine whether the court’s interpretation of the law is correct. State v. Kroll, 2004 MT 203, ¶ 12, 322 Mont. 294, 95 P.3d 717. DISCUSSION ¶16 Did Andress’s trial counsel provide ineffective assistance? Jury Instructions ¶17 Andress was charged with violating § 45-5-626(1), MCA, which states in relevant part: A person commits the offense of violation of an order of protection if the person, with knowledge of the order, purposely or knowingly violates a provision of . . . an order of protection under Title 40, chapter 15. Andress stipulated to having knowledge of the protective order and its contents, including the prohibition of being within fifteen hundred feet of Nichols. 7 ¶18 Andress was also charged with witness tampering. Section 45-7-206(1)(a), MCA, provides, in relevant part: A person commits the offense of tampering with witnesses and informants if, believing that an official proceeding or investigation is pending or about to be instituted, the person purposely or knowingly attempts to induce or otherwise cause a witness or informant to: testify or inform falsely . . . . ¶19 By their express language, these statutes provide that violation of the statute requires a person to commit an act “purposely or knowingly.” During settlement of jury instructions, Andress’s counsel proposed instructions that defined the terms “purposely” and “knowingly” as used in the statutes. Counsel proposed the following jury instructions derived from § 45-2-101, MCA, and the Montana Criminal Jury Instructions: A person acts purposely when it is his/her conscious object to engage in conduct of that nature; or to cause such a result. A person acts knowingly: when the person is aware of his or her conduct; or when the person is aware there exists the high probability that the person’s conduct will cause a specific result. (Emphasis added.) The District Court accepted these proposed instructions and gave them to the jury. ¶20 Andress argues that his counsel’s proposed instructions included definitions of purposely and knowingly that did not apply to his charged offenses and, as a result, allowed the jury to convict him based upon his conduct, even if the jury believed his defense that he did not intend to violate the POP or tamper with a witness. ¶21 Section 45-2-101(65), MCA, defines “purposely” in relevant part: [A] person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is the person’s conscious object to engage in that conduct or to cause that result. When a particular purpose is an element of an offense, the element is established although the purpose is 8 conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense. ¶22 Section 45-2-101(35), MCA, defines “knowingly” as: [A] person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when the person is aware of the person’s own conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when the person is aware that it is highly probable that the result will be caused by the person’s conduct. When knowledge of the existence of a particular fact is an element of an offense, knowledge is established if a person is aware of a high probability of its existence. ¶23 Relying on State v. Lambert, 280 Mont. 231, 929 P.2d 846 (1996), and State v. Patton, 280 Mont. 278, 930 P.2d 635 (1996), Andress claims that the District Court was “required to instruct the jury on the definition of purposely and the definition of knowingly that applies in the context of the particular crime.” We agree that Lambert and Patton require courts to instruct the jury on the proper mental state element based upon the charged offense; however, beyond that these cases are distinguishable in that they address Montana’s criminal endangerment statute and our deliberate homicide statute. We have not previously determined whether §§ 45-5-626 and 45-7-206(1)(a), MCA, emphasize conduct or result of conduct. ¶24 Andress asserts the statutes he is charged with violating, as in Lambert, do not particularize conduct which, if engaged in, results in commission of the offense; rather, one may engage in a wide variety of conduct and still commit the offense. He maintains that § 45-5-626, MCA, “seeks to avoid the ‘singular result’ of the violation of a protective order, not the many forms of conduct that result in the violation of a protective order.” Similarly, he opines that § 45-7-206(1)(a), MCA, seeks to avoid the “singular” 9 result of causing a witness to testify falsely, without regard to the many forms of conduct that could result in a witness testifying falsely. ¶25 In other words, it appears Andress is claiming that the correct jury instruction would have instructed the jury that he could be guilty of violating the POP only if it was his “conscious object,” or intention, to violate the order of protection or that he was aware that it was highly probable that his conduct would violate the statute. Additionally, vis-à-vis the witness tampering claim, because he admits he wrote the note but asserts he did not give the note to Randleas to give to Styles and he did not write the note with the purpose of committing witness tampering, the result-based purposely and knowingly jury instruction should have been given. Therefore, Andress asserts the appropriate jury instructions were: A person act purposely when it is his/her conscious object to cause such a result. A person acts knowingly when the person is aware there exists the high probability that the person’s conduct will cause a specific result. The “result” contemplated in these definitions is violation of the particular statute. ¶26 Based upon his defense theories, he maintains his counsel’s failure to present the appropriate jury instructions constitutes ineffective assistance. ¶27 For the following reasons, we conclude that the instructions given by the court “fully and fairly” instructed the jury on the applicable law. Hovey, ¶ 10. Additionally, we find no prejudice to Andress in the giving of these instructions. ¶28 The jury was presented with conflicting testimony throughout the trial. Andress maintained he did not intentionally run into Nichols nor did he touch her or speak to her. 10 Nichols’ testimony, however, strongly refuted Andress’s claims. Appropriately, the District Court expressly instructed the jurors that they were “the sole judges of the credibility . . . of all the witnesses testifying in this case, and of the weight . . . to be given their testimony.” ¶29 The jury heard evidence that Andress was forbidden under the order of protection to be within fifteen hundred feet of Nichols. He knew of this prohibition. He nonetheless entered the bar repeatedly after he saw her there, repeatedly placing himself well within fifteen hundred feet of her. Additionally, the jury also heard from Nichols that Andress approached her, touched her and spoke to her. Under these circumstances, Andress consciously engaged in and was aware of the prohibited conduct knowing it was in violation of the POP. Both his conduct and the result of his conduct could have reasonably led the jury to find him guilty under either the result-based jury instruction argued by Andress on appeal or the jury instruction given. Therefore, the jury instructions given fully and fairly instructed the jury on the mental state required to violate an order of protection. Furthermore, Andress’s behavior defies his claim that he did not intend to violate the POP. Had he left the bar after seeing Nichols for the first time and not returned, his claim that he lacked intention to violate the POP may have had greater credibility. ¶30 As to the witness tampering charge, Andress admitted that he wrote the note to Styles but claims he did not give it to Randleas for delivery. Therefore, he had no intent to tamper with a witness. Randleas testified otherwise. Based upon the jury’s unanimous verdict of guilt on the witness tampering charge, it appears the jury found Randleas more 11 credible than Andress. If, as believed by the jury, Andress gave Randleas a note to give to Styles instructing Styles to lie under oath, Andress’s conduct and the result of his conduct justified his conviction, and instructing the jury solely on the result-based definition would not have changed the outcome. ¶31 As for his claim that his counsel was ineffective for proposing the jury instructions, having determined that Andress suffered no prejudice from the instructions, the second prong of Strickland has not been satisfied. Nonconforming Judgment ¶32 Andress next claims that his trial counsel was ineffective for failing to move to conform Andress’s written judgment to his orally-pronounced sentence in accordance with § 46-18-116(2), MCA. The lengthy procedural record of this case suggests Andress framed this issue on appeal as an IAC claim because his attorneys did not seek to modify the judgment pursuant to § 46-18-116(2), MCA. However, under the authority set forth in Kroll, and other cases addressed below, we will directly review the allegedly nonconforming judgment and, consequently, need not find Andress’s counsel ineffective to resolve Andress’s claim. ¶33 It is well-established that the oral sentence pronounced from the bench in defendant’s presence is the “legally effective sentence and valid, final judgment.” State v. Lane, 1998 MT 76, ¶ 40, 288 Mont. 286, 957 P.2d 9. As we explained in Lane, ¶ 30, after reviewing numerous Montana cases, “holding the oral pronouncement of sentence to be the legally effective sentence is more consistent with our constitutional and statutory provisions.” We observed that “[a] defendant is present only when being sentenced from 12 the bench. Thus, a defendant is sentenced in absentia when the [written] judgment and commitment order is allowed to control when there is a conflict.” Lane, ¶ 38. ¶34 Subsequently, in State v. Johnson, 2000 MT 290, 302 Mont. 265, 14 P.3d 480, Johnson faced a nonconforming written judgment with new conditions. He argued that “our holding in Lane logically implies that, in a strict sense, any portion of a subsequent written judgment that fails to conform, or in some manner conflicts, with an oral sentence is unlawful.” Johnson, ¶ 17. After substantial analysis, we determined that our Lane rule was somewhat “vague” and served to cloud the true issue, which was: “whether a written judgment has, without notice, substantively increased a defendant’s criminal sentence that was previously imposed in open court in the defendant’s presence.” Johnson, ¶ 24 (emphasis in original). We further stated: In determining whether any portion of a judge’s subsequent written judgment is unlawful . . . we need only determine first, whether the defendant was afforded the opportunity to respond to its inclusion upon sufficient notice at sentencing, and second, whether that portion of the written judgment substantively increases one of two things: (1) the defendant’s loss of liberty; and (2) the defendant’s sacrifice of property. Johnson, ¶ 24. ¶35 Later, in Kroll, Kroll challenged several sentencing conditions in his written judgment that were not presented during his oral sentence. Kroll, ¶ 14. The State responded that Kroll had waived his right to complain about the imposition of such conditions because he had failed to seek modification of the written judgment in accordance with § 46-18-116, MCA. Prior to reviewing Kroll’s sentence claims, we addressed the proper interpretation of § 46-18-116(2), MCA. We observed that both 13 parties were assuming that “after the expiration of the 120-day period, the written judgment is presumed correct.” Kroll, ¶ 16. We concluded this was an erroneous presumption and that “[s]ection 46-18-116, MCA, simply provides the parties an avenue for conforming the written judgment to the oral pronouncement of sentence,” but it does not supersede or modify our holding in Lane, i.e., the orally-pronounced sentence is the legally effective and valid final sentence. Kroll, ¶ 18. ¶36 We further explained that “even when a criminal defendant fails to contemporaneously object at sentencing, this Court will accept jurisdiction of a timely filed appeal which alleges that a sentence is illegal or exceeds statutory authority.” Kroll, ¶ 19. Applying our rule and rationale from Johnson, we determined the district court did not err in imposing certain “stock requirements for probationers and individuals subject to a suspended sentence” into Kroll’s written judgment. We stated that the inclusion of these stock conditions did not “substantively increase[] the defendant’s loss of liberty or sacrifice of property.” Kroll, ¶ 22. ¶37 We also evaluated non-stock conditions in Kroll to determine if they had “a correlation to the crime for which he was convicted,” i.e., issuing bad checks as part of a common scheme. Kroll, ¶¶ 5, 26. We noted that §§ 46-18-201 and -202, MCA, allowed the court to impose sentencing restrictions or conditions that are “reasonable” and that the court considers necessary “to obtain the objectives of rehabilitation and the protection of the victim and society.” Kroll, ¶ 28. Under this analysis, we affirmed several “civil restriction” conditions in Kroll’s sentence. Kroll, ¶ 33. 14 ¶38 In State v. Lucero, 2004 MT 248, ¶¶ 23-24, 323 Mont. 42, 97 P.3d 1106, we again rejected the argument that the failure to seek modification of a nonconforming written judgment in accordance with § 46-18-116(2), MCA, rendered the written judgment the “valid final judgment.” We held in Lucero, as we did in Kroll, that the stock conditions subsequently added to his written judgment were not unlawful as they did not impose significant restrictions that resulted in loss of liberty. Lucero, ¶ 28. However, we determined that specific conditions pertaining to being in bars and casinos or submitting to chemical substance tests did result in a loss of his liberty, did not bear a sufficient correlation to the underlying offense, and were not reasonably related to the objectives of rehabilitation and protection of the victim and society. We therefore ordered those conditions stricken. Lucero, ¶¶ 30-31. ¶39 Having established that: (1) failure to seek modification is accordance with § 46-18-116(2), MCA, does not bar this Court from reviewing Andress’s written judgment on appeal; and (2) inclusion of stock sentencing conditions does not deprive a criminal defendant of liberty or property and need not be stricken, we turn to the challenged provisions in Andress’s written judgment. ¶40 It is undisputed that the first prong of the Johnson test has been met. As noted above, because the District Court during sentencing did not orally impose the 26 terms and conditions later contained in his written sentence, Andress did not have the opportunity to respond to the correctness or appropriateness of these sentence provisions. We next determine whether the objected-to provisions must be stricken based upon the criteria set forth above. 15 ¶41 As conceded by Andress, conditions 1-9, 17, 20-22, and 24-25 are affirmed under our precedent in Johnson, Lucero, and Kroll. These are stock conditions imposed upon probationers and defendants subject to suspended sentences. ¶42 Conditions 12-16 and 26 prohibit Andress from possessing or consuming intoxicants/alcohol, and entering bars or other establishments where intoxicants are the chief item of sale. Some also require him to submit to routine or random drug and alcohol testing, obtain a mental health evaluation, participate in counseling, and obtain a chemical dependency evaluation. Andress objects to these conditions but at his sentencing hearing he testified: I need some counseling, and maybe some additional counseling on the alcohol. . . . And, I would just hope that the Court would look at the facts of me needing some help in my alcoholism and relationship issues. Additionally, Andress’s counsel further stated: [T]he Court would note that in the Defendant’s criminal history, there is indication that he may have a substance abuse problem with regard to alcohol, and, certainly, that’s not helping the situation with regard to him being able to make good decisions, and that’s contributed to some of his decision-making in the past. He does – as his mother indicated – have a condition which, also, impairs, to a certain extent, his decision-making process, and, probably, alcohol is something that should not be involved, whatsoever. Mr. Andress has not received any substantial inpatient treatment for alcohol, to my knowledge, and we feel that a five-year Department of Corrections sentence is appropriate in this matter, so that Mr. Andress could be afforded the opportunity to correct his problems with counseling, and with some inpatient treatment for the alcohol issue. 16 This testimony supports the District Court’s inclusion of the challenged conditions. Andress specifically requested alcohol treatment, counseling and mental health/relationship counseling. As we stated in State v. Holt, 2011 MT 42, ¶ 17, 359 Mont. 308, 249 P.3d 470, we will not put a district court in error for an action in which the appealing party acquiesced. ¶43 The remaining conditions 10, 11, 18, 19 and 23 are also non-stock conditions. They require Andress to pay certain fines and fees, refrain from gambling and entering casinos, and abide by a curfew. These conditions are not sufficiently related to Andress’s charges nor are they reasonably related to the objectives of rehabilitation and protection of the victim and society; therefore, we remand with instructions that these conditions be stricken from the written judgment. CONCLUSION ¶44 For the foregoing reasons, we conclude Andress’s trial counsel did not provide ineffective assistance to Andress with respect to proposed jury instructions. We reverse the District Court’s inclusion of conditions 10, 11, 18, 19 and 23 in Andress’s written judgment and order that these conditions be stricken upon remand. /S/ PATRICIA COTTER We concur: /S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ MICHAEL E WHEAT /S/ JIM RICE | March 26, 2013 |
4c46f349-c8e0-4a01-ba40-6e8a6c145891 | State v. Nixon | 2013 MT 81 | DA 11-0733 | Montana | Montana Supreme Court | DA 11-0733 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 81 STATE OF MONTANA, Plaintiff and Appellee, v. JEFFREY ALLEN NIXON, Defendant and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 10-137C Honorable Stewart E. Stadler, Presiding Judge COUNSEL OF RECORD: For Appellant: Colin M. Stephens, Smith & Stephens, P.C.; Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant Attorney General; Helena, Montana Ed Corrigan, Flathead County Attorney; Alison Howard, Lori Adams, Deputy County Attorneys; Kalispell, Montana Submitted on Briefs: January 9, 2013 Decided: March 26, 2013 Filed: __________________________________________ Clerk March 26 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Following a five-day trial in July 2011, a jury convicted Jeffrey Allen Nixon of accountability for deliberate homicide, robbery, tampering with physical evidence, and burglary—all felonies. Nixon appeals his conviction on the ground that the Montana Eleventh Judicial District Court, Flathead County, erred in denying his motion to suppress statements he made during a custodial interrogation. We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶2 On April 17, 2010, Sergeant Jim Wardensky of the Kalispell Police Department responded to a report from Wesley Collins’s landlord that his apartment had been burglarized. Police had been to the apartment the day before for a requested welfare check on Collins and had not found him. While Wardensky was investigating the break-in, by-standers told additional responding officers that two individuals were running out the back window of Collins’s apartment. One officer chased the individuals and apprehended Robert Lake, who was taken into custody for questioning. Although Lake initially blamed Nixon for Collins’s disappearance, within hours, Lake “had admitted to killing Mr. Collins and putting his body up in the Patrick Creek area.” Lake made statements further implicating Nixon in the homicide and proceeded to show Wardensky where Collins’s body was located. ¶3 In the early hours of April 18, Nixon’s father was driving Nixon home from his older brother’s bachelor party. During the party, which lasted approximately seven hours, Nixon estimated he consumed about ten drinks. On their way home, Nixon and 3 his father were stopped by four law enforcement officers who, with weapons drawn, detained the two and then transported Nixon to the Kalispell Police Station for questioning.1 An arresting officer informed Nixon during transport that he had been arrested on two outstanding misdemeanor warrants; he was not informed that he was the subject of a homicide investigation. ¶4 Nixon arrived at the police station at 4:30 a.m. and was given a copy of his outstanding warrants. All movements and statements he made at the station were videotaped by Kalispell police. At first, Nixon was left alone in the booking area of the station for approximately two hours, during which time he slept on a bench. Just prior to 7:00 a.m., Sergeant Wardensky woke Nixon up and began to interview him. Wardensky asked Nixon if he had been drinking; Nixon admitted that he had had “quite a bit” to drink. Wanting to ensure that Nixon was not incapacitated, Wardensky asked Nixon to provide a breath sample on a portable breath testing device. The test showed Nixon’s blood alcohol content to be .08. Wardensky then told Nixon that what he would like to do is “visit with you a little bit about something that I’ve been looking at and working on, starting yesterday morning I guess.” First, however, Wardensky asked Nixon a series of general questions about where he lived, the bachelor party he had attended, and his brother’s impending wedding. ¶5 Wardensky then read Nixon his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), as provided on the Kalispell Police Department’s “YOUR 1 The basis for the traffic stop is not at issue on appeal. 4 RIGHTS” form. The following dialogue occurred immediately after Wardensky read Nixon his rights: NIXON: Just a slight question. WARDENSKY: Sure. NIXON: Why did you ask me questions before you read me my rights? WARDENSKY: Um… NIXON: I was just curious… WARDENSKY: Curious, and, and ah, I would be happy to answer that. Because, uh, I wanted to see what your cognitive process is, ya know, and ah, given the fact that you’ve had a little bit to drink tonight, I wanted to see if, you know, if you could answer a few questions, and ah, you know, and see if things are cooking up seriously upstairs for ya. They seem to be, so. Okay does that answer that for ya? NIXON: Yeah. WARDENSKY: Okay, do you want to talk to me? NIXON: There isn’t really anything to talk about. WARDENSKY: Well, I’ve got a bunch. NIXON: I’m tired. I’ve been up since six yesterday morning and I’ve been sitting here for a while. WARDENSKY: Well that’s pretty ironic, so have I. NIXON: Yeah, if I was you I would be home sleeping… WARDENSKY: Well, hopefully that’ll be the case here shortly. NIXON: I sure hope so, I’ve got a wedding here in a couple of hours. WARDENSKY: Yeah. So, you interested in talking with me Jeff? NIXON: I really don’t have anything to talk about. I was told I was brought in here on traffic tickets, but one of ’ems a traffic ticket, the other one’s a theft. I don’t really have anything to talk about. WARDENSKY: Okay. Well, there’s a little more to it than that and that’s what I would like to talk to you about. NIXON: Talk away, sir. WARDENSKY: Okay. Um, one of the things that I would like to do Jeff, is ah, get a signature from you and all that, that says I read this to you and you understand, okay? You wanna hop up here and sign that for me? NIXON: Do I get to read it first. 5 WARDENSKY: Absolutely, here you go. NIXON: (Reads and signs paper.)2 ¶6 After Nixon read and signed the statement identifying his Miranda rights, signaling that he understood those rights and was willing to talk to law enforcement, Wardensky began to ask him general questions about Robert Lake and Wesley Collins. Although initially Nixon stated that he had had limited contact with Collins, eventually he explained that he had smoked marijuana with Collins on several occasions. Wardensky then informed Nixon that the Kalispell Police Department had received a missing person’s report regarding Collins. Nixon did not invoke his right to remain silent at that point, and instead answered Wardensky’s questions about when he last had seen Collins. Wardensky then “cut to the chase,” told Nixon he knew “Wes is dead” and informed Nixon that he was conducting a homicide investigation. Nixon did not invoke his right to remain silent at that point, but continued to answer Wardensky’s questions about the events surrounding Collins’s death. ¶7 On April 22, 2010, the Flathead County Attorney filed an information charging Nixon with causing the death of Wesley Collins. The county attorney later filed an 2 The Kalispell Police Department “YOUR RIGHTS” form reads as follows: You have the right to remain silent. Anything you say can and may be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish one. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer. Do you understand each of these rights I have explained to you and having these rights in mind, do you wish to talk to us now? 6 amended information charging Nixon with the following felony offenses: (1) Accountability for Deliberate Homicide in violation of §§ 45-2-302(3) and 45-5- 102(1)(a), MCA, and, in the alternative, Deliberate Homicide, in violation of § 45-5- 102(1)(b), MCA; (2) Robbery, in violation of § 45-5-401(1)(a), MCA; (3) Tampering with Physical Evidence, in violation of § 45-7-207(1)(a), MCA; and (4) Burglary, in violation of § 45-6-204(1)(b), MCA. ¶8 Nixon filed a motion to suppress statements he made during his interview with Sergeant Wardensky. The District Court held a hearing on the matter on September 17, 2010. Both Nixon and Wardensky testified. The court viewed portions of the videotaped interview and admitted several pages of a transcript of the interview into evidence. Nixon also testified; he stated that he understood his Miranda rights during the interview and acknowledged that he never specifically told Wardensky that he did not want to talk to him, although he did say that he did not really have anything to talk about. After the hearing, the District Court denied Nixon’s motion to suppress. The court found that Nixon voluntarily agreed to answer Wardensky’s questions and further concluded that Nixon “did not unambiguously invoke his right to remain silent and in fact, when he directs the officer to ‘talk away’ he appears to be agreeing to answer questions.” ¶9 Nixon’s trial began on July 11, 2011. Several of Nixon’s acquaintances testified against him, including some who had been charged in connection with Collins’s death. Nixon also testified on his own behalf. The trial testimony established that Collins lived upstairs from Lake and his girlfriend and that Nixon, Lake and Collins had smoked 7 marijuana together on occasion. Testimony showed that, on April 12, 2010, Collins invited Nixon and Lake into his apartment to smoke marijuana. While they were smoking, Lake knocked Collins unconscious by striking him in the head with a claw hammer. Lake then told Nixon to shut the blinds in the apartment and check whether Collins’s marijuana plants were budding; Nixon followed Lake’s directions. When Collins began to regain consciousness, Lake responded by striking him with another hammer and eventually proceeding to strangle him with string. ¶10 After Collins was dead, Nixon left the apartment to purchase cigarettes at a nearby gas station. He acknowledged at trial that he could have called the police at this point, but he chose not to. Instead, he returned to the apartment complex and played an integral role in disposing of Collins’s body. ¶11 Nixon told Lake that they should dump Collins’s body at Patrick Creek, a remote area in the mountains. Nixon borrowed a truck from a friend to transport the body. Then he, Lake, and Lake’s friend wrapped Collins’s body in blankets and threw it out the window. Nixon drove the truck to the back of the apartment and the trio loaded Collins’s body into the truck bed. Nixon drove to Patrick Creek, where they dumped the body. The next morning, Nixon attempted to drive back to Patrick Creek to pour lye on Collins’s body, but he was unable to reach the body because it had snowed that night. ¶12 The State did not introduce the video of Wardensky’s interview with Nixon as evidence or play it for the jury. The State points out that the only time it referenced the interview in its case-in-chief was during its direct examination of Wardensky: 8 Q. Jim, let’s talk about the interview of the Defendant. When you were interviewing Mr. Nixon did he admit to being a lookout? A. Yes. Q. Did he admit to taking anything? A. Yes, he did. Q. What did he admit to taking? A. Marijuana. In addition, the State used statements from the interrogation in cross-examining Nixon. ¶13 After deliberating for over four hours, the jury found Nixon guilty of robbery, accountability for deliberate homicide, tampering with physical evidence, and burglary. The District Court subsequently committed Nixon to the Montana State Prison for a net sentence of 100 years. ¶14 Nixon argues that his conviction should be reversed and a new trial granted because of the District Court’s refusal to suppress statements he made during his custodial interrogation. STANDARD OF REVIEW ¶15 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. Haldane, 2013 MT 32, ¶ 15, 368 Mont. 396, ____ P.3d _____ (citing State v. Anders, 2012 MT 62, ¶ 9, 364 Mont. 316, 274 P.3d 720). 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.” State v. Morrisey, 2009 MT 201, ¶ 14, 351 Mont. 144, 214 P.3d 708. 9 DISCUSSION ¶16 Whether the District Court erred in denying Nixon’s motion to suppress statements he made during his custodial interrogation with Sergeant Wardensky. ¶17 No person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The Fifth Amendment’s Self-Incrimination Clause applies to the States through the Fourteenth Amendment’s Due Process Clause. Malloy v. Hogan, 378 U.S. 1, 6-11, 84 S. Ct. 1489, 1492-95 (1964). The Montana Constitution similarly provides that “[n]o person shall be compelled to testify against himself in a criminal proceeding.” Mont. Const. art. II, § 25. ¶18 This privilege against self-incrimination is “available outside of criminal court proceedings and serves to protect persons ‘in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.’” Morrisey, ¶ 27 (quoting Miranda, 384 U.S. at 467, 86 S. Ct. at 1624). Because the modern practice of custodial interrogation “contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely,” the Supreme Court has established “concrete constitutional guidelines” for law enforcement agencies to follow. Miranda, 384 U.S. at 467, 442, 86 S. Ct. at 1624, 1611. When a person “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 rights and the 10 exercise of those rights must be fully honored.’” Morrisey, ¶ 28 (quoting Miranda, 384 U.S. at 478, 467, 86 S. Ct. at 1630, 1624). ¶19 These rights, commonly known as Miranda rights, mandate that before a person may be subjected to a custodial interrogation, “he ‘must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.’” Morrisey, ¶ 28 (quoting Miranda, 384 U.S. at 479, 86 S. Ct. at 1630). Failure by law enforcement officers to give these warnings and obtain a waiver of rights prior to a custodial interrogation “generally requires exclusion of any statements obtained.” Morrisey, ¶ 28. ¶20 There is no dispute in this case that Nixon was subjected to a custodial interrogation when he was interviewed by Sergeant Wardensky at the police station. See State v. Munson, 2007 MT 222, ¶ 21, 339 Mont. 68, 169 P.3d 364. Nixon does not assert that Sergeant Wardensky failed to read the aforementioned Miranda rights prior to questioning him. The video recording of Nixon’s interview reveals that Wardensky read the Miranda warnings to Nixon and provided him with a written copy of his rights, which Nixon read and signed. At the suppression hearing, Nixon testified that he understood each of those rights. Nixon contends, instead, that he invoked his right to remain silent or, in the alternative, that he did not voluntarily waive his rights. For those reasons, 11 Nixon alleges, the District Court erred when it failed to suppress the statements he made to Wardensky. A. Whether Nixon invoked his right to remain silent. ¶21 Nixon contends that he “attempted to invoke his Fifth Amendment right to remain silent when he said three separate times: ‘I don’t really have anything to talk about.’” The State responds that Nixon did not articulate a desire to remain silent “sufficiently clearly that a reasonable officer in the circumstances would have understood Nixon’s statements to be an invocation of his Miranda right to remain silent” as required by the Supreme Court in Berghuis v. Thompkins, ___ U.S. ___, 130 S. Ct. 2250 (2010). ¶22 In Berghuis, Van Chester Thompkins was arrested as a suspect in a shooting and subjected to a custodial interrogation. Berghuis, ___ U.S. at ___, 130 S. Ct. at 2256. At the beginning of the interrogation, officers read Thompkins his Miranda rights and presented him with a form explaining those rights. Thompkins refused the officers’ request to sign the form to demonstrate that he understood his rights, but the officers nonetheless began to interrogate him. At no point during the interrogation, which lasted about three hours, did Thompkins say that he wished to remain silent. He was “‘largely’ silent” during the interrogation, but he did provide some limited verbal and nonverbal interaction with his interrogating officers. Berghuis, ___ U.S. at ___, 130 S. Ct. at 2256. ¶23 After two hours and forty-five minutes of questioning, a police officer asked Thompkins whether he believed in God and whether he prayed to God. Thompkins said “yes” in response to both questions. The officer then asked Thompkins whether he had 12 asked God to forgive him for “shooting that boy down”; Thompkins again said “yes.” Berghuis, ___ U.S. at ___, 130 S. Ct. at 2257. The district court denied Thompkins’s motion to suppress statements he made during the interrogation and, after a jury trial, he was found guilty of first-degree murder. Berghuis, ___ U.S. at ___, 130 S. Ct. at 2257-58. ¶24 On appeal, the Supreme Court was asked whether Thompkins had invoked his right to remain silent “by not saying anything for a sufficient period of time.” Berghuis, ___ U.S. at ___, 130 S. Ct. at 2259. Although it had not yet stated “whether an invocation of the right to remain silent can be ambiguous or equivocal,” the Court found “no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue” in Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350 (1994). Berghuis, ___ U.S. at ___, 130 S. Ct. at 2260. The Court noted that in Davis it had held that if an accused “makes a statement concerning the right to counsel ‘that is ambiguous or equivocal’ or makes no statement, the police are not required to end the interrogation. . . .” Berghuis, ___ U.S. at ___, 130 S. Ct. at 2259-60 (quoting Davis, 512 U.S. at 461-62, 114 S. Ct. at 2355). Because Thompkins did not unambiguously and unequivocally state that he did not wish to talk to the police, the Court held that he did not invoke his right to remain silent. Berghuis, ___ U.S. at ___, 130 S. Ct. at 2260. ¶25 Nixon attempts to distinguish his case from Berghuis on the grounds that Nixon actually invoked his right to remain silent whereas Thompkins did not, and urges the 13 Court not to adopt Berghuis in any event. Nixon argues that the Montana Constitution should be construed to provide broader protection of the right against self-incrimination. He contends that his statements, “I don’t really have anything to talk about,” invoked his right to remain silent. ¶26 We are not bound by decisions of the U.S. Supreme Court “where independent state grounds exist for developing heightened and expanded rights under our state constitution.” Butte Community Union v. Lewis, 219 Mont. 426, 433, 712 P.2d 1309, 1313 (1986). When a party urges us to recognize expanded rights under the Montana Constitution, that party bears the burden of proving “that a unique aspect of the Montana Constitution, or the background material related to the provision, provides support for the greater protection that he seeks to invoke.” State v. Covington, 2012 MT 31, ¶ 21, 364 Mont. 118, 272 P.3d 43. A party may satisfy this burden in at least one of three ways: by “identify[ing] unique language within the Montana Constitution” dictating enhanced protection; by “referenc[ing] Constitutional Convention transcripts and committee reports” showing that the delegates intended to provide greater protection; or by establishing that the right alleged “must be read in conjunction with” other specified rights unique to the Montana Constitution. State v. Myran, 2012 MT 252, ¶ 25, 366 Mont. 532, 289 P.3d 118 (citing Covington, ¶ 21). ¶27 Nixon has not identified any language unique to the Montana Constitution or cited to any references from Montana’s Constitutional Convention that suggest the right to remain silent in Article II, Section 25 provides greater protections than the same right 14 provided by the United States Constitution. Consequently, he has the burden of demonstrating that the right to remain silent, when read in conjunction with other unique rights guaranteed by the Montana Constitution, must take on broader meaning. Myran, ¶ 25. For example, when the right to be free from unreasonable searches and seizures found in Article II, Section 11 of the Montana Constitution is read together with the Article II, Section 10 right of privacy, it provides greater protections than the Fourth Amendment’s right against unreasonable searches and seizures. State v. Bullock, 272 Mont. 361, 383-85, 901 P.2d 61, 75-76 (1995). Article II, Section 10, enhances the protection because “there is no similar textual language in the United States Constitution and we have therefore recognized that this section grants rights beyond that inferred from the United States Constitution.” Bullock, 272 Mont. at 383, 901 P.2d 61, 75. Similarly, when the Article II, Section 22 prohibition against cruel and unusual punishments is read together with the Article II, Section 4 right of individual dignity, it “provide[s] Montana citizens greater protections from cruel and unusual punishment than does the federal constitution” because the federal constitution “does not expressly provide for the right to human dignity.” Walker v. State, 2003 MT 134, ¶ 73, 316 Mont. 103, 68 P.3d 872. ¶28 We decline Nixon’s invitation to read protections into Article II, Section 25’s right to remain silent that are greater than those found in the Fifth Amendment of the United States Constitution. He contends that the Montana Constitution’s right to remain silent must be read together with its right to counsel in custodial interrogations to provide additional protections to individuals invoking their right to not speak with law 15 enforcement officers. But the right to counsel during custodial interrogation also is rooted in the Fifth Amendment. State v. Scheffer, 2010 MT 73, ¶ 17, 355 Mont. 523, 230 P.3d 462; Miranda, 384 U.S. at 469-70, 86 S. Ct. at 1625-26; McNeil v. Wis., 501 U.S. 171, 176-78, 111 S. Ct. 2204, 2208-09 (1991). We have in fact interpreted that right consistent with the principles articulated in Davis. That is, “if a suspect makes a reference to an attorney that is ambiguous or equivocal, in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, the officer is not required to cease questioning.” Scheffer, ¶ 31. We also applied Davis to assertion of the right to counsel in State v. Main, 2011 MT 123, ¶¶ 17-19, 360 Mont. 470, 255 P.3d 1240 (affirming the district court’s determination that Main “did not clearly or unequivocally request a lawyer”). The right to counsel during custodial interrogations is not unique to Montana’s constitution; the right to remain silent, therefore, is not enhanced by reading the two together. Myran, ¶¶ 25-26. ¶29 Nixon’s contention that we should not require that a suspect unambiguously and unequivocally invoke his or her right to remain silent finds little support in our recent opinions on the right to remain silent. In State v. Morrisey, decided prior to Berghuis, the State argued that a suspect’s “invocation of his right to remain silent was invalid because it was ambiguous or equivocal.” Morrisey, ¶ 39. We noted that “the Supreme Court has not yet directly addressed whether [Davis] applies to the right to remain silent.” Morrisey, ¶ 39. Assuming arguendo that a person in custody must invoke his right to remain silent “‘sufficiently clearly that a reasonable police officer in the circumstances 16 would understand the statement to be’ an assertion of the right,” Morrisey, ¶ 39 (quoting Davis, 512 U.S. at 459, 114 S. Ct. at 2355), we noted that the critical question is whether the suspect’s “right to cut off questioning was ‘scrupulously honored.’” Morrisey, ¶ 34 (quoting Mich. v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321, 326 (1975)). Although Morrisey’s pre-Miranda-waiver statement that “I ain’t saying nothing” constituted an assertion of his right to remain silent, we determined that once the formal interview began, Morrisey voluntarily changed his mind and spoke freely with the interrogating officers. Morrisey, ¶¶ 40, 43-44. ¶30 In State v. Jones, we concluded that “Jones’s statements that he was ‘through talking’ [did] not constitute an unequivocal invocation of his right to counsel or to remain silent on the facts of this case” and, therefore, he did not invoke those rights. State v. Jones, 2006 MT 209, ¶ 27, 333 Mont. 294, 142 P.3d 851 (emphasis added). ¶31 Finding no basis in Montana’s Constitution or our prior case law for an expanded right against self-incrimination, we now adopt Berghuis and its application of the Davis standard to a suspect’s invocation of the right to remain silent. Like the Supreme Court, we hold that “there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis.” Berghuis, ___ U.S. at ___, 130 S. Ct. at 2260. Although there are no “talismanic phrases or any special combination of words” required to invoke one’s right to remain silent, Morrisey, ¶ 40 (quoting U.S. v. Ramirez, 79 F.3d 298, 304 (2d. Cir. 1996)), a suspect must articulate his desire to remain silent “sufficiently clearly that a 17 reasonable police officer in the circumstances would understand the statement to be a request” to not speak with the police. Davis, 512 U.S. at 459, 114 S. Ct. at 2355 (citations omitted). If the suspect does not unambiguously and unequivocally invoke his right to remain silent in this manner, then the interrogating officers are not required to stop questioning the suspect pursuant to Article II, Section 25 of the Montana Constitution. See Davis, 512 U.S. at 459, 114 S. Ct. at 2355. We apply this standard to the facts presented by Nixon. ¶32 Whether a suspect invokes his right to remain silent “is an objective inquiry.” Morrisey, ¶ 40. In making this inquiry, we do not merely look to specific passages from a transcript in isolation; we “also consider the circumstances in which the statement was made.” Scheffer, ¶ 29 (quoting U.S. v. Shabaz, 579 F.3d 815, 819 (7th Cir. 2009)). ¶33 When Nixon was arrested, police advised him that he was being held on two outstanding misdemeanor warrants and gave him paperwork detailing those warrants. When Wardensky first asked Nixon if he wanted to talk to him, Nixon replied: “There isn’t really anything to talk about.” Moments later, when Wardensky again asked Nixon if he would be willing to speak with the police, Nixon replied: “I really don’t have anything to talk about. I was told I was brought in here on traffic tickets, but one of ’em’s a traffic ticket, the other one’s a theft. I don’t really have anything to talk about.” ¶34 Given this context, a reasonable police officer in the circumstances would understand Nixon’s statements to mean that the outstanding warrants were self-explanatory and did not provide a sufficient topic of conversation. Once Wardensky 18 provided Nixon with a topic of conversation—“there’s a little more to it than [the misdemeanor warrants] and that’s what I would like to talk to you about”—Nixon affirmatively agreed to speak with the police, stating, “talk away sir,” and signing the waiver of rights form. Wardensky’s clarification was appropriate. We have held that to the extent they believe a suspect’s statement to be ambiguous or equivocal, it is “‘good police practice’ . . . [for police officers to ask questions] to clarify whether or not the suspect is actually invoking his Miranda rights.” Morrisey, ¶ 41 n. 8 (citing Davis, 512 U.S. at 461, 114 S. Ct. at 2356). Asking these clarifying questions protects the constitutional rights of the suspect and minimizes “the chance of a confession being suppressed due to subsequent judicial second-guessing . . . .” Morrisey, ¶ 41 n. 8 (citing Davis, 512 U.S. at 461, 114 S. Ct. at 2356). Once Wardensky advised Nixon that there was more to talk about than the traffic citations, Nixon invited additional discussion. The District Court’s finding that Nixon “did not unambiguously invoke his right to remain silent” is supported by substantial credible evidence. Once Nixon had signed the waiver of rights form and Sergeant Wardensky began discussing Collins’s death, Nixon spoke freely. As in Morrisey, Nixon’s right to cut off questioning was not infringed. See Morrisey, ¶ 44. B. Whether Nixon voluntarily waived his Miranda rights. ¶35 In the alternative, Nixon argues that even if he did not invoke his right to remain silent, he did not waive his Miranda rights in a knowing, voluntary, and intelligent manner. Any waiver he made was constitutionally-deficient, he alleges, because he was 19 psychologically coerced, he was intoxicated, he had slept for only two hours that night, the waiver form he signed was confusing, and Sergeant Wardensky initially misled him about the scope of his custodial interrogation. The State counters by asserting that, under the totality of the circumstances, the District Court correctly concluded that Nixon made a valid waiver of his rights. ¶36 A suspect may waive his Miranda rights provided that the waiver “is made voluntarily, knowingly, and intelligently.” Main, ¶ 21. This is a two-dimensional inquiry. First, the waiver “must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Main, ¶ 21 (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141 (1986)). Second, the waiver must have been made “with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Main, ¶ 21 (quoting Moran, 475 U.S. at 421, 106 S. Ct. at 1141). ¶37 A court’s inquiry into whether a waiver was voluntary under the totality of circumstances is factual in nature. State v. Hoffman, 2003 MT 26, ¶ 19, 314 Mont. 155, 64 P.3d 1013. This requires consideration of “the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused” as well as the “age, education, and intelligence of the accused, and his capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” Main, ¶ 21 (quoting State v. Blakney, 197 Mont. 131, 138, 641 P.2d 1045, 1049 (1982)). Furthermore, a statement “extracted by any sort 20 of threat or violence, by the exertion of any improper influence, or by any direct or implied promises, however slight, has the potential for being involuntary.” Hoffman, ¶ 19. A court properly may conclude that a suspect has waived his or her Miranda rights “[o]nly if the ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension.” Main, ¶ 21 (quoting Moran, 475 U.S. at 421, 106 S. Ct. at 1141). ¶38 The District Court found that, “[a]t the time of the interview[,] [Nixon] was 18 years of age, had completed the 12th grade and graduated from high school, had no difficulty reading, no difficulty with English, and was familiar with the Miranda advisement.” After viewing a video of Nixon’s interactions with Sergeant Wardensky, the District Court further found: The Defendant’s questions and responses clearly indicate that he understood the questions, the procedure, and that he had the ability to engage in meaningful conversation with the officer. He earlier in the evening had reviewed the 2 outstanding warrants and some hours later was able to indicate that both were not for traffic tickets and in fact one was for theft. This again clearly indicates that he was able [to] read, process and understand what he read, [including] the Miranda form which he signed. After analyzing the totality of the circumstances, the District Court concluded that Nixon waived his Miranda rights in a knowing, intelligent, and voluntary manner. We find no error in this conclusion. ¶39 Nixon first claims that any waiver he made was involuntary because he was intoxicated and sleep-deprived at the time he was interviewed. Wardensky knew Nixon’s blood alcohol content was .08, so he asked Nixon various background questions to 21 determine whether he was lucid enough to submit to a custodial interrogation. Wardensky was satisfied with Nixon’s answers, and there is no indication that Nixon did not understand the questions or otherwise was incapacitated by intoxication. Although he testified at the suppression hearing that he had difficulty focusing on the written copy of his rights, he did not tell this to Wardensky during the interrogation and it is not apparent when viewing the videotaped interrogation. ¶40 We have determined that a suspect’s waiver of Miranda rights was valid even though he had consumed alcohol within six hours of his interrogation, he “smelled of alcohol and occasionally slurred his words.” Main, ¶ 23. Our decision was guided by the fact that, like Nixon, the suspect in Main “wasn’t stumbling” and he “answered questions in an articulate manner.” Main, ¶ 23. Similarly, we have cited with approval a case from the Court of Appeals for the Eighth Circuit where a suspect validly waived his Miranda rights even though he recently had used methamphetamine and had not slept in five days, but was able to converse coherently with law enforcement officers. Hoffman, ¶ 26 (citing U.S. v. Casal, 915 F.2d 1225, 1229 (8th Cir. 1990)). The videotaped interrogation undermines Nixon’s contention that he was too intoxicated and sleep-deprived to understand what was happening; instead, he interrupted to seek clarification when he wanted it and answered Wardensky’s questions in a clear, coherent manner. See State v. Cassell, 280 Mont. 397, 403, 932 P.2d 478, 481-82 (1996). ¶41 Nixon also claims that, because he was arrested at gunpoint, he was intimidated and psychologically coerced. A suspect’s statement “extracted by any sort of threat or 22 violence . . . has the potential for being involuntary.” State v. Loh, 275 Mont. 460, 476, 914 P.2d 592, 602 (1996). While it is true that Nixon was arrested at gunpoint, the custodial interrogation took place nearly four hours after Nixon’s arrest. Sergeant Wardensky did not threaten Nixon or psychologically coerce him at any time during his questioning. Nixon’s claim on this point is without merit. ¶42 Nixon next claims that his waiver of Miranda rights was involuntary because the “YOUR RIGHTS” form he signed, which presented each of his rights in writing, was confusing. When a suspect is presented with a waiver form that is “erroneous, intimidating and virtually indecipherable,” a suspect cannot “enter into a knowing, intelligent or voluntary waiver” of his Miranda rights. State v. Mann, 2006 MT 33, ¶ 24, 331 Mont. 137, 130 P.3d 164. In Mann, the waiver form the police presented to the suspect for signature contained incorrect legal statements and was worded in such a way that it was confusing and difficult to understand. Mann, ¶¶ 23-24. ¶43 Nixon does not allege that the form he signed contained legal errors, instead, he alleges that the waiver form is “indecipherable” because it does not contain the word “waiver” and because “the last sentence is a compound sentence.” His assertion that the form was confusing is belied by his testimony at the suppression hearing, where he stated that he understood each of his Miranda rights after Wardensky read the waiver form to him. His argument on this point lacks factual basis and is without merit. ¶44 Finally, Nixon argues that Wardensky deceived him by “misleading Mr. Nixon to believe that he was brought in for misdemeanor charges alone.” Without citing any 23 authority, he contends that, “[a]fter Wardensky gave [him] this false impression, [he] could no longer make a knowing, intelligent and voluntary decision to waive his Miranda rights.” Nixon’s claim that Wardensky said he was being questioned only because of misdemeanor charges is incorrect. Before he read Nixon the Miranda warnings, Wardensky told Nixon that he would like to “visit with you a little bit about something that I’ve been looking at and working on, starting yesterday morning I guess.” Although Wardensky did not inform Nixon that he was the subject of a homicide investigation, that does not render Nixon’s waiver involuntary. The United States Supreme Court “has never held that mere silence by law enforcement officials as to the subject matter of an interrogation is ‘trickery’ sufficient to invalidate a suspect’s waiver of Miranda rights[.]” Colo. v. Spring, 479 U.S. 564, 576, 107 S. Ct. 851, 858 (1987). ¶45 The totality of the circumstances supports the District Court’s finding that Nixon’s waiver of his Miranda rights was voluntary, knowing and intelligent. Nixon was an eighteen-year-old man of normal intelligence who received a complete and timely Miranda warning. He signed the Kalispell Police Department form explaining those rights; his signature indicated that he understood his rights and was willing to talk to the police. Nixon later testified at the suppression hearing that he understood each of his rights after Wardensky read them to him. Nixon then waived his right to remain silent by answering Wardensky’s questions. There is no evidence in the record of any coercive or other improper conduct by the police that would render Nixon’s waiver involuntary. In fact, Nixon cannot point to any moment during the custodial interrogation when his state 24 of intoxication, his lack of sleep, the supposed psychological coercion he experienced, or the confusing waiver form actually affected his ability to voluntarily, knowingly, and intelligently waive his Miranda rights. See Hoffman, ¶ 28. We conclude that the District Court’s finding that Nixon’s Miranda waiver and subsequent statements to the police were voluntary was supported by substantial credible evidence and its conclusions of law were correct. Main, ¶ 24. ¶46 The District Court correctly denied Nixon’s motion to suppress. The judgment is affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ LAURIE McKINNON | March 26, 2013 |
4dc2b026-0783-4e9b-9960-50408c8d1114 | In re Estate of C.K.O. | 2013 MT 72 | DA 12-0334 | Montana | Montana Supreme Court | DA 12-0334 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 72 IN THE ESTATE OF C.K.O., A Minor Child. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DG-07-20 Honorable C.B. McNeil, Presiding Judge COUNSEL OF RECORD: For Appellant: Julio K. Morales, Laura A. Perkovic, Matthew S. Sonnichsen, Morales Law Offices, P.C., Missoula, Montana For Appellee: Judah M. Gersh, Michael A. Viscomi, Viscomi & Gersh, PLLP, Whitefish, Montana Submitted on Briefs: January 23, 2013 Decided: March 19, 2013 Filed: __________________________________________ Clerk March 20 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 C.K.O.’s parents, Ann-Marie and Stanley, appeal an order of the District Court for the Twentieth Judicial District, Lake County, denying their motion to disqualify counsel in a personal injury matter. We affirm. ¶2 Ann-Marie and Stanley raise three issues on appeal which we have restated as follows: ¶3 1. Whether the custodial parents of a minor child have the right to demand that a law firm of the parents’ choosing represent the claims of the child over the opposition of the guardian ad litem and conservator. ¶4 2. Whether §§ 37-61-403 and 72-5-427, MCA, are unconstitutional as applied in this case. ¶5 3. Whether § 37-61-403, MCA, conflicts with the Montana Rules of Professional Conduct. Factual and Procedural Background ¶6 In July 2007, Ann-Marie and her unborn child, C.K.O., sustained serious injuries in an automobile collision in Lake County, Montana. C.K.O. was delivered that same day by emergency cesarean section. Soon after the accident, Ann-Marie and her husband, Stanley, hired several attorneys, including Greg Ingraham, to represent both Ann-Marie and C.K.O. in their claims for damages resulting from the accident. ¶7 On November 9, 2007, Ann-Marie and Stanley, dissatisfied with the services of their previous attorneys, executed a contingent fee agreement with the law firm of Viscomi & Gersh (Viscomi) to represent both Ann-Marie and C.K.O. in their claims for 3 damages resulting from the accident. On December 11, 2007, Viscomi filed a Petition for Appointment of Guardian Ad Litem and Conservator for C.K.O. with the Lake County District Court. The petition explained that a significant settlement was expected as a result of the serious injuries C.K.O. suffered in the accident, and that a guardian ad litem (GAL) and conservator were necessary to protect and promote C.K.O.’s interests. The petition requested the appointment of Matthew O’Neill to act as GAL and conservator for C.K.O. The petition was signed by Ann-Marie and Stanley as C.K.O.’s natural parents. ¶8 Ann-Marie’s case settled in October 2009. A lawsuit for C.K.O. has not yet been filed because it is too early for C.K.O.’s doctors to provide an opinion on her medical prognosis that would be sufficient for litigation or settlement purposes. ¶9 In November 2011, Ann-Marie and Stanley retained Morales Law Office (Morales) to investigate and pursue legal action against Ingraham and an individual named Edward Engel. Ingraham and Engel had made personal loans to Ann-Marie and Stanley that allegedly were subject to high interest rates and fees. In 2009, Ingraham and Engel presented invoices to Viscomi for payment of these loans. At Ann-Marie’s request, Viscomi paid the loans out of her settlement funds. In November 2011, Morales filed a complaint for usury against Ingraham and Engel pertaining to these loans. ¶10 On December 7, 2011, Morales sent a letter to Viscomi advising them that, henceforth, Morales would be representing C.K.O. The letter requested C.K.O.’s file and a statement for services performed so that payment for C.K.O.’s “former” attorneys’ work would be honored on a quantum meruit basis. 4 ¶11 Viscomi responded by letter dated January 6, 2012, refusing to withdraw as counsel and stating that O’Neill, C.K.O.’s GAL and conservator, did not believe it was in C.K.O.’s best interests to change attorneys. Morales sent a letter in reply stating that it was the prerogative of C.K.O.’s parents to choose C.K.O.’s counsel. The letter explained that the reason Ann-Marie and Stanley wanted to change counsel was because of their “disappointment and discomfort” over the loans Viscomi paid out of Ann-Marie’s settlement funds. The letter again requested all original file materials for C.K.O. ¶12 On January 27, 2012, Morales filed a Notice of Substitution of Counsel with the District Court. A few days later, Viscomi sent a letter to Morales stating that, pursuant to § 75-5-427, MCA, O’Neill had the authority to make decisions as to C.K.O.’s counsel, and that, pursuant to § 37-61-403, MCA, the Notice of Substitution of Counsel was void since it was filed without Viscomi’s consent or a court order. Shortly thereafter, O’Neill filed a report with the District Court stating that it was not in C.K.O.’s best interests to change legal counsel at this time. Morales then filed a Motion to Disqualify Counsel challenging O’Neill’s authority and asserting that natural parents retain the right to choose which law firm should represent their minor children, regardless of the parents’ prior consent to the appointment of a GAL and conservator. ¶13 The parties briefed their positions, and on May 1, 2012, the District Court issued an Order Denying the Motion to Disqualify Counsel. In its order, the court stated that Morales had no authority to sign any documents on behalf of C.K.O. because Morales failed to comply with § 37-61-403, MCA, regarding substitution of counsel. The court explained that § 37-61-403, MCA, provides two means by which a change of attorney 5 may be made: (1) upon the consent of both the attorney of record and the client, or (2) upon an order of the court after an application made by either the attorney of record or the client, and after notice from one to the other. The court stated that Morales’ motion failed under subsection (1) of the statute “because it does not contain the consent of both the attorney [Viscomi] and the client, Matthew O’Neill, Conservator, or of the parents of said minor.” The court also stated that the motion failed under subsection (2) of the statute “because no change of attorney was made upon order of the Court and no application was made by either the attorney of record or the client.” ¶14 Morales subsequently filed a Motion to Reconsider asking the District Court to clarify its order regarding who was considered the client in this case, C.K.O’s parents or C.K.O.’s GAL and conservator. The motion noted the significant constitutional rights of Ann-Marie and Stanley as C.K.O.’s natural parents. The court denied the motion pointing out that “the Montana Rules of Civil Procedure do not contain any authority for a ‘Motion to Reconsider.’ ” Ann-Marie and Stanley appealed. Standard of Review ¶15 We review a district court’s denial of a motion to disqualify counsel for an abuse of discretion. Krutzfeldt Ranch, LLC v. Pinnacle Bank, 2012 MT 15, ¶ 13, 363 Mont. 366, 272 P.3d 635 (citing Schuff v. A.T. Klemens & Son, 2000 MT 357, ¶ 26, 303 Mont. 274, 16 P.3d 1002). ¶16 In addition, our review of constitutional questions is plenary. Alexander v. Bozeman Motors, Inc., 2012 MT 301, ¶ 19, 367 Mont. 401, 291 P.3d 1120 (citing Walters v. Flathead Concrete Products, Inc., 2011 MT 45, ¶ 9, 359 Mont. 346, 249 P.3d 913). 6 The constitutionality of a statute is a question of law, and we review a district court’s legal conclusions for correctness. Alexander, ¶ 19. Issue 1. ¶17 Whether the custodial parents of a minor child have the right to demand that a law firm of the parents’ choosing represent the claims of the child over the opposition of the GAL and conservator. ¶18 Ann-Marie and Stanley argue that the District Court erroneously interjected itself into their private affairs thereby hindering their ability to make decisions concerning their child’s best interests. Ann-Marie and Stanley further argue that they have a fundamental right to control and direct litigation on behalf of their minor child, and that the GAL and conservator has no right to usurp their parental authority to discharge counsel for their minor child. ¶19 Viscomi argues on the other hand that Ann-Marie and Stanley do not have a fundamental right to unilaterally choose which law firm should represent their child after they voluntarily consented to the appointment of a GAL and conservator for that child. Instead, once Anne-Marie and Stanley consented to the appointment of the GAL and conservator, they divested themselves of the right to decide what is in their child’s best interests regarding legal representation in the child’s personal injury claim. ¶20 The United States Supreme Court has recognized that the interest of parents in the care, custody, and control of their children is a well-established fundamental liberty interest under the Fourteenth Amendment’s Due Process Clause. Snyder v. Spaulding, 2010 MT 151, ¶ 12, 357 Mont. 34, 235 P.3d 578 (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000)). Similarly, this Court has observed that 7 [t]he rights to conceive and to raise one’s children have been deemed essential basic civil rights of man, and [r]ights far more precious . . . than property rights . . . . It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. In re J.L.B., 182 Mont. 100, 109, 594 P.2d 1127, 1132 (1979) (internal citations and quotation marks omitted). ¶21 Nevertheless, while parents have a fundamental right to parent their children, that right is not absolute, especially if there is a conflict of interest between the parents and the children. See e.g. Kulstad v. Maniaci, 2009 MT 326, ¶ 58, 352 Mont. 513, 220 P.3d 595 (“The parent’s constitutionally protected interest in the parental control of a child should yield to the best interests of the child ‘when the parent’s conduct is contrary to the child-parent relationship.’ Section 40-4-227(2)(b), MCA.”); Williams v. Superior Court, 147 Cal. App. 4th 36, 50 (2007) (“if the parent has an actual or potential conflict of interest with his child, the parent has no right to control or influence the child’s litigation.” . . . Thus, a parent with a conflict of interest is no longer considered “fit” to make decisions regarding the child’s litigation). ¶22 In the instant case, Ann-Marie and Stanley claim that there is no actual or potential conflict between their interests and C.K.O.’s interests, thus they retain the right to decide what is in C.K.O.’s best interests. Ann-Marie and Stanley claim that before this right can be taken away from them, they must be shown to be unfit, and no such showing has been made in this case. ¶23 We conclude that there is no need to show that a conflict exists between Ann-Marie’s, Stanley’s and C.K.O.’s interests or that Ann-Marie and Stanley are unfit, 8 because Ann-Marie and Stanley voluntarily relinquished their control of the litigation to the GAL and conservator. Moreover, Ann-Marie and Stanley have never petitioned the District Court for removal of the GAL and conservator. ¶24 In Garrick v. Weaver, 888 F.2d 687 (10th Cir. 1989), the United States Court of Appeals for the Tenth Circuit held that once a conservator or GAL has been appointed to represent the interests of a child, the parents lack standing to assert or raise claims on behalf of the child absent express consent or court order. Garrick, 888 F.2d at 692 (citing Susan R.M. v. Northeast Independent School Dist., 818 F.2d 455, 458 (5th Cir. 1987) (“Nothing in the federal rules, however, authorizes the parent of a child for whom a legal representative has been appointed to file an action without obtaining court authority to do so.”)). ¶25 In Garrick, two minor children and their mother were seriously injured in an automobile accident, and a guardian ad litem was appointed to represent the children’s interests in the subsequent lawsuit. Garrick, 888 F.2d at 690. The court in Garrick relied upon Fed. R. Civ. P. 17(c)1 to hold that once a minor or incompetent has a representative such as a conservator or GAL, the “next friend” or parents can no longer proceed to pursue a claim on behalf of their child. Garrick, 888 F.2d at 693. The court explained 1 At the time Garrick was decided, Fed. R. Civ. P. 17(c) provided: Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by next friend or by a guardian ad litem. . . . 9 that Rule 17(c) flows from the general duty of a court to protect the interests of infants and incompetents in cases before the court. Garrick, 888 F.2d at 693 (citing Dacanay v. Mendoza, 573 F.2d 1075, 1079 (9th Cir. 1978); Noe v. True, 507 F.2d 9, 11-12 (6th Cir. 1974)). “Once appointed, the [GAL] is ‘a representative of the court to act for the minor in the cause, with authority to engage counsel, file suit, and to prosecute, control and direct the litigation.’ ” Garrick, 888 F.2d at 693 (quoting Noe, 507 F.2d at 12) (emphasis added). ¶26 The court in Garrick further stated that allowing two parties, the court-appointed GAL and the parents, to represent the minor children would interfere with the orderly development of the lawsuit because the minor children could take inconsistent positions through their multiple representatives. Garrick, 888 F.2d at 693. The court suggested that to resolve this situation, parents should apply to the court to remove the GAL or to have the court appoint a different GAL to protect the children’s interests. Garrick, 888 F.2d at 693. ¶27 Montana’s current rule regarding representation of minors (M. R. Civ. P. 17(c)) provides: (c) Minor or Incompetent Person. (1) With a Representative. The following representatives may sue or defend on behalf of a minor or an incompetent person: (A) a general guardian; (B) a committee; (C) a conservator; or (D) a like fiduciary. (2) Without a Representative. A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem -- or 10 issue another appropriate order -- to protect a minor or incompetent person who is unrepresented in an action. Like the federal rule in Garrick, Montana’s rule provides that a conservator may sue or defend on behalf of the minor, and if the minor does not have a conservator or other like fiduciary, the court must appoint a GAL to protect the minor’s interests. ¶28 Thus, Montana law permits a court to appoint a GAL (§ 25-5-301, MCA), a general guardian (Title 72, chapter 5, part 2, MCA), or a conservator (Title 72, chapter 5, part 4, MCA) to represent the interests of a minor child. Although the natural parents have priority to be appointed as conservator of their minor child’s estate, § 72-5-410(1)(e), MCA, the parents are also statutorily allowed to nominate someone else to serve in that capacity, § 72-5-410(2), MCA. In this case, Ann-Marie and Stanley explicitly nominated O’Neill. Moreover, the District Court’s order did not place any limitations on O’Neill’s authority to act in such capacity. ¶29 Nevertheless, Ann-Marie and Stanley claim that the GAL and conservator statutes are intended only to preserve and protect a ward’s assets once the ward receives them. The statutes setting forth the powers and duties of a conservator, however, confer on the conservator far more authority than simply preserving and protecting existing assets. For example, § 72-5-427, MCA, confers the following powers and duties on a conservator: (3) A conservator, acting reasonably in efforts to accomplish the purpose for which the conservator was appointed, may act without court authorization or confirmation to: . . . (w) employ persons, including attorneys, auditors, investment advisors, or agents, even though they are associated with the conservator, to advise or assist the conservator in the performance of administrative duties, 11 act upon their recommendation without independent investigation, and instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary; (x) prosecute or defend actions, claims, or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of the conservator’s duties . . . . [Emphasis added.] ¶30 Further, the current position of Ann-Marie and Stanley is contrary to that set forth in their Petition for Appointment of Guardian Ad Litem and Conservator wherein they specifically stated “it is in [C.K.O.’s] best interests to have a guardian ad litem and conservator appointed for the purpose of overseeing [C.K.O.’s] interests in her claims arising from the . . . accident” (emphasis added). Additionally, in the Consent and Waiver of Notice section of their petition, Ann-Marie and Stanley represented that they consented “to the appointment of Matthew H. O’Neill as guardian ad litem and conservator of [C.K.O.] in regards to the legal claims she has arising from the . . . accident” (emphasis added). ¶31 Thus, although Ann-Marie and Stanley contend that O’Neill was only appointed to protect C.K.O.’s assets once she receives them, their petition and supporting documents state otherwise. As requested and petitioned by Ann-Marie and Stanley, O’Neill was to oversee C.K.O.’s legal claims arising from the accident. This necessarily includes overseeing the litigation itself, including making decisions as to which counsel should represent C.K.O. ¶32 Accordingly, we hold that when Ann-Marie and Stanley consented to the appointment of a GAL and conservator to act in C.K.O.’s best interests in “the legal 12 claims she has arising from the . . . accident,” they divested themselves of the right to determine who should represent C.K.O. in her personal injury claim. Issue 2. ¶33 Whether §§ 37-61-403 and 72-5-427, MCA, are unconstitutional as applied in this case. ¶34 Ann-Marie and Stanley contend that §§ 37-61-403 and 72-5-427, MCA, as applied by the District Court in this case, unconstitutionally usurp their fundamental parental rights in the care, custody and control of their child. Viscomi argues on the other hand that these statutes are not unconstitutional as applied by the District Court because there is a legitimate governmental interest in making sure that the best interests of the child are considered in the selection of attorneys to represent the child in a personal injury case. ¶35 All legislative enactments are presumed to comply with the Montana Constitution. Disability Rights Montana v. State, 2009 MT 100, ¶ 18, 350 Mont. 101, 207 P.3d 1092 (citing Bean v. State, 2008 MT 67, ¶ 12, 342 Mont. 85, 179 P.3d 524). The party challenging a statute’s constitutionality bears the burden of proving the statute unconstitutional beyond a reasonable doubt. Walters v. Flathead Concrete Products, Inc., 2011 MT 45, ¶ 32, 359 Mont. 346, 249 P.3d 913 (citing Satterlee v. Lumberman’s Mut. Cas. Co., 2009 MT 368, ¶ 10, 353 Mont. 265, 222 P.3d 566; Henry v. State Compensation Ins. Fund, 1999 MT 126, ¶ 11, 294 Mont. 449, 982 P.2d 456). Furthermore, we construe statutes narrowly to avoid a finding of unconstitutionality, and we resolve any questions of constitutionality in favor of the statute. Disability Rights Montana, ¶ 18. 13 ¶36 Section 37-61-403, MCA, one of the statutes that Ann-Marie and Stanley claim is unconstitutional as applied in this case, provides as follows: Change of attorney. The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: (1) upon consent of both client and attorney, filed with the clerk or entered upon the minutes; (2) upon the order of the court, upon the application of either client or attorney, after notice from one to the other. Based on this statute, an attorney may be changed at any time with the consent of both the attorney and the client, or by order of the court after application of either the attorney or the client. Even if we were to assume arguendo that Ann-Marie and Stanley are the clients in this case, they failed to comply with either provision of the statute because they did not secure the consent of the attorney of record, nor did they apply to the District Court for an order to change the attorney of record. Just because Ann-Marie and Stanley failed to comply with the statute does not make the statute unconstitutional. ¶37 In addition, as we determined in the previous issue, while it is true that Ann-Marie and Stanley have a fundamental interest in the care, custody and control of C.K.O, they voluntarily divested themselves of control over C.K.O.’s legal action when they consented to the appointment of a GAL and conservator. Section 72-5-427, MCA, confers on the conservator the power to “prosecute or defend actions, claims, or proceedings” on behalf of the minor child, or to “employ persons, including attorneys,” to assist in representing the interests of the minor child. Simply because Ann-Marie and Stanley are unhappy with the decision the GAL and conservator made regarding legal representation in C.K.O.’s cause of action, does not make the statute unconstitutional. 14 Moreover, Ann-Marie and Stanley did not request that the District Court replace O’Neill as the GAL and conservator for C.K.O. ¶38 We conclude that Ann-Marie and Stanley have failed to meet their burden of proving the statutes unconstitutional beyond a reasonable doubt. Therefore, we hold that §§ 37-61-403 and 72-5-427, MCA, are not unconstitutional as applied in this case. Issue 3. ¶39 Whether § 37-61-403, MCA, conflicts with the Montana Rules of Professional Conduct. ¶40 Ann-Marie and Stanley argue that § 37-61-403, MCA, attempts to override this Court’s plenary power to control and direct the conduct of attorneys, especially regarding when and how an attorney must withdraw. They maintain that under § 37-61-403, MCA, a lawyer may only be removed from his duties if both the client and the lawyer agree. Consequently, they contend that § 37-61-403, MCA, is in conflict with the Montana Rules of Professional Conduct, specifically M. R. P. C. 1.16(a)(3), thus the statute must be declared unconstitutional as applied. ¶41 There is no conflict between § 37-61-403, MCA, and Rule 1.16(a)(3). Instead, the two work in conjunction with each other. Rule 1.16(a)(3) provides that a lawyer “shall withdraw from the representation of a client if . . . the lawyer is discharged,” while § 37-61-403, MCA, provides a method on how that discharge is to be accomplished2— 2 Section 37-61-403, MCA, refers to a change of attorney in “an action or special proceeding.” Outside of litigation, a lawyer may be discharged and thus be required to withdraw under Rule 1.16(a)(3) without obtaining court approval. 15 upon the consent of both the attorney and the client, or by order of the court upon the application of either the attorney or the client. ¶42 Ann-Marie’s and Stanley’s rationale is based upon their incorrect assumption that they are the client in the personal injury proceedings pursued on behalf of C.K.O. by the GAL and conservator. However, because C.K.O. is a minor child, the GAL and conservator was granted the power and authority to make decisions on C.K.O.’s behalf regarding the litigation. The Montana Rules of Professional Conduct specifically contemplate that a GAL and conservator should be appointed to represent an individual with diminished capacity such as a minor child. M. R. P. C. 1.14(b). Consistent with § 37-61-403, MCA, a change in counsel for CKO requires the consent of the client (C.K.O.’s GAL and conservator) and counsel, or an order of the court upon the application of either the attorney or the client. ¶43 In this case, when Viscomi received Morales’ letter, Viscomi went to O’Neill, C.K.O.’s GAL and conservator, and asked O’Neill for his direction with respect to Ann-Marie’s and Stanley’s request that Viscomi withdraw. O’Neill determined that, contrary to Ann-Marie’s and Stanley’s wishes, it would not be in C.K.O.’s best interests to change attorneys at this time. O’Neill filed his “Report to the Court” stating that Viscomi has done “significant legal work in evaluating and preparing for the negotiation and resolution of the minor’s claims against the tort-feasor that caused the minor’s injuries.” O’Neill also stated that in his opinion Viscomi was “best suited to complete the negotiation and resolution of the minor’s tort claims and that it would not be in the best interest of the minor to change legal counsel” as suggested by her parents. 16 ¶44 We therefore hold that § 37-61-403, MCA, does not conflict with the Montana Rules of Professional Conduct. ¶45 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ JIM RICE | March 20, 2013 |
86be7657-3a99-4f9a-aabe-2682b7a56485 | Newlin v. State | 2013 MT 66N | DA 12-0430 | Montana | Montana Supreme Court | DA 12-0430 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 66N MAX NEWLIN, Petitioner and Appellant, v. STATE OF MONTANA, on behalf of the Department of Justice, Motor Vehicle Division, Driver Improvement Bureau, Respondent and Appellee. APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Carbon, Cause No. DV 12-08 Honorable Blair Jones, Presiding Judge COUNSEL OF RECORD: For Appellant: Bradley J. Finn, Attorney at Law, Billings, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Alex Nixon, Carbon County Attorney, Red Lodge, Montana Submitted on Briefs: February 20, 2013 Decided: March 12, 2013 Filed: __________________________________________ Clerk March 12 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 Max Newlin appeals from an order of the Twenty-Second Judicial District Court, Carbon County, denying his Amended Petition for Judicial Review of License Suspension. The District Court orally denied the amended petition on March 22, 2012, at the conclusion of an evidentiary hearing. Thereafter, on June 27, the District Court entered its written Findings of Fact, Conclusions of Law, and Order. Newlin filed his Notice of Appeal on July 18. ¶3 On January 22, 2012, Red Lodge City Police Officer Matthew Grieshop was driving a marked patrol vehicle southbound on Highway 212 near Red Lodge, Montana. Grieshop was on duty and in uniform. Highway 212 is a public highway of the State and is a designated snow-removal route. That evening, it was clear and very cold, and there was snow on the shoulders of the highway. ¶4 At approximately 12:47 a.m., Grieshop observed a vehicle pulled over on the side of the highway. Two of the vehicle’s wheels were in the snow along the shoulder. Grieshop was concerned for the safety of the motorists, as the vehicle had pulled over on an unsafe portion of the road. The vehicle, although partially off the roadway, still presented a possible road hazard and potential obstruction to snow-removal equipment. There was little trafficat the time, and the homes in the immediate vicinity, many of which are seasonal or vacation 3 homes, appeared unoccupied or inactive. Given the time, the weather, and the locationof the vehicle, Grieshop was concerned for the well-being of the vehicle’s occupants and concerned that he may need to offer assistance to the driver or others in the vehicle. ¶5 The darkness prevented Grieshop from ascertaining, without stopping his patrol car and approaching the parked vehicle, whether assistance was needed. Grieshop, therefore, pulled up to the vehicle and activated his patrol vehicle lights for safety reasons. Grieshop exited his patrol car and approached the vehicle. Upon establishing contact with the driver (Newlin), Grieshop first asked “if everything was okay.” Grieshop immediately detected the odor of an alcoholic beverage and requested that Newlin submit to a preliminary alcohol screening test. Newlin refused, and Grieshop then seized his driver’s license. See § 61-8-402(4), MCA. ¶6 Newlin does not dispute that particularized suspicion to conduct a DUI investigation developed once Grieshop made contact with him. Newlin contends, rather, that there was an insufficient legal basis for his initial encounter with Grieshop. Newlin specifically raises the following issue on appeal: Did the District Court correctly apply the community caretaker doctrine in denying Newlin’s amended petition to reinstate his driver’s license? ¶7 We review a district court’s ruling on a petition for reinstatement of a driver’s license and driving privileges to determine whether the court’s findings of fact were clearly erroneous and its conclusions of law correct. Weer v. State, 2010 MT 232, ¶ 7, 358 Mont. 130, 244 P.3d 311. A finding is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if a review of the 4 record leaves this Court with a definite and firm conviction that a mistake has been made. State v. Hurlbert, 2009 MT 221, ¶ 16, 351 Mont. 316, 211 P.3d 869. ¶8 The issues to be determined by a district court in a hearing for reinstatement of a driver’s license and driving privileges are limited to: 1. whether the arresting officer possessed a particularized suspicion that the individual in question had been driving or was in actual physical control of a vehicle upon ways of this state while under the influence of alcohol or drugs; 2. whether the petitioner was lawfully under arrest including the existence of probable cause; and 3. whether the petitioner in fact declined to submit to a breath test. Widdicombe v. State, 2004 MT 49, ¶ 8, 320 Mont. 133, 85 P.3d 1271. Newlin’s challenge relates to the first issue—whether Grieshop had particularized suspicion—because Newlin argues that the “seizure” from which Grieshop’s particularized suspicion developed in this case was not authorized under the community caretaker doctrine. In other words, Newlin concedes that once Grieshop was at the side of his vehicle and made initial contact with Newlin, Grieshop developed particularized suspicion that Newlin had been driving under the influence of alcohol. Newlin argues, however, that Grieshop was not lawfully present at the side of his vehicle at the time when Grieshop developed the particularized suspicion. ¶9 As an initial matter, Newlin contends the District Court incorrectly concluded that the stop was not a seizure. Newlin maintains that when Grieshop activated his patrol lights, pulled in behind Newlin’s vehicle, and made contact with him, he was “seized.” Because we conclude that Grieshop’s encounter with Newlin was legal under the community caretaker doctrine, we need not determine the correctness of the District Court’s conclusion that 5 “Grieshop’s actions . . . did not initially constitute a detention or seizure.” We recognize, as we did in State v. Spaulding, 2011 MT 204, 361 Mont. 445, 259 P.3d 793, that there may be fact-specific situations in which a welfare check does not involve a seizure. Spaulding, ¶ 19. Nonetheless, the community caretaker stop and the Terry stop “are simply different branches of the same principle—both are constitutionally ‘reasonable’ warrantless seizures because both are grounded in the officer’s necessarily swift action or reaction to an on-the-spot situation, limited in scope to the purpose for which the stop is made.” Spaulding, ¶ 18 (discussing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)). Thus, “[i]n the usual case, a welfare check by its very nature necessarily involves a brief seizure . . . in order for the officer to ascertain whether the citizen needs assistance or is in peril.” Spaulding, ¶ 18. ¶10 We use the following test to determine if the community caretaker doctrine applies in an encounter between government officials and citizens: First, as long as there are objective, specific, and articulable facts from which an experienced officer would suspect that a citizen is in need of help or is in peril, then that officer has the right to stop and investigate. Second, if the citizen is in need of aid, then the officer may take appropriate action to render assistance or mitigate the peril. Third, once, however, the officer is assured that the citizen is not in peril or is no longer in need of assistance or that the peril has been mitigated, then any actions beyond that constitute a seizure which must be justified by something other than the community caretaker doctrine, such as particularized suspicion or probable cause. Spaulding, ¶ 21 (footnote omitted); State v. Lovegren, 2002 MT 153, ¶ 25, 310 Mont. 358, 51 P.3d 471; State v. Graham, 2007 MT 358, ¶ 25, 340 Mont. 366, 175 P.3d 885. ¶11 Police officers have a duty not only to fight crime, but also to investigate uncertain situations in order to ensure public safety. State v. Marcus Nelson, 2004 MT 13, ¶ 6, 319 Mont. 250, 84 P.3d 25. This Court has previously recognized that it would be a dereliction 6 of an officer’s duties to walk away from an uncertain situation in which a motorist may be in need of help. Lovegren, ¶ 26; State v. Seaman, 2005 MT 307, ¶ 15, 329 Mont. 429, 124 P.3d 1137. Moreover, for officers to discharge their duties effectively, they must be given some latitude to react to and follow up on their observations. See State v. Jonathan Nelson, 2004 MT 310, ¶ 23, 323 Mont. 510, 101 P.3d 261. ¶12 In the instant case, the winter weather and temperature, the time of day, the location and manner in which the vehicle was parked, and the possibility that the vehicle was creating a road hazard and potential obstacle on a snow-removal route are objective, specific, and articulable facts from which Grieshop could suspect that his assistance might be needed. Indeed, under these circumstances, it was Grieshop’s duty to investigate the situation. Cf. Spaulding, ¶ 25. Thereafter, upon encountering Newlin and detecting the odor of alcohol, the welfare check ripened into a particularized suspicion to conduct an investigation into driving under the influence, which eventually developed into probable cause for an arrest. Such an escalation of events, leading to Newlin’s arrest and license revocation, was proper. See Lovegren, ¶ 27 (citing Hulse v. State, 1998 MT 108, 289 Mont. 1, 961 P.2d 75, and Grinde v. State, 249 Mont. 77, 81, 813 P.2d 473, 476 (1991)). ¶13 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. A review of the record demonstrates that no mistake or misapprehension was made by the District Court in its consideration of the evidence. Further, there is substantial evidence in the record supporting the District Court’s finding that Grieshop had objective, specific, and articulable facts which would justify a concern that assistance might be needed. Finally, the law setting 7 forth the community caretaker doctrine confirms that the District Court’s conclusions of law regarding the doctrine’s applicability to the present case were correct. ¶14 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BRIAN MORRIS | March 12, 2013 |
4691d5f3-aa84-40a9-b3fe-f15465ba9f10 | 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 or application; 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 |
56ddc16b-41b3-4a17-959f-14bf6a936d15 | State v. Jent | 2013 MT 93 | DA 12-0399 | Montana | Montana Supreme Court | DA 12-0399 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 93 STATE OF MONTANA, Plaintiff and Appellee, v. BRIAN KEITH JENT, Defendant and Appellant. APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Dawson, Cause No. DC-11-075 Honorable Richard A. Simonton, Presiding Judge COUNSEL OF RECORD: For Appellant: Joseph P. Howard, Attorney at Law, Great Falls, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Olivia Norlin-Rieger, Dawson County Attorney, Glendive, Montana Submitted on Briefs: February 27, 2013 Decided: April 9, 2013 Filed: __________________________________________ Clerk April 9 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Brian Keith Jent pleaded guilty to the aggravated assault of his wife, Nancylee Cadorette. As part of his sentence, the Seventh Judicial District Court, Dawson County, ordered Jent to pay $44,112.74 in restitution, including $19,866.69 for Cadorette’s medical expenses arising from her suicide attempt two and a half months after Jent’s assault. Jent appeals only that portion of his sentence involving the $19,866.69 in restitution. He claims that Cadorette, in respect to her suicide attempt, cannot be considered a “victim” of his offense for restitution purposes, and that there was no causal connection between his criminal conduct and the medical expenses associated with the suicide attempt. We affirm the District Court’s order of restitution. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Jent and Cadorette, husband and wife, have what can be characterized as a tumultuous and often violent relationship. On October 27, 2011, Jent and Cadorette got into a drunken argument. Jent struck Cadorette in the face, fracturing the orbital wall of her right eye socket. Cadorette was initially treated at Glendive Medical Center and subsequently underwent surgery in Billings. Jent also damaged Cadorette’s vehicle, television, and computer. ¶3 On November 18, 2011, the State charged Jent with aggravated assault and two counts of felony criminal mischief. On January 13, 2012, Jent pleaded guilty to aggravated assault pursuant to a plea agreement which recommended a sentence of eight years to the Department of Corrections, with six years suspended, and various conditions, including restitution. Jent agreed to pay restitution for Cadorette’s medical bills in an 3 amount to be determined prior to sentencing. The State moved to dismiss the criminal mischief counts. ¶4 On the same day that Jent pleaded guilty, Cadorette ingested a bottle of Ambien and two bottles of Crown Royal whiskey. This occurred two days after Cadorette’s January 11, 2012 meeting with the prosecutor and defense counsel where the criminal proceedings against Jent were discussed. As a result of her suicide attempt, Cadorette spent the next several days in a behavioral health unit and accumulated medical expenses totaling $19,866.69. ¶5 A probation/parole officer prepared a presentence investigation report (PSI) for sentencing. The Restitution section of the PSI identifies $19,866.69 as “the costs associated with [Cadorette’s] medical care due to her mental health issues occurring after the instant offense.” Cadorette also prepared an Affidavit of Victim’s Pecuniary Loss, which the District Court admitted into evidence over Jent’s objection. In addition to other amounts claimed as restitution, which are not at issue in this appeal, the affidavit included the $19,866.69 in medical expenses related to her suicide attempt. ¶6 In the Victim’s Impact section of the PSI, the probation/parole officer notes that she spoke with Cadorette on March 5, 2012. Cadorette told the officer that she had attempted suicide on two separate occasions since Jent’s offense, the most recent on January 13. Cadorette stated that she had attempted suicide “because she felt guilty about what happened and was blaming herself for the instant offense.” Cadorette also stated that she felt Jent’s plea agreement with the State was “harsh” and that he “just needs anger treatment.” The probation/parole officer reiterated these facts during her testimony 4 at Jent’s sentencing hearing. She testified that at their March 5 meeting, Cadorette “voiced a lot of guilty feelings, feelings that she was somehow at fault for this.” Cadorette “blamed herself a lot in the instant offense.” Jent did not refute the officer’s testimony in this regard. ¶7 Cadorette also testified at the sentencing hearing. She explained that her relationship with Jent was “pretty rocky” and often violent, and that two of Jent’s prior offenses involved assaults against her. She admitted responsibility for participating in some of the marital disputes. Regarding the instant offense, Cadorette testified that she had not asked Jent to pay her medical expenses arising out of her January 13, 2012 suicide attempt. Nevertheless, she agreed that her suicide attempt was “directly related” to Jent’s assault against her eleven weeks earlier, and that her meeting with the prosecutor and defense counsel on January 11 had “drudged up” her memories of the assault. Cadorette further testified that her therapist had reached the conclusion that Cadorette’s suicide attempt was “directly correlated” to the assault. ¶8 The District Court sentenced Jent to eight years at the Department of Corrections, with three years suspended. The court ordered Jent to pay $44,112.74 in restitution, including $19,866.69 for Cadorette’s medical expenses related to her suicide attempt. Jent now appeals the imposition of the $19,866.69 in restitution. STANDARDS OF REVIEW ¶9 Pursuant to § 46-18-201(5), MCA, if a person has been found guilty of an offense, whether by a verdict of guilty or by a plea of guilty or nolo contendere, and the sentencing judge finds that a “victim” has sustained a “pecuniary loss,” as defined in 5 § 46-18-243, MCA, then the sentencing judge shall, as part of the sentence, require payment of full restitution to the victim, as provided in §§ 46-18-241 through -249, MCA. Such analysis requires the sentencing judge to apply the statutory definitions of “victim” and “pecuniary loss” to the factual circumstances of the case. This constitutes a mixed question of law and fact. State v. Warclub, 2005 MT 149, ¶ 21, 327 Mont. 352, 114 P.3d 254 (“mixed questions of law and fact are those in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard” (internal quotation marks omitted)). ¶10 In reviewing such questions on appeal, the sentencing court’s factual findings will not be disturbed unless they are clearly erroneous, but whether those facts satisfy the legal standard is reviewed de novo. Warclub, ¶ 23; State v. Weaver, 2008 MT 86, ¶ 10, 342 Mont. 196, 179 P.3d 534. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court has 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. State v. Breeding, 2008 MT 162, ¶ 11, 343 Mont. 323, 184 P.3d 313. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence, but may be somewhat less than a preponderance. Johnston v. Palmer, 2007 MT 99, ¶ 26, 337 Mont. 101, 158 P.3d 998. DISCUSSION ¶11 Did the District Court err by requiring Jent to pay restitution for medical expenses arising from Cadorette’s suicide attempt? 6 ¶12 As noted, when a criminal defendant pleads guilty to an offense, the sentencing court must impose restitution if the offender’s criminal conduct resulted in pecuniary loss to a victim. Section 46-18-201(5), MCA. The restitution must be “full” and to “any victim who has sustained pecuniary loss, including a person suffering an economic loss.” Section 46-18-241(1), MCA. Restitution engrafts a civil remedy onto a criminal statute, creating a procedural shortcut for crime victims who would be entitled to a civil recovery against the offender. State v. Brownback, 2010 MT 96, ¶ 19, 356 Mont. 190, 232 P.3d 385. This Court has determined that restitution is not to be limited by the definition of the offense or to only those injuries arising as a “direct” result of the offense. See State v. LaTray, 2000 MT 262, ¶¶ 12-14, 302 Mont. 11, 11 P.3d 116. The plain language of the restitution statutes “does not limit restitution to victims defined in terms of the offense for which the defendant was convicted or to losses arising directly from the defendant’s criminal conduct.” LaTray, ¶ 12; see also State v. Ness, 2009 MT 300, ¶ 20, 352 Mont. 317, 216 P.3d 773. ¶13 The victim, for purposes of restitution, may be any person who suffers loss of property, bodily injury, or death “as a result of” the offender’s criminal conduct, and may also include a governmental entity that suffers loss of property “as a result of” the commission of the offense. Section 46-18-243(2)(a)(i), (iii), MCA. Moreover, pecuniary loss includes special damages that a person could recover against the offender in a civil action “arising out of” the offender’s criminal activities. Section 46-18-243(1)(a), MCA. It also includes the full replacement cost of property taken, destroyed, harmed, or otherwise devalued “as a result of” the offender’s criminal conduct, and future medical 7 expenses that the victim can reasonably be expected to incur “as a result of” the offender’s criminal conduct. Section 46-18-243(1)(b), (c), MCA. Thus, a causal relation between the offender’s criminal conduct and the pecuniary loss is the touchstone for determining whether a person or entity is a victim entitled to restitution. City of Billings v. Edward, 2012 MT 186, ¶ 26, 366 Mont. 107, 285 P.3d 523; Brownback, ¶ 20; Breeding, ¶ 13. Further, a pecuniary loss may be so attenuated as to no longer be considered “a result of” the offense. Ness, ¶ 20; LaTray, ¶ 14; Brownback, ¶ 20 n. 1. ¶14 In determining Jent’s restitution obligation for Cadorette’s medical expenses, we must examine the causal relation between his offense of aggravated assault (fracturing the orbital wall of Cadorette’s right eye socket) and Cadorette’s suicide attempt. Jent maintains that Cadorette’s losses were self-inflicted and did not result from his breaking her right orbital socket. Jent thus argues that Cadorette cannot be considered a “victim” for purposes of determining pecuniary loss. Although Jent does not dispute that Cadorette was a victim of his aggravated assault, he argues that she cannot be considered a victim in relation to her own suicide attempt because any losses she suffered were not “as a result of . . . the commission of an offense.” Section 46-18-243(2)(a)(i)(A), MCA. Jent’s analysis of the meaning of “victim,” however, ignores the consideration of a causal connection between his underlying offense and Cadorette’s suicide attempt. If such connection is established, the losses sustained by Cadorette were “as a result of” Jent’s offense. ¶15 This Court previously examined the nature of the causal connection between an injury and a subsequent suicide in the context of a workers’ compensation proceeding. In 8 Campbell v. Young Motor Co., 211 Mont. 68, 70-71, 684 P.2d 1101, 1102 (1984), we refused to recognize suicide as an intentional act that automatically breaks the chain of causation to defeat a claim for death benefits. Favorably quoting a case from Delaware, we stated: “In applying this [chain of causation] test, death by suicide would be compensable if it is caused by severe pain and despair which proximately results from a compensable accident, and is of such a degree as to override normal and rational judgment. A suicide committed under such circumstances cannot be said to be ‘intentional’ even though the act itself may be volitional.” [Delaware Tire Center v. Fox, 401 A.2d 97, 100 (Del. Super. 1979).] This chain of causation rule recognizes that the injury and the post-injury trauma, mental as well as physical, may take a path anticipated by no one, but nonetheless be traceable to the injury itself. Campbell, 211 Mont. at 72, 684 P.2d at 1103 (first brackets in original, paragraph break omitted). ¶16 Cadorette’s suicide attempt occurred on the same day Jent pleaded guilty, and two days after she had discussed the criminal proceedings against Jent with the prosecutor and defense counsel. Cadorette testified that this discussion “drudged up” her feelings about the assault. She felt guilty about what had happened, was blaming herself for Jent’s offense, and felt responsible for the harsh penalty she believed Jent was receiving. Given the relatively short timespan of eleven weeks between Jent’s criminal conduct and Cadorette’s subsequent suicide attempt, it appears that the deterioration in her mental health was related to the events in Jent’s criminal proceedings, the nature of the particular offense, and the dynamics of the parties’ marital relationship. Most importantly, in response to questioning by the sentencing judge, Cadorette testified that the suicide attempt was “directly related” to Jent’s assault upon her. The record supports the District 9 Court’s determination that a causal connection exists between Jent’s offense and Cadorette’s suicide-related medical expenses. ¶17 This conclusion is consistent with our prior decisions regarding an offender’s restitution obligation and an asserted attenuated loss. In State v. Grindheim, 2004 MT 311, ¶¶ 55-56, 323 Mont. 519, 101 P.3d 267, we affirmed the district court’s order that the defendant, who had been found guilty of sexual intercourse without consent, pay the victim’s future counseling costs. In State v. Perkins, 2009 MT 150, 350 Mont. 387, 208 P.3d 386, we concluded that the childcare costs incurred by P.M. (the child-victim’s aunt) were recoverable as restitution because the behavior of the defendant (Perkins) had caused the child (C.C.) to be removed from the mother’s home and placed in P.M.’s care. We observed that “Perkins’ conduct was the precipitating event in the youth in need of care proceedings that led to removal of C.C. from her mother’s home and placement with P.M.” Perkins, ¶ 10. In Ness, the defendant tampered with evidence by washing his vehicle following a hit-and-run accident. We determined that his action of striking the victim with his vehicle created the evidence with which he ultimately tampered. Had he not struck the victim, the charge of tampering with the evidence from that incident would not have arisen. Ness, ¶ 16. The victim died from the injuries she received when Ness’s vehicle struck her, thus incurring funeral expenses. We held that these expenses resulted from Ness’s actions. Ness, ¶ 21. Lastly, we held in LaTray that towing and ambulance services, which had responded to the scene of the defendant’s offense, were entitled to restitution for their expenses. We observed that “Montana’s restitution statute does not confine restitution to the amount by which a defendant enriches himself at the victim’s 10 expense but[,] rather, empowers courts to impose restitution for economic loss as a result of the crime.” LaTray, ¶ 21. We specifically held that “LaTray’s criminal acts created a situation in which ambulance and towing services were reasonably necessary for public safety or for the safety of LaTray himself. The expenditures incurred by the ambulance and towing services were a result of LaTray’s crime.” LaTray, ¶ 22. ¶18 In the instant proceeding, Cadorette’s suicide attempt is causally related to Jent’s action of fracturing her right orbital socket. There is a definite connection between the underlying aggravated assault and Cadorette’s mental health. This is reflected not only in the parties’ violent and tumultuous marital relationship, which is a factor bearing on the existence of a causal connection in this case, but also in Cadorette’s testimony that her suicide attempt was “directly related” to Jent’s assault. Jent’s conduct created a situation which resulted in medical expenses arising from the compromised mental health of his victim. Accordingly, there is a causal connection between Jent’s offense and the restitution requirement for Cadorette’s suicide attempt. ¶19 Jent additionally asserts that there was no “nexus or correlation” between his offense and the restitution requirement. We find this argument to be without merit. The nexus requirement is based on our cases interpreting §§ 46-18-201(4) and -202(1), MCA. See Ness, ¶¶ 10-11; City of Bozeman v. Cantu, 2013 MT 40, ¶ 20, 369 Mont. 81, 296 P.3d 461. Given our conclusion that the medical expenses relating to Cadorette’s suicide attempt are causally connected to Jent’s underlying offense of aggravated assault, we have little difficulty in also concluding that there is a nexus between Jent’s offense and his obligation to pay restitution for those medical expenses. Cf. Ness, ¶ 17 (“Restitution 11 for Sherman’s funeral expenses has ‘some correlation or connection to the underlying offense’ for which Ness was sentenced. . . . Thus, there is a nexus or correlation between the crime and the restitution requirement.”). ¶20 Finally, Jent argues that Cadorette’s medical expenses would not have been recoverable in a civil action against him. He cites § 46-18-243(1)(a), MCA, which defines “pecuniary loss” as “all special damages . . . , substantiated by evidence in the record, that a person could recover against the offender in a civil action” (emphasis added). He also relies on § 46-18-244(2), MCA, which states that “[i]n the proceeding for the determination of the amount of restitution, the offender may assert any defense that the offender could raise in a civil action for the loss for which the victim seeks compensation.” Jent contends that there was not any substantial evidence demonstrating that his conduct was the “proximate cause” of Cadorette’s suicide attempt. He also contends that Cadorette had a duty to mitigate her damages by seeking psychological counseling, rather than attempting suicide. ¶21 Jent had the opportunity to assert mitigation in the District Court. He did not do so, and we will not review that question for the first time on appeal. State v. Ferguson, 2005 MT 343, ¶ 38, 330 Mont. 103, 126 P.3d 463. As for Jent’s evidentiary argument, the District Court considered Cadorette’s Affidavit of Victim’s Pecuniary Loss, as permitted by § 46-18-242, MCA. No evidence was presented that would dispute the accuracy or correctness of the amount of medical expenses set forth in the affidavit. The District Court also considered, and accepted, Cadorette’s testimony that her suicide attempt was directly related to Jent’s instant offense. Given this testimony, as well as 12 Cadorette’s feelings of guilt and self-blame arising out of the incident, the timing of her suicide attempt, and the nature of the parties’ relationship, we simply are not persuaded by Jent’s contention that Cadorette’s desperate act was “too far removed” from Jent’s assault to have been (as he puts it) “proximately caused” by the assault. ¶22 Based on the foregoing discussion, we hold that the District Court did not err in determining that Cadorette’s suicide attempt was “a result of” Jent’s criminal conduct. We further conclude that substantial evidence in the record supports the restitution obligation. We thus uphold the District Court’s restitution order totaling $44,112.74, which includes $19,866.69 for medical expenses incurred as a result of the suicide attempt. ¶23 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ BETH BAKER /S/ PATRICIA COTTER /S/ BRIAN MORRIS /S/ JIM RICE | April 9, 2013 |
5e15d55a-7c15-4cc0-8df1-bccaa8c368cc | In re K.E.G. | 2013 MT 82 | DA 12-0364 | Montana | Montana Supreme Court | DA 12-0364 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 82 IN THE MATTER OF: K.E.G., A Youth Under the Age of 18. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DJ 12-008 Honorable Ingrid G. Gustafson, Presiding Judge COUNSEL OF RECORD: For Appellant: Julie Brown; Montana Legal Justice, PLLC; Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant Attorney General; Helena, Montana Scott Twito, Yellowstone County Attorney; Christopher Morris, Deputy County Attorney; Billings, Montana Submitted on Briefs: January 16, 2013 Decided: April 2, 2013 Filed: __________________________________________ Clerk April 2 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 K.E.G. appeals a commitment order from the Montana Thirteenth Judicial District Youth Court, Yellowstone County, which ordered him to pay $78,702.09 in restitution. We reverse in part and remand with directions to the Youth Court to hold a new restitution hearing. ¶2 We restate the issue on appeal as follows: Did the Youth Court commit plain error when it concluded that K.E.G. was jointly and severally liable for the full amount of restitution for damages caused by the youths, without considering K.E.G.’s ability to pay that restitution? PROCEDURAL AND FACTUAL BACKGROUND ¶3 Between December 22, 2011, and January 1, 2012, the Billings Police Department responded to over 200 reports of vandalism. During this eleven-day period, vandals shot the windows out of homes and vehicles with air guns, damaged vehicles with baseball bats, and set two cars on fire. An investigation led by local school resource officers indicated that K.E.G., a fifteen-year-old male, had taken part in the vandalism. ¶4 On January 10, 2012, K.E.G. and his mother met with Officer Jerry Smidt of the Billings Police Department. K.E.G. waived his rights and provided a statement to Officer Smidt. He admitted to committing acts of vandalism on December 26 and December 27, but stated he did not participate on any other date. According to an affidavit submitted by the Yellowstone County Attorney, K.E.G. admitted that he had “hit two windows with the gun” and “four or five windows with the bat” on the first night and that he had “hit five windows with the BB gun and three with the bat” on the second night. 3 ¶5 Approximately two weeks later, the county attorney filed a petition alleging that K.E.G. was a delinquent youth for having committed criminal mischief (common scheme), a felony, in violation of §§ 45-6-101 and 45-2-101(8), MCA. Other youths involved in the vandalism similarly were charged. K.E.G. denied the State’s allegations at his initial appearance on February 9, 2012. During a change of plea hearing in late March, K.E.G. admitted to having committed criminal mischief, common scheme, as alleged in the State’s petition. The youth then detailed the acts of vandalism he committed on December 26 and December 27. The Youth Court accepted K.E.G.’s admission and change of plea. ¶6 Because K.E.G. contested the State’s attempt to hold him jointly and severally liable for all damages caused during the eleven-day period of vandalism, the parties briefed the issue of restitution prior to the court’s dispositional hearing. K.E.G. argued that, since he had admitted to participating in only two of the eleven nights of vandalism, “his restitution should be jointly and severally liable for only December 26th and 27th” in the amount of $16,020.63. The State countered by asserting that the Youth Court should “impose restitution in the amount of $78,702.09” pursuant to §§ 45-6-101(4) and 45-2- 101(8), MCA. ¶7 The Youth Court held a hearing on restitution and disposition on April 23, 2012. K.E.G. and the county attorney presented arguments on the proper amount of restitution. At the hearing, the Youth Court made the following comments: With regard to restitution, the problem of course is that while you may not have been present at every act of criminal mischief, you have admitted to being responsible as part and parcel of a common scheme, and the 4 common scheme asserted in the petition was the entire common scheme, and all of the days of this criminal mischief that went on with the various participants. And it seems to me that because of that admission, you should in fact be joint[ly] and severally liable with any other defendants that are -- or youth that are found to be responsible for the damage caused in this matter. And I am going to order that you be responsible for that restitution in the amount of $78,702.09. Now, I understand that in five years as a youth, it will be nearly impossible, unless some -- something befalls upon you financially for you to pay that. . . . And my hope is that you will at least make some payments with restitution to make amends for the problems that you have caused basically unsuspecting people in our community. (Emphasis added.) The Youth Court did not inquire into the extent of K.E.G.’s assets or his prospects for future earnings. ¶8 After the hearing, the court entered a dispositional order that adjudicated K.E.G. a delinquent youth for having committed criminal mischief (common scheme), a felony, and committed him to the Department of Corrections until his eighteenth birthday, with recommended placement at Pine Hills Youth Correctional Facility. The court also ordered K.E.G. to “pay restitution in the amount of $78,702.09 . . . joint and several in monthly payments of not less than $50.00 . . . or 50% of his net wages whichever is greater, with the first payment due within 30 days.” The Youth Court retained jurisdiction over K.E.G. for restitution purposes until his twenty-first birthday, or until the restitution is paid in full. K.E.G. appeals from the portion of the dispositional order that ordered him to pay $78,702.09 in restitution. 5 STANDARD OF REVIEW ¶9 The court’s determination of the appropriate measure of restitution is a question of law, reviewed for correctness. State v. Johnson, 2011 MT 116, ¶ 13, 360 Mont. 443, 254 P.3d 578 (citing State v. Pritchett, 2000 MT 261, ¶ 18, 302 Mont. 1, 11 P.3d 539). DISCUSSION ¶10 Did the Youth Court commit plain error when it concluded that K.E.G. was jointly and severally liable for the full amount of restitution for damages caused by the youths, without considering K.E.G.’s ability to pay that restitution? ¶11 K.E.G. argues that he should be responsible to pay restitution for the amount of damage that was caused only on the nights during which he participated in the vandalism and that the joint and several liability for restitution imposed under the criminal mischief statute should not be applied to youthful offenders. The State argues that, pursuant to § 45-6-101(4), MCA, “the Youth Court was authorized by the Youth Court Act to aggregate the damages, and thus to order K.E.G. to pay restitution, jointly and severally, with the right of contribution, to all of the victims for all ten days of the common scheme.” The State maintains that requiring full restitution imposes accountability and contributes to the youth’s rehabilitation, arguing that it is not retributive simply because the youth will not be able to pay the full amount before the court loses jurisdiction over him. K.E.G. responds to this argument by pointing out that the Youth Court recognized it would be impossible for him to meet the restitution requirement, asserting that “[i]f Mont. Code Ann. § 45-6-101(4) is the basis for the amount of restitution owed by K.E.G., the case should be remanded for a full consideration of K.E.G.’s ability to pay” 6 $78,702.09 in restitution. K.E.G. claims that the Youth Court failed to fully consider K.E.G.’s ability to pay that amount as required by § 45-6-101(2), MCA. ¶12 The Montana Youth Court Act states that restitution is to be ordered by the youth court in “appropriate cases.” Section 41-5-102(2)(c), MCA. When determining whether restitution is appropriate, the youth court may consider a number of factors, “in addition to any other evidence.” Section 41-5-1521(1), MCA. Those factors include “the age of the youth, the ability of the youth to pay, the ability of the parents or guardians to pay, the amount of damage to the victim, and legal remedies of the victim.” In the Matter of T.M.R., 2006 MT 246, ¶ 14, 334 Mont. 64, 144 P.3d 809 (citing § 41-5-1521, MCA). Once the youth court determines that restitution is appropriate, it may order the youth to pay restitution. Sections 41-5-1513(1)(a), -1512(1)(d), MCA. ¶13 In this case, the Youth Court determined that restitution was appropriate and that K.E.G. should be held jointly and severally liable pursuant to § 45-6-101(4), MCA. Although the Dissent correctly notes that “K.E.G. has not been ‘convicted’ of” violating the statute, it errs in concluding that this statute therefore “is inapplicable.” Dissent, ¶ 40. The Youth Court Act expressly authorizes the Youth Court to order a delinquent youth to pay restitution “for damages that result from the offense for which the youth is disposed . . . .” In re T.M.R., ¶ 18 (quoting §§ 41-5-1512(1)(d), -1513(1)(a), MCA). The offense for which K.E.G. was disposed was § 45-6-101(4), MCA, which provides that “[a]mounts involved in criminal mischiefs committed pursuant to a common scheme or the same transaction, whether against the public or the same person or several persons, may be aggregated in determining pecuniary loss.” 7 ¶14 K.E.G. admitted to committing the offense of criminal mischief pursuant to a common scheme, which is “a series of acts or omissions motivated by a purpose to accomplish a single criminal objective or by a common purpose or plan that results in the repeated commission of the same offense . . . .” Section 45-2-101(8), MCA. Because K.E.G. acknowledged that he acted as part of a common criminal plan that resulted in 200 reports of vandalism against homes and vehicles in Billings between December 22, 2011, and January 1, 2012, the Youth Court was statutorily authorized to impose restitution for the aggregate damages that resulted from that common scheme during the time period charged. ¶15 In re T.M.R. does not counsel a different result. In that case, we noted that the adult sentencing statutes did not apply to a disposition under the Youth Court Act, and thus the Court was compelled to “fill in the gap left by the legislature” in determining the amount of restitution that should be imposed. In re T.M.R., ¶¶ 16-18. In this case, the District Court did not apply adult sentencing statutes and there is no gap. Rather, aggregation of damages is allowed by the criminal statute defining “the offense for which the youth is disposed,” for which the Youth Court Act expressly authorizes restitution. Sections 41-5-1512(1)(d), -1513(1)(a), MCA. Our conclusion is not altered by construing the Youth Court Act’s restitution provision “in an ‘equitable fashion’” in order to effectuate “‘the intent of the legislature,’” In re T.M.R., ¶ 18, since the expressed purposes of the Youth Court Act include restitution and accountability through “immediate” consequences of a youth’s actions. Section 41-5-102(2)(a), (c), MCA. As vandalism sprees are not uncommonly the province of young, immature offenders, we 8 would do a disservice to the legislature’s intent were we to exempt youth from this application of the criminal mischief statute when they admit to participating in a common scheme. ¶16 Nonetheless, while the aggregation of damage may well be appropriate to achieve the accountability goals of the Youth Court Act, both that Act and the applicable criminal law call for an examination of the offender’s ability to pay. Sections 41-5-1521(1)(b), 45-6-101(2), MCA. The transcript of the dispositional and restitution hearing reflects almost no discussion of K.E.G.’s ability to pay, except the Youth Court’s acknowledgment that it would be “nearly impossible” for him to meet the obligation, but that the court hoped he would “at least make some payments.” Since the record also reflects that K.E.G. did not object to a restitution order without evidence of his ability to pay, we consider whether the issue is appropriate for review on appeal. ¶17 We generally “refuse to review on appeal an issue to which the party failed to object at the trial court.” State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892 (citing State v. Lenihan, 184 Mont. 338, 341, 602 P.2d 997, 999 (1979)). While we have recognized an exception to this general rule for review of an illegal sentence, Lenihan, 184 Mont. at 343, 602 P.2d at 1000, we do not apply that exception here, since the failure to consider a defendant’s ability to pay amounts only “to an objectionable sentence,” which we have refused to consider absent a contemporaneous objection. Kotwicki, ¶ 13. ¶18 Despite the absence of contemporaneous objection, we will conduct “plain error” review if an alleged error “implicate[s] a defendant’s fundamental constitutional rights 9 and if our failure to review the claimed error may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process.” In the Matter of C.T.P., 2004 MT 63, ¶ 15, 320 Mont. 279, 87 P.3d 399. ¶19 The Dissent correctly points out that we have reserved plain error review for questions implicating constitutional rights rather than statutory-based claims. Dissent, ¶ 30. The issue in this case, however, does have constitutional implications. Under Montana’s Constitution, a person under eighteen has “all the fundamental rights of [an adult] unless specifically precluded by laws which enhance the protection of such persons.” Mont. Const. art. II, § 15. We have recognized that a youth in the youth court system facing “a disposition different from an adult who has committed the same offenses” is “not similarly situated” to the adult with respect to Montana’s sentencing laws. In re S.M.K.-S.H, 2012 MT 281, ¶ 28, 367 Mont. 176, 290 P.3d 718. The disposition in a youth court case should effectuate the Youth Court Act’s purposes to prevent and reduce youth delinquency through a system that does not seek retribution but that provides consistent and enforceable consequences designed to accomplish a number of objectives, including rehabilitation of the youth, protection of the community, and restitution to victims. Section 41-5-102(2), MCA. ¶20 The criminal mischief statute expressly provides that, before a court may impose restitution, it must “determine the manner and amount of restitution after full consideration of the convicted person’s ability to pay the restitution.” Section 45-6- 101(2), MCA (emphasis added). That subsection of the statute also requires that full 10 payment of restitution “must be made prior to the release of state jurisdiction” over the offender. ¶21 Other courts have recognized the importance of a realistic, defined restitution order for juvenile offenders to “permit the juvenile to feel that he or she is gainfully making amends for past transgressions.” In re Laurance S., 742 N.W.2d 484, 489 (Neb. 2007) (citing State v. Kristopher G., 500 S.E.2d 519, 522 (W. Va. 1997) (stating that “[a]ny restitution award should . . . be set in an amount that is within the realistic ability of the children to pay within a reasonable period of time, so that they can complete a probationary period, put . . . events behind them, and move forward”)). The “salutary purpose” an appropriate restitution order serves by “‘making the offender understand that he has harmed not merely society in the abstract but also individual human beings, and that he has a responsibility to’ the victim . . . , would be directly undermined by the imposition of a restitution order that the juvenile is financially unable to pay.” In re Laurance S., 742 N.W.2d at 489 (quoting In re Brian S., 181 Cal. Rptr. 778, 780 (Cal. Ct. App. 1982)). Restitution may take on constitutional dimension in a youth case when the imposition fails to consider the enhanced protections embodied in the Youth Court Act’s objectives of promoting the development of youth and providing a program of supervision and rehabilitation that avoids retribution and keeps youth from becoming adult offenders. Section 41-5-102, MCA. ¶22 Given the significant amount of restitution at issue in this case, the youth’s commitment to Pine Hills, and the potential long-term consequences of the restitution order, K.E.G.’s future earning capacity and any assets available to immediately put 11 toward restitution were key considerations to determining whether his disposition would meet the objectives of the Youth Court Act and the requirements of § 45-6-101(2), MCA. Under these circumstances, we conclude that the Youth Court’s failure to fully consider K.E.G.’s ability to pay prior to imposing aggregate restitution may leave unsettled the fundamental fairness to K.E.G. of the proceedings against him and therefore constituted plain error. ¶23 For the foregoing reasons, the Youth Court’s April 25, 2012 order is reversed in part and remanded with directions to the Youth Court to hold a new restitution hearing pursuant to §§ 45-6-101(2) and 41-5-1521(1), MCA, to consider K.E.G.’s ability to pay the full amount of restitution. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JIM RICE Justice Laurie McKinnon, concurring in part and dissenting in part. ¶24 I concur in the Court’s decision to reverse the Youth Court’s order and remand for the entry of a corrected restitution amount. I respectfully dissent, however, from the Court’s analysis in reaching this conclusion. First, I believe the Court has improperly resolved this case based on a legal theory that K.E.G. neither raised in the Youth Court 12 nor relied on in his appeal before this Court. Second, I disagree with the Court’s application of adult sentencing statutes to youth cases, where the Montana Youth Court Act has not expressly authorized the application of adult statutes. Finally, with respect to the legal theory that K.E.G. actually did raise in this appeal, it is my view that, under our caselaw and applicable statutes, K.E.G. cannot be required to pay restitution for damages which he did not admit he caused and which the State never proved he caused. I address these three points in turn. I. The Court’s Sua Sponte “Plain Error” Review ¶25 “It is perhaps our most fundamental rule of appellate review that, with rare exception, we will not consider an issue or claim that was not properly preserved for appeal.” State v. Norman, 2010 MT 253, ¶ 16, 358 Mont. 252, 244 P.3d 737. To properly preserve an issue for appeal, it is necessary that the issue be timely raised in the first instance in the trial court. Norman, ¶ 16. One oft-stated reason for this rule is that “it is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider.” State v. West, 2008 MT 338, ¶ 16, 346 Mont. 244, 194 P.3d 683 (internal quotation marks omitted); see also e.g. State v. Clary, 2012 MT 26, ¶ 19, 364 Mont. 53, 270 P.3d 88 (“[W]e will not put a district court in error for failing to address an issue or an argument that was not made before it.” (internal quotation marks omitted)); State v. Evans, 2012 MT 115, ¶ 26, 365 Mont. 163, 280 P.3d 871 (“While Evans faults the State and the District Court for the claimed errors listed above, neither was afforded an opportunity to correct or explain them because Evans made no contemporaneous objection.”). “Above all else,” however, “the rationale 13 underlying the timely-objection rule is judicial economy and bringing alleged errors to the attention of each court involved, so that actual error can be prevented or corrected at the first opportunity.” West, ¶ 17 (internal quotation marks omitted). ¶26 One of the “rare” and “narrow” exceptions to the timely-objection rule is the doctrine of plain error review. West, ¶¶ 19-20; Norman, ¶ 16. This doctrine is founded on the principle that “ ‘appellate courts have the inherent duty to interpret the constitution and to protect individual rights set forth in the constitution and necessarily have the correlative authority to invoke the plain error doctrine in order to carry out those duties.’ ” West, ¶ 23 (brackets omitted) (quoting State v. Finley, 276 Mont. 126, 134, 915 P.2d 208, 213 (1996)). Given our “inherent power and paramount obligation to interpret Montana’s Constitution and to protect the various rights set forth in that document,” we may discretionarily review “claimed errors that implicate a criminal defendant’s fundamental constitutional rights.” West, ¶ 23 (internal quotation marks omitted). We use this doctrine “sparingly, on a case-by-case basis,” and only where failing to review the claimed error “may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process.” West, ¶ 23 (internal quotation marks omitted). ¶27 The Court today mistakenly applies the plain error doctrine in two ways. First, the “claimed error” the Court identifies is the Youth Court’s failure to consider K.E.G.’s 14 ability to pay the aggregate restitution.1 The Court cites the ability-to-pay requirement contained in § 45-6-101(2), MCA, and then reverses the Youth Court’s restitution order because “the Youth Court’s failure to fully consider K.E.G.’s ability to pay prior to imposing aggregate restitution . . . constituted plain error.” Opinion, ¶¶ 20, 22. That, however, is not the claimed error K.E.G. raises on appeal—much less an error K.E.G. asks us to review under the plain error doctrine. ¶28 K.E.G. admitted in the Youth Court that he engaged in criminal mischief (common scheme) within the timeframe alleged in the County Attorney’s Petition—i.e., “from about December 22, 2011, to January 1, 2012”—but not over this entire timeframe. K.E.G. admitted to breaking vehicle windows on December 26 and 27, 2011, but he denied engaging in such activity on any other night between December 22 and January 1. Accordingly, K.E.G. acknowledged that he is jointly and severally responsible to pay restitution in the amount of $16,020.63, which represents the combined damages that he and the other youths caused on December 26 and 27. K.E.G. maintained, however, that his restitution liability does not extend to the vandalism that other youths caused on other nights when K.E.G. was not present. His basis for this argument: the applicable statutes and this Court’s caselaw require a causal connection between an offender’s unlawful conduct and his restitution obligation, and there is no causal connection between K.E.G.’s unlawful conduct on December 26 and 27 and the damages that occurred on the other nights between December 22 and January 1. At no point did K.E.G. argue that the Youth 1 I refer to the total amount of damages caused by all the youths over the ten-day period from December 22, 2011, to January 1, 2012, as the “aggregate” amount of restitution. 15 Court must consider his ability to pay the restitution amount. Even when the Youth Court imposed the aggregate restitution of $78,702.09, K.E.G. did not object that the court was first required to consider his ability to pay this amount. Correspondingly, on appeal, K.E.G.’s stated issue is: Whether the district court erred when it concluded that K.E.G. was joint and severally liable for the full amount of restitution for damage that occurred over the course of ten consecutive nights where K.E.G. admitted to committing acts of Criminal Mischief (Common Scheme) but only admitted to being present for two nights. As he did in the Youth Court, K.E.G. argues on appeal that there must be a causal connection between his unlawful conduct and his restitution obligation. K.E.G. does not invoke plain error review of this issue, given that he preserved the issue in the Youth Court by raising it there. ¶29 In the vast majority of cases where the defendant-appellant has actually requested plain error review of an unpreserved claim, this Court routinely has denied that request, noting that we apply the doctrine sparingly. See e.g. Evans, ¶¶ 24-28; State v. Lacey, 2012 MT 52, ¶¶ 14, 21-26, 364 Mont. 291, 272 P.3d 1288; State v. Daniels, 2011 MT 278, ¶¶ 29-33, 362 Mont. 426, 265 P.3d 623; State v. Wilson, 2011 MT 277, ¶¶ 27-29, 362 Mont. 416, 264 P.3d 1146; State v. Roundstone, 2011 MT 227, ¶¶ 29-33, 362 Mont. 74, 261 P.3d 1009. In the present case, as explained, K.E.G. has not requested that we exercise plain error review. Nor has he raised “ability to pay” as an issue on appeal. Thus, the Court’s choice to reach the ability-to-pay issue nonetheless, although it was not presented and argued by the parties, disregards our rules and is contrary to the policy of applying plain error review sparingly. The Court’s approach also “ignores a fundamental 16 premise of our adversarial system: that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Knox v. Serv. Employees Intl. Union, ___ U.S. ___, 132 S. Ct. 2277, 2298 (2012) (Sotomayor & Ginsburg, JJ., concurring in the judgment) (citations and internal quotation marks omitted). “Our refusal to abide by standard rules of appellate practice is unfair to the [Youth Court], whose judgment the Court vacates, and especially to the [appellee] here, who suffers a loss in this Court without ever having an opportunity to address the merits of the statutory question the Court decides.”2 Jefferson v. Upton, ___ U.S. ___, 130 S. Ct. 2217, 2227 (2010) (Scalia & Thomas, JJ., dissenting) (emphasis in original). ¶30 There is a second reason the Court’s application of plain error review in this case is mistaken. That doctrine applies to the review of alleged errors that implicate a defendant’s fundamental constitutional rights. State v. Taylor, 2010 MT 94, ¶ 13, 356 Mont. 167, 231 P.3d 79; accord Opinion, ¶ 18. We do not apply the doctrine to statutory-based claims because the Legislature has enacted two statutes (specifically, 2 K.E.G. does discuss “ability to pay” is in his reply brief on appeal, which is the source of the language quoted by the Court at ¶ 11 of the Opinion. But there are three things that should be noted about K.E.G.’s discussion. First, because he addresses this matter for the first time in his reply brief, the State has not had the opportunity to respond. Second, we have held many times that we will not address the merits of an issue presented for the first time in a reply brief. State v. Makarchuk, 2009 MT 82, ¶ 19, 349 Mont. 507, 204 P.3d 1213; Pengra v. State, 2000 MT 291, ¶ 13, 302 Mont. 276, 14 P.3d 499. Third, the ability-to-pay requirement that K.E.G. discusses in his reply brief is contained in § 45-6-101(2), MCA. Yet, prior to discussing this requirement, K.E.G. argues that the sentencing-related subsections of § 45-6-101, MCA, do not apply to him. He merely concludes this argument with the observation that if § 45-6-101, MCA, is the basis for imposing a restitution obligation on him—a point K.E.G. does not concede— then the statute’s ability-to-pay requirement ought to be imposed as well. 17 §§ 46-20-104(2) and -701, MCA) that “uniquely restrict[ ] review of errors not objected to at trial,” and “it would be incongruous for this Court to review [a] statutory-based claim notwithstanding the statutory-based prohibition on our doing so.” West, ¶ 22 (first brackets in original, internal quotation marks omitted). ¶31 Here, K.E.G. has not alleged in the Youth Court or in this Court that the Youth Court’s imposition of restitution, without first considering his ability to pay, rises to a constitutional violation. He cites neither the United States Constitution nor the Montana Constitution anywhere in his briefs. Nevertheless, the Court decides, sua sponte, that the imposition of a restitution obligation without consideration of the offender’s ability to pay has “constitutional implications” and “constitutional dimension”—at least “in a youth case.” Opinion, ¶¶ 19, 21. In essence, without briefing or argument on the point, the Court announces a constitutional right of youths to receive consideration of their ability to pay—whether they ask for it or not—before the youth court may impose a restitution obligation. Opinion, ¶¶ 19, 21. Notably, this new right appears to be in tension with the Youth Court Act, which states that “the ability of the youth to pay” is a factor that “may” (not “must” or “shall”) be considered in determining whether restitution is appropriate. Section 41-5-1521(1)(b), MCA. In any event, I do not believe that sua sponte application of our plain error doctrine is a proper vehicle for deciding a constitutional question that (1) the appellant has not raised and (2) requires us to announce a new constitutional right. ¶32 For the foregoing reasons, I dissent from our decision to “restate” the issue on appeal so that we may sua sponte exercise plain error review. Opinion, ¶ 2. The Court’s 18 “restated” issue was not raised in the Youth Court or in K.E.G.’s opening brief on appeal, and the Court’s ensuing analysis misapplies our plain error doctrine. II. The Court’s Application of Adult Sentencing Statutes to a Youth ¶33 Three statutes within the Youth Court Act authorize the youth court to impose a restitution obligation upon a youth: § 41-5-1304(1), MCA (where a consent adjustment has been reached without the filing of a petition), § 41-5-1512(1), MCA (following an adjudicatory finding that the youth is in need of intervention or has violated a consent adjustment), and § 41-5-1513(1), MCA (following an adjudicatory finding that the youth is delinquent, as is the case here). Section 41-5-1521(1), MCA, in turn, specifically provides for the manner in which such restitution is to be determined. It directs the youth court as follows: In determining whether restitution . . . is appropriate in a particular case, the following factors may be considered in addition to any other evidence: (a) the age of the youth; (b) the ability of the youth to pay; (c) the ability of the parents, guardian, or those that contributed to the youth’s delinquency or need for intervention to pay; (d) the amount of damage to the victim; and (e) legal remedies of the victim. However, the ability of the victim or the victim’s insurer to stand any loss may not be considered. Section 41-5-1521(1), MCA (emphasis added). Therefore, based on this provision, the youth’s ability to pay, as well as that of the youth’s parents, is one of several factors that the youth court “may” consider in determining whether restitution is appropriate. ¶34 Any restitution obligation in youth court proceedings imposed pursuant to in the adult criminal statutes and sentencing provisions of Titles 45 and 46 of the Montana Code 19 Annotated directly conflicts with these specific provisions of the Youth Court Act. Indeed, we have previously refused to apply adult sentencing statutes to a restitution obligation imposed on a delinquent youth under the Youth Court Act. Our decision in In re T.M.R., 2006 MT 246, 334 Mont. 64, 144 P.3d 809, involved a youth (T.M.R.) who had been adjudicated delinquent. He was placed on probation and ordered to pay restitution pursuant to § 41-5-1513(1), MCA. His case was then transferred to district court for supervisory responsibility pursuant to § 41-5-208, MCA. T.M.R., ¶ 14. The issue on appeal concerned the amount of restitution T.M.R. owed. The State advocated for the definition of “pecuniary loss” found in § 46-18-243, MCA, but we agreed with T.M.R. that it was not appropriate to apply this adult sentencing statute. T.M.R., ¶ 16. We noted that, pursuant to § 41-5-208(4), MCA, if a youth violates a disposition imposed under § 41-5-1512 or -1513, MCA, then the district court may impose the adult restitution statutes, including § 46-18-243, MCA. T.M.R., ¶ 16. However, because there was no evidence that T.M.R. had violated his disposition conditions, we held that he was not subject to sentencing under the adult statutes. T.M.R., ¶ 17. Implicit in our analysis was the principle that the adult restitution statutes do not apply to youths unless there is express authority for such application in the Youth Court Act. ¶35 The Court’s attempts at distinguishing T.M.R. from the present case fall short. First, the Court states that the Youth Court did not apply adult sentencing statutes to K.E.G.’s disposition. Opinion, ¶ 15. But that is exactly what the Youth Court did. The purported authority for the Youth Court to impose an aggregated restitution obligation on K.E.G. is § 45-6-101, MCA. The first subsection of this statute sets forth the elements of 20 the offense. For purposes here, “[a] person commits the offense of criminal mischief if the person knowingly or purposely injures, damages, or destroys any property of another or public property without consent.” Section 45-6-101(1)(a), MCA. The remainder of the statute is dedicated to punishment and sentencing considerations: • Subsection (2) provides that a person who has been “convicted” of criminal mischief must be ordered to make restitution in an amount and manner to be set by the court. As the Court concedes, and as I discuss below, K.E.G. has not been “convicted” of criminal mischief. Opinion, ¶ 13; § 41-5-106, MCA. • Subsection (3) provides that a person who has been “convicted” of criminal mischief shall be fined not to exceed $1,500, imprisoned in the county jail for any term not to exceed six months, or both; but if the offender causes “pecuniary loss” in excess of $1,500, then the offender shall be fined an amount not to exceed $50,000, imprisoned in the state prison for a term not to exceed ten years, or both. • Subsection (4) provides that, in determining “pecuniary loss,” amounts involved in criminal mischiefs committed pursuant to a common scheme or the same transaction may be aggregated. • Lastly, subsection (5) provides that a person “convicted” of criminal mischief involving property owned or administered by the Department of Fish, Wildlife, and Parks shall forfeit any current hunting, fishing, or trapping license issued by the State and the privilege to hunt, fish, or trap in the State for at least 24 months. It is clear, then, that by applying subsection (4) of § 45-6-101, MCA, the Youth Court (and now this Court) applied an adult sentencing statute. As T.M.R. holds, adult statutes are not applicable to youths unless the Youth Court Act expressly provides otherwise. ¶36 The Court’s second attempted distinction between the present case and T.M.R. is that the Youth Court Act authorizes restitution for damages that result from the offense for which the youth is disposed, and “[t]he offense for which K.E.G. was disposed was § 45-6-101(4), MCA.” Opinion, ¶¶ 13, 15. As explained above, however, subsection (4) does not set forth the “offense” of criminal mischief. That offense is set forth in 21 subsection (1) of the statute, which states: “A person commits the offense of criminal mischief if the person knowingly or purposely . . . .” Subsection (4), in turn, merely sets forth a sentencing consideration—namely, that in determining whether the offender is subject to an enhanced punishment of $50,000 and ten years in state prison, amounts involved in criminal mischiefs committed pursuant to a common scheme or the same transaction may be aggregated in determining pecuniary loss.3 Aggregation of pecuniary loss under subsection (4), in other words, simply determines an adult offender’s sentence exposure for the offense. ¶37 We have recognized that there is more than an “artificial distinction” between a disposition imposed under the Youth Court Act and a sentence imposed under the Montana Criminal Code. See In re B.L.T., 258 Mont. 468, 473, 853 P.2d 1226, 1229 (1993). The special treatment afforded youths under the Act is reflected in the express legislative purposes set forth in § 41-5-102, MCA, and in the myriad statutes (noted below) that distinguish youth proceedings from adult criminal proceedings. The Court’s approach today in finding that an adult criminal sentencing statute gave the Youth Court authority to impose a restitution obligation on a youth, Opinion, ¶¶ 13-14, undermines the legislative intent to treat youths differently than adult offenders. 3 “Common scheme” is defined elsewhere in the Code as “a series of acts or omissions motivated by a purpose to accomplish a single criminal objective or by a common purpose or plan that results in the repeated commission of the same offense or that affects the same person or the same persons or the property of the same person or persons.” Section 45-2-101(8), MCA. 22 ¶38 The Youth Court Act exists to address youth delinquency through a mechanism distinct and apart from the adult criminal justice system. See §§ 41-5-102, -106, MCA. The legislative purposes of the Act, as stated in § 41-5-102, MCA, are: 1. to preserve the unity and welfare of the family whenever possible, and to provide for the care, protection, and wholesome mental and physical development of the youth; 2. to prevent and reduce youth delinquency through a system that does not seek retribution, but that provides: consequences for the youth’s actions; a program of supervision, care, rehabilitation, detention, competency development, and community protection for the youth before he becomes an adult offender; restitution in appropriate cases; and, if removal from the home is necessary, the ability of the youth to maintain ethnic, cultural, or religious heritage whenever appropriate; 3. to achieve these purposes in a family environment if possible, separating the youth from the parents only when necessary for the welfare of the youth or for the safety and protection of the community; and 4. to provide judicial procedures in which the parties are ensured a fair, accurate hearing and recognition and enforcement of their constitutional and statutory rights. The youth courts were established to fulfill these purposes. Section 41-5-201, MCA. ¶39 That the Legislature intended youths to be treated differently than adult offenders is apparent from various facets of the Youth Court Act. For example, no youth may be charged with or convicted of any crime in any court except as provided in the Act. Section 41-5-106, MCA; see also § 41-5-206(4), MCA. With limited exceptions, the youth court has exclusive original jurisdiction of all proceedings in which a youth is alleged to be delinquent. Section 41-5-203(1), MCA. A “delinquent youth” is a youth who has committed “an offense that, if committed by an adult, would constitute a criminal offense.” Section 41-5-103(11)(a), MCA. Most importantly, a finding that a 23 youth is delinquent is not a criminal conviction: “No adjudication upon the status of any youth in the jurisdiction of the court shall operate to impose any of the civil disability imposed on a person by reason of conviction of a criminal offense, nor shall such adjudication be deemed a criminal conviction.” Section 41-5-106, MCA. Also, “[n]o placement of any youth in any state youth correctional facility under [the Youth Court Act] shall be deemed commitment to a penal institution.”4 Section 41-5-106, MCA. ¶40 As discussed, the statute this Court cites as authority for K.E.G.’s restitution obligation provides, in pertinent part: “A person convicted of criminal mischief must be ordered to make restitution in an amount and manner to be set by the court. The court 4 In addition to the foregoing statutes, the following statutory provisions reflect the unique treatment of youth versus adult offenders: § 41-5-206(6), MCA (allowing a youth to be sentenced under Titles 45 and 46 if the youth has been convicted in district court of one of the enumerated offenses, but otherwise requiring the youth to be sentenced under Title 41); § 41-5-208(2), (3), MCA (listing prerequisites for the transfer of certain youth cases to district court); §§ 41-5-216, -1524(2), MCA (requiring youth court records to be “physically sealed” on the youth’s 18th birthday, with certain exceptions); § 41-5-321(2), MCA (clarifying that the taking of a youth into custody is not an “arrest”); §§ 41-5-334(1), -349(1), -1522(2), MCA (providing, with limited exceptions, that a youth may not be detained or placed in a facility used for the confinement of adults accused or convicted of criminal offenses); §§ 41-5-1301, -1302, MCA (permitting youth matters to be resolved through informal dispositions and consent adjustments, in lieu of formal proceedings); §§ 41-5-1401, -1402, MCA (specifying procedures for commencing a formal proceeding against a youth); § 41-5-1431(3), MCA (stating that the standard of proof in probation revocation of a youth is the same standard used in probation revocation of an adult, but that, “[i]n all other respects,” the proceedings “are governed by the procedures, rights, and duties applicable to proceedings on petitions alleging that the youth is delinquent or a youth in need of intervention”); § 41-5-1501, MCA (permitting a consent decree in lieu of an adjudication); § 41-5-1502, MCA (specifying procedures at an adjudicatory hearing); § 41-5-1524(3), MCA (requiring youth records to be maintained in a separate management information system and not to be included in an adult offender management system, unless the youth has been adjudicated as an adult); § 41-5-1604(1)(a), MCA (distinguishing between “juvenile dispositions under 41-5-1512 or 41-5-1513” and “any sentence allowed by the statute that establishes the penalty for the offense . . . and that would be permissible if the offender were an adult”). 24 shall determine the manner and amount of restitution after full consideration of the convicted person’s ability to pay the restitution.” Section 45-6-101(2), MCA. The statute further provides: “Amounts involved in criminal mischiefs committed pursuant to a common scheme or the same transaction . . . may be aggregated in determining pecuniary loss.” Section 45-6-101(4), MCA. Nevertheless, there can be no dispute, based on the aforementioned provisions of the Youth Court Act, that K.E.G. has not been “convicted” of criminal mischief. Section 41-5-106, MCA. Therefore, § 45-6-101, MCA, by its terms, is inapplicable. The State’s incorporation of a particular criminal statute into a petition alleging that a youth is delinquent is for the purpose of bringing the youth to court and providing the youth with notice of the allegations which, “if [the youth were] an adult, would constitute a criminal offense.” Section 41-5-103(11)(a), MCA. Incorporation of the criminal statute into a youth court petition for purposes of charging does not thereby remove the proceedings from the operation of the Youth Court Act and subject the youth to sentencing as if the youth were a convicted adult offender. ¶41 The dispositions that the youth court may impose on a delinquent youth are set forth in § 41-5-1513, MCA. A couple of these dispositions involve the application of Title 46. See §§ 41-5-1512(1)(k), -1513(1)(a), MCA (authorizing the youth court to place a delinquent youth under home arrest as provided in Title 46, chapter 18, part 10, MCA); § 41-5-1513(1)(c), (1)(d), (2), MCA (authorizing the youth court to require a delinquent youth adjudicated for a violent or sexual offense to register as a violent or sexual offender pursuant to Title 46, chapter 23, part 5, MCA). However, aside from these two specific grants of authority to apply particular provisions of Title 46, there is no general grant of 25 authority to the youth court to apply the sentencing provisions of Titles 45 and 46 to a youth adjudicated as delinquent. Rather, the Legislature intended such youths to be subject to the dispositions enumerated in the Youth Court Act itself. ¶42 For all of these reasons, I disagree with the Court’s contention that it is not applying adult sentencing provisions to K.E.G., and I respectfully dissent from the Court’s decision to apply those provisions to the disposition of a youth adjudicated as delinquent under the Youth Court Act. I instead would apply the provisions set forth in the Youth Court Act itself. III. The Court’s Failure to Apply the Causal Requirement ¶43 This brings me to the issue argued by K.E.G. on this appeal: that there is no causal connection between his unlawful conduct and his restitution obligation for the aggregate damages. ¶44 Within the context of criminal offenses, we have consistently stated that “a causal relation between the offender’s criminal conduct and the pecuniary loss is the touchstone for determining whether a person or entity is a victim entitled to restitution. We will not hold an offender accountable for restitution for offenses he or she did not commit.” City of Billings v. Edward, 2012 MT 186, ¶ 26, 366 Mont. 107, 285 P.3d 523 (citations and internal quotation marks omitted); accord State v. Brownback, 2010 MT 96, ¶ 20, 356 Mont. 190, 232 P.3d 385; State v. Breeding, 2008 MT 162, ¶ 13, 343 Mont. 323, 184 P.3d 313; State v. Beavers, 2000 MT 145, ¶¶ 9-11, 300 Mont. 49, 3 P.3d 614. As the statutes referenced in these cases require restitution for damages that “arise out of” or are “a result of” the offender’s unlawful conduct (see §§ 46-18-201(5), -241(1), -243(1), 26 -243(2)(a), MCA), we have held that an offender may not be ordered to pay restitution in excess of the damages caused by that conduct. Beavers, ¶ 12; Breeding, ¶¶ 13-19. We also have recognized that some pecuniary losses may be so attenuated as to no longer be considered “a result of” the offense. Brownback, ¶ 20 n. 1. ¶45 Given this precedent, the Court’s reliance on the criminal mischief statute for the proposition that “ ‘amounts involved in criminal mischiefs committed pursuant to a common scheme . . . may be aggregated in determining pecuniary loss’ ” is unpersuasive. Opinion, ¶ 13 (quoting § 45-6-101(4), MCA). Assuming for the moment, and purely for the sake of argument, that this adult sentencing statute is applicable to a youth such as K.E.G., the question then becomes: What does “pecuniary loss” mean? That term is defined, for restitution purposes, as the full replacement cost of property taken, destroyed, harmed, or otherwise devalued “as a result of” the offender’s criminal conduct. Section 46-18-243(1)(b), MCA. Accordingly, while amounts involved in criminal mischiefs committed pursuant to a common scheme may be aggregated, the “pecuniary loss” forming the basis of any restitution award must have been “a result of” the offender’s criminal conduct. Section 45-6-101(4), MCA, does not vitiate this causal requirement. The Court’s reasoning that “vandalism sprees are not uncommonly the province of young, immature offenders,” Opinion, ¶ 15, does not excuse the Court’s failure to limit K.E.G.’s restitution obligation—as he argues on appeal—to those damages that he actually caused. ¶46 Unlike the adult sentencing statutes cited above, the youth disposition statutes do not mandate restitution in all cases. Rather, a restitution obligation “may” be imposed on 27 a youth in an “appropriate” case. See §§ 41-5-102(2)(c), -1304(1)(d), -1512(1)(d), -1513(1)(a), -1521(1), MCA. Even in the “appropriate” case, however, the youth statutes—like the adult statutes—mandate that restitution be “for damages that result from the offense for which the youth is disposed.” Sections 41-5-1512(1)(d), -1513(1)(a), MCA. Like the adult statutes, the youth statutes define “victim” as a person who has suffered property, physical, or emotional injury “as a result of” the youth’s unlawful conduct. Section 41-5-103(44)(a), MCA. This “result from” and “as a result of” language creates the same causal requirement that we held exists in the adult statutes. See Edward, ¶¶ 25-26; Brownback, ¶ 20; Breeding, ¶¶ 12-13; Beavers, ¶¶ 8, 12. Hence, it follows that a youth may not be ordered to pay restitution in excess of the damages caused by the youth’s unlawful activities. I note, further, that in the context of a youth court proceeding, it is particularly important that the youth understand he or she is being held responsible only for the damage resulting from the delinquent act. As set forth in the Youth Court Act, its purpose is to provide “judicial procedures in which the parties are ensured a fair, accurate hearing . . . .” Section 41-5-102(4), MCA. ¶47 The dispositive question in this appeal, then, is what damages occurred “as a result of” K.E.G.’s unlawful conduct. In the Petition filed with the Youth Court, the County Attorney alleged that: from about December 22, 2011, to January 1, 2012, the Youth, [K.E.G.], knowingly or purposely injured, damaged, or destroyed property of another or public property without consent, and did so in a series of acts motivated by a purpose or plan which resulted in the repeated commission of the same offense or that affected the same person or persons or their property . . . [in] violation of Sections 45-6-101 and 45-2-101(8), Montana Code Annotated. 28 Four youths were identified in the Petition as participating with K.E.G. to damage vehicles. But the State did not allege a conspiracy among the youths, § 45-4-102, MCA, or allege that K.E.G. was legally accountable for the other youths’ conduct, § 45-2-301, MCA. Either allegation might arguably have expanded K.E.G.’s culpability beyond the two-day timeframe for which he admitted delinquent conduct, if he had tendered an admission to conspiracy or accountability. K.E.G. was alleged, however, to have embarked on a common scheme to injure, damage, or destroy property from “about” December 22 to January 1. His admissions to only two nights of delinquent conduct still constituted a common scheme. ¶48 At his initial appearance, K.E.G. denied the County Attorney’s allegations in the Petition. At a subsequent hearing, however, K.E.G. admitted that he did engage in criminal mischief (common scheme) within the alleged timeframe, though not over the entire timeframe. The Court’s assertion that K.E.G. “acknowledged that he acted as part of a common criminal plan that resulted in 200 reports of vandalism against homes and vehicles in Billings between December 22, 2011, and January 1, 2012,” Opinion, ¶ 14, is factually incorrect. K.E.G. never admitted to acting as part of such a “plan”—which is essentially a mischaracterization of the charge here as one of “conspiracy.” While admitting that he had damaged or destroyed property on December 26 and 27, K.E.G. continued to deny engaging in such activity on any other night between December 22 and January 1. ¶49 This is reflected in the following colloquy among K.E.G., his counsel (Mr. Duke), and the Youth Court: 29 MR. DUKE: He is going to admit to the petition that he was involved with two days on the criminal mischief . . . . THE COURT: All right. So -- well, [K.E.G.], based on what your counsel has related to me, I need to make sure that you understand what your rights are. [The court proceeded to advise K.E.G. of his rights.] . . . THE COURT: Okay. If you make admissions today, there isn’t going to be a trial, and you are, in essence, waiving your right to a trial. You understand that? THE YOUTH: Yes. THE COURT: And the State isn’t going to have to prove anything. You understand that? THE YOUTH: (Nods.) For the -- for the two other days that I wasn’t involved or what? THE COURT: For -- well, for what you were admitting to. Okay? MR. DUKE: Right, if you admit, they don’t have to prove those two days. THE YOUTH: Okay. MR. DUKE: Do you understand that? THE YOUTH: Yes. ¶50 K.E.G.’s admission to only two days is also reflected in the factual basis he provided for the admission: THE COURT: Okay. In the petition, you are alleged to be a delinquent youth by virtue of committing the offense of criminal mischief, common scheme, a felony, alleged to have occurred on or about December 22nd, 2011, to January 1st, 2012. With regard to that offense, how do you plead? THE YOUTH: Guilty. THE COURT: Do you admit or deny it? THE YOUTH: I admit. THE COURT: Okay. And, Mr. Duke, are you going to -- would you like to assist your client in having him tell me what it is he did? MR. DUKE: Yes, just a few questions, Your Honor. EXAMINATION BY MR. DUKE: 30 Q. [K.E.G.], on December 26th and December 27th, were you here in Billings, Yellowstone County? A. Yes. Q. And you were riding around in a vehicle with other youths, whose initials are J.E., L.P., K.G.? A. Mm-hmm. Q. And perhaps T.B.? A. Yes. Q. And on those two nights you participated by breaking various windows from vehicles? A. Yes. Q. And what did you use to break the windows? A. A bat and a couple of them with a co2 bb gun. Q. And you believe that the amount of loss on those two days exceeds $1,500? A. Yes. Q. And if you would estimate, how many vehicles that were damaged during those two? A. Myself or altogether? Q. Well, with the group that was -- you are with that night? Of those two days, excuse me. A. Both nights put together, I would say around 30 cars, 30 windows. MR. DUKE: I have no further questions, Your Honor. THE COURT: Well, [K.E.G.], based on that description, it does appear to me that you in fact did commit these -- this offense and I’m going to accept your admission. ¶51 In imposing the aggregate restitution amount, the Youth Court stated that “while you may not have been present at every act of criminal mischief, you have admitted to being responsible as part and parcel of a common scheme, and the common scheme asserted in the petition was the entire common scheme, and all of the days of this criminal mischief that went on with the various participants.” K.E.G. pointed out that he had not admitted to “the entire common scheme” alleged in the Petition. In response, the court stated: “I am not functioning under the belief that [K.E.G.] was present at every act 31 of criminal mischief alleged in the restitution matters. I believe that he was there two days, as he has said. I do believe that he, however, did admit to that common scheme.” ¶52 Based upon this record, I believe the Youth Court’s and this Court’s determination that K.E.G. admitted to (as the Court puts it) “a common criminal plan that resulted in 200 reports of vandalism against homes and vehicles in Billings between December 22, 2011, and January 1, 2012,” is not correct. While the State alleged that K.E.G.’s common scheme occurred “from about December 22, 2011, to January 1, 2012,” the transcript of the proceeding clearly establishes that K.E.G. never admitted to a common scheme spanning those dates. K.E.G. and his counsel were very clear—both before making his admission and during the recitation of the factual basis for the admission— that his offense took place on December 26 and 27, and only those two nights. K.E.G. maintained his denial as to the other eight nights and brought alibi witnesses to the disposition hearing to establish that he was not present on those other nights. ¶53 Significantly, the State chose to accept K.E.G.’s admission to only a portion of the delinquent acts alleged in the Petition. The State chose not to proceed with an adjudicatory hearing in which the State might prove K.E.G.’s involvement in more than just two nights. Despite this decision, however, the State has sought to hold K.E.G. accountable for conduct that K.E.G. denied and that the State chose not to prove. Neither the State nor the Youth Court nor this Court has identified any legal authority supporting this acceptance of an admission where a factual basis for the other eight nights has not been established and, in fact, has been specifically denied by K.E.G. It has never been established factually that K.E.G.’s common scheme extended to any other night(s) 32 between December 22 and January 1, or that the damages which occurred on the other nights “resulted from” K.E.G.’s unlawful conduct on December 26 and 27. ¶54 In its Sentencing Memorandum Regarding Restitution (filed in the Youth Court on April 23, 2012), the State argued that K.E.G. had “encourag[ed]” the other youths to commit the vandalism on all ten nights and that K.E.G. thus bore responsibility for the other youths’ actions on nights when K.E.G. was not present—i.e., as the State put it, “In for a penny, in for a pound.” The fact remains, however, that the State did not charge K.E.G. under an accountability theory. See §§ 45-2-301, -302, MCA. K.E.G. was charged with criminal mischief over a ten-night period, he admitted to a two-night common scheme, and the State chose not to prove the other eight nights. The State cannot now avoid the consequences of this choice by rewriting the charge to be one of conspiracy or accountability for criminal mischief. ¶55 I believe the Court errs in affirming the Youth Court’s imposition of a restitution obligation for the aggregate damages that occurred over the entire ten-day period. I would reverse the Youth Court’s order and remand with instructions to impose restitution in the amount of $16,020.63. This is the total pecuniary loss on December 26 and 27. As noted, K.E.G. conceded that he is jointly and severally liable for this amount, and he did not challenge his ability to pay it. ¶56 In conclusion, based on the foregoing, I concur in the Court’s decision to reverse, but I dissent from the Court’s analysis in reaching that decision and from the Court’s 33 instruction to the Youth Court to consider on remand K.E.G.’s ability to pay the full $78,702.09.5 /S/ LAURIE McKINNON 5 According to the State’s Sentencing Memorandum Regarding Restitution, the $78,702.09 figure includes amounts from outside the date range alleged in the Petition. Even if K.E.G. is responsible for all damages inflicted by all youths between December 22, 2011, and January 1, 2012—a proposition with which I do not agree—the Court fails to explain why he is also responsible for damages inflicted before December 22 and after January 1. | April 2, 2013 |
772e51e6-7d63-43c8-850f-62869f088888 | Estate of C.K.O. Minor Child | 2013 MT 72 | DA 12-0334 | Montana | Montana Supreme Court | DA 12-0334 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 72 IN THE ESTATE OF C.K.O., A Minor Child. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DG-07-20 Honorable C.B. McNeil, Presiding Judge COUNSEL OF RECORD: For Appellant: Julio K. Morales, Laura A. Perkovic, Matthew S. Sonnichsen, Morales Law Offices, P.C., Missoula, Montana For Appellee: Judah M. Gersh, Michael A. Viscomi, Viscomi & Gersh, PLLP, Whitefish, Montana Submitted on Briefs: January 23, 2013 Decided: March 19, 2013 Filed: __________________________________________ Clerk March 20 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 C.K.O.’s parents, Ann-Marie and Stanley, appeal an order of the District Court for the Twentieth Judicial District, Lake County, denying their motion to disqualify counsel in a personal injury matter. We affirm. ¶2 Ann-Marie and Stanley raise three issues on appeal which we have restated as follows: ¶3 1. Whether the custodial parents of a minor child have the right to demand that a law firm of the parents’ choosing represent the claims of the child over the opposition of the guardian ad litem and conservator. ¶4 2. Whether §§ 37-61-403 and 72-5-427, MCA, are unconstitutional as applied in this case. ¶5 3. Whether § 37-61-403, MCA, conflicts with the Montana Rules of Professional Conduct. Factual and Procedural Background ¶6 In July 2007, Ann-Marie and her unborn child, C.K.O., sustained serious injuries in an automobile collision in Lake County, Montana. C.K.O. was delivered that same day by emergency cesarean section. Soon after the accident, Ann-Marie and her husband, Stanley, hired several attorneys, including Greg Ingraham, to represent both Ann-Marie and C.K.O. in their claims for damages resulting from the accident. ¶7 On November 9, 2007, Ann-Marie and Stanley, dissatisfied with the services of their previous attorneys, executed a contingent fee agreement with the law firm of Viscomi & Gersh (Viscomi) to represent both Ann-Marie and C.K.O. in their claims for 3 damages resulting from the accident. On December 11, 2007, Viscomi filed a Petition for Appointment of Guardian Ad Litem and Conservator for C.K.O. with the Lake County District Court. The petition explained that a significant settlement was expected as a result of the serious injuries C.K.O. suffered in the accident, and that a guardian ad litem (GAL) and conservator were necessary to protect and promote C.K.O.’s interests. The petition requested the appointment of Matthew O’Neill to act as GAL and conservator for C.K.O. The petition was signed by Ann-Marie and Stanley as C.K.O.’s natural parents. ¶8 Ann-Marie’s case settled in October 2009. A lawsuit for C.K.O. has not yet been filed because it is too early for C.K.O.’s doctors to provide an opinion on her medical prognosis that would be sufficient for litigation or settlement purposes. ¶9 In November 2011, Ann-Marie and Stanley retained Morales Law Office (Morales) to investigate and pursue legal action against Ingraham and an individual named Edward Engel. Ingraham and Engel had made personal loans to Ann-Marie and Stanley that allegedly were subject to high interest rates and fees. In 2009, Ingraham and Engel presented invoices to Viscomi for payment of these loans. At Ann-Marie’s request, Viscomi paid the loans out of her settlement funds. In November 2011, Morales filed a complaint for usury against Ingraham and Engel pertaining to these loans. ¶10 On December 7, 2011, Morales sent a letter to Viscomi advising them that, henceforth, Morales would be representing C.K.O. The letter requested C.K.O.’s file and a statement for services performed so that payment for C.K.O.’s “former” attorneys’ work would be honored on a quantum meruit basis. 4 ¶11 Viscomi responded by letter dated January 6, 2012, refusing to withdraw as counsel and stating that O’Neill, C.K.O.’s GAL and conservator, did not believe it was in C.K.O.’s best interests to change attorneys. Morales sent a letter in reply stating that it was the prerogative of C.K.O.’s parents to choose C.K.O.’s counsel. The letter explained that the reason Ann-Marie and Stanley wanted to change counsel was because of their “disappointment and discomfort” over the loans Viscomi paid out of Ann-Marie’s settlement funds. The letter again requested all original file materials for C.K.O. ¶12 On January 27, 2012, Morales filed a Notice of Substitution of Counsel with the District Court. A few days later, Viscomi sent a letter to Morales stating that, pursuant to § 75-5-427, MCA, O’Neill had the authority to make decisions as to C.K.O.’s counsel, and that, pursuant to § 37-61-403, MCA, the Notice of Substitution of Counsel was void since it was filed without Viscomi’s consent or a court order. Shortly thereafter, O’Neill filed a report with the District Court stating that it was not in C.K.O.’s best interests to change legal counsel at this time. Morales then filed a Motion to Disqualify Counsel challenging O’Neill’s authority and asserting that natural parents retain the right to choose which law firm should represent their minor children, regardless of the parents’ prior consent to the appointment of a GAL and conservator. ¶13 The parties briefed their positions, and on May 1, 2012, the District Court issued an Order Denying the Motion to Disqualify Counsel. In its order, the court stated that Morales had no authority to sign any documents on behalf of C.K.O. because Morales failed to comply with § 37-61-403, MCA, regarding substitution of counsel. The court explained that § 37-61-403, MCA, provides two means by which a change of attorney 5 may be made: (1) upon the consent of both the attorney of record and the client, or (2) upon an order of the court after an application made by either the attorney of record or the client, and after notice from one to the other. The court stated that Morales’ motion failed under subsection (1) of the statute “because it does not contain the consent of both the attorney [Viscomi] and the client, Matthew O’Neill, Conservator, or of the parents of said minor.” The court also stated that the motion failed under subsection (2) of the statute “because no change of attorney was made upon order of the Court and no application was made by either the attorney of record or the client.” ¶14 Morales subsequently filed a Motion to Reconsider asking the District Court to clarify its order regarding who was considered the client in this case, C.K.O’s parents or C.K.O.’s GAL and conservator. The motion noted the significant constitutional rights of Ann-Marie and Stanley as C.K.O.’s natural parents. The court denied the motion pointing out that “the Montana Rules of Civil Procedure do not contain any authority for a ‘Motion to Reconsider.’ ” Ann-Marie and Stanley appealed. Standard of Review ¶15 We review a district court’s denial of a motion to disqualify counsel for an abuse of discretion. Krutzfeldt Ranch, LLC v. Pinnacle Bank, 2012 MT 15, ¶ 13, 363 Mont. 366, 272 P.3d 635 (citing Schuff v. A.T. Klemens & Son, 2000 MT 357, ¶ 26, 303 Mont. 274, 16 P.3d 1002). ¶16 In addition, our review of constitutional questions is plenary. Alexander v. Bozeman Motors, Inc., 2012 MT 301, ¶ 19, 367 Mont. 401, 291 P.3d 1120 (citing Walters v. Flathead Concrete Products, Inc., 2011 MT 45, ¶ 9, 359 Mont. 346, 249 P.3d 913). 6 The constitutionality of a statute is a question of law, and we review a district court’s legal conclusions for correctness. Alexander, ¶ 19. Issue 1. ¶17 Whether the custodial parents of a minor child have the right to demand that a law firm of the parents’ choosing represent the claims of the child over the opposition of the GAL and conservator. ¶18 Ann-Marie and Stanley argue that the District Court erroneously interjected itself into their private affairs thereby hindering their ability to make decisions concerning their child’s best interests. Ann-Marie and Stanley further argue that they have a fundamental right to control and direct litigation on behalf of their minor child, and that the GAL and conservator has no right to usurp their parental authority to discharge counsel for their minor child. ¶19 Viscomi argues on the other hand that Ann-Marie and Stanley do not have a fundamental right to unilaterally choose which law firm should represent their child after they voluntarily consented to the appointment of a GAL and conservator for that child. Instead, once Anne-Marie and Stanley consented to the appointment of the GAL and conservator, they divested themselves of the right to decide what is in their child’s best interests regarding legal representation in the child’s personal injury claim. ¶20 The United States Supreme Court has recognized that the interest of parents in the care, custody, and control of their children is a well-established fundamental liberty interest under the Fourteenth Amendment’s Due Process Clause. Snyder v. Spaulding, 2010 MT 151, ¶ 12, 357 Mont. 34, 235 P.3d 578 (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000)). Similarly, this Court has observed that 7 [t]he rights to conceive and to raise one’s children have been deemed essential basic civil rights of man, and [r]ights far more precious . . . than property rights . . . . It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. In re J.L.B., 182 Mont. 100, 109, 594 P.2d 1127, 1132 (1979) (internal citations and quotation marks omitted). ¶21 Nevertheless, while parents have a fundamental right to parent their children, that right is not absolute, especially if there is a conflict of interest between the parents and the children. See e.g. Kulstad v. Maniaci, 2009 MT 326, ¶ 58, 352 Mont. 513, 220 P.3d 595 (“The parent’s constitutionally protected interest in the parental control of a child should yield to the best interests of the child ‘when the parent’s conduct is contrary to the child-parent relationship.’ Section 40-4-227(2)(b), MCA.”); Williams v. Superior Court, 147 Cal. App. 4th 36, 50 (2007) (“if the parent has an actual or potential conflict of interest with his child, the parent has no right to control or influence the child’s litigation.” . . . Thus, a parent with a conflict of interest is no longer considered “fit” to make decisions regarding the child’s litigation). ¶22 In the instant case, Ann-Marie and Stanley claim that there is no actual or potential conflict between their interests and C.K.O.’s interests, thus they retain the right to decide what is in C.K.O.’s best interests. Ann-Marie and Stanley claim that before this right can be taken away from them, they must be shown to be unfit, and no such showing has been made in this case. ¶23 We conclude that there is no need to show that a conflict exists between Ann-Marie’s, Stanley’s and C.K.O.’s interests or that Ann-Marie and Stanley are unfit, 8 because Ann-Marie and Stanley voluntarily relinquished their control of the litigation to the GAL and conservator. Moreover, Ann-Marie and Stanley have never petitioned the District Court for removal of the GAL and conservator. ¶24 In Garrick v. Weaver, 888 F.2d 687 (10th Cir. 1989), the United States Court of Appeals for the Tenth Circuit held that once a conservator or GAL has been appointed to represent the interests of a child, the parents lack standing to assert or raise claims on behalf of the child absent express consent or court order. Garrick, 888 F.2d at 692 (citing Susan R.M. v. Northeast Independent School Dist., 818 F.2d 455, 458 (5th Cir. 1987) (“Nothing in the federal rules, however, authorizes the parent of a child for whom a legal representative has been appointed to file an action without obtaining court authority to do so.”)). ¶25 In Garrick, two minor children and their mother were seriously injured in an automobile accident, and a guardian ad litem was appointed to represent the children’s interests in the subsequent lawsuit. Garrick, 888 F.2d at 690. The court in Garrick relied upon Fed. R. Civ. P. 17(c)1 to hold that once a minor or incompetent has a representative such as a conservator or GAL, the “next friend” or parents can no longer proceed to pursue a claim on behalf of their child. Garrick, 888 F.2d at 693. The court explained 1 At the time Garrick was decided, Fed. R. Civ. P. 17(c) provided: Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by next friend or by a guardian ad litem. . . . 9 that Rule 17(c) flows from the general duty of a court to protect the interests of infants and incompetents in cases before the court. Garrick, 888 F.2d at 693 (citing Dacanay v. Mendoza, 573 F.2d 1075, 1079 (9th Cir. 1978); Noe v. True, 507 F.2d 9, 11-12 (6th Cir. 1974)). “Once appointed, the [GAL] is ‘a representative of the court to act for the minor in the cause, with authority to engage counsel, file suit, and to prosecute, control and direct the litigation.’ ” Garrick, 888 F.2d at 693 (quoting Noe, 507 F.2d at 12) (emphasis added). ¶26 The court in Garrick further stated that allowing two parties, the court-appointed GAL and the parents, to represent the minor children would interfere with the orderly development of the lawsuit because the minor children could take inconsistent positions through their multiple representatives. Garrick, 888 F.2d at 693. The court suggested that to resolve this situation, parents should apply to the court to remove the GAL or to have the court appoint a different GAL to protect the children’s interests. Garrick, 888 F.2d at 693. ¶27 Montana’s current rule regarding representation of minors (M. R. Civ. P. 17(c)) provides: (c) Minor or Incompetent Person. (1) With a Representative. The following representatives may sue or defend on behalf of a minor or an incompetent person: (A) a general guardian; (B) a committee; (C) a conservator; or (D) a like fiduciary. (2) Without a Representative. A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem -- or 10 issue another appropriate order -- to protect a minor or incompetent person who is unrepresented in an action. Like the federal rule in Garrick, Montana’s rule provides that a conservator may sue or defend on behalf of the minor, and if the minor does not have a conservator or other like fiduciary, the court must appoint a GAL to protect the minor’s interests. ¶28 Thus, Montana law permits a court to appoint a GAL (§ 25-5-301, MCA), a general guardian (Title 72, chapter 5, part 2, MCA), or a conservator (Title 72, chapter 5, part 4, MCA) to represent the interests of a minor child. Although the natural parents have priority to be appointed as conservator of their minor child’s estate, § 72-5-410(1)(e), MCA, the parents are also statutorily allowed to nominate someone else to serve in that capacity, § 72-5-410(2), MCA. In this case, Ann-Marie and Stanley explicitly nominated O’Neill. Moreover, the District Court’s order did not place any limitations on O’Neill’s authority to act in such capacity. ¶29 Nevertheless, Ann-Marie and Stanley claim that the GAL and conservator statutes are intended only to preserve and protect a ward’s assets once the ward receives them. The statutes setting forth the powers and duties of a conservator, however, confer on the conservator far more authority than simply preserving and protecting existing assets. For example, § 72-5-427, MCA, confers the following powers and duties on a conservator: (3) A conservator, acting reasonably in efforts to accomplish the purpose for which the conservator was appointed, may act without court authorization or confirmation to: . . . (w) employ persons, including attorneys, auditors, investment advisors, or agents, even though they are associated with the conservator, to advise or assist the conservator in the performance of administrative duties, 11 act upon their recommendation without independent investigation, and instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary; (x) prosecute or defend actions, claims, or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of the conservator’s duties . . . . [Emphasis added.] ¶30 Further, the current position of Ann-Marie and Stanley is contrary to that set forth in their Petition for Appointment of Guardian Ad Litem and Conservator wherein they specifically stated “it is in [C.K.O.’s] best interests to have a guardian ad litem and conservator appointed for the purpose of overseeing [C.K.O.’s] interests in her claims arising from the . . . accident” (emphasis added). Additionally, in the Consent and Waiver of Notice section of their petition, Ann-Marie and Stanley represented that they consented “to the appointment of Matthew H. O’Neill as guardian ad litem and conservator of [C.K.O.] in regards to the legal claims she has arising from the . . . accident” (emphasis added). ¶31 Thus, although Ann-Marie and Stanley contend that O’Neill was only appointed to protect C.K.O.’s assets once she receives them, their petition and supporting documents state otherwise. As requested and petitioned by Ann-Marie and Stanley, O’Neill was to oversee C.K.O.’s legal claims arising from the accident. This necessarily includes overseeing the litigation itself, including making decisions as to which counsel should represent C.K.O. ¶32 Accordingly, we hold that when Ann-Marie and Stanley consented to the appointment of a GAL and conservator to act in C.K.O.’s best interests in “the legal 12 claims she has arising from the . . . accident,” they divested themselves of the right to determine who should represent C.K.O. in her personal injury claim. Issue 2. ¶33 Whether §§ 37-61-403 and 72-5-427, MCA, are unconstitutional as applied in this case. ¶34 Ann-Marie and Stanley contend that §§ 37-61-403 and 72-5-427, MCA, as applied by the District Court in this case, unconstitutionally usurp their fundamental parental rights in the care, custody and control of their child. Viscomi argues on the other hand that these statutes are not unconstitutional as applied by the District Court because there is a legitimate governmental interest in making sure that the best interests of the child are considered in the selection of attorneys to represent the child in a personal injury case. ¶35 All legislative enactments are presumed to comply with the Montana Constitution. Disability Rights Montana v. State, 2009 MT 100, ¶ 18, 350 Mont. 101, 207 P.3d 1092 (citing Bean v. State, 2008 MT 67, ¶ 12, 342 Mont. 85, 179 P.3d 524). The party challenging a statute’s constitutionality bears the burden of proving the statute unconstitutional beyond a reasonable doubt. Walters v. Flathead Concrete Products, Inc., 2011 MT 45, ¶ 32, 359 Mont. 346, 249 P.3d 913 (citing Satterlee v. Lumberman’s Mut. Cas. Co., 2009 MT 368, ¶ 10, 353 Mont. 265, 222 P.3d 566; Henry v. State Compensation Ins. Fund, 1999 MT 126, ¶ 11, 294 Mont. 449, 982 P.2d 456). Furthermore, we construe statutes narrowly to avoid a finding of unconstitutionality, and we resolve any questions of constitutionality in favor of the statute. Disability Rights Montana, ¶ 18. 13 ¶36 Section 37-61-403, MCA, one of the statutes that Ann-Marie and Stanley claim is unconstitutional as applied in this case, provides as follows: Change of attorney. The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: (1) upon consent of both client and attorney, filed with the clerk or entered upon the minutes; (2) upon the order of the court, upon the application of either client or attorney, after notice from one to the other. Based on this statute, an attorney may be changed at any time with the consent of both the attorney and the client, or by order of the court after application of either the attorney or the client. Even if we were to assume arguendo that Ann-Marie and Stanley are the clients in this case, they failed to comply with either provision of the statute because they did not secure the consent of the attorney of record, nor did they apply to the District Court for an order to change the attorney of record. Just because Ann-Marie and Stanley failed to comply with the statute does not make the statute unconstitutional. ¶37 In addition, as we determined in the previous issue, while it is true that Ann-Marie and Stanley have a fundamental interest in the care, custody and control of C.K.O, they voluntarily divested themselves of control over C.K.O.’s legal action when they consented to the appointment of a GAL and conservator. Section 72-5-427, MCA, confers on the conservator the power to “prosecute or defend actions, claims, or proceedings” on behalf of the minor child, or to “employ persons, including attorneys,” to assist in representing the interests of the minor child. Simply because Ann-Marie and Stanley are unhappy with the decision the GAL and conservator made regarding legal representation in C.K.O.’s cause of action, does not make the statute unconstitutional. 14 Moreover, Ann-Marie and Stanley did not request that the District Court replace O’Neill as the GAL and conservator for C.K.O. ¶38 We conclude that Ann-Marie and Stanley have failed to meet their burden of proving the statutes unconstitutional beyond a reasonable doubt. Therefore, we hold that §§ 37-61-403 and 72-5-427, MCA, are not unconstitutional as applied in this case. Issue 3. ¶39 Whether § 37-61-403, MCA, conflicts with the Montana Rules of Professional Conduct. ¶40 Ann-Marie and Stanley argue that § 37-61-403, MCA, attempts to override this Court’s plenary power to control and direct the conduct of attorneys, especially regarding when and how an attorney must withdraw. They maintain that under § 37-61-403, MCA, a lawyer may only be removed from his duties if both the client and the lawyer agree. Consequently, they contend that § 37-61-403, MCA, is in conflict with the Montana Rules of Professional Conduct, specifically M. R. P. C. 1.16(a)(3), thus the statute must be declared unconstitutional as applied. ¶41 There is no conflict between § 37-61-403, MCA, and Rule 1.16(a)(3). Instead, the two work in conjunction with each other. Rule 1.16(a)(3) provides that a lawyer “shall withdraw from the representation of a client if . . . the lawyer is discharged,” while § 37-61-403, MCA, provides a method on how that discharge is to be accomplished2— 2 Section 37-61-403, MCA, refers to a change of attorney in “an action or special proceeding.” Outside of litigation, a lawyer may be discharged and thus be required to withdraw under Rule 1.16(a)(3) without obtaining court approval. 15 upon the consent of both the attorney and the client, or by order of the court upon the application of either the attorney or the client. ¶42 Ann-Marie’s and Stanley’s rationale is based upon their incorrect assumption that they are the client in the personal injury proceedings pursued on behalf of C.K.O. by the GAL and conservator. However, because C.K.O. is a minor child, the GAL and conservator was granted the power and authority to make decisions on C.K.O.’s behalf regarding the litigation. The Montana Rules of Professional Conduct specifically contemplate that a GAL and conservator should be appointed to represent an individual with diminished capacity such as a minor child. M. R. P. C. 1.14(b). Consistent with § 37-61-403, MCA, a change in counsel for CKO requires the consent of the client (C.K.O.’s GAL and conservator) and counsel, or an order of the court upon the application of either the attorney or the client. ¶43 In this case, when Viscomi received Morales’ letter, Viscomi went to O’Neill, C.K.O.’s GAL and conservator, and asked O’Neill for his direction with respect to Ann-Marie’s and Stanley’s request that Viscomi withdraw. O’Neill determined that, contrary to Ann-Marie’s and Stanley’s wishes, it would not be in C.K.O.’s best interests to change attorneys at this time. O’Neill filed his “Report to the Court” stating that Viscomi has done “significant legal work in evaluating and preparing for the negotiation and resolution of the minor’s claims against the tort-feasor that caused the minor’s injuries.” O’Neill also stated that in his opinion Viscomi was “best suited to complete the negotiation and resolution of the minor’s tort claims and that it would not be in the best interest of the minor to change legal counsel” as suggested by her parents. 16 ¶44 We therefore hold that § 37-61-403, MCA, does not conflict with the Montana Rules of Professional Conduct. ¶45 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ JIM RICE | March 20, 2013 |
5f9dc1f6-5301-4aaf-a094-7b86fe16f8cd | W. Mont. Water Users Ass'n, LLC v. Mission Irrigation Dist. | 2013 MT 92 | DA 13-0154 | Montana | Montana Supreme Court | DA 13-0154 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 92 WESTERN MONTANA WATER USERS ASSOCIATION, LLC, on behalf of its members, who own irrigated lands with appurtenant water and other water rights within the Mission, Jocko Valley, and Flathead Irrigation Districts, Plaintiff and Appellee, v. MISSION IRRIGATION DISTRICT, JOCKO VALLEY IRRIGATION DISTRICT, FLATHEAD IRRIGATION DISTRICT, and FLATHEAD JOINT BOARD OF CONTROL, Defendants and Appellants. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DV-12-327 Honorable C.B. McNeil, Presiding Judge COUNSEL OF RECORD: For Appellants: Jon Metropoulos, Metropolous Law Firm, PLLC; Helena, Montana For Appellees: Brian C. Shuck, Shuck/Kuker LLC, Cheyenne, Wyoming Bob Fain, Attorney at Law, Billings, Montana For Amicus Confederated Salish and Kootenai Tribes: John B. Carter, Confederated Salish and Kootenai Tribes, Tribes Legal Department; Pablo, Montana For Amicus Montana Reserved Water Rights Compact Commission: April 9 2013 2 Chris D. Tweeten, Chair, Montana Reserved Water Rights Compact Commission; Missoula, Montana For Amicus Montana Water Resources Association: Holly Jo Franz, Franz & Driscoll, PLLP; Helena, Montana Submitted on Briefs: April 3, 2013 Decided: April 9, 2013 Filed: __________________________________________ Clerk 3 Justice Brian Morris delivered the Opinion of the Court. ¶1 The Mission Irrigation District, Jocko Valley Irrigation District, Flathead Irrigation District, and Flathead Joint Board of Control (collectively Irrigation Districts), appeal a writ of mandate issued by the Twentieth Judicial District Court, Lake County, on February 15, 2013. The writ of mandate enjoined the Irrigation Districts from entering into a Water Use Agreement with the Confederated Salish and Kootenai Tribes of the Flathead Nation and the United States. The writ of mandate rescinded and superseded an alternative writ of mandate the District Court had issued on December 14, 2012. The alternative writ of mandate directed the Irrigation Districts to comply with §§ 85-7-1956 and 85-7-1957, MCA, and correspondingly enjoined the Irrigation Districts from entering into a proposed agreement with the United States and the Confederated Salish and Kootenai Tribes. We vacate both the District Court’s writ of mandate and injunction and the District Court’s alternative writ of mandate. ¶2 We address the following issues on appeal: ¶3 Whether the District Court has issued a final appealable order? ¶4 Whether the District Court properly granted the writ of mandate and injunction? ¶5 Whether the District Court correctly determined that the Irrigation Districts had to comply with §§ 85-7-1956 and 85-7-1957, MCA, before they execute the Water Use Agreement? PROCEDURAL AND FACTUAL BACKGROUND 4 ¶6 The Confederated Salish and Kootenai Tribes (Tribes) entered into the Hellgate Treaty with the United States in 1855. Treaty of Hellgate, July 16, 1855, 12 Stat. 975 (1859). This treaty created the Flathead Indian Reservation in Montana. Congress authorized and directed the allotment of land within the Flathead Reservation for homestead purposes in 1904. Section 8, Act of April 23, 1904, 33 Stat. 302 (1904). ¶7 Congress authorized the Secretary of the Interior in 1908 to construct the Flathead Indian Irrigation Project (FIIP) to deliver irrigation water to irrigable lands on the Flathead Reservation. Act of May 29, 1908, 35 Stat. 444 (1908). The FIIP has provided individual tribal members and non-tribal members on the Flathead Reservation with water for irrigation. The Flathead Joint Board of Control and the United States both have submitted claims for these water rights in the Montana Water Court. The Western Montana Water Users Association, LLC (Water Users) comprise a group of landowners who claim to possess FIIP water rights for irrigation. ¶8 The Tribes claim to possess aboriginal water rights and water rights reserved by the Hellgate Treaty of 1855. Treaty of Hellgate, July 16, 1855, 12 Stat. 975 (1859). The Tribes claim that their water rights include the FIIP water used by individual tribal members and non-tribal members for irrigation. The State of Montana created a Reserved Water Rights Compact Commission (Commission) to negotiate a settlement of the water rights claimed by Indian tribes, including the Tribes’ claim to the FIIP water rights. Section 85-2-702, MCA. ¶9 The State of Montana, the Tribes, and the United States negotiated a proposed Compact to settle the Tribes’ water rights claim. The Irrigation Districts are not a party to 5 the Compact. The Compact, which is not before us in this litigation, purportedly resolves the Tribes’ water right claims, including the FIIP water used for irrigation by individual tribal members and non-tribal members. ¶10 The Tribes, the United States, and the Irrigation Districts drafted a second document as an appendix to the proposed Compact. This second document is the Water Use Agreement. The Water Use Agreement states that one purpose of the agreement is to “settle the rights of irrigators served by the FIIP . . . to receive irrigation water.” ¶11 The Water Users sought a writ of mandate against the Irrigation Districts. The Water Users argued that §§ 85-7-1956 and 85-7-1957, MCA, apply to the Water Use Agreement. Application of these sections would require the Irrigation Districts to submit the final Water Use Agreement to a vote of the irrigators, pursuant to § 85-7-1956, MCA. The Irrigation Districts also would have to receive approval for the Water Use Agreement from a district court, pursuant to § 85-7-1957, MCA. ¶12 The District Court issued an alternative writ of mandate that ordered the Irrigation Districts to comply with these statutes before executing the Water Use Agreement, or to submit a brief that detailed why the Irrigation Districts need not comply with the statutes. The Irrigation Districts submitted a brief to the District Court that argued that §§ 85-7-1956 and 85-7-1957, MCA, do not apply to the Water Use Agreement. The Montana Department of Natural Resources and Conservation also submitted an Amicus Curiae brief regarding the applicability of §§ 85-7-1956 and 85-7-1957, MCA, to the Water Use Agreement. The District Court conducted a hearing on February 14, 2013. The hearing transcript reveals that 6 the only issue presented and argued before the District Court was the applicability of §§ 85- 7-1956 and 85-7-1957, MCA. ¶13 The District Court issued an order on February 15, 2013, finding “moot” the question of whether these statutes applied to the Water Use Agreement. The District Court further issued an order the same day entitled Findings of Fact, Conclusions of Law, and Writ of Mandate. The District Court declared that this writ of mandate superseded the alternative writ of mandate. In the writ of mandate, the District Court determined that the Water Use Agreement contained provisions that exceeded the Irrigation Districts’ authority. The District Court further enjoined the Irrigation Districts from entering into the Water Use Agreement or any other agreement that contained similar provisions. The Irrigation Districts appeal. STANDARD OF REVIEW ¶14 We review a district court’s decision to issue an injunction for manifest abuse of discretion. City of Whitefish v. Bd. of Co. Comm’rs of Flathead Co., 2008 MT 436, ¶ 7, 347 Mont. 490, 199 P.3d 201. A district court’s decision to issue or deny a writ of mandate represents a conclusion of law that we review for correctness. Bostwick Props. v. Mont. Dep’t of Nat. Res. & Cons., 2009 MT 181, ¶ 15, 351 Mont. 26, 208 P.3d 868. DISCUSSION ¶15 Whether the District Court has issued a final appealable order? ¶16 The Water Users argue that the District Court never issued a final order that resolved all of the Water Users’ claims. The Water Users claim that pursuant to M. R. App. P. 6(1), 7 this Court cannot hear an appeal unless the District Court issued a final judgment. The District Court issued an injunction as part of its writ of mandate. An order granting an injunction is immediately appealable. M. R. App. P. 6(3)(e). The Irrigation Districts’ appeal from the District Court’s writ of mandate and injunction is properly before this Court. ¶17 The Water Users next argue that this Court cannot consider the Irrigation Districts’ claim that §§ 85-7-1956 and 85-7-1957, MCA, do not apply to the Water Use Agreement. The Irrigation Districts appealed the District Court’s writ of mandate. The District Court addressed the applicability of §§ 85-7-1956 and 85-7-1957, MCA, to the Water Use Agreement in the alternative writ of mandate, but not explicitly in the writ of mandate. ¶18 Montana Rule of Appellate Procedure 4(4)(a) provides that “[a]n appeal from a judgment draws into question all previous orders and rulings excepted or objected to which led up to and resulted in the judgment.” The alternative writ of mandate represents a previous order which led up to the final judgment. The issue of whether §§ 85-7-1956 and 85-7-1957, MCA, apply to the Water Use Agreement is properly before this Court. ¶19 Whether the District Court properly granted the writ of mandate and injunction? ¶20 The Water Users filed their complaint before the District Court that sought relief on the basis that the Irrigation Districts were failing to comply with §§ 85-7-1956 and 85-7- 1957, MCA. The District Court did not address the applicability of these statutes in its writ of mandate and injunction. Instead, the District Court evaluated the Water Use Agreement. The District Court determined that the Water Use Agreement contractually would obligate the Water Users to transfer or assign their water rights to the Tribes without compensation. 8 The District Court determined that such a contractual provision exceeded the Irrigation Districts’ authority. The District Court therefore enjoined the Irrigation Districts from executing the Water Use Agreement or any contract with similar terms. Although the District Court titled this order “writ of mandate,” the District Court did not mandate that the Irrigation Districts take any action as part of this order. ¶21 The District Court issued its injunction based entirely on its determination that the Water Use Agreement included terms that exceeded the Irrigation Districts’ authority. None of the parties presented any briefing or made arguments to the District Court regarding the issue of the Irrigation Districts’ authority to agree to the terms within the Water Use Agreement. The Water Users’ requests for relief focused exclusively on the applicability of §§ 85-7-1956 and 85-7-1957, MCA. The Water Users requested no relief relating to the terms of the Water Use Agreement itself. ¶22 The injunction suffers from an additional defect. The District Court appears to have premised its injunction upon its finding that the Irrigation Districts were exceeding their authority by giving away the water rights of the individual irrigators within the irrigation districts. The United States and the Tribes claim ownership of these same water rights. The Compact, which is currently being negotiated between the State of Montana, the Tribes, and the United States, seeks to resolve the ownership of these water rights. The District Court disavowed having decided any issue of water rights in response to a writ of supervisory control in this same matter. Without any determination of the water issues on the merits, 9 which the District Court admittedly and properly did not do in this proceedings, no grounds exist for its conclusion that the Water Use Agreement will take away those water rights. ¶23 We appreciate the time constraints placed on the District Court to resolve this matter. The 2013 Montana legislature currently is considering whether to approve the Compact. The Commission, which possesses the statutory authority to negotiate settlements such as the Compact, is set to expire on July 1, 2013. The District Court attempted to accommodate all of these competing interests by providing an expedited briefing schedule and issuing a timely opinion. The matters addressed by the District Court in its February 15, 2013, order, however, were not raised or presented by the parties. The parties never represented that they had a dispute that necessitated the District Court’s resolution of any issue other than the applicability of §§ 85-7-1956 and 85-7-1957, MCA. ¶24 For these reasons, we determine that the District Court improperly granted the writ of mandate and injunction based entirely on an issue not briefed or argued before the District Court. The District Court further improperly enjoined the Irrigation Districts from executing an agreement that exceeded their authority when the Water Users did not request such an injunction in their request for relief. We therefore vacate the District Court’s February 15, 2013, writ of mandate and injunction. ¶25 The District Court stated that the writ of mandate superseded the alternative writ of mandate. Our decision to vacate the writ of mandate restores the alternative writ of mandate. We turn to whether the District Court correctly determined in the alternative writ of mandate that §§ 85-7-1956 and 85-7-1957, MCA, apply to the Water Use Agreement. 10 ¶26 Whether the District Court correctly determined that the Irrigation Districts had to comply with §§ 85-7-1956 and 85-7-1957, MCA, before they execute the Water Use Agreement? ¶27 The Water Users requested that the District Court grant a writ of mandate ordering the Irrigation Districts to comply with §§ 85-7-1956 and 85-7-1957, MCA, before executing the Water Use Agreement. A party who seeks a writ of mandate must establish that it is entitled to the performance of a clear legal duty. Beasley v. Flathead Co. Bd. of Adjustments, 2009 MT 120, ¶ 16, 350 Mont. 171, 205 P.3d 812; Bostwick, ¶ 16. Here we must determine whether §§ 85-7-1956 and 85-7-1957, MCA, impose a clear legal duty on the Irrigation Districts to seek member approval and judicial review of the Water Use Agreement. Beasley, ¶ 16; Bostwick, ¶ 16. ¶28 We interpret a statute first by looking to its plain language. Mont. Sports Shooting Ass’n v. State, 2008 MT 190, ¶ 11, 344 Mont. 1, 185 P.3d 1003. We construe a statute by reading and interpreting the statute as a whole. Mont. Sports Shooting, ¶ 11. We do not isolate specific terms from the context in which they are used by the legislature. Mont. Sports Shooting, ¶ 11. We will not interpret the statute further if the language appears clear and unambiguous. Mont. Sports Shooting, ¶ 11. ¶29 The legislature passed §§ 85-7-1956 and 85-7-1957, MCA, together as part of a larger legislative act in 1931. This act included §§ 85-7-1951 to 85-7-1958, MCA. This Court construes a statute by reading it as a whole. Mont. Sports Shooting, ¶ 11. Further, the legislature specifically stated that it intended these statutes to be interpreted together. 11 Section 85-7-1958, MCA, provides that the restrictions detailed in these sections should apply only to the contracts discussed in these sections, and should not apply to contracts authorized by other statutes. ¶30 Section 85-7-1956, MCA, details the need for an irrigation district to obtain a majority vote or a signed petition before it enters into a contract with the United States. The statute provides that “[s]uch petition shall be addressed to the board of commissioners, shall set forth the aggregate amount of money to be borrowed from the United States and the purpose or purposes thereof . . . .” Section 85-7-1956, MCA. The Irrigation Districts argue that the requirement that the petition detail the “aggregate amount of money to be borrowed from the United States” demonstrates that this section contemplates only contracts with the United States for a loan of money. ¶31 Section 85-7-1957, MCA, includes two subsections. Subsection (1)describes how an irrigation district must submit any contract “with the United States hereunder” to a court to be judicially examined and approved or disapproved. Subsection (2) declares that “the practice and procedure . . . as provided in subsection (1) shall be as nearly as possible in conformity with the practice and procedure now provided for the confirmation before the issuance and sale of bonds of an irrigation district.” Section 85-7-1957, MCA. The Irrigation Districts argue that the “issuance and sale of bonds” language in subsection (2) similarly demonstrates that subsection (2) contemplates application only to contracts with the United States for a loan of money. The Irrigation Districts further argue that the language of 12 subsection (2) ties to subsection (1), and, therefore, they must seek court approval only for contracts with the United States for a loan of money. ¶32 The plain language of §§ 85-7-1951 to 85-7-1958, MCA, appears to apply only to contracts with the United States for a loan of money. The parties agree that the Water Use Agreement involves no contract with the United States for a loan of money. The Water Users argue, however, that the legislature would have used the term “loan” instead of “contract” if the legislature had intended that these provisions would apply only to loans. The Water Users further argue that the entire statutory scheme demonstrates that these provisions apply to contracts with the United States either for a loan of money or for construction or repair work. ¶33 The Water Users argue that the first statute in this 1931 legislative act, § 85-7-1951, MCA, demonstrates that the legislature intended for the entire legislative act to apply to contracts for a loan of money and to contracts for construction or repair work. Section 85-7- 1951, MCA, provides an irrigation district with the authority to enter into any contract with the United States for a loan of money: to be used by the district for the liquidation of bonded or other outstanding indebtedness of the district or for doing or causing to be done, under the supervision of the secretary of the interior of the United States, any construction, betterments, or repair work necessary to place the irrigation system of the district in good operating condition. (emphasis added). ¶34 The Water Users argue that the “or” emphasized above demonstrates that the contract with the United States either could be a contract for a “loan of money” or could be a contract for “construction, betterments, or repair work.” The Irrigation Districts contend that the “or” 13 refers to how an irrigation district can use the money that it borrows from the United States: either for outstanding indebtedness or for construction or repair work. A review of the other sections included in the 1931 legislative act confirms that the entire act details an irrigation district’s authority to contract with the United States for a loan of money. ¶35 Section 85-7-1952, MCA, grants irrigation districts the authority to levy assessments on privately owned land within the irrigation district to pay back a loan with the United States. In the event that an irrigation district defaults on a loan from the United States, § 85- 7-1954, MCA, provides the United States may assume control of the irrigation operation and withhold water until payment is made. Section 85-7-1955, MCA, details how an irrigation district can use the money borrowed from the United States to liquidate existing bonded indebtedness. ¶36 Both §§ 85-7-1956 and 85-7-1957, MCA, provide that they apply to contracts made with the United States “hereunder.” The Irrigation Districts argue that “hereunder” refers only to the sections passed in the 1931 legislative act. The Water Users contend that “hereunder” applies to §§ 85-7-1900 to 85-7-1975, MCA. This broader set of statutes includes both §§ 85-7-1902 and 85-7-1906, MCA. ¶37 Section 85-7-1902, MCA, grants an irrigation district the authority to “make and execute all necessary contracts.” Section 85-7-1906, MCA, grants an irrigation district the authority to enter into contracts with the United States. These contracts with the United States can be for loans of money as well as contracts for the construction, operation, and maintenance of water works. The Water Users further argue that the Water Use Agreement 14 constitutes a contract with the United States that includes provisions related to construction, operation, and maintenance of water works. The Water Users contend that the restrictions in §§ 85-7-1956 and 85-7-1957, MCA, apply to all contracts with the United States authorized in § 85-7-1906, MCA, and apply therefore to the Water Use Agreement. ¶38 Read together, the statutes make clear that the legislature did not intend §§ 85-7-1951 to 85-7-1958, MCA, to apply to all contracts with the United States authorized under § 85-7- 1906, MCA. The legislature intended §§ 85-7-1951 to 85-7-1958, MCA, to apply only to contracts with the United States for a loan of money. The final statute in the 1931 legislative act, § 85-7-1958, MCA, provides that §§ 85-7-1951 to 85-7-1958, MCA, shall not be read to limit the power and authority of an irrigation district to contract with the United States under other applicable statutes. ¶39 The Water Users ask this Court to interpret “hereunder” to include all contracts with the United States that an irrigation district has authority to enter into pursuant to § 85-7- 1906, MCA. Such an interpretation would render § 85-7-1958, MCA, meaningless. We seek to avoid any statutory interpretation that would render meaningless any statute, or section thereof, and not give effect to the statute. State v. Heath, 2004 MT 126, ¶ 31, 321 Mont. 280, 90 P.3d 426, citing State v. Berger, 259 Mont. 364, 367, 856 P.2d 552, 554 (1993). ¶40 Further, the Water Users’ interpretation of “hereunder” to include all contracts authorized under § 85-7-1906, MCA, would render § 85-7-1951, MCA, redundant and meaningless. Section 85-7-1951, MCA, serves to limit the types of contracts with the United 15 States that will be affected by the restrictions in the 1931 legislative act. The Water Users ask this Court to interpret the 1931 legislative act broadly to include all contracts with the United States authorized under § 85-7-1906, MCA. Under this broad interpretation, § 85-7- 1951, MCA, would become a redundant statute that reauthorizes the irrigation districts to enter into contracts with the United States. ¶41 We decline to adopt the Water Users’ broad interpretation of §§ 85-7-1956 and 85-7- 1957, MCA, when that interpretation would render meaningless the more specific statute § 85-7-1958, MCA. We likewise decline to adopt the Water Users’ broad interpretation of §§ 85-7-1956 and 85-7-1957, MCA, when that interpretation would render meaningless and redundant § 85-7-1951, MCA. Thus, the Irrigation Districts do not need to comply with these restrictions before they enter into other types of contracts authorized under § 85-7- 1906, MCA. These other types of contracts include contracts for construction, operation, and maintenance of water works. ¶42 The plain language of §§ 85-7-1956 and 85-7-1957, MCA, read in the context of the act within which they reside, require an irrigation district to seek district court approval and receive a vote of the irrigators only for a contract with the United States that includes a loan of money. The parties agree that the Water Use Agreement does not include a provision for a loan of money from the United States. Accordingly, these sections do not apply to the Water Use Agreement. ¶43 The Water Users have not demonstrated that the Irrigation Districts failed to perform a “clear legal duty.” Nothing in §§ 85-7-1956 and 85-7-1957, MCA, requires the Irrigation 16 Districts to conduct a vote of its members or to seek district court approval before they enter into the Water Use Agreement. The District Court improperly granted the alternative writ of mandate that compelled the Irrigation Districts to comply with these statutes before they executed the Water Use Agreement. CONCLUSION ¶44 The District Court improperly granted an injunction on grounds not requested by the Water Users and not briefed or argued before the District Court. We dissolve the writ of mandate and injunction that the District Court issued on February 15, 2013. We further reverse the District Court’s conclusion that §§ 85-7-1956 and 85-7-1957, MCA, apply to the Water Use Agreement. As a result, we dissolve the alternative writ of mandate that the District Court issued on December 14, 2012. /S/ BRIAN MORRIS We Concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ JIM RICE | April 9, 2013 |
4ece0ee8-15af-4f49-8e87-d3849174bb77 | Matter of K.M. and R.M. | 2013 MT 76N | DA 12-0559 | Montana | Montana Supreme Court | DA 12-0559 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 76N IN THE MATTER OF: K.M. and R.M. Youths in Need of Care. APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Dawson, Cause Nos. DN-10-015 and DN-10-016 Honorable Katherine M. Bidegaray, Presiding Judge COUNSEL OF RECORD: For Appellant: Elizabeth Thomas, Attorney at Law, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schultz, Assistant Attorney General, Helena, Montana Anne Sheehy Yegen, Assistant Attorney General, Child Protection Unit, Billings, Montana Submitted on Briefs: February 20, 2013 Decided: March 26, 2013 Filed: __________________________________________ Clerk March 26 2013 2 Justice Patricia O. Cotter delivered the Opinion to 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 Mother appeals the order terminating her parental rights to her two minor daughters on the ground that the State failed to make reasonable efforts to assist her in successfully completing her treatment plan. FACTUAL AND PROCEDURAL BACKGROUND ¶3 The Department of Health and Human Services, Child and Family Services Division (CFSD) has been involved with J.L. (Mother) and J.M. (Father) since 2006 when their two older children were removed and permanently placed in kinship foster care. In March 2009, Mother gave birth to R.M. CFSD remained actively involved with the family as a result of multiple reports alleging physical neglect of the newborn. During this time neither parent consistently complied with CFSD’s orders or instructions. In May 2010, K.M. was born. ¶4 In July 2010, Mother and Father went out of town for several days leaving R.M. and infant K.M. with babysitters. Mother, who had a prescription for and regularly used methadone, instructed the babysitter to give liquid methadone to K.M. because she feared 3 the baby would go into withdrawal while she was away and not breast-feeding. The authorities were notified but by that time K.M. had received methadone doses for four days. K.M. was hospitalized and released two days later. Both girls were removed from the home. In August 2010, the children were returned to their parents under CFSD’s Temporary Investigative Authority. ¶5 In March 2011, the children were adjudicated youths in need of care and the State was granted temporary legal custody of the children but they continued to reside in the family home. In May 2011, the District Court approved and ordered treatment plans for Mother and Father. Mother and Father thereafter separated. In August 2011, after CFSD received a corroborated report that Mother was using intravenous drugs, the children were again removed from Mother’s care. In October 2011, Mother’s Treatment Plan was extended to give her more time to complete the required goals and tasks, one of which was reunification with the children. ¶6 In April 2012, the State petitioned for permanent legal custody and termination of both parents’ parental rights on the grounds that the parents had not successfully completed their treatment plans and were unlikely to do so within a reasonable time. ¶7 On July 13, 2012, the District Court conducted the first day of the termination hearing. Father relinquished his parental rights and consequently is not a party to this appeal. Following a full day of testimony, the hearing was continued to August 6, 2012. ¶8 On August 17, 2012, the District Court issued its Findings of Fact, Conclusions of Law, and Order Terminating Mother’s Parental Rights and Granting Permanent Legal Custody to Department, With Right to Consent to Adoption to both children. Mother 4 appeals, arguing the State failed to make reasonable efforts to assist her in successfully completing her treatment plan. Notably, she does not appeal the District Court’s conclusion concerning adjudication of the children as youths in need of care, her failure to comply with her Treatment Plan or her lack of success, or whether her conduct rendering her unfit was likely to change in a reasonable time. Addressing Mother’s allegation that the State failed to assist her in successfully completing the Treatment Plan, we disagree for the following reasons. ¶9 The record indicates that CFSD continued working closely with Mother from shortly after R.M.’s birth in March 2009 until April 2012 when it petitioned for termination. It provided resources to Mother to address her chemical dependency needs, her mental health concerns and her parenting skills. The agency reported that Mother frequently failed to attend meetings, was often uncooperative and belligerent, and continued using drugs. She routinely refused mandatory random UA drug testing or was unavailable for testing. She was witnessed (and videotaped) using intravenous drugs in a public grocery store bathroom. Additionally, she was charged with theft for allegedly pawning stolen items. She failed to maintain consistent contact with her social worker and failed to attend, or arrived late for, many counseling sessions. These failures are not the fault of CFSD; these failures are Mother’s for which she alone is responsible. The agency worked with Mother for two years and concluded that the behavior that rendered her unfit to parent her children showed no signs of improving in a reasonable time. The District Court complied with the applicable statutes, including but not limited to, 5 § 41-3-609(1)(f)(i) and (ii), MCA, and the State met its burden under § 41-3-422(5)(a)(iv), MCA. ¶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 the legal issues are controlled by settled Montana law, which the District Court correctly interpreted. Furthermore, there was no abuse of discretion. ¶11 We affirm. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON /S/ BRIAN MORRIS | March 26, 2013 |
c8d6b6b6-83ca-4148-a0e7-6d142976dd0a | Marriage of Stark | 2013 MT 77N | DA 12-0370 | Montana | Montana Supreme Court | DA 12-0370 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 77N IN RE THE MARRIAGE OF: LYDIA RUTH STARK, Petitioner and Appellee, and JONATHAN MATTHEW STARK, Respondent and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DR 10-0581 Honorable Russell C. Fagg, Presiding Judge COUNSEL OF RECORD: For Appellant: William J. O’Connor, II., O’Connor & O’Connor, P.C.; Billings, Montana For Appellee: Jill Deann LaRance, LaRance & Syth, P.C.; Billings, Montana Submitted on Briefs: March 6, 2013 Decided: March 26, 2013 Filed: __________________________________________ Clerk March 26 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 Jonathan Matthew Stark (Jonathan) appeals from that portion of the decree of dissolution of the Thirteenth Judicial District Court, Yellowstone County, that imposed child support obligations upon Jonathan and that divided the parties’ marital estate. We affirm. ¶3 Jonathan and Appellee Lydia Ruth Stark (Lydia) married on November 25, 2006. The parties had one minor child born November, 2009. Jonathan worked as an electrician. For the last several years he has run his own sound and lighting installation business. Jonathan reported $24,000 income on his tax returns. The district court imputed income to Jonathan of $45,000 per year based upon its determination that Jonathan voluntarily was under employed and it was reasonable to assume that a journeyman electrician in Montana could earn $45,000 for purposes of calculating Jonathan’s child support obligations. ¶4 The district court determined that Jonathan would pay child support to Lydia of $400 per month. This determination resulted in an order of back child support in the amount of $4,539, after adjustments. ¶5 The court further determined that each party should retain the real property in that party’s name and should be solely responsible for that associated property. The court 3 awarded Lydia a house located on Country Club Circle. Jonathan received a house located on Fox Drive. Jonathan appeals. ¶6 Jonathan argues on appeal that the district court improperly imputed income to him of $45,000 despite the fact that he had earned $24,000 while operating his own business as reported on his tax returns. Jonathan further argues that the district court failed to apportion equitably the marital assets in that Lydia received a house of significant equity and Jonathan received the Fox Drive house that was burdened with debt. Jonathan further argues that Lydia converted his assets to a retirement fund that the district court improperly awarded in whole to Lydia. ¶7 We review a district court’s distribution of marital property and child support award to determine whether the court’s findings of fact are clearly erroneous. Williams v. Williams, 2011 MT 63, ¶ 11, 360 Mont. 46, 250 P.3d 850. We review for correctness a district court’s conclusion of law. Williams, ¶ 11. 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 in the face of the briefs and the record before us that substantial evidence supports the district court’s findings of fact and its legal conclusions are correct. ¶8 Affirmed. /S/ BRIAN MORRIS We Concur: 4 __________________________________ Chief Justice __________________________________ __________________________________ __________________________________ Justices | March 26, 2013 |
ed660e4d-12f5-4046-9976-84be960fb329 | Coleman v. State ex rel. Dep't of Transp. | 2013 MT 80 | DA 12-0484 | Montana | Montana Supreme Court | DA 12-0484 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 80 LARRY COLEMAN, Plaintiff and Appellant, v. THE STATE OF MONTANA, acting by and through THE MONTANA DEPARTMENT OF TRANSPORTATION, Defendant and Appellee. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV-2010-1074 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellant: Richard A. Reep, Esq., Reep, Bell & Laird, P.C.; Missoula, Montana For Appellee: Eli Z. Clarkson, Special Assistant Attorney General, Montana Dept. of Transportation; Helena, Montana Submitted on Briefs: January 31, 2013 Decided: March 26, 2013 Filed: __________________________________________ Clerk March 26 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Larry Coleman (Coleman) appeals from the judgment of the First Judicial District Court, Lewis and Clark County, affirming the State Tax Appeal Board’s (STAB) conclusion that Coleman violated § 15-70-330, MCA. We affirm. ¶2 We review the following issue on appeal: ¶3 Did the District Court err by affirming STAB’s determination that Coleman violated § 15-70-330, MCA, and that his truck is not entitled to a special exemption under Admin. R. M. 18.10.110(1) and (2)? FACTUAL AND PROCEDURAL BACKGROUND ¶4 Coleman operates a cattle ranch near Charlo, Montana. On November 14, 2008, Coleman was driving his 1999 International Harvester truck on U.S. Highway 212 near Charlo. The truck had been modified with the addition of a feedbox, hoist and tailgate attached to it. The truck was not licensed or registered. Joseph Lavadure (Lavadure), a Montana Department of Transportation (MDOT) Motor Carriers Officer, stopped Coleman and, with Coleman’s permission, took a sample of the fuel in the tank of the vehicle and sent it to MDOT for analysis. The analysis showed the fuel sample was dyed diesel fuel and in excess of the legal concentration allowed to be in a fuel tank in a non-exempt vehicle being driven on a public highway. Coleman was cited for violating § 15-70-330, MCA. ¶5 Coleman requested a formal review of his citation. He argued his vehicle is designed for agricultural work and bears physical characteristics that render its primary use off-road and off-highway. Accordingly, he claimed that pursuant to Admin. R. M. 18.10.110(1) and 3 (2), he is entitled to a special exemption from the prohibition against dyed fuel on the public roadways. MDOT countered that the vehicle is designed to transport persons or property on the public roads and highways and that its physical characteristics do not demonstrate it is intended for primary use in an off-road manner. MDOT thus argued that Coleman’s vehicle does not meet any special exemptions that would allow it to use dyed diesel fuel on the public roads of Montana. ¶6 On December 8, 2009, a hearing was conducted by a hearing examiner appointed by MDOT. At the hearing, the parties presented exhibits, witness testimony, and arguments of their respective positions. Coleman admitted during testimony to placing untaxed dyed diesel fuel in his vehicle, and acknowledged that he was on a public road when stopped by Lavadure. He testified that he left his ranch land with his unloaded truck and drove on the public highway with the express purpose of driving into Charlo to pick up a load of corn and transport it back to his ranch. The corn was loaded into his truck from the railroad area in Charlo, and he drove the truck to another part of his ranch on public roads. Coleman testified that the only reason he was on the highway that day was to haul feed. ¶7 Coleman admitted the truck was originally designed for highway use, but maintained it was converted into a vehicle primarily used for farming purposes in an off-road capacity. Coleman offered photos of the truck to help explain its special modifications, which include a feedbox, hoist and tailgate. Coleman testified that he obtained the truck because of these modifications and only uses it for agricultural purposes on his ranch. He stated he uses the truck to haul dirt and feed for his cattle, but testified that it could also be used to haul grain 4 or fertilizer if needed. Coleman further testified that he used the truck to go to Charlo on the day in question because the truck is equipped to be used for this purpose. ¶8 Lavadure also testified. According to his testimony, Lavadure has been a motor carrier officer for over 18 years and, among other duties, is responsible for checking red fuel violations on the public highways. Lavadure testified that he has received specialized training on distinguishing between vehicles designed for the public roads and vehicles that are defined as “off-road,” such as special mobile vehicles (SM vehicles). Lavadure stated that according to the VIN number taken from Coleman’s 1999 International Harvester, the vehicle is defined as a truck. He testified it was manufactured to be a truck and designed to carry people and property on highways. Lavadure discussed SM vehicles and referenced several pictures of SM vehicles provided in the exhibits. He explained that SM vehicles are different than trucks; SM vehicles are used primarily off-road and are not designed to carry passengers or property on highways. He testified that the distinction is the basic design of the vehicle, not what may or may not be attached to it. Lavadure testified that Coleman’s truck did not qualify as a SM vehicle or off-road equipment, and therefore was not entitled to any exemption that would allow it to be used on public highways using dyed diesel fuel. Lavadure stated that the fact that Coleman may or may not use it for agricultural purposes has no bearing on whether it is a SM vehicle. ¶9 The hearing examiner issued his proposed findings of fact, conclusions of law and order in February 2010, upholding Coleman’s citation for violating § 15-70-330, MCA. In the proposed decision, the hearing examiner carefully reviewed Coleman’s claim that he is 5 entitled to an exemption under Admin. R. M. 18.10.110(1) and (2), analyzing the relevant statutes and administrative regulations and applying them to Coleman’s vehicle. He determined that the fact that Coleman’s truck has had modifications for other purposes does not affect its original design, and agreed with MDOT’s position that the modifications actually made Coleman’s truck even better for the purpose Coleman admitted he used it for on the highway: moving feed from Charlo to his ranch. The hearing examiner concluded “[t]he truck in this case was used to transport property on the public highway . . . [a]nd when fueled with non-taxed dyed diesel fuel, a use that is prohibited by law.” He determined Coleman is not entitled to any exemption under Admin. R. M. 18.10.110(1) and (2). ¶10 In April 2010, MDOT adopted the hearing examiner’s proposed decision. Coleman appealed to STAB, which affirmed MDOT’s decision. Coleman then sought judicial review by the First Judicial District Court. The District Court reviewed the evidence and arguments presented during the administrative hearing and affirmed STAB’s decision. The court determined the evidence presented during the administrative hearing indicated that Coleman’s vehicle’s alterations “simply enhanced its capability to transport property, whether on a public highway or on a ranch.” Coleman appeals. STANDARD OF REVIEW ¶11 We review for correctness a district court’s conclusions of law. Pacificorp v. State, 2011 MT 93, ¶ 15, 360 Mont. 259, 253 P.3d 847. We review a district court’s order 6 affirming an administrative decision of STAB to determine whether the findings of fact are clearly erroneous and whether STAB correctly interpreted the law. Pacificorp, ¶ 15. DISCUSSION ¶12 Did the District Court err by affirming STAB’s determination that Coleman violated § 15-70-330, MCA, and that his truck is not entitled to a special exemption under Admin. R. M. 18.10.110(1) and (2)? ¶13 This case involves a citation and imposition of penalty for a violation of § 15-70- 330(3)(a), MCA, which provides in relevant part: A special fuel user may not use dyed special fuel to operate a motor vehicle upon the public roads and highways of this state unless the use is permitted pursuant to rules adopted under subsection (3)(b). Coleman first argues that he was neither a special fuel user nor was he using special fuel as described in § 15-70-330(3)(a), MCA, because he purchased the fuel for operation of farm vehicles on his ranch and not on Montana’s public roads and highways. A special fuel user is defined as “a person who consumes in this state special fuel for the operation of motor vehicles owned or controlled by the person upon the highways of this state.” Section 15-70- 301(21)(a), MCA. Coleman admitted that he was driving his modified 1999 International Harvester truck on a public road, using dyed diesel fuel, when he was cited. He therefore was a special fuel user subject to the provisions of § 15-70-330(3), MCA. ¶14 Section 15-70-330(3)(b), MCA, states: The department shall adopt and enforce reasonable rules for the movement of off-highway vehicles traveling from one location to another on public highways, public roads, or streets when using dyed fuel or nontaxed fuel. 7 Pursuant to § 15-70-330(3)(b), MCA, the MDOT adopted Admin. R. M. 18.10.110, which provides in relevant part: (1) For the purpose of this rule, an “off-highway or off-road vehicle” is defined as a vehicle not designed to transport persons or property upon the public roads and highways of this state, including special mobile (SM) plated vehicles and vehicles with physical characteristics intended for primary use in an off-road manner which may or may not be licensed as special equipment. These vehicles may occasionally move on the public road for purposes such as movement between job sites or repair. (2) There will be no restriction for miles traveled on the highway from location to location, so long as such travel is occasional and for those purposes listed above. ¶15 Coleman’s primary argument on appeal is that the District Court erred by affirming administrative rulings holding that only the “original design” of his truck could be considered in determining whether the vehicle was an “off-road vehicle.” He argues that neither § 15-70-330(3), MCA, nor Admin. R. M. 18.10.110(1) and (2) limit design consideration of off-highway and off-road vehicles to the vehicle’s original design. Rather, he asserts the rules require inquiry into the current design and use of the vehicle. He maintains that due to the modifications made to his truck, the truck is specially designed as a feed truck, primarily used for agricultural purposes, not for transporting people or property upon public roads or highways. He argues the District Court’s decision incorrectly “eliminates consideration of the present configuration and primary use of a farm vehicle modified for primary off-road purposes while focusing on the original design.” ¶16 MDOT contends Coleman’s truck is “clearly designed to move property on the public roads, and, on the day Mr. Coleman was stopped, was used in this very fashion.” MDOT 8 argues that the facts that the truck has a feedbox, hoist and tailgate attached to it and that Coleman uses the vehicle for agricultural purposes do not mean the vehicle is not designed to transfer persons or property upon the public roads. MDOT maintains the truck’s modifications only enhanced its capabilities to transport people or property upon public roads. Accordingly, MDOT argues the District Court correctly affirmed Coleman’s citation for violating § 15-70-330(3), MCA. ¶17 As evident by the language of the law, it is the vehicle’s design that determines whether it constitutes an off-road vehicle entitled to a special exemption under Admin. R. M. 18.10.110(1) and (2). On appeal, Coleman does not argue his vehicle is a SM plated vehicle, but rather that it fits into the exception provided in Admin. R. M. 18.10.110(1) for “vehicles with physical characteristics intended for primary use in an off-road manner which may or may not be licensed as special equipment.” Coleman argues this definition says nothing about original design, and instead speaks directly to “characteristics” and “intent.” He maintains this language would not be in the regulation if only original design is at issue. ¶18 Although Coleman argues the court only considered the original design of his truck in determining whether it was entitled to a special exemption, a thorough review of the record shows otherwise. The hearing examiner looked at the vehicle’s original design—stating that Lavadure and Coleman both acknowledged the vehicle was originally designed for use on the public highways—however he did not limit his inquiry to that. In his proposed decision, the hearing examiner referred to the exhibits and testimony presented at the hearing that explained the modifications made to Coleman’s truck and noted the vehicle’s current 9 physical characteristics. After evaluating the evidence, the hearing examiner determined the fact that the truck has had modifications for other purposes and is now fitted with a feedbox, hoist and tailgate does not affect its original design. The hearing examiner concluded the changes actually made the vehicle even better for the purpose Coleman admitted he used it for when traveling on the public highway—the moving of property from the city of Charlo to his ranch land. The hearing examiner used the original design as a starting point and then looked at the vehicle’s modifications and current physical characteristics to determine if they changed the vehicle’s design so that it was no longer a truck designed to transport people or property on public highways or roads. He concluded they did not. ¶19 The District Court likewise examined the modifications of the vehicle as part of its review of STAB’s holdings. The court looked at the exhibits and testimony presented at the hearing and noted that “[w]hile the truck has what appears to be a large dump box, it is otherwise configured like other trucks equipped for highway use.” It determined the evidence indicates the vehicle’s alterations only enhanced its ability to transport property. We therefore disagree with Coleman’s interpretation that these prior holdings were based only on an inquiry of the vehicle’s original design and not on any consideration of its present configuration. ¶20 Coleman asserts that our rules of interpretation of statutes do not allow consideration of the original design of the vehicle. Because we are to determine the legislative intent “by looking at the plain meaning of the words in the statute” and not “insert what has been omitted,” Coleman contends the District Court’s decision is based on language inserted into 10 § 15-70-330(3), MCA, and Admin. R. M. 18.10.110 that was not intended by the legislature—specifically, the word “original.” State v. Booth, 2012 MT 40, ¶ 11, 364 Mont. 190, 272 P.3d 89. While Coleman correctly points out that the relevant rules and regulations do not include the word “original” with respect to a vehicle’s design, we do not find MDOT inserted this word into the rules. If it had, the decision would have been based on the determination that the vehicle was “originally designed to transport persons or property upon the public roads and highways of this state.” This would have meant the focus was exclusively on the original design, despite any modifications that could have changed it. However, this was not the case. Instead, as we already discussed, the vehicle’s original design, modifications and current physical characteristics were all examined to reach a determination that the current design was the same as the original design—to transport people or property on the public highways. We do not find that considering the original design as part of the inquiry into the current design is against legislative intent. ¶21 Coleman relies on the fact that he uses the vehicle for agricultural purposes to support his position that it was designed as an off-road vehicle. He claims his vehicle is an implement of husbandry, which is defined as “a vehicle that is designed for agricultural purposes and exclusively used by the owner of the vehicle in the conduct of the owner’s agricultural operations.” Section 61-1-101(29), MCA. However, MDOT’s decision does not include such a finding. Admin. R. M. 18.10.110(1) specifically defines an off-road vehicle as one “not designed to transport persons or property upon the public roads and highways . . .” which includes vehicles with physical characteristics intended for primary use in an off- 11 road manner. Just because Coleman primarily uses the vehicle on his ranch, off public highways and roads, does not mean it is not designed for the transfer of people and property on public roads. See State v. Patton, 227 Mont. 167, 737 P.2d 498 (1987).1 Coleman admitted he used the vehicle to drive to Charlo on public highways on the day in question to pick up feed from the railroad and transport it back to his ranch because it was equipped to be used for this purpose. Whether he typically used the vehicle for this purpose or not does not impact whether it was designed for such use. ¶22 Coleman points to two other cases in which MDOT stipulated that International Harvesters were redesigned to meet the definition of an off-highway vehicle and an implement of husbandry. He argues these two cases represent the proper interpretation and application of the relevant rules because MDOT considered the current design and use of the trucks to determine if they met the definitions of an off-highway vehicle and implement of husbandry, not the original design. These stipulations provide that the vehicles met the definitions “due to the[ir] significant and permanent modifications.” Here, the hearing examiner, MDOT, STAB and the District Court looked at the modifications of Coleman’s truck and determined they were not so significant or permanent to convert the truck into an 1 In Patton, the Court affirmed a district court’s holding that a vehicle was not an implement of husbandry after concluding it was not designed to be used for agricultural purposes. The Court determined there were no modifications to the truck’s original design, which was to transport materials on the highways, even though the truck was currently only used in the course of ranch business and never driven on public highways unless to travel from one part of the ranch to another. Although the statutory definition of “implement of husbandry” is a vehicle “designed” for agricultural purposes and exclusively used as such, and does not include the word “original,” the Court looked at the truck’s original design to determine its current design. 12 off-road vehicle. These stipulations do not provide any additional relevance to this case because, as each stipulation states, the determination that the vehicle’s modifications converted it into a different design “is specific to the facts of this case and does not create a precedent applicable in all cases involving ‘feed trucks.’” The District Court agreed, determining that “the design or configuration of the vehicle and its principal use are matters unique to each case . . . .” ¶23 Coleman’s claim that he is entitled to an exemption under Admin. R. M. 18.10.110(1) and (2) additionally fails because he was not using his vehicle for the allowed purposes at the time of his citation. The regulations specifically provide that an off-highway or off-road vehicle can occasionally move on the public highways while using dyed fuel “for purposes such as movement between job sites or repair.” Admin. R. M. 18.10.110(1). The hearing examiner determined that Coleman’s ranch is not all in one location, but rather divided into several sections. Therefore, to get from one portion to another, Coleman occasionally has to use public highways. However, Coleman testified that the day he received his citation he was driving his truck on public highways for the express purpose of going to Charlo to pick up material to transport back to his ranch. This fact was included in the MDOT’s findings, STAB’s order and the District Court’s order. Coleman was not transporting feed or equipment from one part of his ranch to another, nor was he moving the vehicle for purposes of repair. His use of his truck on the public highway does not fit one of the allowed purposes under Admin. R. M. 18.10.110(1) and (2). CONCLUSION 13 ¶24 For the reasons stated above, we affirm the District Court’s judgment. Affirmed. /S/ MICHAEL E WHEAT We Concur: /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ BETH BAKER /S/ JIM RICE | March 26, 2013 |
d8db45c0-93be-4fde-8860-31cc1bae20f0 | Marriage of Stark | 2013 MT 77N | DA 12-0370 | Montana | Montana Supreme Court | DA 12-0370 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 77N IN RE THE MARRIAGE OF: LYDIA RUTH STARK, Petitioner and Appellee, and JONATHAN MATTHEW STARK, Respondent and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DR 10-0581 Honorable Russell C. Fagg, Presiding Judge COUNSEL OF RECORD: For Appellant: William J. O’Connor, II., O’Connor & O’Connor, P.C.; Billings, Montana For Appellee: Jill Deann LaRance, LaRance & Syth, P.C.; Billings, Montana Submitted on Briefs: March 6, 2013 Decided: March 26, 2013 Filed: __________________________________________ Clerk March 26 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 Jonathan Matthew Stark (Jonathan) appeals from that portion of the decree of dissolution of the Thirteenth Judicial District Court, Yellowstone County, that imposed child support obligations upon Jonathan and that divided the parties’ marital estate. We affirm. ¶3 Jonathan and Appellee Lydia Ruth Stark (Lydia) married on November 25, 2006. The parties had one minor child born November, 2009. Jonathan worked as an electrician. For the last several years he has run his own sound and lighting installation business. Jonathan reported $24,000 income on his tax returns. The district court imputed income to Jonathan of $45,000 per year based upon its determination that Jonathan voluntarily was under employed and it was reasonable to assume that a journeyman electrician in Montana could earn $45,000 for purposes of calculating Jonathan’s child support obligations. ¶4 The district court determined that Jonathan would pay child support to Lydia of $400 per month. This determination resulted in an order of back child support in the amount of $4,539, after adjustments. ¶5 The court further determined that each party should retain the real property in that party’s name and should be solely responsible for that associated property. The court 3 awarded Lydia a house located on Country Club Circle. Jonathan received a house located on Fox Drive. Jonathan appeals. ¶6 Jonathan argues on appeal that the district court improperly imputed income to him of $45,000 despite the fact that he had earned $24,000 while operating his own business as reported on his tax returns. Jonathan further argues that the district court failed to apportion equitably the marital assets in that Lydia received a house of significant equity and Jonathan received the Fox Drive house that was burdened with debt. Jonathan further argues that Lydia converted his assets to a retirement fund that the district court improperly awarded in whole to Lydia. ¶7 We review a district court’s distribution of marital property and child support award to determine whether the court’s findings of fact are clearly erroneous. Williams v. Williams, 2011 MT 63, ¶ 11, 360 Mont. 46, 250 P.3d 850. We review for correctness a district court’s conclusion of law. Williams, ¶ 11. 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 in the face of the briefs and the record before us that substantial evidence supports the district court’s findings of fact and its legal conclusions are correct. ¶8 Affirmed. /S/ BRIAN MORRIS We Concur: 4 /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BETH BAKER | March 26, 2013 |
e96b4f27-66df-4d3f-b3fd-a664d217fc73 | State v. Pierce | 2013 MT 61N | DA 12-0260 | Montana | Montana Supreme Court | DA 12-0260 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 61N STATE OF MONTANA, Plaintiff and Appellee, v. NATHAN KENT PIERCE, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 11-57 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Johnna K. Baffa, Van de Wetering & Baffa, P.C., Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana Fred Van Valkenburg, Missoula County Attorney, Andrew Paul, Deputy County Attorney, Missoula, Montana Submitted on Briefs: January 16, 2013 Decided: March 5, 2013 Filed: __________________________________________ Clerk March 5 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 Nathan Kent Pierce (Pierce) appeals from an order of the Fourth Judicial District Court, Missoula County, denying his motion to suppress evidence flowing from an encounter with a law enforcement officer. On February 3, 2011, Pierce ran out of gas while traveling westbound on Interstate 90 about two miles east of the Rock Creek exit. Missoula County Sheriff’s Deputy Gordon Schmill observed Pierce standing next to his car with the hazard lights flashing as Deputy Schmill proceeded eastbound on Interstate 90. Deputy Schmill turned around and pulled up behind Pierce to determine if Pierce needed assistance. Pierce told Deputy Schmill that he had run out of gas and was trying to contact his girlfriend but his cell phone did not have service. The parties’ versions of the facts diverge from this point forward. ¶3 At the suppression hearing on July 11, 2011, Deputy Schmill testified that Pierce told him he was going to get some gas by walking to a store located near the Rock Creek exit. Deputy Schmill stated that he offered Pierce a ride and Pierce accepted. Deputy Schmill asked Pierce for some form of identification so that he would know the identity of the person he was transporting. According to Deputy Schmill, Pierce produced his driver’s license and volunteered that there was a warrant out for his arrest. Deputy 3 Schmill testified that he verified the existence of the arrest warrant, then arrested Pierce. Officers performed an inventory search at the Missoula County Detention Center and uncovered a bag of mushrooms in Pierce’s jacket. Officers subsequently discovered hashish in the vehicle Pierce was driving. Pierce was charged with two felony drug offenses. ¶4 Pierce testified at the suppression hearing that he told Deputy Schmill that he did not need any help and was planning on walking about twenty feet down the road to try to get cell phone reception because his girlfriend had a roadside assistance program. Pierce claimed that Deputy Schmill immediately asked to see his identification. According to Pierce, he asked Deputy Schmill why he needed to see his identification, and Deputy Schmill explained that anytime he came into contact with someone, he needed to know who he was dealing with. Pierce testified that he did not recall Deputy Schmill asking him whether he needed a ride. Pierce stated that after he produced his driver’s license, Deputy Schmill determined that an arrest warrant existed and arrested him. Pierce’s girlfriend testified that she received a garbled phone call from Pierce, then later spoke with Pierce when he contacted her using Deputy Schmill’s phone. ¶5 The District Court denied Pierce’s motion to suppress, stating that it chose to believe Deputy Schmill’s version of events because it was more plausible. The District Court was familiar with the stretch of road where the encounter took place, and determined that it would be unreasonable to expect that cell phone coverage would improve as a person walks from a wider valley into a narrower canyon closer to the mountains. The District Court also reasoned that it was unlikely that a person would 4 choose to walk for miles down the side of the road in the middle of winter as opposed to accepting a ride. Deputy Schmill’s testimony that standard officer safety procedure dictates identifying individuals who are given rides in patrol cars was persuasive to the District Court. The District Court concluded that Deputy Schmill’s contact with Pierce was justified under the community caretaker doctrine. ¶6 Pierce entered a no contest plea to a felony charge of criminal possession of dangerous drugs in violation of § 45-9-102(6), MCA, reserving his right to appeal the District Court’s denial of his motion to dismiss. ¶7 Pierce raises the following issue on appeal: ¶8 Did the District Court err in denying Pierce’s motion to suppress evidence seized following a stop which exceeded the scope of the community caretaker doctrine? ¶9 Pierce argues that the District Court’s denial of Pierce’s motion to suppress was clearly erroneous because its factual determinations were not based on substantial credible evidence and it misapprehended the evidence. Pierce maintains that the District Court misapplied the community caretaker doctrine. While Pierce does not challenge the initial contact, he contends that Deputy Schmill’s authority under the community caretaker doctrine ended when he determined that Pierce was not in peril and did not require assistance, so any further contact constituted a seizure that implicated constitutional protections. ¶10 This Court applies the following test to determine if the community caretaker doctrine applies in an encounter between government officials and citizens: 5 First, as long as there are objective, specific and articulable facts from which an experienced officer would suspect that a citizen is in need of help or is in peril, then that officer has the right to stop and investigate. Second, if the citizen is in need of aid, then the officer may take appropriate action to render assistance or mitigate the peril. Third, once, however, the officer is assured that the citizen is not in peril or is no longer in need of assistance or that the peril has been mitigated, then any actions beyond that constitute a seizure implicating not only the protections provided by the Fourth Amendment, but more importantly, those greater guarantees afforded under Article II, Sections 10 and 11 of the Montana Constitution as interpreted in this Court’s decisions. State v. Anders, 2012 MT 62, ¶ 12, 364 Mont. 316, 274 P.3d 720 (quoting State v. Lovegren, 2002 MT 153, ¶ 25, 310 Mont. 358, 51 P.3d 471). ¶11 Under Pierce’s version of the facts, Deputy Schmill should have terminated contact after determining that Pierce was not in peril and no longer needed assistance. However, the District Court rejected Pierce’s account of the facts in favor of Deputy Schmill’s testimony. We have repeatedly held that this Court will “defer to the district 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.” State v. Cooper, 2010 MT 11, ¶ 10, 355 Mont. 80, 224 P.3d 636 (quoting State v. Deines, 2009 MT 179, ¶ 20, 351 Mont. 1, 208 P.3d 857). Accordingly, we will not reconsider or reweigh the conflicting testimony on appeal. ¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The District Court’s findings of fact are supported by substantial evidence and the legal issues are controlled by settled Montana law, which the District Court correctly interpreted. We therefore affirm the District Court. 6 /S/ PATRICIA COTTER We Concur: /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ JIM RICE /S/ BRIAN MORRIS | March 5, 2013 |
fe5de649-1dd0-43b4-a667-9ae2c4140789 | Diaz v. State | 2013 MT 219 | DA 12-0432 | Montana | Montana Supreme Court | DA 12-0432 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 219 JEANETTE DIAZ and LEAH HOFFMANN-BERNHARDT, Individually and on Behalf of Others Similarly Situated, Plaintiffs/Appellants, v. STATE OF MONTANA, Defendant/Appellee. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDV 2008-956 Honorable Jeffrey M. Sherlock, Presiding Judge COUNSEL OF RECORD: For Appellants: James G. Hunt; Jonathan McDonald; Dix, Hunt & McDonald, Helena, MT Erik B. Thueson; Scott Peterson; Thueson Law Office; Helena, MT For Appellee: Robert C. Lukes; Elena J. Zlatnik; Garlington, Lohn & Robinson, PLLP; Missoula, MT Submitted on Briefs: May 28, 2013 Decided: August 6, 2013 Filed: __________________________________________ Clerk August 6 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Class representatives Jeanette Diaz and Leah Hoffmann-Bernhardt appeal a class certification order entered by the First Judicial District Court, Lewis and Clark County, arguing that the court imposed arbitrary and unreasonable limits when defining the class. The class complaint alleged that the State, as well as third-party administrators of the State group health insurance plan, violated the insureds’ statutory made-whole rights by exercising their subrogation interests without first conducting made-whole analyses of the insureds. The sole issue on appeal is whether the District Court abused its discretion by defining the class to include only those insureds who had timely filed claims for covered benefits, thus excluding from the class all “non-filing” insureds. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 This appeal from the District Court’s certification order follows our remand in Diaz v. Blue Cross & Blue Shield of Mont., Inc. (Diaz I), 2011 MT 322, 363 Mont. 151, 267 P.3d 756. We summarize the relevant facts as established through the prior proceedings. ¶4 Defendants Blue Cross and Blue Shield of Montana (BCBS) and New West Health Services (New West) administered Montana’s self-funded employee healthcare benefit plan. The State group insurance plan was created by statute in order to: “provide state employees with adequate group hospitalization, health, medical, disability, life, and other related group benefits in an efficient manner and at an affordable cost.” Section 2-18-808, MCA; Diaz I, ¶ 3. 3 ¶5 Diaz and Hoffman-Bernhardt were insured through the State group insurance plan. In separate incidents, Diaz and Hoffman-Bernhardt sustained injuries through automobile collisions caused by insured tortfeasors, whose insurers accepted liability. The third-party insurers paid Diaz’s and Hoffman-Bernhardt’s medical providers. Diaz I, ¶¶ 4-5. ¶6 On both occasions, the State and third-party administrators of the State insurance plan—BCBS and New West—allegedly exercised their rights of subrogation without first confirming that the insured under the State plan had been made whole.1 The plaintiffs stated that BCBS refused to pay Diaz for medical expenses that already had been paid to her medical provider by the tortfeasor’s insurer, and that New West refused to pay Hoffman- Bernhardt the reimbursement it had received from her medical providers following payment by the tortfeasor’s insurer to the medical providers. Diaz I, ¶¶ 4-5. ¶7 On October 23, 2008, Diaz and Hoffmann-Bernhardt filed a class complaint alleging that the State, BCBS and New West violated the insureds’ statutory made-whole rights by failing to conduct made-whole analyses of the insureds before exercising their subrogation interests. The prospective class included individuals whose benefits had been reduced under the State plan, as well as individuals whose benefits had been reduced under policies independently issued and administered by BCBS and New West. They sought a declaratory ruling that the defendants’ practices violate Montana’s made-whole laws, an injunction requiring defendants to calculate and pay amounts wrongfully withheld plus interest, and an 1 The parties refer to participants in the State group health insurance plan, and their dependents, as “plan members” or “insureds.” For convenience, we refer to them as “insureds.” 4 order enjoining the defendants from continuing to violate the made-whole rights of the insureds. Diaz I, ¶ 6. ¶8 On December 16, 2009, the District Court denied class certification on grounds that the determination whether class members had been made whole by a settlement with a tortfeasor’s insurer would require individualized assessment. The court concluded that the class failed to meet the requirements of Rule 23. ¶9 Pursuant to M. R. App. P. 6(3)(d), the class representatives appealed to this Court, challenging the District Court’s denial of certification. On October 13, 2010, we issued an order recognizing that the class representatives had raised “a threshold question” as to whether the made-whole doctrine applies to third-party administrators of self-funded employee benefit plans and other benefit plans. We remanded the case to the District Court “to determine whether the ‘made-whole’ laws codified in §§ 2-18-902 and 33-30-1102, MCA, apply to the various types of third-party administrators at issue in this litigation.” Or. at 3 (Oct. 13, 2010) (DA 09-0682). On remand, the District Court determined that the made whole laws did not apply to third-party administrators, including BCBS and New West. The case returned to this Court for further review. ¶10 In Diaz I, we agreed with the District Court’s conclusion that the made whole laws did not apply to the third party administrators, Diaz I, ¶ 24, but reversed its decision denying class certification under Rule 23(b)(2), Diaz I, ¶¶ 48-50. We noted that the class representatives had described the prospective class as: 5 (1) insureds under health insurance plans and policies administered or operated by the State and the TPAs; (2) who were injured through the legal fault of persons who have legal obligations to compensate them for all damages sustained; and (3) who have not been made whole for their damages because the State and the TPAs have programmatically failed to pay benefits for their medical costs. Diaz I, ¶ 28. We also noted that the State and third-party administrators had argued that “Diaz and Hoffmann-Bernhardt’s class definition is amorphous and has evolved throughout this litigation and, therefore should be rejected.” At that time, we observed it was “clear the members of the class will be individuals insured under the State plan, just like Diaz and Hoffman-Bernhardt,” and that the proposed class was sufficiently defined pursuant to the 23(a) criteria that “any additional definition by the Court, at this time, is unnecessary.” Diaz I, ¶¶ 29-30. We then concluded that the Rule 23(a) and (b)(2) criteria had been met and remanded the case with instructions to certify the class. ¶11 On remand, BCBS and New West filed motions to dismiss them as defendants, based on our decision in Diaz I, which the court granted. Plaintiffs filed a Motion for Class Certification Against the State of Montana, requesting certification of the following class: (1) Employees, Employee Dependents, Retirees and Retiree Dependents who participate or participated in the State of Montana’s health insurance or health benefit plan(s), administered or operated by the State and/or the TPAs; (2) who were injured through the legal fault of persons who have legal obligations to compensate them for all damages sustained; and (3) who have not been made whole for their damages (or for whom the State and TPAs conducted no made whole analysis) because the State and the TPAs have programmatically failed to pay benefits for their covered medical costs. 6 ¶12 On March 7, 2012, the State filed a Response Brief seeking to further define the class, as permitted by Rule 23(c)(1)(C), “so that any necessary modification to the class definition can take place before any notice is sent to the class members.” The State proposed several changes to the class definition, including two time limitations. First, the State argued that, under § 27-2-211, MCA, a two-year statute of limitations applies to claims for violations of the statutory made-whole laws and that the class therefore should be limited to those insureds who filed claims for benefits within two years of the filing of the complaint—specifically, those who filed after October 23, 2007. Second, pertinent to this appeal, the State argued that “the class should exclude any individuals who did not file their claims in a timely manner, as required by the State’s Plan.” The State plan includes a claims filing deadline for receipt of benefits—“one year from the date expenses were first incurred”—and thus compensates plan members only for claims timely submitted. The State’s final proposed class definition included both the two-year statute of limitations and the one-year filing deadline: (1) members covered under health benefit plans and policies administered or operated by the State and the TPAs who timely submitted claims for covered benefits pursuant to the terms of the Plan, for health care services that took place no earlier than October 23, 2007; (2) who were injured through the legal fault of persons who have legal obligations to compensate them for all damages sustained; and (3) who have not been made whole for their damages because the State and the TPAs failed to pay benefits for their medical costs because of the application of the Coordination of Benefits Provision and who have not previously released such claims against the State. 7 (Emphasis added.) ¶13 The Plaintiffs argued that the court should consider modification of the class definition only “after Plaintiffs have had the opportunity to conduct discovery.” They contended that this Court had in Diaz I rejected the State’s request to develop the class definition and argued that the court should not narrow the definition to incorporate the State’s affirmative defenses. The Plaintiffs disagreed with both of the time limitations proposed by the State. They contended that the State’s liability arose not from statute but from the State’s insurance contract and thus, the eight-year statute of limitations governing contracts under § 27-2-202, MCA, should apply. Additionally, they argued that many of the non-filing insureds failed to file their claims with the State due to the exclusion in the State plan, which makes clear that the plan will not cover claims eligible for payment by other liability carriers. ¶14 The District Court heard arguments from both parties supporting their proposed class definitions during a May 15, 2012 hearing. On June 19, 2012, the court issued a class certification order adopting the eight-year statute of limitations suggested by the Plaintiffs, but also adopting the one-year filing limitation proposed by the State: (1) employees, employee dependents, retirees and retiree dependents who participate or participated in the State of Montana’s health benefit plan(s), administered or operated by the State and/or the TPAs who timely submitted claims for covered benefits pursuant to the terms of the plan(s) for health care services that took place no earlier than eight years prior to the filing of the complaint in this action, which was October 23, 2008; (2) who were injured through the legal fault of persons who have legal obligations to compensate them for all damages sustained; and 8 (3) who have not been made whole for their damages (or for whom the State and TPAs conducted no made whole analysis) because the State and the TPAs have programmatically [sic] failed to pay benefits for their covered medical costs. (Emphasis added.) Plaintiffs appealed to this Court pursuant to M. R. Civ. P. 23(f). The State does not challenge the District Court’s inclusion of the eight-year look-back period. STANDARD OF REVIEW ¶15 We review class certification orders for an abuse of discretion. Chipman v. N.W. Healthcare Corp., 2012 MT 242, ¶ 17, 366 Mont. 450, 288 P.3d 193. We consider “not whether this Court would have reached the same decision, but whether the district court acted arbitrarily without conscientious judgment or exceeded the bounds of reason.” Chipman, ¶ 17 (quoting Newman v. Lichfield, 2012 MT 47, ¶ 22, 364 Mont. 243, 272 P.3d 625) (internal quotation marks omitted). A district court’s class certification decision “should be accorded the greatest respect because it is in the best position to consider the most fair and efficient procedure for conducting any given litigation.” Chipman, ¶ 17 (citing Diaz I, ¶ 10, and Sieglock v. Burlington N. & Santa Fe Ry. Co., 2003 MT 355, ¶ 8, 319 Mont. 8, 81 P.3d 495). A court abuses its discretion “if its certification order is premised on legal error.” Mattson v. Mont. Power Co., 2012 MT 318, ¶ 17, 368 Mont. 1, 291 P.3d 1209 (quoting Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1237 (9th Cir. 2001) (internal quotation marks omitted)). DISCUSSION 9 ¶16 Whether the District Court abused its discretion by defining the class to include only those insureds who had timely filed claims for covered benefits, thus excluding from the class all “non-filing” insureds. ¶17 As a preliminary matter, the State argues that Diaz and Hoffman-Bernhardt lack standing to challenge the class definition. They point out that “the Plaintiffs did not first present the issue to the District Court in a request for an amendment to the class definition” under M. R. Civ. P. 23(c)(1)(C), and argue that the appeal thus is not ripe for review. We disagree. ¶18 Both the Montana Rules of Civil Procedure and Montana Rules of Appellate Procedure provide this Court with broad authority to conduct interlocutory review of class certification decisions. M. R. Civ. P. 23(f) states that “[a]ppeal may be filed from an order granting or denying class action certification under this rule . . ..” M. R. App. P. 6(3)(d) provides that “an aggrieved party” may appeal from “an order permitting or refusing to permit an action to be maintained as a class action[.]” Additionally, a class certification order “must define the class and the class claims, issues, or defenses . . ..” M. R. Civ. P. 23(c)(1)(B). The District Court’s choice of class definition thus forms a mandatory component of the appealable class certification order. ¶19 While the class representatives could under Rule 23(c)(1)(C) move to alter or amend the class certification order prior to final judgment, that does not preclude plaintiffs from seeking interlocutory review. Here, the District Court considered both parties’ arguments regarding whether the class definition should be altered. The court’s certification order reflected its decision to reject Plaintiffs’ proposed class and instead adopt the limitations 10 proposed by the State. The court’s decision to adopt the filing limitation adversely affected the class Plaintiffs: it served to eliminate a portion of the putative class. Plaintiffs thus demonstrate a “direct, immediate and substantial interest in the subject which would be prejudiced by the judgment or benefited by its reversal.” Branstetter v. Beaumont Supper Club, Inc., 224 Mont. 20, 25, 727 P.2d 933, 936 (1986) (citation omitted). Since a class certification order is appealable under our rules, we conclude that Plaintiffs’ appeal may go forward. ¶20 Our review, nonetheless, is limited; we apply deference to a district court’s preliminary determinations and refrain from micromanaging its administration of a class action. As stated, an appellate court’s review under the abuse of discretion standard is limited to whether the trial court “acted arbitrarily without conscientious judgment or exceeded the bounds of reason.” Chipman, ¶ 17. We are particularly reluctant to interfere with discretionary orders in the early stages of litigation. See e.g. Hegwood v. Mont. Fourth Jud. Dist. Ct., 2003 MT 200, ¶ 16, 317 Mont. 30, 75 P.3d 308. Rule 23(c)(1)(C) preserves a trial court’s flexibility to modify its certification orders, which are made at an early stage in the case, when the facts are disputed and discovery incomplete. ¶21 Applying appropriate deference, we now consider Plaintiffs’ arguments that incorporation of the filing limitation constituted an abuse of discretion on grounds that: (1) the limitation defeated the purpose of the class action; (2) the limitation was inequitable; (3) the limitation violated the “law of the case” established in Diaz I; and (4) by imposing the limitation, the District Court improperly ruled on the State’s defenses. 11 ¶22 1. Is the limitation the District Court placed on class membership arbitrary and unreasonable given the purpose of the class action and the legal background? ¶23 The class representatives argue that the limitation on class membership defeats the purpose of the class complaint—“to enjoin the State’s systematic procedures which are violating the made-whole laws.” They argue that the non-filing plan members failed to file claims specifically because of the procedures being challenged—namely, the policy’s exclusion of coverage for expenses that an insured is entitled to have covered by other liability insurance carriers. Plaintiffs have attached a portion of the State’s Employee Benefits Summary Plan Document, which contains the full language of that exclusion: The following services and expenses are not covered: . . . 5. Expenses that a member is entitled to have covered, or that are paid under an automobile insurance policy, a premise liability insurance policy, or other liability insurance policy. This includes, but is not limited to, a homeowner’s policy or business liability policy, or expenses that a member would be entitled to have covered under such policies if not covered by the State Plan. To file a claim, the plan directs the insureds to present an identification card to the healthcare provider, which triggers the following process: Most providers will submit a claim to your State Plan’s claims administration company for you. . . . If your provider will not submit a claim to the State Plan’s claims administration company, complete a standard claim form, which should be available from the provider. Have the provider complete his/her portion, and send the complete form, and all itemized bills to the State Plan’s claims administration company at the address on your identification card. . . . Payment will automatically be sent directly to participating providers who have agreed to accept allowable fees. You will receive payment directly for services of non-participating providers unless they are preferred providers with 12 special payment arrangements. . . . Respond to requests for information on accidents, other insurance coverage or any other information requests from the State Plan’s claims administration company. Your claim will not be paid until required information is received. Plaintiffs thus argue that on most occasions, “it is the providers – not the insureds – who actually file the claims.” According to Plaintiffs, the providers generally are aware of the exclusion and, when it applies, seek coverage from other liability carriers rather than filing the insureds’ claims for benefits under the State plan. Plaintiffs insist that a large number of non-filing insureds exist—indeed, the “majority” of the original putative class—who failed to file claims for benefits covered by the State plan as a direct result of the exclusion. Those individuals, according to Plaintiffs, are now caught in a “Catch-22”: they have been omitted from the class suit challenging the legality of the exclusion specifically because they, or their claims administrators, complied with the terms of the exclusion. ¶24 The State argued that redefinition was necessary because the original prospective class could not accurately and efficiently be identified. It urged the District Court to: define the class in a manner that is workable and does not place an unnecessary burden on Defendants, nor inappropriately include individuals who will only later have to be removed. . . . [T]he proposed definition would include individuals for whom a made-whole analysis was not done and members were not made whole, but without regard to the reason why the Plan did not make the payment. There are various contractual and benefit coverage grounds for denying the claim. For example, a claim may be denied if the claim for medical treatment was submitted late, the medical claim was not paid because the treatment was experimental or, the treatment involved was not otherwise covered. These obvious defects in the class definition must be cured if we are to have a workable class for this case. 13 The danger exists that if the class is poorly defined, it could include members who have no actual claim against the State. (Emphasis added.) The State further suggested during the May 15, 2012 hearing that the impracticability of identifying class members would be exacerbated by the large size of the putative class: [O]ne of the things that presumably is going to follow is send out notices to the class. Well, how do we go about defining who that class is? We have situations, Your Honor, where people that are technically included in the class as defined by the plaintiffs that we would be unaware of because bills had never been submitted to the State of Montana. If they go to a third-party payer, we may not even know that there was a situation like this. . . . [T]he State of Montana has I think currently approximately 32,000 employees. All of these employees are covered under this employee benefit plan. We’re not dealing with a small group of people here. So any time you talk about sending out notices to people, or doing searches for people, it’s significant expense involved, significant time and labor. In summary, the State argued that the management of a class totaling 32,000 individuals “where some group of the claimants had never filed a claim in the first place” would be burdensome and impracticable, “bordering on the impossible.” The State reemphasizes on appeal, that, if non-filing insureds were to be included, “[e]ach such claim would be subject to unique defenses based on the circumstances surrounding their failure to submit a timely claim,” necessitating numerous “mini-trials.” The fact that no current class representative is a non-filer also bears relevance to the Rule 23(a) elements. ¶25 Additionally, the State presented testimony at the August 2009 motion hearings indicating that the State, through its third-party administrators, encouraged insureds to file all of their claims with their health plan administrator: 14 If they do mark auto related, they indicate there are $5,000 worth of automobile medical coverage, and then it’s State Farm insurance, we would then send them – we would load our computer system to say that there is State Farm, there is 5,000. We would send a letter to the member and tell them the State of Montana contract has an exclusion for automobile medical payable claims. We will process your claims. Please submit your claims to get deductible and co-pay credit. Upon use of your medical pay, when it’s exhausted, we would like a list of those claims so that we can determine that we’ve properly processed the claims and continue to process your claims under contract benefits. It has name and address and contact information so that they can know who to find. ¶26 Although the District Court’s certification order did not include reasons for its choice of class definition, that choice was informed by the parties’ arguments, presented in their briefs and during the hearing. While Plaintiffs raise potentially legitimate concerns, they did not propose a procedure acceptable to the District Court for identifying the non-filing insureds eligible for class membership. The court’s decision ultimately to adopt the filing limitation indicates that it found the State’s arguments persuasive. Absent a showing that potential class members who never filed claims because of the policy exclusion constituted a significant portion of the putative class and could be identified through a manageable process that was not overly burdensome, the District Court’s decision to limit the class to insureds who timely filed claims for covered benefits was not arbitrary or unreasonable. Further, Plaintiffs are seeking declaratory and injunctive relief, which can be fashioned so as to achieve the desired result of enjoining any state procedures that are determined to violate the made-whole laws. This desired result would inure to the benefit of all insureds covered under the State plan, whether or not they have filed or are permitted in the future to file a 15 claim. Thus, the limitation on class membership does not frustrate this intended purpose of the class complaint. ¶27 Issues bearing on the overall manageability of a class action properly are considered throughout the class action proceedings and fall particularly within the purview of the district court. Blanton v. Dept. of Pub. Health and Hum. Servs., 2011 MT 110, ¶ 38, 360 Mont. 396, 255 P.3d 1229 (citing Sieglock, ¶ 8). For example, a district court may under M. R. Civ. P. 23(d) “prescribe measures to prevent undue repetition or complication in presenting evidence or argument,” “impose conditions on the representative parties,” require amendment of pleadings to “eliminate allegations about representation of absent persons,” and “deal with similar procedural matters.” M. R. Civ. P. 23(d)(1)(A)-(E); see Sagers v. Yellow Freight Syst., Inc., 529 F.2d 721, 735 n. 27 (5th Cir. 1976) (noting that the district court may under Fed. R. Civ. P. 23(d) further refine the class definition as discovery proceeds); In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1102 (5th Cir. 1977) (“Rule 23(d) vests the district court, as manager of the class action, with the appropriate authority to enter whatever orders are necessary to the conduct of the action[.]”). As is well-established, district courts have “broad discretion in determining issues relating to trial administration.” Fink v. Williams, 2012 MT 304, ¶ 18, 367 Mont. 431, 291 P.3d 1140. In exercising that discretion in the class action context, a district court “may consider any factor that the parties offer or the court deems appropriate to consider.” Blanton, ¶ 38. ¶28 Additionally, class action certification orders “are not frozen once made”; instead, the District Court maintains discretion to alter the class definition as the case proceeds. Amgen 16 Inc. v. Conn. Ret. Plans & Trust Funds, ___ U.S. ___, 133 S. Ct. 1184, 1202 n. 9 (2013) (“Rule 23 empowers district courts to ‘alter or amend’ class-certification orders based on the circumstances developing as the case unfolds.”) (citing Fed. R. Civ. P. 23(c)(1) and 23(c)(1)(C)); see Howe v. Townsend, 588 F.3d 24, 39 (1st Cir. 2009) (“Courts can amend certification orders to reflect major changes or minor adjustments to the class.”) (citing Fed. R. Civ. P. 23(c)(1)(C)). Accordingly, Plaintiffs may seek to alter or amend the class definition as discovery progresses. ¶29 2. Is the limitation arbitrary and unreasonable because it is inequitable? ¶30 For the same reasons, we disagree with Plaintiffs’ argument that the District Court’s class certification order should be reversed on equitable grounds. Plaintiffs suggest that “[t]he effect of the restricted definition allows the State to capitalize on unsubmitted claims to exclude members from the class even though it is the State’s procedures which have caused the non-filings.” Again, Plaintiffs offered little more than speculation for this premise and the District Court maintains discretion to alter the class size if Plaintiffs propose and convince the court of a manageable means by which the eligible non-filing claimants may be ascertained. ¶31 3. Is the limitation contrary to the “law of the case” established in Diaz I? ¶32 Plaintiffs next assert that the District Court’s choice of class definition violates the law of the case established by our decision in Diaz I. The law of the case doctrine operates similarly to the principle of res judicata, and “expresses the practice of courts generally to refuse to reopen what has been decided.” State v. Wagner, 2013 MT 47, ¶ 18, 369 Mont. 17 139, 296 P.3d 1142 (citation and internal quotation marks omitted). We have articulated the doctrine as follows: 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. ¶33 The law of the case doctrine does not apply here because we did not decide in Diaz I whether non-filing insureds should be included in the class. We addressed class definition only to confirm that a precisely defined class existed and that the named plaintiffs were members of the proposed class. Diaz I, ¶¶ 28-30. Plaintiffs observe accurately that the more expansive class definition was in place when we concluded that the class had satisfied the Rule 23(a) and (b)(2) certification criteria, including the requirement of a common question of law or fact under Rule 23(a)(2). The inclusion of non-filing insureds in the class, however, was not necessary to our decision that the class should be certified. We concluded only that “the prerequisites set forth in Rule 23(a) sufficiently define a class in this case, and any additional definition by this Court, at this time, is unnecessary.” Diaz I, ¶ 30 (emphasis added). Our direction to the District Court to certify the class on remand did not remove that court’s discretion to alter or amend the class certification order—including the class definition—as the case proceeded. M. R. Civ. P. 23(c)(1)(C). ¶34 Plaintiffs also point out that the class definition in this case conflicts with the definition chosen by First Judicial District Court Judge Kathy Seeley in a similar case, which 18 included both filing and non-filing insureds. We have affirmed Judge Seeley’s choice of class definition today in Rolan v. New W. Health Servs., 2013 MT 220, ___ Mont. ___, ___ P.3d ___. We noted that differences exist in the records considered in the two cases, see Rolan, ¶ 25, and explained that “under the abuse of discretion standard of review, district courts may reach different determinations of substantially similar questions, as long as neither court has ‘acted arbitrarily without conscientious judgment or exceeded the bounds of reason.’” Rolan, ¶ 24 (quoting Chipman, ¶ 17). For the reasons already explained, the District Court’s decision in this case to limit the class definition to filing insureds was within its discretion. ¶35 4. By imposing the limitation, did the District Court improperly rule on the State’s defenses? ¶36 The foregoing discussion disposes of Plaintiffs’ final argument that, by incorporating the filing deadline, the District Court improperly ruled on the State’s defenses. As discussed, we did not in Diaz I instruct the District Court as to whether non-filing insureds should be included in the class definition; thus, the court was free to alter or amend the class based on any factors it deemed appropriate. M. R. Civ. P. 23(c)(1)(C); Blanton, ¶ 38. Here, the State explained that identification of the non-filing insureds eligible for class membership would be overly burdensome, if not impossible, where the State has no record of individuals who failed to submit their bills to the State of Montana. Even if the group of non-filing insureds easily could be ascertained, the State argued that the court would need to conduct numerous mini-trials to evaluate whether each non-filing insured failed to file due to the exclusion, 19 rather than one of many other possible reasons. The District Court appropriately considered these practical difficulties when defining the class and its decision to limit the class to filing insureds was within its broad discretion. Fink, ¶ 18; Blanton, ¶ 38. ¶37 For the foregoing reasons, we affirm the District Court’s certification order. /S/ BETH BAKER We Concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ PATRICIA COTTER /S/ JIM RICE /S/ BRIAN MORRIS Justice Michael E Wheat dissents. ¶38 I dissent from the majority opinion to the extent that it refused to modify the class definition to conform to the class definition we approved in the companion case of Rolan v. New West Health Services. The class definition in Rolan is broad enough to include those people who could have filed claims for benefits under their health insurance program but did not because their claims were being paid by a third party liability carrier. This group of claimants’ potential for injury is just as compensable as those who filed claims with their health insurer. The district court in Rolan recognized this fact and defined a class to include such claimants. For this reason I would have modified the class definition in this case to conform to the class definition in Rolan. 20 /S/ MICHAEL E WHEAT | August 6, 2013 |
6ff8ec46-a0b0-4987-895d-5882ffef1516 | State v. Dugan | 2013 MT 38 | DA 11-0494 | Montana | Montana Supreme Court | DA 11-0494 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 38 STATE OF MONTANA, Plaintiff and Appellee, v. RANDALL JAY DUGAN, Defendant and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC-10-194C Honorable John C. Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender, Kristen L. Larson (argued), Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman (argued), Assistant Attorney General, Helena, Montana Marty Lambert, Gallatin County Attorney, Erin Murphy, Deputy County Attorney, Bozeman, Montana Argued: November 13, 2012 Submitted: November 20, 2012 Decided: February 19, 2013 February 19 2013 2 Filed: __________________________________________ Clerk 3 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Randall Jay Dugan appeals from an order of the Eighteenth Judicial District Court, Gallatin County, denying his motion to dismiss a charge of using obscene, lewd, and profane language in violation of the Privacy in Communications statute, § 45-8-213, MCA. Dugan challenges the constitutionality of the Privacy in Communications statute (the statute), arguing that it is overbroad, vague, and violates his free speech rights guaranteed by the Montana and United States Constitutions. We reverse the District Court’s conclusion that Dugan’s speech constituted “fighting words,” and strike a portion of the Privacy in Communications statute as unconstitutionally overbroad. We remand to the District Court to allow Dugan to withdraw his nolo contendere plea and proceed to trial on the charges brought against him under the statute. ISSUES ¶2 Dugan raises the following three issues on appeal: ¶3 1. Did the State violate Dugan’s right to free speech under the First Amendment to the United States Constitution and Article II, Section 7 of the Montana Constitution when it charged him with violating the Privacy in Communications statute, § 45-8-213, MCA? ¶4 2. Is the Privacy in Communications statute, § 45-8-213, MCA, facially overbroad in violation of the First Amendment to the United States Constitution and Article II, Section 7 of the Montana Constitution? 4 ¶5 3. Is the Privacy in Communications statute, § 45-8-213, MCA, vague on its face, or as applied to Dugan, so as to violate the Due Process Clause of the United States Constitution and Article II, Section 17 of the Montana Constitution? FACTUAL AND PROCEDURAL BACKGROUND ¶6 In the lower court proceedings, the Justice Court and District Court relied on the facts as set forth in the parties’ briefs concerning Dugan’s motion to dismiss. Our recitation of the facts is similarly taken from briefing before these courts. ¶7 On October 21, 2009, Dugan visited the office of the Gallatin County Victim Assistance Program (Victim Services) and requested assistance with filling out and filing paperwork for obtaining an order of protection against the mother of his children, who was about to be released from prison. Victim Services is a joint effort of Gallatin County, the City of Bozeman, and the private nonprofit Network Against Sexual and Domestic Violence. It is located in the Law and Justice Center in Bozeman, Montana. The office door is locked and controlled by a video-monitored entry system. Dugan was not allowed to enter the office because he had been loud and disruptive in the past. An employee of Victim Services, Jan Brownell, informed Dugan that the person with whom he needed to speak, Krystal Redmond-Sherrill, was not in the office at that time. Brownell told Dugan to call Redmond-Sherrill and make an appointment to discuss the order of protection. ¶8 On October 28, 2009, Dugan contacted Gallatin County Dispatch to attempt to obtain an order of protection. Dispatch contacted Deputy Mayland of the Gallatin County Sheriff’s Office and asked him to get in touch with Dugan. Deputy Mayland 5 spoke with Dugan and Dugan told him that he was afraid the mother of his children would try to take his children when she was released from prison. Dugan reported that he spoke with Redmond-Sherrill at Victim Services, but she refused to provide him with the necessary paperwork or assistance to obtain an order of protection. Deputy Mayland contacted Victim Services to investigate Dugan’s claims. Redmond-Sherrill informed Deputy Mayland that Dugan had stopped by the office a week ago and was told to make an appointment. Deputy Mayland also talked to Brownell, who told him about Dugan’s past behavior. Brownell reported that the Victim Services’ office staff felt threatened by Dugan. ¶9 Later that same day, Redmond-Sherrill contacted Deputy Mayland and reported that Dugan had just called her. Once again, Dugan requested assistance obtaining an order of protection. When Redmond-Sherrill informed Dugan that she could not help him and suggested that he obtain the necessary paperwork directly from the clerk of court, Dugan became aggressive and agitated. Dugan continued to argue with Redmond-Sherrill, and called her a “fucking cunt” as he hung up the phone. When Redmond-Sherrill described the conversation to Deputy Mayland, her voice was shaky and soft and he believed she was about to cry. Brownell observed that Redmond-Sherrill was visibly upset following the conversation. However, Redmond-Sherrill reported that Dugan did not threaten her or anyone else in the office. Redmond-Sherrill told Deputy Mayland that Dugan was “just really upset that—that [she wasn’t] going to hand him an order of protection . . . and basically wasn’t getting what he was wanting out of that conversation.” 6 ¶10 Deputy Mayland issued a citation to Dugan for violating the Privacy in Communications statute. On the citation, Deputy Mayland wrote that Dugan “called victim on telephone and used obscene, lewd and profane language, offending the victim.” ¶11 Dugan appeared with counsel in Gallatin County Justice Court and filed a motion to dismiss. In his motion, Dugan argued that the charge against him violated his free speech rights under the Montana and United States Constitutions, and that the Privacy in Communications statute was unconstitutionally vague. The State opposed the motion. The Justice Court denied Dugan’s motion to dismiss with no supporting analysis in the record and without providing Dugan an opportunity to file a reply brief. Following the Justice Court’s denial of his motion, Dugan entered a plea of nolo contendere. Dugan was sentenced to 180 days in jail with all but five suspended, and ordered to pay fines and fees totaling $585. Dugan appealed the Justice Court’s denial of his motion to dismiss to the District Court. Dugan’s sentence was stayed pending appeal. ¶12 At the District Court, Dugan once again filed a motion to dismiss. Dugan contended that the charges against him violated his free speech rights, and that the Privacy in Communications statue was unconstitutionally vague and overbroad. The District Court determined that Dugan’s utterance to Redmond-Sherrill constituted unprotected speech in the form of “fighting words.” The District Court further concluded that the Privacy in Communications statute was not unconstitutionally vague or overbroad. Therefore, the District Court denied Dugan’s motion to dismiss. Dugan appeals the District Court’s decision. STANDARDS OF REVIEW 7 ¶13 We review de novo the denial of a motion to dismiss in a criminal case. State v. LeMay, 2011 MT 323, ¶ 27, 363 Mont. 172, 266 P.3d 1278. ¶14 This Court’s review of constitutional questions is plenary. Walters v. Flathead Concrete Prods., 2011 MT 45, ¶ 9, 359 Mont. 346, 249 P.3d 913. The constitutionality of a statute is a question of law, and we review a district court’s legal conclusions for correctness. Walters, ¶ 9. DISCUSSION ¶15 Did the State violate Dugan’s right to free speech under the First Amendment to the United States Constitution and Article II, Section 7 of the Montana Constitution when it charged him with violating the Privacy in Communications statute, § 45-8-213, MCA? ¶16 The statute under which Dugan was charged is § 45-8-213, MCA. It reads in pertinent part as follows: 45-8-213. Privacy in communications. (1) Except as provided in 69-6-104, a person commits the offense of violating privacy in communications if the person knowingly or purposely: (a) with the purpose to terrify, intimidate, threaten, harass, annoy, or offend, communicates with a person by electronic communication and uses obscene, lewd, or profane language, suggests a lewd or lascivious act, or threatens to inflict injury or physical harm to the person or property of the person. The use of obscene, lewd, or profane language or the making of a threat or lewd or lascivious suggestions is prima facie evidence of an intent to terrify, intimidate, threaten, harass, annoy, or offend. . . . (4) “Electronic communication” means any transfer between persons of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. 8 Section 45-8-213, MCA. As backdrop to our discussion of whether this statute infringed Dugan’s free speech rights, we will analyze the protections historically accorded free speech under the United States and Montana Constitutions. ¶17 The First Amendment to the United States Constitution and Article II, Section 7 of the Montana Constitution both protect the right to free speech. The First Amendment to the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” Montana is bound to the guarantees of the First Amendment by the Due Process Clause of the Fourteenth Amendment. City of Whitefish v. O’Shaughnessy, 216 Mont. 433, 438, 704 P.2d 1021, 1024 (1985) (citing Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625 (1925)). Article II, Section 7 of the Montana Constitution states that “[n]o law shall be passed impairing the freedom of speech or expression.” Additionally, under Article II, Section 7, “[e]very person shall be free to speak . . . whatever he will on any subject, being responsible for all abuse of that liberty.” ¶18 The right to free speech is a fundamental personal right and “essential to the common quest for truth and the vitality of society as a whole.” St. James Healthcare v. Cole, 2008 MT 44, ¶ 26, 341 Mont. 368, 178 P.3d 696 (quoting Bose Corp. v. Consumers Union, 466 U.S. 485, 503-04, 104 S. Ct. 1949, 1961 (1984)). The “vast majority” of speech enjoys constitutional protection. State v. Lance, 222 Mont. 92, 102, 721 P.2d 1258, 1265 (1986). However, neither the First Amendment nor Article II, Section 7, provide unlimited protection for all forms of speech. St. James Healthcare, ¶ 29. The United States Supreme Court has explained that the right of free speech is not absolute at all times and under all circumstances: 9 There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument. Chaplinsky v. N.H., 315 U.S. 568, 571-72, 62 S. Ct. 766, 769 (1942) (internal quotations omitted). The District Court relied on the “fighting words” categorical exception to conclude that Dugan’s speech was not protected by the First Amendment. A. The “Fighting Words” Doctrine and the United States Supreme Court ¶19 The United States Supreme Court first declared that “fighting words” is a category of speech not protected by the First Amendment in Chaplinsky, 315 U.S. at 571-72, 62 S. Ct. at 769. Chaplinsky was a Jehovah’s Witness preacher who caused a disturbance after distributing religious literature on public streets and denouncing all religion as a “racket.” Chaplinsky, 315 U.S. at 569-70, 62 S. Ct. at 768. A police officer escorted Chaplinsky to the police station, and Chaplinsky told the officer “[y]ou are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” Chaplinsky, 315 U.S. at 569, 62 S. Ct. at 768. Chaplinsky was convicted of violating a New Hampshire statute that stated as follows: No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation 10 in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation. Chaplinsky, 315 U.S. at 569, 62 S. Ct. at 768. The United States Supreme Court upheld Chaplinsky’s conviction, holding that his speech constituted “fighting words,” which can be prevented and punished without raising any First Amendment problems. Chaplinsky, 315 U.S. at 571-72, 62 S. Ct. at 769. ¶20 The Court defined “fighting words” as “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky, 315 U.S. at 572, 62 S. Ct. at 769. “The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.” Chaplinsky, 315 U.S. at 573, 62 S. Ct. at 770. The Court noted that the purpose of the statute was to “preserve the public peace,” and the statute “does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker.” Chaplinsky, 315 U.S. at 573, 62 S. Ct. at 770. ¶21 Since the Chaplinsky decision in 1942, the United States Supreme Court has never again upheld a conviction based on the “fighting words” categorical exception. The Supreme Court has reversed the conviction each time it has reviewed a case involving “fighting words,” but it has not overturned Chaplinsky. Therefore, “fighting words” remain a narrow and limited category of speech unprotected by the First Amendment. Erwin Chemerinsky, Constitutional Law: Principles and Policies 1002 (3d. ed., Aspen Publishers 2006). 11 ¶22 A review of post-Chaplinsky Supreme Court decisions reveals the limited scope of the “fighting words” categorical exception. In Street v. New York, 394 U.S. 576, 89 S. Ct. 1354 (1969), the Court reversed the malicious mischief conviction of a man who had burned a flag on a public street and declared “[w]e don’t need no damn flag” in response to the assassination of a civil rights leader. The Court held that “[t]hough it is conceivable that some listeners might have been moved to retaliate upon hearing appellant’s disrespectful words, we cannot say that appellant’s remarks were so inherently inflammatory as to come within that small class of ‘fighting words’ which are ‘likely to provoke the average person to retaliation, and thereby cause a breach of the peace.’ ” Street, 394 U.S. at 592, 89 S. Ct. at 1365. ¶23 The Court clarified in Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780 (1971), that words must be directed to a specific person and likely to provoke a violent response from the hearer to constitute unprotected “fighting words.” In Cohen, a man was convicted of disturbing the peace for wearing a jacket bearing the words “Fuck the Draft” in the Los Angeles County Courthouse. Cohen, 403 U.S. at 16, 91 S. Ct. at 1783-84. The Court reasoned that the words on the jacket were not “fighting words” because “[n]o individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult.” Cohen, 403 U.S. at 20, 91 S. Ct. at 1786. The words on the jacket were not “directed to the person of the hearer,” and therefore were not “fighting words.” Cohen, 403 U.S. at 20, 91 S. Ct. at 1785. Applying this same reasoning, the Court in Texas v. Johnson, 491 U.S. 397, 409, 109 S. Ct. 2533, 2542 (1989), reversed the conviction of a protester who burned a flag, holding that his conduct 12 did not fall within the small class of fighting words because “[n]o reasonable onlooker would have regarded Johnson’s generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs.” ¶24 The Supreme Court has often invalidated statutes prohibiting “fighting words” as unconstitutionally vague or overbroad. In Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103 (1972), a war protester stated the following to a police officer: “White son of a bitch, I’ll kill you,” “I’ll choke you to death,” and “if you ever put your hands on me again, I’ll cut you all to pieces.” Gooding, 405 U.S. at 520 n. 1, 92 S. Ct. at 1105 n. 1 (internal quotations marks omitted). The Court overturned the protester’s conviction for violating a statute that prohibited the use of “opprobrious or abusive language, tending to cause a breach of the peace,” holding that the language of the statute sweeps too broadly and could be used to punish speech that does not constitute “fighting words.” Gooding, 405 U.S. at 527-28, 92 S. Ct. at 1108-09. Following its decision in Gooding, the Court reversed the conviction of a man who used the words “mother fucker” at a school board meeting to describe the teachers, the school board, the town, and the country. Rosenfeld v. New Jersey, 408 U.S. 901, 92 S. Ct. 2479 (1972). As Gooding and Rosenfeld illustrate, “fighting words” laws will only be upheld if they are narrowly tailored to apply to speech which is not protected by the First Amendment. Chemerinsky, Constitutional Law: Principles and Policies at 1004. ¶25 The Supreme Court’s more recent decisions discussing fighting words demonstrate that even when narrowly drawn, “fighting words” statutes will not be upheld 13 unless they are content neutral. See R. A. V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538 (1992). In R. A. V., a teenager who allegedly burned a cross in the yard of a black family’s home was charged under a bias-motivated crime ordinance which prohibited placing a symbol, such as a burning cross, on private property with knowledge that it would arouse “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” R. A. V., 505 U.S. at 379-80, 112 S. Ct. at 2541. Though the Minnesota Supreme Court construed the statute in a way that would only reach “fighting words,” the Court held that the statute was facially unconstitutional because it prohibited otherwise permissive speech solely on the basis of the subjects the speech addresses. R. A. V., 505 U.S. at 381, 112 S. Ct. at 2542. In its discussion of “fighting words,” the Court stated: It is not true that “fighting words” have at most a “de minimis” expressive content, or that their content is in all respects “worthless and undeserving of constitutional protection;” sometimes they are quite expressive indeed. We have not said that they constitute “no part of the expression of ideas,” but only that they constitute “no essential part of any exposition of ideas.” R. A. V., 505 U.S. at 384-85, 112 S. Ct. at 2543-44 (internal quotations omitted) (emphasis in original). The Court went on to explain that “the exclusion of ‘fighting words’ from the scope of the First Amendment simply means that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal character, essentially a ‘nonspeech’ element of communication,” and are therefore analogous to a “noisy sound truck.” R. A. V., 505 U.S. at 386, 112 S. Ct. at 2545. ¶26 Despite the narrowness of the categorical exception for “fighting words,” the Supreme Court has made clear that First Amendment concerns do not prevent a state 14 from outlawing speech that constitutes a “true threat.” See Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536 (2003). The Court in Black reviewed whether a Virginia statute that banned cross burning with “an intent to intimidate a person or group of persons” and made any cross burning “prima facie evidence of an intent to intimidate a person or group of persons” violated the First Amendment. Black, 538 U.S. at 347-48, 123 S. Ct. at 1541-42. The Court determined that cross burning performed with an intent to threaten or intimidate is not protected by the First Amendment when it constitutes a “true threat.” Black, 538 U.S. at 359-60, 123 S. Ct. at 1547-48. “ ‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Black, 538 U.S. at 359, 123 S. Ct. at 1548. However, the Court invalidated the prima facie provision as unconstitutionally overbroad and held that it created an unacceptable risk of the suppression of ideas. Black, 538 U.S. at 364-65, 123 S. Ct. at 1550-51. The Court concluded that the prima facie evidence provision impermissibly allowed arrest, prosecution, and conviction of a person based solely on the fact of cross burning itself, which fails to distinguish between cross burning performed with an intent to threaten or intimidate and cross burning performed for other possibly permissible reasons. Black, 538 U.S. at 365-66, 123 S. Ct. at 1550-51. ¶27 When evaluating the scope of protection afforded to Dugan’s speech, we must consider the First Amendment concerns in light of the Supreme Court’s historically narrow application of the “fighting words” categorical exception. B. The “Fighting Words” Doctrine in Montana 15 ¶28 Montana has demonstrated a greater willingness to uphold convictions based on “fighting words.” Montana cases discussing free speech rights and “fighting words” have arisen out of charges for disturbing the peace, disorderly conduct, and intimidation. These cases have often involved speech directed at police officers. ¶29 In City of Whitefish v. O’Shaughnessy, 216 Mont. 433, 435-36, 704 P.2d 1021, 1022-23 (1985), a police officer heard “loud hollering” at around 2:00 a.m. and went to investigate. The officer approached O’Shaughnessy and his group of friends on a city street and asked them to “hold it down.” O’Shaughnessy, 216 Mont. at 436, 704 P.2d at 1023. O’Shaughnessy told the officer that he could not “hold it down” because it was such a “beautiful day.” O’Shaughnessy, 216 Mont. at 436, 704 P.2d at 1023. After asking O’Shaughnessy to “keep it down” several more times and warning him of a possible arrest, O’Shaughnessy entered the back of the patrol car and was asked to get out. O’Shaughnessy, 216 Mont. at 436, 704 P.2d at 1023. O’Shaughnessy exited the vehicle, then re-entered the car. O’Shaughnessy, 216 Mont. at 436, 704 P.2d at 1023. When the officer refused to shake hands with O’Shaughnessy, O’Shaughnessy stated: “Well, [m.f.], I will holler and yell when and wherever I want if I want to.” O’Shaughnessy, 216 Mont. at 436, 704 P.2d at 1023. O’Shaughnessy was arrested and charged with disturbing the peace under a Whitefish municipal ordinance, and was convicted following a jury trial. O’Shaughnessy, 216 Mont. at 434, 704 P.2d at 1022. ¶30 O’Shaughnessy challenged his conviction as a violation of his free speech rights, and also argued that the ordinance was unconstitutionally vague and overbroad. O’Shaughnessy, 216 Mont. at 439, 704 P.2d at 1025. This Court held that 16 O’Shaughnessy’s speech constituted unprotected “fighting words” pursuant to Chaplinsky. O’Shaughnessy, 216 Mont. at 438-39, 704 P.2d at 1024. We rejected the vagueness and overbreadth challenges, concluding that the ordinance was narrowly construed to only apply “to words that have a direct tendency to violence and which are willfully and maliciously uttered.” O’Shaughnessy, 216 Mont. at 442-43, 704 P.2d at 1027. ¶31 Later that same year, the Court decided another “fighting words” case, City of Billings v. Batten, 218 Mont. 64, 705 P.2d 1120 (1985). In Batten, an argument broke out between neighbors and Batten called his neighbor “a communist government worker, no good son-of-a-bitch, chickenshit, and m---r” and stated: “Fight me. Hit me. You have a golf club. Come on. I want to fight you.” Batten, 218 Mont. at 67, 705 P.2d at 1122. While the face-to-face confrontation ensued, Batten yelled “come back and fight you m---r.” Batten, 218 Mont. at 67-68, 705 P.2d at 1123. Batten was found guilty of disorderly conduct following a jury trial. Batten, 218 Mont. at 66, 705 P.2d at 1121. On appeal, this Court held that Batten’s speech constituted “fighting words” because he directly challenged a person to and nearly provoked a fight, causing such concern that one of the neighbors ran away from the confrontation. Batten, 218 Mont. at 69-70, 705 P.2d at 1124. Next, we concluded that the disorderly conduct statute, § 45-8-101, MCA, was not unconstitutionally vague or overbroad. Batten, 218 Mont. at 70, 705 P.2d at 1124-25. Relying on O’Shaughnessy, the Court reasoned that when the disorderly conduct statute is construed to apply only to words uttered knowingly that have a direct 17 tendency to violence, the statute is constitutional. Batten, 218 Mont. at 70, 705 P.2d at 1125. ¶32 In State v. Lance, 222 Mont. 92, 721 P.2d 1258 (1986), a defendant challenged his conviction for intimidation under § 45-5-203(1)(b), MCA, on First Amendment grounds. Lance was found guilty of intimidation for sending multiple letters in which he described his plans to take hostages to gain media attention for what he perceived were wrongs committed against him by judges and attorneys. Lance, 222 Mont. at 96-97, 721 P.2d at 1261-62. First, this Court held that the statute was not facially overbroad because it only prohibited speech in the form of threats to subject any person to physical confinement or restraint, without lawful authority, with the purpose of causing another to perform or omit the performance of any act. Lance, 222 Mont. at 101, 721 P.2d at 1264. The Court determined that the State had a legitimate and considerable interest in preventing persons from threatening to take hostages for the purpose of attaining some end, and Lance failed to identify any substantial application of the statute to constitutionally protected speech. Lance, 222 Mont. at 101, 721 P.2d at 1264-65. Next, we held that the type of “true threat” prohibited by the statute was not speech protected by the First Amendment. Lance, 222 Mont. at 104, 721 P.2d at 1267. ¶33 This Court’s most recent “fighting words” case involved a disturbing the peace charge arising from a confrontation with a police officer. State v. Robinson, 2003 MT 364, 319 Mont. 82, 82 P.3d 27. Robinson was crossing an intersection in front of a police car when he glared at the waiting police officer and called him a “fucking pig.” Robinson, ¶ 3. The officer parked his car and approached Robinson. Robinson, ¶ 4. The 18 officer asked Robinson if there was anything he wanted to talk about, to which Robinson replied “[f]uck off, asshole.” Robinson, ¶ 4. The officer arrested Robinson for disorderly conduct, in violation of § 45-8-101, MCA. Robinson, ¶ 4. Robinson filed a motion to dismiss that the district court denied, then pled nolo contendere to reserve his right to appeal. Robinson, ¶¶ 5-6. On appeal, Robinson argued that the district court erred in denying his motion to dismiss and concluding that his statements to the police officer were “fighting words.” Robinson, ¶ 8. We affirmed the district court’s determination that his speech constituted “fighting words” because it was “sufficiently and inherently inflammatory.” Robinson, ¶ 24. The Court explained: If the statements in question had been uttered in the context of a political rally or protest, free speech concerns might well prevail. However, we fail to see how randomly goading a police officer by calling him a “f****** pig” adds to our constitutionally-protected social discourse. Robinson, ¶ 22.1 ¶34 Though this Court has addressed “fighting words” in other contexts, it has never discussed this categorical exception in connection with Montana’s Privacy in Communications statute, § 45-8-213, MCA. C. The District Court Erred in Deeming Dugan’s Speech “Fighting Words” ¶35 The District Court relied on Chaplinsky, Robinson, and O’Shaughnessy in determining that Dugan’s statement to Redmond-Sherrill constituted “fighting words.” The District Court reasoned that Dugan’s speech was “inherently inflammatory,” was not 1 The author of this Opinion dissented in Robinson, disagreeing with the majority on the basis that “a trained officer should be expected to exercise a higher degree of restraint than the average citizen.” Robinson, ¶ 31 (Cotter, J., dissenting). 19 an essential part of any exposition of ideas, and of “such slight social value” that any benefit was “clearly outweighed by the social interest in order and morality.” ¶36 Dugan argues that his words were not “fighting words” because they were not uttered in a public place or in a face-to-face setting. Furthermore, Dugan contends that his speech created no danger of an imminent breach of the peace. The State counters that Dugan’s statement inflicted injury by its very utterance as “the equivalent of a verbal sucker punch in the face.” The State asserts that Dugan’s words were inherently likely to evoke a violent reaction, and the fact that the speech occurred during a telephone call does not limit its qualification as “fighting words.” ¶37 All of the “fighting words” cases relied upon by the District Court involved face-to-face communications. The seminal “fighting words” case, Chaplinsky, clearly contemplated some level of physical proximity between the speaker and his audience. In upholding the “fighting words” conviction, the Supreme Court in Chaplinsky stated that: “The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee.” Chaplinsky, 315 U.S. at 573, 62 S. Ct. at 770 (emphasis added). Furthermore, limiting the “fighting words” categorical exception to face-to-face communications is consistent with the underlying purpose of the doctrine, which is “to preserve the public peace” by forbidding only those words that have a “direct tendency to cause acts of violence.” Chaplinsky, 315 U.S. at 573, 62 S. Ct. at 770. The Montana “fighting words” cases, O’Shaughnessy, Batten, Lance, and Robinson, likewise all involved face-to-face communications. In fact, the State was unable to point to a single “fighting words” case in which a conviction passed 20 constitutional muster when the subject communication did not occur in the physical presence of the listener. ¶38 Other courts have recognized the proximal limitations of the “fighting words” doctrine and have refused to extend it beyond face-to-face communication. In Anniskette v. State, 489 P.2d 1012, 1013 (Alaska 1971), a man was charged with disorderly conduct for calling an Alaska State Trooper on his home telephone and complaining at length about the trooper’s ineffectiveness and lack of qualifications. The caller referred to the trooper as a “no good God-damn cop.” Anniskette, 489 P.2d at 1013 n. 1. The Alaska Supreme Court determined that the caller’s telephonic communication did not fall within the category of “fighting words” because the “time necessary for the officer to travel from his residence to that of the defendant should have allowed enough cooling off so that any desire on the part of the officer to inflict violence on the defendant should have been dissipated.” Anniskette, 489 P.2d at 1014-15. The Court dismissed the charges against the caller after holding that the caller’s speech was entitled to First Amendment protection. Anniskette, 489 P.2d at 1015-16. ¶39 Courts have even refused to classify speech as “fighting words” when the communication occurs in person but the speaker and the addressee are not in close physical proximity. In Hershfield v. Commonwealth, 417 S.E.2d 876 (Va. App. 1992), a man was convicted of violating a Virginia statute that prohibits abusive language after he told his neighbor to “go f___ yourself.” The speaker was standing in his yard two houses down the street from the addressee when he uttered the statement. Hershfield, 417 S.E.2d at 876. The court overturned his conviction, holding that the statute must only apply to 21 “fighting words” to comply with constitutional concerns. Hershfield, 417 S.E.2d at 877. The court determined that his speech did not constitute “fighting words” because it did not occur face-to-face. Hershfield, 417 S.E.2d at 878. Even though the abusive language was uttered in the presence of another in the literal sense that the listener could see and hear the speaker, the encounter was not face-to-face because the parties were separated by a distance of 55 to 60 feet and by a fence. Hershfield, 417 S.E.2d at 877-78. Under these circumstances, the distance and barriers between the parties precluded an immediate, violent reaction. Hershfield, 417 S.E.2d at 877-78. ¶40 The Minnesota Supreme Court suggested an even narrower application of the face-to-face requirement in In re Welfare of S.L.J., 263 N.W.2d 412 (Minn. 1978). In S.L.J., a 14-year-old girl was questioned by two police officers who had just apprehended some teenage boys in the area. S.L.J., 263 N.W.2d at 415. After asking her some questions, the officers urged her to hurry home because it was past her curfew. S.L.J., 263 N.W.2d at 415. The girl headed down an alley and walked until she was somewhere between 15 and 30 feet away from the squad car, at which point she turned around and said “fuck you pigs.” S.L.J., 263 N.W.2d at 415. The officers exited their vehicle and arrested the girl for disorderly conduct. S.L.J., 263 N.W.2d at 415. The Minnesota Supreme Court reversed the girl’s disorderly conduct conviction, holding that her words were not “fighting words” because they were “spoken in retreat from more than 15 feet away rather than eye-to-eye, [and] there was no reasonable likelihood that they would tend to incite an immediate breach of the peace or to provoke violent reaction by an ordinary, reasonable person.” S.L.J., 263 N.W.2d at 420. 22 ¶41 In light of these cases, and the principles underlying the “fighting words” doctrine and its intersection with free speech rights, many authorities on the subject have concluded that: Insulting language must be spoken in close physical proximity to the addressee to be considered fighting words. Otherwise, the burden is on the addressee to “cool off.” Thus, insults over the telephone may never constitute fighting words because the time necessary to initiate violence with the caller should be enough to cool the temper of the average person. Michael J. Mannheimer, The Fighting Words Doctrine, 93 Colum. L. Rev. 1527, 1554 (1993); see also Burton Caine, The Trouble with “Fighting Words”: Chaplinsky v. New Hampshire is a Threat to First Amendment Values and Should be Overturned, 88 Marq. L. Rev. 441, 450-51 (2004) (listing the possibilities suggested in Chaplinsky for defining “fighting words” and concluding that communication by telephone is not a permissible application of the doctrine); Thomas W. Korver, Student Author, State v. Robinson: Free Speech or Itchin’ for a Fight, 65 Mont. L. Rev. 385, 393 (2004) (the words must be addressed to the person face-to-face); Jennifer Elrod, Expressive Activity, True Threats, and the First Amendment, 36 Conn. L. Rev. 541, 576 (2004) (The “fighting words” doctrine assumes close physical proximity, face-to-face confrontations, and imminent or immediate physical responses or reactions to the speaker’s statements). ¶42 We agree with the proposition that “there is little likelihood of an immediate breach of the peace when one can abruptly hang up the receiver.” Walker v. Dillard, 523 F.2d 3, 5 n. 7 (4th Cir. 1975). Here, Dugan said the words “fucking cunt” over the telephone to Redmond-Sherrill. Dugan’s speech did not occur face-to-face with Redmond-Sherrill, as is required for speech to constitute “fighting words” pursuant to 23 Chaplinsky and its progeny. As discussed in Anniskette, Hershfield, and S.L.J., the face-to-face requirement supports the underlying purpose of the “fighting words” doctrine, which is to preserve the public peace and prevent immediate incitement of violence. ¶43 Words spoken over the telephone are not proscribable under the “fighting words” doctrine because the person listening on the other end of the line is unable to react with imminent violence against the caller. Redmond-Sherrill was in her office at the time of the phone call. Her office is located behind locked doors controlled by a video-monitored entry system. Nothing in the record suggests that she knew Dugan’s location when he called her, and no facts indicate that Dugan was located near the Law and Justice Center when he placed the phone call. Under these circumstances, the face-to-face requirement of the “fighting words” doctrine cannot be satisfied. ¶44 The District Court focused on the “slight social value” of Dugan’s speech and the fact that his words constituted “no essential part of any exposition of ideas” in concluding that his words were punishable without offending free speech rights. The Supreme Court has clarified the language in Chaplinsky that described unprotected categories of speech as being “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” See U.S. v. Stevens, ___ U.S. ___, ___, 130 S. Ct. 1577, 1585 (2010). The Supreme Court noted that such descriptions of unprotected categories of speech are just that—descriptive. Stevens, ___ U.S. at ___, 130 S. Ct. at 1586. “They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is 24 deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor.” Stevens, ___ U.S. at ___, 130 S. Ct. at 1586. While Dugan’s utterance was certainly not of high social value, essential in any sense, or beneficial to the pursuit of truth, it is not automatically rendered proscribable on the basis of these shortcomings. ¶45 A review of “fighting words” cases makes clear that the “mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected.” R. A. V., 505 U.S. at 414, 112 S. Ct. at 2559 (White, Blackmun, O’Connor & Stevens, JJ., concurring). Though Dugan’s choice of words was among the most distasteful in our vocabulary, if we are to preserve the free speech rights enshrined in the Montana and United States Consitutions, we must recognize that “the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.” Cohen, 403 U.S. at 25, 91 S. Ct. at 1788. The context suggests that Dugan’s speech was uttered in exasperation and frustration. [C]urses, oaths, expletives, execrations, imprecations, maledictions, and the whole vocabulary of insults are not intended or susceptible of literal interpretation. They are expressions of annoyance and hostility—nothing more. . . . Their significance is emotional, and it is not merely immensurable but also variable. The emotional quality of exclamations varies from time to time, from region to region, and as between social, cultural, and ethnic groups. St. Paul v. Morris, 104 N.W.2d 902, 910 (Minn. 1960) (Loevinger, J., dissenting). Expletives and insults, no matter how distasteful, can be constitutionally proscribed only if they fall within one of the narrow and limited categories of unprotected speech. 25 ¶46 We are likewise not persuaded by the State’s argument that Dugan’s speech was punishable under the captive audience doctrine. The Supreme Court has applied the captive audience doctrine “sparingly to protect unwilling listeners from protected speech.” Snyder v. Phelps, ___ U.S. ___, ___, 131 S. Ct. 1207, 1220 (2011). The ability of the government to constitutionally shut off discourse solely to protect others from hearing it depends on “a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen, 403 U.S. at 21, 91 S. Ct. at 1786. “Outside the home, the balance between the offensive speaker and the unwilling audience may sometimes tip in favor of the speaker, requiring the offended listener to turn away.” F.C.C. v. Pacifica Found., 438 U.S. 726, 749 n. 27, 98 S. Ct. 3026, 3040 n. 27 (1978). While the government may act in limited situations to prohibit intrusion into the privacy of the home, the Supreme Court has “consistently stressed that we are often captives outside the sanctuary of the home and subject to objectionable speech.” Cohen, 403 U.S. at 21, 91 S. Ct. at 1786 (internal quotations omitted). ¶47 Given the Supreme Court’s sparing application of the captive audience doctrine, we conclude that it does not apply under these circumstances. Redmond-Sherrill was not in her home when she received the telephone call from Dugan. Redmond-Sherrill was using a business phone at Victim Services, an entity that holds itself out to the public to provide assistance. Dugan’s phone call was made to elicit those services. The charges against Dugan stem from a single phone call. Dugan immediately hung up the phone after making his objectionable utterance, but even if he had not done so, Redmond-Sherrill had the power at any moment to end the communication by simply 26 hanging up the phone. The privacy interests of a public employee at Victim Services are certainly less substantial than the privacy interests that a private citizen enjoys while in her residence. Under these facts, the State has failed to show that Redmond-Sherrill’s substantial privacy interests were invaded in an essentially intolerable manner. ¶48 Dugan’s speech did not constitute an unprotected “true threat.” Calling Redmond-Sherrill a “fucking cunt” is not a statement meant to communicate an intent to commit an act of unlawful violence against her. See Black, 538 U.S. at 359, 123 S. Ct. at 1548. Redmond-Sherrill admitted that Dugan did not threaten her or anyone else at Victim Services during the phone call. Furthermore, Dugan’s words were not unprotected obscenity. Obscene material must be erotic in some significant way and appeal to the prurient interest in sex. See Cohen, 403 U.S. at 20, 91 S. Ct. at 1785; § 45-8-201(2), MCA. The words used by Dugan could constitute obscenity under different circumstances, but the context suggests that he uttered the words in frustration and his use is not subject to a literal interpretation. ¶49 We hold that the District Court erred in deeming Dugan’s speech unprotected “fighting words.” This Court and the United States Supreme Court have applied the “fighting words” doctrine only to face-to-face interactions and in circumstances likely to cause an immediate breach of the peace. We see no reason to extend the doctrine beyond its historically narrow and limited reach. Thus, Dugan’s words do not fall under one of the categorical exceptions to free speech protections guaranteed by the Montana and United States Constitutions. 27 ¶50 It is important to note that in reaching the foregoing conclusion, we do not foreclose Dugan’s prosecution under the statute. Prosecution for his actions in this case does not violate Dugan’s free speech rights because the statute only proscribes communication made “with the purpose to terrify, intimidate, threaten, harass, annoy or offend.” Section 45-8-213(1)(a), MCA. As further explained below, the requirement that the State prove Dugan’s statement was made with a specific intent removes the danger of criminalizing protected speech. ¶51 Is the Privacy in Communications statute, § 45-8-213, MCA, facially overbroad in violation of the First Amendment to the United States Constitution and Article II, Section 7 of the Montana Constitution? ¶52 “An over-broad statute is one that is designed to burden or punish activities which are not constitutionally protected, but the statute includes within its scope activities which are protected by the First Amendment.” State v. Nye, 283 Mont. 505, 515, 943 P.2d 96, 102 (1997). The crucial question in addressing an overbreadth challenge is whether the statute sweeps within its prohibitions what may not be punished constitutionally. O’Shaughnessy, 216 Mont. at 440, 704 P.2d at 1026; Grayned v. City of Rockford, 408 U.S. 104, 114-15, 92 S. Ct. 2294, 2302 (1972). Even if an enactment is clear and precise, it may nevertheless be deemed overbroad if it reaches constitutionally protected conduct. O’Shaughnessy, 216 Mont. at 440, 704 P.2d at 1026. ¶53 Dugan asserts that the statute is facially overbroad. “[A]n individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not before the court—those who desire to engage in legally protected expression but who may refrain from doing so 28 rather than risk prosecution or undertake to have the law declared partially invalid.” Lance, 222 Mont. at 99, 721 P.2d at 1263 (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S. Ct. 2794, 2801-02 (1985)). ¶54 We restate the pertinent provisions of Montana’s Privacy in Communications statute, § 45-8-213, MCA, as follows: 45-8-213. Privacy in communications. (1) Except as provided in 69-6-104, a person commits the offense of violating privacy in communications if the person knowingly or purposely: (a) with the purpose to terrify, intimidate, threaten, harass, annoy, or offend, communicates with a person by electronic communication and uses obscene, lewd, or profane language, suggests a lewd or lascivious act, or threatens to inflict injury or physical harm to the person or property of the person. The use of obscene, lewd, or profane language or the making of a threat or lewd or lascivious suggestions is prima facie evidence of an intent to terrify, intimidate, threaten, harass, annoy, or offend. . . . (4) “Electronic communication” means any transfer between persons of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. Dugan’s citation stated that he “called victim on telephone and used obscene, lewd and profane language, offending the victim” in violation of § 45-8-213(1)(a), MCA. ¶55 The District Court determined that Dugan’s overbreadth challenge must fail because it was “based purely on speculation and is not real and substantial.” Dugan argues that the Privacy in Communications statute is overbroad because it makes the “use of obscene, lewd, or profane language . . . prima facie evidence of an intent to terrify, intimidate, threaten, harass, annoy, or offend.” Dugan contends that the statutory presumption of intent to offend impermissibly allows the State to punish more speech 29 than is constitutionally proscribable under the First Amendment. The State asserts that because Dugan pled guilty to the charge, there is no evidence that Montana courts have applied the presumption of intent in ways that violate free speech rights. The State argues that Dugan has failed to demonstrate how the statute might infringe on the freedom of speech of others in a real and substantial way in comparison to the statute’s wide variety of constitutional applications. The State also points to decisions from other jurisdictions that have rejected overbreadth challenges to similar telephone harassment statutes. ¶56 This Court determined that the disturbing the peace ordinance in O’Shaughnessy was not overbroad after finding that the ordinance had been constitutionally construed: We affirm the narrow construction on the part of the District Court in construing the Whitefish Ordinance through its instructions, which required that not only must the defendant have willfully and maliciously disturbed the peace by uttering the language in question, but that the words and language of the defendant must have been of such a nature that men of common intelligence would understand that the words were likely to cause an average person to fight and with the further instruction that threatening, profane and obscene words, said without a disarming smile, are generally considered to be “fighting words.” Because we construe the Whitefish Ordinance narrowly as only applying to words that have a direct tendency to violence and which are willfully and maliciously uttered, we conclude that the Ordinance is not unconstitutional for vagueness and overbreadth. O’Shaughnessy, 216 Mont. at 442-43, 704 P.2d at 1027. The statute was not overbroad because it was effectively construed to only punish “fighting words,” which can be proscribed without offending the First Amendment. ¶57 This Court similarly concluded in Lance that the intimidation statute was not unconstitutionally overbroad. We determined that the statute was narrowly construed to 30 prohibit only “true threats,” which are constitutionally unprotected much like “fighting words.” Lance, 222 Mont. at 103-04, 721 P.2d at 1266. Lance was unable to identify and the Court was unable to find any situations where a person would be constitutionally permitted to make such a threat. Lance, 222 Mont. at 101, 721 P.2d at 1264-65. Citing the rule that “the overbreadth of a statute must not only be real, but substantial as well,” the Court refused to facially invalidate the statute on overbreadth grounds. Lance, 222 Mont. at 100-01, 721 P.2d at 1264-65. ¶58 The statutes at issue in O’Shaughnessy and Lance did not contain a prima facie evidence provision. For guidance on interpreting this provision, we turn back to the United States Supreme Court’s decision in Virginia v. Black. The Virginia statute in question in Black banned cross burning with “an intent to intimidate a person or group of persons” and made any cross burning “prima facie evidence of an intent to intimidate a person or group of persons.” Black, 538 U.S. at 347-48, 123 S. Ct. at 1541-42. While the Court recognized that cross burning performed with an intent to threaten or intimidate is a “true threat” not protected by the First Amendment, the Court invalidated the prima facie provision as unconstitutionally overbroad. Black, 538 U.S. at 364-65, 123 S. Ct. at 1550-51. The Court explained as follows: [T]he prima facie provision strips away the very reason why a State may ban cross burning with the intent to intimidate. The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense. And even where a defendant like Black presents a defense, the prima facie evidence provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case. The provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself. 31 Black, 538 U.S. at 365, 123 S. Ct. at 1550-51. The prima facie provision was struck down as unconstitutionally overbroad because the First Amendment does not permit the fact-finder to ignore all of the contextual factors in determining whether a particular cross burning was committed with an intent to intimidate. Black, 538 U.S. at 367, 123 S. Ct. at 1551. ¶59 The Nebraska Supreme Court invalidated a nearly identical prima facie provision in State v. Kipf, 450 N.W.2d 397 (Neb. 1990). Kipf was charged with intimidation by telephone under a statute with a provision that stated: “The use of indecent, lewd, or obscene language or the making of a threat or lewd suggestion shall be prima facie evidence of intent to terrify, intimidate, threaten, harass, annoy, or offend.” Kipf, 450 N.W.2d at 402. The Court invalidated the prima facie language and concluded that a jury instruction based on the statute was unconstitutional because it deprived defendants of the due process right to have the State prove beyond a reasonable doubt each element of the crime charged, and impermissibly shifted the burden to the defendant to disprove the element of intent in the offense charged. Kipf, 450 N.W.2d at 413. The Court determined that a jury instruction applying the prima facie language would, in the absence of a defendant’s presentation of evidence negating the intent established by the prima facie provision, have the legal effect of a directed verdict on the issue of criminal intent as an element of the offense. Kipf, 450 N.W.2d at 413. ¶60 Further support for invalidating similar prima facie language is found in Baker v. State, 494 P.2d 68 (Ariz. App. 1972). The prima facie provision in Baker stated that: 32 “The use of obscene, lewd or profane language or the making of a threat or statement as set forth in this section shall be prima facie evidence of intent to terrify, intimidate, threaten, harass, annoy or offend.” Baker, 494 P.2d at 70. The court invalidated the prima facie language for failing to make a rational connection between the proven fact and the presumed fact: The test is whether the inference upon which the presumption is based can be sustained by common experience and the circumstances of life. It is our observation that nowadays, obscene, lewd or profane language is not uncommonly used between individuals without any intent to terrify, intimidate, threaten, harass, annoy or offend. We accordingly do not believe that it is rational to assume that merely because a person uses obscene, lewd or profane language over the telephone one can conclude the person is doing so with the intent proscribed by the statute. Baker, 494 P.2d at 71-72 (citations omitted). ¶61 Just as free speech concerns did not permit the shortcut offered by the prima facie evidence provision in Black, Kipf, and Baker, we find that the same holds true here. Montana’s Privacy in Communications statute, § 45-8-213, MCA, makes the “use of obscene, lewd, or profane language . . . prima facie evidence of an intent to terrify, intimidate, threaten, harass, annoy, or offend” with no regard to the circumstances and facts of the particular case. As such, it presents a substantial and real danger of infringing on the free speech rights of others. For example, a person who was talking on the phone and accidentally stubbed his toe might inadvertently say a profane word. The prima facie provision would ignore the facts of the case and automatically presume that he uttered the profane word with “an intent to terrify, intimidate, threaten, harass, annoy, or offend.” As discussed in Baker, it is not rational to assume based on mere use of certain types of 33 language over the telephone that the person is doing so with the intent proscribed by the statute. ¶62 Though Dugan is not asserting an as-applied overbreadth challenge, the alleged facts of his case are illustrative. Dugan called Redmond-Sherrill to request assistance in filing an order of protection. He placed the call for a legitimate reason. However, because he became incredibly frustrated when Redmond-Sherrill refused to help him and he went on to say the words “fucking cunt” in exasperation, the prima facie provision creates the presumption that the purpose of his call was to “terrify, intimidate, threaten, harass, annoy, or offend” Redmond-Sherrill. Such a conclusion is unwarranted under the circumstances. We recognize that “a statute cannot be challenged just because it might result in an unconstitutional abridgment of speech in a hypothetical case.” State v. Allum, 2005 MT 150, ¶ 29, 327 Mont. 363, 114 P.3d 233. However, when judged in relation to the statute’s plainly legitimate sweep, the unconstitutional overbreadth is both “real” and “substantial.” Allum, ¶ 29. There is a realistic danger that the statute itself will significantly compromise recognized free speech rights of parties not before the Court, especially considering the volume and variety of electronic communication that takes place in today’s world. ¶63 We hold that the prima facie provision of the Privacy in Communications statute, § 45-8-213, MCA, is facially overbroad. It is well-established that “the same statute may be in part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected.” Lance, 222 Mont. at 99, 721 P.2d at 1264; Brockett, 34 472 U.S. at 502, 105 S. Ct. at 2801. We strike the following language from § 45-8-213, MCA, as unconstitutionally overbroad: “The use of obscene, lewd, or profane language or the making of a threat or lewd or lascivious suggestions is prima facie evidence of an intent to terrify, intimidate, threaten, harass, annoy, or offend.” ¶64 Though the statute was only designed to burden or punish activities which are not constitutionally protected, the statute includes within its scope activities which are protected by the First Amendment. Therefore, the statute sweeps within its prohibitions speech which may not be punished constitutionally. With the prima facie provision invalidated, Montana’s Privacy in Communications statute legitimately encompasses only those electronic communications made with the purpose to terrify, intimidate, threaten, harass, annoy, or offend. Such communications can be proscribed without violating the Montana and United States Constitutions. ¶65 Is the Privacy in Communications statute, § 45-8-213, MCA, vague on its face, or as applied to Dugan, so as to violate the Due Process Clause of the United States Constitution and Article II, Section 17 of the Montana Constitution? ¶66 A vagueness challenge to a statute may be maintained under two different theories: (1) because the statute is so vague that it is rendered void on its face; or (2) because it is vague as applied in a particular situation. State v. Watters, 2009 MT 163, ¶ 24, 350 Mont. 465, 208 P.3d 408; Nye, 283 Mont. at 513, 943 P.2d at 101. “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” O’Shaughnessy, 216 Mont. at 440, 704 P.2d at 1025; Grayned, 408 U.S. at 108, 92 S. Ct. at 2298. Vague laws offend the following important values: 35 First, we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked. O’Shaughnessy, 216 Mont. at 440, 704 P.2d at 1025-26; Grayned, 408 U.S. at 108-09, 92 S. Ct. at 2298-99 (internal quotations omitted) (citations omitted). We review Dugan’s as-applied and facial vagueness challenges with these considerations in mind. ¶67 A statute is void on its face “if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” Nye, 283 Mont. at 513, 943 P.2d at 101. For vague-as-applied challenges, a court must determine whether the statute in question provides a person with “actual notice” and whether it provides “minimal guidelines” to law enforcement. Watters, ¶ 32. To determine whether the challenged statute provides “actual notice,” courts examine the statute in light of the defendant’s conduct to determine if the defendant reasonably could have understood that the statute prohibited such conduct. Watters, ¶ 32. ¶68 The District Court determined that the Privacy in Communications statute, § 45-8-213, MCA, was neither facially vague nor vague as applied. Dugan contends that the statute is void for vagueness on its face because it incorporates but does not further 36 define what it means to “offend” in the course of using “obscene, lewd, or profane language.” Dugan argues that the statute fails to sufficiently explain what words, said under what circumstances, would constitute a violation of the statute. As such, Dugan asserts that he could not have understood what words he was allowed to say and what words would subject him to prosecution. ¶69 The failure to include exhaustive definitions of every term employed in a statute will not automatically render a statute overly vague, so long as the meaning of the statute is clear and provides a defendant sufficient notice of what conduct is proscribed. Nye, 283 Mont. at 513, 943 P.2d at 101-02. In Nye, a defendant challenged the statute setting forth the crime of malicious intimidation or harassment, § 45-5-221, MCA, as unconstitutionally vague. Nye, 283 Mont. at 514, 943 P.2d at 102. The statute made it unlawful to “purposely or knowingly, with the intent to terrify, intimidate, threaten, harass, annoy, or offend” damage, destroy, or deface property because of another person’s “race, creed, religion, color, national origin, or involvement in civil rights or human rights activities.” Section 45-5-221, MCA. In upholding the statute, this Court explained that the terms “annoy” and “offend” have commonly understood meanings: “[a]nnoy means to bother, irritate or harass, particularly by repeated acts,” and “[o]ffend means to create or excite anger, resentment or annoyance or to cause displeasure.” Nye, 283 Mont. at 513-14, 943 P.2d at 102. We determined that these terms were of common usage and were readily understandable, so a reasonable person of average intelligence could comprehend their meaning. Nye, 283 Mont. at 514, 943 P.2d at 102; see also State 37 v. Martel, 273 Mont. 143, 902 P.2d 14 (1995) (holding that Montana’s anti-stalking statute was not unconstitutionally vague). ¶70 The requirement of a mental state to do a prohibited act can render an otherwise vague or indefinite statute constitutional. Nye, 283 Mont. at 514, 943 P.2d at 102; Martel, 273 Mont. at 152, 902 P.2d at 19-20; Screws v. U.S., 325 U.S. 91, 101, 65 S. Ct. 1031, 1035 (1945). As we have previously noted, “if the challenged statute is reasonably clear in its application to the conduct of the person bringing the challenge, it cannot be stricken on its face for vagueness.” Nye, 283 Mont. at 514, 943 P.2d at 102; State v. Lilburn, 265 Mont. 258, 270, 875 P.2d 1036, 1044 (1994); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S. Ct. 1186, 1193 (1982). In Lilburn, we held that a hunter could not challenge a hunter harassment statute for facial vagueness when his conduct of standing between a hunter and a bison to prevent the animal from being shot was unquestionably proscribed by the statute he was challenging. Lilburn, 265 Mont. at 270-71, 875 P.2d at 1044. ¶71 Other jurisdictions have concluded that statutes similar to Montana’s Privacy in Communications statute are not impermissibly vague. The Idaho Court of Appeals held in State v. Richards, 896 P.2d 357 (Idaho App. 1995), that a statute prohibiting a person from telephoning another and using “obscene, lewd or profane language” with “the intent to annoy, terrify, threaten, intimidate, harass or offend” was not unconstitutionally vague. The court determined that the words used in the statute required the caller to harbor a specific intent to cause emotional harm to the listener, and were sufficiently narrow and specific to inform persons of reasonable intelligence of the type of language prohibited. 38 Richards, 896 P.2d at 364; see also Kipf, 450 N.W.2d at 405-06; Baker, 494 P.2d at 70-71; State v. Crelly, 313 N.W.2d 455 (S.D. 1981); State v. Gattis, 730 P.2d 497, 502-03 (N.M. App. 1986); State v. Jaeger, 249 N.W.2d 688, 691-92 (Iowa 1977). ¶72 Montana’s Privacy in Communications statute, § 45-8-213, MCA, contains a nearly identical mental state as the one at issue in Nye. The State must prove that a defendant acted “with the purpose to terrify, intimidate, threaten, harass, annoy or offend.” Section 45-8-213(1)(a), MCA. Furthermore, the terms “obscene, lewd, or profane” are of common usage and readily understandable by a reasonable person of average intelligence. The fact that these terms are not defined in the statute does not render it void for vagueness. The subject statute clearly provides law enforcement with the requisite minimal guidelines for its enforcement. Dugan’s use of the words “fucking cunt” is unquestionably proscribed under any reasonable definition of these terms. As the State points out, “cunt” is one of the most vulgar and offensive words in the English language. When combined with “fucking,” another patently offensive term, Dugan’s communication may qualify as “obscene, lewd, or profane.” Following our decisions in Nye and Lilburn, Dugan’s facial challenge to § 45-8-213, MCA, must fail because “the challenged statute is reasonably clear in its application to the conduct of the person bringing the challenge.” Nye, 283 Mont. at 514, 943 P.2d at 102. We hold that Montana’s Privacy in Communications statute, § 45-8-213, MCA, is not unconstitutionally vague. CONCLUSION 39 ¶73 For the foregoing reasons, we reverse the District Court’s conclusion that Dugan’s speech constituted “fighting words.” Next, we strike the prima facie provision of Montana’s Privacy in Communications statute, § 45-8-213, MCA, as unconstitutionally overbroad. Lastly, we remand to the District Court to allow Dugan to withdraw his nolo contendere plea pursuant to § 46-12-204(3), MCA, and proceed to trial. At trial, the State must prove that Dugan violated the Privacy in Communications statute by “knowingly or purposely” using “obscene, lewd, or profane language” on the telephone with Redmond-Sherrill “with the purpose to . . . offend” her. /S/ Patricia Cotter We concur: /S/ MIKE MCGRATH /S/ BRIAN MORRIS /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ RANDAL I. SPAULDING District Court Judge Randal I. Spaulding sitting for Justice James C. Nelson Justice Jim Rice concurring in part, dissenting in part. ¶74 The Court concludes that Dugan’s statement did not constitute fighting words, is not punishable under the captive audience doctrine, is not a true threat, is not obscenity, and is “certainly not of high social value.” Opinion, ¶¶ 43, 44, 47, 48. Although the Court may have established what Dugan’s statement is not, I would like to discuss what it 2 is and call it for what it is. My conclusion is based upon and limited to the specific facts of this case, of one person speaking directly and individually to only one other person who was duty-bound to receive communication, with no other intended audience. ¶75 As alleged, Dugan’s statement was a direct, individual, and personal attack upon Redmond-Sherrill. It was demeaning, degrading, and debasing. It included only words “which by their very utterance inflict injury.” Chaplinsky, 315 U.S. at 572, 62 S. Ct. at 769. It bore “no essential part of any exposition of ideas.” Chaplinsky, 315 U.S. at 572, 62 S. Ct. at 769. It was utterly without any social value whatsoever. It truly constitutes, as used here and in this context, “no part of the expression of ideas.” R. A. V., 505 U.S. at 385, 112 S. Ct. at 2544 (emphasis in original). It had only one purpose: to injure and abuse Redmond-Sherrill, to reduce her human dignity to nothing more than a sexual act or a sexual body part. “Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.” Chaplinsky, 315 U.S. at 572, 62 S. Ct. at 769. ¶76 The Court correctly notes that the Supreme Court offered a clarifying statement in Stevens about descriptions of speech it had used in previous cases. The Supreme Court stated that such descriptions were not generally applicable tests that “permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor.” Stevens, ___ U.S. at ____, 130 S. Ct. at 1586. It is important to note, however, that Stevens was addressing something far different from the issue here. The federal 3 statute at issue in Stevens criminalized depictions of animal cruelty with such “alarming [definitional] breadth” that pictures of big game hunting could have been outlawed. Stevens, ___ U.S. at ____, 130 S. Ct. at 1588-89. The Government defended the challenge by offering the likewise incredibly broad argument that “depictions of animal cruelty, as a class, are categorically unprotected by the First Amendment.” Stevens, ___ U.S. at ____, 130 S. Ct. at 1584. It was in response to the Government’s unbridled argument, which the Supreme Court characterized as a new “free-floating” First Amendment test that was “startling and dangerous,” Stevens, ___ U.S. at ____, 130 S. Ct. at 1585, that the Court distinguished some of its previous comments. However, in doing so, it did not overrule Chaplinsky, which it neither discussed nor directly quoted in this context, or any other previous case. Stevens, ___ U.S. at ____, 130 S. Ct. at 1585-86. Rather, it reaffirmed the concept that certain speech has been “historically unprotected,” and noted that “‘[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.’” Stevens, ___ U.S. at ____, 130 S. Ct. at 1586 (internal citation omitted). ¶77 It is unnecessary here to engage in the type of “ad hoc calculus of costs and benefits” offered by the Government in Stevens, which the Supreme Court rejected. There is no necessity of weighing Dugan’s statement against “the social interest in order and morality,” Chaplinsky, 315 U.S. at 572, 62 S. Ct. at 769, because under the facts of this case it holds no weight at all. On its face, the statement offered absolutely no social value, and no justification whatsoever can be offered for it. It communicated no thought 4 or expression to any audience or any person beyond Redmond-Sherrill, who was on the phone with Dugan pursuant to her public duty. The statement was, as alleged, intended to be personally injurious only to her. The right of free speech should not extend to Dugan’s individually directed, personally debasing, and injurious statement to duty-bound Redmond-Sherrill that had no part of any exposition of ideas. R. A. V., 505 U.S. at 385, 112 S. Ct. at 2544. ¶78 Dugan could have sought to verbally injure Redmond-Sherrill without using “obscene, lewd, or profane language,” and he would not have violated the criminal statute. Section 45-8-213(1)(a), MCA. Or, he could have used these particular words without intending to injure Redmond-Sherrill, and he likewise would not be guilty of violating the statute. However, as alleged, if he used these words and intended to injure Redmond-Sherrill, then he used his speech “as an integral part of conduct in violation of a valid criminal statute,” for which the Supreme Court has approved criminal sanction. Stevens, ___ U.S. at ____, 130 S. Ct. at 1586. Thus, Dugan’s motion to dismiss was properly denied. ¶79 “The right to free speech is not absolute.” State v. Compas, 1998 MT 140, ¶ 25, 290 Mont. 11, 964 P.2d 703. We have often quoted Chaplinsky, as quoted at Opinion, ¶ 18, as the basis that the First Amendment does not protect all speech. See O’Shaughnessy, 216 Mont. at 438, 704 P.2d at 1024; Lance, 222 Mont. at 102, 721 P.2d at 1265; State v. Cooney, 271 Mont. 42, 48, 894 P.2d 303, 307 (1995); State v. Helfrich, 277 Mont. 452, 460, 922 P.2d 1159, 1164 (1996); Nye, 283 Mont. at 512-13, 943 P.2d at 101; Robinson, ¶ 18. All 50 states, the District of Columbia, and the federal government 5 have some form of criminal statute prohibiting harassing or obscene communication through the telephone. Josh Tatum, First Amendment Center, Telephone-harassment statutes, http://www.firstamendmentcenter.org/telephone-harassment-statutes (accessed Jan. 25, 2013); American Law Institute, Model Penal Code and Commentaries: Official Draft and Revised Comments, § 250.4 cmts. at 360 (1980). In Montana, we have previously held that harassment and intimidation fall outside the protection of the First Amendment, independent from analyses examining whether the words were unprotected “fighting words,” obscenity, or threats, or were made to a captive audience. See e.g. Cooney, 271 Mont. at 49, 894 P.2d at 307 (“free speech does not include the right to cause substantial emotional distress by harassment or intimidation.”); Nye, 283 Mont. at 513, 943 P.2d at 101 (“[a]ctivities which are intended to embarrass, annoy or harass . . . are not protected by the First Amendment.”). Further, the Montana Constitution provides that “[e]very person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty.” Mont. Const. art. II, § 7 (emphasis added). ¶80 Dugan chose to speak in a manner that was as debasing, injurious, and abusive as can be spoken in our society, in a direct, personal, and individual attack on a public employee who was duty-bound to receive communications from Dugan. I would hold that Dugan’s speech was integral in harassing Redmond-Sherrill, as “an activity illegal throughout the Nation,” and is “a previously recognized, long-established category of unprotected speech” by this Court. Stevens, ___ U.S. at ____, 130 S. Ct. at 1586. 6 Dugan’s words should be deemed unprotected speech and he should now be held “responsible for all abuse of that liberty.” Mont. Const. art. II, § 7. ¶81 As to Issue 2, whether the statute is overbroad, the Court today strikes the prima facie language in § 45-8-213, MCA. However, a narrow application would be more appropriate where the prima facie evidence at issue is similar to other mental state requirements. To remedy the problem that a statute may not set forth a prima facie intent provision to conclusively prove the defendant’s mental state, see Black, 538 U.S. at 366- 67, 123 S. Ct. at 1551-52, I would construe the prima facie evidence sentence in § 45-8- 213, MCA, as permissive rather than mandatory. This Court presumes that statutes enacted by the Legislature are constitutional and we “must adopt a construction of the statute which renders the statute constitutional in preference to one which renders it invalid.” Helfrich, 277 Mont. at 454, 922 P.2d at 1160 (citations omitted). ¶82 In Richards, the Idaho Court of Appeals upheld Idaho’s telephone harassment statute against a facial overbreadth challenge. Richards, 896 P.2d at 363. The court stated the defendant’s overbreadth argument failed because the statute did “not prohibit the mere expression of ideas or information. Telephone calls made with a legitimate intent to communicate are not criminalized. Rather, the statute prohibits only telephone contacts made with a specific and exclusive intent to ‘annoy, terrify, threaten, intimidate, harass or offend.’” Richards, 896 P.2d at 362.1 The court said those being accused of 1 Idaho’s statute also includes a provision stating, “[t]he use of obscene, lewd or profane language or the making of a threat or obscene proposal, or the making of repeated anonymous telephone calls as set forth in this section may be prima facie evidence of intent to annoy, terrify, threaten, intimidate, harass or offend.” Idaho Code § 18-6710(2) (2012). 7 violating the statute “must be shown to have formulated the specific harmful intent to annoy, terrify, threaten, intimidate, harass or offend in order to be guilty, they cannot be heard to complain that they did not understand the mental element of the crime.” Richards, 896 P.2d at 365. ¶83 Likewise, instead of striking the language, I would construe the language of the prima facie evidence in § 45-8-213, MCA, as a permissive inference rather than as a mandatory presumption. The state would need to prove that the defendant formulated the specific intent “to terrify, intimidate, threaten, harass, annoy, or offend” in order to be proven guilty. This approach would follow our mandate to uphold legislative enactments while adopting an interpretation of the statute that is constitutional. ¶84 I concur in the Court’s resolution of Issue 3. ¶85 I would affirm. /S/ Jim Rice | February 19, 2013 |
1a5e4a1d-51e5-4683-a085-7dacdd8a468f | In re P.A.C. | 2013 MT 84 | DA 12-0488 | Montana | Montana Supreme Court | DA 12-0488 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 84 IN THE MATTER OF: P.A.C., Respondent and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DDI 12-52 Honorable Jeffrey M. Sherlock, Presiding Judge COUNSEL OF RECORD: For Appellant: Colin M. Stephens, Smith & Stephens, P.C., Missoula, 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, Helena, Montana Submitted on Briefs: March 6, 2013 Decided: April 2, 2013 Filed: __________________________________________ Clerk April 2 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 P.A.C. appeals from the District Court’s Findings of Fact, Conclusions of Law and Order filed July 20, 2012, committing her to the Montana State Hospital for a period not exceeding 90 days. ¶2 The issue on appeal is whether the District Court obtained a proper waiver from P.A.C. or her attorney pursuant to § 53-21-119(1), MCA, before allowing her to be voluntarily absent from her commitment hearing. We reverse. PROCEDURAL AND FACTUAL BACKGROUND ¶3 On July 14, 2012, P.A.C. appeared at the emergency room of St. Peter’s Hospital in Helena, Montana, and was voluntarily admitted to the Behavioral Health Unit. P.A.C. engaged in disruptive and threatening behavior while at the Hospital. She was detained and transferred to the Montana State Hospital (MSH). On July 18, 2012, the State petitioned the District Court to commit P.A.C. to MSH for 90 days based upon the report of a professional person from the Behavioral Health Unit. On July 18 P.A.C. made her initial court appearance on the Petition from MSH via the VisionNet video conferencing system. The District Court appointed counsel to represent her, informed her of her rights pursuant to § 53- 21-115, MCA, including the right to be present at the commitment hearing. P.A.C. raised her hand and asked if she could ask a question, and then asked for an explanation of a “72- hour police hold.” The Judge indicated that he would not answer questions, ordered an evaluation by a professional person and set the commitment hearing for the next day. 3 ¶4 P.A.C. was transported to the Lewis & Clark County Courthouse in Helena for the evaluation and commitment hearing set for July 19, 2012. She would not cooperate with the court-ordered evaluation, asserting that there was nothing wrong with her and that she only needed alcohol and marijuana. Even though P.A.C. was present in the Lewis & Clark County Courthouse for the examination, she did not appear at the commitment hearing held in the same building later the same day. At the start of the commitment hearing P.A.C.’s attorney informed the District Court that she had met with P.A.C. and informed her “of all her rights, including the right to be present, and she declined.” Without further inquiry, the District Court proceeded with the hearing. ¶5 The Psychiatric Nurse Practitioner who testified as the professional person at the hearing described P.A.C.’s voluntary admission to the Behavioral Health Unit, and that she was grandiose, psychotic and agitated. P.A.C. refused to cooperate in the evaluation, rejected medication while asking for alcohol and marijuana, and was abusive and threatening to other patients and staff. She maintained that there was nothing wrong with her. While she had a history of bi-polar disorder, her diagnosis was psychosis not otherwise specified, based upon her refusal to cooperate. The professional person opined that P.A.C. needed commitment and medication to stabilize her behavior and to lessen the chance that she would provoke a dangerous confrontation with others. ¶6 P.A.C. contends that the District Court erred and violated her right to due process by proceeding with the commitment hearing without first “obtaining a valid waiver” of her right to be present under § 53-21-119, MCA. STANDARD OF REVIEW 4 ¶7 This Court undertakes plenary, sometimes called de novo, review of due process claims arising from involuntary civil commitments, to determine whether the district court’s action was correct. In the Matter of L.K., 2009 MT 366, ¶ 11, 353 Mont. 246, 219 P.3d 1263. DISCUSSION ¶8 A person who is the subject of a petition for involuntary commitment has express statutory rights, including the right to be present at any hearing. Sections 53-21-115 and -116, MCA. Any of these rights may be waived except for the right to counsel and the right to treatment. In re the Mental Health of C.R.C., 2009 MT 125, ¶ 21, 350 Mont. 211, 207 P.3d 289. Section 53-21-119, MCA, governs the waiver of rights in commitment proceedings, and describes the waiver of rights in several different situations. The first clause of § 53-21-119(1), MCA, provides: “A person may waive the person’s rights . . . .” Therefore, a person who is the subject of the petition for involuntary commitment has the right to waive his or her own rights, which necessarily includes the right to attend any proceedings. The second clause of § 53-21-119(1), MCA, provides: “. . . or if the person is not capable of making an intentional and knowing decision,” (emphasis added) then the person’s rights may be waived by the person’s attorney and friend1 “if a record is made of the reasons for the waiver.” ¶9 Section 53-21-119(2), MCA, provides that the right of the person to be “physically present at a hearing” may “also” be waived by agreement of the person’s attorney and the 5 person’s friend, with the concurrence of a professional person and the judge. In that instance the judge must make a finding that the person would likely be seriously adversely affected by appearing at the hearing and a finding that holding the hearing in an alternative location would not prevent those adverse effects. This Court requires strict adherence to these statutory requirements because of the important constitutional rights they represent. In the Matter of L.K.-S., 2011 MT 21, ¶ 15, 359 Mont. 191, 247 P.3d 1100; In the Matter of R.F., 2013 MT 59, ¶ 17, 369 Mont. 236, __ P.3d __. ¶10 P.A.C. does not contend that § 53-21-119(2), MCA, applies to her case and there is also nothing in the record to indicate that attending the hearing would have seriously adversely affected her mental condition. P.A.C. expressly concedes that there is nothing in the record to indicate that she was “not capable” of waiving her right to be present at the commitment hearing so as to trigger the second clause of § 53-21-119(1), MCA (“if the person is not capable of making an intentional and knowing decision. . . .”). Thus this case presents a situation covered by the first clause of § 53-21-119(1), MCA, which allows the person who is the subject of a petition for involuntary commitment to waive her rights, including the right to be present at the commitment hearing. ¶11 In the recent case of In the Matter of R.W.K., 2013 MT 54, 369 Mont. 193, __ P.3d __, the respondent’s attorney represented to the district court that her client, while actually present at the hearing, wished to “waive his rights” and would stipulate to the allegations in the petition for involuntary commitment. The District Court found that R.W.K. “understands 1The district court judge may appoint a friend for the person who is the subject of a petition for involuntary commitment, § 53-21-122(2)(b), MCA, but is not mandated to do so, In the Matter of C.R., 2012 MT 258, ¶ 22, 367 Mont. 1, 289 P.3d 6 all procedural rights and that he waives these rights knowingly.” Matter of R.W.K., ¶ 10. This Court found that there was “no error in the District Court’s reliance on R.W.K.’s counsel’s representations” concerning the intent to waive. Matter of R.W.K., ¶ 24. It follows that when the person who is the subject of a petition for involuntary commitment is capable of making a waiver decision, then the person’s attorney may convey to the court the person’s desire to waive the right to be present at the commitment hearing. However, § 53-21-119(1), MCA, “does not specify the type or level of inquiry necessary to constitute an intentional and knowing waiver.” Matter of R.W.K., ¶ 21. ¶12 While P.A.C.’s attorney could inform the District Court of P.A.C.’s desire to waive her right to be present, we conclude that the District Court should have made further inquiry to determine whether P.A.C. was capable of making an intentional and knowing decision. In In the Matter of R.W.K., his attorney stated to the district court, in R.W.K.’s presence, that she believed that R.W.K. understood his rights and the nature of the proceeding, even though suffering from a mental disorder. The attorney explained that she had discussed this twice with R.W.K. and he wished to waive his rights and to stipulate to the petition for commitment. Matter of R.W.K., ¶ 9. The district court found, based upon the attorney’s “representations and the files and records,” that R.W.K. “intelligently waived his rights.” ¶13 While P.A.C.’s attorney properly informed the District Court that her client wished to waive her right to be present at the commitment hearing, there is nothing in the record to provide confirmation that P.A.C. was capable of making a knowing and intelligent waiver, despite the State’s contention that she should be involuntarily committed. While § 53-21- 125. 7 119(1), MCA, “does not specify the type or level of inquiry necessary to constitute an intentional and knowing waiver,” Matter of R.W.K., ¶ 21, we determine that the District Court and the parties must make some record that the person who is the subject of the petition for involuntary commitment is capable of making a knowing and intelligent waiver of rights. Both sides in the case, as well as the district court, have an obligation to insure that the record contains some support that the waiver was intentional and knowing. Doing so protects not only the rights of the person who is the subject of the petition, but also protects the integrity of the proceeding. ¶14 The nature and extent of the record will depend upon the facts and circumstances of each case. The record does not necessarily have to reflect anything more than what was done in Matter of R.W.K.—counsel’s representation that she had discussed the matter with her client; that the client desired to waive his rights; and that the attorney was satisfied that her client understood his rights and the nature of the proceeding. In some cases the capacity of the person to waive her rights may be in doubt and a more diligent inquiry will be appropriate, perhaps involving input from the professional person who evaluated the respondent. ¶15 Nor is it necessary that the respondent be required to attend the proceeding against her will. Obviously there is no reason to require a respondent like P.A.C. to attend the hearing before her attorney can inform the court that she waives her right to be present. Such a requirement would elevate form over substance and would be a disservice to the respondent who does not wish to attend. 8 ¶16 However, it is necessary, as in Matter of R.W.K., that the district court satisfy itself that the waiver is intentional and knowing, and that the record reflect the district court’s acceptance of the sufficiency of counsel’s representations as to the waiver, or of any other evidence presented on the issue. ¶17 For the reasons stated above, the final order of the District Court committing P.A.C. to the Montana State Hospital is reversed. /S/ MIKE McGRATH We concur: /S/ LAURIE McKINNON /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS | April 2, 2013 |
b94139b3-a8cd-47a3-8f80-0c98f775b5a3 | Ptarmigan Owner's Ass'n v. Alton | 2013 MT 69 | DA 12-0476 | Montana | Montana Supreme Court | DA 12-0476 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 69 PTARMIGAN OWNER’S ASSOCIATION, INC., a Montana Corporation, Plaintiff and Appellee, v. LEWIS H. ALTON, LLC MONTANA INVESTMENTS 212, DOES 1-20, Defendant and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-11-68D Honorable David M. Ortley, Presiding Judge COUNSEL OF RECORD: For Appellant: Lewis H. Alton (self-represented), Phoenix, Arizona For Appellee: Michael Alan Ferrington, Attorney at Law, Whitefish, Montana Submitted on Briefs: February 13, 2013 Decided: March 19, 2013 Filed: __________________________________________ Clerk March 20 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Lewis Alton (Alton) appeals from a default judgment entered in the Eleventh Judicial District, Flathead County. Alton claims that Ptarmigan Owner’s Association (Ptarmigan) never properly served him. We affirm. ¶2 Alton presents the following issue on appeal: ¶3 Whether the District Court slightly abused its discretion by failing to set aside the default judgment against Alton? PROCEDURAL AND FACTUAL BACKGROUND ¶4 Alton purchased a house in Ptarmigan Village in Whitefish, Montana. Alton used the Ptarmigan Village house as a vacation home. He lived primarily in Arizona. ¶5 Ptarmigan manages all units that comprise the Ptarmigan homeowner’s association, including Alton’s house. Ptarmigan collected fees and dues from the owners of Ptarmigan Village units and managed the maintenance and payment of expenses within Ptarmigan Village. Alton stopped paying fees and dues to Ptarmigan. ¶6 Ptarmigan filed a lien on Alton’s house in November 2010. Alton owed Ptarmigan approximately $5000 in unpaid fees and dues at that time. Ptarmigan required all homeowners, including Alton, to keep a current address on file to receive correspondence. Alton had listed a Postal Plus mailbox in Arizona rather than a residential address. Ptarmigan routinely sent all of Alton’s bills and notices to this Postal Plus mailbox in Arizona. 3 ¶7 Ptarmigan served notice of the lien by certified mail to Alton’s Postal Plus mailbox in Arizona. Ptarmigan received the certified mail confirmation receipt. Ptarmigan filed a complaint to foreclose on its lien on January 20, 2011. The District Court issued a summons on January 20, 2011. Ptarmigan mailed the summons and complaint to Alton’s Arizona mailbox. Alton did not respond. Ptarmigan contacted an Arizona constable to serve the complaint and summons on Alton in Arizona. The Arizona constable failed to locate Alton through the Postal Plus mailbox. The constable returned the summons to Ptarmigan and informed Ptarmigan that Alton had not been served. ¶8 Ptarmigan filed an affidavit in support of service by publication on April 18, 2011. The Clerk of Court issued the Order for Service by Publication pursuant to M. R. Civ. P. 4D(5) (2010). Ptarmigan published the complaint and summons. Ptarmigan also mailed a second copy of the complaint and summons to Alton’s Postal Plus mailbox in Arizona. ¶9 Alton failed to appear in response to the published summons. Ptarmigan requested entry of default judgment twenty days after the final publication. The District Court granted default judgment in favor of Ptarmigan on June 13, 2011. Ptarmigan mailed a copy of the judgment to Alton’s Postal Plus mailbox in Arizona. ¶10 Ptarmigan filed a motion for issuance of a writ of execution and order of sale on October 26, 2011. The District Court issued the order on October 31, 2011. Ptarmigan mailed these documents to Alton at the Arizona Postal Plus mailbox. Ptarmigan sent a courtesy copy of these documents to Alton via e-mail on November 11, 2011, after Alton informed Ptarmigan that he was in Montana working on his Ptarmigan house. The sheriff 4 noticed the sale and posted notice of the sale on Alton’s property on November 29, 2011. The sheriff scheduled the sale for December 27, 2011. ¶11 Alton, appearing pro-se, filed a motion to postpone the sheriff’s sale on December 27, 2011. The District Court initially postponed the sheriff’s sale. Alton’s lender, FIB, foreclosed on the Ptarmigan house, however, thus rendering moot the sheriff’s sale. ¶12 Alton also filed a motion for the District Court to set aside Ptarmigan’s default judgment on December 27, 2011. Alton argued to the District Court that he had been unaware of the default judgment and the sheriff’s sale until the sheriff posted notice of the sale on his property on November 29, 2011. Alton claimed that he had not received any of the documents related to this litigation, including the complaint, the summons, or the judgment, at his Postal Plus mailbox in Arizona. ¶13 Alton maintained that Ptarmigan falsely claimed that it had mailed the documents to his Arizona mailbox. Alton further argued that Ptarmigan possessed Alton’s e-mail address and telephone number yet had failed to contact Alton by e-mail or telephone. Alton argued that Ptarmigan’s failure to contact him by e-mail or telephone demonstrated Ptarmigan’s lack of diligence. ¶14 Ptarmigan submitted an affidavit by Ptarmigan’s counsel’s secretary, Rita Hanson (Hanson), to refute Alton’s claim that he had been unaware of the proceedings against his property until November 29, 2011. Hanson described her efforts to send all of the legal documents to Alton’s mailbox in Arizona. Hanson also described receiving a USPS certified mail receipt that demonstrated that the notice of Ptarmigan’s lien on Alton’s Ptarmigan 5 Village house had been delivered to Alton’s Postal Plus mailbox on November 29, 2010. Hanson stated that none of these documents had been “returned to sender.” ¶15 Hanson further attested that Alton had contacted her by telephone on August 3, 2011, to inform her that he had received some documents. Hanson believed that these documents were the June 13, 2011, notice of entry of judgment against Alton. Alton inquired whether the date of the sheriff’s sale had been set. This question seems to have demonstrated Alton’s knowledge of the default judgment and the impending sheriff’s sale. Ptarmigan had sent these documents to the same Postal Plus mailbox where it had sent the complaint and summons. Hanson summarized Alton’s phone call in an e-mail to Ptarmigan’s counsel the same day. Ptarmigan also provided the District Court with an e-mail dated September 3, 2011, from Ptarmigan to Alton that discussed the “Ptarmigan Judgment” and the sheriff’s sale. ¶16 Alton provided several e-mails to the District Court that Alton had sent to Ptarmigan. Alton argued that these e-mails demonstrated that Ptarmigan had possessed Alton’s e-mail address and telephone number. Alton had listed his e-mail address and telephone number in the signature line at the bottom of the e-mail. These same e-mails also appear to demonstrate Alton’s knowledge of the sheriff’s sale of his Ptarmigan Village property earlier than November 29, 2011. Alton e-mailed Ptarmigan Village manager Peter Fremont-Smith (Fremont-Smith) on August 4, 2011. Alton stated that “I just rec’d a letter from an attorney in Whitefish indicating that a Sheriff’s sale will be affected.” In a second e-mail to Fremont- 6 Smith on August 13, 2011, Alton asked why Ptarmigan was “passing of [sic] this matter to an attorney who is threatening a sheriff sale. . . .” ¶17 Pursuant to M. R. Civ. P. 60(c), the District Court had 60 days within which to rule on Alton’s motion to set aside the default judgment. The District Court failed to rule on Alton’s motion within 60 days, and, thus, it was “deemed denied.” M. R. Civ. P. 60(c)(1). Alton appeals. STANDARD OF REVIEW ¶18 We do not favor judgments by default. Nikolaisen v. Adv. Transformer Co., 2007 MT 352, ¶ 14, 340 Mont. 332, 174 P.3d 940. We review for only slight abuse of discretion the denial of a motion to set aside a default judgment. Nikolaisen, ¶ 14. We will review the district court’s conclusions of law to determine if they are correct. Nikolaisen, ¶ 14. Whether the district court possesses jurisdiction over the case presents a conclusion of law. Nikolaisen, ¶ 14. The party who seeks to set aside a default judgment possesses the burden of persuasion. Nikolaisen, ¶ 14. DISCUSSION ¶19 Whether the District Court slightly abused its discretion by failing to set aside the default judgment against Alton? ¶20 Alton argues that two reasons support his claim that the District Court should have set aside the default judgment against Alton pursuant to M. R. Civ. P. 60(b). Alton first argues that Ptarmigan’s defective service voided the default judgment. Alton next claims that Ptarmigan had acted in bad faith to conceal the lawsuit from Alton. 7 Void ¶21 M. R. Civ. P. 60(b)(4), provides that a district court can set aside a final judgment if the judgment is void. The District Court never would have possessed personal jurisdiction over Alton if Ptarmigan failed to serve Alton properly with the summons and the complaint. Mt. W. Bank, N.A. v. Glacier Kitchens, Inc., 2012 MT 132, ¶ 16, 365 Mont. 276, 281 P.3d 600. This lack of jurisdiction would void the judgment. Glacier, ¶ 16. ¶22 Alton claims that Ptarmigan did not exercise diligence in attempting to locate and serve Alton with the summons and complaint. Alton does not claim that the service by publication itself was defective, but rather that service by publication should not have been permitted due to Ptarmigan’s lack of diligence. ¶23 M. R. Civ. P. 4D(5) (2010), sets forth the requirement for service by publication. The plaintiff may seek service by publication under limited circumstances upon the return of summons showing the failure to find a defendant. M. R. Civ. P. 4D(5)(c) (2010). These limited circumstances require the plaintiff to submit an affidavit swearing that (1) the defendant resides outside of Montana; (2) the defendant has departed from Montana; or (3) that the defendant cannot, after due diligence, be found within Montana. M. R. Civ. P. 4D(5)(c) (2010). Further, the plaintiff’s affidavit serves as “sufficient evidence of the diligence of any inquiry made by the affiant” provided that the affidavit recites “the fact that diligent inquiry was made.” M. R. Civ. P. 4D(5)(c) (2010). The affidavit need not “detail the facts constituting such inquiry.” M. R. Civ. P. 4D(5)(c) (2010). 8 ¶24 Alton cannot challenge the efforts undertaken by Ptarmigan to locate him within the State of Montana when Alton admits that he had been in Arizona when Ptarmigan attempted to serve him with the summons and the complaint. Further, Ptarmigan stated in its affidavit that it had exercised due diligence to find Alton in Montana. Ptarmigan’s affidavit outlines conduct that demonstrates that Ptarmigan acted with due diligence. M. R. Civ. P. 4D(5)(c) (2010). The circumstances presented here authorized service by publication. Ptarmigan’s affidavit satisfied the requirements of the rule, and, therefore, the judgment was not void. Misconduct ¶25 Alton next claims that Ptarmigan had acted in bad faith and deliberately had concealed the lawsuit from Alton. Alton argues that the District Court should have set aside the default judgment pursuant to M. R. Civ. P. 60(b)(3), for misrepresentation or misconduct by Ptarmigan. Alton further argues that Ptarmigan’s misconduct rendered Ptarmigan’s service of process invalid and the judgment void pursuant to M. R. Civ. P. 60(b)(4). ¶26 Alton cites Nikolaisen for the proposition that deliberate concealment of the existence of a lawsuit from the defendant will defeat otherwise valid service. A fire destroyed Plentywood Electronic. Nikolaisen, ¶ 3. The State Fire Marshall concluded that Advance had caused the fire. Plentywood Electric filed a lawsuit against Advance. Plentywood Electric did not attempt to serve Advance with the summons and complaint. Nikolaisen, ¶ 5. ¶27 Plentywood Electric sent a demand letter to Advance for a sum of money to cover Plentywood Electric’s uninsured loss. Plentywood Electric threatened Advance that Plentywood Electric would file a complaint against Advance if Plentywood Electric did not 9 receive a response from Advance. Advance and Plentywood Electric continued to communicate about the damage claim. Plentywood Electric failed to mention that it already had filed suit against Advance. Nikolaisen, ¶ 6. ¶28 Plentywood Electric did not serve Advance directly despite being in communication with Advance and having knowledge of Advance’s address. Plentywood Electric instead served Advance through the Secretary of State. Nikolaisen, ¶ 8. Advance failed to answer the complaint. The district court granted Plentywood Electric’s motion for a default judgment. Nikolaisen, ¶ 11. Advance requested that the District Court set aside the default judgment as void due to improper service. ¶29 We agreed that Plentywood Electric had not attempted to serve Advance directly, despite knowing Advance’s address, before effecting service through the Secretary of State. Nikolaisen, ¶ 24. This omission undermined Plentywood Electric’s claim that it had been diligent in seeking to serve Advance, as required by M. R. Civ. P. 4D(2)(f) (2010), for service to corporations. This analysis, similar to our discussion in ¶ 22, supra, has no application to Ptarmigan’s efforts to serve Alton. ¶30 A plurality of the Court noted in a concurring opinion that Plentywood Electric’s bad faith actions had “sandbagged” Advance. Nikolaisen, ¶ 27. Plentywood Electric had represented to Advance that no litigation was pending and deliberately had prevented Advance from learning about the litigation through proper service. The concurrence further noted that the Rules of Professional Conduct require a lawyer to inform the court “of all material facts known by the lawyer.” These material facts included that the plaintiff’s 10 counsel possessed current contact information for the defendant and the plaintiff’s counsel had not informed the defendant of the pending litigation. Nikolaisen, ¶ 27. ¶31 Alton argues that Ptarmigan, like the plaintiff in Nikolaisen, had “sandbagged” Alton. We disagree. Nothing in the record indicates that Ptarmigan acted in bad faith. Ptarmigan mailed the notice of the lien to Alton’s Postal Plus mailbox in Arizona. Ptarmigan received a certified mail receipt that indicated that Alton had received the document. Ptarmigan mailed the notice of the complaint and summons to the same mailbox. Ptarmigan did not receive an acknowledgement of service by mail from Alton, as required for service by mail. M. R. Civ. P. 4D(b)(i) (2010). As a result, Ptarmigan attempted personal service. Ptarmigan contacted an Arizona constable to attempt to find Alton through the Postal Plus mailbox. The Arizona constable failed to locate Alton through this mailbox. Ptarmigan eventually effectuated service by publication. ¶32 Alton claims that Ptarmigan acted in bad faith despite Ptarmigan’s efforts to serve the summons and complaint on Alton. Alton cites the fact that he had been in communication with Ptarmigan before he learned about the litigation. Alton claims that Ptarmigan had not informed him of the pending litigation. Alton further alleges that Ptarmigan knew that Alton did not have knowledge of the pending litigation. Alton alleges that Ptarmigan had acted to conceal the lawsuit from Alton. ¶33 Alton submitted e-mails to the District Court as evidence that he had been in communication with Ptarmigan. These e-mails certainly establish that Alton had been in communication with Ptarmigan. These e-mails, along with an affidavit from Ptarmigan’s 11 counsel’s secretary, further demonstrate, however, that Alton possessed knowledge of the pending lawsuit before the date that he claimed to have first learned about it. Alton discussed the pending lawsuit in e-mails as early as August 4, 2011. These e-mails belie Alton’s claim that he had no knowledge of the lawsuit until November 29, 2011. These documents further demonstrate that Ptarmigan actively had been communicating with Alton about the litigation rather than attempting to conceal the litigation from Alton. Cf. Nikolaisen, ¶ 27. ¶34 Alton called Ptarmigan’s counsel on August 3, 2011, to ask about the documents that he had received in the mail at his Arizona mailbox. These documents were the notice of the entry of judgment against Alton. Alton asked whether a date for the sheriff’s sale already had been set. Alton e-mailed Ptarmigan on August 4, 2011, and stated that “I just rec’d a letter from an attorney in Whitefish indicating that a Sheriff’s sale will be affected.” These e-mails and Alton’s call to Ptarmigan’s counsel indicate that Ptarmigan was not attempting to hide the litigation from Alton. To the contrary, these communications prove that Alton received notice of the lawsuit through Ptarmigan’s mailing of the summons, complaint, and judgment to his Postal Plus mailbox in Arizona. Ptarmigan did not act in bad faith to prevent Alton from learning about the lawsuit. ¶35 We conclude that the District Court did not slightly abuse its discretion in failing to set aside the default judgment. Affirmed. /S/ BRIAN MORRIS 12 We Concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BETH BAKER /S/ MICHAEL E WHEAT | March 20, 2013 |
20b28f25-e00e-4402-8d34-844755a43925 | Tait v. DOLI | 2013 MT 64N | DA 12-0384 | Montana | Montana Supreme Court | DA 12-0384 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 64N IN THE MATTER OF THE WAGE CLAIM OF CHARLOTTE C. EASON, Claimant. M. DAVIDENE TAIT d/b/a TRIPLE CROWN MOTOR INN, Petitioner and Appellant, v. STATE OF MONTANA, COMMISSIONER OF THE DEPARTMENT OF LABOR AND INDUSTRY, EMPLOYMENT RELATIONS DIVISION, Respondent and Appellee. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDV-09-921 Honorable Dirk M. Sandefur, Presiding Judge COUNSEL OF RECORD: For Appellant: Mary Davidene Tait (Self-Represented), Great Falls, Montana For Appellee Eason: Joseph Hardgrave, D. Michael Eakin, Montana Legal Services Association, Billings, Montana For Appellee Department of Labor and Industry: Joseph Nevin, Special Assistant Attorney General, Helena, Montana Submitted on Briefs: January 16, 2013 Decided: March 12, 2013 March 12 2013 2 Filed: __________________________________________ Clerk 3 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 Mary Davidene Tait (Tait) appeals from the order entered in this matter by the Eighth Judicial District Court on April 27, 2012. The District Court affirmed the Hearing Officer’s dismissal of Tait’s administrative appeal of a wage claim determination entered against her by the Wage and Hour Unit of the Department of Labor. The wage claim determination was entered in favor of Appellee Charlotte C. Eason (Eason). Eason and the Department of Labor (Department) have filed briefs in opposition to Tait’s appeal. ¶3 Eason filed a claim for wages with the Department in December 2008, naming Tait as her employer. Eason was employed as a housekeeper and worked at the Triple Crown Motor Inn in Great Falls. The Department’s Wage and Hour Unit sent a letter to Tait requesting a response to the claim. Tait requested additional time to respond, which was granted. On January 2, 2009, the Wage and Hour Unit, noting that Tait had failed to respond by the extended deadline, issued a Determination finding that Tait owed Eason $869.85 in wages and a penalty in the amount of $956.84. The Determination notified the parties of their appeal rights. ¶4 On January 26, 2009, a default order was issued stating that neither party had appealed from the Determination. Tait contested the default order, and it was set aside by 4 the Department. Additional information was received from both parties. The Wage and Hour Unit then issued a Redetermination on March 19, 2009, finding that Tait owed Eason the adjusted amounts of $741.13 in wages and $430.24 in penalties. Tait appealed the Redetermination and the case was transferred from the Wage and Hour Unit to the Department’s Hearings Bureau. The appointed Hearing Officer conducted a scheduling conference with the parties, setting dates for submission of contentions, lists of witnesses and exhibits, and stipulated facts; for a prehearing conference; and for an in-person hearing. The scheduling order stated that “[a] party’s failure to appear for any conference, and/or failure to obey orders issued by the Hearing Officer, may result in . . . dismissal of the appeal.” ¶5 Tait did not submit contentions or exhibit and witness lists. She was not available by telephone at the time scheduled for the pre-trial conference. A message was left with the hotel staff at Tait’s listed place of employment for Tait to contact the Hearings Bureau so that the conference could be reconvened. Tait did not contact the Hearings Bureau that day. She did not further advise the Hearings Bureau of her intentions. On August 7, 2009, the Hearing Officer issued an order dismissing Tait’s appeal and declaring that the Redetermination was final. ¶6 Tait filed a petition for judicial review before the District Court. After briefing by the parties, the District Court entered an order affirming the Hearing Officer’s dismissal of Tait’s administrative appeal. The District Court concluded that Tait had “made no showing by affidavit, citation to legal authority, or other legal or credible means that the agency findings of fact and conclusions of law underlying the 03-19-09 wage claim 5 Redetermination or the subsequent MDOL Dismissal Order are erroneous as a matter of fact or law under the applicable standard of review for district court review of final agency decisions under § 2-4-702, MCA.” The District Court further held that Tait had failed to make any credible showing “that the interests of justice warrant excuse of her blatant failure to timely participate in and exhaust her administrative remedy for appeal of the 3-19-09 MDOL Redetermination.” Tait made an unsubstantiated claim that she was available for the pre-hearing conference but an error by the hotel’s front desk kept her from participating. The District Court reasoned that, even if this explanation was taken as true, it did not explain Tait’s further failure to participate. As to Tait’s argument that Eason’s actual employer was a non-party corporate entity, the District Court reasoned that Tait had failed to make a “factual showing . . . of new evidence discovered upon reasonable diligence to warrant reversal and remand or a supplementary evidentiary proceeding on judicial review.” ¶7 On appeal from the District Court’s order, Tait asserts that she is only an employee of Triple Crown Inn and has no ownership interest. She insinuates that Triple Crown Inn is the party responsible for the wage claim, but further asserts that the ownership of Triple Crown Inn has been long disputed and that the real property has been foreclosed upon in other legal proceedings. She argues the case has been mooted because any corporate owner has ceased to exist. Tait states that she forwarded Eason’s wage claim to a principal or former principal of Triple Crown Inn and requested documentation to defend the claim, but none was provided to her, arguing “it was and is virtually 6 impossible to mount a credible defense against Eason’s spurious claim without any records!” She also argues that the wage claim is fraudulent. ¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The District Court’s findings of fact are supported by substantial evidence and the legal issues are controlled by settled Montana law, which the District Court correctly interpreted. Tait’s arguments regarding the party properly responsible for the wage claim do not demonstrate error by the District Court in concluding that Tait had failed to pursue and exhaust the administrative remedies available to raise and prove these issues. ¶9 Affirmed. /S/ JIM RICE We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ LAURIE McKINNON | March 12, 2013 |
ec5b5ccd-185c-4089-8901-8ed059e453d6 | State v. Joseph Tice | 2013 MT 75N | DA 12-0365 | Montana | Montana Supreme Court | DA 12-0365 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 75N STATE OF MONTANA, Plaintiff and Appellee, v. JOSEPH WAYNE TICE, Defendant and Appellant. APPEAL FROM: District Court of the Third Judicial District, In and For the County of Powell, Cause No. DC 09-64 Honorable Ray Dayton, Presiding Judge COUNSEL OF RECORD: For Appellant: March 20 2013 2 Jennifer A. Giuttari, Montana Legal Justice, PLLC, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General; Helena, Montana Lewis K. Smith, Powell County Attorney; L. Jeanine Badanes, Deputy County Attorney; Deer Lodge, Montana Submitted on Briefs: March 6, 2013 Decided: March 19, 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 Joseph Wayne Tice appeals following the entry of judgment by the Third Judicial District Court, Powell County, adjudging him guilty of the offense of assault on a peace officer, a felony, and sentencing him to a five-year term in the Montana State Prison (MSP). Tice challenges the District Court’s denial of his motion to withdraw his guilty plea to the charge. ¶3 Tice was serving a prior sentence at MSP for an unrelated offense of assaulting a peace officer when, on October 8, 2008, he became involved in an altercation with two MSP correctional officers. Tice was charged with two counts of felony assault on a peace officer, and the State also filed a notice of intent to seek persistent felony offender status. In April 2010, Tice entered a plea bargain agreement that provided, in exchange for his plea of guilty to one count, the State would move to dismiss the second count and also withdraw its persistent felony offender notification. A change of plea hearing was held on April 27, 2010. ¶4 Tice’s arguments on appeal focus on the portion of the plea colloquy in which he responded to the District Court’s inquiry about pleading guilty by stating “If I don’t plead guilty I’ll get more time.” However, the colloquy didn’t stop there. The District Court responded by stating, “Alright well that could be, but I can’t accept a guilty plea unless a person acknowledges they are guilty or I would be 3 happy to afford you a jury trial and you can raise your defenses to that jury.” Tice then admitted his guilt of purposely punching the correctional officer. ¶5 The morning of his sentencing hearing, Tice filed a motion to withdraw his plea. Relying primarily upon the argument that he had a history of mental illness, Tice asserted that his understanding during the change of plea hearing had been impaired. Tice’s mental health condition had been raised as a potential issue throughout the proceeding. The Omnibus Hearing Memorandum noted that Tice’s fitness to proceed, and the defense of mental disease or defect, were potential issues, and that defense counsel was in the process of compiling Tice’s mental health records. However, a motion regarding these issues was not filed by the stated deadline. Later, Tice filed a motion to continue the pre-trial conference and the trial to have additional time to obtain a mental evaluation, which the District Court granted. Tice filed no motion following this extension of time, and instead entered the plea agreement and changed his plea. Tice then filed the motion to withdraw his plea prior to sentencing. The State responded that there was little evidence indicating Tice actually suffered from mental health problems. The District Court took Tice’s motion to withdraw his plea under advisement and granted Tice additional time to obtain a mental evaluation. Through counsel, Tice advised the court that arrangements had been made for the evaluation to be performed at Montana State Hospital by Dr. Timothy Casey and that the court would be advised when the evaluation report had been received. Five months later, having heard nothing, the District Court requested a status report, at which time Tice’s counsel reported that she “[did] not believe that Dr. Casey’s opinion would provide the Court with any additional psychological information and requests that the Court rule on Defendant’s motion to Withdraw his plea. Counsel stands by the motion and supporting briefs.” 4 ¶6 The District Court denied the motion, and Tice filed a motion for reconsideration, arguing that “[w]hile the Court did conduct a thorough inquiry,” it was nonetheless his position that “the Defendant’s mental health issues significantly clouded his perceptions at the change of plea hearing and his fitness to proceed despite the court’s considerable precautions.” The District Court also denied the motion for reconsideration. ¶7 Tice argues that there was sufficient evidence “to establish that because Tice was suffering from a serious mental condition at the time of the assaults and during [the] change of plea hearing,” he did not voluntarily enter a guilty plea. We review the denial of a motion to withdraw a guilty plea de novo, as a mixed question of law and fact. State v. LeMay, 2011 MT 323, ¶ 51, 363 Mont. 172, 266 P.3d 1278. ¶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 issues in this case are legal and are controlled by settled Montana law, which the District Court correctly interpreted in denying Tice’s motion to withdraw his plea. ¶9 Affirmed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER 5 /S/ BETH BAKER /S/ BRIAN MORRIS | March 20, 2013 |
747550ef-e123-44ba-8b19-b97ae0a11ba6 | State v. Phyllis Jamison | 2013 MT 41N | DA 11-0720 | Montana | Montana Supreme Court | DA 11-0720 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 41N STATE OF MONTANA, Plaintiff and Appellee, v. PHYLLIS JAMISON, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 11-404 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Phyllis Jamison (self-represented), Clinton, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana Fred Van Valkenburg, Missoula County Attorney; M. Shaun Donovan, Deputy County Attorney, Missoula, Montana Submitted on Briefs: January 31, 2013 Decided: February 19, 2013 Filed: __________________________________________ Clerk February 19 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 In 2011 Phyllis Jamison was convicted in Missoula County Justice Court of the misdemeanor offenses of disorderly conduct and assault. She appealed to District Court and moved to dismiss the charges, arguing that the State had committed prosecutorial misconduct and that a new trial in District Court would constitute double jeopardy. On November 29, 2011, the District Court denied Jamison’s motion to dismiss and Jamison appealed. By order of March 20, 2012, this Court allowed the appeal to proceed solely to resolve the issue of double jeopardy, citing State v. Barron, 2008 MT 69, ¶ 8, 342 Mont. 100, 179 P.3d 519. We affirm. ¶3 A district court’s decision on a claim of double jeopardy presents an issue of law that this Court reviews to determine whether the decision is correct. City of Helena v. Whittinghill, 2009 MT 343, ¶ 10, 353 Mont. 131, 219 P.3d 1244. ¶4 Article VII, Sec. 4(2) of the Montana Constitution provides that the district courts must hear appeals from lower courts “as trials anew unless otherwise provided by law.” Section 46-17-311(1), MCA, provides that appeals from justice courts that are not courts of record “must be tried anew in district court.” The purpose of a new trial in district court is to provide a defendant a “competent remedy” for any errors that may have been made in the 3 lower court. City of Three Forks v. Schillinger, 2007 MT 331, ¶ 14, 340 Mont. 211, 173 P.3d 681. ¶5 The Montana Constitution, Article II, Sec. 25, provides that “[n]o person shall be again put in jeopardy for the same offense previously tried in any jurisdiction.” This guarantee against double jeopardy protects persons from prosecution for the same offense after an acquittal, from a second prosecution for the same offense after conviction, and from multiple punishments for the same offense. Barron, ¶ 14. It is well established that there is no double jeopardy when a convicted defendant appeals and obtains a new trial. State v. Bad Horse, 185 Mont. 507, 513, 605 P.2d 1113, 1116 (1980); State v. Cardwell, 191 Mont. 539, 542, 625 P.2d 553, 555 (1981); State v. Duncan, 2012 MT 241, ¶ 8, 366 Mont. 443, 291 P.3d 106. The reason that a retrial after appeal does not constitute double jeopardy is that the retrial is merely a continuation of the same jeopardy that attached upon the original conviction. Cardwell, 191 Mont. at 542, 625 P.2d at 555; Duncan, ¶ 11. Retrying a convicted defendant after an appeal is not one of the abuses that the protection against double jeopardy was designed to prohibit. Duncan, ¶ 12. ¶6 Similarly, an appeal to district court for a trial de novo following conviction in a justice court that is not of record constitutes a continuation of the same jeopardy that attached in justice court. The new trial afforded by Article VII, Sec. 4(2) of the Montana Constitution and § 46-17-311(1), MCA, is a continuation of the same jeopardy and does not contravene the prohibition against double jeopardy in Article II, Sec. 25 of the Montana Constitution. 4 ¶7 We decline to address Jamison’s arguments concerning errors made during her trial in Missoula Justice Court. Those issues can be addressed in the District Court proceedings. ¶8 The issue in this case is an issue of law, controlled by settled Montana law, which the District Court correctly applied. We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for memorandum opinions. ¶9 Affirmed. /S/ MIKE MCGRATH We concur: /S/ JIM RICE /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ LAURIE MCKINNON | February 19, 2013 |
9ea16c06-c6f9-42dc-8904-b3569496c894 | Conway v. Benefis Health Sys., Inc. | 2013 MT 73 | DA 12-0180 | Montana | Montana Supreme Court | DA 12-0180 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 73 SHANNON CONWAY, Plaintiff and Appellee, v. BENEFIS HEALTH SYSTEM, INC., Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDV-10-1132 Honorable Kenneth R. Neill, Presiding Judge COUNSEL OF RECORD: For Appellant: Leo S. Ward, David M. McLean, Daniel J. Auerbach, Christy S. McCann, Browning, Kaleczyc, Berry & Hoven, P.C., Missoula, Montana For Appellee: Alexander (Zander) Blewett, III, Andrew (Drew) Blewett, Hoyt & Blewett, Great Falls, Montana For Amicus Curiae: Ian McIntosh, Steven R. Milch, Kenneth K. Lay, Crowley Fleck PLLP, Billings, Montana Submitted on Briefs: January 23, 2013 Decided: March 19, 2013 Filed: __________________________________________ Clerk March 19 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Benefis Health System, Inc. (Benefis) appeals several orders of the Eighth Judicial District Court, Cascade County, issued in an individual and class action lawsuit filed against Benefis by Shannon Conway (Conway). First, Benefis alleges that the District Court improperly converted Conway’s motion for judgment on the pleadings into a motion for summary judgment. Next, Benefis challenges the District Court’s grant of summary judgment on Conway’s individual breach of contract claims. Lastly, Benefis appeals from the District Court’s order certifying the matter as a class action. We affirm the District Court’s conversion of the motion for judgment on the pleadings to a motion for summary judgment and reverse the District Court’s order of summary judgment. Based on our reversal of summary judgment, we do not reach the class certification issue. We affirm in part and reverse in part. ISSUES ¶2 Benefis raises the following three issues on appeal: ¶3 1. Did the District Court err in converting Conway’s motion for judgment on the pleadings to a motion for summary judgment? ¶4 2. Did the District Court err in granting summary judgment to Conway? ¶5 3. Did the District Court err in granting Conway’s motion to certify the class? FACTUAL AND PROCEDURAL BACKGROUND ¶6 On November 6, 2009, Conway was injured in an automobile accident and received medical treatment at Benefis. Conway had healthcare coverage as a TRICARE beneficiary and also had medical payments coverage through his automobile insurance 3 carrier, Kemper. TRICARE is a Department of Defense healthcare benefits program that is regionally administered by TriWest Healthcare Alliance (TriWest). TRICARE provides benefits to members of the military and their families. TriWest employed Blue Cross Blue Shield, Inc. (BCBS) as a network subcontractor to establish a provider network. BCBS entered into a preferred provider agreement (PPA) with Benefis. ¶7 Conway’s medical treatment costs totaled $2,073.65. Benefis billed TriWest, Kemper, and other insurers for this amount. Benefis received payment from TRICARE on January 26, 2010. Benefis accepted $662.74 from TRICARE as payment in full satisfaction of the bill. Benefis accepted this reduced amount pursuant to the PPA between BCBS and Benefis, which provided in pertinent part as follows: Provider agrees to treat TRICARE Beneficiaries according to the terms and conditions of this Agreement and in accordance with all applicable laws, rules and regulations pertaining to TRICARE including, but not limited to, the TRICARE manuals and the Code of Federal Regulations (CFR). Provider shall accept the Reimbursement Rates (less the amount of any Copayments payable by the TRICARE Beneficiary) as the only payment expected from TriWest and TRICARE Beneficiaries for Covered Services, and for all services paid for by the TRICARE program. TRICARE Beneficiaries are responsible only for Copayments. The Reimbursement Rates shall apply to Active Duty and civilian claims, to enrollees and to non-enrollees, and to all TRICARE Beneficiaries whose care is reimbursed by the Department of Defense, regardless of their residence. In no event will Provider be paid for such services more than the TRICARE/CHAMPUS Maximum Allowable Charge (CMAC) or applicable TRICARE DRG rate or what is permissible under Federal law or TRICARE policy. On February 4, 2010, Benefis received payment of $1,866.29 from Kemper. Upon receiving payment from Kemper, Benefis reimbursed TRICARE’s payment in full. As is 4 the case with Medicaid and Medicare programs, TRICARE functions as a secondary payer. ¶8 On December 9, 2010, Conway filed his individual and class action complaint. Conway claimed that he was entitled to the additional $1,203.55 that Benefis received from Kemper over and above the TRICARE reimbursement rate. The complaint alleged individual and class action claims against Benefis for breach of contract, breach of third party beneficiary contract, and intentional interference with contractual relations. The complaint also included individual claims of fraud and violation of Montana’s Consumer Protection Act. ¶9 On January 14, 2011, Benefis filed a notice of removal of the action to the United States District Court for the District of Montana, Great Falls Division, on the basis of federal subject matter jurisdiction under 28 U.S.C. § 1441(b) and (c). On March 2, 2011, the federal court determined that there was no basis for federal jurisdiction and granted Conway’s motion to remand the case back to Montana’s Eighth Judicial District Court, Cascade County. ¶10 On March 25, 2011, Conway filed a motion requesting that the District Court issue an order certifying the matter as a class action pursuant to M. R. Civ. P. 23. Conway asserted that Benefis has entered into multiple agreements with health insurers to accept reduced payments for medical services, and that it then violates those contracts by accepting payments in full from third party insurers. Conway sought certification of a class to include “all persons who are Benefis patients and insureds and/or beneficiaries of TRICARE, BCBSMT, or other health insurers and from whom Benefis has accepted 5 payments in excess of the predetermined and previously agreed upon ‘reimbursement rate.’ ” Benefis opposed Conway’s motion for an order certifying the class. ¶11 On April 25, 2011, Conway filed a motion for judgment on the pleadings pursuant to M. R. Civ. P. 12(c). Conway asked the District Court to find that Benefis breached its contract with TRICARE1 and that Benefis was liable for Conway’s damages caused by the breach as a matter of law. Conway asserted that Benefis had admitted in its answer each fact necessary to conclude that it had breached the contract. Benefis countered that judgment on the pleadings was not appropriate because it had raised several affirmative defenses and challenged many of Conway’s assertions that were central to his breach of contract claim. ¶12 After the motion was fully briefed, the District Court issued an order on August 25, 2011. First, the District Court converted the Rule 12(c) motion into a M. R. Civ. P. 56 motion for summary judgment so that it could consider documents outside the pleadings in reaching a decision. Specifically, the District Court considered the PPA, which had been attached to Benefis’ response brief. The District Court reviewed the language of the PPA and determined that Conway was an intended beneficiary of the PPA. Next, the District Court granted summary judgment in favor of Conway and concluded that Benefis breached the PPA by accepting more money for its services than the maximum allowable charge. 1 No contract actually existed between Benefis and TRICARE. Conway intended to refer the District Court to the PPA between Benefis and BCBS. 6 ¶13 On December 1, 2011, Benefis petitioned this Court for a writ of supervisory control. Benefis sought review of the District Court’s conversion of the motion for judgment on the pleadings to a motion for summary judgment and the District Court’s grant of partial summary judgment in favor of Conway on his individual breach of contract claims. We denied Benefis’ petition for supervisory control on January 18, 2012, concluding that Benefis failed to establish urgency or emergency factors that would render the normal appeal process inadequate. ¶14 The District Court held oral argument on Conway’s motion to certify the class on November 16, 2011. The District Court awaited this Court’s decision on Benefis’ petition for a writ of supervisory control before issuing its order on class certification. On March 7, 2012, the District Court issued an order granting Conway’s motion to certify the class. The District Court determined that Conway satisfied the four prerequisites set forth in Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Next, the District Court concluded that class certification was appropriate under Rule 23(b)(3) because it was “clearly desirable to concentrate the litigation of the claims in this forum and the difficulties of managing the litigation are comparatively minor.” Since the fundamental issue in the litigation involved recovery of the excess payments collected by Benefis, the District Court reasoned that once all the data was collected, the matter could be resolved by mathematical calculation. ¶15 On May 4, 2012, the District Court entered final judgment on the conversion of the motion for judgment on the pleadings to a motion for summary judgment, the entry of 7 summary judgment on Conway’s individual breach of contract claims, and the certification of the class. Benefis appeals. STANDARDS OF REVIEW ¶16 Since a motion for judgment on the pleadings is decided as a matter of law, we review a district court’s decision for correctness. Ritter v. Bill Barrett Corp., 2009 MT 210, ¶ 10, 351 Mont. 278, 210 P.3d 688; Nelson v. Barlow, 2008 MT 68, ¶ 9, 342 Mont. 93, 179 P.3d 529. ¶17 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. Reichert v. State, 2012 MT 111, ¶ 18, 365 Mont. 92, 278 P.3d 455; Shattuck v. Kalispell Reg’l Med. Ctr., 2011 MT 229, ¶ 8, 362 Mont. 100, 261 P.3d 1021. 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). ¶18 We review a district court’s decision on a motion for class certification for an abuse of discretion. LaMere v. Farmers Ins. Exch., 2011 MT 272, ¶ 14, 362 Mont. 379, 265 P.3d 617; Hop v. Safeco Ins. Co., 2011 MT 215, ¶ 9, 361 Mont. 510, 261 P.3d 981. DISCUSSION ¶19 Did the District Court err in converting Conway’s motion for judgment on the pleadings to a motion for summary judgment? 8 ¶20 Conway’s motion for a judgment on the pleadings, and the District Court’s subsequent conversion of the motion to a motion for summary judgment, is governed by M. R. Civ. P. 12(c) and (d), which provide as follows: (c) Motion for Judgment on the Pleadings. After the pleadings are closed -- but early enough not to delay trial -- a party may move for judgment on the pleadings. (d) Result of Presenting Matters outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. A party moving for judgment on the pleadings pursuant to Rule 12(c) must establish that no issues of fact exist and that it is entitled to judgment as a matter of law. Curtis v. Citibank, 2011 MT 247, ¶ 6, 362 Mont. 211, 261 P.3d 1059; Ritter, ¶ 10. A court must assume that all of the well-pleaded factual allegations in the nonmovant’s pleadings are true and that all contravening assertions in the movant’s pleadings are false when evaluating a Rule 12(c) motion. Curtis, ¶ 6; Firelight Meadows, LLC v. 3 Rivers Telephone Coop., Inc., 2008 MT 202, ¶ 11, 344 Mont. 117, 186 P.3d 869. A motion for judgment on the pleadings is appropriate in situations where all material allegations of fact are admitted or not controverted in the pleadings, and only questions of law remain to be decided by the court. Curtis, ¶ 6; Firelight Meadows, ¶ 10. ¶21 This Court has previously held that Rule 12(c) requires only that a party be given a “reasonable opportunity” to present material pertinent to a motion for summary judgment. See Rafanelli v. Dale, 1998 MT 331, ¶ 22, 292 Mont. 277, 971 P.2d 371; 9 Bretz v. Ayers, 232 Mont. 132, 136, 756 P.2d 1115, 1118 (1988). A litigant has a “reasonable opportunity” if he is “fairly apprised” that the court may consider other documents and treat the motion for judgment on the pleadings as a motion for summary judgment. Rafanelli, ¶ 22; Bretz, 232 Mont. at 136, 756 P.2d at 1118. ¶22 In Rafanelli, the non-moving party responded to a motion for judgment on the pleadings by requesting that the district court take judicial notice of the pleadings from an earlier case. Rafanelli, ¶ 20. The district court took judicial notice of the earlier case and converted the motion to a motion for summary judgment because it had considered matters outside the pleadings. Rafanelli, ¶ 20. The non-moving party argued that the district court erred in converting the motion because it did not provide him with a reasonable opportunity to present other pertinent materials and he had no notice of what matters the district court would rely on in reaching its decision. Rafanelli, ¶ 21. We held that the district court did not err because the non-moving party who was challenging the conversion of the motion was the same party that had requested that the court consider matters outside the pleadings. Rafanelli, ¶ 23. ¶23 In Bretz, we upheld a district court’s conversion of a M. R. Civ. P. 12(b)(6)2 motion to dismiss to a motion for summary judgment under circumstances similar to those in the instant case. Bretz attached eleven documents to his response brief opposing 2 M. R. Civ. P. 12(b)(6) (1987) was analogous to Rule 12(c). It was governed by the following similar provision: “If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56.” 10 the motion to dismiss and referred to the contents of those documents throughout his brief. Bretz, 232 Mont. at 135, 756 P.2d at 1117. Since Bretz himself had introduced the additional documents and invited the district court to consider them, we determined that he was fairly apprised that the court could treat the motion as a motion for summary judgment, and he had a reasonable opportunity to present pertinent material to the court. Bretz, 232 Mont. at 136, 756 P.2d at 1118. ¶24 Here, Conway filed the motion for judgment on the pleadings. Benefis attached the PPA to its response brief in opposition to the motion. Benefis specifically requested that the District Court base its decision on the language and contents of the PPA. Benefis stated in its brief that the District Court “must examine the contract which forms the basis of Plaintiff’s breach of contract claim in its entirety prior to considering the merits of Plaintiff’s breach of contract claim, so that contract is attached to this Response as Exhibit 1.” Relying on Rafanelli and Bretz, we will not allow Benefis to attach documents outside the pleadings and encourage the District Court to consider those documents, and then later claim that it was not “fairly apprised” that the District Court would be required to convert the motion for a judgment on the pleadings to a motion for summary judgment. ¶25 Benefis argues that Firelight Meadows controls the outcome of this case because the PPA was a part of the pleadings. In Firelight Meadows, the plaintiff attached a contract to its complaint. Firelight Meadows, ¶ 5. The defendant filed an answer and later filed a motion for judgment on the pleadings. Firelight Meadows, ¶ 6. The district court granted the defendant’s motion, and the plaintiff appealed contending that the 11 district court failed to provide it with notice and an opportunity to present additional materials. Firelight Meadows, ¶¶ 7-8. This Court held that the district court did not improperly consider matters outside the pleadings because the agreement attached to the complaint was a part of the pleadings pursuant to M. R. Civ. P. 10(c), which provides as follows: Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes. Firelight Meadows, ¶ 15. Since the agreement was appended to and referenced in the plaintiff’s complaint, it constituted part of the pleadings. Firelight Meadows, ¶ 15. ¶26 Unlike Firelight Meadows, the PPA was not attached to any of the parties’ pleadings. Instead, the PPA was attached as an exhibit to Benefis’ response brief to Conway’s motion for judgment on the pleadings. Rule 10(c) incorporates into the pleadings “a written instrument that is an exhibit to a pleading.” M. R. Civ. P. 10(c) (emphasis added). Here, since the PPA was not attached as an exhibit to a pleading, Rule 10(c) is inapplicable and our holding in Firelight Meadows is not controlling. ¶27 Our review of the record also demonstrates that during a July 20, 2011 hearing on a separate motion, the District Court asked counsel for both parties if they desired a hearing on any pending motions, including Conway’s motion for judgment on the pleadings. Benefis represented to the District Court that all of the pending motions could be determined on the briefs. At this point in the litigation, Benefis had already received Conway’s reply brief on the motion for judgment on the pleadings, in which he asserted 12 that Benefis’ attachment of the PPA effectively converted the motion to a motion for summary judgment. Benefis opted to forego oral argument and registered no objection to Conway’s assertion that the matter had been converted to a summary judgment determination. Under these circumstances, Benefis cannot claim that it was unaware that the District Court might convert the motion to a motion for summary judgment, nor can it claim that it had no reasonable opportunity to present additional pertinent material. ¶28 Accordingly, we hold that the District Court did not err in converting Conway’s Rule 12(c) motion for judgment on the pleadings into a motion for summary judgment. ¶29 Did the District Court err in granting summary judgment to Conway? ¶30 After the District Court converted Conway’s motion for judgment on the pleading into a motion for summary judgment, it granted summary judgment in favor of Conway on his individual breach of contract claims. First, the District Court determined that Conway was an intended third party beneficiary of the PPA. Second, the District Court concluded that Benefis breached the PPA by accepting payment from Kemper in excess of the TRICARE reimbursement rate. Benefis maintains that Conway is not a third party beneficiary, did not suffer any damages, and lacks standing to bring his claims. Furthermore, Benefis asserts that it was entitled to accept payments from Kemper in excess of the TRICARE reimbursement rate. ¶31 We begin our analysis of Conway’s breach of contract claims with an examination of the pertinent language of the PPA. Again, the PPA provides as follows: Provider agrees to treat TRICARE Beneficiaries according to the terms and conditions of this Agreement and in accordance with all applicable laws, rules and regulations pertaining to TRICARE including, but not limited to, 13 the TRICARE manuals and the Code of Federal Regulations (CFR). Provider shall accept the Reimbursement Rates (less the amount of any Copayments payable by the TRICARE Beneficiary) as the only payment expected from TriWest and TRICARE Beneficiaries for Covered Services, and for all services paid for by the TRICARE program. TRICARE Beneficiaries are responsible only for Copayments. The Reimbursement Rates shall apply to Active Duty and civilian claims, to enrollees and to non-enrollees, and to all TRICARE Beneficiaries whose care is reimbursed by the Department of Defense, regardless of their residence. In no event will Provider be paid for such services more than the TRICARE/CHAMPUS Maximum Allowable Charge (CMAC) or applicable TRICARE DRG rate or what is permissible under Federal law or TRICARE policy. The PPA governs payments made by TRICARE to Benefis for “Covered Services.” The PPA defines “Covered Services” as: “Services, items and supplies for which benefits are available to TRICARE Beneficiaries in accordance with the rules, regulations, policies and instructions of TRICARE Management Activity.” ¶32 Benefis and amicus curiae argue that the medical services Conway received were not “Covered Services” as defined in the PPA. As noted by the District Court, federal regulations mandate that TRICARE functions as a secondary payer. 32 C.F.R. § 199.8(a). In situations where the medical treatment at issue is necessitated as a result of the negligence of an insured third party, any payment originally made by TRICARE must be reimbursed. See 32 C.F.R. § 199.8(a), (b)(3). No TRICARE benefits are available to a TRICARE beneficiary where there is third party insurance available to pay the expenses of medical treatment. It is only where there is no such available third party coverage that the services become “Covered Services” under the PPA. While Benefis is required under the PPA to accept the TRICARE rates for “Covered Services,” nothing in the PPA prohibits Benefis from accepting a greater amount from the responsible insurer, 14 in this case Kemper. Kemper is a stranger to the PPA. As such, the rates at which Kemper reimburses Benefis are not dictated by the PPA. ¶33 Central to Conway’s breach of contract claims is his assertion that he is owed the difference between the $1,866.29 Benefis accepted from Kemper and the $662.74 paid by TRICARE pursuant to the PPA. Conway contends that he was entitled to recover this $1,203.55 as damages. However, the nature of medical payments coverage and the facts of this case do not support Conway’s assertions that he is entitled to recover the alleged damages. ¶34 This Court’s decision in Newbury v. State Farm Fire & Cas. Ins. Co., 2008 MT 156, 343 Mont. 279, 184 P.3d 1021, is instructive. In Newbury, the plaintiff was a snowplow driver who was injured while attempting to assist a driver stuck in a ditch. Newbury, ¶ 7. The plaintiff incurred medical expenses totaling $18,405. Newbury, ¶ 8. The plaintiff filed a workers’ compensation claim and the State Fund paid all but $1,175 of his medical expenses. Newbury, ¶ 8. The plaintiff submitted a claim to his automobile insurance provider, State Farm, requesting payment of the full $10,000 medical payment coverage limits. Newbury, ¶ 10. State Farm paid the remaining medical expenses of $1,175. Newbury, ¶ 10. The plaintiff filed suit against State Farm, seeking additional payment under his medical payment coverage, even though his medical bills had been fully paid. Newbury, ¶ 11. We determined that “while it was reasonable for Newbury to expect that his State Farm policies would pay his medical expenses (up to the policy limits of $ 10,000.00) once the State Fund had paid all it was required to pay, it was not reasonable for Newbury to expect to receive funds in excess of his medical expenses.” 15 Newbury, ¶ 38. This Court recognized that medical payment benefits are payable only for medical expenses, and the undisputed facts demonstrated that the plaintiff received full payment of his medical expenses and owed nothing more to his healthcare providers. Newbury, ¶ 39. We ultimately upheld State Farm’s refusal to pay more than the medical expenses actually incurred because a windfall would result if the plaintiff were to receive additional money under his medical payments coverage in excess of his total medical expenses. Newbury, ¶ 47. ¶35 Here, the record shows that Benefis accepted Kemper’s payment of $1,866.29 as payment in full for the actual cost of Conway’s medical treatment that resulted from the accident. Conway does not owe Benefis any remaining amount. Even though all of Conway’s medical expenses have been paid, he still seeks to pocket $1,203.55 in medical payments coverage benefits, representing the difference between Kemper’s payment to Benefis and the TRICARE reimbursement rate. We disagree. Conway is no more entitled to pocket excess medical payments here than he would be under the circumstances in Newbury, or any other situation in which all of his medical expenses are paid by his insurer under its medical payments coverage. Although the circumstances of this case are somewhat complicated by the PPA situation, this does not alter the basic premise that medical payments coverage is for the payment of medical expenses only; it does not provide for the payment of additional or excess sums to the insured. The District Court’s order of summary judgment wrongly endorses the type of windfall recovery expressly disapproved in Newbury. 16 ¶36 Conway claims and the District Court concluded that Conway was an intended beneficiary of the PPA. In light of our resolution here on alternate grounds, we need not address the correctness of this ruling. However, even if we were to consider Conway an intended beneficiary of the PPA, he still could establish no entitlement to damages from Benefis. ¶37 In determining damages for a breach of contract action, Montana law provides: Breach of contract. For the breach of an obligation arising from contract, the measure of damages, except when otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment which was proximately caused thereby or in the ordinary course of things would be likely to result therefrom. Damages which are not clearly ascertainable in both their nature and origin cannot be recovered for a breach of contract. Section 27-1-311, MCA. Furthermore, “[a] person may not recover a greater amount in damages for the breach of an obligation than the person could have gained by the full performance of the obligation on both sides unless a greater recovery is specified by statute.” Section 27-1-303, MCA. Pursuant to these statutes governing the measure of damages for breach of contract actions, the undisputed facts reveal that Conway suffered no loss or harm due to Benefis’ actions. Regardless of the difference between what Kemper paid and what Benefis was contractually entitled to accept, the record shows that Conway’s medical bills were paid in full and he was not personally entitled to receive any additional payments directly from Kemper under his medical payments coverage. This being so, he cannot by extension establish that Benefis must pay to him the money Kemper paid to it for medical expenses. Benefis simply has not proximately caused any 17 damages to Conway. Therefore, Conway has failed to demonstrate that he suffered a compensable injury as a result of Benefis’ purported breach of contract. ¶38 In light of our conclusions that Conway is not entitled to pocket the difference between the TRICARE reimbursement rate and the amount Benefis accepted from Kemper, and that Conway has failed to establish any damages that resulted from the alleged breach, the District Court’s grant of summary judgment was improper. We therefore hold that the District Court erred in granting summary judgment to Conway. Notably, we do not address here whether and under what circumstances Benefis is entitled to retain the full payment for medical expenses in those situations where PPAs are in play, as that is not the issue before us. We determine only that Conway is not entitled to recover these sums. ¶39 Based on our resolution of this issue, it is unnecessary to reach the District Court’s grant of Conway’s motion to certify the class. The District Court’s decision to certify the matter as a class action was premised on its conclusion that Conway was entitled to judgment as a matter of law on his breach of contract claims, and could therefore represent others with similar claims. CONCLUSION ¶40 For the foregoing reasons, we affirm the District Court’s conversion of Conway’s motion for judgment on the pleadings to a motion for summary judgment, but reverse the District Court’s grant of summary judgment in favor of Conway. /S/ PATRICIA COTTER 18 We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON /S/ JIM RICE | March 19, 2013 |
c5d18d62-4450-4b89-8959-cfade1b4fbc0 | Missoula v. Hamed Chowdhury | 2013 MT 43N | DA 12-0338 | Montana | Montana Supreme Court | DA 12-0338 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 43N CITY OF MISSOULA, Plaintiff and Appellee, v. HAMED CHOWDHURY, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 12-106 Honorable Edward P. McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Hamed Chowdhury (self-represented); Lolo, MT For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant Attorney General; Helena, MT Gary L. Henricks, Missoula City Attorney; Missoula, MT Submitted on Briefs: December 19, 2012 Decided: February 21, 2013 Filed: __________________________________________ Clerk Justice Michael E Wheat delivered the Opinion of the Court. February 21 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, Hamed Chowdhury (Chowdhury), appeals the District Court’s dismissal of his unperfected appeal from Municipal Court for convictions of theft and criminal mischief. We affirm. ¶3 Chowdhury was charged with theft and criminal mischief in Missoula County Municipal Court. He pled not guilty, requested a bench trial, and requested representation by a Public Defender, which was granted. A bench trial was scheduled for May 20, 2011, and Chowdhury failed to appear. The State moved to try Chowdhury in absentia. Chowdhury’s Public Defender lawyer reported to the court that he had been discharged because Chowdhury wished to proceed pro se. The court noted that notice of trial had been mailed to Chowdhury and had not been returned, and, therefore granted the State’s motion. Chowdhury was convicted in absentia. On May 30, 2011, Chowdhury filed a notice of appeal, with a Municipal Court heading, with the district court clerk. Nothing was filed with the Municipal Court, thus the Municipal Court did not transmit the case file to the District Court within the required 30 days. Ultimately, the Municipal Court case file was transmitted to the District Court, and the District Court dismissed the appeal for failure to properly perfect the appeal. 3 ¶4 In a Municipal Court appeal, the District Court’s review is limited to the record and questions of law. Section 3-6-110, MCA. The procedural requirements for appeal are found in § 46-17-311, MCA, and Title 25, chapter 30, MCA, (M. U. Mun. Ct. R. App.). Notice of intention to appeal must be filed with the Municipal Court within 10 days after a judgment is rendered. M. U. Mun. Ct. R. App. 5(b)(3); § 46-17-311(2), MCA. Unless a party timely complies with these statutory requirements the District Court does not acquire jurisdiction of the appeal, and the District Court has no other course but to dismiss the appeal. State v. Hartford, 228 Mont. 254, 256-57, 741 P.2d 1337, 1338 (1987). Here the District Court determined that Chowdhury’s failure to perfect his appeal was caused by his own conduct and correctly dismissed the appeal. ¶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. ¶6 Affirmed. /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JIM RICE | February 21, 2013 |
9e8fb648-aeb6-4664-9c43-2e040c3bdf89 | Overfield v. Great Falls | 2013 MT 67N | DA 12-0269 | Montana | Montana Supreme Court | DA 12-0269 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 67N SUSAN OVERFIELD, Plaintiff and Appellee, v. CITY OF GREAT FALLS, Defendant, ANIMAL FOUNDATION OF GREAT FALLS, ROBERT F. JAMES, and JEAN E. FAURE, Non-Party and Appellants. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDV-09-671 Honorable Katherine M. Bidegaray, Presiding Judge COUNSEL OF RECORD: For Appellants: James H. Goetz, Zachary K. Strong, Goetz, Gallik & Baldwin, P.C., Bozeman, Montana For Appellee: Lawrence A. Anderson, Attorney at Law, P.C., Great Falls, Montana Elizabeth A. Best, Best Law Offices, P.C., Great Falls, Montana Submitted on Briefs: November 21, 2012 Decided: March 12, 2013 March 12 2013 2 Filed: __________________________________________ Clerk 3 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 Appellants Animal Foundation of Great Falls (Foundation), Robert F. James, and Jean E. Faure appeal from the order entered by the Eighth Judicial District Court, Cascade County, on April 6, 2012, assessing attorneys fees and costs incurred as a result of their conduct, as non-parties in this matter, to be paid by them in order to purge their individual contempt for failing to appear at depositions with documents as required by subpoena duces tecum, withholding documents and redacting information from produced documents, and providing advice to respond to legal process in ways that unreasonably and vexatiously multiplied the proceedings, as found by the District Court in two earlier orders of contempt.1 The factual and procedural background of this case is detailed in our earlier opinion and order. Animal Found. of Great Falls v. Mont. Eighth Jud. Dist. Ct., 2011 MT 289, 362 Mont. 485, 265 P.3d 659. The District Court’s order of April 6, 2012, re-calculated the assessed fees and costs following this Court’s remand for that purpose. Animal Found. of Great Falls, ¶¶ 26-29. The District Court ordered the Foundation to pay $32,298.79, James to pay $19,262.11, and Faure to pay $27,131.32, or a total of 1 The April 6, 2012 order assessing fees and costs was entered nunc pro tunc to clarify and correct an order entered March 30, 2012. 4 $78,692.22. Appellants challenge the amount of fees assessed by the District Court. Appellee Susan Overfield argues that the District Court’s order should be affirmed. We affirm in part and reverse in part. ¶3 Appellants argue that the District Court abused its discretion by awarding fees despite Overfield’s failure to carry her burden to prove by a preponderance of the evidence that the requested fees were incurred and that such fees were reasonable. Appellants point to the extensive evidence they presented in opposition to the reasonableness of the requested fees, including expert testimony. Appellants argue this abuse of discretion was furthered by the District Court’s legal error of failing to require Overfield to support her fee request with contemporary billing records, citing M. R. Evid. 1006 and this Court’s admonition in Tacke v. Energy West, Inc., 2010 MT 39, ¶ 38, 355 Mont. 243, 227 P.3d 601 (“we strongly urge counsel to keep and provide contemporaneous time records in support of attorneys’ fees requests in fee-shifting cases, and we encourage district courts to look askance at requests not so supported”), and noting that the evidence of attorney time offered by Overfield was reconstructed after the fact. However, as Overfield argues, unlike Tacke, the litigation out of which these contemptuous actions arose was not a fee-shifting matter that necessitated maintenance of contemporaneous time records. While Overfield’s counsel would have been well-advised to initiate contemporaneous timekeeping once they moved for contempt, instead of risking a determination that their contempt fee request was not sufficiently proven, we cannot conclude the District Court’s evidentiary ruling to not require production of 5 contemporaneous time records in this matter was an error of law or an abuse of discretion. Overfield’s counsel testified and submitted a detailed reconstructed accounting of the time and costs expended on the contempt matter, supported by affidavits. The District Court disallowed some of counsel’s claimed time and expenses, but determined that the lion’s share of their request was adequately supported by the evidence. We conclude the District Court did not abuse its discretion in doing so. ¶4 Appellants contend that the District Court abused its discretion by exceeding the scope of this Court’s remand order. In remanding this matter for reassessment of the attorney fee issue, we instructed as follows: While the express basis for the District Court’s fee award was the September 1 and 2, 2011 contempt orders, the fee award is inconsistent with those prior orders in material ways. First, the fees should not have been awarded in a lump sum, jointly and severally against the Foundation, Faure and James. The September 1 contempt order was based upon the April 18, 2011 deposition, in regard to which the District Court found only the Foundation in contempt. . . . The District Court found Faure not in contempt but rather responsible under § 37-61-421, MCA, for conduct causing excess costs, expenses and attorney fees by advising the Foundation not to appear at the April 18 deposition. The September 2 contempt order was based upon the June 30, 2011 deposition. The District Court found the Foundation, James and Faure each in contempt in connection with that event . . . . The District Court therefore previously awarded costs and fees to Overfield against each of the named respondents based upon specifically-identified conduct as set out in the September 1 and 2 orders. The ultimate award of costs and attorney fees should reflect not joint and several liability, but liability based upon the specific events and the specific conduct of each respondent as set out in the September 1 and 2 orders. Further, the District Court’s award of costs and fees on October 7, 2011, exceeded the scope of the September 1 and 2 orders by awarding fees for all work Overfield’s attorneys did in connection with seeking discovery from the Foundation. The District Court’s September 1 and 2 orders awarded fees for bringing the motions for contempt and for the Foundation deposition. There is no basis for awarding costs and fees for work 6 prior to April 19, 2011, the day after the attempted April 18 deposition. The District Court’s fee order awards Overfield fees for work her attorneys did, for example, in opposing the Foundation’s motion to quash the original subpoena, upon which the Foundation prevailed. This was an abuse of discretion and the award of costs and fees should be limited to those reasonably incurred on or after April 19, 2011, for attorney time strictly related to the prosecution of the contempt issues. Animal Found. of Great Falls, ¶¶ 26-28. ¶5 Appellants argue that the District Court failed to undertake the analysis necessary to identify what portions of Overfield’s counsel’s work were for “the specific events and the specific conduct” of each contemnor, Animal Found. of Great Falls, ¶ 27, and instead assigned arbitrary percentages of the total fees to be paid by each contemnor, which Appellants argue is illustrated by the differences in percentages imposed under the March 30 order and the April 6 nunc pro tunc order. ¶6 The District Court eliminated all fees and costs requested for work prior to April 19, 2011, pursuant to the remand instructions. The court broke down and organized the remaining requests into relevant periods of time to capture the fees and costs submitted pursuant to the separately filed affidavits of counsel, as follows: First Affidavits—Pre-June 29, 2011; First Affidavits—June 29, 2011, to September 3, 2011; Second Affidavits—September 3, 2011, to October 11, 2011; Third Affidavits— October 10, 2011, to December 20, 2011. Within these time periods, the court then assessed the fees and costs it determined had been reasonably incurred in response to the contemptuous actions and apportioned those subtotals among the three contemnors in the percentages it determined them to be individually responsible. While, as Overfield notes, 7 “[t]he allocations of fault and fees . . . could not be accomplished with algebraic precision[,]” the District Court was nonetheless meticulous in its review of the issue, and we conclude that its approach and analysis did not err by exceeding the scope of the remand order. ¶7 Finally, Appellants argue that the District Court exceeded the remand order and abused its discretion by awarding Overfield’s counsel’s fees incurred in pursuing the contempt fee award, or, “fees for fees.” Such fees are not generally 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, see e.g. [James Talcott Constr., Inc. v. P&D Land Enters., 2006 MT 188, ¶ 65, 333 Mont. 107, 141 P.3d 1200], those cases arise from statutory entitlements to attorney fees.”). Further, our remand order instructed that fees were to be awarded only “for attorney time strictly related to the prosecution of the contempt issues.” “Fees for fees” is in addition to those fees incurred “strictly” for prosecution of the contempt issues and, in view of the size of the fee award, unnecessary. ¶8 Appellants’ briefing calculates the time incurred by Overfield’s two attorneys in pursuing “fees for fees” to be 29.5 hours. Overfield argues that “fees for fees” should be awarded, but does not contest this calculation of hours expended on the issue. At Overfield’s counsel’s hourly rate of $225 per hour, which the contemnors’ expert conceded was reasonable, the amount awarded by the District Court for “fees for fees” totaled $6,637.50. We reverse this part of the fee award. 8 ¶9 For purposes of entry of an amended order, $6,637.50 shall be subtracted from the fees assessed against the contemnors under the District Court’s category of “Second Affidavits—September 3, 2011, to October 11, 2011,” which is the time period these hours were expended. This reduction shall be applied to the three contemnors in the same percentage as the fees and costs were assessed against them by the District Court in this category, that being 30% to the Foundation, 30% to James, and 40% to Faure. Thus, in this category, the Foundation’s and James’ assessed fees are reduced by $1,991.25 each, and Faure’s assessed fees are reduced by $2,655. The revised calculation of the total fees owed by each contemnor under the District Court’s order is: the Foundation, $30,307.54 ($32,298.79 - $1,991.25); James, $17,270.86 ($19,262.11 - $1,991.25); and Faure $24,466.32 ($27,131.32 - $2,665). The overall total to be paid is $72,044.72 ($78,682.22 - $6,637.50). ¶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 the legal issues are controlled by settled Montana law, which the District Court correctly interpreted, with the exception of the portion of the order granting “fees on fees,” which we reverse. ¶11 Affirmed in part, reversed in part, and remanded for entry of an amended order consistent herewith. /S/ JIM RICE We Concur: /S/ MIKE McGRATH 9 /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BRIAN MORRIS | March 12, 2013 |
d35c4b6b-aa73-415d-940a-16276e353cb7 | Rukes v. State | 2013 MT 56 | DA 12-0176 | Montana | Montana Supreme Court | DA 12-0176 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 56 JACK N. RUKES, 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 11-1401 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Jack N. Rukes, self-represented, Shelby, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Micheal S. Wellenstein, Assistant Attorney General; Helena, Montana Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana Submitted on Briefs: January 31, 2013 Decided: March 5, 2013 Filed: __________________________________________ Clerk March 5 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Jack Rukes appeals the Fourth Judicial District Court’s order dismissing his Petition for Post-Conviction Relief. The dispositive issue on appeal is whether the District Court erred in dismissing the petition. We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶2 On May 27, 2009, Rukes was arrested and taken to the Missoula County Detention Center based on alleged criminal conduct including the assault of his wife. At the detention center, Officer Stacy Lear did not record her interview with Rukes, but instead took notes which she later converted into a written report to be used in evidence. Rukes filed a motion to suppress his statements from evidence because the interview violated newly-enacted legislation requiring that custodial interrogations be recorded. Sections 46-4-406 through -411, MCA (effective October 1, 2009). On September 24, 2009, the District Court denied his motion to suppress because the statutes were not yet in effect. ¶3 The District Court set a jury trial for January 6, 2010. Rukes originally retained private counsel, Kathleen Foley and William Boggs, who withdrew from representation shortly before the trial date due to Rukes’s inability to fulfill fee obligations and because they fundamentally disagreed with Rukes about whether he should proceed to trial. Upon their withdrawal, the District Court appointed Christopher Daly to represent Rukes and Rukes chose to continue the trial in order to provide his new attorney with adequate preparation time. Daly represented Rukes in his March 10, 2010, jury trial. During the 3 trial, a courtroom officer reportedly sat close enough to Rukes that a juror asked the bailiff who the man was, and the bailiff indicated that he was “Mr. Rukes’s guard.” ¶4 On March 11, 2010, the jury found Rukes guilty of felony Aggravated Assault and misdemeanor Unlawful Restraint. On June 1, 2010, the District Court sentenced Rukes to twenty years in Montana State Prison with ten years suspended on the felony offense and six months in jail on the misdemeanor offense, to be served concurrently. The District Court ordered a mental evaluation of Rukes and that he have no contact with his wife and children. ¶5 On January 19, 2011, Rukes’s appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967) and § 46-8-132(2), MCA, discussing nine arguable appeal issues: (1) the court erred in denying Rukes’s motion to suppress; (2) the court erred in granting Foley’s and Boggs’s motion to withdraw; (3) the court abused its discretion in refusing to exclude a witness from the courtroom; (4) the court failed to fully and fairly instruct the jury; (5) Rukes was denied due process as a result of the bailiff’s misconduct; (6) Rukes was denied a speedy trial; (7) the court abused its discretion in ordering a mental examination of Rukes; (8) the court violated Rukes’s Fifth Amendment rights by relying on the mental evaluations in sentencing; and (9) Rukes received ineffective assistance of trial counsel. Rukes’s appellate counsel could not identify any meritorious issues and requested permission to withdraw from representation. 4 ¶6 On March 8, 2011, this Court entered an order noting that Rukes had failed to file a response to his attorney’s Anders brief and granting appellate counsel’s motion to withdraw. We dismissed Rukes’s appeal, concluding that “an appeal in this case would be wholly frivolous.” Rukes thereafter filed a response and we granted his motion requesting consideration of the late response. On March 29, 2011, after consideration of Rukes’s response, we upheld our previous order dismissing his appeal and permitting his counsel’s withdrawal. ¶7 Proceeding pro se, Rukes then filed in the District Court a Petition for Post-Conviction Relief, raising twelve issues. The court noted in its February 8, 2012 order that “virtually all of the Petitioner’s claims are nothing more than his personal argument and speculation” and that most of Rukes’s arguments had been addressed on direct appeal. The District Court nonetheless discussed the merits of Rukes’s claims. In addressing Rukes’s claims of ineffective assistance of counsel, the court ordered Foley and Boggs to respond by affidavit to Rukes’s allegation that they had failed to provide him with a copy of a proposed plea agreement, failed to explain the plea agreement and failed to explain consequences of proceeding to trial. The court ordered Daly to respond by affidavit to Rukes’s claim that he failed to move for a new trial after the bailiff allegedly committed misconduct. Having reviewed the attorneys’ affidavits, the court determined that Rukes’s petition did not demonstrate “any kind of error, cumulative or otherwise,” and dismissed the petition. Rukes appealed pro se to this Court. 5 STANDARD OF REVIEW ¶8 We review the district court’s denial of a petition for postconviction relief to determine whether its findings of fact are clearly erroneous and whether its legal conclusions are correct. Miller v. State, 2012 MT 131, ¶ 9, 365 Mont. 264, 280 P.3d 272. Grounds for relief “that were or could reasonably have been raised on direct appeal may not be raised, considered or decided in a proceeding” for postconviction relief. Section 46-21-105(2), MCA. ¶9 Ineffective assistance of counsel claims present mixed questions of law and fact that we review de novo. Miller, ¶ 9. To prevail on such a claim, the petitioner must demonstrate that “counsel’s performance was deficient” and that “the deficient performance prejudiced the defense.” Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). We apply the same standard when reviewing claims of ineffective assistance of appellate counsel. Rogers v. State, 2011 MT 105, ¶ 37, 360 Mont. 334, 253, P.3d 889. DISCUSSION ¶10 Rukes argues that the District Court erred in dismissing his Petition for Post-Conviction Relief on the following grounds: (1) the District Court erred in denying his motion to suppress his statements from evidence; (2) Rukes was denied a speedy trial; (3) Daly provided ineffective assistance of counsel; (4) Foley and Boggs provided ineffective assistance of counsel; (5) the court erred in granting Foley’s and Boggs’s motion to withdraw; and (6) counsels’ cumulative errors warrant reversal. 6 ¶11 We agree with the State that, with the exception of several of Rukes’s ineffective assistance of counsel claims, most of Rukes’s claims are barred from appellate review under § 46-21-105(2), MCA, because they were or could have been raised on direct appeal. ¶12 1. Denial of Rukes’s motion to suppress. ¶13 Rukes argues that the District Court erred in denying his motion to suppress the statements he made during his May 2009 interview because the interview was not recorded, in violation of §§ 46-4-406 through -411, MCA. He also argues that the court should have compelled Officer Lear to produce her original handwritten notes. Rukes’s appellate counsel raised these issues in her Anders brief and, after independent examination of the record and consideration of Rukes’s arguments, we agreed that they were without merit. As noted, the statutes require recordation of custodial interrogations, but became effective in October 2009, several months after Rukes’s interview. We will not consider the issue again in reviewing the District Court’s denial of Rukes’s Petition for Post-Conviction Relief. Section 46-21-105(2), MCA. ¶14 2. Whether Rukes was denied a speedy trial. ¶15 Similarly, we will not consider Rukes’s argument that he was denied the right to a speedy trial. Appellate counsel raised that question in her Anders brief and suggested it was frivolous, based in part on the following exchange during pre-trial proceedings: THE DEFENDANT: Your Honor, I feel it’s more important to have good representation than to have a speedy trial. I feel that — I don’t care if it’s two or three months down the road, whatever it takes to prepare. . . . 7 THE COURT: You’ve said enough. If you are willing right now, with your eyes wide open and understand what’s going on, that you have a right to a speedy trial but you’re willing to waive it because of circumstances in this case — THE DEFENDANT: Yeah. ¶16 On direct appeal, we reviewed the record and agreed with appellate counsel that the issue lacked merit; we decline to reconsider it. Section 46-21-105(2), MCA. ¶17 3. Ineffective assistance of trial counsel. ¶18 Rukes alleges that Daly provided ineffective assistance of counsel because he improperly portrayed Rukes during his opening statement as “a drunken wife abuser,” failed to move for a new trial based on the bailiff’s misconduct, failed to counsel Rukes regarding his right against self-incrimination, failed to object during sentencing to court-ordered mental evaluations, and failed to object to an improper condition of Rukes’s sentence—namely, a condition prohibiting Rukes from contacting his two daughters who were not involved in the incident that gave rise to Rukes’s convictions. ¶19 The District Court rejected the claim that Rukes’s attorney made a prejudicial comment during opening statement. Rukes failed to point out a specific comment and, searching the record, the court concluded that the alleged statement was “a figment of the Petitioner’s imagina[tion].” The court also recognized that an improper opening statement “would be record-based and should have been raised on direct appeal[.]” We agree. See State v. Howard, 2011 MT 246, ¶ 21, 362 Mont. 196, 265 P.3d 606 (“When claims of ineffective assistance are capable of resolution by examining the record alone, they are appropriate for consideration on direct appeal.”). Furthermore, the trial 8 transcript indicates only that Daly stated Rukes “had been drinking.” Rukes has not explained how this statement prejudiced the outcome of his trial or rendered Daly’s performance “deficient.” Whitlow, ¶ 10. His contention that appellate counsel provided ineffective assistance of counsel based on her failure to raise this issue lacks merit for the same reasons. Heddings v. State, 2011 MT 228, ¶ 33, 362 Mont. 90, 265 P.3d 600 (counsel is not ineffective for failing to “make motions or objections which, under the circumstances, would have been frivolous”). ¶20 We turn to Rukes’s claim that Daly was ineffective for failing to file a motion for a new trial following the bailiff’s alleged misconduct. Appellate counsel suggested in her Anders brief that the bailiff’s communication with the jurors did not constitute reversible error because Rukes could not demonstrate prejudicial consequences. State v. Baugh, 174 Mont. 456, 465, 571 P.2d 779, 784 (1977). We agreed that the record did not demonstrate any prejudice resulting from the bailiff’s misconduct. As a consequence, Daly’s failure to move for a new trial on that basis also is without merit. See Porter v. State, 2002 MT 319, ¶ 32, 313 Mont. 149, 60 P.3d 951 (defendant failed to “establish any prejudice as a result of the momentary observation of him in handcuffs by prospective jurors” and thus counsel’s failure to move for a mistrial was not deficient). ¶21 Each of Rukes’s other arguments regarding Daly’s alleged ineffectiveness was discussed in appellate counsel’s Anders brief and considered by this Court in dismissing his direct appeal. Appellate counsel noted that, to prevail on his ineffective assistance of counsel claims, a defendant generally must demonstrate that the reasons for counsel’s 9 actions appear in the record, or that there is no plausible justification for counsel’s actions. State v. Kougl, 2004 MT 243, ¶¶ 14, 21, 323 Mont. 6, 97 P.3d 1095. Since the record in this case did not reflect counsel’s reasons for failing to object to the involuntary mental evaluations or the sentencing condition, appellate counsel suggested that the ineffective assistance claims were unsubstantiated. We agreed. In this postconviction proceeding, Rukes offers nothing to substantiate his allegations that Daly’s performance was deficient or that, absent such deficiency, the result of the proceeding would have been different. See Ellenburg v. Chase, 2004 MT 66, ¶ 16, 320 Mont. 315, 87 P.3d 473 (“[A] petition for postconviction relief must be based on more than mere conclusory allegations.”). He has not met his burden of showing reversible error by the District Court in denying his petition. ¶22 4. Ineffective assistance of counsel during pre-trial proceedings. ¶23 Rukes argues that Foley and Boggs provided ineffective assistance due to their failure to pursue a speedy trial, failure to provide Rukes with a copy of the State’s proposed plea agreement, and failure to advise him of the consequences of rejecting the plea agreement. As noted, we addressed the speedy trial issue on direct appeal. In ruling on Rukes’s petition for postconviction relief, the District Court determined that “Petitioner’s own actions belie the viability of this claim which clearly cannot be sustained as a matter of fact.” The court dismissed the claim for failure to state a claim for relief under § 46-21-201(1)(a), MCA. 10 ¶24 The court pointed out that on April 11, 2010, Rukes wrote a letter to the court, indicating that he refused the plea bargain due to his distrust of the prosecutor. The letter stated: [I] was offered a plea bargain of 5 or 10 years suspended by Suzy Boylan. It was enticing but I took information acquired from other attorneys; informing me of Suzy’s “demon pursuits linked to careerism who is acting like the zelots [sic].” One attorney went so far as to say “Suzy is so unreasonable that she needs mental intervention.” I was also informed that any judge in Missoula is more reasonable than her. ¶25 Foley and Boggs stated in their affidavit that even when Rukes’s bill was in arrears and their motion to withdraw was pending, they worked for free on “both trial preparation and negotiations to settle the case on terms favorable to Rukes.” They stated that they “spent hours discussing the pros and cons of going to trial with Rukes, and advised him in no uncertain terms (although he did not want to hear it) that he would very likely end up in prison for a significant period if he went to trial.” Foley and Boggs attest that they went through significant effort to secure a plea offer that “would have saved Rukes had he not reneged on it.” They stated that upon receiving the plea agreement from the prosecutor on December 28, 2009, they “brought the Agreement to Rukes to sign. Instead he asked to keep it overnight, so we left it with him.” Rukes initially had indicated to Foley and Boggs that he would accept the plea agreement, but changed his mind. Attached as an exhibit to Foley’s and Boggs’s affidavit was an email from Foley to prosecutor Boylan stating as follows: I brought the Plea Agreement that Jack had accepted out to review with him yesterday and spent a couple hours in discussion and answering all his 11 questions. He wanted to keep it over night. When I went back this morning to see him and retrieve the documents, he had changed his mind. ¶26 The affidavit and supporting documents provide further support for the District Court’s conclusion that Rukes’s ineffective assistance of counsel claim was without merit. Rukes had the burden of establishing his claim through material facts; his unsupported allegations do not suffice to demonstrate that Foley and Boggs failed to provide him with a copy of the plea agreement or to advise him of the consequences of proceeding to trial. Ellenburg, ¶ 16. The District Court did not err in dismissing the claim. ¶27 5. Withdrawal of Foley and Boggs from representation. ¶28 We addressed on direct appeal Rukes’s contention that the District Court erred in granting Foley’s and Boggs’s motion to withdraw from representation. Foley and Boggs moved to withdraw due to Rukes’s inability to pay his fee obligations and because a fundamental disagreement between counsel and Rukes arose from his refusal to accept the plea agreement. The District Court considered their motion during its December 29, 2009, hearing. His appellate counsel could find no authority to support a conclusion that the District Court abused its discretion in granting the motion to withdraw, unless counsels’ withdrawal violated Rukes’s speedy trial right. We already have addressed that question in ¶¶ 14-16, above. ¶29 6. Whether counsels’ cumulative errors warrant reversal. ¶30 The doctrine of cumulative error “is appropriate to reverse a defendant’s conviction only where a number of errors, taken together, prejudiced the defendant’s 12 right to a fair trial.” Howard, ¶ 40 (quoting State v. Ferguson, 2005 MT 343, ¶ 126, 330 Mont. 103, 126 P.3d 463) (internal quotation marks omitted). We have considered all of the arguments Rukes has made on appeal. For the reasons already discussed, we agree with the District Court that Rukes has not met his burden of establishing that any error of his pre-trial and trial counsel prejudiced his right to a fair trial. ¶31 We affirm the District Court’s dismissal of Rukes’s Petition for Post-Conviction Relief. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BRIAN MORRIS /S/ LAURIE McKINNON | March 5, 2013 |
fa09a0e7-94f6-44b6-9602-01fa80a3b27f | State v. Hicks | 2013 MT 50 | DA 11-0311 | Montana | Montana Supreme Court | DA 11-0311 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 50 STATE OF MONTANA, Plaintiff and Appellee, v. JERIMIE R.L. HICKS, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDC 10-084 Honorable Dirk M. Sandefur, Presiding Judge COUNSEL OF RECORD: For Appellant: Joseph P. Howard, Attorney at Law, Great Falls, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant Attorney General, Helena, Montana John Parker, Cascade County Attorney, Great Falls, Montana Submitted on Briefs: November 14, 2012 Decided: February 26, 2013 Filed: __________________________________________ Clerk February 27 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Jerimie R.L. Hicks (Hicks) appeals from his convictions of deliberate homicide and solicitation to tamper with physical evidence in the Eighth Judicial District Court, Cascade County. We affirm. ¶2 Hicks presents the following issues for review: ¶3 Issue One: Whether the District Court properly concluded that assault on a minor is a forcible felony under the deliberate homicide statute. ¶4 Issue Two: Whether the District Court properly denied Hicks’s motion in limine to exclude from evidence a portion of the police’s videotaped interrogation of Hicks. PROCEDURAL AND FACTUAL BACKGROUND ¶5 Three-year-old K.B. died on March 1, 2010, from severe brain injuries that she suffered after Hicks shoved her into a wall on February 26, 2010. Hicks had been dating K.B.’s mother, Jessica Bray (Bray), during the months preceding K.B.’s death. Hicks, Bray, and Bray’s two children were living together at the time of the incident. ¶6 On the afternoon of February 26th, Hicks was taking care of K.B. by himself while Bray was at work. Hicks called Bray shortly after 1:20 in the afternoon to inform her that something was wrong with K.B. Hicks told Bray that their puppy had knocked K.B. down the stairs, and K.B. was not responding. Bray told Hicks to hang up the phone immediately and to call 9-1-1, which he did. Hicks told the dispatcher that K.B. had fallen down the stairs and that she was not responsive. Emergency responders arrived at the house minutes later. They instantly recognized severe injuries when they saw K.B. and immediately transported 3 her to the hospital. ¶7 At the hospital, a CT scan revealed that K.B. had a serious brain injury. The doctors diagnosed K.B. with a subdural hematoma and severe cerebral edema. Although she was taken into surgery at once, the procedure was not successful. ¶8 Because K.B.’s injuries were not consistent with injuries that a child would normally suffer after falling down carpeted stairs, the police took Hicks in for further questioning. Hicks waived his Miranda rights and agreed to talk to detectives. Hicks initially was adamant that the dog had knocked K.B. down the stairs. He said that he had been doing homework when he heard what sounded like a bowling ball fall down the stairs. He said that he had rushed over to the base of the stairs where he saw the puppy standing over K.B, so he threw the puppy to get it away from her. Hicks claimed that the puppy hit and dented the drywall. ¶9 As the interview progressed, Hicks acknowledged that the puppy did not dent the wall. He told the detectives that K.B.’s head actually made the dent when he lost his temper and shoved her into the wall. Hicks claimed that K.B. was crying after he had assaulted her but otherwise seemed to be okay. According to Hicks, he asked K.B. if she was hurt and then told her to go upstairs to get her coat so that they could go to the store. Hicks told the detectives that he went to finish his homework and that was when he heard K.B. fall down the stairs. ¶10 One of the detectives retrieved a child-sized mannequin. The detective acknowledged that the mannequin was not the same size as K.B. but asked Hicks to demonstrate how hard he had pushed K.B. Hicks complied. He took the mannequin and threw it into the wall. The 4 detectives asked Hicks if the amount of force that he had used in the demonstration was the same amount of force that he had used when he shoved K.B. Hicks confirmed that it was. ¶11 The doctors declared K.B. brain dead on March 1, 2010. Prosecutors charged Hicks with deliberate homicide on March 11, 2010. He was also charged with solicitation to tamper with physical evidence for asking his mother to retrieve items from the house that he knew could be incriminating. ¶12 Prior to trial, Hicks filed a motion in limine to exclude from evidence the portion of the videotaped interrogation in which Hicks demonstrated how hard he had pushed K.B. Hicks argued that the demonstration was inaccurate and more prejudicial than probative. The District Court initially reserved judgment but later denied Hicks’s motion during trial. The entire video of the interrogation was admitted into evidence and shown to the jury. Prior to the opening statements but after the jury was empanelled and sworn-in, Hicks moved to dismiss the deliberate homicide charge. He argued that assault on a minor was not a forcible felony under the deliberate homicide statute. The District Court denied Hicks’s motion. ¶13 On November 22, 2010, after a six-day trial, the jury convicted Hicks of both deliberate homicide and solicitation to tamper with physical evidence. The District Court sentenced Hicks to one-hundred years in the Montana State Prison with a twenty-five year parole restriction for deliberate homicide. For solicitation to tamper with physical evidence, Hicks received a concurrent five year prison sentence.1 STANDARD OF REVIEW 1 The solicitation conviction was not raised in the appellate briefs and therefore is not addressed in this opinion. 5 ¶14 We review de novo a district court’s interpretation of a statute. State v. Cooksey, 2012 MT 226, ¶ 32, 366 Mont. 346, 286 P.3d 1174; State v. Daniels, 2011 MT 278, ¶ 11, 362 Mont. 426, 265 P.3d 623. A district court’s denial of a motion in limine is an evidentiary ruling. State v. Meredith, 2010 MT 27, ¶ 42, 355 Mont. 148, 226 P.3d 571. We review evidentiary rulings for an abuse of discretion. Meredith, ¶ 42. A trial court abuses its discretion when 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. DISCUSSION ¶15 Issue One: Whether the District Court properly concluded that assault on a minor is a forcible felony under the deliberate homicide statute. ¶16 Hicks was charged with deliberate homicide, felony-murder, pursuant to § 45-5- 102(1)(b), MCA. A person commits felony-murder when the person attempts to commit, commits, or is legally accountable for the attempt or commission of a forcible felony and in the course of the forcible felony or flight thereafter, the person or any person legally accountable for the crime causes the death of another human being. Section 45-5-102(1)(b), MCA; State v. Billedeaux, 2001 MT 9, ¶ 10, 304 Mont. 89, 18 P.3d 990; State v. Kills on Top, 241 Mont. 378, 386-87, 787 P.2d 336, 341 (1990). Although § 45-5-102(1)(b), MCA, specifically lists a number of felonies that can serve as a predicate offense, the statute provides that any forcible felony can support a charge of felony-murder. ¶17 Prosecutors alleged assault on a minor as the predicate offense for Hicks’s felony- murder charge. Hicks argues that assault on a minor is not a forcible felony because the 6 underlying offense of assault on a minor is misdemeanor assault. Assault on a minor incorporates the elements of misdemeanor assault but also requires that the offender be 18 years of age or older and that the victim be younger than 14 years old. Section 45-5-212, MCA. Because misdemeanor assault and assault on a minor proscribe the same conduct and require the same mental state, and because misdemeanor assault cannot support a charge of felony-murder, Hicks contends that assault on a minor also cannot support a charge of felony-murder. ¶18 Hicks further argues that the legislative history of § 45-5-102(1)(b), MCA, demonstrates that the legislature did not intend assault on a minor to be a felony-murder predicate offense. He argues that if the legislature had intended assault on a minor to be a predicate offense, then the legislature would have included it as one of the specifically listed forcible felonies. ¶19 We seek to implement the legislature’s intent when we interpret a statute. In re K.M.G., 2010 MT 81, ¶ 26, 356 Mont. 91, 229 P.3d 1227. We look first to the plain language of the statute to determine legislative intent. In re K.M.G., ¶ 26; Cooksey, ¶ 32. When the plain language of the statute is clear, no other means of interpretation are necessary or proper. Cooksey, ¶ 32; City of Missoula v. Cox, 2008 MT 364, ¶ 9, 346 Mont. 422, 196 P.3d 452; State v. Roberts, 2010 MT 110, ¶ 10, 356 Mont. 290, 233 P.3d 324. We do not insert that which the legislature omitted, nor do we omit that which the legislature has inserted. Section 1-2-101, MCA; In re K.M.G., ¶ 26; Cooksey, ¶ 32. Only when the language of the statute is ambiguous do we resort to the statute’s legislative history. State v. Merry, 2008 MT 288, ¶ 17, 345 Mont. 390, 191 P.3d 428; In re K.M.G., ¶ 26. 7 ¶20 Section 45-5-102(1)(b), MCA, is clear that any forcible felony can support a charge of felony-murder. The statutes that define a forcible felony are unambiguous and require no interpretation beyond their plain language. A forcible felony is any felony that “involves the use or threat of physical force or violence against any individual.” Section 45-2-101(24), MCA. A felony is any offense that carries a potential sentence of death or imprisonment in a state prison for a term exceeding one year. Section 45-2-101(23), MCA. ¶21 Assault on a minor is punishable by imprisonment in a state prison for up to five years. Section 45-5-212, MCA. Misdemeanor assault is punishable by imprisonment in a county jail for up to six months. Section 45-5-201, MCA. By codifying assault on a minor as an offense distinct from misdemeanor assault with significantly enhanced penalties, the legislature emphasized the increased severity of the offense when an adult assaults a child. Because assault on a minor is punishable by five years of imprisonment in a state prison, it is a felony. ¶22 As alleged by the State, Hicks’s assault on K.B. involved the use of physical force or violence against another person. The District Court correctly determined that assault on a minor, as alleged by the State, is a forcible felony and properly denied Hicks’s motion to dismiss. ¶23 Issue Two: Whether the District Court properly denied Hicks’s motion in limine to exclude from evidence a portion of the police’s videotaped interrogation of Hicks. ¶24 Hicks argues that the video of his demonstration of how he had pushed K.B. was substantially more prejudicial than probative. A trial court may exclude relevant evidence if it determines that the evidence’s probative value is substantially outweighed by the danger of 8 unfair prejudice. M. R. Evid. 403. Probative evidence in criminal proceedings is usually, if not always, prejudicial to the defendant. State v. Pittman, 2005 MT 70, ¶ 27, 326 Mont. 324, 109 P.3d 237. In fact, the prosecutor must present evidence that is prejudicial to the defendant to obtain a conviction. It is only when the evidence is unfairly prejudicial that it may be excluded under M. R. Evid. 403. State v. Bieber, 2007 MT 262, ¶ 59, 339 Mont. 309, 170 P.3d 444. Evidence may be unfairly prejudicial if it arouses the jury’s hostility or sympathy for one side without regard to its probative value, if it confuses or misleads the trier of fact, or if it unduly distracts from the main issues. State v. Huether, 284 Mont. 259, 265, 943 P.2d 1291, 1295 (1997) (citing State v. Thompson, 263 Mont. 17, 28-29, 865 P.2d 1125, 1132 (1993)). The trial court has discretion to decide whether the danger of unfair prejudice substantially outweighs the evidence’s probative value. Bieber, ¶ 59. ¶25 Hicks contends that the reenactment should not have been admitted into evidence because he admitted that he had pushed K.B. into the wall, and the video reenactment was therefore not probative of any material fact in question. Hicks further asserts that the reenactment was grossly inaccurate and did not fairly portray the parties or the circumstances. Hicks claims that the reenactment was flawed because the mannequin was much smaller and lighter than K.B., because the interrogation room’s walls were cement and not sheetrock like the apartment’s walls, and because the detectives failed to confirm with Hicks that the demonstration accurately depicted the parties’ respective positions and how he had grabbed K.B. ¶26 Despite Hicks’s contention, the video of the reenactment was probative of a material fact in question and clearly was relevant to whether Hicks caused K.B.’s death. At trial, 9 Hicks’s counsel admitted that Hicks had committed assault on a minor. He defended against the deliberate homicide charge, however, by arguing that K.B.’s fatal injuries could not have resulted from being shoved into the wall. Hicks’s counsel argued during closing that the small dent in the wall would have been much larger if Hicks had shoved K.B. with the force necessary to cause the severe injuries that led to her death. The prosecution argued that K.B.’s death was the direct result of her head being slammed into the wall with severe force. Hicks’s reenactment demonstrated how hard he had shoved K.B., which was probative of one of the main facts in question—whether Hicks had caused K.B.’s death. ¶27 Moreover, the District Court did not abuse its discretion when it determined that the probative value of the video was not substantially outweighed by the danger of unfair prejudice. As the District Court noted, the video certainly was powerful and graphic. It was incriminating and prejudicial to Hicks, but not unfairly so. Hicks was not coerced in any way. Hicks selected the amount of force to use. After the demonstration, Hicks confirmed that he had shoved the mannequin with the same amount of force that he had used when he shoved K.B. ¶28 It was not outside the bounds of reason for the District Court to conclude that the jury could account for the demonstration’s flaws when considering the video evidence. The flaws in Hicks’s demonstration did not create danger of unfair prejudice that substantially outweighs the video’s probative value. The danger of unfair prejudice was slight. The jury was capable of understanding that the mannequin was smaller than K.B. and that the walls in the interrogation room were a different material than the wall that K.B.’s head had dented. Hicks was free to point out the flaws of the demonstration at trial and to argue to the jury that 10 it should afford little weight to the video due to those flaws. Hicks’s demonstration did not distract from the main issues, confuse or mislead the jury, or arouse the jury’s hostility without regard to the video’s probative value. The District Court did not abuse its discretion by admitting the entire video into evidence. ¶29 For the reasons stated above, Hicks’s convictions are affirmed. /S/ MIKE McGRATH We concur: /S/ PATRICIA COTTER /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS | February 27, 2013 |
ade47ff0-6d06-4895-a9be-450c14ee4451 | State v. Caswell | 2013 MT 39 | DA 11-0536 | Montana | Montana Supreme Court | DA 11-0536 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 39 STATE OF MONTANA, Plaintiff and Appellee, v. PETER EARL CASWELL, Defendant and Appellant. APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DC 10-82 Honorable James B. Wheelis, Presiding Judge COUNSEL OF RECORD: For Appellant: Colin M. Stephens; Smith and Stephens, P.C; Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Tammy K Plubell, Helena, Montana Bernard G. Cassidy, Lincoln County Attorney; Libby, Montana Submitted on Briefs: December 12, 2012 Decided: February 19, 2013 Filed: __________________________________________ Clerk February 19 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 A jury convicted Peter Earl Caswell (Caswell) of sexual intercourse without consent and partner/family member assault in the Nineteenth Judicial District Court, Lincoln County. Caswell argues that his due process rights were violated when a portion of the trial was not recorded during the State’s case in chief and effective appellate review is now unavailable. Caswell also argues that the District Court erred by admitting evidence of Caswell’s prior assault on the victim. We affirm. ¶2 We consider the following issues: ¶3 1. Was the defendant’s right to due process violated by the failure to record a portion of the State’s case in chief? ¶4 2. Did the District Court abuse its discretion by admitting evidence of the defendant’s prior assault of the victim? FACTUAL AND PROCEDURAL BACKGROUND ¶5 Caswell and Beth Caswell (Beth) were married for more than 40 years and had five children together, all of whom are now adults. Caswell and Beth have lived separately since March 26, 2009, when an argument between Caswell and Beth escalated into an altercation in which Caswell punched Beth several times in the face. Beth sustained injuries, including a black eye and a swollen face. Caswell was arrested by Captain Bo Pitman of the Lincoln County Sheriff’s Office and was ultimately convicted of one count of misdemeanor partner/family member assault arising from the incident. 3 ¶6 Caswell left the Lincoln County area for about a year after this assault but returned in the spring of 2010, renting a house in Eureka. Although separated, Caswell and Beth had occasional contact. Beth lived in a small cabin on 12.5 acres of land owned by her son, Ian, who also lived on the property, in an isolated area approximately 30 miles from Eureka. Beth occasionally took care of Caswell’s dog. Caswell knew that he was expected to call before going to Beth’s cabin, and Ian was usually present for those visits. Caswell took an extended trip to the eastern United States in the summer of 2010. During his return trip he called Beth frequently and told her he was returning to Eureka and did not want a divorce. Beth expressed her disfavor with his return and his intentions about the marriage. Caswell became stranded on the trip and Beth sent him money. Caswell returned on August 11, 2010, and, with Beth’s permission, drove to Beth’s cabin that night to drop off his dog. Ian was there, and they ate dinner. Caswell tried to convince Beth to reconcile and became agitated when she disagreed, leaving angrily. Beth was afraid Caswell would return and Ian slept on her couch that night. Caswell called Beth the next day and apologized. He then made further arrangements with her to take care of his dog. ¶7 On August 14, 2010, Beth and Ian had dinner again in Beth’s cabin and Ian returned to his cabin for the night. At about 10:00 p.m., Beth was in her pajamas, sitting and watching television. Her door was not locked. She had not seen anyone drive up her driveway. She felt a hand on her shoulder. Startled, she stood up and saw Caswell. She asked him what he was doing there. He sat down on the loveseat and told Beth to do the 4 same. She moved toward the dining area and asked him to leave. Caswell ignored Beth, threatened to kill himself, and said that he wanted to make love to her. Beth told Caswell “no” and again told him to leave. Caswell became belligerent, told Beth he was going to have sex with her, and grabbed Beth. Beth resisted, but Caswell used his size advantage to force Beth toward the bedroom. Beth wedged herself in the bathroom doorway and bit Caswell in the shoulder. She pleaded with Caswell “not to do this.” Caswell pushed Beth onto the bed and pulled off her pajama bottoms over Beth’s resistant kicking. Caswell ordered her to take off her top and she complied, believing further resistance futile. When Caswell left the room briefly, Beth attempted to call Ian on her cell phone, and grabbed a flashlight to hit Caswell. Caswell took the phone and flashlight away from Beth and subjected her to oral, vaginal, and anal sex. When finished, Caswell asked Beth if she wanted to call the sheriff, and she said no, believing Caswell was testing her. He then asked if he could come back later. Attempting to convince Caswell to leave, Beth said he could. ¶8 When Caswell left, Beth immediately locked the door and called 911 to report Caswell’s assault. Ian came to the cabin to wait with Beth for an officer. Captain Pitman arrived at Beth’s cabin in the early morning hours of August 15, 2010, and transported Beth to another son’s house in Eureka. Detective Rhoades, assigned to investigate sex crimes, was contacted and took over the investigation. Ian stayed at Beth’s cabin in case Caswell returned, which he did. Captain Pitman returned to Beth’s cabin and arrested Caswell without incident. Caswell was charged with one count of felony burglary, in 5 violation of § 45-6-204, MCA, one count of felony sexual intercourse without consent, in violation of § 45-5-503, MCA, and one count of misdemeanor partner/family member assault, in violation of § 45-5-206, MCA. ¶9 Caswell filed a pre-trial motion in limine requesting the court, among other things, to exclude all evidence relating to the prior assault on March 26, 2009. The State resisted, arguing that this evidence “goes directly to the critical question as to whether or not there was consent to the sexual intercourse, and whether or not the victim was compelled to submit by force.” After conducting a hearing on the motion, the court orally ruled: I am going to permit . . . Ms. Caswell’s testimony about the 2009 assault on her and her treatment. I will permit the 9-1-1 call. I will not permit, without other foundation, the officers’ interviews, or her handwritten statement, her recorded statement, unless there is a foundation shown for them, that is her cross-examination, or if they are used in cross-examination to impeach her or something of that sort. I’ll permit the photographs that were taken immediately, well, that were taken in 2009 and taken in 2010, assuming there is a foundation for them, that is that they are accurate, etcetera. The District Court further clarified: “I think a fair reading of [State v. Eighteenth Jud. Dist. Ct., 2010 MT 263, 358 Mont. 325, 246 P.3d 415] is that so long as it goes to the issue of whether there was consent, and not simply to show — I mean, the Rule 404B restrictions are still in place because it is clear the State isn’t offering it as to show that he was acting in conformity with that character.” ¶10 Trial was held March 1-3, 2011. Caswell defended against the charges by asserting that he and Beth were on good terms, maintained frequent contact, and engaged 6 in consensual sex on the night in question. Beth testified about the 2009 incident, describing the argument she and Caswell had at that time and the injuries she sustained during the assault. The District Court issued limiting instructions under M. R. Evid. 105, instructing the jury: The State has offered evidence that the Defendant at another time engaged in another act against Beth Caswell. That evidence was not admitted to prove the character of the Defendant or to show he acted in conformity therewith. The only purpose of admitting that evidence was to show the basis of the complaining witness’s state of mind at the time of the alleged offense. You may not use that evidence for any other purpose. The Defendant is not being tried for that other act. He may not be convicted for any other offense than that charged in this case. For the jury to convict the Defendant of any other offense than that charged in this case may result in unjust double punishment of the Defendant. When the State referenced the 2009 incident during closing argument, the court interrupted to add: “[t]he instruction I gave you was that the earlier act by the Defendant was to be used only to show the basis of the complaining witness’s acts, or state of mind at the time of this offense, not against the Defendant.” ¶11 The jury found Caswell guilty of sexual intercourse without consent and partner/family member assault, and not guilty of burglary. After sentencing,1 Caswell filed a notice of appeal on September 9, 2011. While preparing the transcript for appeal, the court reporter discovered that approximately 15 to 20 minutes of Captain Pitman’s direct and cross-examination was not recorded by the substitute court reporter who had worked the trial. The District Court, sua sponte, ordered that the procedure under M. R. 1 Caswell was sentenced to 60 years in the Montana State Prison, without parole, for the sexual intercourse without consent conviction, and one year in the Lincoln County Detention Center for the partner/family member assault conviction, to run consecutively. 7 App. P. 8(7) (2011) be implemented, which provides for supplementation of the record “[i]f a trial or other proceeding was not reported in whole or in part, or if a transcript is otherwise unavailable.” The State filed a statement of recollection, citing the prosecutor’s handwritten trial notes, the recording log, exhibit logs, the partial transcript, and a consultation with Captain Pitman, to summarize the portion of his testimony that was not recorded. The State identified 30 photographs taken by Pitman that were admitted as exhibits during his direct examination. The State also summarized Caswell’s cross-examination of Pitman, including Pitman’s recollection of arresting Caswell after the 2009 incident, and the court’s admission of the arrest report from the 2009 incident. Caswell’s response, filed December 13, 2011, stated, “[a]fter an approximate nine month lapse in time, counsel for the defendant does not have any independent recollection of the specifics of the missing testimony. Defense counsel believes objections were made during the course of the arresting officer’s testimony but has no recollection of the district court’s rulings on any objections.” Caswell submitted a list of topics he believed were covered during the missing portion of Pitman’s cross-examination, including proof that Caswell was not drinking, was cooperative, was forthcoming, and that Ian and Beth had lied in their testimony and in their statements to law enforcement. ¶12 On January 9, 2012, the District Court issued its Order Adopting Statement of Unavailable Evidence under M. R. App. P. 8(7)(d), in which the court stated it had “examined the State’s Statement of Unavailable Evidence, the Defendant’s Response, the partial transcript of the available recorded testimony of Captain Bo Pitman, the recording 8 log, and the exhibits introduced into evidence at the trial.” Caswell filed an objection to the order, which was denied by the District Court. Caswell appeals. STANDARD OF REVIEW ¶13 “Whether a reconstructed record is of sufficient completeness to accord effective appellate review is a question which may be determined by this Court.” State v. Deschon, 2004 MT 32, ¶ 16, 320 Mont. 1, 85 P.3d 756 (Deschon II).2 Failure to record a proceeding will “mandate a reversal only if the absence of [the] proceeding is a substantial and significant omission from the record which cannot be adequately reconstructed.” Deschon II, ¶ 14 (quoting U.S. v. Cashwell, 950 F.2d 699, 704 (11th Cir. 1992)). Thus, we review this issue de novo as a matter of law. ¶14 A district court has broad discretion in determining whether evidence is relevant and admissible. State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811. We review a district court’s determination on the admissibility of evidence for an abuse of discretion. Derbyshire, ¶ 19; State v. Guill, 2010 MT 69, ¶ 21, 355 Mont. 490, 228 P.3d 1152. “A court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.” Derbyshire, ¶ 19 (citation omitted). When the court’s ruling is based on an interpretation of an evidentiary rule or statute, our review is de novo and we will review the district court’s conclusions to determine whether the court correctly interpreted the 2 Deschon II cites to former M. R. App. P. 9(f). The District Court followed M. R. App. P. 8(6) in this case, which superseded M. R. App. P. 9(f). See Or., In Re: Rules of Appellate Procedure, (Mont. July 3, 2007) (No. AF 07-0016). 9 law. State v. Sage, 2010 MT 156, ¶ 21, 357 Mont. 99, 235 P.3d 1284 (citing Derbyshire, ¶ 19). DISCUSSION ¶15 1. Was the defendant’s right to due process violated by the failure to record a portion of the State’s case in chief? ¶16 Caswell argues that crucial portions of Pitman’s testimony were not recorded, that “all that remains is, at best, a summary based on recollections cobbled together nine months after the testimony occurred,” and that “[w]ithout a complete record of this testimony – both direct and cross-examinations, effective appellate review is unavailable for know[n] errors and objections during trial.” Caswell argues that Pitman’s role in the present case as well as his testimony regarding the 2009 incident establishes prejudice because the current state of the record diminishes his ability to pursue his appeal. ¶17 The State argues that Caswell has not identified a tenable theory on appeal and Pitman did not provide any testimony that the State did not also present through other means. The State maintains that the testimony was adequately reconstructed and, based upon the entirety of the record, Caswell’s due process has not been violated. ¶18 Due process of law is guaranteed by the Fifth Amendment to the United States Constitution and Article II, Section 17 of the Constitution of the State of Montana. To determine when a court’s failure to record a portion of a criminal trial violates a defendant’s right to due process, we review two criteria: “(1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.” 10 State v. Deschon, 2002 MT 16, ¶ 26, 308 Mont. 175, 40 P.3d 391 (Deschon I) (quoting Britt v. North Carolina, 404 U.S. 226, 227, 92 S. Ct. 431, 434 (1971); Madera v. Risley, 885 F.2d 646, 648 (9th Cir. 1989)). ¶19 Under the first prong of the Britt test, the “value of the transcript to the defendant,” the defendant must identify a “tenable theory as to what the [recording] error might have involved.” Deschon I, ¶ 28; Madera, 885 F.2d at 648. In Deschon I, the defendant argued he needed a record of voir dire “to determine whether any of the jurors were prejudiced by pre-trial publicity,” which we determined was a “tenable theory” that satisfied the first prong of the Britt test. Deschon I, ¶ 28. In Madera, the Montana state district court “did not record the voir dire, opening statements, closing arguments, bench conferences, jury charge, or the jury poll.” Madera, 885 F.2d at 647. The Ninth Circuit Court of Appeals concluded that the defendant satisfied the first prong of the Britt test by his claim that he needed a complete record to determine whether his codefendant’s alibi defense provided him an appealable issue. Madera, 885 F.2d at 648.3 ¶20 Here, we likewise conclude that Caswell presents a “tenable theory” that he was prejudiced by lack of a record in light of Pitman’s testimony about the events at issue on the night in question, and about the 2009 incident between Caswell and Beth. This theory is directly related to Caswell’s second issue on appeal, in which Caswell argues that the District Court erred by permitting Pitman to testify regarding the 2009 incident. 3 The U.S. Magistrate conducted an evidentiary hearing to reconstruct the unrecorded portions of the transcript, which the Ninth Circuit Court of Appeals concluded was adequate and not a violation of due process. Madera, 885 F.2d at 648-49. 11 Caswell thus satisfies the first prong of the Britt test, “the value of the transcript to the defendant.” ¶21 The United States Supreme Court has identified several alternative devices that may be employed to fulfill the transcript function. These have been applied in conjunction with the second prong of the Britt test: Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge’s minutes taken during trial or on the court reporter’s untranscribed notes, or a bystander’s bill of exceptions might all be adequate substitutes, equally as good as a transcript. Draper v. Washington, 372 U.S. 487, 495, 83 S. Ct. 774, 779 (1963); Madera, 885 F.2d at 649. As we have likewise explained, “[a] reconstructed record, as opposed to a verbatim transcript, can afford effective appellate review, particularly where appellate rules have established a procedure for reconstruction of the trial record.” Deschon II, ¶ 13; Cashwell, 950 F.2d at 703. ¶22 M. R. App. P. 8 provides a method for reconstruction of the trial record in the event the transcript is unavailable. Correction or modification of the record. If any difference arises as to whether the record accurately discloses what occurred in the district court, the difference shall be submitted to and settled by the district court within the time provided for transmission of the record or within such time as the district court may for good cause permit, and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the district court, on motion of a party or upon its own motion, either before or after transmission of the record to the supreme court, may order that the omission or misstatement be corrected and, if 12 necessary, that a supplemental record be certified and transmitted. All other questions as to form and content of the record shall be presented to the supreme court. M. R. App. P. 8(6) (emphasis added). Supplementing this procedure, M. R. App. P. 8(7) provides that “a statement of the evidence of the trial, proceeding, or unavailable transcript may be prepared” by the parties filing “a statement of the unavailable evidence from the best available means including the party’s recollections. . . . This statement must specify the source or sources of the parties’ statements of evidence.” M. R. App. P. 8(7)(b). After examination of the parties’ statements, the district court must enter an order “adopting or rejecting, in whole or in part, the statement of unavailable evidence such that any statement adopted by the district court most accurately reflects the unavailable evidence.” M. R. App. P. 8(7)(d). If the unavailable evidence related to the missing portion of the record presents a “fair and accurate picture” when “taken as a whole,” the reconstructed transcript creates a record of sufficient completeness to assure that the defendant’s right to due process is not violated. Deschon II, ¶ 29. ¶23 The District Court invoked the procedure provided by these rules and the parties provided submissions about the missing record. In its order, the District Court cited “the State’s Statement of Unavailable Evidence, the Defendant’s Response, the partial transcript of the available recorded testimony of Captain Bo Pitman, the recording log, and the exhibits introduced into evidence at the trial” in determining that the portion of the trial omitted from the transcript had been adequately reconstructed. After review, we likewise conclude that the reconstructed record, when “taken as a whole,” presents a “fair 13 and accurate picture” of what occurred during the portion of Pitman’s testimony omitted from the trial transcript. The record is of sufficient completeness to afford effective appellate review, particularly of the admission of evidence regarding the 2009 incident. We thus conclude that Caswell’s right to due process was not compromised. Deschon II, ¶¶ 16, 29. ¶24 2. Did the District Court abuse its discretion by admitting evidence of the defendant’s prior assault of the victim? ¶25 In the District Court, Caswell argued that the evidence of his previous assault upon Beth should be excluded as irrelevant under M. R. Evid. 402, unfairly prejudicial under M. R. Evid. 403, and as raising an improper propensity inference under M. R. Evid. 404. Caswell echoes these arguments on appeal, and adds that “[r]egardless of its expressed intent in the use of the evidence, the State’s use of the prior assault extended far beyond the narrow purposes for which it was supposedly admitted,” and even if the evidence was properly admitted under M. R. Evid. 404(b), “its admission was still improper because its probative value into the supposedly limited purpose articulated by the State was substantially outweighed by the prejudice to Caswell.” ¶26 The State replies that the District Court did not err in admitting the evidence, citing Guill, ¶ 34, for the position that a defendant’s prior acts against a victim are relevant for the issue of consent where lack of consent is a necessary element of sexual intercourse without consent. The State also argues that evidence of the 2009 incident was relevant to show that Beth had a reasonable apprehension of bodily injury for purposes of the partner/family member assault charge. 14 ¶27 Generally, evidence of a defendant’s prior acts or crimes “is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” M. R. Evid. 404(b). Even if admissible for such purposes, such evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” M. R. Evid. 403 (see i.e. State v. Skinner, 163 Mont. 58, 64, 515 P.2d 81, 84 (1973)). Clarifying the procedure to be followed when admission of such evidence is an issue, we have instructed: [I]t is up to the defendant to identify any of the State’s evidence that she believes should be excluded as irrelevant (Rule 402), unfairly prejudicial (Rule 403), relevant only for an improper propensity inference (Rule 404), or inadmissible under some other rule, and to explain with argument and authority why the evidence should be excluded. This may be accomplished by means of a motion in limine. . . . The prosecutor will then be required to respond to the defendant’s objections and to demonstrate the evidence’s admissibility. The court should conduct a hearing and issue a written decision with appropriate findings of fact and conclusions of law. If the court determines that the evidence is admissible, the defendant may request an instruction under Rule 105. Eighteenth Jud. Dist. Ct., ¶ 49. ¶28 Caswell admitted to having sexual relations with Beth but claimed the relations were consensual, making Beth’s consent the central issue of the trial. The parties were married at the time and Caswell claimed they were getting along well and seeing each other often. Then, during the incident itself, Beth complied with Caswell’s demands to a limited degree because of her apprehension about what Caswell might do. The District 15 Court did not abuse its discretion in determining that this was an appropriate case for introduction of evidence of a previous assault on the issue of consent, and that the relevance of the evidence was not outweighed by unfair prejudice. Although Caswell argues the evidence was used beyond its stated purpose, the District Court limited the scope of the evidence about the 2009 incident, gave a limiting instruction to the jury under M. R. Evid. 105, and even interrupted the prosecutor’s closing argument to again advise the jury that the evidence could “be used only to show the basis of the complaining witness’s acts, or state of mind at the time of this offense, not against the Defendant.” The evidence was carefully limited in this case. ¶29 Procedurally, the District Court held a hearing on this issue but did not enter written findings of fact or conclusions of law. The better policy would be to adhere to the procedure suggested in Eighteenth Jud. Dist. Ct. and follow the hearing with “a written decision with appropriate findings of fact and conclusions of law.” Eighteenth Jud. Dist. Ct., ¶ 49. However, the District Court here clearly articulated the evidentiary boundaries and the transcript shows that both parties understood the limitations the court had placed on the State’s use of the evidence. ¶30 Affirmed. /S/ JIM RICE We concur: /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ BRIAN MORRIS | February 19, 2013 |
3256ee82-c023-41d2-96d6-16dc0b0cde89 | City v. Cantu | 2013 MT 40 | DA 12-0361 | Montana | Montana Supreme Court | DA 12-0361 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 40 CITY OF BOZEMAN, Plaintiff and Appellee, v. DAVID SKY CANTU, Defendant and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 12-1B Honorable Mike Salvagni, 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; Tammy A. Hinderman, Assistant Attorney General, Helena, Montana Susan Wordal, Bozeman City Attorney, Bozeman, Montana Submitted on Briefs: January 23, 2013 Decided: February 19, 2013 Filed: __________________________________________ Clerk February 19 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 David Sky Cantu was convicted of two misdemeanor sexual assaults, in violation of § 45-5-502, MCA, following pleas of guilty to both offenses in Bozeman Municipal Court. The Municipal Court deferred imposition of sentence for a period of two years on each charge, with the terms to run consecutively. Over Cantu’s objection, the Municipal Court imposed a condition of probation that required Cantu to obtain a psychosexual evaluation and to follow through with “a minimum of 6 months of therapy unless sooner released by the counselor/therapist.” Cantu appealed to the Eighteenth Judicial District Court, Gallatin County, challenging the Municipal Court’s imposition of this condition, as well as a second condition not at issue in this appeal.1 The District Court upheld the requirement that Cantu undergo a psychosexual evaluation and receive counseling. Cantu now appeals to this Court. We affirm. ¶2 Cantu raises the following issues on appeal: ¶3 1. Whether the Municipal Court exceeded its statutory authority by requiring Cantu to obtain a psychosexual evaluation as a condition of probation following his conviction for two misdemeanor sexual assaults. ¶4 2. Whether the Municipal Court imposed an unreasonable condition of probation by requiring Cantu to obtain a psychosexual evaluation following his conviction for two misdemeanor sexual assaults. 1 The Municipal Court also imposed a probation condition that required Cantu to disclose all of his Internet passwords. The District Court determined that this condition was overly broad, unduly punitive, and exceedingly tenuous, and the District Court thus reversed this portion of the Municipal Court’s sentence. The State has not appealed that ruling; accordingly, review of this condition is not before this Court. 3 FACTUAL AND PROCEDURAL BACKGROUND ¶5 On September 7, 2011, Cantu was riding his longboard outside the Gallatin Valley Mall while he waited for his bus to arrive. He saw a “pretty lady” and decided to ride past her and grab her buttocks. The following day, Cantu was riding his bicycle in downtown Bozeman when he saw another woman and decided to ride past her and grab her breast. As a result of these incidents, Cantu was charged in the Municipal Court with two counts of misdemeanor sexual assault, in violation of § 45-5-502, MCA (2009). Cantu pleaded guilty to both charges.2 The Municipal Court set sentencing for December 8, 2011. ¶6 At the sentencing hearing, the Municipal Court heard testimony from one of the victims, as well as Cantu’s mother and step-grandfather. Cantu’s mother explained that Cantu had a very difficult past year due to the breakup of his mother and stepfather. Moreover, in February 2011, when Cantu was 17 years old, his mother had him admitted to Shodair Children’s Hospital for treatment of “stress.” Cantu spent two weeks at the hospital. ¶7 The prosecutor asked that a condition be imposed on Cantu’s sentence requiring him to obtain a psychosexual evaluation. The prosecutor explained that Cantu might benefit from specialized treatment given the sexual nature of the offenses, the fact that Cantu had committed two such offenses in quick succession, his age, and the fact that 2 At the time of the second offense, Cantu was carrying a bag which contained a small amount of marijuana. He was charged with one count of misdemeanor criminal possession of dangerous drugs, in violation of § 45-9-102, MCA, and pleaded guilty to this charge as well. His conviction and sentence on the drug offense are not at issue in this appeal. 4 Cantu apparently was having difficulty dealing with stressors in his life. The prosecutor noted that Cantu’s recent admission to Shodair indicated that he was suffering from mental health issues. Neither the prosecutor nor the Municipal Court, however, had received any information regarding the results of Cantu’s evaluation, diagnosis, or treatment plan. The prosecutor asked that Cantu first be assessed by a professional who could determine what type of therapy, if any, was needed. Cantu objected to any condition that he obtain a psychosexual evaluation. ¶8 As a result of the testimony and argument presented at the sentencing hearing, the Municipal Court imposed a deferred sentence of two years on each sexual assault offense, to run consecutively. The Municipal Court also committed Cantu to jail for ten days on each offense, to run concurrently, in order “to emphasize to you the gravity of the situation, and the pain that you have caused [the victims].” Finally, the Municipal Court imposed a number of probation conditions, including the following: 8) The defendant shall obtain: a. A chemical dependency evaluation (concurrent with required evaluation from ADSGC for PODD conviction) b. A psycho-sexual evaluation and a minimum of 6 months of therapy unless sooner released by the counselor/therapist at the defendant’s own expense and shall follow all recommendations, if requested by the supervising officer. 9) The defendant shall execute a waiver for his counselor/therapist to allow the counselor/therapist to communicate to the Court and/or Defendant’s Probation Officer with regard to his attendance and compliance with all required therapy. 10) The defendant shall participate in any other counseling or treatment deemed appropriate by the supervising officer. 5 ¶9 Cantu appealed his sexual assault sentences to the District Court. As noted, the District Court affirmed the Municipal Court’s imposition of Condition 8b. Cantu appeals that decision. STANDARDS OF REVIEW ¶10 On Cantu’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 Cantu’s appeal to this Court, we review the case as if the appeal originally had been filed in this Court. State v. Ellison, 2012 MT 50, ¶ 8, 364 Mont. 276, 272 P.3d 646 (citing Stanley v. Lemire, 2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643). We examine the record independently of the district court’s decision, applying the appropriate standard of review. Ellison, ¶ 8. ¶11 The challenge in the present case is to a criminal sentence. With two narrow exceptions, our review of criminal sentences is for legality only. State v. Hafner, 2010 MT 233, ¶ 13, 358 Mont. 137, 243 P.3d 435; State v. Lewis, 2012 MT 157, ¶ 13, 365 Mont. 431, 282 P.3d 679. Under the first exception, if a defendant is sentenced to serve less than one year of actual incarceration, we review the sentence both for legality and for abuse of discretion. Hafner, ¶ 13; State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490, 87 P.3d 1017. Under the second exception, if a defendant challenges a sentencing condition, we first review the condition’s legality, and then review for an abuse of discretion the condition’s reasonableness under the particular facts of the case. Hafner, ¶ 13; State v. Ashby, 2008 MT 83, ¶ 9, 342 Mont. 187, 179 P.3d 1164. Because Cantu challenges a condition on his deferred sentence, the second exception applies here. 6 DISCUSSION ¶12 Issue 1. Whether the Municipal Court exceeded its statutory authority by requiring Cantu to obtain a psychosexual evaluation as a condition of probation following his conviction for two misdemeanor sexual assaults. ¶13 Upon a defendant’s conviction of one or more felony offenses, the district court is required to direct the probation and parole officer to make a presentence investigation report, which the court is then required to consider prior to sentencing, unless the court makes a finding that the report is unnecessary. Section 46-18-111(1)(a), (2) MCA. In the event the defendant was convicted of certain offenses listed in subsection (1)(b) of the statute, the presentence investigation “must include a psychosexual evaluation of the defendant and a recommendation as to treatment of the defendant in the least restrictive environment . . . .” Section 46-18-111(1)(b), MCA. Finally, if the defendant was convicted of a misdemeanor, the statute provides that the district court may order a presentence investigation “only if the defendant was convicted of a misdemeanor that the state originally charged as a sexual or violent offense as defined in 46-23-502.” Section 46-18-111(2), MCA. ¶14 Cantu contends that the psychosexual evaluation required by § 46-18-111(1)(b), MCA, is a legislative creation intended to assist the court in sentencing felony offenders or, in the case of misdemeanors, only those misdemeanor offenders who were charged with a sexual or violent offense as defined in § 46-23-502, MCA. Cantu argues that because his offenses do not fall into either category, the Municipal Court lacked statutory authority to order a psychosexual evaluation. The State, on the other hand, cites 7 §§ 46-18-201(4) and -202(1), MCA, as authority for the Municipal Court to order a psychosexual evaluation. We agree with the State. ¶15 When deferring imposition of sentence, the sentencing judge may impose upon the offender “any reasonable restrictions or conditions” during the period of the deferred imposition of sentence. Section 46-18-201(4), MCA. These include the restrictions and conditions specifically enumerated in §§ 46-18-201(4) and -202(1), MCA, plus “any other reasonable restrictions or conditions considered necessary for rehabilitation or for the protection of the victim or society.” Section 46-18-201(4)(p), MCA; accord § 46-18-202(1)(g), MCA (“any other limitation reasonably related to the objectives of rehabilitation and the protection of the victim and society”).3 ¶16 Cantu misinterprets § 46-18-111(1)(b), MCA—which is a statutory directive that a psychosexual evaluation must be prepared in conjunction with a presentence investigation in certain cases—as a limitation on the sentencing court’s authority to impose restrictions and conditions designed to maximize the prospects of rehabilitation and the protection of the victim and society. A similar argument was made and rejected by this Court in State v. Leyva, 2012 MT 124, ¶ 19, 365 Mont. 204, 280 P.3d 252 (“Leyva misinterprets a statutory directive for a particular condition as a proscription against the court’s discretionary authority to impose such a condition.”). Section 3 At the time Cantu committed the instant offenses, § 46-18-201(4)(p), MCA (2011), was codified at § 46-18-201(4)(o), MCA (2009), and § 46-18-202(1)(g), MCA (2011), was codified at § 46-18-202(1)(f), MCA (2009). The 2011 Montana Legislature inserted new subsections into both statutes, but no substantive changes were made to subsections -201(4)(o) and -202(1)(f). Accordingly, for ease of reference, we will refer to the current designations of these subsections, i.e., §§ 46-18-201(4)(p) and -202(1)(g), MCA. 8 46-18-111(1)(b), MCA, requires that a psychosexual evaluation be ordered when the defendant is convicted of an enumerated felony offense, but it does not prevent a court from ordering the evaluation for offenses other than those that are specifically enumerated. ¶17 Nevertheless, Cantu points out that, with respect to misdemeanors, “[t]he district court may order a presentence investigation . . . only if the defendant was convicted of a misdemeanor that the state originally charged as a sexual or violent offense as defined in 46-23-502.” Section 46-18-111(2), MCA (emphasis added). Cantu notes that his offenses were neither sexual nor violent as defined under § 46-23-502, MCA. We are not persuaded, however, that the limitation in § 46-18-111(2), MCA, on a district court’s authority to order “a presentence investigation” in misdemeanor cases is also a limitation on the district court’s authority to order “a psychosexual evaluation” in misdemeanor cases. See § 1-2-101, MCA (“In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.”). On this point, we agree with the State’s argument that § 46-18-111(2), MCA, does not categorically prohibit a court, in imposing sentence on a defendant convicted of a misdemeanor, from ordering a psychosexual evaluation as a condition of a deferred sentence in order to determine what type and how much treatment is necessary for his rehabilitation. Cf. Leyva, ¶ 19 (“That the Legislature has mandated certain conditions of probation for persons convicted of prescribed sex offenses does not limit the otherwise broad discretion of a sentencing court under §§ 46-18-201 and -202, MCA.”). 9 ¶18 It is well established that a court does not have the power to impose a sentence unless authorized by a specific grant of statutory authority. State v. Guill, 2011 MT 32, ¶ 58, 359 Mont. 225, 248 P.3d 826. “A sentencing condition is illegal if the sentencing court lacked statutory authority to impose it, if the condition falls outside the parameters set by the applicable sentencing statutes, or if the court did not adhere to the affirmative mandates of the applicable sentencing statutes.” State v. Heddings, 2008 MT 402, ¶ 11, 347 Mont. 169, 198 P.3d 242. Here, §§ 46-18-201(4) and -202(1), MCA, authorize the sentencing judge to impose reasonable restrictions or conditions. We conclude that, pursuant to this authority, the court may order a psychosexual evaluation of the defendant when necessary to obtain the objectives of rehabilitation or the protection of the victim or society. Sections 46-18-201(4)(p), -202(1)(g), MCA. The only question remaining is whether the restriction is reasonable on the particular facts of this case. ¶19 Issue 2. Whether the Municipal Court imposed an unreasonable condition of probation by requiring Cantu to obtain a psychosexual evaluation following his conviction for two misdemeanor sexual assaults. ¶20 District courts are afforded broad discretion in fashioning a criminal sentence. Herd, ¶ 18. That discretion, however, is not without limitation. State v. Zimmerman, 2010 MT 44, ¶ 17, 355 Mont. 286, 228 P.3d 1109. A sentencing condition must be reasonably related to the objectives of rehabilitation or the protection of the victim or society. Sections 46-18-201(4)(p), -202(1)(g), MCA. A condition meets this standard so long as it has a nexus either to the offense for which the offender is being sentenced or to the offender himself. Ashby, ¶ 15. Offender-related conditions are appropriate where “the history or pattern of conduct to be restricted is recent, and significant or chronic.” 10 Ashby, ¶ 15. A passing, isolated, or stale instance of behavior or conduct will be insufficient to support a restrictive probation condition imposed in the name of offender rehabilitation. Ashby, ¶ 15. We will reverse the imposition of a sentencing condition that is “overly broad” or “unduly punitive,” or where the required nexus is “absent or exceedingly tenuous.” Zimmerman, ¶ 17; see also Herd, ¶ 25; State v. Muhammad, 2002 MT 47, ¶ 28, 309 Mont. 1, 43 P.3d 318. ¶21 Here, given the significant discretion in sentencing granted by §§ 46-18-201(4) and -202(1), MCA, we cannot conclude that the Municipal Court abused its discretion in requiring Cantu to obtain a psychosexual evaluation. The offenses for which the Municipal Court was fashioning a sentence were sexual assaults. There was evidence supporting the Municipal Court’s concerns regarding Cantu’s mental health and emotional stability. The Municipal Court was required under the sentencing statutes to fashion a sentence that would address Cantu’s need for counseling and rehabilitation, while additionally protecting the victim and the community by ensuring that Cantu received help and did not reoffend. A psychosexual assessment or evaluation was a reasonable first step in developing a counseling or treatment plan that addressed rehabilitation. The condition requiring Cantu to obtain a psychosexual evaluation was both reasonable and related to the offender and the offense. The Municipal Court did not abuse its discretion by requiring Cantu to obtain the psychosexual evaluation. ¶22 Cantu asserts that he will face “potential unintended consequences,” such as a requirement that he register as sexual offender or the prospect that he may be branded with a tier-level designation (see § 46-23-509, MCA). Cantu misunderstands the nature 11 of the evaluation. The Municipal Court simply ordered that Cantu be evaluated by a professional with the education and experience necessary to determine whether sexual offender treatment, or some other type of mental health treatment, would best serve Cantu’s rehabilitation and reduce the potential of reoffending in the future. A sentencing court may not attach a sexual offender tier-level designation or registration requirement to a conviction absent statutory authority. State v. Holt, 2011 MT 42, ¶¶ 20-21, 359 Mont. 308, 249 P.3d 470; In re T.M.L., 2012 MT 9, ¶¶ 18-19, 363 Mont. 304, 268 P.3d 1255. A requirement to register as a sexual offender and receive an offender-level designation may be imposed only on persons convicted of particular sexual offenses, as defined in § 46-23-502(9), MCA. Holt, ¶¶ 20-21; T.M.L., ¶¶ 18-19. Registration is also allowed for an offense that is not included in § 46-23-502(9), MCA, if the individual agrees to the registration requirement as part of a plea agreement. Section 46-23-512, MCA; T.M.L., ¶ 18. The present case does not fall into any of these categories. We therefore are not persuaded that the unintended consequences to which Cantu refers renders the imposition of Condition 8b unreasonable in this case. CONCLUSION ¶23 We affirm the District Court in its decision upholding the Municipal Court’s imposition of the condition that Cantu obtain a psychosexual evaluation. ¶24 Affirmed. /S/ LAURIE McKINNON 12 We Concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ JIM RICE /S/ BRIAN MORRIS | February 19, 2013 |
848125d6-809a-48b6-84ea-6aeda1554f9c | Kelker v. Geneva-Roth Ventures, Inc. | 2013 MT 62 | DA 12-0313 | Montana | Montana Supreme Court | DA 12-0313 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 62 TIFFANY KELKER, Plaintiff and Appellee, v. GENEVA-ROTH VENTURES, INC., d/b/a LOAN POINT USA, and MARK CURRY, Defendants and Appellants APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 11-1355 Honorable Russell C. Fagg, Presiding Judge COUNSEL OF RECORD: For Appellants: Peter F. Habein, Monique P. Stafford, Crowley Fleck PLLP, Billings, Montana For Appellee: John Heenan, Bishop & Heenan, Billings, Montana Submitted on Briefs: November 21, 2012 Decided: March 12, 2013 Filed: __________________________________________ Clerk March 12 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Tiffany Kelker (Kelker) submitted an online application for a payday loan with Geneva-Roth Ventures, Inc. (Geneva-Roth). Geneva-Roth charged Kelker an interest rate of 780% APR. The Loan Agreement, which Kelker signed electronically, contained an arbitration clause. Kelker brought a putative class action against Geneva-Roth for charging an interest rate higher than the 36% APR permitted by the Montana Consumer Loan Act for payday loans, § 32-5-301, MCA. Geneva-Roth filed a motion to compel arbitration pursuant to the arbitration clause in the Loan Agreement. The District Court deemed the arbitration clause unenforceable and denied Geneva-Roth’s motion. Geneva-Roth appeals. ¶2 Geneva-Roth raises the following issue on appeal: ¶3 Whether the District Court should have compelled arbitration pursuant to the arbitration clause in the loan agreement. PROCEDURAL AND FACTUAL BACKGROUND ¶4 Kelker, a Montana resident, submitted an online application at Geneva-Roth’s website, www.loanpointusa.com, for a $600 “payday loan” on January 14, 2011. Geneva-Roth, a non-resident of Montana, charged Kelker an interest rate of 780% APR. Geneva-Roth ultimately withdrew electronically over $1,800 in interest charges from Kelker’s bank account. ¶5 To complete her loan application, Kelker clicked on a box that stated that she had read, understood, and agreed to be bound by the terms of the Loan Agreement, and that she understood that by typing in her name in a separate box, she was electronically 3 signing her loan application. The full text of the eight-page Loan Agreement was not visible on Kelker’s computer screen unless she scrolled down. The Loan Agreement included a clause to compel arbitration for “any claim, dispute, or controversy” that arose out of the agreement. Geneva-Roth used bold font and all capital letters to draw attention to certain provisions of the Loan Agreement. Geneva-Roth did not highlight the arbitration clause in this manner. ¶6 The disputes purportedly governed by the arbitration clause include “the validity of this agreement to arbitrate disputes.” Geneva-Roth agreed to waive the “[c]ustomer’s arbitration fees” in the event that the customer could not afford to pay them. The arbitration clause provides no guidance, however, as to the standard to employ to make this determination or who would be empowered to make this determination. The clause further provides that any arbitration hearing would “take place at a location near Customer’s residence.” The clause provides no guidance as to what constitutes “near.” ¶7 Kelker brought a putative class action in which she alleges that the 780% interest rate charged by Geneva-Roth violated the Montana Consumer Loan Act, § 32-5-301, MCA. Kelker also claimed that the loan itself was unconscionable, that Geneva-Roth had engaged in unfair, deceptive, or fraudulent practices in making and collecting on the loan, that Geneva-Roth had failed to provide the disclosures required under the Montana Consumer Loan Act, and that Geneva-Roth had engaged in business in Montana without a valid license. 4 ¶8 Geneva-Roth sought to compel arbitration pursuant to the arbitration clause in the Loan Agreement. The District Court deemed the arbitration clause unenforceable and denied Geneva-Roth’s motion to compel arbitration. Geneva-Roth appeals. We affirm. STANDARD OF REVIEW ¶9 We review de novo a district court’s order to compel arbitration. Mardsen v. Blue Cross & Blue Shield of Mont., Inc., 2012 MT 306, ¶ 8, 368 Mont. 34, 291 P.3d 1229; Solle v. Western States Ins. Agency, 2000 MT 96, ¶ 8, 299 Mont. 237, 999 P.2d 328. DISCUSSION ¶10 Whether the District Court should have compelled arbitration pursuant to the arbitration clause in the Loan Agreement. ¶11 Agreements to arbitrate generally represent valid and enforceable contracts under Montana law. Kortum-Managhan v. Herbergers NBGL, 2009 MT 79, ¶ 15, 349 Mont. 475, 204 P.3d 694; § 27-5-114, MCA. Federal policy similarly places arbitration agreements on equal footing with other contracts. 9 U.S.C. § 2; AT&T Mobility LLC v. Concepcion, ___ U.S. ___, 131 S. Ct. 1740, 1745 (2012). The Federal Arbitration Act (FAA) governs contracts that involve interstate commerce. 9 U.S.C. § 2; Perry v. Thomas, 482 U.S. 483, 489, 107 S. Ct. 2520, 2525 (1987). ¶12 The U.S. Supreme Court has clarified that, under the FAA, when a party challenges the validity of a contract as a whole, an arbitrator should resolve that dispute in the first instance. Nitro-Lift Techs., L.L.C. v. Howard, ___ U.S. ___, 133 S. Ct. 500, 503 (2012). When a party challenges the validity of the arbitration clause in a contract, however, a court may resolve that dispute in the first instance. Nitro-Lift, ___ U.S. ___, 5 133 S. Ct. at 503. In reviewing the validity of the arbitration clause, however, a state court must apply state law that arose to govern the validity, revocability, and enforceability of contracts generally. Kortum-Managhan, ¶ 17; Concepcion, ___ U.S. at ___, 131 S. Ct. at 1746. ¶13 Kelker challenges both the validity of the arbitration clause of the Loan Agreement and the validity of the entire Loan Agreement. We consider only Kelker’s challenge to the arbitration clause of the Loan Agreement. A party cannot be forced to arbitrate a dispute that she has not agreed to submit to arbitration. State ex rel. Bullock v. Philip Morris, Inc., 2009 MT 261, ¶ 15, 352 Mont. 30, 217 P.3d 475. A court should first determine whether the parties agreed to arbitrate a matter. Bullock, ¶ 15; Solle, ¶ 22. ¶14 Kelker contends that generally applicable Montana contract law renders the arbitration clause unenforceable. Kelker relies on Kortum-Managhan in urging this Court to find the arbitration clause unenforceable. Geneva-Roth concedes that this Court can determine the validity of the arbitration clause itself. Geneva-Roth argues, however, that the arbitration agreement cannot be deemed invalid under generally applicable Montana contract law. Geneva-Roth further argues that Concepcion changed the way that the U.S. Supreme Court interpreted the FAA, and, therefore, pre-empted our analysis of the FAA set forth in Kortum-Managhan. ¶15 Concepcion struck down the California “Discover Bank” rule that deemed unconscionable all arbitration clauses that prevented class actions. Concepcion, ___ U.S. at ___, 131 S. Ct. at 1746. The Court determined that the FAA preempted state law rules, such as the “Discover Bank” rule, that prohibit outright the arbitration of a particular type 6 of claim. Concepcion, ___ U.S. at ___, 131 S. Ct. at 1747. The Court specifically reiterated, however, that the FAA preserves “generally applicable contract defenses, such as fraud, duress, or unconscionability.” Concepcion, ___ U.S. at ___, 131 S. Ct. at 1746, citing Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687, 116 S. Ct. 1652, 1656 (1996). The Court also cited Doctor’s Associates for the proposition that these generally applicable contract formation defenses cannot be available solely to challenge an arbitration clause, or derive their meaning from the fact that an agreement to arbitrate is at issue. Concepcion, ___ U.S. at ___, 131 S. Ct. at 1746. ¶16 We recognized in Kortum-Managhan that the FAA permits this Court to apply only law that arose “to govern issues concerning the validity, revocability, and enforceability of contracts generally” to determine the validity of an arbitration clause. Kortum-Managhan, ¶ 17. The Court also cited Doctor’s Associates in Kortum-Managhan for this same proposition. Kortum-Managhan, ¶ 17. Concepcion restated the law on which this Court relied in Kortum-Managhan: that generally applicable contract law governs the validity of an arbitration clause. Concepcion, ___ U.S. at ___, 131 S. Ct. at 1746. Accordingly, Concepcion did not alter the U.S. Supreme Court’s interpretation of the FAA in any manner that would invalidate our analysis in Kortum-Managhan. Generally Applicable Defense to Contract Formation ¶17 Geneva-Roth next argues that this Court applied to the arbitration clause in Kortum-Managhan a contract formation defense available solely to challenge an arbitration clause in violation of Concepcion. We stated in Kortum-Managhan that 7 generally applicable contract law provides that an adhesion contract “will not be enforced against the weaker party if it is (1) not within their reasonable expectations, or (2) within their reasonable expectations, but, when considered in its context, proves unduly oppressive, unconscionable or against public policy.” Kortum-Managhan, ¶ 23. ¶18 Although we list them separately, our “reasonable expectation” analysis represents a subset of whether a contract is “unconscionable.” The subset of unconscionability based on reasonable expectations focuses on whether a party understood the contract. Highway Specialties, Inc. v. State, 2009 MT 253, ¶¶ 16-17, 351 Mont. 527, 215 P.3d 667. Even if a party fully understood the terms, however, a contract still can be unconscionable if the terms are too one-sided or oppressive. Highway Specialties, ¶ 12. ¶19 We discuss the interplay between unconscionability and reasonable expectations in Highway Specialties, where we analyzed for unconscionability a contractual provision for liquidated damages. The test for unconscionability involves a two-step inquiry: whether the contract qualifies as a contract of adhesion, and whether the contract unreasonably favored the drafter. Highway Specialties, ¶ 12. The “unreasonably favorable to the drafter” analysis includes an inquiry into “whether the provision was within the reasonable expectations of, or unduly oppressive to, the weaker party.” Highway Specialties, ¶ 16. ¶20 We apply the same test that we applied in Kortum-Managhan when we consider the unconscionability of contracts generally, not solely when a contract includes an arbitration clause. We applied this analysis in Highway Specialties when we considered the unconscionability of a contract provision for liquidated damages. Highway 8 Specialties, ¶ 12. We again applied this test when we considered the unconscionability of a contract provision for liquidated damages in a lease in Summers v. Crestview Apts., 2010 MT 164, 357 Mont. 123, 236 P.3d 586. We reiterated in Summers that unconscionability requires a two-fold determination: “that the contractual terms are unreasonably favorable to the drafter and that there is no meaningful choice on the part of the other party regarding acceptance of the provisions.” Summers, ¶ 22. The “reasonable expectations” analysis that we used in Kortum-Managhan derives directly from generally applicable contract law rather than any unique law applicable only to arbitration agreements. ¶21 We consider the same factors when we analyze for unconscionability a contractual provision for arbitration as we do when we analyze for unconscionability a contract. Kortum-Managhan, ¶ 27; Kelly v. Widner, 236 Mont. 523, 528, 771 P.2d 142, 145 (1989). We listed in Kortum-Managhan a number of factors that a court should consider in determining whether a contractual provision proves unconscionable for being outside a party’s reasonable expectations. These factors include whether the waiver clause was conspicuous and explained the consequences of the provision (e.g. waiver of the right to trial by jury and right of access to the courts); whether a disparity existed in the bargaining power of the contracting parties; whether a difference in business experience and sophistication of the parties existed; whether the party charged with the waiver was represented by counsel at the time the agreement was executed; whether economic, social or practical duress compelled a party to execute the contract; whether the parties actually 9 signed the agreement or separately initialed the waiver provision; and whether the waiver clause was ambiguous or misleading. Kortum-Managhan, ¶ 27. ¶22 The factors that we consider in evaluating a claim of unconscionability for an arbitration clause reflect the contract law of unconscionability generally. Kortum-Managhan, ¶ 27; Kelly, 236 Mont. at 528, 771 P.2d at 145; West v. Club at Spanish Peaks, L.L.C., 2008 MT 183, ¶ 53, 343 Mont. 434, 186 P.3d 1228; Fitzgerald v. Aetna Ins. Co., 176 Mont. 186, 190-91, 577 P.2d 370, 372 (1978). Corbin on Contracts recognizes that the existence of many of the factors that we analyze in Kortum-Managhan can render a contract unconscionable. 7-29 Corbin on Contracts § 29.4. These elements include a lack of meaningful choice, a contract offered on a take it or leave it basis, and a party that lacks sophistication. Kortum-Managhan, ¶ 27; 7-29 Corbin on Contracts § 29.4. ¶23 The Court applied these same factors in Kelly in considering whether a contract was unconscionable. Kelly had been seriously injured in an automobile accident. The insurance adjuster offered, and Kelly accepted, a small settlement in return for her release of claims. Kelly later challenged the release contract on grounds of unconscionability. Kelly, 236 Mont. at 527, 771 P.2d at 144-45. ¶24 The Court noted that the principle “of doing justice under the circumstances of each case” underlies the unconscionability analysis. Kelly, 236 Mont. at 528, 771 P.2d at 145. The Court further recognized that unconscionability lacks “a succinct or precise definition.” Kelly, 236 Mont. at 528, 771 P.2d at 145. The Court listed elements, however, that may indicate unconscionability. Kelly, 236 Mont. at 528, 771 P.2d at 145. 10 These elements include unequal bargaining power of the parties, lack of meaningful choice, oppression, and exploitation of the weaker party’s vulnerability or lack of sophistication. Kelly, 236 Mont. at 528, 771 P.2d at 145. The Court further cited J. Calamari and J. Perillo, The Law of Contracts § 56 (1970) for this same proposition. The Court examined Kelly’s dire financial situation, her lack of education, and her lack of legal advice as factors that made her vulnerable to exploitation. Kelly, 236 Mont. at 528, 771 P.2d at 145. ¶25 This Court also considers whether ambiguities exist in all contracts, including contracts that contain arbitration clauses. Club at Spanish Peaks, ¶ 53; Fitzgerald, 176 Mont. at 190-91, 577 P.2d at 372; Riehl v. Cambridge Court GF, LLC, 2010 MT 28, ¶¶ 28-30, 355 Mont. 161, 226 P.3d 581. We recognized that “an ambiguity exists where the language of a contract, as a whole, reasonably is subject to two different interpretations.” Club at Spanish Peaks, ¶ 53; see also Riehl, ¶ 26 (quoting Club at Spanish Peaks while analyzing an arbitration clause for ambiguity). If the court determines a contract has ambiguous terms, the court interprets the contract “most strongly” against the party who drafted it. Club at Spanish Peaks, ¶ 53. ¶26 The Court considered whether a car insurance contract contained an ambiguity in Fitzgerald. The insurance policy covered only automobiles not owned in whole or in part by the insured party. The insurance policy provided coverage for “hired automobiles.” Fitzgerald, 176 Mont. at 190, 577 P.2d at 372. A dispute arose over the scope of the policy’s coverage when the insured owned the trailer component of the tractor-trailer 11 involved in the accident. The insured party hired the tractor component of the tractor-trailer. ¶27 The Court determined that the entire tractor-trailer constituted one automobile. The Court further determined that the provision in the contract regarding the scope of coverage created an ambiguity. The contractual language could be interpreted to exclude coverage where the insured partially owned the automobile. The contract could be construed, in contrast, to provide coverage where the insured partially rented the automobile. Fitzgerald, 176 Mont. at 190-91, 577 P.2d at 372. The Court construed the ambiguity in the contract against the insurance company that had drafted the contract. The Court determined that the contract, interpreted against the drafter, provided coverage for the entire tractor-trailer involved in the accident. Fitzgerald, 176 Mont. at 191, 577 P.2d at 372. ¶28 This Court uses the same test and analyzes the same factors for possible unconscionability of arbitration clauses as we use to analyze the possible unconscionability of contracts generally. Kortum-Managhan, ¶ 27; Highway Specialties, ¶ 12; Summers, ¶ 22; Kelly, 236 Mont. at 528, 771 P.2d at 145; Club at Spanish Peaks, ¶ 53; Fitzgerald, 176 Mont. at 190-91, 577 P.2d at 372; Riehl, ¶¶ 26-30. Enforceability of the Arbitration Clause ¶29 We evaluate the arbitration clause in the Loan Agreement to determine whether the arbitration clause was unconscionable under generally applicable Montana contract law. A contract is unconscionable if it is a contract of adhesion and the contractual terms unreasonably favor the drafter. Highway Specialties, ¶ 12. We consider whether the 12 contractual terms fell within Kelker’s reasonable expectations as we analyze whether the contractual terms unreasonably favor the drafter. Highway Specialties, ¶ 12. ¶30 We first look to whether the loan agreement constitutes a contract of adhesion. A contract of adhesion involves a standard form contract prepared by one party, to be signed by a weaker party who has little choice about the terms. Woodruff v. Bretz, Inc., 2009 MT 329, ¶ 8, 353 Mont. 6, 218 P.3d 486. A contract of adhesion arises when the stronger party gives the weaker party a choice either to accept, or to reject, the contract without the opportunity to negotiate its terms. Woodruff, ¶ 8. ¶31 No doubt exists that Geneva-Roth afforded Kelker no opportunity to negotiate the terms of the contract. Geneva-Roth presented Kelker with a contract on the Internet. Kelker either could accept or reject the standardized agreement. Geneva-Roth afforded Kelker no meaningful choice whether to accept any particular terms, including the arbitration provision. Woodruff, ¶ 8. The Loan Agreement qualifies as a contract of adhesion under these circumstances. Woodruff, ¶ 8. ¶32 The fact that the contract qualifies as one of adhesion does not by itself render the arbitration clause unconscionable. Woodruff, ¶ 13. We now must assess whether the arbitration clause unreasonably favors Geneva-Roth, including whether the arbitration clause fell outside Kelker’s reasonable expectations. Highway Specialties, ¶ 12. ¶33 We consider the totality of the Kortum-Managhan factors in determining whether the arbitration clause fell within Kelker’s reasonable expectations. Kortum-Managhan, ¶ 27; Kelly, 236 Mont. at 528, 771 P.2d at 145. The District Court determined that nearly all of these factors weigh against enforcement of the arbitration clause. We agree. 13 ¶34 Kelker presented undisputed evidence in her affidavit that she did not understand the arbitration agreement. Nothing conspicuous denotes the arbitration clause. No bold or capital letters highlight the arbitration clause. Geneva-Roth highlighted several other sections of the Loan Agreement with bold or capital letters. Kelker alleges in her undisputed affidavit that no one explained the arbitration clause. ¶35 In fact, Kelker entered the contract over the Internet with no contact with any employees or representatives of Geneva-Roth. Cf. Kluver v. PPL Mont., LLC, 2012 MT 321, ¶ 26, 368 Mont. 101, 293 P.3d 817 (noting that proposed electronic memorandum had been “reviewed and approved by the parties and their counsel”). Kelker signed the Loan Agreement as a whole. She did not separately sign or initial the arbitration clause. No counsel represented Kelker when she signed the arbitration agreement. See Kelly, 236 Mont. at 528, 771 P.2d at 145 (determining that Kelly’s lack of legal advice represented an important factor in finding the contract unconscionable). ¶36 Kelker asserts further that a difference in business experience and sophistication of the parties existed at the time that she executed the Loan Agreement. Geneva-Roth has presented no evidence to suggest that Kelker qualifies as a sophisticated party with significant business experience. Further, it appears that economic duress compelled Kelker to enter into this contract for a $600 payday loan with a 780% APR. See Kelly, 236 Mont. at 528, 771 P.2d at 145 (determining that Kelly’s dire financial situation and her lack of education represented important factors in finding the contract unconscionable). 14 ¶37 Ambiguities also plague the arbitration clause. The sentence before the arbitration clause provides that the Loan Agreement “does not constitute a waiver of any of Customer’s rights to pursue a claim individually.” The arbitration clause follows immediately. The arbitration clause indicates that the parties agree “to arbitrate disputes.” The arbitration clause further purports to give the consumer notice that “[w]ithout this arbitration agreement, both parties have the right to litigate disputes through the law courts but we have agreed instead to resolve disputes through binding arbitration.” These two clauses, that the consumer does not waive any of her rights, and that the consumer waives her right to litigation in court, cannot easily be reconciled. Kortum-Managhan, ¶ 27; Riehl, ¶¶ 26-30. The language gives rise to two reasonable interpretations: that Kelker maintained all of her rights, including her right to a trial, or that Kelker gave up her right to a trial and must submit to arbitration. Club at Spanish Peaks, ¶ 53; Fitzgerald, 176 Mont. at 190-91, 577 P.2d at 372. We generally construe an ambiguity in a contract against the party who drafted the contract—in this case, Geneva-Roth. Club at Spanish Peaks, ¶ 53; Fitzgerald, 176 Mont. at 190-91, 577 P.2d at 372. ¶38 We have considered the validity of the arbitration clause in the Loan Agreement using generally applicable Montana contract law. Kortum-Managhan, ¶ 27. The arbitration clause qualifies as a contract of adhesion and falls outside Kelker’s reasonable expectations, and, therefore, the arbitration clause is unconscionable. Highway Specialties, ¶ 12; Kortum-Managhan, ¶ 27. ¶39 Affirmed. 15 /S/ BRIAN MORRIS We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT Justice Patricia O. Cotter specially concurs. ¶40 I concur in the result reached by the Court, but would deem the arbitration clause unenforceable on alternative grounds. ¶41 Section 27-5-114, MCA, is a provision of the Uniform Arbitration Act entitled Validity of arbitration agreement – exceptions. Section 27-5-114(2), MCA, provides generally that a written agreement to submit to arbitration a controversy arising between the parties after the agreement is made is valid and enforceable except on legal or equitable grounds that exist for revocation of a contract. However, subsection (2)(b) goes on to provide that the provision does not apply to “any contract by an individual for the acquisition of real or personal property, services, or money or credit when the total consideration to be paid or furnished by the individual is $5,000 or less.” ¶42 Prior to 1989, the statute provided that arbitration clauses in contracts in which the total payable consideration was $35,000 or less, were not subject to the enforcement provisions of the statute. In February 1989, Senator Bruce Crippen introduced SB 363, proposing to amend the statute. SB 363 was entitled: An act allowing parties to a contract for the acquisition of real or personal property, services, or money or credit to agree to submit any future contractual disputes to arbitration, regardless of the dollar amount of the 16 contract; deleting the dollar amount limitation for contracts that may contain such arbitration agreements. Senator Crippen thus proposed to eliminate any dollar limitations for contracts that may contain enforceable arbitration agreements. During hearings on the bill in the House and Senate, proposals were made to lower the limitation rather than eliminate it altogether. Ultimately, the legislators agreed to the $5,000 limit that remains in place today. It does not appear that this Court has previously been called upon to apply this statute. ¶43 Kelker entered into a $600 payday loan with Geneva. According to the loan agreement, she would pay $180 in interest if the loan was paid on her nearest payday, for a total payment of $780. Clearly, even if Kelker was a few months late in making her payment, the total consideration she would have to pay would not exceed $5,000. ¶44 I appreciate that this argument was not advanced in the District Court, and I also appreciate that we do not typically determine cases on the basis of arguments not made. See Pinnow v. Mont. State Fund, 2007 MT 332, ¶ 15, 340 Mont. 217, 172 P.3d 1273 (citations omitted). However, because here we are dealing with the waiver of fundamental rights, including the right to access to the court system, the right to trial by jury, and the right to an appeal, and because our Legislature has made a policy determination with respect to what contracts should be subject to mandatory arbitration, I feel it appropriate and necessary to apply the statute. As Justice Baker observes in her Dissent, it is not unreasonable for states to impose more stringent standards for evaluating the waiver of fundamental rights. Dissent, ¶ 55. 17 ¶45 The Legislature of Montana has declared that arbitration clauses contained in contracts are enforceable when the total consideration to be paid is over $5,000. The corollary, of course, is that arbitration clauses contained in contracts when the total consideration is under $5,000 are not enforceable. I would apply the provisions of § 27-5-114(2)(b), MCA, to this contract, and declare the arbitration clause unenforceable under the facts before us here. ¶46 I therefore specially concur. /S/ PATRICIA COTTER Justice Beth Baker, dissenting. ¶47 Although well-intentioned, the Court’s decision fosters a rule of state law with “disproportionate impact on arbitration agreements,” Concepcion, 131 S. Ct. at 1747, prohibited by federal law and controlling decisions of the U.S. Supreme Court. The Court also overlooks a key factor in our generally applicable analysis of contract unconscionability by failing to evaluate the specific language of the arbitration provision at issue. For these reasons, and because the District Court erred in its analysis of the Loan Agreement’s arbitration clause by considering the validity of the agreement as a whole, I dissent. ¶48 I begin with the full language of the arbitration provision at issue, which is omitted from the Court’s opinion. The Loan Agreement to which Kelker agreed provides: Both parties agree that any claim, dispute, or controversy between us, any claim by either party against the other or the agents, services, or assigns of the other, including the validity of this agreement to arbitrate disputes as 18 well as claims alleging fraud or misrepresentation shall be resolved by binding arbitration.[1] Any arbitration hearing, if one is held, will take place at a location near Customer’s residence and shall be conducted by a mutually agreed to and certified arbitrator. Customer’s arbitration fees will be waived in the event you cannot afford to pay them. This arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act 9. [sic] USC Section 1-18. Judgment upon the award may be entered by any party in court having jurisdiction. Notice: Without this arbitration agreement, both parties have the right to litigate disputes through the law courts but we have agreed instead to resolve disputes through binding arbitration. ¶49 The District Court’s decision recognized “a good argument” that the arbitration provision is enforceable, based upon Concepcion. The court noted that this Court had not addressed its historic concern with arbitration provisions since Concepcion was decided and that there appeared to be some “tension” between our precedents and the U.S. Supreme Court’s directives. The District Court applied Montana law requiring that, in order for a contract of adhesion to be unenforceable, it must be “(1) not within [the challenging party’s] reasonable expectations or (2) within her reasonable expectations, but when considered in its context, proves unduly oppressive, unconscionable, or against public policy.” (citing Zigrang v. U.S. Bancorp Piper Jaffray, Inc., 2005 MT 282, ¶ 13, 329 Mont. 239, 123 P.3d 237). The District Court held that the Loan Agreement’s provision requiring arbitration “may well have been within Kelker’s reasonable expectations.” Considering the arbitration provision “in its context,” however, the court found the arbitration provision “unduly oppressive, unconscionable, and against public policy.” (Emphasis in original.) The “primary factor” in the court’s determination was 1 The validity of the agreement to arbitrate is, as the Court observes (Opinion, ¶¶ 11-12), a matter for the court to decide. Geneva-Roth does not contest this point. 19 the “extraordinarily exorbitant” interest rate of 780% that Kelker was charged under the Loan Agreement. In considering the context of the contract and its provisions, the District Court could not “stand by” and overlook what it viewed as a clearly oppressive term in the Agreement. ¶50 The District Court erred as a matter of law by considering the contract as a whole in determining the validity of the arbitration provision. As we recognized in Martz v. Beneficial Montana, Inc., 2006 MT 94, 332 Mont. 93, 135 P.3d 790, the U.S. Supreme Court has “made clear that arbitration, not court, is the proper forum for challenges to contracts as a whole where those contracts contain arbitration provisions.” Martz, ¶ 17 (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 447, 126 S. Ct. 1204, 1209-10 (2006)). Thus, it is the arbitration provision itself that must be examined to determine (1) whether it is within Kelker’s reasonable expectations and, if so, (2) whether it nonetheless is unduly oppressive, unconscionable, or against public policy. ¶51 While the Court does not adopt the District Court’s rationale, it invalidates the arbitration clause on the sole ground that it was outside Kelker’s reasonable expectations, professing to rely on “generally applicable contract law.” The Court reaches this conclusion based on the ten-factor test adopted in Kortum-Managhan. ¶52 Although the Court emphasizes repeatedly that Kortum-Managhan recognized the obligation to apply generally applicable contract law, it fails to mention two important aspects of our decision in that case. First, one of the principal bases for our holding that the arbitration agreement was not within Kortum-Managhan’s reasonable expectations was its inclusion in a “bill stuffer” long after she accepted the credit card agreement. 20 Kortum-Managhan was deemed to have accepted the terms of the arbitration agreement simply by continuing to use her credit card. Kortum-Managhan, ¶ 7. Here, Kelker acknowledges that in order to be eligible for the loan, she had to click “I Agree” to the terms and conditions of the Loan Agreement, which expressly included the agreement to arbitrate disputes. By clicking “I Agree,” she voluntarily engaged in an electronic transaction with Geneva-Roth subject to the same rules as the formation of any other contract. Sections 30-18-104(2) and -113(2), MCA; Kluver v. PPL Mont., LLC, 2012 MT 321, ¶ 23, 368 Mont. 101, 293 P.3d 817. ¶53 Outside the arbitration context, our generally applicable principles of contract law presume that “[a]bsent incapacity to contract, ignorance of the contents of a written contract is not a ground for relief from liability” under its provisions. Quinn v. Briggs, 172 Mont. 468, 476, 565 P.2d 297, 301 (1977); Gliko v. Permann, 2006 MT 30, ¶ 35, 331 Mont. 112, 130 P.3d 155 (noting that each party was presumed to have read the contract and “had a duty to understand the terms of the agreement”); First Sec. Bank v. Kyle Abel & Abel Enters., 2008 MT 161, ¶ 29, 343 Mont. 313, 184 P.3d 318 (“[i]t is well established in Montana that one who executes a written contract is presumed to know the contract’s contents”); Stowers v. Community Med. Ctr., Inc., 2007 MT 309, ¶ 12, 340 Mont. 116, 172 P.3d 1252 (plaintiff’s failure to read the agreement before signing did not relieve him from its terms); Wiley v. Iverson, 1999 MT 214, ¶ 23, 295 Mont. 511, 985 P.2d 1176 (“[t]he duty to inquire prior to signing an antenuptial contract is consistent with the general rule [of contract law] in Montana”). Likewise, in contexts other than agreements to arbitrate, we have held that expectations contrary to clear terms of a 21 contract are not objectively reasonable. Newbury v. State Farm Fire & Cas. Ins. Co., 2008 MT 156, ¶ 35, 343 Mont. 279, 184 P.3d 1021 (citing Mont. Petroleum Tank Release Compen. Bd. v. Crumleys, Inc., 2008 MT 2, ¶ 35, 341 Mont. 33, 174 P.3d 948). ¶54 Because an arbitration provision waives fundamental rights, however, we have applied a more stringent standard when faced with a consumer’s claim that she has not read or understood the arbitration clause in a contract. Woodruff v. Bretz, Inc., 2009 MT 329, ¶¶ 14-15, 353 Mont. 6, 218 P.3d 486; Kortum-Managhan, ¶ 26; Kloss v. Edward D. Jones & Co., 2002 MT 129, ¶ 28, 310 Mont. 123, 54 P.3d 1, see also ¶¶ 64-65 (Nelson, J., specially concurring). Kelker’s acceptance of the terms of the Loan Agreement are distinct from the “addition of completely new terms and conditions” through the “bill stuffer” used by Herbergers, Kortum-Managhan, ¶ 22, and her failure to read the Agreement does not remove the arbitration provision from her reasonable expectations. ¶55 The second aspect of Kortum-Managhan’s ten-factor test the Court overlooks is that it expressly was to be used to determine “whether an individual deliberately, understandingly and intelligently waived their fundamental constitutional rights to trial by jury and access to the courts[.]” Kortum-Managhan, ¶ 27. The fact that arbitration clauses, “by their very nature,” waive the rights “to trial by jury, access to the courts, due process of law and equal protection of the laws” required application of the standards reserved for effective waiver of a constitutional right. The ten-factor test was derived from the fundamental nature of the rights given up by arbitration, thereby demanding proof that the waiver was made “voluntarily, knowingly and intelligently,” which in turn required “that a consumer must be informed of the consequences before personally 22 consenting to the waiver.” Kortum-Managhan, ¶ 26. Since Kortum-Managhan was decided, we have applied its ten-factor test only to evaluate an arbitration clause. Woodruff, ¶ 15. Drawing from the Kortum-Managhan factors, the Court suggests that Kelker was compelled by “economic duress” to sign a contract that called for a 780% APR. Opinion, ¶ 31. The Court cites no generally applicable principle of contract law for this proposition and incorporates the District Court’s error of looking to unconscionability of the contract as a whole in evaluating the agreement to arbitrate. ¶56 It is not unreasonable that a State should impose more stringent standards for evaluating the waiver of fundamental constitutional rights. In doing so, however, we have created a state-law rule with “disproportionate impact on arbitration agreements,” Concepcion, 131 S. Ct. at 1747, which the U.S. Supreme Court has viewed as the “type of ‘judicial hostility towards arbitration’” that is expressly foreclosed by the FAA, Nitro-Lift, 133 S. Ct. at 503. Like it or not, we are bound by those rulings. U.S. Const. Art. VI, cl. 2. ¶57 Under generally applicable principles of contract law, our analysis of contracts of adhesion for unconscionability should include examining the challenged provision itself to determine whether it is “unreasonably favorable to the drafter,” “unduly oppressive, or against public policy.” Highway Specialties, ¶ 16; Summers, ¶¶ 22, 24; Iwen v. U.S. W. Direct, 1999 MT 63, ¶ 31, 293 Mont. 512, 977 P.2d 989. The same section of Corbin on Contracts cited by the Court notes that “the purpose of the [unconscionability] doctrine is to prevent two evils: oppression and unfair surprise.” 7 J. Perillo, Corbin on Contracts, § 29.4 at 388 (emphasis in original). This echoes our statement in Kelly where, citing the 23 identical UCC Comment, we noted that the “principle is one of the prevention of oppression and unfair surprise.” Kelly, 236 Mont. at 527, 771 P.2d at 145 (citing to UCC § 2-302 cmt. 1). The Court’s opinion in this case lacks any such analysis. ¶58 The arbitration clause in the Loan Agreement, unlike that invalidated as unconscionable in Iwen, is not one-sided and does not unreasonably favor Geneva-Roth. It provides for mutual consent to an arbitrator, proceedings near the consumer’s home, and waiver of fees if the consumer cannot afford them. Unlike Iwen, it does not grant only the party with superior bargaining power the right to go to court. Given the FAA’s “national policy favoring arbitration,” Nitro-Lift, 133 S. Ct. at 503 (quoting Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S. Ct. 852, 858 (1984)), the provision cannot be said to violate public policy. Analyzed in light of cases outside the arbitration context, such as Highway Specialties, Summers, and Kelly, it is difficult to determine how this provision is unconscionable, except that—like any arbitration agreement—it waives Kelker’s right to a jury trial and access to the courts. ¶59 In short, removing Kortum-Managhan’s heightened standard of unconscionability from the analysis, the Loan Agreement’s arbitration provision would not be subject to invalidation under our generally applicable principles of contract law. “[T]he times in which consumer contracts were anything other than adhesive are long past.” Concepcion, 131 S. Ct. at 1750. Unfortunately, the fact that the Loan Agreement Kelker accepted is typical of such adhesive consumer Internet transactions does not make its arbitration provisions less worthy of enforcement than other contracts subject to the FAA. I would reverse the District Court’s denial of Geneva-Roth’s motion to compel arbitration and 24 allow the arbitrator to determine whether the Loan Agreement’s 780% APR makes the contract as a whole unconscionable. /S/ BETH BAKER Justice Jim Rice joins in the dissenting Opinion of Justice Beth Baker. /S/ JIM RICE | March 12, 2013 |
55f580ed-d019-43ac-a837-33a69eb9b63d | Bostwick Props., Inc. v. Dep't of Natural Res. & Conservation | 2013 MT 48 | DA 12-0007 | Montana | Montana Supreme Court | DA 12-0007 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 48 BOSTWICK PROPERTIES, INC., Petitioner and Appellant, v. MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, Respondent, Appellee and Cross-Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV 09-1196C Honorable John C. Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Brian K. Gallik, Goetz, Gallik & Baldwin, P.C., Bozeman, Montana; Matthew W. Williams, Williams and Jent, PLLP, Bozeman, Montana For Appellee: Brian C. Bramblett, Anne W. Yates, Montana Department of Natural Resources and Conservation; Helena, Montana Submitted on Briefs: December 12, 2012 Decided: February 26, 2013 Filed: __________________________________________ Clerk February 27 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Bostwick Properties, Inc. (Bostwick) sought a water use permit from the Montana Department of Natural Resources and Conservation (DNRC). DNRC denied the water use permit. Bostwick petitioned for review by the District Court. The District Court agreed with DNRC that Bostwick had failed to prove no net depletion of surface water and lack of adverse effect, as required by § 85-2-360, MCA, and therefore Bostwick was required to mitigate its water usage in order to receive a water use permit. The District Court further determined, however, that Bostwick had submitted an adequate mitigation proposal, and, therefore, DNRC improperly had denied Bostwick’s permit application. The District Court further noted that DNRC had exhibited bias against Bostwick. The District Court separately affirmed each of DNRC’s findings, and so determined that any bias on the part of DNRC caused no prejudice to Bostwick. Bostwick appeals, DNRC cross-appeals, and we affirm. ¶2 Bostwick and DNRC present the following issues on appeal: ¶3 Whether DNRC had authority to deny Bostwick’s permit? ¶4 Whether DNRC and the District Court properly required Bostwick to mitigate its water usage? ¶5 Whether the District Court properly determined Bostwick’s mitigation proposal was adequate as a matter of law? ¶6 Whether DNRC had the authority to require Bostwick to identify a specific water right for mitigation? ¶7 Whether DNRC bias substantially prejudiced Bostwick? 3 PROCEDURAL AND FACTUAL BACKGROUND ¶8 Bostwick filed an application for a Beneficial Water Use Permit with DNRC on December 1, 2006. Bostwick sought the water use permit for municipal use in its Lazy J South subdivision in Gallatin County, Montana. Bostwick initially sought up to 79 acre-fee per year of groundwater year round. Bostwick sought to extract this groundwater from an aquifer. DNRC designated Bostwick’s water use permit application “correct and complete” on February 12, 2007, and noticed the application to the public. Montana Department of Fish, Wildlife, and Parks (FWP) and Montana Trout Unlimited (TU) objected to Bostwick’s application. Both objectors later withdrew their objections provided that Bostwick reduced its water use to 76 acre-feet per year. ¶9 DNRC failed to take action on Bostwick’s application within the timeframe set forth in § 85-2-310(1), MCA. Bostwick sought a writ of mandate to require DNRC to issue the water use permit, or, alternatively, to hold a hearing to force DNRC to show cause why DNRC would not grant the permit. After Bostwick sought the writ of mandate, DNRC issued a statement of opinion that denied Bostwick’s water use permit. DNRC determined that Bostwick had failed to demonstrate no net depletion of surface water, as required by § 85-2-360, MCA, and had failed to prove legal availability and lack of adverse impact, as required by § 85-2-311, MCA. DNRC determined that Bostwick had demonstrated the other criteria required by § 85-2-311, MCA. ¶10 The District Court granted Bostwick’s request for a writ of mandate. DNRC appealed to this Court. Bostwick Props. v. Mont. Dep’t of Nat. Res. & Conserv., 2009 MT 181, 351 4 Mont. 26, 208 P.3d 868 (Bostwick I). We reversed the District Court’s grant of the writ of mandate. We determined that DNRC had no legal duty to grant Bostwick’s permit application because Bostwick had not yet proven lack of adverse effect and legal availability. Bostwick I, ¶ 21. We remanded the case to DNRC with instructions to provide Bostwick with an opportunity to be heard on its water use permit application. Bostwick I, ¶ 23. Bostwick requested that DNRC disqualify itself to hear Bostwick’s application on the grounds of bias. DNRC denied Bostwick’s request for disqualification. ¶11 The Gallatin River is part of a closed water basin. Sections 85-2-342 to 85-2-343, MCA. In order to receive a groundwater permit, Bostwick first had to provide a hydrogeologic assessment to determine whether its proposed groundwaterusage would result in a net depletion of surface water. Section 85-2-360, MCA. Bostwick would have to mitigate its water usage if Bostwick’s proposed pumping of groundwater would result in a net depletion of surface water and adversely affect senior appropriators. Section 85-2-362, MCA. ¶12 Bostwick offered alternatives to demonstrate that its groundwater use would not result in a net depletion of the Gallatin River surface water, or would not cause an adverse effect. Bostwick first proposed that its Pave and Infiltrate Plan would offset all proposed consumption and would result in no net depletion of surface water. Bostwick next proposed that no net depletion would occur because the hydrological connection between the aquifer and the surface water was too attenuated and any potential adverse effect was unknown. Bostwick argued that the amount of water that it sought was too small to result in an adverse 5 effect. Bostwick also suggested that DNRC could terminate Bostwick’s water rights if Bostwick’s de minimus water usage actually harmed senior rights holders. Bostwick finally proposed mitigation in the form of purchasing Water Right No. 41H 226700, in the event that Bostwick failed to demonstrate no net depletion or lack of adverse effect. ¶13 DNRC determined that Bostwick’s water use would result in a net depletion of surface water, and that Bostwick had failed to demonstrate lack of adverse effect. This determination required Bostwick to mitigate its proposed water use. DNRC further determined that Bostwick’s proposed mitigation, purchasing Water Right No. 41H 226700, was inadequate because the mitigation would provide only irrigation season water and would provide no non-irrigation season water. DNRC’s determinations that Bostwick had failed to demonstrate no net decrease and had failed to demonstrate a lack of adverse effect for non- irrigation season water required Bostwick to mitigate non-irrigation season water loss as well. ¶14 Bostwick sought review by the District Court. The district court agreed with DNRC that Bostwick had failed to demonstrate no net depletion and lack of adverse effect. The District Court deemed adequate as a matter of law, however, Bostwick’s mitigation proposal. The District Court determined that DNRC improperly had denied Bostwick’s water use permit subject to implementation of Bostwick’s mitigation plan. Bostwick appeals the District Court’s determination that Bostwick failed to demonstrate no net depletion or lack of adverse effect. DNRC cross-appeals on the grounds that Bostwick’s mitigation proposal did not mitigate non-irrigation season water use. 6 STANDARD OF REVIEW ¶15 We review for correctness a district court’s review of an administrative agency’s decision. BNSF Ry. Co. v. Cringle, 2010 MT 290, ¶ 11, 359 Mont. 20, 247 P.3d 706. We review for correctness a district court’s conclusions of law. Cringle, ¶ 11. DISCUSSION ¶16 Whether DNRC had authority to deny Bostwick’s permit? ¶17 Bostwick argues that its settlement with all objectors required DNRC as a matter of law to grant Bostwick a water use permit. DNRC instead issued a statement of opinion that provided that Bostwick had failed to show no net decrease, pursuant to § 85-2-360, MCA, and to show legal availability and lack of adverse effect pursuant to § 85-2-311(1), MCA. Bostwick argues that DNRC’s previous determination that Bostwick’s application was “correct and complete” deprived DNRC of any further authority to issue a statement of opinion or to deny the permit after Bostwick settled with the objectors. ¶18 We considered and rejected this argument in Bostwick I. The District Court in Bostwick I concluded that DNRC was required, as a matter of law, to grant Bostwick’s permit because DNRC had determined Bostwick’s application was “correct and complete,” and all objections had been resolved. Bostwick I, ¶ 20. DNRC must grant a permit only if Bostwick resolved the objections and Bostwick proved the § 85-2-311, MCA, criteria by a preponderance of the evidence. Bostwick I, ¶ 21. Bostwick was required to prove legal availability and lack of adverse effect by a preponderance of the evidence. Bostwick I, ¶ 21. 7 DNRC had legal authority, and the legal duty, to deny Bostwick’s permit if Bostwick failed to do so. Bostwick I, ¶ 21. ¶19 Whether DNRC and the District Court properly required Bostwick to mitigate its water usage? ¶20 Bostwick offers four theories to support its argument that its water use wouldresult in no net depletion of surface water or would not adversely affect senior appropriators. We analyze each in turn. 1. Bostwick’s Pave & Infiltrate Plan ¶21 Bostwick first argues that its Pave and Infiltrate Plan would offset any net depletion of surface water from its proposed pumping of groundwater. Bostwick plans to pave roads and parking lots in its proposed development. Bostwick contends that precipitation that previously had evaporated or had been used by native plants would run off these new impermeable surfaces. Bostwick would store this runoff water in retention ponds. Bostwick would discharge this runoff water from the retention ponds into the groundwater, which in turn eventually would recharge the Gallatin River. Bostwick estimated that it would collect 42 acre-feet per year of runoff water. This “savings” represents more than the 39 acre-feet per year that Bostwick seeks to deplete with its water use permit. Bostwick argues, as a result, that its development as a whole would cause no net decrease in surface water and no adverse effect. ¶22 Section 85-2-361(1), MCA, lists factors that DNRC should consider in predicting whether a water appropriation would result in a net depletion of surface water. These factors 8 include the actual amount diverted, the amount likely to be lost in conveyance, any return due to percolation, and any return flows such as wastewater. Section 85-2-361(1), MCA, further provides that these factors do not constitute an exhaustive list of criteria to consider when it evaluates net depletion of surface water. Bostwick argues that DNRC should consider the runoff caused by Bostwick’s proposed development in this calculation of potential depletion of surface water. Bostwick provides no legal support to include itsrunoff water in the surface water depletion calculation. ¶23 We look at four factors when we interpret a statute. First, we ask whether the interpretation reflects the intent of the legislature considering the plain language of the statute. U.S. West, Inc. v. Dep’t of Revenue, 2008 MT 125, ¶ 16, 343 Mont. 1, 183 P.3d 16. We next examine whether the interpretation comports with the statute as a whole. U.S. West, ¶ 16. We then consider whether an agency charged with administration of the statute has placed a construction on the statute. U.S. West, ¶ 16. Finally, where appropriate, we analyze whether the interpretation avoids absurd results. U.S. West, ¶ 16. ¶24 The plain language of § 85-2-361(1), MCA, indicates thatBostwick’s interpretation of this statute fails to reflect the intentions of the legislature. The legislature listed only factors that concern the appropriated water. The analysis of the “actual amount diverted” and the “amounts that will likely be lost in conveyance” considers only the appropriated water. Similarly, the “return flow” analysis contemplates how much of the appropriated water will “return.” None of these factors requires DNRC to consider sources of water other than the proposed water to be appropriated pursuant to Bostwick’s permit. Nothing indicates, based 9 on the plain language of the statute, that the legislature intended DNRC to consider alternative sources of water, such as Bostwick’s runoff, when it calculates net-depletion. ¶25 Bostwick’s interpretation also conflicts with the statute as a whole. The legislature separately considered the role of sources of water other than the appropriated water. The legislature labeled this other water as “mitigation” water. Sections 85-2-102(15), 85-2-360 to 85-2-363, MCA. If a water allocation would result in a net depletion of surface water, the statute requires the applicant to submit a mitigation plan that would introduce a new source of water to offset any adverse effect caused by the net depletion of surface water. Section 85-2-360, MCA. The legislature clearly has directed DNRC to evaluate water other than the appropriated water as potential mitigation. It would be contrary to the statutory scheme to require DNRC instead to consider this runoff water in its net-depletion calculation. ¶26 Bostwick does not argue that it can use this runoff water as mitigation, and, indeed, it could not. The legislature defined mitigation as the “reallocation of surface water or ground water through a change in appropriation right.” Section 85-2-102(15), MCA. Bostwick currently has no appropriation right to use this runoff water. The legislature clearly stated that a water use permit represents the sole way to appropriate water. Sections 85-2-301 to 85-2-302, MCA. Bostwick could not use this runoff water as mitigation water. ¶27 The agency charged with administering this statute, DNRC, concluded that it should not consider Bostwick’s runoff water when it calculated net depletion. Bostwick did not argue specifically that this statute, § 85-2-361, MCA, or any legal authority, requires DNRC to consider Bostwick’s runoff water as part of the net-depletion calculation. DNRC 10 concluded that no legal authority supported Bostwick’s claim that DNRC should consider Bostwick’s runoff as part of DNRC’s net-depletion calculation. ¶28 As noted above, Bostwick has no legal right to appropriate this runoff water. A water use permit represents the sole way Bostwick could acquire an appropriation right. Sections 85-2-301 to 85-2-302, MCA. An anomalous result would occur if Bostwick could use this runoff water in its net-depletion of surface water calculation even though Bostwick has no legal right to appropriate this runoff water. ¶29 Finally, the legislature has moved away from the old-fashioned understanding of water appropriation that underpins Bostwick’s claim that it can use this runoff water in the net-depletion analysis. This Court previously recognized the notion of “developing” water by tapping an underground aquifer or by bringing water to a location it otherwise would not have reached. See State ex. rel. Mungas v. Dist. Ct., 102 Mont. 533, 59 P.2d 71 (1936); Rock Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 17 P.2d 1074 (1933). Bostwick essentially argues that it would be “developing” water by capturing runoff water. Historically, a party who “developed” water could appropriate that water ahead of senior appropriators. The legislature rejected the notion that a person could appropriate water by “developing” it. The legislature instead declared that starting in 1973, a water use permit represented the sole way to appropriate water. See §§ 85-2-301 to 85-2-302, MCA. This new law superseded our old cases, including Mungas and Rock Creek, regarding the ability of a party to appropriate water through the “development” of water. See §§ 85-2-301 to 85- 2-302, MCA. 11 ¶30 The legislature has adopted a system that recognizes the hydrological cycle and the adverse effect that new appropriations of surface water or ground water could cause to senior appropriators. The legislature specifically recognized that depletion of groundwater could cause a depletion of surface water. See § 85-2-360, MCA. The legislature now requires water use permit applicants to demonstrate that their groundwater usage in a closed basin will not adversely affect senior appropriators of surface water. Sections 85-2-360, 85-2-363, MCA. Bostwick’s capture of surface water similarly could cause a depletion in the surface water or groundwater in the closed Gallatin River Basin that could adversely affect senior appropriators. The legislature’s recent modifications to Montana water law confirm that the legislature did not intend to allow Bostwick to use an additional source of water, such as the runoff water, in the net-depletion of surface water calculation. See §§ 85-2-301 to 85-2-302, MCA. ¶31 Nothing in § 85-2-361, MCA, supports Bostwick’s interpretation that DNRC should consider the runoff water caused by Bostwick’s pavement when DNRC calculates the net depletion caused by Bostwick’s water allocation. This interpretation would run contrary to the plain meaning of the statute, to the statutory scheme as a whole, to the DNRC’s interpretation, and would cause an absurd result whereby Bostwick could claim the runoff water in the net-depletion calculation even though Bostwick would have no legal right to use the water. See U.S. West, ¶ 16. 2. Attenuated Hydrological Connection 12 ¶32 Bostwick next argues that the attenuated hydrological connection between the source ground water and the surface water would cause no net depletion of surface water in the Gallatin River. Bostwick argues that the lack of net depletion of surface water related to its water extraction would not adversely affect senior appropriators. Bostwick admits that the groundwater that Bostwick seeks to extract from the aquifer ultimately would have ended up in the Gallatin River. Bostwick argues, however, that no way exists to determine at what point the Gallatin River would begin to lose water due to Bostwick’s extraction of water from the aquifer. Bostwick argues that this uncertainty confirms that no net depletion, or no adverse effect, could be shown. ¶33 Bostwick points to a recent DNRC permit for new groundwater use by Yellowstone Club, In the Matter of the Application for Beneficial Water Use Permit 41H-30027281, as evidence that DNRC should grant the water use permit when an unknown connection exists between an aquifer and surface water. Yellowstone Club sought a water use permit several miles from Bostwick’s proposed development. Yellowstone Club failed to demonstrate where or how its depletion from the aquifer would affect the Gallatin River. DNRC nevertheless granted the Yellowstone Club’s water use permit because no practical way existed to establish how or when the groundwater would affect the surface water. Bostwick argues that DNRC should have applied this same principle to Bostwick’s water use permit. ¶34 DNRC ultimately conceded to the District Court that it wrongly had granted the water use permit to Yellowstone Club. The District Court determined that DNRC’s issuance of a water use permit to the Yellowstone Club did not establish any binding precedent that would 13 force DNRC to issue Bostwick’s permit under similar circumstances. The District Court further determined that past DNRC cases and Montana law support DNRC’s decision to deny a permit where uncertainty exists regarding any hydrological connection. ¶35 We agree. This Court possesses authority to reverse any arbitrary and capricious agency decision. Section 2-4-704, MCA. We may reverse an arbitrary and capricious decision of an agency, even if the agency follows its own prior arbitrary and capricious decision. DNRC correctly applied the permit criteria for Bostwick’s permit application despite DNRC’s failure to follow the same analysis in reviewing the Yellowstone Club’s permit application. ¶36 Bostwick admits that some hydrological connection exists between the groundwater from the aquifer and the Gallatin River. Bostwick argues it is unknown exactly when Bostwick’s extraction of groundwater would affect the Gallatin River. Bostwick seeks to shift the burden of proof to DNRC, however, and thereby require DNRC to grant the permit if no net depletion, and so no adverse effect, could be shown. Section 85-2-311(1)(a)(ii), MCA, clearly places the burden of proof on the applicant to demonstrate lack of adverse effect. Bostwick bears the burden of demonstrating that its efforts to pump water from the aquifer would cause no adverse effect on prior appropriators of the Gallatin River. Bostwick admits that it could not establish the effect of this proposed pumping on prior appropriators. The District Court correctly determined that Bostwick had failed to prove lack of any adverse effect. 3. De Minimus Water Usage 14 ¶37 Bostwick next argues that the de minimus amount of water that it would deplete from the Gallatin River could not adversely affect senior water rights holders. Boswick seeks to deplete 24.1 gallons per minute. Bostwick notes that this 24.1 gallons per minute constitutes 0.035% of the lowest recorded flow on the Gallatin River. Bostwick contends that § 85-2- 360(5), MCA, supports an exception for its de minimus water usage. Bostwick recognizes that its permit application predated this legislative amendment for de minimus usage. Bostwick argues that the legislature merely confirmed the law that already existed. ¶38 Section 85-2-360(5), MCA, provides that the prediction of a net depletion does not automatically mean that an adverse effect would occur. DNRC must determine whether an adverse effect exists “based on the amount, location, and duration” of the depletion “relative to the historic beneficial use.” Section 85-2-360(5), MCA. This language creates no de minimus exception. It simply restates the principle that a depletion would not adversely affect any prior appropriators if sufficient water exists. Alternatively, the amendment acknowledges that if an adverse effect occurs, the amount of the adverse effect would not necessarily represent the full amount of the depletion. Further, the amended version of the statute still imposes on Bostwick the burden of proof to demonstrate lack of any adverse effect. Section 85-2-311, MCA. ¶39 DNRC correctly determined that Bostwick failed to prove lack of adverse effect, even for Bostwick’s minimal 39 acre-feet per year water depletion. No legally available water exists on the Gallatin River during the irrigation season. The Gallatin Water Commissioner generally cuts off water rights each irrigation season for priority dates later than 1890. In 15 fact, in 2012, the Water Commissioner cut off water rights owners junior to 1883. Any additional depletion of water, even one as minimal as 39 acre-feet per year, potentially would adversely affect senior appropriators’ water rights. 4. Administration of Priorities ¶40 Bostwick further argues that any adversely affected senior rights holders on the Gallatin River could force Bostwick to stop using water through the administration of priorities. Bostwick would ask this Court to shift the burden of proving lack of adverse effect and require prior appropriators to prove that Bostwick caused an adverse effect in order to protect their rights. As Bostwick has already noted, the attenuated hydrological connection would make it difficult for anyone to demonstrate an adverse effect. This situation would make it difficult for senior appropriators to protect their rights. ¶41 The clear language of § 85-2-311, MCA, demonstrates that the legislature placed the burden of demonstrating lack of any adverse effect on the applicant. The legislature closed the Upper Missouri River Basin in recognition that significantly more water claims existed than water to fulfill these prior appropriations. Mont. Trout Unlimited v. Mont. Dep’t of Nat. Res. & Conserv., 2006 MT 72, ¶¶ 7-8, 331 Mont. 438, 133 P.3d 224. The legislature acted to protect the water rights of the prior appropriators. We decline to approve a shift in the burden of demonstrating adverse effect that could jeopardize these prior appropriators’ water rights. ¶42 Whether the District Court properly determined Bostwick’s mitigation proposal was adequate as a matter of law? 16 ¶43 Section 85-2-363(2)(g), MCA, required Bostwick to demonstrate how its mitigation plan would offset all adverse effects to all prior appropriators. Bostwick sought to mitigate its water usage with Water Right No. 41H 226700. This water right would mitigate Bostwick’s water usage only during the irrigation season. This water right would not mitigate Bostwick’s water usage during the non-irrigation season. DNRC denied Bostwick’s permit application due to its failure to prove no net decrease of surface water and lack of adverse effect for the non-irrigation season. ¶44 The District Court determined that no adverse effect could result as a matter of law from Bostwick’s water usage during the non-irrigation season. The District Court recognized that Bostwick’s non-irrigation season water usage could affect adversely only one party – FWP. FWP further has stated that Bostwick’s irrigation season only mitigation plan will cause FWP no adverse effect. ¶45 Michael Nicklin, an expert for Bostwick, testified that Bostwick’s mitigation water would continue to flow in the river downstream to the Canyon Ferry Dam if Bostwick obtained a water right above where Interstate 90 crosses the Gallatin River. Bostwick’s proposed mitigation with Water Right No. 41H 226700, would withdraw water upstream of the Interstate 90 crossing. Sufficient flow currently exists in the Gallatin River downstream from the Interstate 90 crossing to fulfill all appropriators’ water rights during irrigation season. Bostwick’s mitigation water would flow into the Canyon Ferry Dam, therefore, rather than being used by another appropriator. Canyon Ferry Dam would collect all of the water that Bostwick mitigates during the irrigation season. 17 ¶46 Canyon Ferry Dam’s role in storing water likely would protect downstream water users when Bostwick mitigates the full 39 acre-feet of water during the irrigation season, rather than spreading evenly this mitigation throughout the year. FWP represented the only party that could be adversely affected by Bostwick’s irrigation season only mitigation plan. Bostwick’s settlement with FWP reflects FWP’s belief that it would not be adversely affected by the irrigation season only mitigation proposed by Bostwick. ¶47 We determined in Bostwick I that the mere fact that Bostwick had settled with objectors did not preclude DNRC from considering the § 85-2-311, MCA, criteria. Bostwick I, ¶ 21. Nothing here revises that determination. Bostwick’s settlement with FWP should not have precluded DNRC from considering the § 85-2-311, MCA, criteria. The settlement does support the notion, however, that Bostwick’s proposal would limit any adverse effect from the irrigation season only mitigation. In the unique circumstances presented here, with the Canyon Ferry Dam regulating the flow of water for downstream appropriators, the presence of only one party – FWP – potentially adversely affected during the non-irrigation season by Bostwick’s proposal, and FWP’s acknowledgment through its settlement that it would suffer no adverse effects during the non-irrigation season, we agree with the District Court that Bostwick demonstrated a lack of adverse effects for its proposed irrigation season only mitigation plan. ¶48 Whether DNRC had the authority to require Bostwick to identify a specific water right for mitigation? 18 ¶49 DNRC required Bostwick to identify exactly which water right Bostwick would use to mitigate its surface water depletions. Bostwick argues that DNRC should allow itto provide details, such as amount of water, timing, location of water, and seniority of water rights, without Bostwick having to specify a particular water right. ¶50 Section 85-2-362, MCA, imposes on DNRC the duty to determine whether a mitigation plan would offset depletions effectively. Bostwick does not dispute DNRC’s claim that DNRC routinely has required an applicant to identify the exact water rightthat the applicant plans to use for mitigation. DNRC claims that identification of the water right proves necessary to its full evaluation of a mitigation plan. This case demonstrates the need for such specificity. Bostwick’s mitigation water must reach the Canyon Ferry Dam in order to mitigate effectively Boswick’s net depletion. Bostwick’s own expert testified that Bostwick would need to acquire for mitigation a water right that withdraws upstream from where Interstate 90 crosses the Gallatin River, a water right senior to 1890, and a water right for at least 39 acre-feet per year. Bostwick’s identification of a specific water right allows DNRC to consider all of these factors when it evaluates the effectiveness of the mitigation plan. We see no prejudice caused by DNRC’s requirement in light of the fact that that Bostwick could mitigate with a water right with similar specifications if Bostwick could not purchase Water Right No. 41H 226700. ¶51 Whether DNRC bias substantially prejudiced Bostwick? ¶52 Bostwick alleges that DNRC’s bias against Bostwick during the permit application process violated Bostwick’s due process rights. This Court remanded to DNRC its initial 19 denial of Bostwick’s permit application. Bostwick I, ¶ 23. Bostwick requested that DNRC disqualify itself to hear the permit application on remand. Bostwick wanted the Attorney General to appoint a neutral party to consider Bostwick’s application. DNRC refused and instead appointed Scott Irvin, a DNRC employee, to hear Bostwick’s renewed request. Emails between Irvin and other DNRC employees suggested that Irvin had exhibited bias against Bostwick. Bostwick argues that the District Court improperly determinedthat Irvin’s bias did not rise to the level of an “irrevocably closed mind” as contemplated in Madison River R.V. Ltd. v. Town of Ennis, 2000 MT 15, ¶ 15, 298 Mont. 91, 994 P.2d 1098. ¶53 The District Court based its no prejudice determination on the fact that it independently reached the same conclusions as DNRC. We characterize DNRC’s bias as an “unlawful procedure.” Erickson v. State ex rel. Bd. of Med. Exam’r, 282 Mont. 367, 375, 938 P.2d 625, 630 (1997). The mere existence of an error in the process does not mandate reversal. Erickson, 282 Mont. at 375, 938 P.2d at 630. The alleged error must have caused substantial prejudice. Erickson, 282 Mont. at 375, 938 P.2d at 630. Bostwick failed to show substantial prejudice. The District Court independently reached the same conclusions as DNRC, with the exception of the non-irrigation season mitigation proposal. Bostwick’s failure to demonstrate substantial prejudice relieves us of the need to consider whether Irvin’s bias rose to the level of having an “irrevocably closed mind.” Madison River R.V., ¶ 15. ¶54 Affirmed. /S/ BRIAN MORRIS 20 We Concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT Justice Jim Rice, concurring. ¶55 In Bostwick I, Justice Nelson and I expressed dismay and concern over the Department’s unfair treatment of Bostwick: DNRC’s quick action would be commendable if it hadn’t been taken to rectify DNRC’s earlier malfeasance and to short-circuit a court’s review of that malfeasance. Then, when Bostwick asked to be heard about the denial, DNRC obliged Bostwick by setting a hearing in front of the same official who had written the DNRC’s opinion denying the permit. Whether the DNRC was attempting to be humorous or capricious, I do not know, but on its face this raises potential due process concerns. Bostwick I, ¶ 29 (Rice, J., concurring); see also ¶ 25 (Nelson, J., concurring). Despite this rebuke, the Department continued its shenanigans after the case was remanded. E-mails recovered by Bostwick revealed Department officials celebrating the decision in Bostwick I and plotting a further ambush of Bostwick upon remand in these proceedings. As the District Court found, “[i]t does appear that the Department exhibited bias against Bostwick from the beginning stages of this matter.” However, the District Court reasoned that because it had “upheld all but one of the Department’s substantive decisions,” that the agency’s bias was “irrelevant.” ¶56 I believe the District Court’s approach to this issue put the procedural cart before the horse, and I disagree that affirming an agency’s substantive decisions should necessarily 21 render a bias issue irrelevant. This Court has previously exercised supervisory control over district judge substitution because continuing the litigation could “cause uncertainty as to the validity of the District Court judge’s involvement and decisions in this matter” and “risks wasting significant resources” in the event the matter would need to be retried. Goldman Sachs Group, Inc. v. Second Jud. Dist. Ct., 2002 MT 83, ¶ 8, 309 Mont. 289, 46 P.3d 606. We revised the appellate rules to accommodate these concerns. See M. R. App. P. 14(3)(2011); see also D.H. v. Fourth Mont. Jud. Dist. Ct., 2012 MT 106, ¶ 2, 365 Mont. 82, 278 P.3d 1010. We have thus recognized that an improper presiding officer can undermine the validity of an entire proceeding. Practically, it is difficult to measure the full reach of a biased decisionmaker’s impact, as it can flow to the entirety of the case, including minor rulings. A litigant may be faced with arguing that bias affected each adverse decision in the case. The Legislature has provided for substitution of hearing examiners, including for bias. See § 2-4-611(4); § 85-2-310(1)(b), MCA; see also In re Best, 2010 MT 59, ¶ 22, 355 Mont. 365, 229 P.3d 1201 (“due process requires a fair and impartial tribunal”). And further, as a matter of due process, it is appropriate that the claim of bias be addressed as a threshold issue, with interlocutory review if necessary, and not as a final issue reviewed only for demonstrated prejudice. ¶57 Here, the Department’s proceeding should not have been conducted in the manner it was. In my view, bias was established because the evidence demonstrated the Department’s mind was irrevocably closed, and an unbiased hearing officer should have been substituted to hear the matter. If Bostwick had requested a new hearing as a remedy, I would vote to grant 22 it. However, Bostwick has not asked for such relief. Instead, Bostwick argues the bias issue simply to bolster its substantive arguments. Therefore, in light of the posture of this case, I believe the Court properly affirms on the basis of undemonstrated prejudice. ¶58 I likewise join in the Court’s resolution of the remaining issues. /S/ JIM RICE | February 27, 2013 |
b8bad242-30b5-458f-8bc2-501b64b7514a | State v. Holm | 1013 MT 58 | DA 11-0697 | Montana | Montana Supreme Court | DA 11-0697 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 58 STATE OF MONTANA, Plaintiff and Appellee, v. BRIAN ELIEN HOLM, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 10-520 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Richard R. Buley, Tipp & Buley, P.C.; Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General; Helena, Montana Submitted on Briefs: December 19, 2012 Decided: March 5, 2013 Filed: __________________________________________ Clerk March 5 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Brian Holm (Holm) appeals his conviction in the Fourth Judicial District, Missoula County. Holm alleges that the District Court denied Holm’s constitutional right to effective assistance of counsel when the District Court denied Holm’s request for substitution of counsel and for a continuance eight days before trial so that Holm could retain private counsel. We affirm. ¶2 Holm presents the following issues on appeal: ¶3 Whether the District Court abused its discretion by finding that Holm’s counsel was providing effective assistance of counsel? ¶4 Whether the District Court abused its discretion by failing to grant a continuance eight days before trial to allow Holm to retain private counsel? PROCEDURAL AND FACTUAL BACKGROUND ¶5 Holm was driving northbound on Brooks Street in Missoula, Montana, around 10:45 pm on November 9, 2010. Holm’s vehicle veered into the southbound lane and onto the sidewalk on the southbound side of Brooks Street. Three men, including Brian Beaver (Beaver), were walking together on the sidewalk. Holm’s vehicle hit Beaver from behind. The force from the vehicle threw Beaver into the side of a building. Holm’s vehicle crashed into a light post approximately 50 feet past where his vehicle had hit Beaver. Emergency responders took Beaver to Community Hospital where he died from severe blunt force trauma to his head. 3 ¶6 Police Officers William Tucker and Patrick Erbacher responded to the accident scene. Officer Tucker spoke with Holm. Holm’s speech was slurred, his eyes were bloodshot, and Officer Tucker smelled the odor of alcohol on Holm’s breath. Officer Tucker evaluated the accident scene. The roads were clear and dry. Officer Erbacher looked for skid marks that would indicate that Holm had tried to stop his vehicle. Officer Erbacher found no skid marks. Police Detective J.C. Denton conducted an investigation at the accident scene. Detective Denton found liquid in a to-go cup in Holm’s vehicle that contained 6% alcohol concentration. Holm later admitted that the to-go cup contained Black Velvet and Coke. ¶7 Emergency responders took Holm to St. Patrick’s Hospital. Officer Tucker administered an HGN test on Holm at the hospital. Holm received the maximum score of six. This score indicated that Holm was under the influence of alcohol. Officer Tucker then received Holm’s consent to conduct a blood draw. The blood draw revealed that Holmhad a blood alcohol content of 0.1. Holm also had 0.14 milligrams of Ambien in his blood. Ambien is a prescription sleep aid. ¶8 A forensic toxicologist, Sara Hansen (Hansen), testified at Holm’s trial that 0.14 milligrams falls within the therapeutic range for Ambien. She further testified that a person with that quantity of Ambien in their system could fall asleep while driving. Ambien contains a warning label that a person should not take it with alcohol. Hansen testified that alcohol combined with Ambien would increase a person’s impairment. ¶9 Holm also had two other drugs in his blood. Holm had 0.14 milligrams of an antidepressant, Venlafaxine, in his blood. Hansen testified that a person generally should not 4 take antidepressants with alcohol because they can cause greater impairment in a person than alcohol alone. Holm also had 0.02 milligrams of Hydrocodone, a narcotic painkiller, in his blood. Hansen testified that 0.02 milligrams falls below the therapeutic level, but still represents a sufficient quantity to affect a person. She added that combining these three drugs with alcohol could cause more impairment than each one individually. ¶10 Holm initially stated at the hospital that he did not remember the accident. He later claimed that three men had run in front of his car near the main entrance to Southgate Mall, by Denny’s Restaurant, which caused Holm to lose control of the vehicle and crash. The accident actually occurred near a different entrance to Southgate Mall. Holm eventually admitted that he had heard someone mention that the accident had occurred by the entrance to Southgate Mall. He had presumed that the accident had occurred near the main entrance. ¶11 Holm also admitted that he did not remember seeing anyone crossing the street. Holm claimed that he had been “speculating” and trying to “figure out what had happened.” Holm also admitted that it was possible he had fallen asleep or passed out while driving. Holm testified at trial, however, that he had swerved to avoid a collision with a vehicle that had been traveling toward Holm in Holm’s lane. Holm claimed that he did not initially remember this other vehicle because he suffered from trauma-induced amnesia. ¶12 Holm was assigned a public defender, Scott Spencer (Spencer). Eight days before Holm’s trial, on July 26, 2011, Holm appeared in court with Spencer and a separate attorney, Richard Buley. Buley told the District Court that Holm had contacted him and asked him to represent Holm. Buley requested a continuance so he could have more than eight days to 5 prepare. Buley stated that he would file a substitution of counsel form if the court granted the continuance. The District Court expressed concern that Holm was attempting to delay the trial. The District Court denied Holm’s motion for a continuance. ¶13 Holm provided the District Court with a pro se motion for appointment of different counsel and a request for a continuance three days later. Five days remained before the trial. Holm claimed that Spencer’s representation was deficient. The District Court held an initial inquiry into Holm’s claim of ineffective assistance of counsel on the day before the trial. The court determined that Spencer was providing adequate representation and denied Holm’s request for substitution of counsel. ¶14 The court also considered whether to grant a continuance so that Holm could retain private counsel. The State argued that Holm merely was attempting to delay the trial. The State pointed out that Holm’s accident had occurred in November 2010. The trial initially had been set for April 13, 2011, but Holm had filed a motion to continue the trial. The court rescheduled the trial for August 3, 2011, pursuant to Holm’s motion. The State further argued that Holm had filed a motion to continue on July 8, 2011, on the basis of medical issues. Holm sought to continue the trial until November. Holm withdrew this second motion to continue during the hearing to consider that motion on July 19, 2011. The State noted that Holm had not sought substitute counsel as part of his July 8, 2011, motion to continue or his July 19, 2011, withdrawal of the motion to continue. ¶15 The court agreed with the State that it appeared Holm merely was attempting to delay the trial. The court noted that Holm should have been preparing for the August 2011 trial 6 since November 2010. The court further noted that Holm previously had received a continuance in the trial, from April 2011 to August 2011. The court determined that Holm had failed to show diligence, and, therefore, denied Holm’s motion to continue. STANDARD OF REVIEW ¶16 We review for abuse of discretion a district court’s denial of a request for appointment of new counsel. State v. Dethman, 2010 MT 268, ¶ 11, 358 Mont. 384, 245 P.3d 30. We review for abuse of discretion a district court’s denial of a request for a continuance. State v. Garcia, 2003 MT 211, ¶ 10, 317 Mont. 73, 75 P.3d 313. DISCUSSION ¶17 Whether the District Court abused its discretion by finding that Holm’s counsel was providing effective assistance of counsel? ¶18 Criminal defendants enjoy a fundamental right to effective assistance of counsel. U.S. Const. amend. VI; Mont. Const. art. II, § 24; Dethman, ¶ 15. 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, 795-97 (1963); Dethman, ¶ 15. The right to effective assistance of counsel, however, does not grant defendants a right to counsel of their choice. An indigent defendant possesses no right to demand substitution of counsel provided that the appointed counsel has been providing effective assistance. Dethman, ¶ 15. ¶19 The trial court must make an “adequate initial inquiry” as to whether the defendant’s allegations are “seemingly substantial” when a defendant complains that his appointed 7 counsel has been providing ineffective assistance. State v. Gallagher, 1998 MT 70, ¶ 15, 288 Mont. 180, 955 P.2d 1371. The trial court considers the defendant’s factual complaints and any explanation by the defendant’s counsel during this initial inquiry. Gallagher, ¶ 15. The trial court must hold a hearing to address the validity of these complaints if the court determines that the defendant has presented a “seemingly substantial” complaint about inadequate counsel. Gallagher, ¶ 15. The court does not need to make any further inquiry, however, if the court instead determines that the defendant has failed to present a “seemingly substantial” complaint. Gallagher, ¶ 15. ¶20 Holm’s motion detailed various claims of ineffective assistance of counsel. Holm argued that Spencer had failed to interview any witnesses and had not subpoenaed any witnesses. Holm claimed that Spencer needed to retain experts to testify as to Holm’s blood alcohol content and the effect of the presence of prescription drugs in Holm’s blood. Holm also claimed that Spencer should have retained an accident reconstruction expert to testify about the possibility that Holm had swerved to avoid a head-on collision with a vehicle traveling the wrong direction in Holm’s lane. Holm did not immediately tell the police about his claim that another vehicle allegedly had been traveling the wrong direction in Holm’s lane. Holm argued that Spencer should have retained an expert to testify about trauma- induced amnesia. This expert apparently would have explained to the jury how Holm could have forgotten about this vehicle traveling in his lane. ¶21 We first evaluate whether the trial court made an adequate inquiry into the defendant’s claims, not whether the defendant’s counsel actually had been ineffective. 8 Gallagher, ¶ 14. The court repeated Holm’s concerns to Spencer and asked Spencer to respond. Spencer noted that the court had not given him a Gillham order that would permit Spencer to reveal confidential information. See In re Gillham, 216 Mont. 279, 704 P.2d 1019 (1985). Spencer further believed that it was in Holm’s best interests to respond without specific details in order to avoid revealing Spencer’s trial strategy. Spencer indicatedthat he had interviewed multiple witnesses. Spencer admitted that he had not subpoenaed any witnesses. Spencer explained, however, that only a limited number of fact witnesses existed in the case and the State already had subpoenaed all of them. Spencer noted that he could call any of the subpoenaed witnesses even if the State did not. ¶22 Spencer further indicated that he had made a strategic decision about expert witnesses. Spencer had discussed the decision whether to call experts with other lawyers in his office. He also stated that he had talked with his investigator about whether to present expert testimony. Spencer claimed that he had made his decision not to present expert testimony after these consultations. The District Court conducted an adequate initial inquiry. The record reflects that the District Court possessed sufficient information to determine accurately whether Holm had raised substantial complaints. See Gallagher, ¶ 22. ¶23 We now must consider whether the District Court abused its discretion indetermining that Holm’s complaints were not “seemingly substantial.” See Gallagher, ¶ 23. The defendant in Dethman described his disagreements with his public defender’s trial strategy during his initial inquiry before the trial court. Dethman claimed that his public defender refused to present witnesses, testimony, and evidence that Dethman requested. Dethman, ¶ 9 19. We deemed insubstantial Dethman’s complaints about his public defender’s trial strategy in light of the “time-honored rule that courts must accord great deference to defense counsel’s exercise of judgment in determining appropriate defenses and trial strategy.” Dethman, ¶ 19 (internal quotations omitted). ¶24 Holm points to omissions that Spencer made during his trial to support his pre-trial ineffective assistance of counsel claim. We consider Holm’s pre-trial ineffective assistance of counsel claim, however, using only the information available to the District Court at the time that it made its determination. See Gallagher, ¶¶ 14-15. Further, we do not have a record of the reasons for Spencer’s alleged omissions at trial. These non-record-based trial issues must be addressed first in a post-conviction relief hearing rather than on direct appeal. State v. Bateman, 2004 MT 281, ¶ 23, 323 Mont. 280, 99 P.3d 656. ¶25 Holm, like Dethman, alleged that his counsel’s trial strategy had been inadequate. Holm claimed that Spencer had subpoenaed no witnesses. The State had subpoenaed all of the potential fact witnesses in the case. Spencer could call any of them at trial. Holm claimed that Spencer should have hired expert witnesses to testify about Holm’s blood alcohol content, the prescription drugs present in Holm’s blood, and trauma-induced amnesia. Spencer opted not to retain any expert witnesses. Spencer made this decision after he had consulted with an investigator and other lawyers in his office. The District Court did not abuse its discretion in determining that Holm’s complaints about Spencer’s trial strategy were not seemingly substantial and that an additional hearing was unnecessary. See Dethman, ¶ 19. 10 ¶26 Whether the District Court abused its discretion by failing to grant a continuance eight days before trial to allow Holm to retain private counsel? ¶27 We recognized in Garcia that the right to effective assistance of counsel encompasses the right to retain counsel of one’s own choosing. Garcia, ¶ 12. A defendant with appointed counsel can insist upon the appointment of new counsel only if the appointed counsel hasnot been providing effective assistance. Garcia, ¶ 13. If a defendant seeks to retain counsel, however, the defendant need not show that his current counsel has beenproviding ineffective assistance. Garcia, ¶ 13. ¶28 A district court must consider a motion for continuance, including a motion for continuance to allow a defendant to retain counsel, in light of the diligence shown by the moving party. Section 46-13-202(3), MCA; Garcia, ¶ 14. The court should consider both the defendant’s and the State’s right to a speedy trial. Section 46-13-202(3), MCA. The court may grant the continuance, in its discretion, if the interests of justice so require. Section 46-13-202, MCA; Garcia, ¶ 14. ¶29 If the district court abused its discretion in denying a motion for continuance, we generally look to whether the defendant was prejudiced by the erroneous ruling. Garcia, ¶ 38. If the district court’s erroneous ruling prevented the defendant from retaining private counsel, however, we presume prejudice. Garcia, ¶ 38. The deprivation of the right to retain private counsel of a party’s choice represents a structural error that requires automatic reversal. Garcia, ¶¶ 38-39. 11 ¶30 We considered in Garcia whether Garcia had made a good faith, diligent effort to retain substitute counsel before the scheduled trial date. Garcia had been in contact with substitute counsel for two months. Garcia had been trying to acquire the money to retain the substitute counsel. The substitute counsel appeared before the court seventeen days before trial to request a continuance so that he could prepare to represent Garcia. Garcia, ¶ 22. Garcia previously had not requested any continuances. The fact that this was Garcia’s first request for a continuance indicated that Garcia was not merely attempting to delay the trial. Garcia, ¶ 22. Further, Garcia had been working to hire this replacement counsel for several months. Garcia, ¶ 21. We determined that Garcia had acted diligently. Garcia, ¶ 23. ¶31 Garcia’s diligent behavior contrasted with the behavior of a defendant from a California case. Garcia, ¶ 20. The California defendant previously had sought and had obtained numerous continuances from the court. Further, the defendant had not indicated previously to the court any reason existed to change counsel. Garcia, ¶ 20. ¶32 We determined in In re Mental Health of T.M., 2004 MT 221, ¶ 36, 322 Mont. 394, 96 P.3d 1147, that the district court had not abused its discretion by denying a continuance on the day of trial so that the defendant could retain private counsel. “[A] request for continuance to obtain counsel is dubious and fraught with uncertainties and contingencies” unless a defendant has made a good faith effort to hire private counsel before the scheduled trial date. T.M., ¶ 36. T.M. had not alerted the court that he wanted private counsel until the day of the trial. Further, T.M. had not contacted any private counsel at that point. He sought 12 the continuance so that he would have the opportunity to find private counsel willing to represent him. T.M., ¶ 35. ¶33 The defendant in State v. Klemann, 194 Mont. 117, 118-19, 634 P.2d 632, 633-34 (1981), informed the court on the morning of the trial that he wanted to retain private counsel due to his unhappiness with his court-appointed counsel. The case previously had been set for trial three separate times. Klemann, 194 Mont. at 118, 634 P.2d at 633. The State had brought the victim from California to testify at the trial. Klemann, 194 Mont. at 119, 634 P.2d at 634. The defendant had failed to show diligence in seeking private counsel. The fact that the case previously had been set for trial should have brought into focus the defendant’s concerns about his court-appointed counsel. Klemann, 194 Mont. at 120, 634 P.2d at 634. ¶34 Holm claimed that he had delayed retaining private counsel because he had been waiting for information about the exact time that the hospital nurse had drawn blood from Holm after the accident. The officer who requested the blood draw had failed to include the time of the blood draw in his paperwork. The nurse recorded the time of the blood draw on the blood sample vial. The State eventually subpoenaed the crime lab to photograph the blood sample vial. Holm finally learned the time of the blood draw four days before trial. Holm’s counsel, Spencer, told the court that this delay did not hinder Holm’s defense in any way. Spencer told the court he could not explain exactly why this delay did not hurt Holm’s defense without betraying his confidential conversations with Holm. ¶35 The District Court denied Holm’s motion for a continuance due to its determination that Holm had lacked diligence in seeking private counsel. The court determined that the 13 delay in determining the exact time of the blood draw was not sufficient justification for Holm’s failure to seek out replacement counsel earlier. Holm had nine months to prepare for his trial. The trial previously had been scheduled for April 2011, but the court had granted Holm’s motion to continue the trial until August 2011. This previous trial date should have brought into focus Holm’s desire to retain private counsel. See Klemann, 194 Mont. at 120, 634 P.2d at 634. ¶36 Holm also had sought a continuance on July 8, 2011, for medical reasons, and then withdrew the request on July 19, 2011. Holm had failed to inform the court previously that he was attempting to retain private counsel. Holm never mentioned any desire to retain private counsel when he sought a continuance on July 8, 2011. Holm likewise failed to express any desire to retain private counsel when Holm withdrew the continuance requeston July 19, 2011. Holm finally contacted the private replacement attorney only twelve days before trial, on July 22, 2011. Holm sought a continuance from the court to retain replacement counsel only eight days before trial, on July 26, 2011. The State already had made arrangements to bring a witness from Alaska to testify at Holm’s trial. See Klemann, 194 Mont. at 119, 634 P.2d at 634. The victim’s family also had already made arrangements to travel from Washington in order to watch the trial. ¶37 The evidence in the record leads us to conclude that the District Court did not abuse its discretion in determining that Holm had not made a good faith, diligent effort to retain substitute counsel. ¶38 Affirmed. 14 /S/ BRIAN MORRIS We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT | March 5, 2013 |
04449b77-54c8-48ba-b9c0-6c5d66a4d69b | In re Marriage of Anderson | 2013 MT 238 | DA 12-0745 | Montana | Montana Supreme Court | DA 12-0745 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 238 IN RE THE MARRIAGE OF: VIOLA K. ANDERSON, Petitioner and Appellant, and GARY L. ANDERSON, Respondent and Appellee. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDR 10-772 Honorable Dirk M. Sandefur, Presiding Judge COUNSEL OF RECORD: For Appellant: Daniel L. Falcon, Falcon, Lester & Schaff, P.C.; Great Falls, Montana For Appellee: Patrick R. Watt, Jardine, Stephenson, Blewett & Weaver, P.C.; Great Falls, Montana Submitted on Briefs: July 24, 2013 Decided: August 20, 2013 Filed: __________________________________________ Clerk August 20 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Viola Anderson (Viola) and Gary Anderson (Gary) entered into a mediated property settlement agreement as part of their dissolution of marriage. The District Court (McKittrick, J.) approved the property settlement agreement and decree of dissolution. Viola sought relief from judgment, on the grounds that the property settlement agreement was unconscionable and failed to include a disclosure of assets, as required by § 40-4-254, MCA. The District Court for the Eighth Judicial District, Cascade County (Sandefur, J.), denied Viola’s claim for relief from judgment. Viola appeals. We affirm. ¶2 We address the following issues on appeal: ¶3 Whether the District Court (Sandefur, J.) abused its discretion when it denied Viola’s Rule 59(e) and 60(b) motions based on the District Court’s (McKittrick, J.) failure to consider whether the property settlement agreement was unconscionable? ¶4 Whether the District Court abused its discretion when it determined that the property settlement agreement was valid without a disclosure of assets? PROCEDURAL AND FACTUAL BACKGROUND ¶5 Viola and Gary sought the dissolution of their 35-year marriage. Viola and Gary agreed to mediation to divide the marital property. Viola and Gary owned a trailer court in Lewistown and a rental property in Ulm. Viola and Gary also owned property along the scenic Smith River in Montana. The Smith River, popular for floating and fishing, rises in the Castle Mountains in Meagher County and flows northwest between the Big Belt and Little Belt Mountains, to its confluence with the Missouri River. Only one public put-in and 3 one public take-out exists in this 59-mile stretch of river, and access is limited by a permit lottery system. ¶6 Viola and Gary’s Smith River property included a ranch operation, a guest ranch, and an outfitting business named the Heaven on Earth Ranch. Groups with a float permit can stop overnight at the Heaven on Earth Ranch during their float, or groups can visit the guest ranch to experience the scenic river without receiving a permit or participating in a multi-day float. ¶7 The parties did not complete an assessment on the value of the ranch or guest ranch business before the mediation. The parties stipulated that the final disclosure requirements either had been met or had been waived. Viola had served as the bookkeeper for the ranch and guest ranch business for a number of years. ¶8 Both Viola and Gary were represented by counsel at the mediation. Pursuant to the property settlement agreement, Viola received a lump sum payment of $300,000, three jointly owned CDs worth $300,000, 100 chute-counted cows or $100,000, the rental property in Ulm worth $184,000, with a yearly rental income of $6,600, a monthly payment from Gary of $2,000 for the rest of her life, and up to $2,500 in attorney fees. Viola also remained the named beneficiary of Gary’s $150,000 life insurance policy. ¶9 Gary received the Smith River ranch, guest ranch, and outfitting business. Gary also received the ranching and outfitting equipment and the livestock. The parties did not assign a value to these assets. Gary accepted responsibility for the debt associated with these businesses, which Gary estimated amounted to $500,000. 4 ¶10 Viola actively participated in the mediation. She added several terms to the property settlement agreement. Viola required that the cattle be chute-counted to ensure that she did not receive only culls in her 100 cows. Viola also requested, and received, the ability to recreate on the Smith River property for the rest of her life. Viola’s counsel explained the terms of the proposed settlement agreement to Viola. The mediator also explained the terms of the proposed settlement agreement to Viola. Viola agreed to sign the settlement agreement without reading it herself after her counsel and the mediator provided these explanations of its terms. ¶11 The District Court (McKittrick, J.) held a dissolution hearing on August 22, 2012. Gary appeared with his counsel. Viola and her counsel did not attend. The District Court entered a decree that deemed the property and debts “equitably distributed.” Viola obtained new counsel shortly after the mediation. She filed M. R. Civ. P. 59(e) and 60(b) motions on September 18, 2012, through her new counsel. Viola claimed that she had expected to receive a lump sum cash payment of $3,000,000, and had realized belatedly that the property settlement agreement included a cash payment of only $300,000. ¶12 Viola alleged that the property settlement agreement was unconscionable. Viola further alleged that the District Court had violated § 40-4-254, MCA, by accepting the property settlement agreement even though the parties had failed to assess the value of the property. The District Court (Sandefur, J.) denied Viola’s motions. Viola appeals. STANDARD OF REVIEW 5 ¶13 This Court’s review of a district court’s ruling pursuant to M. R. Civ. P. 60(b) depends on the nature of the final judgment. Puhto v. Smith Funeral Chapels, Inc., 2011 MT 279, ¶ 8, 362 Mont. 447, 264 P.3d 1142. In cases not involving relief from a default judgment, the Court reviews the ruling of a district court for abuse of discretion. Puhto, ¶ 8. We review a district court’s denial of a Rule 59(e) motion for abuse of discretion. In re Marriage of Johnson, 2011 MT 255, ¶ 12, 362 Mont. 236, 262 P.3d 1105. DISCUSSION ¶14 Whether the District Court (Sandefur, J.) abused its discretion when it denied Viola’s Rule 59(e) and 60(b) motions based on the District Court’s (McKittrick, J.) failure to consider whether the property settlement agreement was unconscionable? ¶15 Viola did not appear during the dissolution and property division hearing before the District Court (McKittrick, J.) on August 22, 2012. Viola did not argue at the hearing that the property settlement agreement was unconscionable. Viola nevertheless contends that the District Court (McKittrick, J.) abused its discretion when it failed to consider whether the property settlement agreement was unconscionable pursuant to § 40-4-201, MCA. ¶16 The District Court (McKittrick, J.) stated that “the property and debts of the parties are equitably distributed between the parties as set forth in the Property Settlement Agreement.” This Court considered the relationship between a finding of “equitable” and a finding of “not unconscionable” in In re Marriage of Miller, 238 Mont. 197, 201-02, 777 P.2d 319, 322-23 (1989). In In re Marriage of Miller, the district court determined that the property division was “not unconscionable.” This determination did not meet the higher 6 threshold of “equitable.” In re Marriage of Miller, 238 Mont. at 201-02, 777 P.2d at 322- 23. Here, the District Court (McKittrick, J.) determined that the property division was “equitable.” This determination met the lower threshold that the property division was “not unconscionable.” ¶17 A district court engages in discretionary action when it determines whether a marital and property settlement agreement is not unconscionable. This type of discretionary action cannot be categorized accurately as either a finding of fact or a conclusion of law. In re Marriage of Rolf, 2000 MT 361, ¶ 20, 303 Mont. 349, 16 P.3d 345 (overruled on other grounds). This Court presumes that these discretionary judgments are correct and will not disturb them absent an abuse of discretion by the trial court. In re Marriage of Rolf, ¶ 20. ¶18 This Court considered in In re Marriage of Lawrence, 197 Mont. 262, 271, 642 P.2d 1043, 1048 (1982), the conscionability of a property settlement agreement in which the wife received $50,000 and $9,600 in alimony, and the husband received the remainder of the $422,000 marital estate. This Court noted that stock shares with fluctuating values comprised the majority of the marital estate. In re Marriage of Lawrence, 197 Mont. at 271- 72, 642 P.2d at 1048. One of the companies was in serious financial trouble and the husband personally had guaranteed a $300,000 small business loan for the company. In re Marriage of Lawrence, 197 Mont. at 272, 642 P.2d at 1048. The Court recognized that the husband had risked bankruptcy in order to save this company. Given these circumstances, the Court determined that the distribution of the marital property was not unconscionable. In re Marriage of Lawrence, 197 Mont. at 272, 642 P.2d at 1048. 7 ¶19 The District Court (Sandefur, J.) noted that although Gary received the majority of the real property from the marital estate, Gary also took responsibility for all of the debt owed by the marital estate. Gary estimated that this debt amounted to $500,000. Gary’s certified public accountant submitted an affidavit stating that the Heaven on Earth Ranch and the ranch business had suffered a net loss of $83,000 from 2006 to 2011, and an additional $61,491 loss for bills that should have been paid in 2011 but were not paid until 2012, for a total loss of almost $144,500. ¶20 Much like the spouse in In re Marriage of Lawrence, Viola received an upfront payment of cash and assets, and a guaranteed income stream. Viola received almost $900,000 in cash and assets and $24,000 each year for the rest of her life. Gary received more assets than Viola, but he also accepted the risk associated with those assets and the debts associated with those assets. ¶21 We cannot say that the District Court (McKittrick, J.) abused its discretion in determining that the property settlement agreement met the not unconscionable threshold. We also cannot say that the District Court (Sandefur, J.) abused its discretion in denying the M. R. Civ. P. 59 and 60 motions in which Viola alleged that the property settlement agreement was unconscionable. ¶22 Whether the District Court abused its discretion when it determined that the property settlement agreement was valid without a disclosure of assets? ¶23 Section 40-4-254, MCA, provides that “[a]bsent good cause, the court may not enter a judgment with respect to the parties’ property rights” unless the parties have provided a full 8 disclosure of assets. Gary and Viola did not have an appraisal of the ranch, guest ranch, or outfitting business properties conducted before the District Court (McKittrick, J.) entered its Final Decree of Dissolution of Marriage. Viola argues that the District Court’s failure to require disclosure represents reversible error, and the District Court’s (Sandefur, J.) failure to grant her M. R. Civ. P. 59(e) and 60(b) motions represents an abuse of discretion. ¶24 The District Court (Sandefur, J.) considered whether the District Court (McKittrick, J.) could have found “good cause” to not require a final disclosure of assets. The District Court (Sandefur, J.) noted that “all of the marital assets in this case and liabilities were well- known to both parties.” Viola had acted as the bookkeeper for the ranch and guest ranch business for a number of years. Viola does not allege that Gary misled her about the existence of an asset, or the value of any asset. ¶25 Viola nevertheless contends that she suffered prejudice from Gary’s failure to submit a final disclosure of assets. Viola claims that she sought and expected to receive “half” of the marital property in the property settlement agreement. Viola claims that if the parties had valued all of the assets before the property settlement agreement, Viola would have known what “half” was, and that she would have required the property settlement agreement to provide her with “half.” ¶26 Viola admits, however, that she believed and continues to believe that the entire marital property was worth about $8 million. Viola does not claim that Gary misled her about the value of the marital estate. Viola further admits that she accepted a property settlement agreement that provided her with less than $4 million. This admission 9 undermines Viola’s claim that she suffered prejudice from Gary’s failure to provide a final disclosure of assets. ¶27 The District Court (Sandefur, J.) determined that no credible evidence existed to suggest that compliance with § 40-4-254, MCA, “would have had any material effect on the parties’ understandings of the valuation of the marital estate” during the mediation. As the District Court noted, Viola served as the bookkeeper for the ranch and the outfitting business for a number of years. Viola was familiar with all of the marital property and its approximate value. We agree that Viola has failed to demonstrate that she suffered any prejudice from the District Court’s (McKittrick, J.) entry of judgment without a final disclosure of assets. ¶28 Further, “[w]e will not put a district court in error for a ruling or procedure in which the appellant acquiesced, participated, or to which the appellant made no objection.” In re Caras, 2012 MT 25, ¶ 22, 364 Mont. 32, 270 P.3d 48 (upholding division of marital assets despite the parties’ failure to file a final disclosure of assets in compliance with § 40-4-254, MCA). Viola failed to contest the entry of the dissolution of marriage and division of assets before the District Court (McKittrick, J.). ¶29 We cannot say that the District Court (Sandefur, J.) abused its discretion for failing to grant Viola’s M. R. Civ. P. 59 and 60 motions on the basis that the District Court (McKittrick, J.) failed to require a full disclosure of assets. ¶30 Affirmed. /S/ BRIAN MORRIS 10 We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ LAURIE McKINNON | August 20, 2013 |
8b12d0c1-56e5-43e4-87fd-6a7beeb4edf4 | State v. Caswell | N/A | DA 11-0536 | Montana | Montana Supreme Court | DA 11-0536 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 39 STATE OF MONTANA, Plaintiff and Appellee, v. PETER EARL CASWELL, Defendant and Appellant. APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DC 10-82 Honorable James B. Wheelis, Presiding Judge COUNSEL OF RECORD: For Appellant: Colin M. Stephens; Smith and Stephens, P.C; Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Tammy K Plubell, Helena, Montana Bernard G. Cassidy, Lincoln County Attorney; Libby, Montana Submitted on Briefs: December 12, 2012 Decided: February 19, 2013 Filed: __________________________________________ Clerk February 19 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 A jury convicted Peter Earl Caswell (Caswell) of sexual intercourse without consent and partner/family member assault in the Nineteenth Judicial District Court, Lincoln County. Caswell argues that his due process rights were violated when a portion of the trial was not recorded during the State’s case in chief and effective appellate review is now unavailable. Caswell also argues that the District Court erred by admitting evidence of Caswell’s prior assault on the victim. We affirm. ¶2 We consider the following issues: ¶3 1. Was the defendant’s right to due process violated by the failure to record a portion of the State’s case in chief? ¶4 2. Did the District Court abuse its discretion by admitting evidence of the defendant’s prior assault of the victim? FACTUAL AND PROCEDURAL BACKGROUND ¶5 Caswell and Beth Caswell (Beth) were married for more than 40 years and had five children together, all of whom are now adults. Caswell and Beth have lived separately since March 26, 2009, when an argument between Caswell and Beth escalated into an altercation in which Caswell punched Beth several times in the face. Beth sustained injuries, including a black eye and a swollen face. Caswell was arrested by Captain Bo Pitman of the Lincoln County Sheriff’s Office and was ultimately convicted of one count of misdemeanor partner/family member assault arising from the incident. 3 ¶6 Caswell left the Lincoln County area for about a year after this assault but returned in the spring of 2010, renting a house in Eureka. Although separated, Caswell and Beth had occasional contact. Beth lived in a small cabin on 12.5 acres of land owned by her son, Ian, who also lived on the property, in an isolated area approximately 30 miles from Eureka. Beth occasionally took care of Caswell’s dog. Caswell knew that he was expected to call before going to Beth’s cabin, and Ian was usually present for those visits. Caswell took an extended trip to the eastern United States in the summer of 2010. During his return trip he called Beth frequently and told her he was returning to Eureka and did not want a divorce. Beth expressed her disfavor with his return and his intentions about the marriage. Caswell became stranded on the trip and Beth sent him money. Caswell returned on August 11, 2010, and, with Beth’s permission, drove to Beth’s cabin that night to drop off his dog. Ian was there, and they ate dinner. Caswell tried to convince Beth to reconcile and became agitated when she disagreed, leaving angrily. Beth was afraid Caswell would return and Ian slept on her couch that night. Caswell called Beth the next day and apologized. He then made further arrangements with her to take care of his dog. ¶7 On August 14, 2010, Beth and Ian had dinner again in Beth’s cabin and Ian returned to his cabin for the night. At about 10:00 p.m., Beth was in her pajamas, sitting and watching television. Her door was not locked. She had not seen anyone drive up her driveway. She felt a hand on her shoulder. Startled, she stood up and saw Caswell. She asked him what he was doing there. He sat down on the loveseat and told Beth to do the 4 same. She moved toward the dining area and asked him to leave. Caswell ignored Beth, threatened to kill himself, and said that he wanted to make love to her. Beth told Caswell “no” and again told him to leave. Caswell became belligerent, told Beth he was going to have sex with her, and grabbed Beth. Beth resisted, but Caswell used his size advantage to force Beth toward the bedroom. Beth wedged herself in the bathroom doorway and bit Caswell in the shoulder. She pleaded with Caswell “not to do this.” Caswell pushed Beth onto the bed and pulled off her pajama bottoms over Beth’s resistant kicking. Caswell ordered her to take off her top and she complied, believing further resistance futile. When Caswell left the room briefly, Beth attempted to call Ian on her cell phone, and grabbed a flashlight to hit Caswell. Caswell took the phone and flashlight away from Beth and subjected her to oral, vaginal, and anal sex. When finished, Caswell asked Beth if she wanted to call the sheriff, and she said no, believing Caswell was testing her. He then asked if he could come back later. Attempting to convince Caswell to leave, Beth said he could. ¶8 When Caswell left, Beth immediately locked the door and called 911 to report Caswell’s assault. Ian came to the cabin to wait with Beth for an officer. Captain Pitman arrived at Beth’s cabin in the early morning hours of August 15, 2010, and transported Beth to another son’s house in Eureka. Detective Rhoades, assigned to investigate sex crimes, was contacted and took over the investigation. Ian stayed at Beth’s cabin in case Caswell returned, which he did. Captain Pitman returned to Beth’s cabin and arrested Caswell without incident. Caswell was charged with one count of felony burglary, in 5 violation of § 45-6-204, MCA, one count of felony sexual intercourse without consent, in violation of § 45-5-503, MCA, and one count of misdemeanor partner/family member assault, in violation of § 45-5-206, MCA. ¶9 Caswell filed a pre-trial motion in limine requesting the court, among other things, to exclude all evidence relating to the prior assault on March 26, 2009. The State resisted, arguing that this evidence “goes directly to the critical question as to whether or not there was consent to the sexual intercourse, and whether or not the victim was compelled to submit by force.” After conducting a hearing on the motion, the court orally ruled: I am going to permit . . . Ms. Caswell’s testimony about the 2009 assault on her and her treatment. I will permit the 9-1-1 call. I will not permit, without other foundation, the officers’ interviews, or her handwritten statement, her recorded statement, unless there is a foundation shown for them, that is her cross-examination, or if they are used in cross-examination to impeach her or something of that sort. I’ll permit the photographs that were taken immediately, well, that were taken in 2009 and taken in 2010, assuming there is a foundation for them, that is that they are accurate, etcetera. The District Court further clarified: “I think a fair reading of [State v. Eighteenth Jud. Dist. Ct., 2010 MT 263, 358 Mont. 325, 246 P.3d 415] is that so long as it goes to the issue of whether there was consent, and not simply to show — I mean, the Rule 404B restrictions are still in place because it is clear the State isn’t offering it as to show that he was acting in conformity with that character.” ¶10 Trial was held March 1-3, 2011. Caswell defended against the charges by asserting that he and Beth were on good terms, maintained frequent contact, and engaged 6 in consensual sex on the night in question. Beth testified about the 2009 incident, describing the argument she and Caswell had at that time and the injuries she sustained during the assault. The District Court issued limiting instructions under M. R. Evid. 105, instructing the jury: The State has offered evidence that the Defendant at another time engaged in another act against Beth Caswell. That evidence was not admitted to prove the character of the Defendant or to show he acted in conformity therewith. The only purpose of admitting that evidence was to show the basis of the complaining witness’s state of mind at the time of the alleged offense. You may not use that evidence for any other purpose. The Defendant is not being tried for that other act. He may not be convicted for any other offense than that charged in this case. For the jury to convict the Defendant of any other offense than that charged in this case may result in unjust double punishment of the Defendant. When the State referenced the 2009 incident during closing argument, the court interrupted to add: “[t]he instruction I gave you was that the earlier act by the Defendant was to be used only to show the basis of the complaining witness’s acts, or state of mind at the time of this offense, not against the Defendant.” ¶11 The jury found Caswell guilty of sexual intercourse without consent and partner/family member assault, and not guilty of burglary. After sentencing,1 Caswell filed a notice of appeal on September 9, 2011. While preparing the transcript for appeal, the court reporter discovered that approximately 15 to 20 minutes of Captain Pitman’s direct and cross-examination was not recorded by the substitute court reporter who had worked the trial. The District Court, sua sponte, ordered that the procedure under M. R. 1 Caswell was sentenced to 60 years in the Montana State Prison, without parole, for the sexual intercourse without consent conviction, and one year in the Lincoln County Detention Center for the partner/family member assault conviction, to run consecutively. 7 App. P. 8(7) (2011) be implemented, which provides for supplementation of the record “[i]f a trial or other proceeding was not reported in whole or in part, or if a transcript is otherwise unavailable.” The State filed a statement of recollection, citing the prosecutor’s handwritten trial notes, the recording log, exhibit logs, the partial transcript, and a consultation with Captain Pitman, to summarize the portion of his testimony that was not recorded. The State identified 30 photographs taken by Pitman that were admitted as exhibits during his direct examination. The State also summarized Caswell’s cross-examination of Pitman, including Pitman’s recollection of arresting Caswell after the 2009 incident, and the court’s admission of the arrest report from the 2009 incident. Caswell’s response, filed December 13, 2011, stated, “[a]fter an approximate nine month lapse in time, counsel for the defendant does not have any independent recollection of the specifics of the missing testimony. Defense counsel believes objections were made during the course of the arresting officer’s testimony but has no recollection of the district court’s rulings on any objections.” Caswell submitted a list of topics he believed were covered during the missing portion of Pitman’s cross-examination, including proof that Caswell was not drinking, was cooperative, was forthcoming, and that Ian and Beth had lied in their testimony and in their statements to law enforcement. ¶12 On January 9, 2012, the District Court issued its Order Adopting Statement of Unavailable Evidence under M. R. App. P. 8(7)(d), in which the court stated it had “examined the State’s Statement of Unavailable Evidence, the Defendant’s Response, the partial transcript of the available recorded testimony of Captain Bo Pitman, the recording 8 log, and the exhibits introduced into evidence at the trial.” Caswell filed an objection to the order, which was denied by the District Court. Caswell appeals. STANDARD OF REVIEW ¶13 “Whether a reconstructed record is of sufficient completeness to accord effective appellate review is a question which may be determined by this Court.” State v. Deschon, 2004 MT 32, ¶ 16, 320 Mont. 1, 85 P.3d 756 (Deschon II).2 Failure to record a proceeding will “mandate a reversal only if the absence of [the] proceeding is a substantial and significant omission from the record which cannot be adequately reconstructed.” Deschon II, ¶ 14 (quoting U.S. v. Cashwell, 950 F.2d 699, 704 (11th Cir. 1992)). Thus, we review this issue de novo as a matter of law. ¶14 A district court has broad discretion in determining whether evidence is relevant and admissible. State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811. We review a district court’s determination on the admissibility of evidence for an abuse of discretion. Derbyshire, ¶ 19; State v. Guill, 2010 MT 69, ¶ 21, 355 Mont. 490, 228 P.3d 1152. “A court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.” Derbyshire, ¶ 19 (citation omitted). When the court’s ruling is based on an interpretation of an evidentiary rule or statute, our review is de novo and we will review the district court’s conclusions to determine whether the court correctly interpreted the 2 Deschon II cites to former M. R. App. P. 9(f). The District Court followed M. R. App. P. 8(6) in this case, which superseded M. R. App. P. 9(f). See Or., In Re: Rules of Appellate Procedure, (Mont. July 3, 2007) (No. AF 07-0016). 9 law. State v. Sage, 2010 MT 156, ¶ 21, 357 Mont. 99, 235 P.3d 1284 (citing Derbyshire, ¶ 19). DISCUSSION ¶15 1. Was the defendant’s right to due process violated by the failure to record a portion of the State’s case in chief? ¶16 Caswell argues that crucial portions of Pitman’s testimony were not recorded, that “all that remains is, at best, a summary based on recollections cobbled together nine months after the testimony occurred,” and that “[w]ithout a complete record of this testimony – both direct and cross-examinations, effective appellate review is unavailable for know[n] errors and objections during trial.” Caswell argues that Pitman’s role in the present case as well as his testimony regarding the 2009 incident establishes prejudice because the current state of the record diminishes his ability to pursue his appeal. ¶17 The State argues that Caswell has not identified a tenable theory on appeal and Pitman did not provide any testimony that the State did not also present through other means. The State maintains that the testimony was adequately reconstructed and, based upon the entirety of the record, Caswell’s due process has not been violated. ¶18 Due process of law is guaranteed by the Fifth Amendment to the United States Constitution and Article II, Section 17 of the Constitution of the State of Montana. To determine when a court’s failure to record a portion of a criminal trial violates a defendant’s right to due process, we review two criteria: “(1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.” 10 State v. Deschon, 2002 MT 16, ¶ 26, 308 Mont. 175, 40 P.3d 391 (Deschon I) (quoting Britt v. North Carolina, 404 U.S. 226, 227, 92 S. Ct. 431, 434 (1971); Madera v. Risley, 885 F.2d 646, 648 (9th Cir. 1989)). ¶19 Under the first prong of the Britt test, the “value of the transcript to the defendant,” the defendant must identify a “tenable theory as to what the [recording] error might have involved.” Deschon I, ¶ 28; Madera, 885 F.2d at 648. In Deschon I, the defendant argued he needed a record of voir dire “to determine whether any of the jurors were prejudiced by pre-trial publicity,” which we determined was a “tenable theory” that satisfied the first prong of the Britt test. Deschon I, ¶ 28. In Madera, the Montana state district court “did not record the voir dire, opening statements, closing arguments, bench conferences, jury charge, or the jury poll.” Madera, 885 F.2d at 647. The Ninth Circuit Court of Appeals concluded that the defendant satisfied the first prong of the Britt test by his claim that he needed a complete record to determine whether his codefendant’s alibi defense provided him an appealable issue. Madera, 885 F.2d at 648.3 ¶20 Here, we likewise conclude that Caswell presents a “tenable theory” that he was prejudiced by lack of a record in light of Pitman’s testimony about the events at issue on the night in question, and about the 2009 incident between Caswell and Beth. This theory is directly related to Caswell’s second issue on appeal, in which Caswell argues that the District Court erred by permitting Pitman to testify regarding the 2009 incident. 3 The U.S. Magistrate conducted an evidentiary hearing to reconstruct the unrecorded portions of the transcript, which the Ninth Circuit Court of Appeals concluded was adequate and not a violation of due process. Madera, 885 F.2d at 648-49. 11 Caswell thus satisfies the first prong of the Britt test, “the value of the transcript to the defendant.” ¶21 The United States Supreme Court has identified several alternative devices that may be employed to fulfill the transcript function. These have been applied in conjunction with the second prong of the Britt test: Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge’s minutes taken during trial or on the court reporter’s untranscribed notes, or a bystander’s bill of exceptions might all be adequate substitutes, equally as good as a transcript. Draper v. Washington, 372 U.S. 487, 495, 83 S. Ct. 774, 779 (1963); Madera, 885 F.2d at 649. As we have likewise explained, “[a] reconstructed record, as opposed to a verbatim transcript, can afford effective appellate review, particularly where appellate rules have established a procedure for reconstruction of the trial record.” Deschon II, ¶ 13; Cashwell, 950 F.2d at 703. ¶22 M. R. App. P. 8 provides a method for reconstruction of the trial record in the event the transcript is unavailable. Correction or modification of the record. If any difference arises as to whether the record accurately discloses what occurred in the district court, the difference shall be submitted to and settled by the district court within the time provided for transmission of the record or within such time as the district court may for good cause permit, and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the district court, on motion of a party or upon its own motion, either before or after transmission of the record to the supreme court, may order that the omission or misstatement be corrected and, if 12 necessary, that a supplemental record be certified and transmitted. All other questions as to form and content of the record shall be presented to the supreme court. M. R. App. P. 8(6) (emphasis added). Supplementing this procedure, M. R. App. P. 8(7) provides that “a statement of the evidence of the trial, proceeding, or unavailable transcript may be prepared” by the parties filing “a statement of the unavailable evidence from the best available means including the party’s recollections. . . . This statement must specify the source or sources of the parties’ statements of evidence.” M. R. App. P. 8(7)(b). After examination of the parties’ statements, the district court must enter an order “adopting or rejecting, in whole or in part, the statement of unavailable evidence such that any statement adopted by the district court most accurately reflects the unavailable evidence.” M. R. App. P. 8(7)(d). If the unavailable evidence related to the missing portion of the record presents a “fair and accurate picture” when “taken as a whole,” the reconstructed transcript creates a record of sufficient completeness to assure that the defendant’s right to due process is not violated. Deschon II, ¶ 29. ¶23 The District Court invoked the procedure provided by these rules and the parties provided submissions about the missing record. In its order, the District Court cited “the State’s Statement of Unavailable Evidence, the Defendant’s Response, the partial transcript of the available recorded testimony of Captain Bo Pitman, the recording log, and the exhibits introduced into evidence at the trial” in determining that the portion of the trial omitted from the transcript had been adequately reconstructed. After review, we likewise conclude that the reconstructed record, when “taken as a whole,” presents a “fair 13 and accurate picture” of what occurred during the portion of Pitman’s testimony omitted from the trial transcript. The record is of sufficient completeness to afford effective appellate review, particularly of the admission of evidence regarding the 2009 incident. We thus conclude that Caswell’s right to due process was not compromised. Deschon II, ¶¶ 16, 29. ¶24 2. Did the District Court abuse its discretion by admitting evidence of the defendant’s prior assault of the victim? ¶25 In the District Court, Caswell argued that the evidence of his previous assault upon Beth should be excluded as irrelevant under M. R. Evid. 402, unfairly prejudicial under M. R. Evid. 403, and as raising an improper propensity inference under M. R. Evid. 404. Caswell echoes these arguments on appeal, and adds that “[r]egardless of its expressed intent in the use of the evidence, the State’s use of the prior assault extended far beyond the narrow purposes for which it was supposedly admitted,” and even if the evidence was properly admitted under M. R. Evid. 404(b), “its admission was still improper because its probative value into the supposedly limited purpose articulated by the State was substantially outweighed by the prejudice to Caswell.” ¶26 The State replies that the District Court did not err in admitting the evidence, citing Guill, ¶ 34, for the position that a defendant’s prior acts against a victim are relevant for the issue of consent where lack of consent is a necessary element of sexual intercourse without consent. The State also argues that evidence of the 2009 incident was relevant to show that Beth had a reasonable apprehension of bodily injury for purposes of the partner/family member assault charge. 14 ¶27 Generally, evidence of a defendant’s prior acts or crimes “is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” M. R. Evid. 404(b). Even if admissible for such purposes, such evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” M. R. Evid. 403 (see i.e. State v. Skinner, 163 Mont. 58, 64, 515 P.2d 81, 84 (1973)). Clarifying the procedure to be followed when admission of such evidence is an issue, we have instructed: [I]t is up to the defendant to identify any of the State’s evidence that she believes should be excluded as irrelevant (Rule 402), unfairly prejudicial (Rule 403), relevant only for an improper propensity inference (Rule 404), or inadmissible under some other rule, and to explain with argument and authority why the evidence should be excluded. This may be accomplished by means of a motion in limine. . . . The prosecutor will then be required to respond to the defendant’s objections and to demonstrate the evidence’s admissibility. The court should conduct a hearing and issue a written decision with appropriate findings of fact and conclusions of law. If the court determines that the evidence is admissible, the defendant may request an instruction under Rule 105. Eighteenth Jud. Dist. Ct., ¶ 49. ¶28 Caswell admitted to having sexual relations with Beth but claimed the relations were consensual, making Beth’s consent the central issue of the trial. The parties were married at the time and Caswell claimed they were getting along well and seeing each other often. Then, during the incident itself, Beth complied with Caswell’s demands to a limited degree because of her apprehension about what Caswell might do. The District 15 Court did not abuse its discretion in determining that this was an appropriate case for introduction of evidence of a previous assault on the issue of consent, and that the relevance of the evidence was not outweighed by unfair prejudice. Although Caswell argues the evidence was used beyond its stated purpose, the District Court limited the scope of the evidence about the 2009 incident, gave a limiting instruction to the jury under M. R. Evid. 105, and even interrupted the prosecutor’s closing argument to again advise the jury that the evidence could “be used only to show the basis of the complaining witness’s acts, or state of mind at the time of this offense, not against the Defendant.” The evidence was carefully limited in this case. ¶29 Procedurally, the District Court held a hearing on this issue but did not enter written findings of fact or conclusions of law. The better policy would be to adhere to the procedure suggested in Eighteenth Jud. Dist. Ct. and follow the hearing with “a written decision with appropriate findings of fact and conclusions of law.” Eighteenth Jud. Dist. Ct., ¶ 49. However, the District Court here clearly articulated the evidentiary boundaries and the transcript shows that both parties understood the limitations the court had placed on the State’s use of the evidence. ¶30 Affirmed. /S/ JIM RICE We concur: /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ BRIAN MORRIS | February 19, 2013 |
c72a2ae4-6b60-40b8-8262-c9e5e0fdee80 | Thayer v. Hollinger | 2013 MT 52 | DA 12-0286 | Montana | Montana Supreme Court | DA 12-0286 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 52 EUGENE THAYER, KEITH BORTNEM, REBECCA BORTNEM, ROBERT DAILY, LEIGHANNE DAILY, TAMARA DIMKE, DUANE DOCKTER, LOIS DOCKTER, and PATRICIA SLETTEN, Plaintiffs and Appellants, v. MARK A. HOLLINGER and JILL HOLLINGER, Respondents and Appellees. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 09-773 Honorable Edward P. McLean, Presiding Judge COUNSEL OF RECORD: For Appellants: Ward E. Taleff, Connor J. Murphy, Taleff Law Office, P.C., Great Falls, MT For Appellees: Stephen R. Brown; Elena J. Zlatnik; Garlington, Lohn & Robinson, PLLP, Missoula, MT Submitted on Briefs: February 6, 2013 Decided: March 5, 2013 Filed: __________________________________________ Clerk March 5 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Plaintiffs (collectively referred to as the Homeowners) appeal from the District Court’s Opinion and Order, filed October 4, 2011. We affirm. ¶2 The Homeowners contend that the District Court erred by not recognizing that they have unrestricted easements across four roads located on the Hollingers’ property. PROCEDURAL AND FACTUAL BACKGROUND ¶3 This action arises from easement disputes at Big Sky Lake, which is north of Clearwater Junction and east of Salmon Lake, in Missoula County. In 1965 the lake was called Fish Lake, and the surrounding land was largely undeveloped. That year Carter Williams and Anton Hollinger formed a corporation called the Big Sky Lake Company (Company) and bought the lake and the surrounding 800 or so acres of land. They changed the name of the lake to Big Sky Lake, built an access road that encircled the lake and divided the lakeshore into a number of lots. Over the years those lakeshore lots were all sold to the Homeowners and others. The access road, called the Perimeter Road and now owned by the Homeowners Association, provides the access to each lakeshore lot. All of the lakeshore lots lie within the Perimeter Road. ¶4 After the lakeshore lots were divided and sold, the larger tracts of land outside the Perimeter Road were divided between the Hollinger and Williams families. The Hollingers’ land does not abut the lakeshore and does not abut the lakeshore lots. The Homeowners all own lakeshore lots and claim a right, based upon language in various documents that arose from the initial development of the lake, to an express easement allowing them the 3 unrestricted use of four roads or trails on the Hollingers’ land.1 While the Hollingers allow permissive use of the four roads or trails for non-motorized access, the Homeowners claim the right to use motor vehicles including motorcycles, ATVs and snowmobiles. ¶5 After the Hollingers installed gates at several points to block motorized access to the disputed roads, the Homeowners sued in District Court.2 After an evidentiary hearing, the District Court denied the Homeowners’ request for a preliminary injunction against the Hollingers’ blocking the roads to motorized access. The Homeowners commissioned a survey of the area and the parties filed cross-motions for summary judgment. The District Court granted summary judgment to the Hollingers, holding that none of the documents relied upon by the Homeowners established an easement across the Hollingers’ land. STANDARD OF REVIEW ¶6 This case arises from the District Court’s decision on cross-motions for summary judgment. This Court reviews a decision on summary judgment de novo, by applying the same criteria as the district court under M. R. Civ. P. 56. Smith v. BNSF Ry., 2008 MT 225, ¶ 10, 344 Mont. 278, 187 P.3d 639. We review a decision “de novo” to determine whether it is correct. State v. Loney, 2004 MT 204, ¶ 6, 322 Mont. 305, 95 P.3d 691. DISCUSSION 1 The Homeowners claimed a prescriptive right to use the roads on the Hollinger property. The Homeowners abandoned that claim and the Hollingers abandoned their counterclaims for trespass and damages, in a stipulation approved by the District Court. 2 There are as many as 75 lakeshore lots on the lake. This action was originally filed by 15 of the lot owners, and the appeal is being prosecuted by nine. 4 ¶7 An easement for a right of way is a servitude which may be imposed upon a parcel of land, which is the servient tenement, in favor of another parcel of land, which is the dominant tenement. Sections 70-17-101 and -103, MCA; Davis v. Hall, 2012 MT 125, ¶¶ 18-19, 365 Mont. 216, 280 P.3d 261. In this case the Homeowners claim a right of way attached to their lakeshore lots as the dominant tenements, to travel over the four roads or trails through the servient tenement of the Hollingers’ land. The Homeowners claim that their right of way arises expressly from several identified documents that establish their easement rights across the Hollingers’ land. In such a case, the easement must be described with “reasonable certainty” in documents conveying land, or may be depicted or described in expressly referenced documents such as a recorded plat or certificate of survey. Davis, ¶¶ 19-20. An express easement must be “clearly depicted,” Pearson v. Virginia City Ranches Assoc., 2000 MT 12, ¶¶ 18-21, 298 Mont. 52, 993 P.2d 688. [T]he intent to create an easement must be clearly and unmistakably communicated on the referenced plat or certificate of survey using labeling or other express language. This is the minimal requirement to establish the easement. An easement may not be inferred or implied from an unlabeled or inadequately described swath of land or other such depiction appearing on a plat or certificate of survey. Blazer v. Wall, 2008 MT 145, ¶ 43, 343 Mont. 173, 183 P.3d 84. ¶8 On appeal the Homeowners rely upon several documents to support their claimed easements across the Hollingers’ land. First they argue that “Restrictive Covenants for Big Sky Lake,” recorded in 1968, are a source of the claimed easements. In those Covenants the Company granted the persons owning lakeshore lots a 60-foot wide easement and right of way for ingress and egress “over roads as the same have been constructed by the Company.” 5 The easement was “applicable to the perimeter road, which shall be the outer boundary of each tract and subdivision,” and to the “middle access roads” connecting the perimeter road to the roads leading to each lakeshore lot. The Covenants also provide: Unless reasonably necessary to reach any individual tract, or unless such roads are part of the Perimeter Road system or the middle access road system, there is no easement or right of way on any roads which existed prior to 1965 . . . . Restrictive Covenants, ¶ 10 (emphasis added). ¶9 The District Court properly determined that the Restrictive Covenants granted an easement only for ingress and egress to the lakeshore lots, and only within the Perimeter Road system. The Hollingers’ land at issue is all outside of the Perimeter Road. The easements were also expressly limited to roads constructed by the Company after 1965. There is no evidence that the Company constructed the Hollinger roads after 1965. In addition, the Restrictive Covenants do not provide any clear description or depiction, expressly or by reference, of any roads on the Hollingers’ land. The Restrictive Covenants are therefore not a source of easements in favor of the Homeowners across the Hollingers’ land. ¶10 The Homeowners also rely upon a January 20, 1972, Grant of Easement from the Company to the Homeowners Association and to each person owning a lakeshore lot. The granted easement was for ingress and egress to the lakeshore lots, for a 60-foot strip of land surrounding the lakeshore, and for all roads shown on any and all plats that have been filed or may be filed by the Company. The Homeowners point to no relevant plat depicting the roads on the Hollingers’ property for purposes of the 1972 Grant of Easement, and the 6 District Court correctly determined that the Grant failed to provide any clear description or depiction of an easement across the Hollingers’ land. The Grant of Easement is therefore not a source of easements in favor of the Homeowners across the Hollingers’ land. ¶11 The District Court specifically found that the Homeowners had not provided copies of any “historically-recorded plats” applicable to the case. A 1999 Certificate of Survey (COS 5018) and a 2009 map (Access Road Parcel Separations [for] Big Sky Lake Estates) submitted by the Homeowners depict the lakeshore tracts, the Perimeter Road, and portions of the surrounding land owned by the Hollinger and Williams families. The District Court found that these documents did not show legal descriptions, sizes or boundaries of the lands outside of the Perimeter Road, “much less show or otherwise describe the four roads located on the Hollingers’ private property and the scope and nature of the easements claimed.” A 2003 Montana Cadastral Mapping Project map depicts the Hollingers’ property and four roads, called “trails,” on the property. There is no evidence that the Company recorded this as a plat and the District Court found that nothing on it “reveals, identifies or describes the Homeowners’ claims of grants of easement rights over the four ‘trails,’ ” or identifies the trails as “servient estates benefitting the dominant estate properties of the private owners of lake-side tracts . . . .” The Homeowners rely upon a 2010 Survey of Road Centerlines that they commissioned for purposes of this litigation. While it identifies numerous roads or trails outside the Perimeter Road, it is nothing more than a demonstrative exhibit illustrating the Homeowners’ claims in this litigation. It is not a grant of easement and does not establish the existence, nature or source of the easements claimed by the Homeowners. 7 ¶12 Last, the Homeowners rely upon easements mentioned in one or more of the warranty deeds given by the Company when transferring some of the lakeshore lots. Those deeds provide easements for ingress and egress to the lakeshore lots, and for the “use of all roads which have been constructed since August 1, 1965” along with easements that are shown on any plats filed by the Company. The Hollinger roads are not used for ingress or egress to the lakeshore lots and there is no evidence that the Hollinger roads were constructed after August 1, 1965. ¶13 The District Court carefully and thoroughly considered each of the easement contentions offered by the Homeowners. After doing so the District Court found that none of the documents support a claim that the Homeowners or their predecessors “were ever granted or reserved such expansive easement rights for access, ingress and egress over Hollingers’ private roads.” The District Court concluded and ordered that as a matter of law the Homeowners do not have any express easement rights over the four roads located on the Hollingers’ property. ¶14 The District Court properly applied the facts and the law to conclude that the Homeowners had not established any right to easements over the Hollingers’ land. The District Court is affirmed. /S/ MIKE McGRATH We concur: /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ JIM RICE /S/ BRIAN MORRIS 8 | March 5, 2013 |
ed7ebc67-6c34-4d67-9afc-bff165e32e18 | In re M.J. | 2013 MT 60 | DA 12-0532 | Montana | Montana Supreme Court | DA 12-0532 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 60 IN THE MATTER OF: M.J., A Youth in Need of Care. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDN-12-030 Honorable Kenneth R. Neill, Presiding Judge COUNSEL OF RECORD: For Appellant: Elizabeth Thomas, Attorney at Law, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana Theresa L. Diekhans, Child Protection Unit, Great Falls, Montana John Parker, Cascade County Attorney, Great Falls, Montana Submitted on Briefs: February 13, 2013 Decided: March 5, 2013 Filed: __________________________________________ Clerk March 5 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 O.J., M.J.’s mother, appeals the order entered by the Eighth Judicial District Court, Cascade County, finding M.J. to be a youth in need of care and granting custody of M.J. to M.J. Sr., M.J.’s father. We affirm. ¶2 O.J. raises the following issues on appeal: ¶3 1. Did the District Court err in finding the child a youth in need of care? ¶4 2. Did the District Court err when it dismissed the abuse and neglect proceeding and granted custody to the father under § 41-3-438(3)(d), MCA? Factual and Procedural Background ¶5 M.J. was born with numerous medical issues and hospitalized for the first three months of his life. M.J. suffers from liver disease, gastric reflux disease, cycocel trite, cloudy corneas, a partial occipital infarct, hearing and visual impairments, seizures, and brain damage. The suspected cause of M.J.’s medical problems was maternal drug use. At the time of M.J.’s birth, O.J. tested positive for methamphetamine. While O.J. denied methamphetamine use despite the test result, O.J. admitted to marijuana use during the pregnancy. ¶6 In addition to being treated in Great Falls, Montana, M.J. has seen a pediatric eye specialist and a gastrointestinal specialist in Billings, Montana, and has been transported to a neo-ICU unit in Seattle, Washington, for treatment, and later to a Seattle hospital for a biopsy of his liver. M.J.’s prognosis is guarded and M.J. will require ongoing pediatric specialty care beyond what is available in Montana. M.J. will need a parent who can 3 provide constant care and has training by medical professionals in understanding how to care for M.J. ¶7 Concerns arose when M.J. was scheduled to be discharged approximately three months after birth. O.J. had not been consistently visiting M.J. and she had indicated that she would not seek follow up medical care for M.J. O.J. was defiant to hospital staff and nurse directives and would not provide her home address to the hospital. When O.J. finally provided her address, she could not be located by Child Protective Service workers, nor could she be reached by phone. M.J. was released into M.J. Sr.’s care the following day. ¶8 On April 9, 2012, the Department of Public Health and Human Services (Department) filed a Petition for Emergency Protective Services, Adjudication as Youth in Need of Care and Temporary Legal Custody. The District Court granted the Department temporary protective services and set a show cause hearing on the Department’s petition for June 26, 2012. ¶9 O.J. did not appear at the show cause hearing. O.J.’s counsel represented that he had no contact with O.J. The Department indicated that until two weeks prior to the hearing, they had kept in good contact with O.J. O.J.’s counsel acknowledged that O.J. waived her right to contest the show cause hearing as O.J. had not filed a response to the petition; however, counsel objected to the District Court adjudicating M.J. a youth in need of care. M.J. Sr. was present for the show cause hearing, waived his right to a hearing, and stipulated to a finding that M.J. was a youth in need of care. M.J. Sr. wanted the case to move quickly so M.J.’s medical needs could be addressed. M.J. Sr. is an 4 airman in the Air Force. He wanted to obtain custody of M.J. so that he could transfer to a location with medical facilities that could address M.J.’s needs. The District Court set an adjudicatory and dispositional hearing for July 24, 2012. ¶10 At the July 24, 2012 hearing, O.J. appeared with counsel. O.J.’s counsel requested a continuance, representing that he had only met O.J. moments before the hearing. M.J. Sr. appeared and again expressed his desire to have things move quickly so he could transfer to an air base with better medical facilities. The District Court reset the adjudication and dispositional hearing for August 7, 2012. ¶11 O.J. failed to appear at the August 7, 2012 hearing. The court conducted the hearing and received testimony from Dr. Deborah Garrity, M.J.’s treating physician; Child Protective Specialist Anne Sinnott; and M.J. Sr. Sinnott described the Department’s efforts to assist O.J. in her parenting of M.J. Specifically, Sinnott related that O.J. never progressed beyond supervised visits with M.J. because O.J. failed to appreciate the magnitude of M.J.’s medical needs. O.J. disagreed with the opinions of medical staff and did not understand why the Department had to be involved. Sinnott explained that O.J. had not attempted to really understand M.J.’s issues and what it would take to parent M.J. Examples of O.J.’s inability to follow medical directives were O.J. refusing to leave M.J. in the incubator, and refusing to wear a hospital gown. ¶12 Dr. Garrity and Sinnott described M.J. Sr.’s involvement with M.J. as very good. M.J. Sr. followed medical staff directions, understood the demands parenting M.J. would require, and displayed competency in dealing with both M.J.’s medical issues and receiving the necessary medical training. M.J. Sr. explained to the District Court that 5 granting custody of M.J. to M.J. Sr. was necessary for M.J. Sr. to be granted a transfer to an air base with appropriate medical facilities. Dr. Garrity concurred that M.J.’s survival depended on appropriate medical services, and that Montana could not provide the type of medical care M.J. needed. Sinnott also believed M.J. Sr. had demonstrated he could appropriately parent M.J. and provide for M.J.’s medical needs. ¶13 At the conclusion of the adjudicatory hearing, the District Court found, based upon a preponderance of the evidence, that M.J. was a youth in need of care. The District Court next conducted a disposition hearing, and again Dr. Garrity and Sinnott testified. Dr. Garrity testified to the best interests of M.J. as follows: I am completely comfortable with recommending that [M.J.’s] dad be the primary caretaker of this baby. He’s presented himself to be a complete class act in taking care of this complicated baby from the first day I met him. He’s been responsive to any suggestions we have as far as getting him to appointments or things to do to help care for this baby. And so it’s my opinion that [M.J.] Sr. be made the primary parent for this baby. ¶14 Dr. Garrity testified that it is in the best interest of M.J. to live in Arizona with M.J. Sr. where he can receive adequate medical care. Sinnott concurred in this recommendation, as did the appointed guardian ad litem. The guardian ad litem believed the District Court should grant custody to M.J. Sr. because the Air Force was willing to assign M.J. Sr. to an air base that had a major medical center that could properly care for M.J. Based upon this testimony, the District Court dismissed the petition and awarded custody of M.J. to M.J. Sr. O.J. appeals. Standard of Review 6 ¶15 The parties have articulated different standards of review in their briefs. O.J. has set forth an abuse of discretion standard citing In re K.J.B., 2007 MT 216, ¶ 22, 339 Mont. 28, 168 P.3d 629, and In re V.F.A., 2005 MT 76, ¶ 6, 326 Mont. 383, 109 P.3d 749. The State argues that this Court should review a district court’s findings of fact to determine if they are clearly erroneous and conclusions of law to determine if they are correct. In re A.R., 2005 MT 23, ¶ 15, 326 Mont. 7, 107 P. 3d 457. ¶16 We recently addressed the standard of review to apply in youth in need of care proceedings in In re K.H., 2012 MT 175, 366 Mont 18, 285 P.3d 474, and noted that the “standard of review does not depend on whether the district court grants or denies a petition to adjudicate a youth in need of care.” K.H., ¶ 19. The standard of review was explained as follows: We review a district court’s decision to terminate parental rights to determine whether the court abused its discretion. We review a district court’s specific findings to determine whether they are clearly erroneous. 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, upon reviewing the record, this Court is left with the definite and firm conviction that the district court made a mistake. In reviewing a district court’s conclusions of law, we determine if they are correct. K.H., ¶ 19 (citing In re E.K., 2001 MT 279, ¶ 31, 307 Mont 328, 37 P.3d 690). Thus, we review the district court’s findings for clear error, its conclusions of law for correctness, and the court’s ultimate decision regarding adjudication and disposition for abuse of discretion. ¶17 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 7 injustice.” K.H., ¶ 19 (citing In re A.J.W., 2010 MT 42, ¶ 12, 355 Mont. 264, 227 P.3d 1012; In re C.J.K., 2005 MT 67, ¶ 13, 326 Mont. 289, 109 P.3d 232). Further, “[t]his Court does not substitute its judgment for that of the trial court regarding the credibility or weight to be given to the evidence, nor does this Court review the record to determine whether evidence would support a different finding.” K.H., ¶ 19 (citing In re I.B., 2011 MT 82, ¶ 36, 360 Mont. 132, 255 P.3d 56; K.J.B., ¶ 23). Issue 1. ¶18 Did the District Court err in finding the child a youth in need of care? ¶19 In order to adjudicate a child a youth in need of care, the State must prove, by a preponderance of the evidence, that the child has been abused, neglected or abandoned. Section 41-3-437(2), MCA; I.B., ¶ 20; In re B.S., 2009 MT 98, ¶ 22, 350 Mont. 86, 206 P.3d 565. ¶20 O.J. argues that the record does not support a determination that she had minimal involvement with M.J. or that she was unwilling to learn what was required to care for M.J. The District Court, however, found that O.J. abused and neglected M.J. by using drugs during her pregnancy, and that her drug use could have led to the medical complications and special needs of M.J. This was based upon the testimony of Dr. Garrity that the suspected cause of M.J.’s medical problems was maternal drug use. Clearly the origins of M.J.’s medical problems could not definitively be established. However, the use of methamphetamines and marijuana during pregnancy, facts which are supported by a preponderance of the evidence, is evidence of O.J.’s neglect regardless of a definitive correlation being made to M.J.’s medical problems. 8 ¶21 The District Court also found that O.J. failed to appreciate the severity of M.J.’s medical needs and that O.J. was unwilling to learn what was required to care for M.J. Substantial evidence from the adjudicatory hearing exists to support these factual findings. Further, the District Court did not abuse its discretion in finding M.J. a youth in need of care. To the contrary, the District Court employed appropriate discretion in considering competing arguments and making a determination which was supported by the evidence. The record supports the District Court’s finding that M.J. was a youth in need of care. O.J. has failed to show that the finding is clearly erroneous or that the District Court abused its discretion in granting the petition. Issue 2. ¶22 Did the District Court err when it dismissed the abuse and neglect proceeding and granted custody to the father under § 41-3-438(3)(d), MCA? ¶23 A district court has several dispositional options once a child is found to be a youth in need of care. Those options are set forth in § 41-3-438, MCA. The provision invoked in the instant proceedings was § 41-3-438(3)(d), MCA. It provides in pertinent part: (3) If a child is found to be a youth in need of care under 41-3-437, the court may enter its judgment, making any of the following dispositions to protect the welfare of the child: . . . (d) order the placement of the child with the noncustodial parent, superseding any existing custodial order, and dismiss the proceeding with no further obligation on the part of the department to provide services to the parent with whom the child is placed or to work toward reunification of the child with the parent or guardian from whom the child was removed in the initial proceeding. . . . 9 Section 41-3-438(3)(d), MCA. ¶24 O.J. argues that the District Court abused its discretion in placing M.J. out of state. Such a placement, O.J. argues, inhibits her abilities to parent and maintain a continuing relationship with M.J. O.J. argues that it is in the best interests of M.J. to maintain a relationship with his mother. ¶25 The District Court was presented with a situation where an infant arguably would not even survive if medical care at a different facility were not secured. Fortunately, M.J. Sr. had the ability to relocate to another air base which would allow access to more advanced medical care and thereby improve M.J.’s chance of survival. The District Court determined that O.J. was unwilling to learn how to care for M.J. or take steps to improve her ability to properly parent M.J. O.J. did not even attend the adjudication and disposition hearing for her child. The record clearly demonstrates that the District Court properly considered the welfare of M.J., and made a conscious, deliberate decision in awarding custody of M.J. to his father. Further, as the District Court dismissed the petition, and thereby terminated the Department’s involvement in these proceedings, the proper forum for O.J. to challenge custody of M.J. is in a parenting plan action. In re S.S., 2012 MT 78, ¶ 17, 364 Mont. 437, 276 P.3d 883. ¶26 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ BRIAN MORRIS | March 5, 2013 |
efa72f7d-7739-417a-be82-c47caeb9f345 | State v. Dallas C. Herman | 2013 MT 65N | DA 12-0348 | Montana | Montana Supreme Court | DA 12-0348 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 65N STATE OF MONTANA, Plaintiff and Appellee, v. DALLAS C. HERMAN, Defendant and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC-01-043(C) and DC-06-383(A) Honorable Stewart E. Stadler, Presiding Judge COUNSEL OF RECORD: For Appellant: Dallas C. Herman (Self-Represented), Atwater, California For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Ed Corrigan, Flathead County Attorney, Lori Adams, Deputy County Attorney, Kalispell, Montana Submitted on Briefs: February 6, 2013 Decided: March 12, 2013 Filed: __________________________________________ Clerk March 12 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 Dallas C. Herman appeals several orders entered by the Eleventh Judicial District Court, Flathead County, denying motions to dispose of his probation violations. We affirm. ¶3 Herman was sentenced in 2001 to a twenty-year prison term with thirteen years suspended on his plea of guilty to the offense of Conspiracy to Commit Robbery in violation of §§ 45-4-102 and 45-5-401, MCA. After his release from prison, Herman pleaded guilty in April 2008 to Criminal Possession with Intent to Distribute methamphetamine and the court imposed a consecutive prison term of seven years, with all seven years suspended. Five months later, the Flathead County Attorney filed petitions in both cases to revoke Herman’s suspended sentences and warrants were issued for his arrest. Before Herman could be arrested on those outstanding warrants, he was arrested in Spokane, Washington, in August 2008 and charged with Possession with Intent to Distribute 50 or more grams of methamphetamine. On his plea of guilty, he was sentenced in April 2010 to 186 months in federal prison for that offense. ¶4 In January 2011, Herman filed with the District Court a Demand for Speedy Trial and Petition to Dispose of Probation Violation. Herman contended that, pursuant to 3 § 46-31-101, MCA, the Interstate Agreement on Detainers (IAD), he was entitled to a speedy resolution of the probation revocation proceedings while he was incarcerated in federal prison for the crimes that constituted violation of the conditions of his suspended sentences. ¶5 On October 5, 2011, the District Court concluded that the IAD “does not apply to probation violations” and, consequently, that Herman’s “petition to dispose of probation . . . [is] denied.” Herman twice requested that the District Court reconsider its order in motions filed on December 7, 2011, and April 10, 2012. The District Court denied both requests. Herman filed his notice of appeal on June 4, 2012, and now asserts that the District Court’s legal conclusion regarding the IAD was incorrect. He also contends that the court erred by denying an argument he raised in his second motion to reconsider its original order. ¶6 The State contends that Herman’s appeal is untimely because his motions to reconsider did not toll the time for appeal of the District Court’s October 5, 2011 order. The State also argues that the District Court’s dismissal of Herman’s petition was correct on the merits. ¶7 As the State points out, the Montana Rules of Civil Procedure do not provide for a motion for reconsideration and we have refused to recognize such motions in civil cases “unless the substance of the motion constructively requests the court to alter or amend the judgment” as allowed by M. R. Civ. P. 59. Horton v. Horton, 2007 MT 181, ¶ 8, 338 Mont. 236, 165 P.3d 1076 (citation omitted). We have observed, however, that “revocation proceedings are matters over which the original sentencing court in a 4 criminal case ‘retains jurisdiction.’. . . Thus, revocations are a postconviction continuation of criminal cases.” State v. Rogers, 267 Mont. 190, 193, 883 P.2d 115, 117 (1994) (quoting State v. Oppelt, 184 Mont. 48, 52-53, 601 P.2d 394, 397 (1979)). ¶8 Under the Montana Rules of Appellate Procedure, an appeal in a criminal case “must be taken within 60 days after entry of the judgment from which appeal is taken.” M. R. App. P. 4(5)(b)(i). Herman filed his notice of appeal 241 days after the District Court entered its judgment on October 5, 2011, but within sixty days from the denial of his second motion to reconsider. Even if Herman’s appeal were to be considered timely, we conclude that it lacks merit. ¶9 We have held that an outstanding charge “based on probation or parole violation is not sufficient to be determined an ‘untried indictment, information or complaint’” sufficient to trigger the Interstate Agreement on Detainers.” Blakey v. Dist. Ct., 232 Mont. 178, 185, 755 P.2d 1380, 1384 (1988) (citing Carchman v. Nash, 473 U.S. 716, 105 S. Ct. 3401 (1985); see also U.S. v. Bottoms, 755 F.2d 1349 (9th Cir. 1985)). The District Court correctly concluded that the IAD does not apply to probation violations. We decline to consider the issue raised for the first time in Herman’s second motion to reconsider, as such motions “cannot be used to raise arguments which could, and should, have been made before judgment issued.” Nelson v. Driscoll, 285 Mont. 355, 360, 948 P.2d 256, 259 (1997) (citation omitted). ¶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 5 issues in this case are legal and controlled by settled Montana law, which the District Court correctly interpreted. ¶11 Affirmed. /S/ BETH BAKER We Concur: /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ JIM RICE /S/ BRIAN MORRIS | March 12, 2013 |
f97f538b-fb49-4e91-8ba0-84389bd42fce | In re R.W.K. | 2013 MT 54 | DA 12-0231 | Montana | Montana Supreme Court | DA 12-0231 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 54 IN THE MATTER OF: R.W.K., Respondent and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADI 11-040 Honorable Thomas M. McKittrick, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender, Jennifer A. Hurley, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana John Parker, Cascade County Attorney, Marvin Anderson, Deputy County Attorney, Great Falls, Montana Submitted on Briefs: January 3, 2013 Decided: March 5, 2013 Filed: __________________________________________ Clerk March 6 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 R.W.K. appeals from an order of Montana’s Eighth Judicial District Court, Cascade County, granting the State’s petition for the involuntary commitment of R.W.K. to the Montana State Hospital (MSH) and authorizing MSH to administer appropriate medication involuntarily. We affirm. ISSUES ¶2 R.W.K. raises the following two issues on appeal: ¶3 1. Did the District Court violate R.W.K.’s statutory and due process rights when it failed to obtain a personal waiver of rights under § 53-21-119(1), MCA? ¶4 2. Is there a valid order authorizing involuntary medication, either in the original commitment order or in the District Court’s amended order? FACTUAL AND PROCEDURAL BACKGROUND ¶5 R.W.K. is a 55-year-old male with a history of schizoaffective disorder. On December 24, 2011, law enforcement officers transported R.W.K. to the emergency department at Benefis Health System (Benefis) in Great Falls, Montana, after R.W.K. caused a disturbance at a church. R.W.K. reportedly entered a church, laid down in a pew, and chanted “I’m dead, I’m dead, I’m dead.” At the emergency room, R.W.K. refused to cooperate and continued to claim that he was dead. R.W.K. was admitted to the behavioral health unit for further treatment, but refused to walk or change into hospital garments. Dr. Mary Ann Evans attempted to interview R.W.K. and reported that he made little to no eye contact, would not speak, and refused to eat, take medication, or 3 get dressed. Dr. Evans further reported that R.W.K. hit and shook the locked unit doors, spoke incoherently, and jumped up and down. ¶6 Before his admission at Benefis, R.W.K. lived in a group home and was a patient of the Center for Mental Health (CMH). The medical records attached to the commitment petition included information from CMH. CMH indicated that R.W.K. had refused to take his medications for several days prior to the incident at the church. CMH also noted that R.W.K.’s behavior had been disorganized and belligerent. R.W.K. was isolating in his room and not talking to anyone “because of the ghost.” R.W.K. exhibited symptoms and behaviors that had been recognized in the past to indicate worsening psychosis. R.W.K.’s history includes many instances of psychiatric hospitalization, including time spent at MSH. ¶7 On December 28, 2011, the State filed a petition to involuntarily commit R.W.K. The petition alleged that R.W.K. was unable to care for his basic needs and appeared to pose a danger to himself and others. To determine if R.W.K. needed long-term treatment in a secure facility, the petition requested a mental health evaluation. The District Court set an initial appearance for December 30, 2011, and ordered the appointment of a public defender to represent R.W.K. R.W.K. was to remain at Benefis until the hearing. The District Court appointed a friend of respondent to serve pursuant to § 53-21-102(8), MCA. ¶8 On December 30, 2011, the District Court held a hearing to determine if R.W.K. was seriously mentally ill and in need of commitment. R.W.K. appeared at the hearing accompanied by his public defender and the appointed friend. The District Court opened 4 the hearing by reading R.W.K. a list of his substantive and procedural rights related to the proceeding. Counsel for the State told the District Court that he had spoken to R.W.K.’s counsel and believed that R.W.K. and his counsel agreed that R.W.K. would knowingly and intentionally waive his procedural rights in the matter. The State recommended commitment to MSH for a period of up to 90 days. ¶9 R.W.K.’s counsel told the District Court that she had met with R.W.K. and the appointed friend and provided R.W.K. with a copy of the petition. R.W.K.’s counsel stated that she believed R.W.K. understood his rights and the nature of the proceeding, even though he suffers from a mental disorder. According to R.W.K.’s counsel, R.W.K. communicated to her the day before the hearing and again the morning of the hearing that he wished to waive his rights pursuant to § 53-21-119, MCA, and would stipulate to the allegations contained in the petition. R.W.K.’s counsel stated that her client would agree that the least restrictive placement was MSH so that they might have a longer concerted effort at getting his medications regulated. R.W.K. did not object to or protest his counsel’s representations. ¶10 After the parties made their statements, the District Court orally announced its findings that: (1) the respondent intelligently waived his rights; (2) he suffers from a serious mental illness; (3) he is a danger to himself; and (4) the least restrictive placement is commitment to MSH for a period of up to 90 days. Subsequently, the District Court entered a written order that included a full list of findings of fact and conclusions of law. The order included a finding that R.W.K. “understands all procedural rights and that he waives those rights knowingly.” The order also stated that R.W.K. “shall take such 5 medication, as the attending physicians shall prescribe, both at the state hospital and, also, during community outpatient treatment.” ¶11 On January 25, 2012, the State filed a motion to amend the commitment order to allow the chief medical officer at MSH to administer appropriate medication involuntarily. The State attached a letter from staff psychiatrist, Dr. Tatjana Caddell, who stated that R.W.K. was incapable of understanding or making informed decisions regarding his health and psychiatric treatment. Specifically, Dr. Caddell noted that R.W.K. was adamantly refusing to take all of his medications and he remained extremely delusional. R.W.K. refused to eat or take in adequate amounts of fluids, which had resulted in his weight dropping to only 93 pounds. ¶12 The District Court held a hearing on the motion to amend on January 26, 2012. R.W.K. appeared via video from MSH. R.W.K.’s counsel stated an objection to the motion to amend. Counsel pointed out that no discussion of involuntary medication occurred at the previous hearing. Counsel argued that the District Court lacked authority and jurisdiction to alter the terms of the commitment. The District Court proceeded with the hearing, but stated that it would allow the parties to brief the issue if they wished to do so. The State elicited testimony from Dr. Caddell concerning the need for involuntary medication. The District Court questioned R.W.K. He continuously claimed that the doctors were trying to poison him and he would not cooperate with them. The District Court granted the State’s motion to allow the chief medical officer at MSH to administer R.W.K.’s medications involuntarily, but stated that its ruling was subject to review after receiving more briefing from the parties. 6 ¶13 After receiving the additional briefing from the parties, the District Court issued an order on March 6, 2012, overruling R.W.K.’s jurisdictional objection to amending the original commitment order. First, the District Court determined that its initial commitment order was sufficient to authorize the use of involuntary medication under § 53-21-127(6), MCA, because it contained language requiring that R.W.K. “shall take such medication, as the attending physicians shall prescribe, both at the state hospital and, also, during community outpatient treatment.” Next, the District Court concluded that although amendment is not expressly authorized by statute, it could construe and grant the State’s motion to amend as a nunc pro tunc motion under M. R. Civ. P. 60(a), or alternatively, pursuant to M. R. Civ. P. 59(e). R.W.K appeals from the District Court’s order. STANDARDS OF REVIEW ¶14 We review a district court’s civil commitment order to determine whether the court’s findings of fact are clearly erroneous and its conclusions of law are correct. In re Mental Health of L.K.-S., 2011 MT 21, ¶ 14, 359 Mont. 191, 247 P.3d 1100; In re T.S.D., 2005 MT 35, ¶ 13, 326 Mont. 82, 107 P.3d 481. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if we are left with a definite and firm conviction that a mistake has been made after reviewing the entire record. L.K.-S., ¶ 14; T.S.D., ¶ 13. We must view the evidence in the light most favorable to the prevailing party when determining whether substantial credible evidence supports the district court’s findings. In re Mental Health of A.S.B., 2008 MT 82, ¶ 17, 342 Mont. 169, 180 P.3d 625. 7 ¶15 Due process claims arising from involuntary civil commitments are subject to plenary review. In re Matter of Mental Health of L.K., 2009 MT 366, ¶ 11, 353 Mont. 246, 219 P.3d 1263. ¶16 We review discretionary trial court rulings, including post-trial motions, for abuse of discretion. In re Marriage of Weber, 2004 MT 206, ¶ 14, 322 Mont. 324, 95 P.3d 694; In re L.S., 2009 MT 83, ¶ 18, 349 Mont. 518, 204 P.3d 707. A district court abuses its discretion when it acts arbitrarily, without employment of conscientious judgment, or in excess of the bounds of reason, resulting in substantial injustice. L.S., ¶ 18. DISCUSSION ¶17 Did the District Court violate R.W.K.’s statutory and due process rights when it failed to obtain a personal waiver of rights under § 53-21-119(1), MCA? ¶18 A respondent to a petition for involuntary commitment has statutory procedural rights. See §§ 53-21-115 through -118, MCA. This Court requires “strict adherence” to the statutory scheme governing involuntary commitment due to the “critical importance” of the constitutional rights at stake. In re C.R., 2012 MT 258, ¶ 13; 367 Mont. 1, 289 P.3d 125; L.K.-S., ¶ 15. Section 53-21-119(1), MCA, sets forth the requirements to effectuate a valid waiver of rights in a civil commitment action, and provides in pertinent part as follows: A person may waive the person’s rights, or if the person is not capable of making an intentional and knowing decision, these rights may be waived by the person’s counsel and friend of respondent acting together if a record is made of the reasons for the waiver. ¶19 “Without factual findings necessary to each procedural requirement, supported by evidence in the record, the commitment order cannot stand.” L.K.-S., ¶ 20. In L.K.-S., 8 the patient’s attorney represented to the court that the patient was not capable of making an intentional and knowing decision on the matter of a jury trial. L.K.-S., ¶ 22. Patient’s counsel concluded that waiver of a jury trial was in his client’s best interests. L.K.-S., ¶ 22. Following a careful review of the record, this Court set aside the commitment order after determining that the record was barren concerning the appointed friend’s concurrence in the waiver of rights, which was required under § 53-21-119(1), MCA. L.K.-S., ¶ 22. We similarly set aside a commitment order in L.K., a case in which there was an insufficient record concerning whether L.K. was capable of making an intentional and knowing waiver, where no record was made of a waiver by L.K.’s attorney and friend acting together, and no record existed of the reasons supporting such a waiver. L.K., ¶ 17. ¶20 R.W.K. does not claim that the commitment was contrary to his wishes, nor does he claim that the waiver was not made intentionally and knowingly. Instead, R.W.K. argues that the District Court failed to follow the requirements of § 53-21-119(1), MCA, in obtaining the waiver of his procedural rights. Specifically, R.W.K. asserts that only the person being committed may waive his own rights, unless the District Court determines that such person is not capable of making an intentional and knowing decision. Since the District Court did not personally question R.W.K. concerning the waiver, he contends that the waiver of rights was invalid. The State maintains that the District Court’s finding of waiver was supported by sufficient facts in the record. ¶21 Pursuant to § 53-21-119(1), MCA, R.W.K. could have validly waived his rights in two ways: (1) if R.W.K. was capable of making an intentional and knowing decision, 9 R.W.K. could have waived his own rights; or (2) if R.W.K. was not capable of making an intentional and knowing decision, these rights may be waived by R.W.K.’s counsel and appointed friend acting together if a record was made of the reasons for the waiver. Section 53-21-119(1), MCA, does not specify the type or level of inquiry necessary to constitute an intentional and knowing waiver. The District Court determined that R.W.K. was capable of making an intentional and knowing decision regarding his procedural rights, and he validly waived those rights. Given the facts before us, this finding is supported by sufficient facts in the record and complies with the requirements of § 53-21-119(1), MCA. ¶22 The record reveals that R.W.K. was personally present at the District Court’s December 30, 2011 hearing on the commitment petition. R.W.K. was accompanied by his attorney and the appointed friend. The District Court opened the proceeding by reading R.W.K. a list of his rights. Next, R.W.K.’s counsel made the following representations to the District Court: Your Honor, I did meet with [R.W.K.] yesterday and provided him with a copy of the petition in this matter, although [R.W.K.] does suffer from a mental disorder. It is my belief, Your Honor, that he understood his rights and the nature of this proceeding. Also in meeting with [R.W.K.], his friend, Ms. Hilbert, who is present here in court at counsel table, was there as well. And we had a discussion with him about the allegations and what the doctor was recommending here. And [R.W.K.] indicated to me at that time, and again this morning, that he wishes to waive his rights in this matter pursuant to section 353-21-119 MCA [sic] and that he will stipulate to the allegations contained in the . . . petition, as well as Dr. Kasner’s report. . . . ¶23 Following these statements, the District Court made several findings concerning R.W.K.’s waiver of his rights. First, the District Court orally stated that: “Based on those 10 representations and the files and records, the Court finds that the respondent has intelligently waived his rights.” The District Court’s subsequent written order noted that “Counsel and Respondent determined Respondent is capable of making an intentional and knowing decision in this matter,” and “they agreed to waive Respondent’s rights to a formal proceeding in this matter.” The District Court found that “Respondent understands all procedural rights and that he waives those rights knowingly.” Furthermore, the District Court concluded that “Respondent has received all the benefit of all statutory and constitutional rights guaranteed by MCA Title 53, Chapter 21 (2011) and the Montana and United States Constitutions.” ¶24 While it is true that a defendant in a criminal proceeding must make a personal statement of waiver on the record to validly waive certain rights,1 we find no error in the District Court’s reliance on R.W.K.’s counsel’s representations to support the civil commitment order. These statements concerning waiver were made in open court and in the presence of R.W.K. and the appointed friend. Notably, R.W.K. does not contend here that his waiver was anything but intentional and knowing. Under these circumstances, R.W.K. effectively waived his rights by allowing his counsel to inform the judge of his desire to do so. 1 See e.g. State v. McCarthy, 2004 MT 312, ¶ 32, 324 Mont. 1, 101 P.3d 288 (“If a defendant chooses to waive his right to be present at a critical stage of the trial, the court must obtain an on-the-record personal waiver by the defendant acknowledging the defendant voluntarily, intelligently, and knowingly waives that right.”). 11 ¶25 Accordingly, we hold that the District Court complied with the requirements of § 53-21-119(1), MCA, in obtaining R.W.K.’s waiver of rights, and did not violate his due process rights. ¶26 Is there a valid order authorizing involuntary medication, either in the original commitment order or in the District Court’s amended order? ¶27 Once a trial court determines that a person suffers from a mental disorder requiring commitment, § 53-21-127(6), MCA, provides that: The court may authorize the chief medical officer of a facility or a physician designated by the court to administer appropriate medication involuntarily if the court finds that involuntary medication is necessary to protect the respondent or the public or to facilitate effective treatment. In ordering commitment, if the order includes involuntary medication, the trial court shall set forth “the reason involuntary medication was chosen from among other alternatives.” Section 53-21-127(8)(h), MCA. ¶28 R.W.K. challenges whether the District Court’s order of commitment contained sufficient language to allow for involuntary medication. The District Court included the following language in its original order of commitment: “The Respondent shall take such medication, as the attending physicians shall prescribe, both at the state hospital and, also, during community outpatient treatment.” ¶29 This Court has previously held that such language is sufficient to authorize involuntary medication. See In re Mental Health of S.C., 2000 MT 370, ¶ 15, 303 Mont. 444, 15 P.3d 861. In S.C., the district court ordered the commitment of S.C., and included in the order that S.C. was to “agree to take medication as prescribed.” S.C., ¶ 2. S.C. challenged whether the district court satisfied the statutory prerequisites in ordering 12 involuntary medication. S.C., ¶ 11. In our review of the district court’s findings of facts, we applied the “doctrine of implied findings,” which provides that where the “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.” S.C., ¶ 14. Although the district court did not specifically state in one distinct finding why involuntary medication was chosen, the court’s detailed findings of fact made clear why the court concluded that involuntary medication was the least restrictive and most appropriate alternative. S.C., ¶ 14. This Court held that in ordering that S.C. “agree to take medication as prescribed,” the district court complied with the statutory mandates that required it to find that involuntary medication was necessary to protect the person, the public, or to facilitate treatment, and it sufficiently set forth the reason involuntary medication was chosen. S.C., ¶ 15. ¶30 Here, R.W.K. stipulated to the facts as set forth in the petition for commitment and attached medical reports. The District Court specifically found that R.W.K. was “unable to care for his basic daily needs and he appears to be a danger to himself and to others due to mental disorder.” R.W.K. had a history of noncompliance with his medication, and these periods of noncompliance often led to heightened psychosis. R.W.K.’s behavior was irrational and belligerent. The District Court found that R.W.K. had “stopped taking his medications and his mental health has deteriorated.” Furthermore, the District Court reasoned that if R.W.K. was left untreated, his mental health would continue to deteriorate and he would be unable to care for himself. During his hospitalization at Benefis, R.W.K. refused to take his medications and refused to eat or 13 drink. Given the seriousness of R.W.K.’s condition, the District Court determined that the least restrictive placement that would permit effective treatment was MSH. Based on all of these findings, the District Court ordered that R.W.K. “shall take such medication, as the attending physicians shall prescribe.” ¶31 The language employed by the District Court, “Respondent shall take such medication,” is even more authoritative than the language used by the district court in S.C. This Court commonly interprets the word “shall” to indicate a mandatory and compulsory directive. See e.g. Montco v. Simonich, 285 Mont. 280, 287, 947 P.2d 1047, 1051 (1997) (“Both ‘shall’ and ‘must’ are mandatory, rather than permissive.”); State v. Bartlett, 271 Mont. 429, 432-33, 898 P.2d 98, 100 (1995) (“The word ‘shall’ is compulsory.”). The District Court’s use of “shall” is strong evidence of its intent to require R.W.K. to take the medication his doctors prescribed. ¶32 Pursuant to our holding in S.C., and based upon the evidence in the record, we hold that the District Court complied with the statutory requirements in ordering R.W.K. to take medications as prescribed by his doctors. This directive was sufficient to authorize involuntary medication because the District Court’s other findings made clear the necessity of taking such action to protect R.W.K., the public, and to facilitate his treatment. Moreover, the District Court’s findings demonstrate that other alternatives to involuntary medication were considered. For the benefit of all involved, however, and consistent with the provisions of § 53-21-127(6) and (8)(h), MCA, we urge the district courts to plainly and clearly state in orders of commitment whether the circumstances justify authorizing the chief medical officer or designated physician to administer 14 medication involuntarily, and if so, the reason involuntary medication was chosen from among other alternatives. ¶33 Next, R.W.K. contends that the District Court misapplied the Montana Rules of Civil Procedure when it amended its original commitment order. The State filed a motion to amend the commitment order to expressly authorize the chief medical officer at MSH to administer appropriate medication involuntarily. In addressing the motion to amend, the District Court determined that its initial commitment order was sufficient to authorize the use of involuntary medication under § 53-21-127(6), MCA, because it contained language requiring that R.W.K. “shall take such medication, as the attending physicians shall prescribe, both at the state hospital and, also, during community outpatient treatment.” As we previously discussed, we agree that the District Court’s original order was sufficient to authorize involuntary medication. Therefore, it is unnecessary for this Court to address R.W.K.’s remaining allegations pertaining to the amendment of the original commitment order. CONCLUSION ¶34 For the foregoing reasons, we affirm the District Court’s determination that R.W.K. validly waived his procedural rights pursuant to § 53-21-119(1), MCA, and that the District Court’s order of commitment authorized the administration of involuntary medication. /S/ PATRICIA COTTER We Concur: 15 /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ JIM RICE /S/ BETH BAKER | March 6, 2013 |
6357e89e-d437-457d-b628-c9439d48df74 | Sayers v. Chouteau County | 2013 MT 45 | DA 12-0340 | Montana | Montana Supreme Court | DA 12-0340 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 45 ROBERT “BOB” SAYERS, Plaintiff and Appellant, v. CHOUTEAU COUNTY, a political entity of the State of Montana, Defendant and Appellee. APPEAL FROM: District Court of the Twelfth Judicial District, In and For the County of Chouteau, Cause No. DV 10-12 Honorable Kenneth R. Neill, Presiding Judge COUNSEL OF RECORD: For Appellant: Daniel E. Shannon, Shannon Legal Services, LLC; Great Falls, Montana For Appellee: Susan Brooks Swimley, Bozeman, Montana Tara Mae DePuy, Livingston, Montana Submitted on Briefs: October 17, 2012 Decided: February 26, 2013 Filed: __________________________________________ Clerk February 27 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Robert “Bob” Sayers (Sayers) appeals an order of the Twelfth Judicial District Court, Chouteau County, that granted summary judgment to Chouteau County (County) on Sayers’s claim seeking declaratory relief regarding whether the entire length of Lippard Road constituted a public roadway. We affirm. ¶2 We address the following issues on appeal: ¶3 Whether the District Court properly applied the standard set forth in Reid v. Park County to the question of whether Lippard Road constituted a public roadway? ¶4 Whether the District Court properly determined that the entire length of Lippard Road constitutes a public roadway? FACTS ¶5 Sayers owns approximately 5,400 contiguous acres of mostly undeveloped farmland in Chouteau County. Most of Sayers’s property is located in Township 26 North, Range 10 East. A portion of Sayers’s property, including his residence, is located within Township 25 North, Range 10 E. Sayers purchased his property in 1992 from the Federal Land Bank. ¶6 Lippard Road starts on the northern section line in Section 20, Township 26 North, Range 10 East. The road physically terminates in Section 1, Township 25 North, Range 10 East. Sayers filed a complaint in 2010 that seeks a declaratory judgment regarding whether Lippard Road remains a county road past its intersection with Section 26 and 27 in Township 26 North, Range 10 East (Section 26 and 27 Intersection). The following diagram is not 3 included in the record, but it roughly represents the physical layout of Lippard Road according to the evidence included in the record. ¶7 It is unclear when and where the first county road through Sayers’s land was established. The record contains an undated petition in support of establishing a “proposed 4 Lippard road.” The petition is addressed to the “Honorable [B]oard of County Commissioners” and states, “We are Homesteaders near Lippard station. And would like the proposed Lippard Road opened up.” Twelve self-identified “homesteaders near Lippard station,” including Chas Lippard, a predecessor-in-interest to Sayers’s property, signed the document. Chas Lippard’s home was located in Section 1, Township 25 North, Range 10 East. ¶8 The parties submitted identical maps that depict a location marked as “Lippard” in Section 1, Township 25 North, Range 10 East. Section 1, Township 25 North, Range 10 East, lies south of the Section 26 and 27 Intersection. The maps locate “Lippard” south of railroad tracks found in Section 1, Township 25 North, Range 10 East. The maps depict a Lippard Road that travels to Lippard. ¶9 The parties appear to agree regarding the location of the point on the maps labeled “Lippard.” The parties dispute, however, the meaning of the term “Lippard Station,” as used in the undated petition and found in other pertinent documents. The parties further dispute how Lippard Station had been used by the public. The record remains unclear whether the Board of County Commissioners (Board) took any additional steps to pursue this petition. ¶10 Citizens filed another petition to establish “Lippard Road” as a county road on July 1, 1913 (1913 Petition). The 1913 Petition contains the following description: beginning at a point in the Marias and Big Sandy county road near the N[orth] W[est] cor[ner] of Sec[tion] 29, T[ownship] 26, N[orth], R[ange] 10 E[ast], running thence east, on section lines as nearly as practicable, about 2 3/4 miles, thence southeasternly following the present traveled road between two coulees about one mile to the section line between Sec[tions] 26 and 27. 5 The petition described this road section to be about 3 3/4 miles long. ¶11 More than ten people signed the petition. The petition cites the fact that the road had been in use for 25 years as a basis for why the road was necessary for the convenience of public travel. The petition describes the proposed road joining and traveling, for at least part of the way, along a “present traveled road.” The petition says nothing more about this “present traveled road.” The record fails to inform whether this “present traveled road” was the road established by the earlier undated petition signed by Chas Lippard and others. ¶12 The Board immediately appointed three “Road Viewers” on July 1, 1913. The record contains an oath of office signed by two of the viewers. One viewer signed the oath on August 11, 1913, and the other signed it on August 27, 1913. One part of this viewer’s report mirrors the description of the proposed road contained in the 1913 Petition. ¶13 The description in the viewer’s report extends beyond the route outlined in the 1913 Petition. The viewer’s report extends the 1913 road description to add “a road beginning at the N[orth] W[est] cor[ner] of Sec[tion] 21, thence east on section line two miles, thence south ½ mile. All in T[ownship] 26 N[orth], R[ange] 10 E[ast].” The viewer’s report further details the fact that the road joins “the old road to Lippard.” The 1913 petition simply describes the fact that the proposed route includes some part of the “present traveled road.” ¶14 Two viewers signed the Viewer’s Report for County Road on August 27, 1913. The viewers attested that the proposed road would result in a public convenience and recommended that the Board grant the petition. The viewer’s report describes the road as 6 being 6 1/2 miles long. The report contains typed form language. One section of this typed form language provides that “[t]he said Viewers believe that they have laid out the proposed highway over the most practicable route, and that the said highway is necessary for the accommodation of the people in passing to and from___________.” “Lippard” is handwritten in the blank line. The Board accepted the viewer’s report on June 5, 1914. The Board declared and ordered the road open to the public. The Board further directed the county surveyor to survey and plat the road and to file the result with the county clerk and recorder. ¶15 The County Road Supervisor signed a document on July 18, 1914, in which he attested that he had posted three public notices of the opening of a county road. The document explains that the notices detailed, in part, a road beginning at the N[orth] W[est] cor[ner] of Sec[tion] 21, thence east on sec[tion] line 2 miles, then south 1/2 miles. With amendment that road be extended over most practicable route from sec[tion] line between Sec[tions] 26 and 27 to[] The typed text on the document ends there and the original omits any punctuation after the word “to.” ¶16 A handwritten note on the cover of the viewer’s report describes a road that differs both from the 1913 Petition and from the viewer’s report. Handwriting on the top half of the cover states, “[w]ith amendment that road be extended over the most practicable route from Sec[tion] line between Sec[tions] 26 and 27 to Lippard Station.” A stamp on this amendment provides that the Board accepted the road viewer’s report on June 5, 1914. The 7 stamp contains a space for the signature of the Board chair that the Chairman signed. A handwritten statement below the stamps directs the reader to “[s]ee minute entry of January 5, 1916.” ¶17 A handwritten line separates the cover’s top and bottom halves. The bottom half contains more handwritten notes that discuss an amendment to the proposed route and the abandonment of a section of Lippard Road not relevant to the present dispute. The handwritten notes reflect the fact that the Board considered the matter on September 7, 1916. The handwritten note further orders that the road be open to the public, surveyed, and platted, and that resulting plat and field notes be filed with the clerk and recorder. The chair of the Board then signed the handwritten note on the bottom half of the cover. Minutes from the Board meetings and other documentation suggests that the Board approved the proposed amendment to the route and the abandonment of a portion of the existing road. It further appears that additional changes to the portion of Lippard Road before the Section 26 and 27 Intersection occurred over the ensuing years. ¶18 A map created by the county surveyor through surveys conducted in 1915 and 1918 depicts a road that continues past the Section 26 and 27 Intersection to an endpoint in Section 1, Township 25 North, Range 10 East. The county surveyor verified that the map and field notes correctly represented the Lippard Road as he surveyed them. The surveyor filed the map with the clerk and recorder on January 4, 1919. ¶19 The County presented two witnesses who testified that the public had used Lippard Road as a public road past the Section 26 and 27 Intersection. Elvin Roberts (Roberts) 8 testified that as a county employee he had maintained Lippard Road past the Section 26 and 27 Intersection to a point located in Section 1, Township 25 North, Range 10 East. Jim Cornell (Cornell) testified that he saw people use the road at will to access the Missouri River at points past the Section 26 and 27 Intersection. ¶20 The District Court applied the analysis developed in Reid v. Park Co., 192 Mont. 231, 235-36, 627 P.2d 1210, 1212 (1981), to its consideration of whether the record taken as a whole tended to suggest that the entire length of Lippard Road had been established as a county road. The District Court determined that the record tended to suggest that Lippard Road had been established as a county road from the junction with Highway 87 to the railroad right-of-way in Section 1, Township 25 North, Range 10 East. Sayers appeals. STANDARD OF REVIEW ¶21 We review de novo a district court’s ruling on a summary judgment motion. State v. Butte-Silver Bow Co., 2009 MT 414, ¶ 17, 353 Mont. 497, 220 P.3d 1115. We apply the same standards used by the district court under M. R. Civ. P. 56(c). Butte-Silver Bow, ¶ 17. DISCUSSION ¶22 Whether the District Court properly applied the standard set forth in Reid to the question of whether Lippard Road constituted a public roadway? ¶23 Sayers does not contest that Lippard Road constitutes a public road from its junction with Highway 87 to the point where the road crosses the section line that separates Sections 26 and 27 in Township 26 North, Range 10 East (hereinafter we refer to this section of 9 Lippard Road as the “Uncontested Section”). Sayers argues, however, that the public portion of the road ends at the intersection of the section line that separates Sections 26 and 27. The County asserts that the District Court properly determined that Lippard Road remains a public road as it continues past the Section 26 and 27 Intersection to where it meets a railroad right-of-way in Section 2, Township 25 North, Range 10 East (hereinafter we refer to this section of Lippard Road as the “Contested Section”). ¶24 Sayers challenges the District Court’s application of the analysis in Reid to Sayers’s claim. Sayers argues that a complete public record exists regarding the establishment of the Uncontested Section of Lippard Road. Sayers suggests that the District Court should have limited its review of information to the “four corners” of the complete public record. Sayers contends that the entirety of Lippard Road came into being at one point in time, and, therefore, the District Court improperly relied upon the Reid analysis to reach its conclusion that the Contested Section of Lippard Road constitutes a public road. ¶25 The statutory methods to establish a county road by petition remained essentially the same from at least 1895 to 1922. Reid, 192 Mont. at 234-235, 627 P.2d at 1212. To establish a county road by petition required, in part: (1) submission of a petition by landowners; (2) appointment of road viewers; and (3) a notice of the road’s opening. Galassi v. Lincoln Co. Bd. of Comm’rs, 2003 MT 319, ¶ 13, 318 Mont. 288, 80 P.3d 84; § 1390 – 1410, RCM (1907 Political Code); § 1390-1403, RCM (1907 Political Code). A county could establish a county road by petition when citizens submitted a signed petition to 10 establish a county road and the county accepted the petition. Warren v. Chouteau Co., 82 Mont. 115, 124-125, 265 P. 676, 680 (1928) (overruled on other grounds). ¶26 We recognized in Reid that strict compliance with the jurisdictional requirements to establish a road by petition would pose an unjustifiable burden on the public to prove a public road created nearly 100 years earlier. Reid, 192 Mont. at 234, 627 P.2d at 1212. We instead determined that a court should evaluate “the record taken as a whole” to determine whether a public road had been created. Reid, 192 Mont. at 234, 627 P.2d at 1212. Sayers argues that the presence of a “complete record” here obviates any need for the Court to look to Reid. ¶27 Sayers cites our decision in Garrison v. Lincoln Co., 2003 MT 227, 317 Mont. 190, 77 P.3d 163, to support his claim. We acknowledged in Garrison that the principles of Reid apply to “cases where a dispute arises about control of a road that was purportedly created when horse-and-buggies were more prevalent than Ford Explorers.” Garrison, ¶ 16. The Reid analysis applies to cases involving “disputes over roads created early in the last century, or before,” and cases where there is “uncertainty resulting from poorly documented or missing records of county action.” Garrison, ¶ 19. The Court rejected concerns that an overbroad application of the Reid analysis would render obsolete the statutory guidelines to establish a county or public road. Garrison, ¶ 16. ¶28 The Reid analysis applies here. The parties dispute whether the County validly had extended the Contested Section of Lippard Road as a public road in the 1910s. The County extended part of the Uncontested Section of Lippard Road in the 1930s in order to attach 11 Lippard Road to Highway 87. The Reid analysis applies to the time period in which the Contested Section and the Uncontested Section of Lippard Road were established, in the 1910s and 1930s, respectively. Garrison, ¶ 16. The District Court properly viewed the record as a whole, pursuant to the principles of Reid, to determine whether the County had established a public road. ¶29 Whether the District Court properly determined that the entire length of Lippard Road constitutes a public roadway? ¶30 The District Court pointed to a variety of factors to support its determination that the public record evidenced that Lippard Road extended past the Section 26 and 27 Intersection. Several petitioners, including Chas Lippard—one of Sayers’s predecessor in interest to the lands in question—wrote a letter to the Board in which they identified themselves as homesteaders near “Lippard Station.” The petitioners requested that Lippard Road be “opened up.” A handwritten statement on the cover to the viewer’s report provides “[w]ith amendment that road be extended over the most practicable route from section line between Sec[tions] 26 and 27 to Lippard Station.” ¶31 The county surveyor posted three original public notices to inform the public of the opening of Lippard Road. The public notice details “a road beginning at the N[orth] W[est] cor[ner] of Sec[tion] 21, thence east on sec[tion] line 2 miles, then south 1/2 miles.” The surveyor’s road description tracks the handwritten amendment to the originally proposed route. This amendment extended the road past the Section 26 and 27 Intersection: “[w]ith 12 amendment that road be extended over most practicable route from Sec[tion] line between Sec[tions] 26 and 27 to[]” ¶32 The typed text contains no punctuation at the end of the quoted language. The typed text, with the abrupt ending after the word “to,” suggests that the road description continued. The District Court interpreted the typed text, along with the omitted final portion, to suggest that the County intended for the road to continue to a point somewhere past the Section 26 and 27 Intersection. To support this interpretation, the District Court relied upon a map submitted by both parties that depicts Lippard next to the Great Northern Railway. Other documents reference a road that extends to Lippard and Lippard Station. The District Court further relied upon the 1919 survey that depicts a road that continues to within 50 feet of a railroad right-of-way located past the Section 26 and 27 Intersection. A separate railroad map depicts a right-of-way that parallels the tracks more than fifty feet out from the center of the middle of the tracks. This evidence supports the District Court’s determination that the County established Lippard Road as a public road past the Section 26 and 27 Intersection. Reid, 192 Mont. at 235-36, 607 P.2d at 1212. ¶33 Sayers next argues that the District Court improperly resolved conflicting evidence when it determined on summary judgment that “Lippard Station” served as a railroad or depot station. Sayers argues that our decision in Prindel v. Ravalli Co., 2006 MT 62, ¶ 19, 331 Mont. 338, 133 P.3d 165, precludes a court from resolving disputed facts on summary judgment. The District Court noted that both parties “speculate[d]” and “bicker[ed]” over the meaning and the purpose that “Lippard Station” served. 13 ¶34 The record suggests that Lippard Station and Lippard occupied the same geographic area. Chas Lippard identifies himself as a homesteader near “Lippard Station.” Chas Lippard’s home was in Section 1, Township 25 North, Range 10 East. Sayers argues that the only buildings in the area sat in Section 1, Township 25 North, Range 10 East. Sayers argues that people did not live on other parts of Chas Lippard’s land. Sayers offers no evidence, however, that Lippard Station would have been in a place other than the location of Lippard, as depicted on the various maps and surveys. ¶35 The actual historical use of Lippard Station matters less than its significance as the geographical point known as “Lippard Station.” Evidence in the record suggests the intent to continue Lippard Road past the Section 26 and 27 Intersection to the geographical location of “Lippard Station.” Sayers presents no specific evidence to dispute the geographical location of Lippard Station. The record taken as a whole suggests that the County established Lippard Road as a public road to a geographical location depicted as Lippard Station. Reid, 192 Mont. at 235-36, 627 P.2d at 1212. ¶36 Sayers argues alternatively that even if this Court agrees that Lippard Road extends past the Section 26 and 27 Intersection, the record contains no documentation to show that the road extended any closer than 50 feet from the railroad in Section 1, Township 25 North, Range 10 East. He contends that the District Court wrongfully determined that Lippard Road intersects with the railroad right-of-way. We disagree. ¶37 Sayers points to no specific facts in the record to dispute the survey that depicts the railroad-right-of-way in Section 1, Township 25, Range 10 East, as extending more than fifty 14 feet out from the center of the tracks. Sayers points to no specific facts in the record to dispute the maps that depict Lippard as a location past the intersection of the railroad right- of-way and Lippard Road. Sayers points to no specific facts in the record to dispute the testimony of Roberts or Cornell. Roberts testified by affidavit that he maintained the Lippard Road to a point past the railroad right-of-way. Cornell testified by affidavit that he and others traveled along Lippard Road past the railroad right-of-way to reach fishing spots on the Missouri River. Sayers failed to present substantial evidence essential to one or more elements of the case to raise a genuine issue of material fact. Apple Park, LLC. v. Apple Park Condos., 2008 MT 284, ¶ 11, 345 Mont. 359, 192 P.3d 232. ¶38 A county road, once established, will remain public unless formally abandoned. State v. Fisher, 2003 MT 207, ¶ 12, 317 Mont. 49, 75 P.3d 338. Abandonment requires an official act and extended nonuse is insufficient to establish a connection. McCauley v. Thompson- Nistler, 2000 MT 215, ¶ 31, 301 Mont. 81, 10 P.3d 794. Sayers sets forth no facts to suggest that the County abandoned any portion of the Contested Section of Lippard Road. The Contested Section of Lippard Road, having been established as a county road, remains a county road today. ¶39 Affirmed /S/ BRIAN MORRIS We Concur: /S/ MIKE McGRATH 15 /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ JIM RICE | February 27, 2013 |
ceaf526b-cc58-478e-b6d0-93054278d4d5 | Rukes v. State | 2013 MT 56 | DA 12-0176 | Montana | Montana Supreme Court | DA 12-0176 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 56 JACK N. RUKES, Petitioner, v. STATE OF MONTANA, Respondent. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 11-1401 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Jack N. Rukes, self-represented, Shelby, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Micheal S. Wellenstein, Assistant Attorney General; Helena, Montana Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana Submitted on Briefs: January 31, 2013 Decided: March 5, 2013 Filed: __________________________________________ Clerk March 5 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Jack Rukes appeals the Fourth Judicial District Court’s order dismissing his Petition for Post-Conviction Relief. The dispositive issue on appeal is whether the District Court erred in dismissing the petition. We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶2 On May 27, 2009, Rukes was arrested and taken to the Missoula County Detention Center based on alleged criminal conduct including the assault of his wife. At the detention center, Officer Stacy Lear did not record her interview with Rukes, but instead took notes which she later converted into a written report to be used in evidence. Rukes filed a motion to suppress his statements from evidence because the interview violated newly-enacted legislation requiring that custodial interrogations be recorded. Sections 46-4-406 through -411, MCA (effective October 1, 2009). On September 24, 2009, the District Court denied his motion to suppress because the statutes were not yet in effect. ¶3 The District Court set a jury trial for January 6, 2010. Rukes originally retained private counsel, Kathleen Foley and William Boggs, who withdrew from representation shortly before the trial date due to Rukes’s inability to fulfill fee obligations and because they fundamentally disagreed with Rukes about whether he should proceed to trial. Upon their withdrawal, the District Court appointed Christopher Daly to represent Rukes and Rukes chose to continue the trial in order to provide his new attorney with adequate preparation time. Daly represented Rukes in his March 10, 2010, jury trial. During the 3 trial, a courtroom officer reportedly sat close enough to Rukes that a juror asked the bailiff who the man was, and the bailiff indicated that he was “Mr. Rukes’s guard.” ¶4 On March 11, 2010, the jury found Rukes guilty of felony Aggravated Assault and misdemeanor Unlawful Restraint. On June 1, 2010, the District Court sentenced Rukes to twenty years in Montana State Prison with ten years suspended on the felony offense and six months in jail on the misdemeanor offense, to be served concurrently. The District Court ordered a mental evaluation of Rukes and that he have no contact with his wife and children. ¶5 On January 19, 2011, Rukes’s appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967) and § 46-8-132(2), MCA, discussing nine arguable appeal issues: (1) the court erred in denying Rukes’s motion to suppress; (2) the court erred in granting Foley’s and Boggs’s motion to withdraw; (3) the court abused its discretion in refusing to exclude a witness from the courtroom; (4) the court failed to fully and fairly instruct the jury; (5) Rukes was denied due process as a result of the bailiff’s misconduct; (6) Rukes was denied a speedy trial; (7) the court abused its discretion in ordering a mental examination of Rukes; (8) the court violated Rukes’s Fifth Amendment rights by relying on the mental evaluations in sentencing; and (9) Rukes received ineffective assistance of trial counsel. Rukes’s appellate counsel could not identify any meritorious issues and requested permission to withdraw from representation. 4 ¶6 On March 8, 2011, this Court entered an order noting that Rukes had failed to file a response to his attorney’s Anders brief and granting appellate counsel’s motion to withdraw. We dismissed Rukes’s appeal, concluding that “an appeal in this case would be wholly frivolous.” Rukes thereafter filed a response and we granted his motion requesting consideration of the late response. On March 29, 2011, after consideration of Rukes’s response, we upheld our previous order dismissing his appeal and permitting his counsel’s withdrawal. ¶7 Proceeding pro se, Rukes then filed in the District Court a Petition for Post-Conviction Relief, raising twelve issues. The court noted in its February 8, 2012 order that “virtually all of the Petitioner’s claims are nothing more than his personal argument and speculation” and that most of Rukes’s arguments had been addressed on direct appeal. The District Court nonetheless discussed the merits of Rukes’s claims. In addressing Rukes’s claims of ineffective assistance of counsel, the court ordered Foley and Boggs to respond by affidavit to Rukes’s allegation that they had failed to provide him with a copy of a proposed plea agreement, failed to explain the plea agreement and failed to explain consequences of proceeding to trial. The court ordered Daly to respond by affidavit to Rukes’s claim that he failed to move for a new trial after the bailiff allegedly committed misconduct. Having reviewed the attorneys’ affidavits, the court determined that Rukes’s petition did not demonstrate “any kind of error, cumulative or otherwise,” and dismissed the petition. Rukes appealed pro se to this Court. 5 STANDARD OF REVIEW ¶8 We review the district court’s denial of a petition for postconviction relief to determine whether its findings of fact are clearly erroneous and whether its legal conclusions are correct. Miller v. State, 2012 MT 131, ¶ 9, 365 Mont. 264, 280 P.3d 272. Grounds for relief “that were or could reasonably have been raised on direct appeal may not be raised, considered or decided in a proceeding” for postconviction relief. Section 46-21-105(2), MCA. ¶9 Ineffective assistance of counsel claims present mixed questions of law and fact that we review de novo. Miller, ¶ 9. To prevail on such a claim, the petitioner must demonstrate that “counsel’s performance was deficient” and that “the deficient performance prejudiced the defense.” Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). We apply the same standard when reviewing claims of ineffective assistance of appellate counsel. Rogers v. State, 2011 MT 105, ¶ 37, 360 Mont. 334, 253, P.3d 889. DISCUSSION ¶10 Rukes argues that the District Court erred in dismissing his Petition for Post-Conviction Relief on the following grounds: (1) the District Court erred in denying his motion to suppress his statements from evidence; (2) Rukes was denied a speedy trial; (3) Daly provided ineffective assistance of counsel; (4) Foley and Boggs provided ineffective assistance of counsel; (5) the court erred in granting Foley’s and Boggs’s motion to withdraw; and (6) counsels’ cumulative errors warrant reversal. 6 ¶11 We agree with the State that, with the exception of several of Rukes’s ineffective assistance of counsel claims, most of Rukes’s claims are barred from appellate review under § 46-21-105(2), MCA, because they were or could have been raised on direct appeal. ¶12 1. Denial of Rukes’s motion to suppress. ¶13 Rukes argues that the District Court erred in denying his motion to suppress the statements he made during his May 2009 interview because the interview was not recorded, in violation of §§ 46-4-406 through -411, MCA. He also argues that the court should have compelled Officer Lear to produce her original handwritten notes. Rukes’s appellate counsel raised these issues in her Anders brief and, after independent examination of the record and consideration of Rukes’s arguments, we agreed that they were without merit. As noted, the statutes require recordation of custodial interrogations, but became effective in October 2009, several months after Rukes’s interview. We will not consider the issue again in reviewing the District Court’s denial of Rukes’s Petition for Post-Conviction Relief. Section 46-21-105(2), MCA. ¶14 2. Whether Rukes was denied a speedy trial. ¶15 Similarly, we will not consider Rukes’s argument that he was denied the right to a speedy trial. Appellate counsel raised that question in her Anders brief and suggested it was frivolous, based in part on the following exchange during pre-trial proceedings: THE DEFENDANT: Your Honor, I feel it’s more important to have good representation than to have a speedy trial. I feel that — I don’t care if it’s two or three months down the road, whatever it takes to prepare. . . . 7 THE COURT: You’ve said enough. If you are willing right now, with your eyes wide open and understand what’s going on, that you have a right to a speedy trial but you’re willing to waive it because of circumstances in this case — THE DEFENDANT: Yeah. ¶16 On direct appeal, we reviewed the record and agreed with appellate counsel that the issue lacked merit; we decline to reconsider it. Section 46-21-105(2), MCA. ¶17 3. Ineffective assistance of trial counsel. ¶18 Rukes alleges that Daly provided ineffective assistance of counsel because he improperly portrayed Rukes during his opening statement as “a drunken wife abuser,” failed to move for a new trial based on the bailiff’s misconduct, failed to counsel Rukes regarding his right against self-incrimination, failed to object during sentencing to court-ordered mental evaluations, and failed to object to an improper condition of Rukes’s sentence—namely, a condition prohibiting Rukes from contacting his two daughters who were not involved in the incident that gave rise to Rukes’s convictions. ¶19 The District Court rejected the claim that Rukes’s attorney made a prejudicial comment during opening statement. Rukes failed to point out a specific comment and, searching the record, the court concluded that the alleged statement was “a figment of the Petitioner’s imagina[tion].” The court also recognized that an improper opening statement “would be record-based and should have been raised on direct appeal[.]” We agree. See State v. Howard, 2011 MT 246, ¶ 21, 362 Mont. 196, 265 P.3d 606 (“When claims of ineffective assistance are capable of resolution by examining the record alone, they are appropriate for consideration on direct appeal.”). Furthermore, the trial 8 transcript indicates only that Daly stated Rukes “had been drinking.” Rukes has not explained how this statement prejudiced the outcome of his trial or rendered Daly’s performance “deficient.” Whitlow, ¶ 10. His contention that appellate counsel provided ineffective assistance of counsel based on her failure to raise this issue lacks merit for the same reasons. Heddings v. State, 2011 MT 228, ¶ 33, 362 Mont. 90, 265 P.3d 600 (counsel is not ineffective for failing to “make motions or objections which, under the circumstances, would have been frivolous”). ¶20 We turn to Rukes’s claim that Daly was ineffective for failing to file a motion for a new trial following the bailiff’s alleged misconduct. Appellate counsel suggested in her Anders brief that the bailiff’s communication with the jurors did not constitute reversible error because Rukes could not demonstrate prejudicial consequences. State v. Baugh, 174 Mont. 456, 465, 571 P.2d 779, 784 (1977). We agreed that the record did not demonstrate any prejudice resulting from the bailiff’s misconduct. As a consequence, Daly’s failure to move for a new trial on that basis also is without merit. See Porter v. State, 2002 MT 319, ¶ 32, 313 Mont. 149, 60 P.3d 951 (defendant failed to “establish any prejudice as a result of the momentary observation of him in handcuffs by prospective jurors” and thus counsel’s failure to move for a mistrial was not deficient). ¶21 Each of Rukes’s other arguments regarding Daly’s alleged ineffectiveness was discussed in appellate counsel’s Anders brief and considered by this Court in dismissing his direct appeal. Appellate counsel noted that, to prevail on his ineffective assistance of counsel claims, a defendant generally must demonstrate that the reasons for counsel’s 9 actions appear in the record, or that there is no plausible justification for counsel’s actions. State v. Kougl, 2004 MT 243, ¶¶ 14, 21, 323 Mont. 6, 97 P.3d 1095. Since the record in this case did not reflect counsel’s reasons for failing to object to the involuntary mental evaluations or the sentencing condition, appellate counsel suggested that the ineffective assistance claims were unsubstantiated. We agreed. In this postconviction proceeding, Rukes offers nothing to substantiate his allegations that Daly’s performance was deficient or that, absent such deficiency, the result of the proceeding would have been different. See Ellenburg v. Chase, 2004 MT 66, ¶ 16, 320 Mont. 315, 87 P.3d 473 (“[A] petition for postconviction relief must be based on more than mere conclusory allegations.”). He has not met his burden of showing reversible error by the District Court in denying his petition. ¶22 4. Ineffective assistance of counsel during pre-trial proceedings. ¶23 Rukes argues that Foley and Boggs provided ineffective assistance due to their failure to pursue a speedy trial, failure to provide Rukes with a copy of the State’s proposed plea agreement, and failure to advise him of the consequences of rejecting the plea agreement. As noted, we addressed the speedy trial issue on direct appeal. In ruling on Rukes’s petition for postconviction relief, the District Court determined that “Petitioner’s own actions belie the viability of this claim which clearly cannot be sustained as a matter of fact.” The court dismissed the claim for failure to state a claim for relief under § 46-21-201(1)(a), MCA. 10 ¶24 The court pointed out that on April 11, 2010, Rukes wrote a letter to the court, indicating that he refused the plea bargain due to his distrust of the prosecutor. The letter stated: [I] was offered a plea bargain of 5 or 10 years suspended by Suzy Boylan. It was enticing but I took information acquired from other attorneys; informing me of Suzy’s “demon pursuits linked to careerism who is acting like the zelots [sic].” One attorney went so far as to say “Suzy is so unreasonable that she needs mental intervention.” I was also informed that any judge in Missoula is more reasonable than her. ¶25 Foley and Boggs stated in their affidavit that even when Rukes’s bill was in arrears and their motion to withdraw was pending, they worked for free on “both trial preparation and negotiations to settle the case on terms favorable to Rukes.” They stated that they “spent hours discussing the pros and cons of going to trial with Rukes, and advised him in no uncertain terms (although he did not want to hear it) that he would very likely end up in prison for a significant period if he went to trial.” Foley and Boggs attest that they went through significant effort to secure a plea offer that “would have saved Rukes had he not reneged on it.” They stated that upon receiving the plea agreement from the prosecutor on December 28, 2009, they “brought the Agreement to Rukes to sign. Instead he asked to keep it overnight, so we left it with him.” Rukes initially had indicated to Foley and Boggs that he would accept the plea agreement, but changed his mind. Attached as an exhibit to Foley’s and Boggs’s affidavit was an email from Foley to prosecutor Boylan stating as follows: I brought the Plea Agreement that Jack had accepted out to review with him yesterday and spent a couple hours in discussion and answering all his 11 questions. He wanted to keep it over night. When I went back this morning to see him and retrieve the documents, he had changed his mind. ¶26 The affidavit and supporting documents provide further support for the District Court’s conclusion that Rukes’s ineffective assistance of counsel claim was without merit. Rukes had the burden of establishing his claim through material facts; his unsupported allegations do not suffice to demonstrate that Foley and Boggs failed to provide him with a copy of the plea agreement or to advise him of the consequences of proceeding to trial. Ellenburg, ¶ 16. The District Court did not err in dismissing the claim. ¶27 5. Withdrawal of Foley and Boggs from representation. ¶28 We addressed on direct appeal Rukes’s contention that the District Court erred in granting Foley’s and Boggs’s motion to withdraw from representation. Foley and Boggs moved to withdraw due to Rukes’s inability to pay his fee obligations and because a fundamental disagreement between counsel and Rukes arose from his refusal to accept the plea agreement. The District Court considered their motion during its December 29, 2009, hearing. His appellate counsel could find no authority to support a conclusion that the District Court abused its discretion in granting the motion to withdraw, unless counsels’ withdrawal violated Rukes’s speedy trial right. We already have addressed that question in ¶¶ 14-16, above. ¶29 6. Whether counsels’ cumulative errors warrant reversal. ¶30 The doctrine of cumulative error “is appropriate to reverse a defendant’s conviction only where a number of errors, taken together, prejudiced the defendant’s 12 right to a fair trial.” Howard, ¶ 40 (quoting State v. Ferguson, 2005 MT 343, ¶ 126, 330 Mont. 103, 126 P.3d 463) (internal quotation marks omitted). We have considered all of the arguments Rukes has made on appeal. For the reasons already discussed, we agree with the District Court that Rukes has not met his burden of establishing that any error of his pre-trial and trial counsel prejudiced his right to a fair trial. ¶31 We affirm the District Court’s dismissal of Rukes’s Petition for Post-Conviction Relief. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BRIAN MORRIS /S/ LAURIE McKINNON | March 5, 2013 |
dd086d1d-0c2b-4af1-b2da-c7b1ed972855 | In re R.F. | 2013 MT 59 | DA 12-0433 | Montana | Montana Supreme Court | DA 12-0433 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 59 IN THE MATTER OF: R.F., Respondent and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DI 12-42 Honorable Mary Jane Knisely, 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; Mardell Ployhar, Assistant Attorney General, Helena, Montana Scott Twito, Yellowstone County Attorney; Mark English, Deputy County Attorney, Billings, Montana Submitted on Briefs: January 31, 2013 Decided: March 5, 2013 Filed: __________________________________________ Clerk March 5 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 R.F. appeals an order of the District Court for the Thirteenth Judicial District, Yellowstone County, involuntarily committing him to the Montana State Hospital (MSH). We affirm. ¶2 We address the following issues on appeal: ¶3 1. Whether there was sufficient evidence presented for the District Court to determine that R.F. required commitment because he was either unable to care for his basic needs or was a threat to others. ¶4 2. Whether R.F. received ineffective assistance of counsel. ¶5 R.F. raises a third issue contending there was insufficient evidence to support an order authorizing the involuntary administration of medication. While the District Court makes a finding of fact that R.F. “needs the involuntary admission of medication to improve his mental state,” there are no provisions contained in the District Court’s order which authorize the involuntary administration of medication to R.F. Additionally, the State concedes that the record does not support such a provision. Accordingly, this Court will not address whether an order for involuntary administration of medication was correct. FACTUAL AND PROCEDURAL BACKGROUND ¶6 On June 15, 2012, the Yellowstone County Attorney’s Office filed a petition for involuntary commitment of R.F. The District Court reviewed the petition and determined that there was probable cause to believe R.F. suffered from a mental disorder, and that R.F. met the statutory criteria for involuntary commitment. The court appointed counsel 3 to represent R.F., ordered R.F. detained at the Billings Clinic Psychiatric Center pending resolution of the petition, and set an initial hearing on the petition for June 18, 2012. ¶7 At the initial hearing, the court advised R.F. of his rights pursuant to the petition, appointed Robert W. McDermott, MD, as the professional person to evaluate R.F., and set an evidentiary hearing for June 21, 2012. Dr. McDermott filed his report with the court on June 20, 2012. ¶8 On June 21, 2012, the court conducted the evidentiary hearing on the petition. Billings Police Officer Harley Cagle (Officer Cagle) testified that he responded to Albertson’s grocery store for someone who believed they had been assaulted. Officer Cagle entered the store and walked to the back where he found R.F. on the phone. R.F. was very excited and upset. R.F. immediately began to relate that two black men just tried to kill him. R.F. started pointing at people throughout the store indicating that they were part of “it” and that particular people were on methamphetamines. R.F. explained to Officer Cagle that he worked with the Bureau of Alcohol, Tobacco, and Firearms (ATF) and that a large shipment of methamphetamines was coming which R.F. needed to stop. Officer Cagle testified that it was apparent R.F. was suffering from a mental illness because his thoughts were chaotic, he was incoherent and delusional, and R.F. kept switching from one story to another. Officer Cagle described that he “couldn’t get through” to R.F. or calm him down. Based upon R.F.’s behaviors, Officer Cagle was afraid R.F. would hurt himself or someone else. It was apparent to Officer Cagle that R.F. needed to be evaluated for a mental disorder. 4 ¶9 Officer Cagle further testified that Officer Wanchena arrived at Albertson’s and assisted Officer Cagle. Officer Cagle learned from Officer Wanchena that a similar disturbance with R.F. had occurred a week earlier. Despite the officers’ efforts, R.F.’s delusional state and fearfulness continued and could not be quieted. When the officers patted R.F. down for transport, R.F. thought a sniper was attempting to shoot him and he tried to protect himself by leaning down next to the patrol vehicle. Once in the vehicle, R.F. laid down in the back seat so that he would not be exposed to any attack. ¶10 R.F. was transported to the Billings Clinic Psychiatric Center where he was evaluated by Dr. McDermott, a psychiatrist and the medical director of the Psychiatric Center. Dr. McDermott has been a board certified psychiatrist since 1984, having received his medical training at Yale Medical School, Johns Hopkins University, and Sheppard Pratt Hospital. There was no challenge to Dr. McDermott’s credentials or his qualifications as a professional person. ¶11 Dr. McDermott testified he first encountered R.F. in the emergency room. R.F. was lying naked on the cart and partially covered by a sheet. R.F. was actively masturbating. Dr. McDermott related that R.F. had been very threatening towards the emergency room staff, was confrontational, and was “quite difficult to deal with.” Dr. McDermott described R.F. as “overtly psychotic and delusional.” Particularly, R.F. expressed multiple delusions, had a “flight of ideas,” and changed subjects repeatedly from one topic to another. Dr. McDermott soon learned that R.F.’s major delusions centered around amphetamines and drugs, and that R.F. believed he worked with the Drug Enforcement Agency and the FBI. R.F.’s secondary delusions included having 5 massive wealth and owning homes across the country. Additionally, R.F. was fearful and paranoid of people trying to harm him. Dr. McDermott opined that R.F. suffered from severe psychosis, likely a bipolar or manic-depressive disorder, and has likely suffered from the illness for a long period of time. ¶12 It was Dr. McDermott’s medical opinion that because of R.F.’s lack of insight and the severity of his mental disorder, R.F. would be unable to follow through with his treatment regimen and, in very short order he would be back in the same condition he was in upon his admission. Dr. McDermott opined that R.F. could not “sustain himself” if his condition were left untreated and that R.F. would be a threat to others. Dr. McDermott based his opinion, in part, on the condition of R.F.’s feet when admitted, that R.F. was homeless and appeared to have no resources, and R.F.’s fearfulness and paranoia. Due to the severity of R.F.’s illness, Dr. McDermott indicated there was nothing available in the community and that MSH would be the least restrictive environment for treatment. ¶13 R.F. testified in his own defense. R.F. indicated that the incident at Albertson’s occurred when “two brothers that had beaten [him] up that morning” approached him at the meat counter. R.F. testified he was scared and started yelling “[t]hese guys are trying to beat me up.” R.F. alluded to their use of meth and that there were hundreds of them— “just waves of these methamphetamine addicts”—coming to look at him. R.F. also testified about difficulties with his family and represented that his family has a restraining order against him. ISSUE 1. 6 ¶14 Whether there was sufficient evidence presented for the District Court to determine that R.F. required commitment because he was either unable to care for his basic needs or was a threat to others. ¶15 A. Standard of Review. ¶16 We review a district court’s order of commitment “to determine whether the court’s findings of fact are clearly erroneous and its conclusions of law are correct.” In re Mental Health of L.K.-S., 2011 MT 21, ¶ 14, 359 Mont. 191, 247 P.3d 1100. A finding of fact is clearly erroneous if “it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence or if, after a review of the entire record, we are left with the definite and firm conviction that a mistake has been made.” L.K.-S., ¶ 14; see also In re C.R., 2012 MT 258, ¶ 12, 367 Mont. 1, 289 P.3d 125. ¶17 We require “strict adherence” to the statutory scheme governing involuntary commitment due to the “critical importance” of the constitutional rights at stake. L.K.-S., ¶ 15 (citing In re Mental Health of C.R.C., 2004 MT 389, ¶ 16, 325 Mont. 133, 104 P.3d 1065; In re Mental Health of T.J.D., 2002 MT 24, ¶ 20, 308 Mont. 222, 41 P.3d 323). ¶18 Finally, an appeal from an order of involuntary commitment is not moot despite the appellant’s release, since the issues are capable of repetition and the matter would otherwise escape review. C.R., ¶ 14 (citing In re Mental Health of D.V., 2007 MT 351, ¶ 32, 340 Mont. 319, 174 P.3d 503). ¶19 B. Analysis. ¶20 The standard of proof for a commitment hearing, set forth in § 53-21-126(2), MCA, is for all physical facts and evidence to be proven beyond a reasonable doubt and 7 all other matters to be proven by clear and convincing evidence, with the exception of mental disorders which must be proven to a reasonable degree of medical certainty. ¶21 At the trial on a petition for involuntary commitment, a court must first determine whether the respondent suffers from a mental disorder as defined in § 53-21-102(9), MCA. Section 53-21-126(1), MCA. R.F. does not contest the District Court’s finding that he suffers from a mental disorder. ¶22 Upon a finding that a person suffers from a mental disorder, the court must next determine whether one of the following criteria has been met: (a) whether the respondent, because of a mental disorder, is substantially unable to provide for the respondent’s own basic needs of food, clothing, shelter, health, or safety; (b) whether the respondent has recently, because of a mental disorder and through an act or an omission, caused self-injury or injury to others; (c) whether, because of a mental disorder, there is an imminent threat of injury to the respondent or to others because of the respondent’s acts or omissions; and (d) whether the respondent’s mental disorder, as demonstrated by the respondent’s recent acts or omissions, will, if untreated, predictably result in deterioration of the respondent’s mental condition to the point at which the respondent will become a danger to self or to others or will be unable to provide for the respondent’s own basic needs of food, clothing, shelter, health, or safety. Predictability may be established by the respondent’s relevant medical history. Section 53-21-126(1), MCA. If the court is satisfied that any one of the criteria listed above is met, then commitment may be ordered. Section 53-21-127(7), MCA. ¶23 The District Court determined that R.F. is unable to care for himself and is a threat to others, that “[R.F.] needs constant supervision to ensure his basic needs are met and he does not harm someone else,” and that “[R.F.] lacks the mental ability to provide himself 8 with the necessities of life. He is psychotic.” Although not abundantly clear from the order, the District Court’s findings and the record support determinations under § 53-21-126(1)(a) and (c), MCA. In order to address the criteria set forth in § 53-21-126(1), MCA, we must consider the significance of Dr. McDermott’s testimony. ¶24 Dr. McDermott was the professional person appointed by the District Court to examine R.F. During the trial, the professional person may “testify as to the ultimate issue of whether the respondent is suffering from a mental disorder and requires commitment.” Section 53-21-126(4), MCA. The testimony, however, is insufficient unless accompanied by evidence from the professional person that the respondent, because of a mental disorder, is unable to provide for the respondent’s own basic needs of food, clothing, shelter, health, or safety (§ 53-21-126(4)(a), MCA), or because of a mental disorder, there is an imminent threat of injury to the respondent or to others because of the respondent’s acts or omissions (§ 53-21-126(4)(c), MCA). ¶25 Consistent with § 53-21-126(4), MCA, Dr. McDermott opined that R.F. suffered from a mental disorder which required his commitment. Particularly, R.F. was “overtly psychotic” and suffered from a severe mental disorder characterized by grandiose delusions, fearfulness, and paranoia. He lacked any insight into his behaviors, and he presented to the hospital homeless and with cracks on the soles of his feet. Dr. McDermott opined that R.F. has not been able to sustain himself outside of a hospital environment. In particular, Dr. McDermott testified: [I]n very short order he would be in trouble. He has no insight about what has occurred or that he’s got these problems. I think the chances that he would follow up or take medication outside the context of the hospital are 9 zero. So he would be back into what this looks like in his current state for a number of weeks and months, but in particular very recently with his admission. ¶26 In considering first the criteria of § 53-21-126(1)(a), MCA, it is not necessary to present evidence of overt acts to prove that respondent suffers from a mental disorder that renders him substantially unable to provide for his basic needs. In re G.P., 246 Mont. 195, 198, 806 P.2d 3, 6 (1990) (citing In re C.M., 195 Mont. 171, 173-74, 635 P.2d 273, 274-75 (1981)). Evidence of overt acts is only necessary where the commitment is based upon the imminent threat of self-inflicted injury or injury to others. G.P., 246 Mont. at 198, 806 P.2d at 6 (citing § 53-21-126(2), MCA). ¶27 This is not the first instance this Court has considered the expert opinion of a professional person in order to assess the ability of a severely mentally ill person to provide for their basic necessities. In In re Mental Health of L.C.B., 253 Mont. 1, 830 P.2d 1299 (1992), the respondent had been arrested in connection with an automobile accident. While in custody, he appeared disoriented and confused, prompting law enforcement officials to ask that he be evaluated for a mental illness. After examining L.C.B., a psychiatrist diagnosed him as suffering from chronic paranoid schizophrenia which significantly impaired his ability to meet his own basic needs and protect his life and health. L.C.B., 253 Mont. at 2, 830 P.2d at 1300. L.C.B. suffered from hallucinations which impaired his ability to process information and respond to even the simplest of tasks. The uncontradicted testimony indicated that L.C.B. demonstrated an inability to take care of or assess his basic health needs, thus his commitment was affirmed by this Court. L.C.B., 253 Mont. at 6, 830 P.2d at 1303. 10 ¶28 Similarly, in G.P., the professional person appointed to examine G.P. diagnosed him as a severe chronic paranoid schizophrenic who, without medication, developed severe auditory hallucinations that directed him to do things he could not control, thus depriving him of the ability to protect his own life and health. G.P., 246 Mont. at 198, 806 P.2d at 5. While recognizing that “[i]t is one thing to commit an individual who cannot function sufficiently to supply basic survival needs, and another to commit an individual who merely ‘chooses to live under conditions that most of society would conclude to be substandard,’ ” this Court found the record indicated G.P.’s illness was interrupting his cognitive processes, causing delusional thinking, and was severely interfering with G.P.’s functioning. G.P., 246 Mont. at 199-200, 806 P.2d at 5 (quoting In re R.T., 204 Mont. 493, 665 P.2d 789, 791 (1983)). Hence, G.P.’s commitment was affirmed. ¶29 In the instant case, R.F. maintains that cracked calluses due to wearing sandals does not constitute an inability to provide for one’s safety, and that a finding under § 53-21-126(1)(a), MCA, is not supported by the record. R.F. is correct that this fact, in and of itself, would be insufficient for a court to determine a person was not able to provide for their basic necessities. However, the record in the instant proceedings provides considerably more evidence than just cracked feet. In addition to Dr. McDermott’s medical diagnosis that R.F. was severely psychotic, and evidence proven beyond a reasonable doubt that R.F. was delusional, fearful, and paranoid, there is evidence that R.F. was without adequate housing or shelter. Although R.F.’s precise living situation in Billings was unclear at the hearing, the District Court found that R.F. 11 “is a divorced, unemployed, older man who was living with his elderly parents in Powell, Wyoming.” R.F. testified that his father had passed away, and that he had cared for his mother who had dementia. R.F. also testified that his sister was currently taking care of his mother. R.F. indicated that he could not return to his mother’s home because “they have a restraining order on me not to go there.” Dr. McDermott testified that R.F. was homeless and appeared to be without any resources. ¶30 Based upon the foregoing, there is substantial evidence that R.F.’s illness deprived him of the ability to take care of his “own basic needs of food, clothing, shelter, health or safety.” Section 53-21-126(1)(a), MCA. No home or residence was established for R.F., R.F. presented to admissions at the Billings Clinic with cracks on the soles of his feet, and R.F. was delusional and severely psychotic. Dr. McDermott opined that R.F. lacked the insight to understand his problems or adequately care for himself. The District Court did not misapprehend the effect of the evidence, nor does a review of the record leave this Court with a definite and firm conviction that a mistake has been committed. The finding by the District Court that R.F. suffered from a mental disorder which prevented R.F. from providing for his basic necessities of life was not clearly erroneous. ¶31 R.F. further maintains that the District Court erred in finding the criteria of § 53-21-126(1)(c), MCA, “imminent threat of injury to the respondent or to others,” in that no overt acts indicating R.F. was a threat to himself or others were established. R.F. argues that the District Court incorrectly relied on hearsay statements made by R.F.’s family to Dr. McDermott which were contained in Dr. McDermott’s written report. Although this Court has determined to affirm the District Court under the criteria of 12 § 53-21-126(1)(a), MCA, and it is sufficient for any one of the eligibility criteria to be met in § 53-21-126(1), MCA, the record in these proceedings also supports the District Court’s finding that R.F. was a threat to others pursuant to § 53-21-126(1)(c), MCA. ¶32 The “overt acts” requirement necessary for a finding that a respondent is a threat to himself or others was addressed in In re D.D., 277 Mont. 164, 920 P.2d 973 (1996). In D.D., the professional person testified at D.D.’s commitment hearing that D.D. was a potential danger to himself and others because he was consistently paranoid and afraid that someone was about to attack him. The professional person further testified that D.D. could very easily attack someone out of fear of being attacked himself and his inability to control his paranoia. D.D., 277 Mont. at 168-69, 920 P.2d at 975. This Court held that D.D.’s statements to the professional person constituted overt acts satisfying statutory requirements. D.D., 277 Mont. at 168-69, 920 P.2d at 975. ¶33 Similarly, this Court affirmed a commitment in In re Mental Health of A.S.B., 2008 MT 82, 342 Mont. 169, 180 P.3d 625, based on the threat of injury created by a respondent’s delusional belief that local police officers were in a conspiracy against him. A.S.B. repeatedly placed himself in situations where police were required to investigate. A.S.B. was living out of his truck and normally A.S.B.’s activities were innocent. Upon being encountered by police, however, A.S.B. would become upset and begin yelling, believing that police were harassing him and conspiring against him. A.S.B., ¶¶ 7-9. ¶34 In the instant case, R.F. created a disturbance in the grocery store because he believed he had been assaulted. He yelled and pointed at people he believed were involved in assaulting him and accused store patrons of being methamphetamine addicts. 13 R.F. tried to hide from snipers that he believed were trying to kill him and took cover in the back seat of the patrol vehicle. R.F. was threatening to emergency room personnel and displayed inappropriate sexual behavior. He explained that he was afraid because he had been a drug smuggler, and he knew a large drug shipment into the area was about to occur. R.F.’s paranoid belief that strangers were part of a methamphetamine conspiracy trying to kill him and that snipers were planning on killing him, are overt acts which substantiate Dr. McDermott’s opinion that R.F. was a threat to others. ¶35 Here, R.F.’s overt acts are his delusional behavior, paranoid beliefs, and his statements to both law enforcement and Dr. McDermott. In light of the aforementioned evidence and with no consideration of statements made by R.F.’s family members contained in Dr. McDermott’s written report, we conclude that the District Court’s finding that R.F. presented an imminent threat of injury to himself or others is supported by substantial evidence and is not otherwise clearly erroneous. ISSUE 2. ¶36 Whether R.F. received ineffective assistance of counsel. ¶37 A. Standard of Review. ¶38 In determining whether counsel provided effective assistance to a respondent in an involuntary commitment proceeding, the Court reviews five critical areas: 1) the appointment of counsel; 2) counsel’s initial investigation; 3) counsel’s interview with the client; 4) the patient-respondent’s right to remain silent; and 5) counsel’s role as an advocate for the patient-respondent. In re Mental Health of T.J.F., 2011 MT 28, ¶ 33, 14 359 Mont. 213, 248 P.3d 804. R.F. has failed to demonstrate that counsel’s performance was deficient. ¶39 B. Analysis. ¶40 R.F. argues that he was provided ineffective assistance of counsel because counsel failed to object to the admission of hearsay statements in Dr. McDermott’s report, failed to generally advocate for R.F., and failed to question whether MSH was the least restrictive environment for R.F.’s treatment. ¶41 This Court has already reviewed the sufficiency of the District Court’s findings of fact and order in ¶ 30 of this Opinion, without consideration of any hearsay that may have been contained in Dr. McDermott’s written report, and found them sufficient. Nevertheless, M. R. Evid. 803(4) provides that statements which are made for purposes of medical diagnosis or treatment are admissible even though they are hearsay if certain criteria are established. These statements must satisfy a two-prong test before they come within the exception. State v. Harris, 247 Mont. 405, 412, 808 P.2d 453, 457 (1991) (citing State v. J.C.E., 235 Mont. 264, 270, 767 P.2d 309, 313 (1988), overruled in part and on other grounds by State v. S.T.M., 2003 MT 221, 317 Mont. 159, 75 P.3d 1257). First, the declarant’s motive in making the statement must be consistent with seeking medical treatment. Second, the statement must be of a type reasonably relied upon when making diagnosis and treatment. Harris, 247 Mont. at 412, 808 P.2d at 457. Reliability is assured by the first prong of the test. The declarant who seeks medical treatment has a selfish motive in telling the truth, and the declarant knows that the effectiveness of the treatment received will depend in large part on the accuracy of the information provided. 15 Harris, 247 Mont. at 412-13, 808 P.2d at 457. Similarly, an expert may base his opinion on inadmissible evidence and may testify as to the basis of that opinion. M. R. Evid. 703 and 705. In every case, however, the admissibility of evidence must be left largely to the sound discretion of the trial judge, which includes wide latitude in determining the admissibility of expert opinion evidence. Lynch v. Reed, 284 Mont. 321, 334, 944 P.2d 218, 226 (1997) (citing Cech v. State, 184 Mont. 522, 531-32, 604 P.2d 97, 102 (1979); Moen v. Peter Kiewit & Sons’ Co., 201 Mont. 425, 655 P.2d 482 (1982); Durbin v. Ross, 276 Mont. 463, 916 P.2d 758, 767 (1996); Cash v. Otis Elevator Co., 210 Mont. 319, 332, 684 P.2d 1041, 1048 (1984)). ¶42 Accordingly, had R.F. objected to these statements, the State could likely have demonstrated a basis for their admissibility. Nevertheless, the District Court’s order of commitment was supported by substantial evidence without consideration of the statements made by R.F.’s family. R.F. has failed to demonstrate that counsel’s performance was deficient. ¶43 R.F. also contends that his counsel failed to adequately advocate on his behalf. The record of these proceedings, however, do not bear out such a contention. Through cross-examination of Officer Cagle, R.F.’s counsel was able to demonstrate that R.F. was not observed to assault, strike, or injure anyone, and that R.F. had not been aggressive to medical staff once medications had been administered. Similarly, Dr. McDermott was questioned about how many times he had observed R.F. and whether he had witnessed any assaults by R.F. R.F.’s responses were often incoherent and delusional which, in and 16 of themselves, present difficulties for counsel. R.F. has similarly failed to demonstrate how counsel’s performance was deficient. ¶44 Lastly, R.F. argues that his counsel did not object to MSH being the least restrictive environment for treatment. Dr. McDermott testified that there was nothing else available for a person with as severe a mental disorder as R.F.’s. Dr. McDermott’s testimony was clear, unequivocal, and simple. This testimony, in conjunction with R.F.’s behavior and other evidence produced during the trial, made an examination to pursue a less restrictive environment, less plausible. ¶45 Based upon the foregoing, we hold that R.F. has failed to make a substantial showing that his trial counsel was ineffective. T.J.F., ¶ 33. ¶46 For the foregoing reasons, the judgment of the District Court is affirmed. /S/ LAURIE McKINNON We Concur: /S/ BETH BAKER /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JIM RICE | March 5, 2013 |
c5056ec5-f09a-4a2b-99e7-fcc9745cb5e8 | Larry Adams v. State | 2013 MT 23N | DA 12-0271 | Montana | Montana Supreme Court | DA 12-0271 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 23N LARRY ADAMS, 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 11-271 Honorable Jeffrey H. Langton, Presiding Judge COUNSEL OF RECORD: For Appellant: Larry Adams, Self-Represented, Shelby, Montana For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana William Fulbright, Ravalli County Attorney; Angela Wetzsteon, Deputy County Attorney, Hamilton, Montana Submitted on Briefs: January 16, 2013 Decided: February 5, 2013 Filed: __________________________________________ Clerk February 5 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 Larry Adams appeals from the District Court’s opinion and order filed April 17, 2012, dismissing his petition for postconviction relief. We affirm. ¶3 Adams was convicted of aggravated assault and other crimes, and sentenced in 1999. He did not appeal, but since then he has instituted a number of collateral attacks upon his conviction and sentence. State v. Adams, 2002 MT 202, 311 Mont. 202, 54 P.3d 50 (remanding to district court for appointment of counsel to allow Adams to raise any direct appeal or postconviction relief issues in his case); Adams v. State, 2007 MT 35, 336 Mont. 63, 153 P.3d 601 (affirming the district court’s denial of Adams’ petition for postconviction relief following the remand in 2002). In 2010 the United States District Court granted Adams a writ of habeas corpus, requiring that he be resentenced for a term that did not include a ten-year enhancement for use of a weapon, based upon Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). ¶4 Adams appeared before the District Court on February 10, 2010, with counsel, for resentencing pursuant to the writ. The District Court re-sentenced Adams to the same sentence he received in 1999, but without the ten-year enhancement for use of a weapon. The District Court also amended two six-month sentences for misdemeanor charges so that they ran concurrently rather than consecutively with the felony sentence. Adams initiated 3 the present proceeding by filing a petition pro se for postconviction relief on April 21, 2011, contending that his attorney at resentencing provided ineffective assistance by refusing to appeal the conviction from 1999. ¶5 Under Montana law Adams had one year from the date the 2010 sentencing became final in which to petition for postconviction relief. Section 46-21-102, MCA. Adams did not file his petition within that one-year time period. The District Court carefully considered and rejected Adams’ arguments as to why his petition was not procedurally barred. Adams does not explain how his 2010 sentence was unlawful and his underlying conviction was final more than a decade ago. He had an adequate remedy to attack his underlying conviction by direct appeal in 1999 and again after remand by this Court in 2002, and has presented no basis for attacking his conviction. Section 46-21-101, MCA. ¶6 The District Court properly applied the law and properly dismissed Adams’ petition for postconviction relief. We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for memorandum opinions. ¶7 Affirmed. /S/ Mike McGrath We concur: /S/ Jim Rice /S/ Michael E Wheat /S/ Beth Baker /S/ Brian Morris | February 5, 2013 |
fe7990b1-ecf7-46ba-b621-dfe381d5fafa | State v. Rodney P. DeAvila | 2013 MT 37N | DA 12-0380 | Montana | Montana Supreme Court | DA 12-0380 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 37N STATE OF MONTANA, Plaintiff and Appellee, v. RODNEY PAT DeAVILA, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-98-13177 Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD: For Appellant: Rodney Pat DeAvila, self-represented, Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana Submitted on Briefs: January 23, 2013 Decided: February 12, 2013 Filed: __________________________________________ Clerk February 12 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 Rodney DeAvila appeals from the District Court’s order denying his petition for DNA testing. We affirm. ¶3 In 1998 DeAvila picked up a 17-year old female hitchhiker, attempted to subdue her with an inhalant, struck her, sexually assaulted her and threatened to kill her if she told anyone. In March 2000, he pled guilty, admitting that “I picked up a girl & forced her to have sex with me & said I would kill her if she told.” He was convicted of aggravated kidnapping, sexual intercourse without consent and intimidation and sentenced to 60 years. Following several petitions for postconviction relief, this Court upheld the denial of DeAvila’s motion to withdraw his guilty plea. State v. DeAvila, 2012 MT 53N, 364 Mont. 551. ¶4 In May 2012, DeAvila filed a petition for DNA testing as provided in § 46-21-110, MCA. On June 6, 2012, the District Court denied the petition. ¶5 Section 46-21-110, MCA, contains the requirements that must be met to qualify for postconviction DNA testing, one of which is that identity of the perpetrator was or should have been a significant issue in the case. Section 46-21-110(5)(c), MCA; Haffey v. State, 2010 MT 97, ¶ 14, 356 Mont. 198, 233 P.3d 315. Identity is not an issue when the defendant admits to committing the act, as DeAvila did in this case. Haffey, ¶ 15. In addition, by 3 pleading guilty DeAvila waived all factual defenses that existed prior to the plea. State v. Johnson, 274 Mont. 124, 129, 907 P.2d 150, 153 (1995). The District Court properly applied the law and denied the petition. ¶6 DeAvila raises other claims about his guilty plea and about his former attorney. We decline to address issues raised for the first time on appeal, State v. Wetzel, 2005 MT 154, ¶ 13, 327 Mont. 413, 114 P.3d 269, and decline to address issues that were previously procedurally barred. DeAvila, ¶ 5. ¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for memorandum opinions. The issues in this case are legal and are controlled by settled Montana law, which the District Court correctly applied. ¶8 Affirmed. /S/ Mike McGrath We concur: /S/ Michael E Wheat /S/ Laurie McKinnon /S/ Patricia Cotter /S/ Brian Morris | February 12, 2013 |
705c6f64-f504-4a88-8f6b-46cd43416768 | Gunderson v. State | 2013 MT 36N | DA 12-0376 | Montana | Montana Supreme Court | DA 12-0376 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 36N DAVID GUNDERSON, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 10-2086 Honorable Gregory R. Todd, Presiding Judge COUNSEL OF RECORD: For Appellant: David Gunderson (Pro Se), Glendive, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Scott Twito, Yellowstone County Attorney, Ann-Marie McKittrick, Deputy County Attorney, Billings, Montana Submitted on Briefs: January 16, 2013 Decided: February 12, 2013 Filed: __________________________________________ Clerk February 12 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 David Gunderson appeals from an order of the District Court for the Thirteenth Judicial District, Yellowstone County, denying his pro se Petition for Postconviction Relief. We affirm. ¶3 In 2008, a jury convicted Gunderson of burglary and attempted sexual intercourse without consent. The District Court determined that Gunderson was a persistent felony offender and sentenced him to 100 years in prison on the burglary charge and a consecutive term of life in prison on the charge of attempted sexual intercourse without consent, both to be served without the possibility of parole. In its written judgment, the District Court imposed 51 conditions on Gunderson should he ever be released to the community. This Court affirmed Gunderson’s conviction and sentence on direct appeal with the exception of the District Court’s imposition of the 51 conditions. We remanded that matter to the District Court to strike the conditions from Gunderson’s sentence. State v. Gunderson, 2010 MT 166, 357 Mont. 142, 237 P.3d 74. ¶4 Gunderson filed his Petition for Postconviction Relief on December 14, 2010. The District Court denied Gunderson’s petition stating that Gunderson had not satisfied the 3 requirements of § 46-21-104(1)(c), MCA, “because he has failed to identify facts which support his grounds for relief and he did not attach any affidavits, records or other evidence to establish the existence of those facts.” The court also determined that many of Gunderson’s claims for relief were barred by res judicata. ¶5 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. Having reviewed the briefs and the record on appeal, we conclude that the issues in this case are legal issues, and they are controlled by settled Montana law which the District Court correctly interpreted. ¶6 Affirmed. /S/ Laurie McKinnon We Concur: /S/ Mike McGrath /S/ Beth Baker /S/ Patricia Cotter /S/ Michael E Wheat | February 12, 2013 |
abb09bbc-bf35-4c33-8f1f-65dfc260bd72 | Spinks v. Whipple Lambert | 2013 MT 27N | DA 12-0465 | Montana | Montana Supreme Court | DA 12-0465 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 27N BRIAN SPINKS, Plaintiff and Appellant, v. TODD WHIPPLE, and MARTY LAMBERT, Defendants and Appellees. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV-12-325C Honorable John C. Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Brian Spinks (self-represented), Deer Lodge, Montana For Appellee: Steven R. Milch, Crowley Fleck PLLP, Billings, Montana Submitted on Briefs: January 3, 2013 Decided: February 5, 2013 Filed: __________________________________________ Clerk February 5 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 Brian Spinks (Spinks) appeals from an order entered by the Eighteenth Judicial District Court, Gallatin County, granting Defendants’ motion to dismiss. We affirm. ¶3 On January 12, 2011, Spinks was charged by Information with violating an order of protection. The Information was signed by Chief Deputy Gallatin County Attorney, Todd S. Whipple (Whipple). On September 26, 2011, Whipple moved to dismiss the action without prejudice on the basis that jurisdictional venue was more appropriate in Toole County, where the alleged offense occurred. The District Court granted the motion and dismissed the action without prejudice. ¶4 On May 10, 2012, Spinks filed a complaint against Whipple and Gallatin County Attorney Marty Lambert (Lambert). The complaint asserts that Spinks was falsely arrested, wrongfully charged, falsely imprisoned, and maliciously prosecuted. According to the complaint, all of the claims stem from Whipple “intentionally and maliciously, illegally charging Plaintiff Brian Spinks in the wrong jurisdiction.” Spinks later moved to join Gallatin County as a defendant in the action. On June 21, 2012, Whipple and Lambert moved to dismiss the action with prejudice based on absolute prosecutorial immunity. ¶5 The District Court granted Whipple and Lambert’s motion to dismiss. The court stated that “all [of Spinks’] claims derive from allegations that he was ‘illegally charged’ 3 with a criminal offense which was subsequently dismissed.” Therefore, the court reasoned, Spinks’ allegations focus entirely on Whipple and Lambert’s prosecutorial discretion in deciding whether to institute a criminal prosecution against a plaintiff, and if so on what charges. Determining that such actions are protected by absolute prosecutorial immunity, the court dismissed Spinks’ complaint with prejudice. The court also denied Spinks’ motion to join Gallatin County on the basis of mootness. Spinks appeals. ¶6 We review de novo a district court’s decision on a motion to dismiss. Martin v. Artis, 2012 MT 249, ¶ 8, 366 Mont. 513, 290 P.3d 687 (citation omitted). We “‘construe the complaint in a light most favorable to the plaintiff, deeming all factual allegations to be true.’” Martin, ¶ 8 (quoting Fellows v. Off. of Water Comm’r, 2012 MT 169, ¶ 11, 365 Mont. 540, 258 P.3d 448). We will affirm a dismissal “‘only if [we] find[] that the plaintiff is not entitled to relief under any set of facts that could be proven in support of the claims.’” Martin, ¶ 8 (quoting Fellows, ¶ 11). ¶7 A decision as to whether or not to prosecute and what charge to bring against an individual is entirely within the discretion of the prosecutor. Helena Parents Comm’n v. Lewis & Clark Co. Comm’rs, 277 Mont. 367, 375, 922 P.2d 1140, 1145 (1996) (citation omitted). “Filing and maintaining criminal charges are among the many duties of a prosecutor and when a prosecutor acts within the scope of these duties, that prosecutor is absolutely immune from civil liability, regardless of negligence or lack of probable cause.” Rosenthal v. Co. of Madison, 2007 MT 277, ¶ 29, 339 Mont. 419, 170 P.3d 493 (citations omitted). We have stated that filing and dismissing criminal complaints are “precisely the type of conduct that the prosecutorial immunity doctrine was designed to protect.” 4 Rosenthal, ¶ 29. If we did not grant such prosecutorial immunity, “‘[t]here would always be a question of possible civil action in case[s] the prosecutor saw fit to move dismissal of the case. . . . The work of the prosecutor would thus be impeded . . . . ’” Rosenthal, ¶ 29 (quoting Imbler v. Pachtman, 424 U.S. 409, 423-24, 96 S. Ct. 984, 992 (1976)). ¶8 Here, all of the allegations included in the complaint pertain to Whipple’s initiationof a criminal prosecution against Spinks—a matter within Whipple’s prosecutorial discretion. Because Spinks did not allege any conduct on the part of either Whipple or Lambert that fell outside the scope of absolute prosecutorial immunity, the District Court correctly dismissed his action with prejudice. ¶9 Spinks argues for the first time on appeal that Whipple is not protected by the doctrine of absolute prosecutorial immunity because he stepped out of his scope as prosecutor and acted as a witness when he filed an affidavit of probable cause and motion for leave to file information. In support of his contention, he relies on the Supreme Court decision in Kalina v. Fletcher, 522 U.S. 118, 118 S. Ct. 502 (1997). It is well-established that this Court will not consider a change in legal theory or new arguments raised for the first time on appeal because of the “fundamental unfairness of faulting a district court for failing to rule correctly on an issue it was never given the opportunity to consider.” Schlemmer v. N. Cent. Life Ins. Co., 2001 MT 256, ¶ 22, 307 Mont. 203, 37 P.3d 63 (citations omitted). Consequently, we decline to consider Spinks’ argument further. ¶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. ¶11 Affirmed. 5 /S/ Michael E Wheat We Concur: /S/ Mike McGrath /S/ Jim Rice /S/ Patricia Cotter /S/ Brian Morris | February 5, 2013 |
212c097e-6d04-408d-b249-5a70bf29268a | State v. Roy | 2013 MT 51 | DA 12-0242 | Montana | Montana Supreme Court | DA 12-0242 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 51 STATE OF MONTANA, Plaintiff and Appellee, v. RUSSELL ROY, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 11-145 Honorable Ingrid G. Gustafson, 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, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Submitted on Briefs: February 6, 2013 Decided: February 26, 2013 Filed: __________________________________________ Clerk February 27 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 A peace officer stopped a vehicle that Russell Roy was driving. During the stop, the officer had Roy exit the vehicle so that the officer could detect whether the odor of marijuana was present. A large quantity of marijuana was ultimately discovered in the vehicle, and the State of Montana charged Roy in the Thirteenth Judicial District Court, Yellowstone County, with one count of felony criminal possession of dangerous drugs. Roy filed a motion to suppress the evidence, arguing that the officer had unlawfully exceeded the scope of the stop by requiring Roy to exit the vehicle. The District Court denied the motion. Roy then pleaded guilty to the charge, reserving the right to appeal the denial of his motion. We affirm. ¶2 The sole issue on appeal is whether requiring Roy to exit the vehicle during the traffic stop violated his constitutional right against unreasonable searches and seizures. BACKGROUND ¶3 On January 8, 2010, Detective Benjamin with the Yellowstone County Sheriff’s Department received a Crime Stoppers tip that a woman was dealing marijuana out of her home, described as a yellow house, at 622 North 15th Street in Billings. The informant reported that the woman’s name was Karrie and that she was tall (over six feet) with red hair and was well dressed. The informant also stated that the woman routinely drove her vehicle, a Jeep Cherokee, to California to pick up large quantities of marijuana and then drove back to Montana to distribute the drugs. The informant further stated that the Jeep Cherokee had a “YNP” (Yellowstone National Park) sticker in the back window. 3 ¶4 Due to the detailed nature of this report, Benjamin decided to investigate. He learned that the home was owned by Karrie Johnson. Benjamin reviewed Johnson’s picture on file with the Department of Motor Vehicles and determined that Johnson matched the description of the woman implicated in the Crime Stoppers tip. Benjamin later drove by Johnson’s house and observed her getting into a Jeep Cherokee matching the informant’s description. ¶5 In February 2010, Special Agent Anuszczyk with the Bureau of Alcohol, Tobacco, Firearms and Explosives provided Benjamin with information he had learned through an informant. The informant told Anuszczyk that a very tall woman named Johnson was selling large quantities of marijuana from her residence on the 600 block of North 15th or 16th Street. Furthermore, Johnson was planning to leave for another trip to California to pick up marijuana on February 22. Benjamin later learned through Anuszczyk that Johnson had delayed her trip due to illness and had ended up leaving on February 25. Benjamin confirmed that Johnson’s vehicle was gone after February 25. He noted that a pickup, registered to Roy, was parked at Johnson’s residence. ¶6 On March 4, 2010, Benjamin learned that Johnson would be returning home at around 10:00 that evening. Benjamin, Anuszczyk, and another member of the Eastern Montana High Intensity Drug Trafficking Area Task Force set up surveillance along Interstate 90 between Park City, Montana, and Billings. At around 9:45 p.m., they observed Johnson’s Jeep Cherokee, with the YNP sticker, traveling eastbound on the interstate toward Billings. Benjamin placed a call to Sergeant Reid, a K-9 handler with the Billings Police Department. Benjamin provided Reid with the information he had 4 learned through his investigation, including the Jeep Cherokee’s plate number and the fact that it possibly contained a large amount of marijuana. Benjamin requested that Reid assist with tracking the vehicle as it entered Billings. Benjamin specifically asked that Reid bring his K-9 dog. ¶7 Reid intercepted Johnson’s vehicle on the interstate and followed as it exited onto Laurel Road. Reid paced the vehicle with his patrol car and determined that it was moving at 55 miles per hour, in excess of the posted 45-mile-per-hour speed limit. Reid initiated a traffic stop due to the vehicle’s excessive speed and the report of drug trafficking. Immediately upon approaching the vehicle, Reid detected “a heavy odor of vehicle deodorizer, air-freshener” coming from the vehicle. He further observed that the vehicle had two occupants and that it appeared they had been traveling, as there was clothing, luggage, and some garbage strewn throughout the vehicle. The driver turned out to be Roy; Johnson was riding in the passenger seat. Reid noted that neither Roy nor Johnson had bloodshot eyes, slurred speech, or anything else—other than the use of deodorizer—that might further heighten his suspicion of wrongdoing. Roy’s demeanor was pleasant, polite, and soft-spoken. ¶8 Following his initial interaction with Roy and Johnson, Reid returned to his patrol car with the vehicle registration and Roy’s driver’s license to run them through dispatch. Both Roy and the vehicle checked out clean, except that Roy’s address did not match up with his driver’s license. Reid decided to give Roy warnings for the excessive speed and the failure to update his address. Reid wrote out the warnings while still in his patrol car, which took approximately ten minutes. Reid also contacted Benjamin and reported that 5 he had stopped Johnson’s vehicle. Reid then returned to Johnson’s vehicle. Before issuing the warnings and returning the driver’s license and vehicle registration to Roy, Reid asked Roy to exit the vehicle and accompany him to the rear of the vehicle. At the suppression hearing, Reid explained: I wanted to get a better observation of him. Also, it’s not uncommon for me on traffic stops to have somebody step out of the vehicle and talk to them, especially if there is something not right, something going on. With the tip that I had [from Detective Benjamin] also and the deodorizer, I wanted to talk to him a little bit. Reid further explained that he wanted to separate Roy from the strong deodorizer smell to determine if he could identify any odors on Roy. When Roy exited the vehicle, Reid smelled the odor of burnt marijuana coming from Roy or his clothes. ¶9 Reid briefly interviewed Roy, issued him the warnings, and returned his license and the vehicle registration. Reid then spoke with Johnson. He requested permission to search the vehicle, but she refused consent. When he asked her whether there was any cocaine, heroin, or methamphetamine in the vehicle, Johnson giggled, smiled, and said, “No, I’m not that way.” But when he asked her whether there was marijuana in the vehicle, Johnson became noticeably stressed and firmly declared there was not. At around this time, Benjamin appeared and began interviewing Roy and Johnson. When asked where they were coming from, the two gave conflicting accounts. Reid deployed his police dog for a sniff search of the vehicle’s exterior. The dog indicated on the open driver’s window. After the dog search, Roy admitted there were drugs in the vehicle. He was taken into custody at this time. The vehicle was subsequently seized and searched. Law enforcement discovered approximately three pounds of marijuana inside. 6 ¶10 As noted, the State charged Roy with one count of felony criminal possession of dangerous drugs, in violation of § 45-9-102, MCA (2009). After the District Court denied his motion to suppress, Roy entered into a plea agreement with the State and changed his plea to guilty. The District Court deferred imposition of sentence for three years, with conditions, and imposed a $500 fine. STANDARDS OF REVIEW ¶11 We review a district court’s denial of a motion to suppress to determine whether the court’s findings of fact are clearly erroneous. State v. Hurlbert, 2009 MT 221, ¶ 16, 351 Mont. 316, 211 P.3d 869. 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. Hurlbert, ¶ 16. We further review a district court’s denial of a motion to suppress to determine whether the court’s interpretation and application of the law are correct. State v. Bieber, 2007 MT 262, ¶ 20, 339 Mont. 309, 170 P.3d 444. Our review is plenary as to whether the court correctly interpreted and applied the law. Bieber, ¶ 20. DISCUSSION ¶12 Roy contends that being required to exit the vehicle during the traffic stop violated his constitutional right against unreasonable searches and seizures. This argument is premised on a particular understanding of the basis for the stop. In Roy’s view, Sergeant Reid pulled him over solely for speeding. Roy does not challenge the validity of that stop, given that he unquestionably was violating a traffic law. Rather, Roy challenges what he perceives as an unlawful expansion of the stop from an investigation premised on 7 a traffic offense into “a fishing expedition” for evidence of other unlawful activity. Roy argues that once Reid had finished writing out the warnings he intended to give Roy, there was no reason for Reid then to ask Roy to exit the vehicle to issue him these warnings and return his driver’s license and the vehicle registration. Roy maintains that the smell of a deodorizer was not a sufficient ground for prolonging an investigation premised solely on a speeding violation. See Hurlbert, ¶ 21 (a stop may not last longer than is necessary to effectuate the purpose of the stop, unless “additional objective data of wrongdoing” give rise to further suspicions and enlarge the scope of the investigation). He asserts that the stop should have concluded with the return of his paperwork and the issuance of the warnings, without requiring him to exit the vehicle. “When Sgt. Reid returned to the vehicle and ordered Roy to exit and walk to the rear of the vehicle, the investigative stop turned into an unlawful detention.” ¶13 The State proffers two separate grounds for upholding Reid’s action here. First, the State cites two decisions of the United States Supreme Court for the proposition that an officer effecting a lawful traffic stop may order the driver or passengers out of the vehicle pending completion of the stop, without running afoul of the Constitution. In Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330 (1977) (per curiam), the Supreme Court upheld a state police officer’s practice of ordering all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation, even if the officer had no reason to suspect foul play from the particular driver at the time of the stop. In Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882 (1997), the Supreme Court extended this rule to passengers, holding that an officer making a traffic stop may order 8 passengers to get out of the vehicle pending completion of the stop. Significantly, in both cases, the Supreme Court specifically grounded this rule on concerns for “officer safety” arising out of “the possibility of a violent encounter” and “[t]he hazard of accidental injury from passing traffic.” Mimms, 434 U.S. at 110-11, 98 S. Ct. at 333; Wilson, 519 U.S. at 412-14, 117 S. Ct. at 885-86. No such concerns are implicated in the present case, however. Reid did not ask Roy to exit the vehicle until near the end of Reid’s investigation into the speeding offense; and Reid’s avowed purpose in doing so was not for safety reasons, but to investigate whether Roy was engaged in additional wrongdoing. The District Court found that “the reason [Reid] requested Roy to exit the vehicle was to separate him from the vehicle to determine if he could identify any odors on Roy if he was out of the vehicle.” Accordingly, this case does not present an opportunity to apply the rule of Mimms and Wilson. ¶14 The State’s second argument is that Reid had sufficient suspicion of wrongdoing to justify requiring Roy to exit the vehicle. The State suggests that Reid did not “expand” his investigation at all because the traffic stop was based not only on excessive speed, but also on reliable, corroborated reports that the vehicle was involved in drug trafficking. This version of events finds support in the District Court’s finding that “Reid initiated a traffic stop of the vehicle due to its excessive speed and the report of drug trafficking” (emphasis added). Thus, as the State’s theory goes, having Roy exit the vehicle was encompassed within one of the two purposes for the stop: to ascertain whether the occupants were trafficking drugs. We agree with this argument. 9 ¶15 Stopping an automobile and detaining its occupants constitutes a “seizure” under the Fourth and Fourteenth Amendments to the United States Constitution and Article II, Section 11 of the Montana Constitution, even though the purpose of the stop is limited and the resulting detention quite brief. State v. Carlson, 2000 MT 320, ¶ 18, 302 Mont. 508, 15 P.3d 893. Thus, the constitutional prohibition against unreasonable searches and seizures applies to investigatory stops of vehicles. Carlson, ¶ 18; U.S. v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 694-95 (1981); State v. Gopher, 193 Mont. 189, 194, 631 P.2d 293, 296 (1981). ¶16 An investigatory stop must be justified by “particularized suspicion.” Cortez, 449 U.S. at 417-18, 101 S. Ct. at 695; Gopher, 193 Mont. at 194, 631 P.2d at 296; § 46-5-401(1), MCA. For a peace officer to have particularized suspicion justifying an investigatory stop, the officer must be possessed of (1) objective data from which the officer 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. Under this standard, “the totality of the circumstances—the whole picture—must be taken into account,” including “various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers.” Cortez, 449 U.S. at 417-18, 101 S. Ct. at 695; see also State v. Rutherford, 2009 MT 154, ¶ 12, 350 Mont. 403, 208 P.3d 389 (in evaluating the totality of the circumstances, the quantity, or content, of the information available to the officer and the quality, or degree of reliability, of that information must be considered). An officer may 10 rely on information conveyed by a third person to formulate particularized suspicion to stop a person. State v. Gill, 2012 MT 36, ¶ 16, 364 Mont. 182, 272 P.3d 60; State v. Pratt, 286 Mont. 156, 164-65, 951 P.2d 37, 42-43 (1997). An investigatory stop may not last longer than is necessary to effectuate the purpose of the stop. Hurlbert, ¶ 21; Carlson, ¶ 21; § 46-5-403, MCA. The scope of the detention must be carefully tailored to its underlying justification. Carlson, ¶ 21; Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983). ¶17 Here, Roy was exceeding the speed limit. A statutory violation is sufficient by itself to establish particularized suspicion for an officer to make a traffic stop. State v. Haldane, 2013 MT 32, ¶ 26, ___ Mont. ___, ___ P.3d ___. Added to this, Detective Benjamin had provided Sergeant Reid with corroborated information—the reliability of which Roy has not contested—that a Jeep Cherokee with a YNP sticker was traveling to Billings on Interstate 90, arriving at around 10:00 p.m. as reported by the informant, carrying a large amount of marijuana. Upon stopping a vehicle matching this description, Reid observed evidence inside the car of a long road trip, such as clothing, luggage, and garbage strewn throughout the vehicle. Furthermore, upon approaching the vehicle, Reid detected “a heavy odor of vehicle deodorizer” coming from the vehicle. Reid had roughly 20 years of law enforcement experience and was a 12-year veteran of the Billings Police Department. He had received training in drug interdiction and had conducted over 100 stops in which he investigated the presence of illegal drugs, the majority of which involved marijuana. In Reid’s experience, an excessive deodorizer is “a little bit of a red flag” because “it’s commonly used as a masking agent for marijuana.” 11 ¶18 We hold that these facts constituted a particularized and objective basis for Reid to suspect that, in addition to the traffic violation, Roy was committing an offense involving marijuana. Given this suspicion, Reid was justified in requiring Roy to exit the vehicle so as to separate him from the masking effect of the vehicle deodorizer—not unlike requiring a person suspected of driving under the influence of alcohol or drugs to exit the vehicle for field sobriety tests to confirm or dispel the suspicion of impairment. Contrary to Roy’s theory of the case, this was not an “expansion” of the stop beyond its underlying purpose. Rather, it was a reasonable investigative action that fell within the scope of Reid’s particularized suspicion that Roy was trafficking illegal drugs—which, again, was one of the two justifications upon which the traffic stop was predicated. For these reasons, the District Court correctly denied Roy’s motion to suppress. ¶19 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ JIM RICE | February 27, 2013 |
a849be66-579f-4e3a-ab7e-5d690895d3ea | Bostwick Properties v. DNRC | 2013 MT 48 | DA 12-0007 | Montana | Montana Supreme Court | DA 12-0007 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 48 BOSTWICK PROPERTIES, INC., Petitioner and Appellant, v. MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, Respondent, Appellee and Cross-Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV 09-1196C Honorable John C. Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Brian K. Gallik, Goetz, Gallik & Baldwin, P.C., Bozeman, Montana; Matthew W. Williams, Williams and Jent, PLLP, Bozeman, Montana For Appellee: Brian C. Bramblett, Anne W. Yates, Montana Department of Natural Resources and Conservation; Helena, Montana Submitted on Briefs: December 12, 2012 Decided: February 26, 2013 Filed: __________________________________________ Clerk February 27 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Bostwick Properties, Inc. (Bostwick) sought a water use permit from the Montana Department of Natural Resources and Conservation (DNRC). DNRC denied the water use permit. Bostwick petitioned for review by the District Court. The District Court agreed with DNRC that Bostwick had failed to prove no net depletion of surface water and lack of adverse effect, as required by § 85-2-360, MCA, and therefore Bostwick was required to mitigate its water usage in order to receive a water use permit. The District Court further determined, however, that Bostwick had submitted an adequate mitigation proposal, and, therefore, DNRC improperly had denied Bostwick’s permit application. The District Court further noted that DNRC had exhibited bias against Bostwick. The District Court separately affirmed each of DNRC’s findings, and so determined that any bias on the part of DNRC caused no prejudice to Bostwick. Bostwick appeals, DNRC cross-appeals, and we affirm. ¶2 Bostwick and DNRC present the following issues on appeal: ¶3 Whether DNRC had authority to deny Bostwick’s permit? ¶4 Whether DNRC and the District Court properly required Bostwick to mitigate its water usage? ¶5 Whether the District Court properly determined Bostwick’s mitigation proposal was adequate as a matter of law? ¶6 Whether DNRC had the authority to require Bostwick to identify a specific water right for mitigation? ¶7 Whether DNRC bias substantially prejudiced Bostwick? 3 PROCEDURAL AND FACTUAL BACKGROUND ¶8 Bostwick filed an application for a Beneficial Water Use Permit with DNRC on December 1, 2006. Bostwick sought the water use permit for municipal use in its Lazy J South subdivision in Gallatin County, Montana. Bostwick initially sought up to 79 acre-feet per year of groundwater year round. Bostwick sought to extract this groundwater from an aquifer. DNRC designated Bostwick’s water use permit application “correct and complete” on February 12, 2007, and noticed the application to the public. Montana Department of Fish, Wildlife, and Parks (FWP) and Montana Trout Unlimited (TU) objected to Bostwick’s application. Both objectors later withdrew their objections provided that Bostwick reduced its water use to 76 acre-feet per year. ¶9 DNRC failed to take action on Bostwick’s application within the timeframe set forth in § 85-2-310(1), MCA. Bostwick sought a writ of mandate to require DNRC to issue the water use permit, or, alternatively, to hold a hearing to force DNRC to show cause why DNRC would not grant the permit. After Bostwick sought the writ of mandate, DNRC issued a statement of opinion that denied Bostwick’s water use permit. DNRC determined that Bostwick had failed to demonstrate no net depletion of surface water, as required by § 85-2-360, MCA, and had failed to prove legal availability and lack of adverse impact, as required by § 85-2-311, MCA. DNRC determined that Bostwick had demonstrated the other criteria required by § 85-2-311, MCA. ¶10 The District Court granted Bostwick’s request for a writ of mandate. DNRC appealed to this Court. Bostwick Props. v. Mont. Dep’t of Nat. Res. & Conserv., 2009 MT 181, 351 4 Mont. 26, 208 P.3d 868 (Bostwick I). We reversed the District Court’s grant of the writ of mandate. We determined that DNRC had no legal duty to grant Bostwick’s permit application because Bostwick had not yet proven lack of adverse effect and legal availability. Bostwick I, ¶ 21. We remanded the case to DNRC with instructions to provide Bostwick with an opportunity to be heard on its water use permit application. Bostwick I, ¶ 23. Bostwick requested that DNRC disqualify itself to hear Bostwick’s application on the grounds of bias. DNRC denied Bostwick’s request for disqualification. ¶11 The Gallatin River is part of a closed water basin. Sections 85-2-342 to 85-2-343, MCA. In order to receive a groundwater permit, Bostwick first had to provide a hydrogeologic assessment to determine whether its proposed groundwaterusage would result in a net depletion of surface water. Section 85-2-360, MCA. Bostwick would have to mitigate its water usage if Bostwick’s proposed pumping of groundwater would result in a net depletion of surface water and adversely affect senior appropriators. Section 85-2-362, MCA. ¶12 Bostwick offered alternatives to demonstrate that its groundwater use would not result in a net depletion of the Gallatin River surface water, or would not cause an adverse effect. Bostwick first proposed that its Pave and Infiltrate Plan would offset all proposed consumption and would result in no net depletion of surface water. Bostwick next proposed that no net depletion would occur because the hydrological connection between the aquifer and the surface water was too attenuated and any potential adverse effect was unknown. Bostwick argued that the amount of water that it sought was too small to result in an adverse 5 effect. Bostwick also suggested that DNRC could terminate Bostwick’s water rights if Bostwick’s de minimus water usage actually harmed senior rights holders. Bostwick finally proposed mitigation in the form of purchasing Water Right No. 41H 226700, in the event that Bostwick failed to demonstrate no net depletion or lack of adverse effect. ¶13 DNRC determined that Bostwick’s water use would result in a net depletion of surface water, and that Bostwick had failed to demonstrate lack of adverse effect. This determination required Bostwick to mitigate its proposed water use. DNRC further determined that Bostwick’s proposed mitigation, purchasing Water Right No. 41H 226700, was inadequate because the mitigation would provide only irrigation season water and would provide no non-irrigation season water. DNRC’s determinations that Bostwick had failed to demonstrate no net decrease and had failed to demonstrate a lack of adverse effect for non- irrigation season water required Bostwick to mitigate non-irrigation season water loss as well. ¶14 Bostwick sought review by the District Court. The district court agreed with DNRC that Bostwick had failed to demonstrate no net depletion and lack of adverse effect. The District Court deemed adequate as a matter of law, however, Bostwick’s mitigation proposal. The District Court determined that DNRC improperly had denied Bostwick’s water use permit subject to implementation of Bostwick’s mitigation plan. Bostwick appeals the District Court’s determination that Bostwick failed to demonstrate no net depletion or lack of adverse effect. DNRC cross-appeals on the grounds that Bostwick’s mitigation proposal did not mitigate non-irrigation season water use. 6 STANDARD OF REVIEW ¶15 We review for correctness a district court’s review of an administrative agency’s decision. BNSF Ry. Co. v. Cringle, 2010 MT 290, ¶ 11, 359 Mont. 20, 247 P.3d 706. We review for correctness a district court’s conclusions of law. Cringle, ¶ 11. DISCUSSION ¶16 Whether DNRC had authority to deny Bostwick’s permit? ¶17 Bostwick argues that its settlement with all objectors required DNRC as a matter of law to grant Bostwick a water use permit. DNRC instead issued a statement of opinion that provided that Bostwick had failed to show no net decrease, pursuant to § 85-2-360, MCA, and to show legal availability and lack of adverse effect pursuant to § 85-2-311(1), MCA. Bostwick argues that DNRC’s previous determination that Bostwick’s application was “correct and complete” deprived DNRC of any further authority to issue a statement of opinion or to deny the permit after Bostwick settled with the objectors. ¶18 We considered and rejected this argument in Bostwick I. The District Court in Bostwick I concluded that DNRC was required, as a matter of law, to grant Bostwick’s permit because DNRC had determined Bostwick’s application was “correct and complete,” and all objections had been resolved. Bostwick I, ¶ 20. DNRC must grant a permit only if Bostwick resolved the objections and Bostwick proved the § 85-2-311, MCA, criteria by a preponderance of the evidence. Bostwick I, ¶ 21. Bostwick was required to prove legal availability and lack of adverse effect by a preponderance of the evidence. Bostwick I, ¶ 21. 7 DNRC had legal authority, and the legal duty, to deny Bostwick’s permit if Bostwick failed to do so. Bostwick I, ¶ 21. ¶19 Whether DNRC and the District Court properly required Bostwick to mitigate its water usage? ¶20 Bostwick offers four theories to support its argument that its water use wouldresult in no net depletion of surface water or would not adversely affect senior appropriators. We analyze each in turn. 1. Bostwick’s Pave & Infiltrate Plan ¶21 Bostwick first argues that its Pave and Infiltrate Plan would offset any net depletion of surface water from its proposed pumping of groundwater. Bostwick plans to pave roads and parking lots in its proposed development. Bostwick contends that precipitation that previously had evaporated or had been used by native plants would run off these new impermeable surfaces. Bostwick would store this runoff water in retention ponds. Bostwick would discharge this runoff water from the retention ponds into the groundwater, which in turn eventually would recharge the Gallatin River. Bostwick estimated that it would collect 42 acre-feet per year of runoff water. This “savings” represents more than the 39 acre-feet per year that Bostwick seeks to deplete with its water use permit. Bostwick argues, as a result, that its development as a whole would cause no net decrease in surface water and no adverse effect. ¶22 Section 85-2-361(1), MCA, lists factors that DNRC should consider in predicting whether a water appropriation would result in a net depletion of surface water. These factors 8 include the actual amount diverted, the amount likely to be lost in conveyance, any return due to percolation, and any return flows such as wastewater. Section 85-2-361(1), MCA, further provides that these factors do not constitute an exhaustive list of criteria to consider when it evaluates net depletion of surface water. Bostwick argues that DNRC should consider the runoff caused by Bostwick’s proposed development in this calculation of potential depletion of surface water. Bostwick provides no legal support to include itsrunoff water in the surface water depletion calculation. ¶23 We look at four factors when we interpret a statute. First, we ask whether the interpretation reflects the intent of the legislature considering the plain language of the statute. U.S. West, Inc. v. Dep’t of Revenue, 2008 MT 125, ¶ 16, 343 Mont. 1, 183 P.3d 16. We next examine whether the interpretation comports with the statute as a whole. U.S. West, ¶ 16. We then consider whether an agency charged with administration of the statute has placed a construction on the statute. U.S. West, ¶ 16. Finally, where appropriate, we analyze whether the interpretation avoids absurd results. U.S. West, ¶ 16. ¶24 The plain language of § 85-2-361(1), MCA, indicates thatBostwick’s interpretation of this statute fails to reflect the intentions of the legislature. The legislature listed only factors that concern the appropriated water. The analysis of the “actual amount diverted” and the “amounts that will likely be lost in conveyance” considers only the appropriated water. Similarly, the “return flow” analysis contemplates how much of the appropriated water will “return.” None of these factors requires DNRC to consider sources of water other than the proposed water to be appropriated pursuant to Bostwick’s permit. Nothing indicates, based 9 on the plain language of the statute, that the legislature intended DNRC to consider alternative sources of water, such as Bostwick’s runoff, when it calculates net-depletion. ¶25 Bostwick’s interpretation also conflicts with the statute as a whole. The legislature separately considered the role of sources of water other than the appropriated water. The legislature labeled this other water as “mitigation” water. Sections 85-2-102(15), 85-2-360 to 85-2-363, MCA. If a water allocation would result in a net depletion of surface water, the statute requires the applicant to submit a mitigation plan that would introduce a new source of water to offset any adverse effect caused by the net depletion of surface water. Section 85-2-360, MCA. The legislature clearly has directed DNRC to evaluate water other than the appropriated water as potential mitigation. It would be contrary to the statutory scheme to require DNRC instead to consider this runoff water in its net-depletion calculation. ¶26 Bostwick does not argue that it can use this runoff water as mitigation, and, indeed, it could not. The legislature defined mitigation as the “reallocation of surface water or ground water through a change in appropriation right.” Section 85-2-102(15), MCA. Bostwick currently has no appropriation right to use this runoff water. The legislature clearly stated that a water use permit represents the sole way to appropriate water. Sections 85-2-301 to 85-2-302, MCA. Bostwick could not use this runoff water as mitigation water. ¶27 The agency charged with administering this statute, DNRC, concluded that it should not consider Bostwick’s runoff water when it calculated net depletion. Bostwick did not argue specifically that this statute, § 85-2-361, MCA, or any legal authority, requires DNRC to consider Bostwick’s runoff water as part of the net-depletion calculation. DNRC 10 concluded that no legal authority supported Bostwick’s claim that DNRC should consider Bostwick’s runoff as part of DNRC’s net-depletion calculation. ¶28 As noted above, Bostwick has no legal right to appropriate this runoff water. A water use permit represents the sole way Bostwick could acquire an appropriation right. Sections 85-2-301 to 85-2-302, MCA. An anomalous result would occur if Bostwick could use this runoff water in its net-depletion of surface water calculation even though Bostwick has no legal right to appropriate this runoff water. ¶29 Finally, the legislature has moved away from the old-fashioned understanding of water appropriation that underpins Bostwick’s claim that it can use this runoff water in the net-depletion analysis. This Court previously recognized the notion of “developing” water by tapping an underground aquifer or by bringing water to a location it otherwise would not have reached. See State ex. rel. Mungas v. Dist. Ct., 102 Mont. 533, 59 P.2d 71 (1936); Rock Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 17 P.2d 1074 (1933). Bostwick essentially argues that it would be “developing” water by capturing runoff water. Historically, a party who “developed” water could appropriate that water ahead of senior appropriators. The legislature rejected the notion that a person could appropriate water by “developing” it. The legislature instead declared that starting in 1973, a water use permit represented the sole way to appropriate water. See §§ 85-2-301 to 85-2-302, MCA. This new law superseded our old cases, including Mungas and Rock Creek, regarding the ability of a party to appropriate water through the “development” of water. See §§ 85-2-301 to 85- 2-302, MCA. 11 ¶30 The legislature has adopted a system that recognizes the hydrological cycle and the adverse effect that new appropriations of surface water or ground water could cause to senior appropriators. The legislature specifically recognized that depletion of groundwater could cause a depletion of surface water. See § 85-2-360, MCA. The legislature now requires water use permit applicants to demonstrate that their groundwater usage in a closed basin will not adversely affect senior appropriators of surface water. Sections 85-2-360, 85-2-363, MCA. Bostwick’s capture of surface water similarly could cause a depletion in the surface water or groundwater in the closed Gallatin River Basin that could adversely affect senior appropriators. The legislature’s recent modifications to Montana water law confirm that the legislature did not intend to allow Bostwick to use an additional source of water, such as the runoff water, in the net-depletion of surface water calculation. See §§ 85-2-301 to 85-2-302, MCA. ¶31 Nothing in § 85-2-361, MCA, supports Bostwick’s interpretation that DNRC should consider the runoff water caused by Bostwick’s pavement when DNRC calculates the net depletion caused by Bostwick’s water allocation. This interpretation would run contrary to the plain meaning of the statute, to the statutory scheme as a whole, to the DNRC’s interpretation, and would cause an absurd result whereby Bostwick could claim the runoff water in the net-depletion calculation even though Bostwick would have no legal right to use the water. See U.S. West, ¶ 16. 2. Attenuated Hydrological Connection 12 ¶32 Bostwick next argues that the attenuated hydrological connection between the source ground water and the surface water would cause no net depletion of surface water in the Gallatin River. Bostwick argues that the lack of net depletion of surface water related to its water extraction would not adversely affect senior appropriators. Bostwick admits that the groundwater that Bostwick seeks to extract from the aquifer ultimately would have ended up in the Gallatin River. Bostwick argues, however, that no way exists to determine at what point the Gallatin River would begin to lose water due to Bostwick’s extraction of water from the aquifer. Bostwick argues that this uncertainty confirms that no net depletion, or no adverse effect, could be shown. ¶33 Bostwick points to a recent DNRC permit for new groundwater use by Yellowstone Club, In the Matter of the Application for Beneficial Water Use Permit 41H-30027281, as evidence that DNRC should grant the water use permit when an unknown connection exists between an aquifer and surface water. Yellowstone Club sought a water use permit several miles from Bostwick’s proposed development. Yellowstone Club failed to demonstrate where or how its depletion from the aquifer would affect the Gallatin River. DNRC nevertheless granted the Yellowstone Club’s water use permit because no practical way existed to establish how or when the groundwater would affect the surface water. Bostwick argues that DNRC should have applied this same principle to Bostwick’s water use permit. ¶34 DNRC ultimately conceded to the District Court that it wrongly had granted the water use permit to Yellowstone Club. The District Court determined that DNRC’s issuance of a water use permit to the Yellowstone Club did not establish any binding precedent that would 13 force DNRC to issue Bostwick’s permit under similar circumstances. The District Court further determined that past DNRC cases and Montana law support DNRC’s decision to deny a permit where uncertainty exists regarding any hydrological connection. ¶35 We agree. This Court possesses authority to reverse any arbitrary and capricious agency decision. Section 2-4-704, MCA. We may reverse an arbitrary and capricious decision of an agency, even if the agency follows its own prior arbitrary and capricious decision. DNRC correctly applied the permit criteria for Bostwick’s permit application despite DNRC’s failure to follow the same analysis in reviewing the Yellowstone Club’s permit application. ¶36 Bostwick admits that some hydrological connection exists between the groundwater from the aquifer and the Gallatin River. Bostwick argues it is unknown exactly when Bostwick’s extraction of groundwater would affect the Gallatin River. Bostwick seeks to shift the burden of proof to DNRC, however, and thereby require DNRC to grant the permit if no net depletion, and so no adverse effect, could be shown. Section 85-2-311(1)(a)(ii), MCA, clearly places the burden of proof on the applicant to demonstrate lack of adverse effect. Bostwick bears the burden of demonstrating that its efforts to pump water from the aquifer would cause no adverse effect on prior appropriators of the Gallatin River. Bostwick admits that it could not establish the effect of this proposed pumping on prior appropriators. The District Court correctly determined that Bostwick had failed to prove lack of any adverse effect. 3. De Minimus Water Usage 14 ¶37 Bostwick next argues that the de minimus amount of water that it would deplete from the Gallatin River could not adversely affect senior water rights holders. Boswick seeks to deplete 24.1 gallons per minute. Bostwick notes that this 24.1 gallons per minute constitutes 0.035% of the lowest recorded flow on the Gallatin River. Bostwick contends that § 85-2- 360(5), MCA, supports an exception for its de minimus water usage. Bostwick recognizes that its permit application predated this legislative amendment for de minimus usage. Bostwick argues that the legislature merely confirmed the law that already existed. ¶38 Section 85-2-360(5), MCA, provides that the prediction of a net depletion does not automatically mean that an adverse effect would occur. DNRC must determine whether an adverse effect exists “based on the amount, location, and duration” of the depletion “relative to the historic beneficial use.” Section 85-2-360(5), MCA. This language creates no de minimus exception. It simply restates the principle that a depletion would not adversely affect any prior appropriators if sufficient water exists. Alternatively, the amendment acknowledges that if an adverse effect occurs, the amount of the adverse effect would not necessarily represent the full amount of the depletion. Further, the amended version of the statute still imposes on Bostwick the burden of proof to demonstrate lack of any adverse effect. Section 85-2-311, MCA. ¶39 DNRC correctly determined that Bostwick failed to prove lack of adverse effect, even for Bostwick’s minimal 39 acre-feet per year water depletion. No legally available water exists on the Gallatin River during the irrigation season. The Gallatin Water Commissioner generally cuts off water rights each irrigation season for priority dates later than 1890. In 15 fact, in 2012, the Water Commissioner cut off water rights owners junior to 1883. Any additional depletion of water, even one as minimal as 39 acre-feet per year, potentially would adversely affect senior appropriators’ water rights. 4. Administration of Priorities ¶40 Bostwick further argues that any adversely affected senior rights holders on the Gallatin River could force Bostwick to stop using water through the administration of priorities. Bostwick would ask this Court to shift the burden of proving lack of adverse effect and require prior appropriators to prove that Bostwick caused an adverse effect in order to protect their rights. As Bostwick has already noted, the attenuated hydrological connection would make it difficult for anyone to demonstrate an adverse effect. This situation would make it difficult for senior appropriators to protect their rights. ¶41 The clear language of § 85-2-311, MCA, demonstrates that the legislature placed the burden of demonstrating lack of any adverse effect on the applicant. The legislature closed the Upper Missouri River Basin in recognition that significantly more water claims existed than water to fulfill these prior appropriations. Mont. Trout Unlimited v. Mont. Dep’t of Nat. Res. & Conserv., 2006 MT 72, ¶¶ 7-8, 331 Mont. 438, 133 P.3d 224. The legislature acted to protect the water rights of the prior appropriators. We decline to approve a shift in the burden of demonstrating adverse effect that could jeopardize these prior appropriators’ water rights. ¶42 Whether the District Court properly determined Bostwick’s mitigation proposal was adequate as a matter of law? 16 ¶43 Section 85-2-363(2)(g), MCA, required Bostwick to demonstrate how its mitigation plan would offset all adverse effects to all prior appropriators. Bostwick sought to mitigate its water usage with Water Right No. 41H 226700. This water right would mitigate Bostwick’s water usage only during the irrigation season. This water right would not mitigate Bostwick’s water usage during the non-irrigation season. DNRC denied Bostwick’s permit application due to its failure to prove no net decrease of surface water and lack of adverse effect for the non-irrigation season. ¶44 The District Court determined that no adverse effect could result as a matter of law from Bostwick’s water usage during the non-irrigation season. The District Court recognized that Bostwick’s non-irrigation season water usage could affect adversely only one party – FWP. FWP further has stated that Bostwick’s irrigation season only mitigation plan will cause FWP no adverse effect. ¶45 Michael Nicklin, an expert for Bostwick, testified that Bostwick’s mitigation water would continue to flow in the river downstream to the Canyon Ferry Dam if Bostwick obtained a water right above where Interstate 90 crosses the Gallatin River. Bostwick’s proposed mitigation with Water Right No. 41H 226700, would withdraw water upstream of the Interstate 90 crossing. Sufficient flow currently exists in the Gallatin River downstream from the Interstate 90 crossing to fulfill all appropriators’ water rights during irrigation season. Bostwick’s mitigation water would flow into the Canyon Ferry Dam, therefore, rather than being used by another appropriator. Canyon Ferry Dam would collect all of the water that Bostwick mitigates during the irrigation season. 17 ¶46 Canyon Ferry Dam’s role in storing water likely would protect downstream water users when Bostwick mitigates the full 39 acre-feet of water during the irrigation season, rather than spreading evenly this mitigation throughout the year. FWP represented the only party that could be adversely affected by Bostwick’s irrigation season only mitigation plan. Bostwick’s settlement with FWP reflects FWP’s belief that it would not be adversely affected by the irrigation season only mitigation proposed by Bostwick. ¶47 We determined in Bostwick I that the mere fact that Bostwick had settled with objectors did not preclude DNRC from considering the § 85-2-311, MCA, criteria. Bostwick I, ¶ 21. Nothing here revises that determination. Bostwick’s settlement with FWP should not have precluded DNRC from considering the § 85-2-311, MCA, criteria. The settlement does support the notion, however, that Bostwick’s proposal would limit any adverse effect from the irrigation season only mitigation. In the unique circumstances presented here, with the Canyon Ferry Dam regulating the flow of water for downstream appropriators, the presence of only one party – FWP – potentially adversely affected during the non-irrigation season by Bostwick’s proposal, and FWP’s acknowledgment through its settlement that it would suffer no adverse effects during the non-irrigation season, we agree with the District Court that Bostwick demonstrated a lack of adverse effects for its proposed irrigation season only mitigation plan. ¶48 Whether DNRC had the authority to require Bostwick to identify a specific water right for mitigation? 18 ¶49 DNRC required Bostwick to identify exactly which water right Bostwick would use to mitigate its surface water depletions. Bostwick argues that DNRC should allow itto provide details, such as amount of water, timing, location of water, and seniority of water rights, without Bostwick having to specify a particular water right. ¶50 Section 85-2-362, MCA, imposes on DNRC the duty to determine whether a mitigation plan would offset depletions effectively. Bostwick does not dispute DNRC’s claim that DNRC routinely has required an applicant to identify the exact water rightthat the applicant plans to use for mitigation. DNRC claims that identification of the water right proves necessary to its full evaluation of a mitigation plan. This case demonstrates the need for such specificity. Bostwick’s mitigation water must reach the Canyon Ferry Dam in order to mitigate effectively Boswick’s net depletion. Bostwick’s own expert testified that Bostwick would need to acquire for mitigation a water right that withdraws upstream from where Interstate 90 crosses the Gallatin River, a water right senior to 1890, and a water right for at least 39 acre-feet per year. Bostwick’s identification of a specific water right allows DNRC to consider all of these factors when it evaluates the effectiveness of the mitigation plan. We see no prejudice caused by DNRC’s requirement in light of the fact that that Bostwick could mitigate with a water right with similar specifications if Bostwick could not purchase Water Right No. 41H 226700. ¶51 Whether DNRC bias substantially prejudiced Bostwick? ¶52 Bostwick alleges that DNRC’s bias against Bostwick during the permit application process violated Bostwick’s due process rights. This Court remanded to DNRC its initial 19 denial of Bostwick’s permit application. Bostwick I, ¶ 23. Bostwick requested that DNRC disqualify itself to hear the permit application on remand. Bostwick wanted the Attorney General to appoint a neutral party to consider Bostwick’s application. DNRC refused and instead appointed Scott Irvin, a DNRC employee, to hear Bostwick’s renewed request. Emails between Irvin and other DNRC employees suggested that Irvin had exhibited bias against Bostwick. Bostwick argues that the District Court improperly determinedthat Irvin’s bias did not rise to the level of an “irrevocably closed mind” as contemplated in Madison River R.V. Ltd. v. Town of Ennis, 2000 MT 15, ¶ 15, 298 Mont. 91, 994 P.2d 1098. ¶53 The District Court based its no prejudice determination on the fact that it independently reached the same conclusions as DNRC. We characterize DNRC’s bias as an “unlawful procedure.” Erickson v. State ex rel. Bd. of Med. Exam’r, 282 Mont. 367, 375, 938 P.2d 625, 630 (1997). The mere existence of an error in the process does not mandate reversal. Erickson, 282 Mont. at 375, 938 P.2d at 630. The alleged error must have caused substantial prejudice. Erickson, 282 Mont. at 375, 938 P.2d at 630. Bostwick failed to show substantial prejudice. The District Court independently reached the same conclusions as DNRC, with the exception of the non-irrigation season mitigation proposal. Bostwick’s failure to demonstrate substantial prejudice relieves us of the need to consider whether Irvin’s bias rose to the level of having an “irrevocably closed mind.” Madison River R.V., ¶ 15. ¶54 Affirmed. /S/ BRIAN MORRIS 20 We Concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT Justice Jim Rice, concurring. ¶55 In Bostwick I, Justice Nelson and I expressed dismay and concern over the Department’s unfair treatment of Bostwick: DNRC’s quick action would be commendable if it hadn’t been taken to rectify DNRC’s earlier malfeasance and to short-circuit a court’s review of that malfeasance. Then, when Bostwick asked to be heard about the denial, DNRC obliged Bostwick by setting a hearing in front of the same official who had written the DNRC’s opinion denying the permit. Whether the DNRC was attempting to be humorous or capricious, I do not know, but on its face this raises potential due process concerns. Bostwick I, ¶ 29 (Rice, J., concurring); see also ¶ 25 (Nelson, J., concurring). Despite this rebuke, the Department continued its shenanigans after the case was remanded. E-mails recovered by Bostwick revealed Department officials celebrating the decision in Bostwick I and plotting a further ambush of Bostwick upon remand in these proceedings. As the District Court found, “[i]t does appear that the Department exhibited bias against Bostwick from the beginning stages of this matter.” However, the District Court reasoned that because it had “upheld all but one of the Department’s substantive decisions,” that the agency’s bias was “irrelevant.” ¶56 I believe the District Court’s approach to this issue put the procedural cart before the horse, and I disagree that affirming an agency’s substantive decisions should necessarily 21 render a bias issue irrelevant. This Court has previously exercised supervisory control over district judge substitution because continuing the litigation could “cause uncertainty as to the validity of the District Court judge’s involvement and decisions in this matter” and “risks wasting significant resources” in the event the matter would need to be retried. Goldman Sachs Group, Inc. v. Second Jud. Dist. Ct., 2002 MT 83, ¶ 8, 309 Mont. 289, 46 P.3d 606. We revised the appellate rules to accommodate these concerns. See M. R. App. P. 14(3)(2011); see also D.H. v. Fourth Mont. Jud. Dist. Ct., 2012 MT 106, ¶ 2, 365 Mont. 82, 278 P.3d 1010. We have thus recognized that an improper presiding officer can undermine the validity of an entire proceeding. Practically, it is difficult to measure the full reach of a biased decisionmaker’s impact, as it can flow to the entirety of the case, including minor rulings. A litigant may be faced with arguing that bias affected each adverse decision in the case. The Legislature has provided for substitution of hearing examiners, including for bias. See § 2-4-611(4); § 85-2-310(1)(b), MCA; see also In re Best, 2010 MT 59, ¶ 22, 355 Mont. 365, 229 P.3d 1201 (“due process requires a fair and impartial tribunal”). And further, as a matter of due process, it is appropriate that the claim of bias be addressed as a threshold issue, with interlocutory review if necessary, and not as a final issue reviewed only for demonstrated prejudice. ¶57 Here, the Department’s proceeding should not have been conducted in the manner it was. In my view, bias was established because the evidence demonstrated the Department’s mind was irrevocably closed, and an unbiased hearing officer should have been substituted to hear the matter. If Bostwick had requested a new hearing as a remedy, I would vote to grant 22 it. However, Bostwick has not asked for such relief. Instead, Bostwick argues the bias issue simply to bolster its substantive arguments. Therefore, in light of the posture of this case, I believe the Court properly affirms on the basis of undemonstrated prejudice. ¶58 I likewise join in the Court’s resolution of the remaining issues. /S/ JIM RICE | February 27, 2013 |
882c7c87-3488-4203-95e0-bc819688a710 | Yeager v. Morris | 2013 MT 44 | DA 12-0173 | Montana | Montana Supreme Court | DA 12-0173 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 44 DELLA YEAGER, individually and on behalf of her Minor Daughter, VERONICA RIPHENBURG, Plaintiffs and Appellants, v. MICHAEL MORRIS, JR., MICHAEL MORRIS, SR., and DOES 1-50 inclusive, Defendants and Appellees. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. BCV-11-0694 Honorable Julie Macek, Presiding Judge COUNSEL OF RECORD: For Appellants: Dennis P. Conner, Gregory G. Pinski, Conner & Pinski, PLLP, Great Falls, Montana Lynn D. Baker, Attorney at Law, Great Falls, Montana For Appellees: Michael A. Morris, Jr. (Self-Represented), Augusta, Montana Michael H. Morris, Sr. (Self-Represented), Choteau, Montana Submitted on Briefs: November 14, 2012 Decided: February 26, 2013 Filed: __________________________________________ Clerk February 27 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Della Yeager and her minor daughter, Veronica Riphenburg, were injured when their vehicle was involved in a collision with a pickup truck driven by Michael Morris, Jr. (Morris, Jr.), a Glacier County resident. The pickup truck was owned by Michael Morris, Sr. (Morris, Sr.), a Teton County resident. The collision occurred in Teton County but Yeager’s vehicle was then propelled across the county line and came to rest in Cascade County. Yeager filed a complaint in Cascade County against both men claiming Morris, Jr. was negligent in his operation of the vehicle and that Morris, Sr. negligently entrusted his son with the pickup truck. Morris, Jr., acting as a self-represented litigant, moved to change the venue to Glacier or Teton counties asserting Cascade County was not a proper venue. The Eighth Judicial District Court agreed and granted the motion, moving the proceeding to Glacier County. Yeager appeals. We affirm. ISSUE ¶2 Did the District Court err in determining Cascade County was an improper place for trial? FACTUAL AND PROCEDURAL BACKGROUND ¶3 On March 19, 2011, Yeager and her daughter were traveling just inside the Teton County line when their vehicle was struck by a pickup truck driven by Morris, Jr., who had failed to stop at a stop sign. It is undisputed that the collision occurred in Teton County, and that Yeager’s car came to rest in Cascade County. Yeager and her young daughter were injured in the accident. 3 ¶4 On August 3, 2011, Yeager filed a complaint in the Eighth Judicial District Court in Cascade County asserting that Morris, Jr.’s negligent driving caused the accident. She also asserted that based upon Morris, Jr.’s “poor driving record,” Morris, Sr. negligently entrusted his son with the truck. Yeager demanded a jury trial and sought damages for medical expenses, past and future emotional distress, and for mental and physical pain, among other claims of injury. ¶5 On October 24, 2011, Morris, Jr., acting without counsel, filed an Answer, a Motion to Dismiss with a brief in support, and a Motion to Change Venue with a brief in support. The court clerk date-stamped and filed each document. The time of entry for all five documents was 12:40 p.m. Morris, Jr. later asserted that he presented his pleadings to the court clerk in a specific order with the Motion to Change Venue first, followed by the brief in support, the Motion to Dismiss, its brief in support, and the Answer. The Motion to Change Venue asked that the matter be transferred to either Teton County where defendant Morris, Sr. resided and where the accident occurred, or to Glacier County where defendant Morris, Jr. resided. Morris, Jr. argued that Cascade County was not a proper venue for the proceeding, and that the District Court must therefore grant his motion to change the place of trial to a designated county, as required under § 25-2-201, MCA. 4 ¶6 Yeager opposed the motions to change venue and to dismiss.1 She first argued that Morris, Jr. waived his right to have venue changed because he did not file his Motion to Change Venue before he filed his Answer as required by applicable statutes. Moreover, she claimed that Morris, Jr.’s Answer did not raise venue as a defense. Yeager further argued that the injuries resulting from Morris, Jr.’s tortious negligence occurred in Cascade County, making Cascade County a proper venue for her action. ¶7 On February 16, 2012, the District Court granted Morris, Jr.’s motion to change venue and transferred the matter to Glacier County. As an initial matter, the court refused to deny Morris, Jr.’s motion to change venue based upon waiver, noting the circumstances under which Morris, Jr. presented multiple simultaneous pleadings to the court clerk. The District Court explained that the “order in which [the documents] were docketed by the Clerk of Court is purely a matter of chance which is dictated by the Clerk of Court and not the parties.” The District Court then expressly determined that Cascade County was not a proper venue for this action because the tort of negligent driving was “committed” in Teton County and the defendants lived in Teton and Glacier counties. Lastly, the court declined to rule on Morris, Jr.’s motion to dismiss, determining it was proper to allow the District Court in Glacier County to render that ruling. ¶8 Yeager appeals. STANDARD OF REVIEW 1 We do not address Morris, Jr.’s Motion to Dismiss in this Opinion because after granting his motion to change venue, the District Court did not address the Motion to Dismiss nor did Yeager raise the court’s failure to address the motion on appeal. 5 ¶9 The determination of whether a county represents the proper place for trial presents a question of law that involves the application of the venue statutes to pleaded facts. Our review of a district court’s grant or denial of a motion to change venue is plenary, and we determine whether the district court’s ruling was legally correct. Deichl v. Savage, 2009 MT 293, ¶ 6, 352 Mont. 282, 216 P.3d 749. DISCUSSION ¶10 Did the District Court err in determining Cascade County was an improper place for trial? ¶11 This is a tort action. Section 25-2-122(1), MCA, sets forth the criteria for determining the proper place of trial for a tort action: (a) the county in which the defendants or any of them reside at the commencement of the action; or (b) the county in which the tort was committed. It is undisputed that neither of the defendants resided in Cascade County at the commencement of the action. Therefore, for Cascade County to be considered a proper place for trial, then the tort must have been committed in Cascade County. Yeager argues that since she sustained her injuries in Cascade County, the tort was arguably completed there, thus making Cascade County a proper venue for trial. ¶12 Yeager urges us to apply the venue rationale set forth in Circle S Seeds of Mont., Inc. v. Mont. Merch., Inc., 2006 MT 311, 335 Mont. 16, 157 P.3d 671. In Circle S, Circle S sued Montana Merchandising, Inc. (MMI) in Gallatin County for trademark infringement. A dispute on venue arose with Circle S, a Gallatin County company, arguing Gallatin County was the proper venue and MMI, the defendant whose corporate offices were located in Cascade County, asserting that the decisions leading to Circle S’s 6 claim of trademark infringement took place in MMI’s Cascade County offices. The District Court ruled that Gallatin County was the proper venue for the action and MMI appealed. We affirmed the District Court by ruling that a “tort is committed . . . where there is a concurrence of breach of obligation and the occasion of damages.” Circle S, ¶ 18. We held that Circle S experienced its damages in Gallatin County. Circle S, ¶¶ 19, 21. ¶13 Morris, Jr. argues on appeal that his “breach of obligation” or “cause of negligence” occurred in Teton County when the two vehicles collided. Morris, Jr. relies on Howard v. Dooner, 211 Mont. 312, 688 P.2d 279 (1984), and Deichl. He maintains that since the tort occurred in Teton County and the defendants resided in Glacier and Teton Counties, only those two venues are proper, and that the District Court was therefore correct in granting his motion to change venue. ¶14 In Howard, a Fergus County resident travelled to Yellowstone County to see an allergy doctor, who prescribed a particular medication. When the patient arrived home, she ingested the medication and suffered adverse reactions and injury. She sued the prescribing physician and the manufacturer of the medication, Dooner Labs, in the Tenth Judicial District Court of Fergus County. The defendant doctor moved to have venue changed to Yellowstone County. Howard, 211 Mont. at 313, 688 P.2d at 279. The doctor claimed that if he committed malpractice, he did so in Yellowstone County. Howard countered that the tort was not complete until she suffered injury which occurred in Fergus County. We noted that when a breach and the damages resulting from the 7 breach occur in different counties, a “fundamental requirement” in determining venue is “fairness to the defendant.” Howard, 211 Mont. at 315-16, 688 P.2d at 280. ¶15 Focusing on the location where the doctor “committed” the breach, we stated, [W]e recognize but do not adopt the minority view—i.e., that a tort is “portable” and arises wherever the damages arise. States such as Florida which have adopted this approach have venue statutes that provide that an action may be brought wherever the tort “accrued,” not where it was “committed.” We may have reached a different conclusion had our venue statute provided that an action may be brought where the tort “accrued,” as opposed to where it was “committed.” Dooner, 211 Mont. at 318, 688 P.2d at 282 (internal citation omitted). As a result, we reversed the district court in Howard and directed venue of the proceeding changed to Yellowstone County. ¶16 Subsequently, in Deichl, Deichl, a Butte-Silver Bow County resident, purchased a horse from Yellowstone County residents Savage and Torgerson upon the sellers’ representation that the gelding was gentle and would be a suitable horse for a young and inexperienced rider. Several months later, Deichl, while riding the horse in Butte-Silver Bow County, was thrown from the horse and sustained a head injury. He filed suit in the Second Judicial District Court for Butte-Silver Bow County. Savage and Torgerson moved to change venue to Yellowstone County, arguing that if they negligently misrepresented the fitness of the animal, the tort was committed in their county of residence, Yellowstone County. The district court denied their motion and they appealed. Deichl, ¶¶ 4-5. We reversed, analyzing several cases including Howard, Circle S, and Gabriel v. School Dist. No. 4, 264 Mont. 177, 870 P.2d 1351 (1994). We observed that unlike the wrongful death claim in Gabriel, “the tort of negligent misrepresentation does 8 not contain an inherent ‘accrual’ element, but rather is committed in the location where the misrepresentation takes place.” Deichl, ¶ 20. Moreover, we stated that “unlike the alleged actions covering multiple counties by the defendant in Circle S Seeds, Savage and Torgerson took no actions and committed no breach in [Butte-Silver Bow] county.” Accordingly, we held that Savage and Torgerson “committed” the tort of negligent misrepresentation for venue purposes in Yellowstone County. Deichl, ¶ 20. Similarly, here, the defendants committed no tort in Cascade County; the tort was committed in Teton County. ¶17 As we noted at ¶ 18 in Deichl, Circle S presented a unique situation. In Circle S, the tort of trademark infringement took place in multiple counties, while here, the tort was indisputably committed in one county only—Teton County. We cannot ignore the language of § 25-2-122(1), MCA, which provides that the proper place for trial is the county in which the tort was committed. Circle S is inapposite here, and as we did in Deichl, we decline to apply the specific holding of that case to the simple, straightforward tort case before us. ¶18 If an action is brought in a county that is not a proper place for trial, then the court must, on motion, change the place of trial. Section 25-2-201(1), MCA. Given the clear requisites of § 25-2-122(1), MCA, Cascade County was not a proper place for trial. Therefore, the District Court did not err in granting the motion for change of venue filed by Morris, Jr. ¶19 Affirmed. 9 /S/ PATRICIA COTTER We concur: /S/ BETH BAKER /S/ JIM RICE /S/ G. TODD BAUGH District Court Judge G. Todd Baugh sitting for Justice Laurie McKinnon Justice Brian Morris dissents. ¶20 We previously rejected the argument that, for the purposes of determining venue, a “tort occurs” only where the breach of duty occurs. Circle S Seeds, ¶¶ 8, 18. We recognized instead that a tort occurs ‘“where there is a concurrence of breach of obligation and the occasion of damages.’” Circle S Seeds, ¶ 18, quoting BHC Holding Co. v. Hurly, 242 Mont. 4, 6, 788 P.2d 322, 323 (1990). We determined that venue would be proper either in the county where the breach of duty occurred or the county where the damage occurred. Circle S Seeds, ¶¶ 18, 19, citing Hurly, 242 Mont. at 6, 788 P.2d at 323-24 (analyzing both where breach occurred and where damages occurred). ¶21 We reversed course in Deichl where this Court held that the county where the breach of the duty occurred constituted the only proper venue. Deichl, ¶ 22. Deichl actually suffered damages in Silver Bow County, while the alleged breach of duty in a negligent misrepresentation claim had taken place in Yellowstone County. The Court 10 nonetheless determined that the county in which Diechl actually had suffered damages constituted an improper venue. Deichl, ¶ 19. The Court focused on the fact that the tort of negligent misrepresentation does not contain an inherent “accrual” element. Deichl, ¶ 20. The Court rejected Silver Bow County as a proper venue in light of the fact that the defendants had taken “no actions and committed no breach in that county.” Deichl, ¶ 20. I dissented in Deichl on the basis that the elements of the tort were not complete, and Deichl had no cause of action, until he actually suffered damages in Silver Bow County. Deichl, ¶ 22. ¶22 The Court again has determined that the breach of duty represents the only relevant element of a tort for the determination of venue. Morris breached his duty of care in Teton County. The vehicles collided in Teton County. The collision propelled Yeager’s vehicle across the county line into Cascade County. Thus, unlike the defendants in Deichl, at least a portion of Morris’s actions took place in Cascade County. Yeager further alleged in her complaint that she suffered damages in Cascade County. Pursuant to Circle S Seeds and Hurly, where we considered both where the breach occurred and where the damage occurred, either Cascade County or Teton County would qualify as a proper venue. ¶23 The Supreme Court of Indiana considered nearly identical facts to the unusual case before this Court. Randolph County v. Chamness, 879 N.E.2d 555 (Indiana 2008). A motor vehicle accident began in one county and the vehicle came to rest in a different county. The court held that either county represented a proper venue when a motor vehicle accident begins in one county and the vehicle comes to rest in the other county. 11 Chamness, 879 N.E.2d at 558. No benefit would be gained by declaring only one county to be the proper venue. Witnesses and police reports were just as likely to be found in either or both of the counties. Chamness, 879 N.E.2d at 558. ¶24 The Court arbitrarily has decided that the breach of duty qualifies as the only element of a tort relevant for a determination of venue. Section 25-2-115, MCA, recognizes that more than one county may qualify as an appropriate venue. When different elements of a tort occur in different counties we should consider all of these counties as a proper venue. We gain no benefit by declaring Cascade County an improper venue. We should consider equally all of the elements of a tort necessary for a cause of action to accrue. Circle S Seeds, ¶ 18. I agree that “[m]ost people would say that this accident occurred in both counties, and if we were to hold that an ‘accident or collision’ must occur only in one county, we would not add any level of convenience, only a level of disputatiousness.” Chamness, 879 N.E.2d at 558. I dissent. /S/ BRIAN MORRIS Chief Justice Mike McGrath and Justice Michael E Wheat join Justice Brian Morris’s dissent. /S/ MIKE McGRATH /S/ MICHAEL E WHEAT | February 27, 2013 |
86540bb2-1242-4390-a873-e6a58d107c08 | Kelly v. State | 2013 MT 21 | DA 12-0217 | Montana | Montana Supreme Court | DA 12-0217 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 21 GYME KELLY, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DC 10-42 Honorable Deborah Kim Christopher, Presiding Judge COUNSEL OF RECORD: For Appellant: Gyme A. Kelly, self-represented; Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant Attorney General; Helena, Montana Submitted on Briefs: October 30, 2012 Decided: January 29, 2013 Filed: __________________________________________ Clerk January 29 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Gyme Kelly (Kelly) appeals from the order of the Twentieth Judicial District Court dismissing his petition for postconviction relief. We affirm and address the issue: ¶2 Did the District Court err by dismissing Kelly’s postconviction relief petition as insufficiently pled? FACTUAL AND PROCEDURAL BACKGROUND ¶3 On February 22, 2010, Polson Police Officer William Cleveland pulled Kelly over for speeding. Officer Cleveland ultimately arrested Kelly for Driving Under the Influence (DUI). Based on his previous DUI convictions, the State charged Kelly with felony DUI and also petitioned to revoke the suspended sentence Kelly was serving for a previous DUI conviction. ¶4 On November 18, 2010, Kelly appeared before the District Court to enter a guilty plea to the felony DUI charge and to admit that he had violated the terms of his suspended sentence. He pled guilty to the felony DUI charge without entering a plea bargain agreement with the State. The District Court accepted Kelly’s guilty plea and also revoked Kelly’s suspended sentence. At a later sentencing hearing, the State made recommendations and the District Court sentenced Kelly to the Montana State Prison for a term of 40 years with 25 years suspended for the felony DUI, and to a term of 15 years on the previous DUI for which Kelly’s suspended sentence had been revoked. The court ordered these sentences to run consecutively. 3 ¶5 On December 30, 2011, Kelly filed a petition for postconviction relief, asserting that he received ineffective assistance of counsel in these proceedings. He alleged that “just prior to sentencing,” his court-appointed attorney told him for the first time that the State had made a more favorable plea offer before he changed his plea to guilty that would have resulted in “a lesser amount of time to be served.” The State responded by asking that Kelly’s petition be dismissed because it failed to provide any factual support for these allegations—i.e., Kelly did not provide affidavits, record evidence, or other evidence. The District Court agreed and summarily dismissed Kelly’s petition for failing to provide factual support for his claim. ¶6 Kelly appeals. Attached to Kelly’s opening brief on appeal is a one-page affidavit in support of his claim. It avers, in toto: 1. I am the appellant in the above entitled matter. 2. My Counsel at the District Court level was inadequate and failed to inform me in a timely fashion of my choice of alternatives to accepting the plea he presented me. 3. After I signed the plea in its present form, I was informed by my counsel that there was a less harsh plea available but if I were to take it, I would forfeit my chance at Sentence Review. 4. Had I been informed as to the existence of a less harsh plea by my counsel I would have persued [sic] that course of action. 5. If my counsel had informed me as to my legal rights upon any adjudication of guilt being allowed the right to sentence review, I would have persued [sic] a different course of action than I did. 4 STANDARD OF REVIEW ¶7 When a district court dismisses a petition for postconviction relief as a matter of law, we review that legal conclusion for correctness. Herman v. State, 2006 MT 7, ¶ 13, 330 Mont. 267, 127 P.3d 422. DISCUSSION ¶8 Kelly challenges the District Court’s determination that his claim was insufficiently pled and offers that his legal resources were restricted due to his incarceration. He also argues the merits of his claim by citing to Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (2012), a recent U.S. Supreme Court case addressing ineffective assistance of counsel at the plea-bargaining stage. He states that, “[i]n Frye, as in this case, the defendant was misinformed of the availability of a plea offer by his court appointed counsel, that would have resulted in doing less prison time. . . . Since the 2 cases are so similar, it must also stand to reason this appellant has had his 6th Amendment rights violated, and is due relief from the violation.” The State argues that the District Court properly dismissed the petition on procedural grounds and asks that we not consider the affidavit attached to Kelly’s brief because it was not presented to the District Court. ¶9 We have explained that “[u]nlike civil complaints, the postconviction statutes are demanding in their pleading requirements.” Ellenburg v. Chase, 2004 MT 66, ¶ 12, 320 Mont. 315, 87 P.3d 473. Section 46-21-104, MCA, enumerates the mandatory contents of a petition for postconviction relief. It provides, in pertinent part: (1) The petition for postconviction relief must: 5 (a) identify the proceeding in which the petitioner was convicted, give the date of the rendition of the final judgment complained of, and clearly set forth the alleged violation or violations; . . . (c) 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. Section 46-21-104, MCA (emphasis added); Ellenburg, ¶ 12. We have thus explained that “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.’” Ellenburg, ¶ 16 (quoting State v. Wright, 2001 MT 282, ¶ 9, 307 Mont. 349, 42 P.3d 753 (quoting § 46-21-104(1)(c), MCA)). Regarding ineffective assistance of counsel, we have held that such claims “must be grounded upon facts which appear in or are easily deduced from the record and which go beyond the mere conclusory allegations in the defendant’s affidavit.” State v. Lewis, 177 Mont. 474, 485, 582 P.2d 346, 352-53 (1978) (overruled on other grounds, Fjelstad v. State Through Dept. of Highways, 267 Mont. 211, 220, 883 P.2d 106, 111 (1994)); accord State v. Hulbert, 232 Mont. 115, 120, 756 P.2d 1110, 1113 (1988) (“a claim of ineffective counsel must be grounded in facts found in the record, not on ‘mere conclusory allegations.’”); State v. McColley, 247 Mont. 524, 527, 807 P.2d 1358, 1360 (1991); State v. Hagen, 2002 MT 190, ¶ 19, 311 Mont. 117, 53 P.3d 885. 6 ¶10 These requirements are consistent with federal precedent requiring a defendant to bring forward more evidence than a “self-serving statement.” See Turner v. Calderon, 281 F.3d 851, 881 (9th Cir. 2002) (“Turner’s self-serving statement, made years later, that [his lawyer] told him that ‘this was not a death penalty case’ is insufficient to establish that Turner was unaware of the potential of a death verdict.”); Cuppett v. Duckworth, 8 F.3d 1132, 1139 (7th Cir. 1993) (en banc) (rejecting defendant’s ineffective assistance claim because the only evidence submitted by the defendant was a “self- serving affidavit in support of this allegation.”). ¶11 The only facts offered to support the claim are contained in the short affidavit from Kelly, attached to his opening brief on appeal. Kelly’s affidavit is not properly before this Court because it was not submitted to the District Court. See State v. J.C, 2004 MT 75, ¶ 25, 320 Mont. 411, 87 P.3d 501 (“On appeal, we consider only the district court record. . . . ‘Parties on appeal are bound by the record and may not add additional matters in briefs or appendices.’” (citation omitted)). However, even if the affidavit had been properly submitted, its conclusory statements are insufficient as a matter of law to support a postconviction claim under the precedent discussed above. From Kelly, the affidavit is self-serving, but beyond that, it falls short of identifying “all facts supporting the grounds for relief” and providing the necessary detail and evidence to establish the factual foundation for the claim. Section 46-21-104(1)(c), MCA. Kelly’s incarceration, as he asserts, may well have hampered his efforts to marshal this information, but these pleading standards must nonetheless be satisfied, and, in fact, have been satisfied by other postconviction claimants who are incarcerated. 7 ¶12 In Frye, the prosecutor sent Frye’s counsel a letter offering Frye a choice between two plea bargains.1 Frye, ___ U.S. at ___, 132 S. Ct. at 1404. The letter stated that the offers would expire in a little over a month. Frye’s lawyer received the letter but never told Frye about it. Frye, ___ U.S. at ___, 132 S. Ct. at 1404. Frye eventually pled guilty without a plea agreement and was sentenced to a substantially harsher sentence than was recommended in the plea offers. Frye, ___ U.S. at ___, 132 S. Ct. at 1404-05. Frye filed postconviction relief proceedings in state court. The Missouri Court of Appeals determined that Frye’s counsel had rendered ineffective assistance of counsel by failing to inform Frye of the plea offers. Frye, ___ U.S. at ___, 132 S. Ct. at 1405. As a remedy, the Missouri Court deemed Frye’s plea as withdrawn. Frye, ___ U.S. at ___, 132 S. Ct. at 1405. After the State of Missouri sought review, the U.S. Supreme Court granted certiorari and affirmed, holding “as a general rule, defense counsel has a duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Frye, ___ U.S. at ___, 132 S. Ct. at 1408. Applying the standards under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the Supreme Court determined that Frye’s counsel’s representation “fell below an 1 The prosecutor’s letter, sent on November 15, 2007, stated, in pertinent part: My recommendation is as follows: 3 and defer, on the felony with 10 days “shock” in the Boone County Jail; OR 90 days to serve on an amended misdemeanor in the Boone County Jail. I am going to subpoena witnesses for the preliminary hearing on January 4, 2008. I will need to know if Mr. Frye will be waiving to preserve the offer by noon on December 28, 2007. Joint Appendix, Missouri v. Frye, 2011 U.S. S. Ct. Briefs LEXIS 469 at *50. 8 objective standard of reasonableness” under the first prong of Strickland, and remanded the case for further proceedings to determine whether Frye had been prejudiced under the second prong, noting “there is strong reason to doubt the prosecution and the trial court would have permitted the plea bargain to become final.” Frye, ___ U.S. at ___, 132 S. Ct. at 1411. Unlike Frye, where the existence of bona fide plea offers and defense counsel’s failure to communicate the offers were undisputed, there is here no record evidence of a formal plea offer or of Kelly’s lawyer’s failure to inform him of a plea offer, other than Kelly’s insufficient affidavit. ¶13 Frye does not override Montana law governing pleading requirements in a postconviction proceeding. The Supreme Court clarified that states are permitted to adopt measures to “help ensure against late, frivolous, or fabricated claims, after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences.” Frye, ___ U.S. at ___, 132 S. Ct. at 1409. That is precisely what the above-discussed Montana law does. ¶14 Affirmed. /S/ Jim Rice We concur: /S/ Mike McGrath /S/ Michael E Wheat /S/ Beth Baker /S/ Brian Morris | January 29, 2013 |
dab9a38e-f456-4406-af2a-6165ef5ecd3c | Britton v. Brown | 2013 MT 30 | DA 12-0192 | Montana | Montana Supreme Court | DA 12-0192 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 30 HELEN L. BRITTON and JOHN R. BRITTON, or their successors, as TRUSTEES OF THE BRITTON JOINT TRUST, Plaintiffs, Counter-Claim Defendants and Appellees, v. ELISE C. BROWN, Defendant, Counter-Claimant and Appellant. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DV 07-299 Honorable Deborah Kim Christopher, Presiding Judge COUNSEL OF RECORD: For Appellant: Maxon R. Davis; Davis, Hatley, Haffeman & Tighe, P.C.; Great Falls, Montana Jack R. Tuholske; Attorney at Law; Missoula, Montana Gregory J. Miner; Batemen Seidel, P.C.; Portland, Oregon For Appellees: William T. Wagner; Garlington, Lohn & Robinson, PLLP; Missoula, Montana Kathleen Unrein; Attorney at Law; San Anselmo, California Submitted on Briefs: November 21, 2012 Decided: February 12, 2013 Filed: __________________________________________ Clerk February 12 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Elise C. Brown (Brown) appeals the Final Partition Judgment of the Twentieth Judicial District Court, Lake County, which confirmed almost all of a report that partitioned 10.88 acres of property on and around Flathead Lake that Brown jointly owned with her sister, Helen L. Britton (Britton), as tenants in common. We reverse and remand for further proceedings. ¶2 The dispositive issue on appeal is whether the District Court erred by denying Brown’s request for an evidentiary hearing after Brown had presented offers of proof challenging the referees’ final partition report. PROCEDURAL AND FACTUAL BACKGROUND ¶3 Because there was no trial or evidentiary hearing, we draw the facts from the referees’ findings of fact and conclusions of law and the documents in the District Court record. ¶4 Since 1992, Britton and Brown have jointly owned 10.88 acres of real property on Flathead Lake as tenants in common.1 The property—which the parties refer to as “the homestead”—contains approximately 1,270 feet of lakefront property as well as a cabin built in 1910 and other improvements. It has three distinct topographical lakefront features: (1) a rocky point overlooking Flathead Lake at the northern end of the property; (2) a narrow, 70-foot-wide “neck” of land that connects the rocky point with the southern portion of the property; and (3) a gravel beach to the south of the rocky point that runs 1 While Britton’s partition action was pending, she transferred her interest via warranty deed to Helen L. Britton and John R. Britton, or their successors, as trustees of the Britton Joint Trust. 3 along the lake for 287 feet. The cabin and other improvements are located behind the gravel beach. The parties’ grandparents purchased the homestead in the 1940s and ever since it has been used by the family. ¶5 Britton filed a partition action in October 2007, seeking equitable partition of the homestead or, if the court determined that partition was not possible, a forced sale of the property and equal division of the net sale proceeds. Brown answered Britton’s partition action by acknowledging that she co-owned the property as a joint tenant and by admitting that the homestead could be partitioned equitably by the district court. Brown also filed a counter-claim alleging that Britton had failed to pay her share of the expenses used to maintain the homestead. Britton has denied those allegations and the counter- claim is not at issue in this appeal.2 ¶6 In June 2009, the District Court entered an initial case scheduling order, which set the case up as an ordinary civil matter. It set deadlines for the submission of expert witness names, the names of proposed referees, discovery, and proposed exhibits. It also set a date for a hearing to be held on any motions that might be submitted and further set a date for a partition hearing to be held if requested by the partition referees. ¶7 The District Court then appointed three partition referees as agreed upon by the parties and as contemplated by § 70-29-202, MCA. Britton and Brown each were allowed to appoint one referee, and in May 2010 those referees selected the third referee. 2 Brown filed this appeal prior to resolution of the counterclaim by invoking her right to immediately appeal “an order in a partition action directing or refusing to direct a partition to be made.” M. R. App. P. 6(3)(i). 4 The District Court directed the partition referees “to consult with each other and counsel in this case for purposes of arranging an appropriate inspection and investigation of the property and taking such action as is appropriate for the preparation of the required partition referees’ report to the Court[.]” ¶8 The referees then fashioned a plan on how to proceed. They asked Britton and Brown to submit their proposals for partitioning the property and counsel for both parties submitted their respective suggestions. The referees together went to the premises twice for an inspection of the property, they met in person several times to discuss the matter and they solicited information from various sources regarding the potential costs of developing the property. Once the referees obtained all of the information they believed to be relevant, they issued to the parties a preliminary report along with a request that Britton and Brown provide feedback on the proposal. ¶9 Brown responded by submitting comments questioning the recommendations in the preliminary report; her response also included several exhibits purporting to show that some of the conclusions the referees relied upon in their preliminary report were erroneous. Brown alleged that the referees’ proposed partition was inequitable—she disagreed with the referees’ stated belief that lakefront property values differed depending on the terrain of the property and attached an appraisal report that argued each foot of lakefront property was equal in value. She also noted that the preliminary report bisected existing structures and utilities and submitted engineering reports that called into question the referees’ determination that it would cost $350,000 to develop the rocky 5 point. Finally, Brown argued that her proposal should be adopted because Britton had not objected to it. ¶10 The referees submitted their final report to the District Court on April 25, 2011. The report recommended that the property be divided into two parcels. Parcel A included a total of 1,023 feet of lakefront—663 feet of the rocky point, 318 feet in the narrow “neck” and 42 feet on the gravel beach—valued by the referees at $1,236,000.00. Parcel B included 245 feet of lakefront on the gravel beach valued at $1,235,000.00. The property line between the two parcels bisected the cabin, but the referees noted that “any of the structures could be relocated.” The final report did not address access to the proposed parcels. ¶11 The referees also specifically explained why they disagreed with Brown’s appraisal report that argued each foot of lakefront property should be valued the same. The referees noted their objection to the appraiser’s characterization of the rocky point and stated that the point would “present significant obstacles for anyone wishing to build on it,” in stark contrast to the value and marketability of the gravel beach. Because of the unique shape and characteristics of the property, the referees “strongly encourage[d] the Court to view the property in person.” ¶12 In response, Brown filed notice of her objections to the referees’ final report and requested that “the Court convene a scheduling conference to set a trial date in this matter.” Brown later filed a list of objections to the referees’ final report and requested that she be allowed to depose the referees. Britton responded by agreeing with the 6 two-parcel division proposed by the referees and asked that Brown be prohibited from deposing the referees. ¶13 On June 9, 2011, the District Court held a scheduling conference to set a date and time to view the property. The court decided that it would view the property on July 20, 2011, with the referees present. The court also stated that while counsel for Britton and Brown could be present, the court would not speak with the attorneys. The District Court held in abeyance Brown’s motions regarding the deposition of the referees until further notice. During the site visit, Brown’s attorney approached the court and advocated on behalf of his client despite an order prohibiting such conduct. After realizing who the attorney was and that its order had been violated, the court also allowed Britton’s counsel to advocate for his client’s position. ¶14 After the District Court viewed the property, it issued another order of abeyance. The order declared that “[a]ll outstanding motions, requests for hearing[s], or scheduling conferences currently pending in this cause are hereby held in abeyance until August 25, 2011.” The order also stated that, although the parties could ask the referees to consider investigating certain claims, the referees were not required “to evaluate other experts hired by the parties” and the referees could “follow up on or ignore the requests.” The court also noted that it was “inclined to confirm the referees [sic] report.” ¶15 On August 24, 2011—one month after the District Court entered its order of abeyance—Brown filed a motion for a trial on the partition action and her underlying counterclaim. Brown also filed affidavits from eleven individuals, some of whom Brown 7 contends were well-qualified experts. Those affidavits attacked a number of the conclusions relied upon by the referees in their final report. Brown explained in her appeal that the affidavits were filed as “an offer of proof showing the testimony and evidence [Brown] intended to present and the reason a trial was necessary to allow her the opportunity to create a record of admissible evidence as due process requires.” The District Court did not respond to the motion. ¶16 On October 14, 2011, the District Court entered an order confirming the partition proposed by the referees. The court’s order explained that it originally had intended to approve the referees’ proposal and that “the viewing of the property merely settled the Court’s intention of confirming the Referees’ report pursuant to § 70-29-211, MCA.” The District Court then ordered Britton to “prepare a final judgment based on the two parcel division recommendation of the Referees.” ¶17 Britton drafted a proposed final partition judgment based on the referees’ final report and suggested that Brown be allowed to choose the parcel she wanted. Brown objected to the proposed judgment, arguing that it denied her due process rights, exceeded the scope of the referees’ final report and unilaterally modified the proposal. Specifically, Brown objected that Britton’s proposed judgment moved the property line established by the referees and made a ruling on how the parcels would be accessed, a topic never addressed by the referees. ¶18 The District Court did not respond to those objections. Instead, on February 28, 2012, the court entered a Final Partition Judgment that adopted the recommendations 8 submitted by Britton and directed Brown to choose the parcel she desired. Brown responded by selecting Parcel B; the selection was “conditional and involuntary” so as to preserve her right to appeal. Brown appeals from the District Court’s Final Partition Judgment. STANDARD OF REVIEW ¶19 Whether a party’s due process rights were afforded “is a question of law to which we apply plenary review.” Wendlandt v. Johnson, 2012 MT 90, ¶ 9, 365 Mont. 1, 277 P.3d 1208 (citing In re Marriage of Cini, 2011 MT 295, ¶ 15, 363 Mont. 1, 266 P.3d 1257). ¶20 A district court possesses “‘great flexibility’ in fashioning appropriate relief for the parties in a partition action.” LeFeber v. Johnson, 2009 MT 188, ¶ 35, 351 Mont. 75, 209 P.3d 254 (citing Anderson v. Woodward, 2009 MT 144, ¶ 16, 350 Mont. 343, 207 P.3d 329). When the referees in a partition action submit their final report to the district court, the court “may confirm, change, modify, or set aside the report . . . .” Kellogg v. Dearborn Info. Servs., LLC, 2005 MT 188, ¶ 9, 328 Mont. 83, 119 P.3d 20 (quoting § 70- 29-212, MCA). We review the district court’s findings of fact in a partition action “to determine whether they are clearly erroneous.” Kellogg, ¶ 9 (citing Troglia v. Bartoletti, 266 Mont. 240, 244, 879 P.2d 1169, 1171 (1994)). We review the district court’s conclusions of law to determine “whether they are correct.” Kellogg, ¶ 9. 9 DISCUSSION ¶21 Did the District Court err by denying Brown’s request for an evidentiary hearing after Brown had presented offers of proof challenging the referees’ final partition report? ¶22 Brown argues that the District Court’s Final Partition Judgment “permanently deprived [her] of the future use, enjoyment and ownership of the property” without first providing her due process of the law as mandated by the United States and Montana Constitutions. She contends that the hallmark of due process is the right to be heard in a meaningful manner and that the court did not provide her with that opportunity before rendering its judgment. Brown maintains that this case “must be remanded for a trial or a full evidentiary hearing prior to entry of a partition judgment[.]” Brown further alleges that the District Court denied her due process rights when it refused to allow her to “depose or cross examine the Referees” to test the conclusions reached by the referees’ report. ¶23 Although Britton “recognizes the ordinary principles of due process require notice and an opportunity to be heard,” she asserts that “the record demonstrates . . . all parties were given multiple opportunities to be heard, just not in the manner [Brown] prefers.” Britton maintains that Brown’s due process rights were satisfied because she was “given an opportunity to participate in the partition action as fully contemplated by the statutory scheme,” which does not explicitly require the district court to hold a trial or evidentiary hearing. According to Britton, Brown’s participation included selecting one of the 10 referees, submitting a partition proposal to the referees and filing objections to the referees’ final report along with supporting affidavits. For the reasons explained below, we agree with Brown that, upon presenting substantiated objections to the referees’ final report supported by sufficient evidence, she was entitled to an evidentiary hearing where the competing evidence could be weighed by the finder of fact. ¶24 When real property is owned by joint tenants or tenants in common, one or more of those persons may exercise their right to bring an action to partition the real property. Section 70-29-101, MCA. An order partitioning 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 set off to him.” McCarthy v. Lippitt, 781 N.E.2d 1023, 1029 (Ohio App. 3d 2002). Pursuant to statute, a district court must order the sale of the property or, when possible, the partition of property according to the respective rights of the owners as ascertained by an appointed referee or referees. Section 70-29-202, MCA. The referees are required to make a report to the district court detailing the manner in which the property should be divided, § 70-29-211, MCA, which the district court may “confirm, change, modify or set aside,” § 70-29-212, MCA. ¶25 Because a partition action divests a person of her property, her interests are protected by the Due Process Clause of the Montana Constitution. Mont. Const. art. II, § 17. Although this Court never has addressed what process is due to a party challenging the referees’ report, we often have held that the “fundamental requirements for due process are ‘notice and [an] opportunity for [a] hearing appropriate to the nature of the 11 case.’” Kulstad v. Maniaci, 2010 MT 248, ¶ 41, 358 Mont. 230, 244 P.3d 722 (citation omitted). ¶26 Brown argues that the “Partition Order affords no basis for review because it suffers from a complete lack of any evidence.” As previously stated, we review the court’s findings of fact in a partition action to determine whether they are “clearly erroneous.” Kellogg, ¶ 9. This standard necessarily implies that an evidentiary record must exist for this Court to review. A finding is clearly erroneous “if it is not supported by substantial credible evidence, if the court misapprehended the effect of the evidence, or if a review of the evidence leaves this Court with a definite and firm conviction that a mistake has been made.” Puccinelli v. Puccinelli, 2012 MT 46, ¶ 13, 364 Mont. 235, 272 P.3d 117. Because the District Court did not hold an evidentiary hearing or a trial, none of the documents found in the District Court record—including the referees’ final report—was ever admitted into evidence and the credibility of those documents was never tested. In the absence of such a record, we cannot say whether the court’s Final Partition Judgment was supported by substantial credible evidence or whether the District Court made a mistake in entering the judgment. As demonstrated below, a review of decisions from other jurisdictions supports this holding. ¶27 We begin our analysis by acknowledging that the legislature has not provided a specific directive as to the manner in which a party’s challenge to the referees’ report is to proceed. The law does provide that a district court may “change, modify, or set aside the report,” § 70-29-212, MCA, making clear that the referees’ report is “subject to some 12 level of judicial review.” Joseph v. Joseph, 719 N.E.2d 323, 325 (Ill. App. 3d 1999). As this Court has noted, a district court commits error if it confirms a report that is not supported by “substantial evidence.” Tillett v. Lippert, 275 Mont. 1, 6, 909 P.2d 1158, 1161 (1996). Similarly, if the referees “made an unequal or unjust partition, or if they acted under a mistake which would naturally lead them to make an unequal or unjust partition, their doings ought not to be affirmed.” Hall v. Hall, 25 N.E. 84, 85 (Mass. 1890). Other reasons upon which the district court may amend or set aside the referees’ report include “procedural irregularities in the preparation and submission of the report, and substantial inequality of value in the portions allotted to the parties.” Schroeder v. Lawhon, 922 So. 2d 285, 293 (Fla. App. 2006). The right to partition real property is “essentially equitable in nature” and courts in other jurisdictions consistently have been guided by certain fundamental principles of equity and due process when partitioning property. Platt v. Platt, 264 P.3d 804, 810 (Wyo. 2011) (quoting Bryan v. Locker, 640 N.E.2d 590, 592 (Ohio App. 3d 1994)). ¶28 Although partition referees act as quasi-judicial officers, the power to partition property and extinguish property rights is an exercise of judicial power vested solely in the district court. Section 70-29-212, MCA; McCarthy, 781 N.E.2d at 1029. Once the referees have filed their report, it is subjected to judicial review and the district court is granted wide discretion in reviewing, modifying or adopting the report. Tillett, 275 Mont. at 6, 909 P.2d at 1160 (citing § 70-29-212, MCA); Brogoitti v. Brown, 372 P.2d 773, 776-77 (Ore. 1962). Due process requires that the parties to the action be afforded a 13 right to be heard when “the report comes before the court” for consideration. Field v. Hudson, 176 P. 73, 75 (N.M. 1918) (citing McClanahan v. Hockman, 31 S.E. 516, 517 (Va. 1898); McCracken v. Droit, 108 Ill. 428, 432 (1884). For that reason, we cannot agree with Britton’s contention that Brown’s due process rights were satisfied when Brown was allowed to select a referee and submit partition proposals to the referees. Whatever process Brown was due must have been afforded by the District Court when it was considering the referees’ final report. ¶29 Parties to a partition action have the right to object to the referees’ partition report before the District Court. Shumate v. Chenault, 33 S.E. 991, 994 (Ga. 1899); Alderson v. Horse Creek Coal Land Co., 111 S.E. 589, 590 (W. Va. 1922). This objection may be “founded upon a material mistake of law or of fact[.]” Smith v. Hill, 60 So. 57, 58 (Ala. 1912). Because a partition action is an adversarial proceeding, the party who believes that the referees’ report is deficient bears the burden of offering sufficient evidence to support her objection. Joseph, 719 N.E.2d at 325 (citing Miller v. Lanning, 71 N.E. 1115, 1116 (Ill. 1904)); Wright v. Wright, 475 N.E.2d 556, 560 (Ill. App. 3d 1985); Rosenbaum v. Rosenbaum, 349 N.E.2d 73, 83 (Ill. App. 3d 1976). If the referees’ report becomes a matter of legitimate dispute due to the submission of sufficient evidence, the report then is “subject to challenge in an evidentiary hearing.” Prostak v. Prostak, 607 A.2d 1349, 1353 (N.J. Super. 1992). If the district court fails to hold an evidentiary hearing after a party submits sufficient evidence challenging the report, the court has denied that party due process of the law. See Field, 176 P. at 76. An objection 14 unsupported by sufficient evidence does not entitle a party to an evidentiary hearing because that would frustrate the statute’s goal of providing “a cheap and expeditious method of partition.” Field, 176 P. at 76; see also Wright, 475 N.E.2d at 560. ¶30 We hold that when a party makes a substantiated claim of factual or legal error in the referees’ report, due process protections and equitable concerns require the district court to hold a hearing to weigh the objections against the report to determine whether the referees’ report equitably divides the real property in question prior to confirming, changing or modifying the report pursuant to § 70-29-212, MCA. If neither party presents substantiated objections to the referees’ report supported by sufficient evidence, the District Court may confirm the report pursuant to § 70-29-212, MCA, without holding an evidentiary hearing. Likewise, a party is entitled to be heard upon substantiated objections to errors of law. ¶31 Brown objected to the final partition report and submitted affidavits from eleven individuals, including several purported experts, challenging the conclusions reached by the referees. The evidence she submitted was sufficient to place the referees’ final report in legitimate dispute. Based on our review of established partition law, Brown’s objections were sufficient to compel the District Court to hold an evidentiary hearing. An evidentiary hearing only guarantees Brown an opportunity to be heard; it does not guarantee she “will get what [she] ‘wants.’” Smith v. Bd. of Horse Racing, 1998 MT 91, ¶ 12, 288 Mont. 249, 956 P.2d 752. 15 ¶32 Brown also objected to the District Court’s decision to prohibit the parties from deposing or cross-examining the referees. There is no statute that either expressly prohibits or contemplates the referees being deposed or testifying at an evidentiary hearing. It appears, however, that testimony from the referees is not uncommon at such a hearing. Ivins v. Hardy, 134 Mont. 445, 450, 333 P.2d 471, 473 (1958), overruled on other grounds, Tillett, 275 Mont. at 6, 909 P.2d at 1160 (discussing the district court’s confirmation of report “after hearing testimony of all appraisers and of numerous witnesses for the contending parties”). We agree with the Illinois Court of Appeals that “[i]f an objector wishes to examine the [referees] on the report, clearly he has that right.” Wright, 475 N.E.2d at 560. If neither party wants to depose a referee or gives notice of his or her desire to examine a referee, however, “there is no obligation [for the referee] to appear and testify.” Wright, 475 N.E.2d at 560. Since we are remanding for an evidentiary hearing, we clarify that either party may call the referees as witnesses during the hearing. The scope of pre-hearing discovery from the referees is subject to applicable Rules of Civil Procedure and the discretion of the trial court. ¶33 The District Court’s Final Partition Judgment is reversed and remanded for an evidentiary hearing consistent with this opinion. /S/ Beth Baker We concur: /S/ Mike McGrath /S/ Patricia Cotter /S/ Michael E Wheat /S/ Jim Rice | February 12, 2013 |
1c9aeb46-dd8b-40da-b0db-fe53d837bab4 | Braach v. Missoula County Clerk and | 2013 MT 49N | DA 12-0228 | Montana | Montana Supreme Court | DA 12-0228 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 49N ROBERT M. BRAACH and DAWN BRAACH, Plaintiffs and Appellees, v. MISSOULA COUNTY CLERK AND RECORDER, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 11-830 Honorable Edward P. McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Fred R. VanValkenburg, Missoula County Attorney; Martha E. McClain, Chief Civil Deputy County Attorney; D. James McCubbin, Deputy County Attorney; Missoula, Montana For Appellee: Colleen M. Dowdall, Worden Thane P.C., Missoula, Montana Submitted on Briefs: December 19, 2012 Decided: February 26, 2013 Filed: __________________________________________ Clerk February 27 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 Missoula County appeals from the District Court’s Findings of Fact, Conclusions of Law and Order, filed February 22, 2012. We affirm. ¶3 In 1997 Robert and Dawn Braach bought a house on a tract of land in Missoula County, described in a deed recorded by Missoula County as Lot 16 of U. S. Government Survey No. 2, Sec. 30, Twp. 13 N., R. 19 W. During 2000 they obtained approval from Missoula County for a “subdivision for lease or rent” allowing them to build a rental unit on the property.1 In November 2001 the Braachs applied for and obtained approval from Missoula County to use a portion of their property as security for a construction loan to build the rental unit, as provided by § 76-3-201, MCA (2001). In January 2002 the Braachs had the property surveyed at the request of the lender and filed certificate of survey (COS) 5235 with Missoula County.2 COS 5235 depicted the Braachs’ entire lot, but separately depicted “Tract 1” as the portion of the property surveyed for mortgage security. The remaining portion of the Braachs’ property that was not intended for use as mortgage security is referred to as the remainder. Before they could build a rental house on Tract 1 Robert Braach became seriously ill with cancer and the project was postponed until 2005. 1 The details of this rental subdivision are not clear and no documents covering it appear in the District Court record. 3 ¶4 In 2005 the Braachs formed a joint venture with a house builder, transferred an interest in Tract 1 to the builder by quitclaim deed, and recorded the deed with Missoula County. The joint venture borrowed money using Tract 1 as collateral, and recorded the construction mortgage with Missoula County. The joint venture built the house on Tract 1, and the Braachs sold the house and Tract 1 to third parties in 2006. The joint venture house was deeded to the buyers as Tract 1 of COS 5235, and Missoula County recorded the deed. Missoula County had separately taxed Tract 1 and the remainder since the Braachs recorded COS 5235. After the 2006 sale of Tract 1, the County separately billed the new owners for the property taxes on Tract 1 and the Braachs for the taxes on the remainder property. ¶5 In 2011 the Braachs decided to sell their house on the remainder portion of their property, and accepted an offer from a purchaser. The Braachs engaged a title insurance company, which questioned whether Missoula County would allow the sale of the property. The Missoula County Attorney’s office advised the County Clerk and Recorder to not record a deed attempting to transfer any portion of COS 5235. Missoula County took the position that the Braachs’ remainder property shown in COS 5235 was not an independent tract of land, but that it would allow a deed to be recorded if the Braachs obtained a court order. The Braachs negotiated with the prospective buyers for an extension of the closing of the sale until June 30, 2011. ¶6 On June 27, 2011, the Braachs obtained a writ of mandamus from the District Court ordering Missoula County to record the deed to consummate the property sale. On June 30, 2 A certificate of survey is a drawing of a field survey prepared by a registered surveyor for the purpose of disclosing facts pertaining to boundary locations. Section 76-3-103(1), MCA. 4 2011, the County moved the District Court to conduct further proceedings and to allow it to respond to the Braachs’ application for the writ of mandamus. The District Court received motions and briefs and conducted an evidentiary hearing on December 6, 2011. ¶7 Pursuant to the writ the Braachs recorded a deed transferring the property from Robert Braach and Dawn Braach to Dawn Braach. The County took the position that the writ applied only to that transaction; that no further deeds would be recorded concerning either Tract 1 or the remainder depicted on COS 5235; and that the County would require a court order prior to recording any other deed. The potential buyers were told that if they bought the Braachs’ property they could not later sell it without a court order, and the sale of the remainder portion of the property did not take place. The County did not require review under the Subdivision and Platting Act and did not require any survey. The County’s only express requirement was that a court had to approve the recording of any deed transferring any of the property depicted on COS 5235. ¶8 Prior to the December 2011 hearing, Missoula County requested that Braachs’ attorney withdraw from the case based upon an asserted conflict of interest because she once worked as a Deputy Missoula County Attorney. The Braachs’ attorney declined to withdraw and responded with an analysis of her position. In October 2012 Missoula County filed a complaint against the Braachs’ attorney with the Office of Disciplinary Counsel (ODC), raising the issue of the perceived conflict. The County subsequently filed its ODC complaint and other related papers as an exhibit in District Court in opposition to the Braachs’ request for attorney fees. 5 ¶9 On February 22, 2012, the District Court issued its Findings of Fact, Conclusions of Law and Order, granting the Braachs’ motion to enforce the June 27, 2011, writ of mandamus, granting their request for attorney fees, and granting sanctions in favor of the Braachs. Missoula County appeals, raising a number of issues. ¶10 The County argues that the District Court erred in issuing the initial writ without first allowing the County a chance to respond. When the District Court issued the initial writ, the closing on the Braachs’ sale of the property was only a couple of days away and had already been postponed because of the County’s refusal to record the deed. The County’s position was that the Braachs could record a deed only if they obtained a court order, and this is exactly what the Braachs did. Because of the impending closing, which had already been extended, this situation could not have been addressed without prompt action by the Braachs and by the District Court. In addition, the District Court subsequently granted the County’s motion to conduct further proceedings, considered briefs and motions, and held an evidentiary hearing. The District Court found that there were no specific requirements for the type or duration of notice prior to a writ of mandate, and that a district court has discretion regarding the amount of notice to be given of an application for a writ of mandamus. Section 27-26-202, MCA. ¶11 The District Court acted within its discretion to issue the initial writ and any procedural prejudice to the County, which does not appear in the record, was addressed by the subsequent proceedings. There is no effective relief that can now be granted based upon the County’s allegations of deficient notice and opportunity to be heard, and the issue 6 appears to be moot. Mills v. Alta Vista Ranch, 2008 MT 214, ¶ 22, 344 Mont. 212, 187 P.3d 627. ¶12 The County argues that the District Court erred in issuing the writ because the County lacked a clear legal duty to record the Braachs’ documents. Mandamus is available when the applicant is entitled to performance of a clear legal duty and has no adequate remedy in the ordinary course of law. Section 27-26-102, MCA; Jefferson Co. v. Dept. of Enviro. Quality, 2011 MT 265, ¶¶ 16, 21, 362 Mont. 311, 264 P.3d 715. Even where discretion is involved, where there has been such an abuse of discretion as to amount to no exercise of discretion at all, mandamus will lie to compel the proper exercise of the official’s powers. Arbitrary or capricious action constitutes an abuse of discretion. Withers v. Beaverhead County, 218 Mont. 447, 450, 710 P.2d 1339, 1341 (1985). ¶13 A county clerk and recorder is required to record “any instrument . . . authorized by law to be recorded.” Section 7-4-2617, MCA. In 2002 when the Braachs filed COS 5235 depicting Tract 1, § 76-3-201, MCA (2001), provided that a division of land created to provide mortgage security was exempted from the requirements of the Subdivision and Platting Act unless the transaction was undertaken with the purpose of evading that Act. Missoula County has never determined and does not argue that the Braachs were attempting to evade the Subdivision and Platting Act. ¶14 The Braachs argue that both Tract 1 and the remainder parcel became “tracts of record” as defined in § 76-3-103(16), MCA, because they could be identified by documents on file with the County Clerk and Recorder, in particular the 2002 designation of Tract 1 in COS 5235 and the 2006 deed conveying Tract 1 from the Braachs to the purchasers of Tract 7 1. They further argue that § 76-3-201, MCA (2001), exempted COS 5235 from survey requirements (even though Tract 1 was surveyed) and from the Subdivision and Platting Act. The District Court found that the Clerk and Recorder was required to recognize Tract 1 and the remainder as separate tracts of record and to record the Braachs’ deed for the remainder. ¶15 Section 76-3-201, MCA, was amended effective in October 2003 to provide that a tract of land created for mortgage security could only be transferred to the entity holding the security interest. This amendment was not effective in 2002 when the Braachs recorded COS 5235 creating the mortgage security parcel, Tract 1, but was effective when they recorded the deed transferring Tract 1 in 2006. The District Court found that prior to the 2003 amendment, Missoula County applied the law to allow the separate transfer of tracts of land created as mortgage security, whether or not there had been a foreclosure of the mortgage. Parcels created for mortgage financing were deemed to survive the financing transaction as separate parcels of land. This interpretation of § 76-3-201, MCA (2001), was supported by a 1988 opinion of the Montana Attorney General. 42 Op. Atty. Gen. No. 101. ¶16 The District Court determined that under the facts, as a matter of equity Missoula County was estopped from refusing to allow the Braachs to record the 2011 deed for the remainder portion of their original property. Missoula County argues that the Braachs did not establish the elements of estoppel, and that equitable considerations are insufficient to support a writ of mandamus. The elements of estoppel are well established and require: (1) the existence of conduct, acts, language, or silence amounting to a representation or a concealment of a material fact; (2) these facts must be known to the party estopped at the time of his conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to 8 him; (3) the truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time it was acted upon by him; (4) the conduct must be done with the intention or at least the expectation, that it will be acted upon by the other party, or under circumstances both natural and probable that it will be so acted upon; (5) the conduct must be relied upon by the other party and, thus relying, he must be led to act upon it; and (6) he must in fact act upon it in such a manner as to change his position for the worse. Olsen v. Milner, 2012 MT 88, ¶ 32, 364 Mont. 523, 276 P.3d 934. Estoppel has been applied to governmental entities in Montana. Town of Boulder v. Bullock, 193 Mont. 493, 632 P.2d 716 (1981) (town estopped from requiring owner to remove building that encroached on town street); Barker v. Town of Stevensville, 164 Mont. 375, 523 P.2d 1388 (1974) (in mandamus, town was estopped from denying a building permit to applicants). ¶17 The facts in this case sufficiently establish the elements of estoppel. The County approved the use of a portion of the Braachs’ property as mortgage security in 2001; recorded COS 5235 in 2002; recorded the deed transferring Tract 1 in 2006; and separately taxed both parcels of the Braachs’ original property. At no time prior to the prospective sale of the remainder tract in 2011 did the Braachs know that the County would claim that these transactions were improper; that the transactions had been affected by a change in the statute in 2003; or that the County would not recognize the parcels as separate tracts unless required to do so by a court order. Under these circumstances the County knew or should have known that the Braachs, the purchasers of Tract 1 and the prospective purchasers of the remainder of the property would rely upon the County’s apparent legal position and act upon it. All of them did in fact rely upon the County’s position and actions, to their detriment. The District Court properly concluded that the County was estopped from refusing to 9 recognize the separate tracts shown in COS 5235; was estopped from refusing to record present or future deeds involving those transactions; and was estopped from requiring a court order prior to doing so. ¶18 Based upon the facts of this case, Missoula County was estopped from denying that it had a duty to record deeds involving the Braachs’ present and former property shown in COS 5235. Under the specific facts of this case the District Court properly concluded that the County was required to record the deed from the Braachs in 2011 without requiring them to first obtain a court order, and that the County’s failure to do so supported a writ of mandamus. ¶19 The County further contends that the District Court improperly awarded attorney fees to the Braachs. The County’s position was and is that the Braachs or any other person could record a deed for a sale of any of the property depicted in COS 5235 only upon obtaining a court order. The Braachs sought a writ of mandamus and obtained an order from the District Court, in an ultimately futile effort to salvage the 2011 sale of their property. ¶20 A successful applicant for mandamus may recover attorney fees. Newman v. Wittmer, 277 Mont. 1, 11, 917 P.2d 926, 932 (1996); Kadillak v. Montana Dept. State Lands, 198 Mont. 70, 75-76; 643 P.2d 1178, 1182 (1982). The District Court found that the Braachs were entitled to attorney fees and costs as the prevailing party in a mandamus action. In addition the District Court found that the County’s act of filing in the District Court’s record the papers concerning the disciplinary complaint against the Braachs’ attorney was “so abhorrent in and of itself to justify the awarding of attorney fees and costs.” The District Court found that the County’s complaint against Ms. Dowdall based upon her former 10 employment as a deputy county attorney was a litigation strategy and without merit. The District Court determined that the Braachs were entitled to fees spent responding to the County’s complaint. The District Court found that the Braachs had presented competent expert testimony at the hearing to support their claim for fees and that the fees claimed were reasonable. The District Court properly exercised its discretion to award attorney fees and costs to the Braachs. ¶21 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for memorandum opinions. It is manifest from the briefs and the record on appeal that sufficient evidence exists to support the findings of fact below, and the District Court did not abuse its discretion. ¶22 Affirmed. /S/ MIKE McGRATH We concur: /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JIM RICE | February 27, 2013 |
5170cd73-db66-4883-ad1d-c24967500118 | Eslick v. Eslick | 2013 MT 53 | DA 12-0417 | Montana | Montana Supreme Court | DA 12-0417 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 53 IN RE THE MARRIAGE OF: LORI LYNN ESLICK, Petitioner and Appellee, and DAVID MICHAEL ESLICK, Respondent and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DR-11-691 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: David Michael Eslick (Self-Represented), Deer Lodge, Montana For Appellee: Joan E. Cook, Attorney at Law, Missoula, Montana Submitted on Briefs: January 9, 2013 Decided: March 5, 2013 Filed: __________________________________________ Clerk March 5 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 David Michael Eslick (David) appeals from a default final decree of dissolution entered by Montana’s Fourth Judicial District Court, Missoula County, after David failed to appear at the final pretrial conference. The District Court entered a default in David’s absence after refusing to grant his motion for a continuance of the dissolution proceedings due to an unexpected hospitalization. David alleges that the District Court erred by not granting his motion for a continuance. We reverse the District Court’s entry of a default decree and remand to allow David to appear at a final pretrial conference and trial. ISSUE ¶2 David raises the following issue on appeal: ¶3 Did the District Court err in denying David’s motion for a continuance? FACTUAL AND PROCEDURAL BACKGROUND ¶4 The parties were married on August 15, 2005. David has been incarcerated in the Montana State Prison (MSP) since December 2010. Lori Lynn Eslick (Lori) petitioned the District Court for dissolution on October 4, 2011. Lori originally appeared as a self-represented litigant, but retained counsel in March 2012. The District Court allowed David to appear telephonically at all hearings. David proceeded at all times as a self-represented litigant. ¶5 On January 24, 2012, the District Court adopted the scheduling order submitted by David that called for discovery to close on February 29, 2012. The District Court held a 3 status conference on April 10, 2012, at which time it set a June 1, 2012 deadline for the exchange of all witness lists and exhibits. The District Court scheduled the trial for June 25, 2012, with a final pretrial conference to be held on June 12, 2012. When the final pretrial conference was held on June 12, 2012, David did not appear telephonically. Lori’s counsel advised the District Court that the clerk of court’s office had informed her that an order was returned in the mail from the MSP showing that David was not there. The District Court directed Lori and the clerk to attempt to locate David. Due to David’s absence, the District Court rescheduled the final pretrial conference for June 19, 2012. ¶6 Unbeknownst to the District Court, David was experiencing medical problems that required surgery and hospitalization. On May 5, 2012, David went to the MSP infirmary for an examination of his foot, which had been adversely affected by diabetes and was symptomatic. The MSP infirmary determined that David required immediate transportation to St. Patrick Hospital in Missoula, Montana, because his foot had become septic. David was transported to St. Patrick Hospital, and underwent surgery on May 6, 2012, for the amputation of one-and-a-half toes and a portion of the bottom of his foot. David experienced other complications and remained at St. Patrick Hospital until June 11, 2012. Even after David was transported back to the MSP on June 11, 2012, he spent an additional seven days recovering in the prison infirmary. David contends that he did not receive any of his mail until he returned to his designated unit. ¶7 On June 18, 2012, David mailed a motion to the District Court requesting a sixty-day continuance. The District Court held the final pretrial conference on June 19, 2012. Lori appeared and her counsel advised the District Court that David was back at 4 the MSP. Lori requested that a default be entered against David for his failure to appear telephonically. The District Court granted Lori’s request and vacated the trial date. The District Court set a hearing for entry of the final decree on June 26, 2012. ¶8 The District Court received David’s motion for a continuance on June 21, 2012. In an order dated June 22, 2012, the District Court noted that it had received David’s motion requesting a continuance, and would consider the motion at the scheduled hearing. David failed to appear at the June 26, 2012 hearing. The District Court entered a default decree and declared the parties’ marriage dissolved. ¶9 Following his receipt of the default decree, David sent a letter to the clerk of court inquiring as to whether the District Court reviewed his motion for a continuance and whether it would vacate the findings of fact, conclusions of law, and final decree of dissolution. The District Court responded to the letter on July 5, 2012, stating as follows: If this is a motion to set aside default it is denied. Mr. Eslick could have made a telephone appearance as he has done several times in the past. (Emphasis in original.) David appeals from the District Court’s decision not to grant his motion for a continuance. STANDARDS OF REVIEW ¶10 We review a district court’s decision to grant or deny a motion for a continuance for abuse of discretion. In re Marriage of Fishbaugh, 2002 MT 175, ¶ 11, 310 Mont. 519, 52 P.3d 395; In re Marriage of Pospisil, 2000 MT 132, ¶ 18, 299 Mont. 527, 1 P.3d 364. Any motion for a continuance is within the sound discretion of the district court and we will not overrule the court’s decision to deny a request for a continuance unless there 5 is an affirmative showing that he has suffered prejudice. Fishbaugh, ¶ 11; Pospisil, ¶ 18. A district court abuses its discretion when it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial prejudice. In re Marriage of Damschen, 2011 MT 297, ¶ 39, 363 Mont. 19, 265 P.3d 1245; Pospisil, ¶ 18. DISCUSSION ¶11 Did the District Court err in denying David’s motion for a continuance? ¶12 At the June 19, 2012 final pretrial conference, the District Court noted that David had failed to appear twice. Based on his failure to appear, the District Court entered a default decree. The District Court determined that David could have appeared by telephone at the hearing. ¶13 David argues that the District Court should have granted his motion for a continuance based on his unexpected medical emergency. Lori contends that the District Court did not abuse its discretion when it chose not to grant David a continuance. Furthermore, Lori maintains that David suffered no prejudice from the entry of the dissolution decree in his absence. ¶14 “Upon good cause shown and in furtherance of justice, the court may, in its discretion, postpone a trial or proceeding upon other grounds than the absence of evidence under such conditions as the court may direct.” Section 25-4-503, MCA. Other jurisdictions have recognized that “it is well established that the unexpected absence of a party is generally a good reason for granting a continuance.” See e.g. Cherry Creek Sch. Dist. No. 5 v. Voelker, 859 P.2d 805, 809 (Colo. 1993); Young v. Redman, 55 Cal. App. 6 3d 827, 831, 128 Cal. Rptr. 86, 88 (Cal. App. 1976) (“The denial of a motion for continuance for absence of a party may constitute an abuse of discretion by the trial court sufficient to justify reversal only where there is an affirmative showing of ‘good cause,’ such as serious illness or unforeseen circumstances which prevented a party from appearing at trial.”); Fisher v. Perez, 947 So. 2d 648, 653 (Fla. Dist. App. 2007) (“Denials of motions for continuances in the face of a sudden unexpected medical emergency of either counsel, a party, or a witness have resulted in reversals on appeal in this and other courts.”). ¶15 David was at St. Patrick Hospital from May 5, 2012, until June 11, 2012. During this time period, he received no mail and did not have access to resources that would have allowed him to prepare for the final pretrial conference or the trial. Even upon his return to MSP, he spent an additional seven days in the infirmary. While in the infirmary, David did not receive any mail and was unable to prepare for the dissolution proceedings. When David returned to his unit on June 18, 2012, he received his mail for the first time in over a month and learned that the final pretrial conference would be held the next day. David drafted his motion for a continuance and accompanying brief as soon as he could, and mailed these documents to the District Court on June 18, 2012. The procedures at MSP require inmates to request use of a telephone well in advance, so David was unable to appear telephonically at the June 19, 2012 hearing. The District Court entered a default against him at the June 19, 2012 hearing, unaware of the extenuating circumstances surrounding David’s failure to appear. However, even after 7 receiving David’s motion for a continuance on June 21, 2012, the District Court proceeded under the previously adopted schedule. ¶16 Under these circumstances, we conclude that David has demonstrated good cause for granting his motion for a continuance. David’s unexpected medical emergency and the conditions of his incarceration were circumstances beyond his control that prevented his appearance at the final pretrial conference. ¶17 Next, we must consider whether David’s inability to appear at the dissolution proceedings resulted in prejudice. “The moving party must make an affirmative showing that he or she has suffered prejudice as a result of the court’s denial of the motion for a continuance.” Fishbaugh, ¶ 11; Pospisil, ¶ 18. David was unable to appear at the final pretrial conference and the trial. Therefore, he was unable to present any witnesses or exhibits for the District Court’s consideration. This Court has previously held that “conclusory statements” alleging that the District Court “relied on a one-sided view of the facts” were insufficient to demonstrate prejudice. Fishbaugh, ¶ 14. However, in the instant case, David specifically disputes the District Court’s findings regarding several of the marital debts, assets, and Lori’s financial representations. The District Court entered its findings of fact, conclusions of law, and default decree of dissolution without the benefit of David’s arguments. We conclude that David has sufficiently demonstrated that he suffered prejudice as a result of the District Court’s refusal to grant his motion for a continuance. ¶18 Under these extraordinary circumstances, we hold that the District Court abused its discretion in refusing to grant David’s motion for a continuance. 8 CONCLUSION ¶19 For the foregoing reasons, we reverse the District Court’s entry of a default dissolution decree, and remand this matter to allow the District Court to reschedule the final pretrial conference and trial. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ JIM RICE /S/ BRIAN MORRIS /S/ LAURIE McKINNON /S/ BETH BAKER | March 5, 2013 |
edbc6cd1-df2c-457e-ac18-45893e51f2b6 | McCulley v. Am. Land Title Co. | 2013 MT 89 | DA 12-0117 | Montana | Montana Supreme Court | DA 12-0117 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 89 MARY MCCULLEY, Plaintiff and Appellant, v. AMERICAN LAND TITLE COMPANY and U.S. BANK OF MONTANA, Defendants and Appellees. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV-09-562C Honorable John C. Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Mary McCulley (Self-Represented), Bozeman, Montana For Appellee American Land Title Company: Steven Reida, Alex Roots, Landoe, Brown, Planalp & Reida, P.C., Bozeman, Montana For Appellee U.S. Bank of Montana: Mark C. Sherer, Mackoff Kellogg Law Firm, Dickinson, North Dakota Submitted on Briefs: January 31, 2013 Decided: April 9, 2013 Filed: __________________________________________ Clerk April 9 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 In 2006, Mary McCulley purchased a condominium (Condo) in downtown Bozeman, Montana, for $395,000. She sought a residential loan from Heritage Bank, predecessor to defendant U.S. Bank of Montana (hereinafter U.S. Bank or the Bank) for $300,000. American Land Title Company (ALTC) provided a Commitment for Title Insurance. McCulley signed a Promissory Note (Note) and signed a Deed of Trust (Deed) as collateral. The Deed indicated that the Condo was for “residential purposes only.” Subsequently, however, and purportedly without McCulley’s knowledge, ALTC changed the designated use of the Condo in the Deed from residential to commercial. ¶2 After closing in June 2006, McCulley asserts she discovered the Bank had issued her an 18-month, $300,000 commercial property loan rather than the 30-year residential property loan for which she applied. When she was unable to obtain long-term refinancing on the property, McCulley signed a Warranty Deed transferring ownership of the Condo to the Central Asia Institute. She used the proceeds to pay off the loan. She then sued ALTC and U.S. Bank for negligence, breach of contract, fraud, slander of title, intentional infliction of emotional distress, and malice. All parties filed motions for summary judgment. The District Court granted ALTC’s and U.S. Bank’s motions for summary judgment and denied McCulley’s. McCulley appeals. We affirm in part and reverse and remand in part. ISSUE ¶3 A restatement of the issue on appeal is: 3 ¶4 Did the District Court err in granting summary judgment to American Land Title Company and U.S. Bank? FACTUAL AND PROCEDURAL BACKGROUND ¶5 In May 2006, Mary McCulley agreed to purchase a condominium on East Main Street in downtown Bozeman, Montana. The Condo was located on the top floor of a commercial building and was priced at $395,000. McCulley approached Heritage Bank (later purchased by U.S. Bank) on May 25, 2006, and applied for a 30-year (360 month) residential loan for $300,000, later revised to $200,000. On that same day, Heritage Bank generated a Federal Truth-In-Lending Disclosure Statement indicating the estimated monthly payment for the first 60 months, the estimated payment for the next 299 months, and the final payment due on July 1, 2036. It also issued a Good Faith Estimate that expressly referenced 360 payments for McCulley’s proposed loan. ¶6 On the following day, the Bank ostensibly prepared an informational document (“the letter”) utilizing a format typically used for internal interoffice correspondence or documentation. There was no salutation, introductory paragraph, or signature line. The document favorably analyzed McCulley’s credit-worthiness for a $300,000 loan, but noted that while the Condo was “residential,” the lot upon which it was built was zoned commercial B2. The Bank stated in the document that such commercial zoning precluded “the use of standard secondary market sources for financing a residential condominium.” Consequently, the Bank categorized the proposed loan as an 18-month “consumer bridge” loan. The Bank professes this “letter” was sent to McCulley at the time it was generated and that she agreed to the new terms, including a loan maturity date 4 of December 16, 2007. McCulley strongly denies ever receiving this document or agreeing to an 18-month finance term. ¶7 The loan closing was conducted less than three weeks later, on June 16, 2006. The Promissory Note and the Disclosure Statement signed by McCulley at closing stated that the $300,000 loan matured on December 16, 2007. Additionally, the Deed of Trust signed by McCulley at closing indicated that the Condo was to be used for residential purposes only. It is undisputed, however, that without McCulley’s knowledge, ALTC subsequently changed the Deed prior to recording it to reflect that the Condo was to be used for commercial purposes only. ¶8 McCulley made monthly payments to the Bank throughout 2006 and 2007. She claims she thought she was making normal mortgage payments. The Bank claims she was making the required monthly interest payments. In the fall of 2007, McCulley received notice that a balloon payment on her 18-month loan was due in December 2007. McCulley claims not to have known until that time that she did not have the 30-year residential mortgage for which she had applied. While trying to resolve the issue with the Bank, McCulley renegotiated the loan to extend the maturity date to June 16, 2008. She did so again in June 2008, extending the maturity date to October 16, 2008. Ultimately, unable to find suitable long-term residential financing, McCulley signed a Warranty Deed transferring the Condo to the Central Asia Institute in June 2009, and paid off the note. 5 ¶9 In June 2009, McCulley, represented by counsel,1 filed her first complaint against ALTC and U.S. Bank. She filed and served a first amended complaint in October 2009. She claimed the defendants: (1) were negligent in their loan dealing with her; (2) breached the executed contracts; (3) committed fraud by misrepresenting the nature of the loan; (4) slandered the title on the property by recording a Deed showing the Condo was commercial property when she believed she had purchased residential property; and (5) intentionally inflicted emotional distress upon her. She moved to amend the complaint again in October 2010 to correct alleged errors former counsel had made in the first amended complaint and to add a claim for actual malice. This motion was granted on November 16, 2010. ¶10 McCulley moved for summary judgment. ALTC and the Bank also filed motions for summary judgment. The District Court conducted a summary judgment hearing on September 9, 2011. On January 12, 2012, the District Court issued its Order denying McCulley’s motion for summary judgment and granting ALTC’s and U.S. Bank’s motions. It subsequently entered judgment in favor of U.S. Bank and ALTC. McCulley filed a timely appeal. STANDARD OF REVIEW ¶11 We review a district court’s grant of summary judgment de novo, applying the same criteria as the district court. A district court properly grants summary judgment only when no genuine issues of material fact exist and the moving party is entitled to 1 Counsel for McCulley withdrew in February 2010. McCulley represented herself for the duration of the proceeding. 6 judgment as a matter of law. Siebken v. Voderberg, 2012 MT 291, ¶ 16, 367 Mont. 344, 291 P.3d 572. If, however, genuine issues of material fact do exist in a case, it is not the function of the district court to enter summary judgment; in fact, summary judgment is precluded. Schmidt v. Washington Contrs. Group, Inc., 1998 MT 194, ¶ 26, 290 Mont. 276, 964 P.2d 34. DISCUSSION ¶12 Did the District Court err in granting summary judgment to American Land Title Company and U.S. Bank? ¶13 McCulley appeals the District Court’s ruling in favor of the Bank as it applies to her claims that the Bank breached its contract and the covenant of good faith and fair dealing, acted negligently, and committed fraud. She appeals the District Court’s ruling in favor of ALTC as it applies to her claim that ALTC acted negligently and committed fraud. She asserts the District Court erred in granting summary judgment to ALTC and the Bank because genuine issues of material fact exist as to each of these claims. We affirm the District Court’s rulings as to McCulley’s claims of breach of contract and negligence against the Bank and her claims of negligence and fraud against ALTC. We reverse the court’s ruling vis-à-vis McCulley’s claim that the Bank committed fraud in its dealings with her. Claims Against ALTC ¶14 We first address the court’s rulings pertaining to ALTC. It is undisputed that after McCulley signed the original Deed stating the Condo could be used for residential purposes only, ALTC changed the Deed to reflect that the Condo was to be used for 7 commercial purposes only. ALTC then recorded the revised Deed. McCulley argued that this change, unbeknownst to her, later caused her to be unable to obtain refinancing through a conventional long-term residential loan. However, it is also undisputed that the Bank and McCulley executed two subsequent modifications of the Deed of Trust, both of which expressly reflected in the legal description of the property that the Condo was to be used for residential purposes only. ¶15 The District Court determined that the legal description in the Deed of Trust and any subsequent changes thereto did not diminish McCulley’s legal title to the Condo nor did it change the use of the property or the zoning classification of the property. Noting that the property on which the Condo was built was zoned commercial before McCulley purchased the Condo, the court concluded that the change to the original Deed of Trust did not prevent McCulley from obtaining conventional financing; rather, the property’s zoning classification did. As such, the revised legal description was not the cause of her inability to refinance her loan. The court further concluded that the Condo By-Laws would control the use of the Condo, not the Deed of Trust. And lastly, the District Court ruled that terms of the Promissory Note dictated whether the loan was residential, commercial or construction, and McCulley had made no allegation that ALTC was involved in the negotiation or creation of the Promissory Note. ¶16 Premised on the foregoing findings, the District Court determined that McCulley failed to establish that ALTC’s change to the Deed proximately caused McCulley’s damages. Consequently, her negligence claim must fail. As for her fraud claim against ALTC, the District Court concluded there was no evidence to indicate that ALTC 8 intended to misrepresent the legal description of the property, which is one of the nine mandatory elements of fraud; therefore, McCulley was unable to establish fraud. For these reasons, the District Court granted ALTC’s motion for summary judgment. ¶17 As noted by the District Court, while a Deed of Trust contains a legal description of property subject to transfer, such description does not alter the use, nature, or zoning of the property. Zoning in the City of Bozeman and in Gallatin County is controlled by specific ordinances and regulations. Moreover, the Deed was subsequently revised— twice—to correctly reflect the use of the Condo as residential. Therefore, the original Deed was no longer controlling. Under these circumstances, McCulley failed to establish that ALTC’s change to the original Deed breached a duty owed to her or that such breach caused her injuries warranting damages. Consequently, the District Court did not err in granting summary judgment to ALTC on this issue. ¶18 Addressing McCulley’s claim on appeal that ALTC committed fraud when it revised the original Deed, we note that McCulley presents no legal argument or authority to support her contention. McCulley’s entire argument before this Court vis-à-vis her claim that ALTC committed fraud when it altered the original Deed is as follows: The record is clear as to ALTC’s admission with regard to altering the Deed of Trust after the execution and without having the relevant parties initial such change. Fraud seems clear. It should be an issue determined by a jury, not Judge Brown, as to if this change is a “scrivener’s error” or if it is fraud as well as to what extent [McCulley] was damaged by the same. ¶19 To establish a prima facie claim for fraud, a party asserting the claim must set forth specific facts to satisfy the nine mandatory elements of actual fraud. See In re 9 Estate of Kindsfather, 2005 MT 51, ¶ 17, 326 Mont. 192, 108 P.3d 487. Actual fraud is a question of fact and a “mere suspicion of fraud” is insufficient. Franks, ¶ 18. While certainly in many cases a jury sits in the role as “fact-finder,” in many cases, as in this one, the trial judge assumes this role. H-D Irrigating, Inc. v. Kimble Props., Inc., 2000 MT 212, ¶ 55, 301 Mont. 34, 8 P.3d 95. McCulley failed to set forth the necessary facts to establish the nine elements before the District Court and has not even attempted to establish the elements on appeal. McCulley’s conclusory statement that “[f]raud seems clear” is insufficient to sustain her claim. ¶20 As we have stated on numerous occasions, under M. R. App. P. 23 we are not obligated to develop arguments on behalf of parties to an appeal, nor are we to guess a party’s precise position, or develop legal analysis that may lend support to his position. Botz v. Bridger Canyon Planning & Zoning Comm’n, 2012 MT 262, ¶ 46, 367 Mont. 47, 289 P.3d 180 (citing In re Estate of Bayers, 1999 MT 154, ¶ 19, 295 Mont. 89, 983 P.2d 339). Because McCulley has failed to develop any legal argument, authority or analysis for her claim of fraud, we do not address the argument further. We therefore affirm the District Court order of summary judgment in favor of ALTC on the issue of fraud. Claims Against U.S. Bank ¶21 We now turn to McCulley’s various claims against U.S. Bank. McCulley alleges the Bank engaged in negligence, fraud, breach of contract, breach of the covenant of good faith and fair dealing, and infliction of emotional distress. To a significant extent, McCulley attempts throughout her arguments to blame the Bank for the actions of ALTC. The District Court rejected this proposition, as do we. McCulley appeals only the District 10 Court’s rulings pertaining to breach of contract and the covenant of good faith and fair dealing, negligence, and fraud. We address her claims against the Bank in turn. ¶22 Turning first to McCulley’s allegation of breach of contract, McCulley’s sole argument in her Motion for Summary Judgment was that defendants ALTC and the Bank breached the contracts “by failing to abide by the terms asserted therein, and rendered the contract void by substantial alterations of the deed.” She opined that ALTC and the Bank had “significantly altered” enforceable contracts rendering them unusable. The District Court concluded that the Bank had “nothing to do with ALTC’s alteration of the usage restriction change on the Deed of Trust.” As a result, the District Court ruled that “[b]ecause US Bank did not alter the usage restriction on the Deed of Trust, US Bank did not breach its contract with McCulley.” We agree with the District Court. Further, we observe that the actual loan contracts were not breached. McCulley signed multiple documents at the closing, comprised of close to 100 pages of fine print. In the three places in the documents where the term of the loan was actually set forth, a maturity date of “12-16-07” is reflected. Therefore, notwithstanding the potential viability of other claims against the Bank, the Bank cannot be said to have breached the written contracts. ¶23 McCulley also argues on appeal that the Bank breached “the implied covenant of good faith and fair dealing as well as its duty of ‘honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.’ ” We reject this argument because it was not presented in the District Court. While McCulley mentioned “implied good faith and fair dealing” in passing, her argument in the District Court focused on her contention that the Bank participated with ALTC in revising the Deed of Trust, a theory 11 for which there is no factual support whatsoever. This Court generally refuses to address a changed legal theory on appeal because it would be “fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider.” Mt. W. Bank, N.A. v. Glacier Kitchens, Inc., 2012 MT 132, ¶ 13, 365 Mont. 276, 281 P.3d 600. As the District Court correctly ruled based upon the legal theory presented by McCulley, we affirm the court on the issue of the Bank’s breach of contract. ¶24 As to McCulley’s claim of negligence against the Bank, McCulley argued to the District Court that the defendants owed her a duty of care when preparing her loan documents and in assuring the accuracy of the documents, and that both ALTC and the Bank breached their duty by failing to assure the accuracy of the documents and in performing their duties in good faith. Again, as noted by the District Court, the Bank owed a duty to draw up the loan documents but there was no evidence that the Bank had anything to do with the alteration of the Deed of Trust. The District Court therefore held that McCulley’s negligence claim against the Bank failed. ¶25 On appeal, McCulley argues that a fiduciary duty arose between her and the Bank when the Bank “became an advisor to [her] by substituting a short-term . . . loan for the mortgage for which she applied.” She claims the Bank “owed her a fiduciary duty to disclose to her the full terms of the loan that it unilaterally designed to get her business and the short-term in which she would need to pay off the total principal.” She further asserts that the Bank breached its fiduciary duty in providing her with a loan “designed for her to fail in the first place.” 12 ¶26 McCulley did not argue in the summary judgment proceedings that the Bank became an “advisor” to her and that this caused a fiduciary duty to arise. For the reason explained above, we decline to address this legal theory for the first time on appeal. Mt. W. Bank, ¶ 13. We therefore affirm the District Court’s ruling that there existed no genuine issues of material fact as to McCulley’s claim that the Bank was negligent in its dealings with her. ¶27 Finally, we address McCulley’s claim that the Bank committed fraud by engaging in “bait and switch” tactics to change her approved 30-year residential mortgage to an 18-month balloon construction loan without her knowledge. She argued to the District Court that the defendants initially represented to her that she was getting a residential loan on a residential property. She further asserted that ALTC and the Bank “knowingly made false representation as to the use and description of the property,” and that the Bank referred to the loan “as a tradition [sic] mortgage in every document received by them.” ¶28 The District Court found that McCulley failed to state facts supporting each of the nine elements of fraud. It reasoned that there was no admissible evidence in the record to support a fraud claim against the Bank in that the Bank made no changes to the legal description or use description of the Condo in the Deed of Trust. ¶29 On appeal, the Bank argues that McCulley predicates her fraud claim on her belief that the Bank altered the Deed of Trust after she signed it, and because it did not, McCulley’s claim fails. It further asserts that McCulley “has not and cannot offer facts to support all nine elements of fraud,” and therefore the District Court’s decision should stand. 13 ¶30 McCulley argues that the Bank was in possession of the Buy-Sell Agreement wherein McCulley indicated that the zoning determination was a condition of purchase; therefore, the Bank should have informed her from the beginning that the commercial zoning of the property would preclude her from obtaining the residential 30-year mortgage for which she applied. She asserts that had she been provided this information, she would not have proceeded with the purchase transaction. ¶31 McCulley further argues that the Bank untruthfully claimed to have sent her the “letter” dated May 26, 2006, “outlining the terms of her loan” and explaining that she was getting an 18-month consumer bridge loan in the amount of $300,000. McCulley adamantly denies ever having received such a document. She correctly notes that this ostensible “letter” is formatted not as personal correspondence to her, but rather as an interoffice memorandum. She further points out that the terms of this ostensible letter are wholly contrary to the terms of the Truth in Lending Statement and Good Faith Estimate documents sent to her by the Bank the day before, setting forth the terms and conditions of a 30-year residential mortgage. ¶32 To establish a prima facie case for fraud, McCulley must establish: (1) a representation; (2) the falsity of that representation; (3) the materiality of the representation; (4) the speaker’s knowledge that the representation is false; (5) the speaker’s intent that the representation will be relied upon by the hearer to his or her detriment; (6) the hearer’s ignorance of the representation’s falsity; (7) the hearer’s reliance upon the truth of the representation; (8) the hearer’s right to rely upon the representation; and (9) the hearer’s consequent and proximate injury or damages caused 14 by their reliance on the representation. In re Adoption of S.R.T., 2011 MT 219, ¶ 16, 362 Mont. 39, 260 P.3d 177. ¶33 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. As noted herein, the documents prepared by the Bank and signed by McCulley did in three locations reference an 18-month loan as opposed to a 30-year loan. However, this factor does not necessarily preclude McCulley from presenting her fraud claims, as § 28-2-905(2), MCA, provides that the statute “does not exclude other evidence of the circumstances under which the agreement was made or to which it relates . . . or other evidence to explain an extrinsic ambiguity or to establish illegality or fraud.” ¶34 McCulley testified that she had no idea that the Bank was extending only an 18-month commercial loan instead of a 30-year residential loan. Along with her realtor, she attended the closing just three weeks after applying for her loan and receiving documents from the Bank outlining the terms of the 30-year mortgage. Both McCulley and her realtor swore under oath that no mention was made at the closing of the fact that she was receiving an 18-month commercial loan, and that they both assumed that she was closing on the 30-year residential loan as previously contemplated. In fact, she asserts that she was unaware that she had received an 18-month loan until the Bank notified her that her balloon payment was coming due in December 2007. ¶35 In light of the foregoing chronology of events, and in particular noting McCulley’s arguably legitimate contention that the May 26 “letter” was not a letter to her at all, we 15 cannot conclude that there is no genuine issue of material fact relative to McCulley’s claim of fraud on the part of the Bank. McCulley maintains that the Bank sent her documents outlining the terms of a 30-year residential mortgage and that it closed on the loan not three weeks later without a mention that the terms of the loan were radically different than those initially agreed to between the parties.2 Although inartfully, McCulley has set forth sufficient facts to raise a genuine issue of whether a false and material representation may have been made to her, that she acted upon it in ignorance of the true facts, and that the Bank intended her to do so, resulting in damages. She supported these claims with testimony in her deposition that she never received the “letter” and that the Bank did not explain to her the change in the terms of her loan. It bears repeating that summary judgment is precluded in cases in which genuine issues of material fact exist. Schmidt, ¶ 26. ¶36 For these reasons, we reverse the District Court’s order of summary judgment in favor of the Bank on the issue of fraud and remand the matter to the District Court for further proceedings. ¶37 Finally, we note that McCulley claims she sustained damages as a result of the Bank’s alleged fraud, including damages for emotional distress. The District Court can address these claims on remand. CONCLUSION 2 U.S. Bank Vice President Steve Fuert provided an affidavit in which he stated it is the Bank’s procedure to explain the terms of the loan documents before they are executed, and that there is nothing in the file to indicate these procedures were not followed. 16 ¶38 We affirm the District Court’s grant of summary judgment to ALTC and the court’s grant of summary judgment to U.S. Bank as it pertains to the issues of breach of contract and negligence. We reverse the court’s summary judgment ruling in favor of the Bank as it pertains to McCulley’s allegation of fraud and remand this issue and the issue of damages to the District Court for further proceedings. /S/ PATRICIA COTTER We concur: /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ LAURIE McKINNON /S/ BETH BAKER | April 9, 2013 |
8fde8875-405e-47a4-bd2c-d6a013fd7bb4 | Marriage of Rahn | 2013 MT 19N | DA 12-0385 | Montana | Montana Supreme Court | DA 12-0385 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 19N IN RE THE MARRIAGE OF: CARI RAHN, n/k/a CARI CANTWELL, Petitioner and Appellee, and DUSTIN RAHN, Respondent and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DR 03-1025 Honorable G. Todd Baugh, Presiding Judge COUNSEL OF RECORD: For Appellant: Dustin Dumont Rahn (self-represented), Deer Lodge, MT For Appellee: Jill Deann LaRance, Kathryn S. Syth, LaRance & Syth, P.C., Billings, MT Submitted on Briefs: November 14, 2012 Decided: January 29, 2013 Filed: __________________________________________ Clerk January 29 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 Dustin Rahn appeals from an order entered by the Thirteenth Judicial District Court, Yellowstone County, denying his motion to reduce child support payments. We affirm. ¶3 On September 4, 2003, the District Court entered a final decree of dissolution in the marriage of Dustin Rahn (Dustin) and Cari Cantwell (Cari). The parties have one minor child together. The final decree provided that Dustin would pay $669 per month in child support, as established by the Montana Child Support Enforcement Division (CSED). This amount was modified to $358 per month on December 20, 2005. ¶4 In 2006, Dustin was sentenced to prison. Six years later, on May 15, 2012, Dustin filed a motion to reduce his child support payments. In his motion, Dustin asserted that he was unable to pay the $358 per month in child support and was $24,000 in arrears. He maintained he puts 50% of his prison wages toward child support, which he claimed prevented him from being able to save any money and prepare for a successful re-entry into society when he leaves prison. Dustin asked the court to reduce his monthly child support payment and apply it retroactively to the date he began his prison sentence. ¶5 In response to Dustin’s motion, Cari relied on § 40-4-208(2)(b)(i), MCA, and Mooney v. Brennan, 257 Mont. 197, 848 P.2d 1020 (1993), to argue against a modification in child 3 support. She stated that pursuant to Montana law, incarceration is not a changed circumstance “so substantial and continuing . . . as to make an existing child support order ‘unconscionable,’” and a modification is therefore not permitted. Further, Cari challenged Dustin’s contention that he paid child support on a monthly basis, and attached a document from the CSED Payment Information website that indicated Dustin had paid child support on only one occasion since 2008. Finally, Cari claimed the motion was frivolous and therefore requested costs and attorney’s fees. ¶6 On June 4, 2012, the District Court denied Dustin’s motion to reduce his child support payments. In its order, the court explained that “being in prison is not a sufficient reason to reduce one’s child support obligation.” The court did not award Cari costs and attorney’s fees. Dustin appeals. ¶7 We review a district court’s decision regarding modifications to child support to determine whether the court abused its discretion. In re Marriage of Kovash, 270 Mont. 517, 521, 893 P.2d 860, 863 (1995) (citing In re Marriage of Hill, 265 Mont. 52, 57, 874 P.2d 705, 707 (1994)). We review a district court’s conclusions of law to determine whether the court’s interpretation of law was correct. Marriage of Kovash, 270 Mont. at 521, 893 P.2d at 863 (citing In re Marriage of Barnard, 264 Mont. 103, 106, 870 P.2d 91, 93 (1994)). ¶8 Section 40-4-208, MCA, permits modification of a decree of child support in certain circumstances. Of relevance to the present case is § 40-4-208(1), MCA, which generally prohibits retroactive modification of a child support obligation. Specifically, it states that 4 child support can be modified “only as to installments accruing subsequent to actual notice to the parties of the motion for modification.” Further, § 40-4-208(2)(b)(i), MCA, provides: (b) . . . whenever the decree proposed for modification contains provisions relating to maintenance or support, modification . . . may only be made: (i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable; The burden of demonstrating both substantial and continuing change, and unconscionable terms, is on the moving party. In re Marriage of Damschen, 2011 MT 297, ¶ 22, 363 Mont. 19, 265 P.3d 1245 (citations omitted). ¶9 In Mooney, we determined that incarceration does not constitute a change in circumstances so substantial and continuing as to make the terms of a child support order based upon pre-incarceration income unconscionable. Mooney, 257 Mont. at 201, 848 P.2d at 1023. There, a district court reduced a father’s child support payments once he was incarcerated, determining that his incarceration met the requirements of § 40-4-208(2)(b)(i), MCA. Mooney, 257 Mont. at 199, 848 P.2d at 1021. We reversed the district court’s decision, reasoning that the father made the choice to commit the crime which resulted in his imprisonment—it was not an involuntary change in circumstances. Mooney, 257 Mont. at 200, 848 P.2d at 1022. Further, we stated that the obligor should not profit by his criminal conduct at the expense of his children. Mooney, 257 Mont. at 201, 848 P.2d at 1023. Therefore, we determined incarceration does not meet the requirements of § 40-4- 208(2)(b)(i), MCA, and the father’s pre-incarceration income should be imputed to him. Mooney, 257 Mont. at 202, 848 P.2d at 1024. 5 ¶10 On appeal, Dustin does not challenge § 40-4-208, MCA, or our holding in Mooney. He cites no authority in his brief, and instead only reiterates his concerns about his increasing debt and the challenges it will present once he is released from prison. He requests “simply a reduction in [my] child support payment and accompanying debt so as to reduce the financial stress sure to [o]ccur upon [my] release from prison.” ¶11 This case is controlled by settled Montana law which the District Court correctly interpreted. We conclude the District Court’s denial of Dustin’s motion to modify his child support payments was not an abuse of discretion. ¶12 Cari argues that she is entitled to attorney’s fees on appeal, pursuant to M. R. App. P. 19(5). We conclude fees are not appropriate in this case and therefore deny Cari’s request. ¶13 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. ¶14 Affirmed. /S/ Michael E Wheat We Concur: /S/ Patricia O. Cotter /S/ Brian Morris /S/ Beth Baker /S/ Jim Rice | January 29, 2013 |
ea25369a-8639-4fde-b4f7-8ec97cee3380 | Wohl v. City of Missoula | 2013 MT 46 | DA 11-0490 | Montana | Montana Supreme Court | DA 11-0490 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 46 GLEN AND JOHANNA WOHL, et al., Plaintiffs, Appellees and Cross-Appellants, v. CITY OF MISSOULA and JOHN DOES 1-20, Defendants, Appellants, and Cross-Appellees. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 05-389 Honorable Edward P. McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Martin S. King; Worden Thane P.C.; Missoula, Montana Jim Nugent; Susan Aaberg Firth; City Attorney’s Office; Missoula, Montana For Appellee: Thomas C. Orr; P. Mars Scott Law Offices; Missoula, Montana Submitted on Briefs: September 12, 2012 Decided: February 26, 2013 Filed: __________________________________________ Clerk February 27 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Plaintiffs are a group of landowners (Landowners1) who own properties abutting South Avenue in the City of Missoula. The instant lawsuit arose out of a dispute between Landowners and the City concerning the width of the public right-of-way constituting South Avenue. Following a bench trial, the Fourth Judicial District Court, Missoula County, determined that the right-of-way is 60 feet wide. Therefore, because the City’s recent improvements to South Avenue extend beyond this 60-foot parameter, the District Court concluded that the City had effected a taking of property. The District Court awarded Landowners compensation for the taking, plus a portion of their requested costs and attorney’s fees. The City now appeals, and Landowners cross-appeal. ¶2 We consider the following issues: 1. Whether the District Court erred in determining that the City’s right-of-way constituting South Avenue is limited to 60 feet in width. 2. Whether Landowners are entitled to compensation for a taking of property. 3. Whether the District Court applied an incorrect measure of compensation. 4. Whether Landowners may recover their costs and attorney’s fees. 5. Whether the District Court abused its discretion in denying Landowners “fees for fees” and in directing counsel not to pass certain fees on to his clients. 6. Whether the District Court abused its discretion in denying Landowners damages and fees under 42 U.S.C. §§ 1983 and 1988. We affirm as to Issues 1, 2, 4, and 6. We reverse as to Issue 3, affirm in part and reverse in part as to Issue 5, and remand for further proceedings on these two issues. 1 The named plaintiffs are Glen and Johanna Wohl, David and Tammy Edgerton, Kenneth and Elaine Chilcote, Sergio E. Pelayo, R.J.M. Real Property, LLC, Murphy Rental Properties, LLC, George Hettman and Gary Crerar, Thomas N. Marlowe, James R. and Janet A. Flanders, Guy A. and Robin R. Kautz, and Doug Frandsen. 3 BACKGROUND ¶3 At the outset, it is helpful to explain how the land in question is situated. Like other western states, land in Montana is divided into tracts called townships, each of which is six miles square. Townships, in turn, are subdivided into 36 numbered tracts called sections, each of which is one mile square. See Yellowstone River, LLC v. Meriwether Land Fund I, LLC, 2011 MT 263, ¶¶ 6-7, 362 Mont. 273, 264 P.3d 1065. Diagram I depicts a standard township of 36 sections. DIAGRAM I A township’s location is identified relative to an east-west base line and a north-south principal meridian. Yellowstone River, ¶ 6. The disputed land in this case is located in Sections 29 and 32 of Township 13 North, Range 19 West, Montana Principal Meridian. ¶4 South Avenue runs in an east-west direction on the south section line of Section 29 (which is also the north section line of Section 32). At issue is the one-half-mile segment of South Avenue between Section 29’s southwest corner and south quarter corner. For clarity, a quarter corner is the point on a section line midway between the two section 1 mile 6 miles 6 5 4 3 2 1 7 8 9 10 11 12 18 17 16 15 14 13 19 20 21 22 23 24 30 29 28 27 26 25 31 32 33 34 35 36 4 corners. See Joyce Palomar, Patton and Palomar on Land Titles vol. 1, § 116, 296-97 (3d ed., West 2003); Walter G. Robillard & Lane J. Bouman, Clark on Surveying and Boundaries § 9.13, 248 (7th ed., Lexis Law 1997). This portion of South Avenue is located between the intersection with Reserve Street (on the west) and the intersection with Johnson Street (on the east). Diagram II shows the general layout of the streets in this area (not to scale). The relevant portion of South Avenue is shaded.2 DIAGRAM II ¶5 This area was part of Missoula County until the 1980s, when the City of Missoula began annexing various portions of it. The City annexed the South Avenue right-of-way in 1989. The City considers South Avenue a “principal arterial.” In the mid-1990s, the 2 Diagram II and Diagram V (further below) are not included in the record, but they represent the layout of streets and blocks according to the diagrams that are included in the record. The remaining diagrams below are excerpts from exhibits contained in the record. Some labeling has been added for clarity. Reserve Street ↑ N Eaton Street Schilling Street Kemp Street Johnson Street Clark Street Margaret Street ←South Avenue → • • (Section Line ) Sussex Avenue Livingston Avenue 29 32 30 29 31 32 (Section Line ) (Quarter Corner ) 5 City updated its urban area transportation plan to address issues of congestion citywide and to encourage other modes of transportation, such as walking, bicycling, and public transit. In conjunction with this plan, the City adopted the South Avenue Improvement Project, which contemplated the expansion of South Avenue from a two-lane rural road into a three-lane urban road with a center turn lane, bicycle lanes, curbing, and sidewalks. The question thus arose as to the width of the South Avenue right-of-way. ¶6 The portion of South Avenue between Reserve Street and the south quarter corner of Section 29 was created incrementally through four subdivision plats, each of which contains a certificate dedicating to the public the avenues, streets, and alleys depicted on the plats. These four plats were surveyed and recorded between 1904 and 1911. On the face of the plats, South Avenue appears to be 60 feet wide and centered on Section 29’s south section line—i.e., a 30-foot-wide strip along the north side of the section line and a 30-foot-wide strip along the south side of the section line. The City believed, however, that the depictions on the plats might not be true to the monuments and boundary lines established in the field by the original plat surveyors. Indeed, the City believed that “irregularities” existed throughout Missoula in the widths of rights-of-way along section lines due to the manner in which subdivisions in the area had been surveyed and platted over the years. The City, therefore, hired WGM Group, Inc., an engineering, surveying, and planning firm in Missoula, to prepare a survey retracing the boundaries of the City’s South Avenue right-of-way. ¶7 In contrast to an original survey, where the surveyor creates boundaries in the first instance and leaves behind evidence for a subsequent surveyor to find, a retracement 6 seeks to ascertain the boundaries established by the original survey by means of locating and recovering on the ground the remains of the evidence left by the original surveyor. The retracing surveyor’s sole function is to “trace the footsteps” of the original surveyor; he may not establish new corners or boundary lines, nor may he correct errors of the original surveyor. See Vaught v. McClymond, 116 Mont. 542, 550, 155 P.2d 612, 616 (1945); Walter G. Robillard & Donald A. Wilson, Brown’s Boundary Control and Legal Principles § 10.4, 268 (6th ed., John Wiley & Sons 2009) (citing Rivers v. Lozeau, 539 So. 2d 1147, 1151 (Fla. 5th Dist. App. 1989)); see also Admin. R. M. 24.183.1101(1)(c). ¶8 Thomas McCarthy, a registered land surveyor with WGM Group, conducted the retracement of South Avenue. He examined the four aforementioned subdivision plats and then attempted to locate monuments left in the ground by the original surveyors. The first plat is the R.M. Cobban Orchard Homes plat, which O.C. Finkelnberg surveyed in 1904 and the Missoula County Commissioners examined and approved in 1905. It shows the subdivision of land in the west halves of Sections 29 and 32 into lots and streets. There are approximately 90 numbered lots and 10 streets. The plat depicts South Avenue running symmetrically over the south section line of Section 29, between the southwest section corner and the south quarter corner of that section. A dimension of “60” appears over South Avenue near the section corner, and a dimension of “30” appears in the northern strip of South Avenue near the quarter corner. McCarthy concluded that this plat dedicated to the public the shaded areas shown below in Diagram III. With respect to South Avenue, the dedication included 30 feet of right-of-way along the north side of the section line, plus 30 feet of right-of-way along part of the south side of the section 7 line. The reason for the gaps in the south half of the dedication is that the grantors did not own those intervening tracts—i.e., the land between Lots 49 and 87, and the land east of Lot 87, as shown in Diagram III—and, thus, they could not dedicate those segments of the contemplated right-of-way. Those segments were dedicated in the subsequent plats. DIAGRAM III (McCarthy’s depiction of areas dedicated by the 1905 plat) ¶9 The second plat is the Car Line Addition plat, which Newton Orr and James H. Bonner surveyed in 1909 and the Missoula County Commissioners examined and approved that same year. An excerpt of the plat is shown here in Diagram IV. DIAGRAM IV (excerpt of 1909 plat) The certificate of dedication on the 1909 plat states that various R.M. Cobban Orchard Homes lots have been surveyed, subdivided, and platted into lots, blocks, avenues, streets, and alleys as shown on the Car Line Addition plat. In essence, the 1909 plat (this area not platted) SCHILLING ST. EATON ST. (SUSSEX) (LIVINGSTON) (this area not platted) (this area not platted) BLOCK 41 BLOCK 32 BLOCK 33 RESERVE ST. MARGARET ST. WORDEN ST. CLARK ST. SOUTH AVENUE ←section line section corner quarter corner (this area not platted) (this area not platted) EATON STREET RESERVE STREET 8 further subdivides (and renumbers) most of the lots created by the 1905 plat, including those designated as Lots 46, 47, 48, 49, 50, and 87 on Diagram III. The 1909 plat also subdivides previously unplatted land on the south side of South Avenue, designated as Blocks 32 and 33 on Diagram IV. The northern strips of Blocks 32 and 33 are dedicated as part of the South Avenue right-of-way. South Avenue is labeled 60 feet wide at two points, which are circled on Diagram IV. ¶10 Following the 1909 Car Line Addition plat, two gaps remained in the southern half of the South Avenue right-of-way corresponding with the unplatted areas on either side of Block 41 (which are labeled on Diagram IV). These final segments were dedicated in the third and fourth plats: the Car Line Addition No. 3 plat and the Supplementary Addition to Car Line Addition plat, respectively. James H. Bonner surveyed these plats in 1910, and the Missoula County Commissioners approved them that same year. Their certificates of dedication are dated 1910 and 1911. Consistent with the 1909 Car Line Addition plat, the depictions and land descriptions on the two 1910 Car Line Addition plats indicate that South Avenue is 60 feet wide and centered on the section line. ¶11 In the field, McCarthy located monuments marking Section 29’s southwest corner (at the Reserve Street intersection) and south quarter corner (near the Johnson Street intersection), both labeled on Diagram V below. These corners were first established and monumented by the General Land Office (GLO) in 1870. Between these two points, however, McCarthy did not find any other monuments in South Avenue associated with the R.M. Cobban Orchard Homes plat or the three Car Line plats. McCarthy explained at trial that the original subdivision surveyors were required to mark large stones with an 9 “X” and bury them one foot underground where street centerlines intersected. Although he found no such stones in South Avenue, McCarthy did find them in neighboring streets, including Sussex Avenue and Livingston Avenue. He used those monuments and certain distances stated on the Car Line plats to deduce South Avenue’s boundaries. ¶12 In this regard, the Car Line plats specify the depths of the lots along the north and south sides of South Avenue. Between South Avenue and the first parallel street to the north (Beck Avenue, later renamed Sussex Avenue), there is a strip of lots 125 feet deep, a 20-foot-wide alley, and another strip of lots 125 feet deep. Between South Avenue and the first parallel street to the south (Dorothy Avenue, later renamed Livingston Avenue), there is a strip of lots 127 feet deep, a 20-foot-wide alley, and another strip of lots 127 feet deep. Beck Avenue and Dorothy Avenue, like South Avenue, are labeled 60 feet wide. Diagram V shows these dimensions (not to scale). DIAGRAM V Reserve Street ↑ N Kemp Street Johnson Street Clark Street Margaret Street South Avenue (60') • • Beck (Sussex) Avenue (60') Dorothy (Livingston) Avenue (60') 29 32 30 29 31 32 20'-wide alley 20'-wide alley 127' 127' 125' 125' Eaton Street Schilling Street (Section Corner) (Quarter Corner ) 10 ¶13 Adding these measurements together, one would expect the distance between the centerline of Sussex Avenue and the centerline of Livingston Avenue to be 664 feet (30+125+20+125+60+127+20+127+30). As McCarthy found in the field, however, the distance is not 664 feet; it is greater. Moreover, the distance increases as one proceeds from east to west due to the fact that Sussex and Livingston are not precisely parallel to each other. At the quarter corner, the distance is approximately 683 feet, while at the intersection of South Avenue and Clark Street, the distance is approximately 695 feet. ¶14 What this means is that there is excess land between Sussex and Livingston— ranging from 19 feet to 31 feet in width—which is not accounted for by the dimensions shown on the face of the Car Line plats. Whether this land is or is not part of the South Avenue right-of-way is the crux of the dispute in this case. To be clear, there is no question that the 1905 R.M. Cobban Orchard Homes plat dedicated a 30-foot-wide strip on the north side of the section line, plus parts of a 30-foot-wide strip on the south side of the section line, and that the 1909 and 1910 Car Line plats completed the dedication of the 30-foot-wide strip on the south side of the section line. Landowners concede that their predecessors in interest dedicated a right-of-way which is 60 feet wide and centered on the section line. The issue is whether the excess land not accounted for by the measurements on the face of the Car Line plats supplemented this dedication, thus resulting in a right-of-way whose width varies and is greater than 60 feet. ¶15 McCarthy and Landowners’ expert, Robert Shelton, reached opposite conclusions on this question, ultimately prompting Landowners to file the instant lawsuit against the City in April 2005. The District Court determined that the dispute could not be resolved 11 on summary judgment, and the case accordingly proceeded to a four-day bench trial in 2008 and 2009. The District Court admitted numerous exhibits and heard testimony from eleven witnesses. McCarthy and Shelton both testified at length concerning the grounds for their differing opinions. ¶16 It is a generally accepted surveying principle that a subdivision plat, being merely a graphical representation of an underlying survey, must yield to evidence of the original survey found in the field. Robillard & Wilson, Brown’s Boundary Control and Legal Principles § 12.12, 370-71 (original monuments set on the ground control facts given on the plat, unless the intent is clearly otherwise). Hence, the dimensions of platted streets are controlled by the lines run and monumented in the field by the original surveyors, to the extent those lines are ascertainable. Robillard & Bouman, Clark on Surveying and Boundaries § 21.10, 705 (where there is a dispute as to the boundary line between a street and the abutting lots, the lines actually run on the ground control over the plat). Here, as noted, no original monuments were found in South Avenue other than the two GLO monuments marking the section corner and the quarter corner. Accordingly, McCarthy and Shelton endeavored to deduce the street’s dimensions from other available evidence. ¶17 McCarthy began with the premise that the excess land between Sussex and Livingston is too large to have been the result of systematic error (such as the use of a faulty measuring tool) or random error (such as the failure to adjust for a slope), and thus was either a blunder (such as the misrecording of a dimension) or a deliberate act. He surmised that Bonner, the primary surveyor of the Car Line plats, laid out rectangular and gridded systems of streets and blocks on each side of South Avenue—tying the 12 dimensions on the north side of South Avenue to Section 29’s south quarter corner, and the dimensions on the south side of South Avenue to Section 29’s southwest section corner—and left the excess land as part of South Avenue. McCarthy opined that Bonner intended the lots along each side of South Avenue to have uniform depths, even if this meant that South Avenue itself would end up with a varying width. He based this conclusion, in part, on the fact that Bonner used variable lot widths when closing on boundaries in an east-west direction but used uniform lot depths when closing on boundaries in a north-south direction. This can be seen in the lots along the north side of South Avenue in Block 29 of the 1909 plat, shown below in Diagram VI. Each lot is 25 feet wide except the westernmost lot closing on Eaton Street, which is 45.4 feet wide. Conversely, all of the lots are a uniform 125 feet deep; there are no varying depths. The other blocks along South Avenue have these same characteristics. DIAGRAM VI ¶18 McCarthy also based his conclusion (as to Bonner’s intent) on a perceived lack of detail on the Car Line plats concerning South Avenue’s width and position. For example, Bonner did not show Section 29’s southwest section corner, south quarter corner, and south section line on the 1909 plat. Moreover, although Bonner showed the quarter BLOCK 29 EATON ST. SCHILLING ST. SOUTH AVE. alley 45.4' 25' 25' 125' 20' 60' 13 corner on the first 1910 plat, and although the section line appears to be the centerline of South Avenue on that plat, McCarthy theorized that if Bonner truly intended the section line to serve this purpose, he would have set stones in South Avenue and specified variable depths for the abutting lots. McCarthy observed that there are no variable depths on the plats and that he had found no stones in South Avenue. Finally, although there is a 60-foot label in South Avenue near the southeast corner of Block 29 of the 1909 plat (as shown above in Diagram VI), McCarthy pointed out that this dimension is technically not possible at this particular location because the grantors did not own the land immediately to the south of the section line at that time. He thus decided to give the label no weight. ¶19 In sum, McCarthy’s opinion was that Bonner created lots and blocks of uniform depth on each side of South Avenue, that Bonner deliberately or accidentally left South Avenue “undeterminable as to its width,” and that South Avenue, therefore, “received any excess or deficiency.” Under this approach, the dedicated right-of-way is 60 feet wide from Reserve Street to Clark Street, where it jumps to 91 feet wide. From Clark Street to Section 29’s south quarter corner, the right-of-way tapers from 91 feet down to 79 feet in width. These boundaries are shown with bold lines in Diagram VII. DIAGRAM VII EATON SCHILLING KEMP MARGARET CLARK SOUTH AVE. SUSSEX LIVINGSTON RESERVE • • 14 ¶20 McCarthy depicted his conclusions regarding South Avenue’s dimensions on Certificate of Survey No. 5007 (COS 5007), which was filed with the Missoula County Recorder in November 1999. Thereafter, the City gave notice of its intent to proceed with improvements to the street within the dimensions shown on COS 5007. Applying those dimensions to existing conditions in the field, it was discovered that numerous features on Landowners’ properties—including porches, stoops, hedges, trees, fences, sidewalks, driveways, and building overhangs—were within the claimed right-of-way. This is illustrated on Diagram VIII, which is an excerpt of a 2002 aerial photograph. The bold line represents the right-of-way’s northern boundary under McCarthy’s analysis. DIAGRAM VIII ¶21 Skeptical about the City’s claim of a right-of-way wider than 60 feet, Landowners retained Shelton, a registered land surveyor, to examine COS 5007 and give his opinion regarding McCarthy’s conclusions. Shelton disagreed with McCarthy for essentially four reasons. First, contrary to McCarthy’s view that the width of South Avenue is undefined on the Car Line plats, Shelton pointed out that the certificates of dedication on the two 1910 plats describe the northeast corner of Block 40 (shown in Diagram IX below) as SOUTH AVENUE EATON STREET MARGARET STREET BLOCK 30 CAR LINE ADDITION 15 being 30 feet south of the section line. Furthermore, at this same location, the first 1910 plat shows a 30-foot dimension (circled on Diagram IX) within South Avenue on the north side of the section line. These facts together, Shelton observed, clearly show that South Avenue was contemplated to be 60 feet wide and centered on the section line. Indeed, the language in the certificates of dedication indicates that the grantors believed they were dedicating a 60-foot-wide right-of-way and were unaware of any excess land. Notably, McCarthy acknowledged under cross-examination that “if Bonner knew he had a blunder out there . . . and thought his client might make him re-hand-draft all of this thing here - okay - he might have not disclosed his blunder.” DIAGRAM IX ¶22 Second, Shelton disagreed with the significance McCarthy had attributed to the fact that no original stones were found in South Avenue. Shelton testified that he had personally seen the water main in South Avenue being replaced some years earlier, and he doubted that any monuments which Bonner might have set in South Avenue would have remained after that process. Notably, McCarthy conceded this point as well under cross-examination, acknowledging that Bonner could have set stones that later were obliterated or removed when the water main and utilities were installed. BLOCK 40 LIVINGSTON AVE. CLARK ST. (EATON ) 16 ¶23 Third, Shelton believed McCarthy’s approach was inconsistent with the principle that, “[i]n the absence of monuments, streets are given the width called for on the plat, regardless of excess or deficiency that may exist within a subdivision.” Robillard & Wilson, Brown’s Boundary Control and Legal Principles § 12.23, 381. Brown’s gives an illustration of this principle that is virtually identical to the present case. Original monuments were found two blocks apart, and the measured distance between them was 652 feet. The record distance, however, was 650 feet: a block 300 feet wide, plus a street 50 feet wide, plus another block 300 feet wide. No monuments were found within or along the street. In these circumstances, “[t]he proper procedure is to give blocks 1 and 2 exactly half of the surplus (1 foot each) and give the street exactly 50 feet, as called for by the map.” Robillard & Wilson, Brown’s Boundary Control and Legal Principles § 12.23, 381-82. McCarthy did just the opposite: He gave the blocks the exact depths called for by the plats and gave the surplus to the street. ¶24 Finally, Shelton believed McCarthy’s approach was inconsistent with § 1339, RCM (1907), which states that “[t]he width of all public highways, except bridges, alleys and lanes, must be sixty feet unless a greater or less width is ordered by the Board of County Commissioners on petition of the persons interested.” For all of these reasons, Shelton concluded that the excess land should not be placed in South Avenue. ¶25 In its findings of fact and conclusions of law, the District Court accepted McCarthy’s testimony as to the retracement of the Car Line plats and the existence of excess land between Sussex and Livingston. The court disagreed, however, with McCarthy’s opinion that the excess belongs in South Avenue. The court found that the 17 original subdivision plats, together with their associated certificates of dedication, clearly show that the grantors intended South Avenue to be 60 feet wide. The court observed there was no dispute that the 1905 R.M. Cobban Orchard Homes plat dedicated a portion of a 60-foot-wide right-of-way centered on the section line, and there was no evidence that the grantors of the 1909 and 1910 Car Line plats intended South Avenue’s location and width to be any different. The court further found that the City had shown no convincing evidence that the Missoula County Commissioners accepted a right-of-way wider than 60 feet, and that the City also had established no legal basis for disregarding Montana law, which generally requires the width of public roads to be 60 feet. Section 1339, RCM (1907). The District Court thus ruled that South Avenue is a symmetrical, 60-foot-wide public right-of-way centered on the section line. Correspondingly, the excess land lying outside this 60-foot parameter (shown with crosshatching on each side of South Avenue in Diagram X) is not part of the right-of-way. DIAGRAM X ¶26 By the time this case was tried in the District Court, the City had completed its improvements to South Avenue. (The construction took place in 2005.) The District Court found that these improvements exceeded the right-of-way’s 60-foot limits. EATON SCHILLING KEMP MARGARET CLARK SUSSEX LIVINGSTON RESERVE SOUTH AVE. 18 Accordingly, the second issue before the court concerned just compensation for the City’s taking of property for public use. Applying a value of $22.52 per square foot, the court awarded compensation where any of the City’s improvements encroached upon Landowners’ properties. This ultimately totaled close to $230,000. The District Court also awarded Landowners costs and attorney’s fees totaling $145,394. STANDARDS OF REVIEW ¶27 We review the factual findings of a trial court sitting without a jury to determine whether the findings are clearly erroneous. Larsen v. Richardson, 2011 MT 195, ¶ 25, 361 Mont. 344, 260 P.3d 103. A finding is clearly erroneous if it is not supported by substantial evidence, if the trial court has 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, ¶ 25. ¶28 We review an award of damages to determine whether the trial court abused its discretion. Hansen v. Granite County, 2010 MT 107, ¶ 43, 356 Mont. 269, 232 P.3d 409. “A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S. Ct. 2447, 2461 (1990); see also Jacobsen v. Allstate Ins. Co., 2009 MT 248, ¶ 17, 351 Mont. 464, 215 P.3d 649 (our review is plenary to the extent that a discretionary ruling is based on a conclusion of law). ¶29 A trial court’s decision as to whether legal authority exists to award attorney’s fees is a conclusion of law. Mungas v. Great Falls Clinic, LLP, 2009 MT 426, ¶ 42, 354 Mont. 50, 221 P.3d 1230. We review conclusions of law de novo, to determine whether 19 the court’s interpretation of the law is correct. Larsen, ¶ 25. If legal authority exists to award attorney’s fees, we review for abuse of discretion the court’s decision to grant or deny the fees. Hughes v. Ahlgren, 2011 MT 189, ¶ 10, 361 Mont. 319, 258 P.3d 439. DISCUSSION ¶30 Issue 1. Did the District Court err in determining that the City’s right-of-way constituting South Avenue is limited to 60 feet in width? ¶31 The City contends that the District Court erred in limiting the width of South Avenue to 60 feet. The City makes four arguments in this regard. A. Survey Monuments ¶32 The City first argues that the District Court failed to consider survey monuments on the ground. It is well established that, [i]n ascertaining the lines of land or in re-establishing the lines of a survey, the footsteps of the original surveyor, so far as discoverable on the ground, should be followed and it is immaterial if the lines actually run by the original surveyor are incorrect. In surveying a tract of land according to a former plat or survey, the surveyor’s only duty is to relocate, upon the best evidence obtainable, the courses and lines at the same place where originally located by the first surveyor on the ground. Vaught, 116 Mont. at 550, 155 P.2d at 616 (citations, emphasis, and internal quotation marks omitted); accord Larsen, ¶ 32; Robillard & Wilson, Brown’s Boundary Control and Legal Principles § 10.4, 268. As a corollary, it is also well settled that “what the original surveyor actually did by way of monumenting his survey on the ground takes precedence over what he intended to do as shown by his written plat of survey.” Tyson v. Edwards, 433 So. 2d 549, 552-53 (Fla. 5th Dist. App. 1983) (explaining the rationale for this rule); accord Price v. Mauch, 616 S.W.2d 738, 740 (Ark. App. 1981); Arnold v. 20 Hanson, 204 P.2d 97, 98-99 (Cal. App. 3d Dist. 1949); Phillippe v. Horns, 196 N.W.2d 382, 384 (Neb. 1972); DD&L v. Burgess, 753 P.2d 561, 564 (Wash. App. Div. 1 1988); Robillard & Wilson, Brown’s Boundary Control and Legal Principles § 12.12, 370-71. ¶33 Citing these principles, the City maintains that the District Court erroneously relied on “inaccurate” subdivision plats and certificates of dedication, rather than on the monuments set by Bonner, to determine South Avenue’s width. We disagree. The rule that a plat yields to original monuments on the ground presupposes that such monuments were set and have been located by the retracing surveyor. Here, had McCarthy found original monuments set by Bonner in South Avenue (or monuments set by others and known to perpetuate the positions of the original monuments set by Bonner), those monuments would have taken precedence over the plats in determining South Avenue’s position and dimensions. Tyson, 433 So. 2d at 552-53; Larsen, ¶¶ 44, 54 (discussing the priority of calls); § 70-20-201(2), MCA; Robillard & Bouman, Clark on Surveying and Boundaries § 21.10, 705. McCarthy did not find original monuments (or perpetuations of original monuments) set by Bonner in South Avenue, however. He found them in neighboring streets instead—Sussex and Livingston in particular. He then relied on those monuments and the measurements of lots and alleys stated on the face of the Car Line plats to deduce South Avenue’s dimensions. The District Court advised the City at the end of trial that it did not “question the surveying that was done by Mr. McCarthy.” The court accepted the Bonner monuments McCarthy had found in Sussex and Livingston and upon which he had relied in making his retracement. The court simply disagreed with McCarthy’s opinion as to where the excess land belonged. 21 ¶34 As explained, the measurements on the Car Line plats indicate that the distance between the centerlines of Sussex and Livingston is 664 feet. Yet, the actual distance— based on the original monuments McCarthy found in Sussex and Livingston—ranges from 683 feet to 695 feet. The issue is whether the excess land (ranging from 19 feet to 31 feet in width) belongs in South Avenue. Again, no original Bonner monuments that might answer this question have been found in South Avenue. In lieu of such evidence, the District Court relied on information provided on the Car Line plats. Contrary to the City’s supposition, this was not error. Robillard & Wilson, Brown’s Boundary Control and Legal Principles § 12.12, 371 (“When facts cannot be established on the ground— that is, the lines were never run on the ground or are lost completely—the data on the map are the best available evidence.”). B. Section 76-3-614, MCA ¶35 The City’s second argument is that the District Court “failed to address the legal ramifications of the retracement survey.” The City cites § 76-3-614, MCA, which states: When a recorded plat does not definitely show the location or size of lots or blocks or the location or width of any street or alley, the governing body may at its own expense cause a new and correct survey and plat to be made and recorded in the office of the county clerk and recorder. The corrected plat must, to the extent possible, follow the plan of the original survey and plat. The surveyor making the resurvey shall endorse the corrected plat referring to the original plat and noting the defect existing therein and the corrections made. The City expresses concern that if the District Court’s judgment in this case is affirmed, “it will kill the statutory retracement process for cities and governmental bodies charged with improvements along public highways.” We are not persuaded. 22 ¶36 Nothing in the District Court’s decision or in our decision today impugns the use of retracement surveys as a means to locate property boundaries. Section 76-3-614, MCA, authorizes a governing body to cause a new and correct survey and plat to be made and recorded. The statute does not say, however, that the resulting survey is immune from challenge by a landowner whose property rights are affected by the survey. Any retracement survey must be made in accordance with applicable legal rules and surveying standards. See e.g. § 76-3-614, MCA (“The corrected plat must, to the extent possible, follow the plan of the original survey and plat.”); Admin. R. M. 24.183.1104 (setting forth uniform standards for certificates of survey). The surveying treatise cited by the City in its briefs, and upon which McCarthy and Shelton both relied, recognizes that “[a] retracement of an original boundary is predicated on the evidence recovered and is always subject to collateral attack by others, even though the attackers have never conducted their own retracement.” Robillard & Wilson, Brown’s Boundary Control and Legal Principles § 14.17, 442. Here, Landowners presented evidence which called into question the correctness of McCarthy’s retracement. After finding that genuine issues of material fact existed, the District Court permitted the parties to present their respective cases at trial. The court then resolved the dispute based on the facts and law presented. That the court ultimately rejected McCarthy’s opinion about where the excess land in this particular circumstance should be placed does not “kill” the use of retracement surveys. C. Placement of the Excess ¶37 The City next argues that the District Court did not properly consider and apply surveying principles related to blunders and the placement of an excess or deficiency. 23 The general rule is that an error should be placed where the error occurs, if it can be ascertained. Robillard & Wilson, Brown’s Boundary Control and Legal Principles § 11.27, 340, § 12.26, 385. Thus, where the measured distance between found original monuments differs from the recorded distance between those monuments, the excess or deficiency should be placed where the mistake occurred. Robillard & Wilson, Brown’s Boundary Control and Legal Principles § 12.27, 385-86, § 12.39, 400. For example, assume that Block 1 and Block 2 are separated by B Street, and the record widths of Blocks 1 and 2 are 300 feet each. Original stakes have been found at the four corners of Block 1 and at the four corners of Block 2. Measurements reveal that Block 1 is actually 299 feet and Block 2 is actually 301 feet. There is thus a one-foot shortage in Block 1 and a one-foot surplus in Block 2. In these circumstances, B Street cannot be moved one foot over to give Blocks 1 and 2 each exactly the record 300-foot measurement. Rather, the errors are placed where they occurred: the one-foot shortage remains in Block 1 and is prorated among the lots in that block, and the one-foot surplus remains in Block 2 and is prorated among the lots in that block. Robillard & Wilson, Brown’s Boundary Control and Legal Principles § 12.29, 386-87. ¶38 Citing these principles, the City contends that the District Court was required to place the excess land in South Avenue, rather than in the lots that abut South Avenue. The difficulty with the City’s argument is that, unlike the above example where the original stakes found in the corners of Blocks 1 and 2 revealed the location of the original surveyor’s error, in the present case no original Bonner monuments have been found in South Avenue establishing whether Bonner’s mistake was in the dimensions he ascribed 24 to South Avenue or in the dimensions he ascribed to the abutting lots. To ascertain the location of Bonner’s mistake, therefore, it is necessary to evaluate the other available evidence. McCarthy and Shelton did just that, but arrived at different conclusions as to which dimensions shown on the plats are in error. ¶39 In this regard, the location of a boundary line on the ground is a question of fact. Robertson v. Lees, 189 S.W.3d 463, 469 (Ark. App. 2004); Snyder v. Haagen, 679 A.2d 510, 513 (Me. 1996); Gulas v. Tirone, 919 N.E.2d 833, 837-38 (Ohio App. 7th Dist. 2009). “[W]hen two competent surveyors disagree as to where a boundary line should be, the trial court’s determination as to which surveyor is correct depends mainly on each surveyor’s credibility and will not be reversed if there is reasonable support in the evidence for such a determination.” Wojahn v. Johnson, 297 N.W.2d 298, 303 (Minn. 1980); see also e.g. Funk v. Robbin, 212 Mont. 437, 442-43, 689 P.2d 1215, 1218-19 (1984) (applying this rule in reviewing a jury verdict). Here, the application of relevant surveying principles to the evidence presented at trial provides reasonable support for the District Court’s decision to accept Shelton’s placement of the excess. ¶40 One of the surveying principles cited by Shelton is directly on point. It states: “In the absence of monuments, streets are given the width called for on the plat, regardless of excess or deficiency that may exist within a subdivision. . . . [D]eficiency or excess cannot exist within a street except where the original monuments set by the original surveyor indicate otherwise.” Robillard & Wilson, Brown’s Boundary Control and Legal Principles § 12.23, 381-82. Brown’s explains that the “weight of reason” is against placing an excess or deficiency within a public way because 25 [b]efore the establishment of any subdivision, street widths that are acceptable to the public are determined by the governing agency, and the subdivision is accepted by the public agency on the condition that the streets are of a certain definite width. The size of lots is determined by the whims of the subdivider, the desires of the purchasers, and the minimum area requirements of the planning agency. The tendency of all subdividers is to make the streets of minimum width so as to have a maximum amount of land for lots. The streets are definite and fixed, whereas the lots are variable. Robillard & Wilson, Brown’s Boundary Control and Legal Principles § 12.23, 382-83. ¶41 Consistent with this principle, the Car Line plats, together with their certificates of dedication, show that the grantors contemplated South Avenue to be 60 feet wide and centered on the section line. South Avenue is plainly labeled 60 feet wide in two places on the 1909 plat, and the 1910 plats together describe and depict South Avenue as 60 feet wide and centered on the section line. There is no evidence that the grantors knew about the non-depicted excess land; but even assuming, for the sake of argument, that they were aware of the excess and that they intended to dedicate it as part of South Avenue, there is no convincing evidence that the Missoula County Commissioners intended to accept a right-of-way wider than 60 feet. See Eugene McQuillin, The Law of Municipal Corporations vol. 11A, § 33:61, 680-81 (3d ed., Thomson Reuters 2009) (“acceptance of a part [of the property dedicated] is not necessarily an acceptance of all”). ¶42 In discussing this point, the District Court cited the statutory requirement that “[t]he width of all public highways, except bridges, alleys and lanes, must be sixty feet unless a greater or less width is ordered by the Board of County Commissioners on petition of the persons interested.” Section 1339, RCM (1907), now codified at § 7-14-2112(1), MCA (2011). The City asserts, and we agree, that this statute does not 26 control the width of South Avenue. This Court has recognized that this statute was intended to apply only to public roads that were formally laid out by the official act of the proper public authorities and is not applicable to highways, roads, or lanes created by dedication or prescription. See State v. Portmann, 149 Mont. 91, 95-96, 423 P.2d 56, 58 (1967) (citing Mulch v. Nagle, 197 P. 421, 425 (Cal. App. 1st Dist. 1921) (interpreting a similar California statute)); see also Donovan v. Union Pac. R.R. Co., 177 N.W. 159, 160 (Neb. 1920). Nevertheless, § 1339, RCM (1907), does support the District Court’s inference that, absent any credible evidence to the contrary, the Missoula County Commissioners intended to accept a right-of-way having a uniform 60-foot width. ¶43 In sum, the depictions on the Car Line plats, the descriptions in the certificates of dedication, the surveying principles discussed above, and the statutory preference for public roadways of uniform 60-foot width all support the District Court’s determination that South Avenue is 60 feet wide and centered on the section line. D. Workability ¶44 The City’s final contention is that the District Court’s decision is unworkable. Two of the City’s arguments in this regard reiterate matters we already have addressed, namely, the ability of governing bodies to obtain retracement surveys under § 76-3-614, MCA, and the relevance of § 1339, RCM (1907). In addition to these two points, the City claims that the parameters of its right-of-way are “unknowable” because there is no surveyed centerline in South Avenue. We note, however, that McCarthy found GLO monuments marking the locations of Section 29’s southwest corner and south quarter corner. The District Court ruled that South Avenue is a symmetrical 60-foot-wide public 27 right-of-way “divided by the section corner located at the intersection of South Avenue and Reserve Street and the quarter corner located between Kemp and Johnson Street[s].” The City presents no credible reason why the parameters of this portion of South Avenue, the only right-of-way at issue in this case, are “unknowable.” ¶45 For the foregoing reasons, we hold that the District Court did not err in determining that the South Avenue right-of-way is limited to 60 feet in width. ¶46 Issue 2. Are Landowners entitled to compensation for a taking of property? ¶47 The City contends that the District Court, in ruling that the excess land is not part of South Avenue, effectively “enlarg[ed]” Landowners’ lots. The City argues that Landowners are not entitled to compensation for a taking of “land that was never deeded to the Plaintiffs and for which the Plaintiffs have never paid taxes.” We conclude that this argument fails for three reasons. ¶48 First, as stated in the District Court’s findings of fact, the parties stipulated that the fee ownership of lots abutting South Avenue runs from the alley centerline to the South Avenue centerline—meaning that the excess land is part of Landowners’ lots regardless, the only question being whether the excess land is, or is not, encumbered by the City’s right-of-way.3 Second, the City concedes that Landowners’ lots “have been described in all past deeds by reference to the Car Line plats.” The District Court found that the Car Line plats dedicated South Avenue with a 60-foot width centered on the section line. In 3 This stipulation was based on Montana law, which states that the owner of land bounded by a road, street, or highway is presumed to own to the center thereof, although the contrary may be shown. See § 4530, RCM (1907), now codified at § 70-16-202, MCA (2011); § 4626, RCM (1907), now codified at § 70-20-307, MCA (2011); Herreid v. Hauck, 254 Mont. 496, 499, 839 P.2d 571, 573 (1992). 28 so doing, the court did not “enlarge” Landowners’ lots; the court simply determined that the excess land—which the parties had stipulated is part of Landowners’ fee ownership— is not (and has never been) encumbered by the right-of-way. We have affirmed this determination under Issue 1. Third, the District Court did not enter any findings of fact concerning Landowners’ payment or nonpayment of taxes. Moreover, the City has not presented a cogent argument, with citations to legal authority, for the proposition that a landowner is not entitled to receive compensation for a taking of property that the landowner owns but on which the landowner allegedly has not been paying taxes. A party is responsible for developing legal analysis that supports its position on appeal. In re Marriage of Damschen, 2011 MT 297, ¶ 41, 363 Mont. 19, 265 P.3d 1245. ¶49 For these reasons, we reject the City’s argument that Landowners are not entitled to compensation for a taking of property. ¶50 Issue 3. Did the District Court apply an incorrect measure of compensation? ¶51 Landowners called Kraig Kosena, an MAI certified appraiser, to testify regarding the value of bare land in the vicinity of Landowners’ properties. Kosena testified that the land fronting South Avenue between Reserve Street and Johnson Street is zoned for commercial use. He discussed the sale of a vacant parcel that he considered to be comparable (for land-valuation purposes) to other properties in the area. This parcel, located on South Avenue between Kemp Street and Johnson Street, and measuring 16,875 square feet, sold for $380,000 on April 7, 2006—which equates to $22.52 per square foot. Kosena testified that this figure is “an excellent indicator of what the market was recognizing to be the value of property in that corridor at that time” (emphasis 29 added). He acknowledged, however, that this sale occurred approximately seven months after the South Avenue Improvement Project had been completed. He also conceded that property values were generally increasing in 2006 and, thus, “if you were going earlier in time, I think you would back off of that [$22.52 per square foot] sale price in an adjustment for time.” Finally, Kosena agreed that the completion of improvements to South Avenue “could” have been a factor causing the values of properties along the street to increase from 2005 to 2006. ¶52 The City called Tom Stuckey, who also is an MAI certified appraiser. Stuckey testified that the same 16,875-square-foot parcel that sold for $22.52 per square foot in April 2006 had sold for $15.41 per square foot a year earlier, in March 2005, just before the City began construction of the South Avenue improvements. Stuckey further testified that another parcel in the vicinity sold in March 2005 with a value of $15.00 per square foot for the bare land. When asked whether the March 2005 sales figures better reflected the value of land at the commencement of construction than the April 2006 figure, Stuckey answered in the affirmative, explaining that sales information which does not exist as of the effective date of a valuation “would be misleading because it would not reflect information available to the marketplace during that time period. . . . The best sales are the sales that have occurred as close to the date of valuation as possible.” ¶53 The District Court nevertheless accepted Kosena’s $22.52 figure for purposes of assessing compensation. The City contends this was error because the proper measure of compensation is the value of the property “at the time of the taking.” The City cites § 70-30-302(1), MCA, which provides that “the right to compensation is considered to 30 have accrued at the date of the service of the summons, and the property’s current fair market value as of that date is the measure of compensation . . . .” The City maintains that the proper measure here is $15.00 per square foot. ¶54 We agree with the City that the District Court erred, but we do not agree that § 70-30-302(1), MCA, is controlling. That provision is one of several statutes setting out the procedures in formal condemnation proceedings. See generally Title 70, chapter 30, parts 2 and 3, MCA. The City did not initiate formal condemnation proceedings in this case, however. Rather, based on its “good faith” belief that its right-of-way included the land in question,4 the City proceeded with the South Avenue improvements without first obtaining a condemnation order. See §§ 70-30-206, -309, MCA. ¶55 Where the government does not acquire privately owned land statutorily, but instead physically enters into possession or institutes regulations that restrict the land’s use, the owner has a right to bring an “inverse condemnation” action to recover the value of the land. U.S. v. 191.07 Acres of Land, 482 F.3d 1132, 1136 (9th Cir. 2007). “Such a suit is ‘inverse’ because it is brought by the affected owner, not by the condemnor. The owner’s right to bring such a suit derives from the self-executing character of the constitutional provision with respect to condemnation.” Kirby Forest Indus. v. U.S., 467 U.S. 1, 5 n. 6, 104 S. Ct. 2187, 2191 n. 6 (1984) (citation and internal quotation marks omitted); see also U.S. Const. amend. V (“private property [shall not] be taken for public use, without just compensation”); Mont. Const. art. II, § 29 (“Private property shall not 4 The District Court found “that the City of Missoula acted in good faith based on the information provided to them by Mr. Tom McCarthy” when it seized the strips of land at issue. 31 be taken or damaged for public use without just compensation . . . .”). While the instant lawsuit was not originally filed as an inverse condemnation action—Landowners initially sought to enjoin the City’s road-improvement operations along South Avenue—the question of injunctive relief soon became moot, and the District Court thus granted relief based on inverse condemnation principles. ¶56 “Although the concept of ‘just compensation’ is the same in traditional and inverse condemnation proceedings, the actions are sufficiently different so that procedures applicable to one type of action do not necessarily apply to the other.” KLK, Inc. v. U.S. Dept. of the Interior, 35 F.3d 454, 457 (9th Cir. 1994). One difference, relevant here, is that in a traditional condemnation, the land is valued at the time the condemnation proceeding occurs (specifically, in Montana, at the date of the service of the summons, § 70-30-302(1), MCA), while in an inverse condemnation action, just compensation is based on the value of the land at the time it is seized. KLK, Inc., 35 F.3d at 457 (citing U.S. v. Clarke, 445 U.S. 253, 258, 100 S. Ct. 1127, 1130 (1980)). Here, the City commenced physical occupation of, and thus seized, the land at issue in April 2005. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426, 102 S. Ct. 3164, 3171 (1982) (“a permanent physical occupation authorized by government is a taking”). Kosena conceded, however, that his $22.52-per-square-foot figure reflected the value of bare land in the South Avenue corridor in April 2006, not April 2005. He stated that “[i]f I were appraising something in there with an April 2005 date . . . , I think I could, with a reasonable degree of certainty, with market data, extrapolate a time adjustment.” Kosena did not provide a time-adjusted figure representing land values in April 2005. 32 ¶57 Landowners emphasize that we review an award of damages to determine whether the trial court abused its discretion. Hansen v. Granite County, 2010 MT 107, ¶ 43, 356 Mont. 269, 232 P.3d 409. “The abuse-of-discretion standard,” however, “includes review to determine that the discretion was not guided by erroneous legal conclusions.” Koon v. United States, 518 U.S. 81, 100, 116 S. Ct. 2035, 2048 (1996); see also Cooter & Gell, 496 U.S. at 405, 110 S. Ct. at 2461 (a court necessarily abuses its discretion if it bases its ruling on an erroneous view of the law). In applying a measure of compensation that did not reflect the value of Landowners’ land at the time the City seized it, the District Court based its ruling on an erroneous view of the law and thereby abused its discretion. We accordingly reverse the portion of the District Court’s judgment which specifies Landowners’ compensation for a taking of property and remand for further proceedings on this question, as detailed below in the Conclusion section. ¶58 Issue 4. May Landowners recover their costs and attorney’s fees? ¶59 The City contends that the District Court lacked authority to award Landowners their costs and attorney’s fees. The City notes that Montana follows the American Rule, under which a party in a civil action may not recover attorney’s fees absent a specific contractual or statutory provision. Hughes v. Ahlgren, 2011 MT 189, ¶ 13, 361 Mont. 319, 258 P.3d 439. The City admits that costs and attorney’s fees are recoverable in a condemnation action under § 70-30-305, MCA, but the City argues that Landowners have not met the requirements of this statute. In response, Landowners argue that they have satisfied § 70-30-305, MCA. In addition, they cite § 27-8-313, MCA, as authority for an award of fees in this case. We conclude that we need not address these statutory 33 arguments, however, because Article II, Section 29 of the Montana Constitution, upon which the District Court relied, provides the necessary authority. ¶60 Article II, Section 29 states in full: Eminent domain. Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into court for the owner. In the event of litigation, just compensation shall include necessary expenses of litigation to be awarded by the court when the private property owner prevails. Mont. Const. art. II, § 29 (emphasis added). The District Court observed in its findings of fact and conclusions of law that the City could have pursued condemnation proceedings to obtain the land needed for the planned improvements to South Avenue. Instead, although not acting in bad faith, the City nevertheless proceeded to take portions of Landowners’ properties for public use without compensation. In so doing, the City forced Landowners to commence this litigation to protect their property rights. They ultimately prevailed on their claim that the land seized by the City was not part of the City’s right-of-way. We agree with the District Court that, in these circumstances, Landowners are constitutionally entitled to the “necessary expenses of litigation,” Mont. Const. art. II, § 29, which include court costs and reasonable attorney’s fees. See Mont. Dept. of Hwys. v. Standley Bros., 215 Mont. 475, 482, 699 P.2d 60, 64 (1985); Rauser v. Toston Irrigation Dist., 172 Mont. 530, 543-45, 565 P.2d 632, 640-41 (1977). ¶61 The City further argues that it is not liable for costs and attorney’s fees unless its defense to this lawsuit was “frivolous” or “pursued in bad faith.” See § 25-10-711(1), MCA (providing, in relevant part, that in a civil action brought against a political subdivision of the State, the plaintiff is entitled to costs and attorney’s fees if the plaintiff 34 prevails and if the court finds that the political subdivision’s defense was “frivolous or pursued in bad faith”). The City notes that the District Court made no finding of frivolousness or bad faith on the part of the City. We conclude, however, that because the award of costs and fees in the present case is premised on an express provision of the Montana Constitution, § 25-10-711(1), MCA, is inapplicable. The general limitation on costs and fees in the statute does not apply in the face of the explicit constitutional directive for costs and fees in a case brought under Article II, Section 29. ¶62 The District Court awarded Landowners $115,352 in attorney’s fees, $25,132 in expert-witness fees, and $4,910 in allowable costs (all of which were incurred in the main litigation, as opposed to the “fees for fees” litigation discussed below in Issue 5). The District Court expressly found that awarding fees and costs totaling $145,394 “is a fair and reasonable award in this case.” Aside from arguing that the District Court lacked authority to make this award, the City presents no argument that the District Court abused its discretion as to the amount awarded. We accordingly affirm that award. ¶63 Issue 5. Did the District Court abuse its discretion in denying Landowners “fees for fees” and in directing counsel not to pass certain fees on to his clients? ¶64 In response to Landowners’ Bill of Fees and Costs, the City filed objections on the ground that not all of the claimed fees and costs were reasonable and necessary. The District Court held a hearing, at which time Landowners presented expert testimony from attorney Jon Beal. Thereafter, Landowners supplemented their Bill of Fees and Costs to include the expenses incurred in proving their underlying fees and costs. The City objected to this “fees for fees” request. 35 ¶65 The District Court found the City’s fees-for-fees objections “well-taken.” Citing Mont. Dept. of Hwys. v. McGuckin, 242 Mont. 81, 788 P.2d 926 (1990), Mont. Dept. of Transp. v. Slack, 2001 MT 137, 305 Mont. 488, 29 P.3d 503, and K&R Partn. v. City of Whitefish, 2008 MT 228, 344 Mont. 336, 189 P.3d 593, the District Court stated: The Court does not believe this case falls within the rare exception in which extraordinary circumstances justify an award of attorney fees expended by Plaintiffs’ counsel in proving the amount and reasonableness of his attorney fees. [Citations to McGuckin, Slack, and K&R Partnership.] It is also this Court’s opinion that recovery of attorney Jon Beal’s fees billed in the amount of $4,000.00 on the issue of the reasonableness of attorney fees claimed by Plaintiff’s counsel is not chargeable to the City as well. Furthermore, under the above cited cases, Plaintiffs’ counsel shall not pass this cost onto his clients, as attorney fees for proving the amount and reasonableness of attorney fees should be borne by the attorney and not his client or the other party. In their cross-appeal, Landowners contend that the District Court abused its discretion in rendering these rulings. ¶66 This Court has observed that the award of costs and attorney’s fees incurred in proving underlying litigation expenses in a condemnation action is “fraught with problems.” McGuckin, 242 Mont. at 85, 788 P.2d at 929. On one hand, the condemnor could object to every expense item claimed, even if all expenses claimed are reasonable, thereby forcing the landowner to incur additional expenses in securing his award and potentially denying the landowner a net recovery. This would be contrary to the policy underlying Article II, Section 29 “to make the landowner whole after the State takes his property.” McGuckin, 242 Mont. at 84, 85, 788 P.2d at 928, 929. On the other hand, the landowner and his counsel could make unreasonable and inflated expense claims that force the condemnor to object and lead to further litigation upon which a landowner’s 36 counsel can claim additional fees. This would place an unwarranted cost burden on the condemnor. McGuckin, 242 Mont. at 85-86, 788 P.2d at 929. ¶67 Given these concerns, the Court adopted two rules applicable to fees-for-fees situations in condemnation actions. First, the costs and attorney’s fees associated with proving the attorney’s fees incurred in the underlying litigation generally must be borne the landowner’s counsel. Neither the condemnor nor the landowner/client is required to pay this expense. McGuckin, 242 Mont. at 86-87, 788 P.2d at 929-30; Slack, ¶ 31. There is one “rare” exception to this rule: In order to achieve an equitable result in “extraordinary circumstances,” the district court in its sound discretion may require the condemnor to pay the expenses associated with proving the underlying attorney’s fees. McGuckin, 242 Mont. at 87, 788 P.2d at 930; see also Slack, ¶ 33 (“extraordinary circumstances” refers to “those circumstances in which the State’s objection to the condemnee’s fee claim is unreasonable”). Second, the costs and attorney’s fees associated with proving underlying litigation expenses other than attorney’s fees are chargeable to the client and to the condemnor. McGuckin, 242 Mont. at 87, 788 P.2d at 930; K&R Partn., ¶ 74. The decision to award such costs and fees is, again, within the sound discretion of the district court. McGuckin, 242 Mont. at 87, 788 P.2d at 930; K&R Partn., ¶¶ 73-75. ¶68 Landowners have not presented any persuasive argument for departing from these rules or for applying a different rule in inverse condemnation cases. Thus, with one exception discussed below, we conclude that Landowners have not demonstrated that the District Court’s fees-for-fees rulings should be reversed. The City’s objections to 37 Landowners’ underlying attorney’s fees were not unreasonable; indeed, the District Court sustained some of the City’s objections. The District Court acted within its considerable discretion, therefore, when it concluded that this case is not one of the “extraordinary circumstances” we were referring to in McGuckin, and it properly denied an award of costs and fees incurred in proving the amount of the underlying attorney’s fees. See Slack, ¶ 33. Furthermore, with respect to Landowners’ underlying litigation expenses other than attorney’s fees, the District Court found the City’s objections to Landowners’ costs and fees incurred in proving these expenses to be “well-taken.” This was a discretionary call by the District Court, and Landowners have not persuaded us that the court abused its discretion. ¶69 Hence, in the present case, Landowners and their counsel must bear the costs and fees incurred in proving the costs and fees of the underlying litigation. Under McGuckin, 242 Mont. at 87, 788 P.2d at 930, Landowners’ counsel may not charge his clients with the expense of proving the underlying attorney’s fees, but he may pass on to his clients the expense of proving the underlying litigation expenses other than attorney’s fees. Landowners assert that the District Court did not draw this distinction in its order. They point out that their expert, Beal, testified not only as to the reasonableness of their underlying attorney’s fees, but also as to the reasonableness of their other underlying litigation expenses. Yet, the District Court barred counsel from passing on to his clients any of Beal’s $4,000 fee. We agree with Landowners that McGuckin does not prohibit Landowners’ counsel from charging his clients for the portion of Beal’s fee that relates to Beal’s analysis and testimony regarding the underlying litigation expenses other than 38 attorney’s fees. We thus vacate the portion of the District Court’s judgment which prohibits Landowners’ counsel from passing litigation expenses on to his clients and remand for further proceedings on this issue, as detailed below in the Conclusion section. ¶70 Issue 6. Did the District Court abuse its discretion in denying Landowners damages and fees under 42 U.S.C. §§ 1983 and 1988? ¶71 In Count 4 of their Amended Complaint, Landowners asserted a claim under 42 U.S.C. § 1983 to vindicate various constitutional and statutory rights. Specifically, they alleged that the City had arbitrarily and illegally taken their property for public use without compensation and due process of law, in violation of the Fifth and Fourteenth Amendments to the United States Constitution, Article II, Sections 3, 17, and 29 of the Montana Constitution, and § 70-30-101, MCA. Landowners contend on appeal that the District Court abused its discretion by failing to award them damages and attorney’s fees under 42 U.S.C. §§ 1983 and 1988, respectively, for the City’s alleged violations “of their State and Federal Constitutional rights.” We disagree. ¶72 As an initial matter, Landowners are not entitled to damages or attorney’s fees under §§ 1983 and 1988 for violations of their rights under state law. Ybarra v. Bastian, 647 F.2d 891, 892-93 (9th Cir. 1981). Further, as to Landowners’ claims under federal law, the Fifth Amendment’s Takings Clause (made applicable to the States through the Fourteenth Amendment, Dolan v. City of Tigard, 512 U.S. 374, 383-84, 114 S. Ct. 2309, 2316 (1994)) proscribes not the taking of property, but taking without just compensation. Williamson County Regl. Plan. Commn. v. Hamilton Bank, 473 U.S. 172, 194, 105 S. Ct. 3108, 3120 (1985). Here, the District Court awarded Landowners just compensation— 39 including reasonable and necessary attorney’s fees, expert-witness fees, and court costs— for the taking of their property. Landowners fail to explain what further compensation the Fifth Amendment’s Takings Clause would provide them for the City’s physical occupation of their land. Cf. W. Linn Corp. Park LLC v. City of W. Linn, 534 F.3d 1091, 1100 (9th Cir. 2008) (if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the federal Takings Clause until the property owner has used the procedure and been denied just compensation). ¶73 Finally, regarding the manner in which the City acted, Landowners argued in the District Court that there would be no deterrence against future transgressions unless the City was forced to pay additional damages for civil rights violations. The District Court declined to award such damages, however, because the City “did not act in bad faith in relying on its expert’s opinion at the time that the City owned the strips of land at issue,” and because “public policy issues weigh against the conclusion that the taxpayers should be held accountable for § 1983 damages under the facts of this case.” Landowners have not shown that the District Court’s findings are clearly erroneous or that the court abused its discretion in declining to award damages beyond the just compensation required by Article II, Section 29. CONCLUSION ¶74 We affirm the District Court on all but two issues. First, having concluded under Issue 3 that the District Court applied an incorrect measure of compensation, we reverse the court’s assessment of Landowners’ damages for the City’s taking of their land and remand for recalculation. The District Court must apply a measure of compensation that 40 reflects, as closely as possible, the value of Landowners’ land at the time it was seized, i.e., in April 2005. In its discretion, the court may accept further evidence on this issue. Second, having concluded under Issue 5 that the District Court erroneously barred Landowners’ counsel from passing on to his clients the costs and fees incurred in proving underlying litigation expenses other than attorney’s fees, we vacate this portion of the court’s judgment and remand for a determination of the costs and fees incurred in proving those underlying expenses (which counsel may pass on to his clients). ¶75 Affirmed in part, reversed in part, and remanded for further proceedings. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ JIM RICE /S/ BRIAN MORRIS | February 27, 2013 |
b2b9f218-d861-4c8f-85ef-52f91f5f8d97 | Public Land Water v. Jones | 2013 MT 31 | DA 12-0289 | Montana | Montana Supreme Court | DA 12-0289 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 31 PUBLIC LAND/WATER ACCESS ASSOCIATION, INC., Petitioner and Appellant, v. ROGER JONES, Respondent and Appellee. APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Teton, Cause No. DV-11-054 Honorable Wm. Nels Swandal, Presiding Judge COUNSEL OF RECORD: For Appellant: J. Devlan Geddes; Benjamin J. Alke; Goetz, Gallik & Baldwin, P.C.; Bozeman, Montana For Appellee: John E. Bloomquist, Rachel A. Kinkie; Doney Crowley Payne Bloomquist, P.C.; Helena, Montana Submitted on Briefs: November 28, 2012 Decided: February 12, 2013 Filed: __________________________________________ Clerk February 12 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 This is the fourth appeal involving public access across Appellee Roger Jones’s Teton County property. In prior litigation, Public Land/Water Access Association, Inc. (Association) established public prescriptive easements over Boadle Road, Boadle Bridge and Canal Road, which together form a route across the property. The Association now appeals a decision of the Ninth Judicial District Court denying its petition for supplemental relief and dismissing its complaint against Jones for damages resulting from his removal of the Boadle Bridge. We reverse the District Court’s order and remand the case for further proceedings. ¶2 The dispositive issue is whether the District Court erred by dismissing the Association’s claims and denying its petition for supplemental relief after Jones removed a bridge connecting Boadle and Canal Roads. PROCEDURAL AND FACTUAL BACKGROUND ¶3 In 2000, Jones purchased a parcel of land in Teton County, on which Boadle and Canal Roads intersect. The roads connect across Sun River Slope Canal via the Boadle Bridge, which Teton County periodically maintained and then rebuilt in 1990. The public has since the early 1900s used the roads and bridge for various purposes, including recreation, moving cattle, travel to work, and access to the town of Choteau. In 1999 or 2000, Jones’s predecessor-in-interest erected a gate on Boadle Road and posted signs indicating the road was closed to the public. Upon purchasing the property, Jones continued to deny public access to both roads. 3 ¶4 The Association’s first lawsuit against Jones established a public prescriptive easement across both Boadle Road and Boadle Bridge. Pub. Lands Access Assn., Inc. v. Jones (PLA I), 2004 MT 394, 325 Mont. 236, 104 P.3d 496. In February 2002, while that case was pending, a wildland fire destroyed the bridge and Jones replaced it in April 2002 with a personally-owned flatbed railcar. Jones argued on appeal to this Court that “because [he] built and owns the current bridge,” he could destroy it or prevent public access to it from Boadle Road. PLA I, ¶ 28. We disagreed with Jones and held that “the public has a right to access the bridge and the land under the bridge without interference from Jones[.]” PLA I, ¶ 31. ¶5 The parties’ second dispute concerning public access, this time to Canal Road, first came before the Court in Public Lands Access Assn., Inc. v. Jones (PLA II), 2008 MT 12, 341 Mont. 111, 176 P.3d 1005, and was resolved when we affirmed in a memorandum opinion that a public prescriptive easement had been established by facts nearly identical to those we considered in PLA I. Pub. Lands Access Assn., Inc. v. Jones (PLA III), 2011 MT 236N, ¶ 6, 362 Mont. 545, 272 P.3d 125. ¶6 On November 22, 2011, the Association filed a Petition for Supplemental Declaratory Relief and Complaint for Damages, alleging that Jones had destroyed the bridge in violation of PLA I. The complaint stated that Jones had removed Boadle Bridge, placed “no access” signs along Boadle Road, and built a new bridge accessing a private road, which he marked with “no trespassing” signs. The complaint included claims of tortious interference with public easement, public nuisance and actual malice, 4 for which the Association claimed punitive damages. The Association petitioned for supplemental declaratory relief in the form of a sanction against Jones, and an order requiring him to finance reconstruction of the bridge, remove all signs indicating that Boadle Bridge was closed, and pay reasonable costs and attorneys’ fees. On December 23, 2011, Jones filed a M. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim on the basis that no court had addressed rights to the Boadle Bridge and that “[t]o the extent that the public had an interest in any bridge over the Sun River Slope Canal, that interest was in the bridge that existed prior to February 2002.” The District Court held a hearing on March 7, 2012. ¶7 On April 11, 2012, the District Court dismissed the Association’s complaint and petition, based primarily on its conclusion that: to the extent the public had an easement to use a specific bridge, that bridge was destroyed by fire in February 2002. The public retains an easement for the Boadle Road, which includes an easement for a bridge should the public or other person or entity construct a bridge within the Boadle Road right-of- way. The District Court held that Jones had no obligation to facilitate public access. In denying supplemental relief, the District Court stated that neither it “nor the Montana Supreme Court has ever been asked to grant or has actually granted the public an interest in Jones’ bridge or reserved such post-judgment relief for a later time.” STANDARD OF REVIEW ¶8 “We review de novo a district court’s decision on a motion to dismiss.” Martin v. Artis, 2012 MT 249, ¶ 8, 366 Mont. 513, 290 P.3d 687. We review for an abuse of 5 discretion a district court’s ruling granting or denying supplemental relief under § 27-8- 313, MCA. Western Tradition Partn. v. Atty. Gen. of Mont., 2012 MT 271, ¶ 7, 367 Mont. 112, 291 P.3d 545. DISCUSSION ¶9 1. Did the District Court err by dismissing the Association’s claims and denying its petition for supplemental relief after Jones removed a bridge connecting Boadle and Canal Roads? ¶10 The Association argues that the District Court erred by concluding on the basis of Jones’s ownership of the bridge that he could remove it from the public right-of-way. The Association points out that our holding in PLA I was not contingent on who owned the bridge, and, moreover, that Jones’s railcar bridge was in place when we issued that decision. We agree with the Association that we squarely addressed the question whether Jones could remove his personally-owned bridge from the roadway. We summarized Jones’s argument as follows: Therefore, because Jones built and owns the current bridge, he argues he can either destroy the bridge to prevent the public from accessing it once they reach the end of the public easement, or he can continue to keep the gate on the bridge locked so the public cannot access it. PLA I, ¶ 28. In holding that the Boadle Bridge was included within the scope of the prescriptive easement, we expressly disagreed with Jones’s argument that he could remove the bridge or otherwise interfere with public access to it: [T]he public has a right to access the bridge and the land under the bridge without interference from Jones as the easement burdens the servient tenement, Jones’ land, not merely the physical structure connecting the Boadle Road to the Canal Road. See § 70-17-103, MCA. Whether Jones 6 has rights in the bridge itself is a question that was not litigated below and will not be addressed on appeal. PLA I, ¶ 31. ¶11 Jones now asserts that, since we declined to discuss ownership of the bridge in PLA I, we did not address whether the public had a right to access the particular bridge in place at the time, which he independently purchased and installed. Again, we disagree. By definition, an easement involves the right to use property owned by another. See Ray v. Nansel, 2002 MT 191, ¶ 22, 311 Mont. 135, 53 P.3d 870 (“An easement is a nonpossessory interest in land that gives a person the right to use the land of another for a specific purpose.”). The scope of a prescriptive easement is determined, not by ownership of the underlying property, but by “use during the prescriptive period.” Han Farms, Inc. v. Molitor, 2003 MT 153, ¶ 24, 316 Mont. 249, 70 P.3d 1238. In PLA I, we concluded based on the historical public use of Boadle Bridge that the bridge fell within the easement’s scope. PLA I, ¶ 31 (“[T]he evidence presented at trial clearly established the public used the Boadle Road, including the Boadle Bridge[.]”). Thus, we did not consider “[w]hether Jones has rights in the bridge itself” because that issue had not been raised and was not necessary to our decision that the bridge was included in the public right of access. PLA I, ¶ 31. ¶12 Our pronouncement in PLA I that the public had a right to access Boadle Bridge “without interference from Jones,” PLA I, ¶ 31, regardless of whether “Jones built and owns the current bridge,” PLA I, ¶ 28, became the law of the case, which “must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent 7 appeal.” Hafner v. Conoco, Inc., 1999 MT 68, ¶ 20, 293 Mont. 542, 977 P.2d 330 (citation and quotation marks omitted). We deny Jones’s attempt to re-litigate a question already decided. Jones’s private ownership of the railcar bridge and his concerns about its suitability for public use are matters to be evaluated in determining the appropriate relief to be granted. ¶13 At the time Jones installed the railcar bridge, there had been public use of the roadway for a hundred years, save for the period when Jones and his predecessor blocked access. See PLA I, ¶ 8; PLA III, ¶ 3. Litigation over that access was pending when Jones took it upon himself to place the bridge within the roadway, upon which it “became a part thereof.” State ex rel. Donlan, 49 Mont. 517, 522-23, 143 P. 984, 985 (1914) (citing State ex rel. Foster v. Ritch, 49 Mont. 155, 156-57, 140 P. 731, 731 (1914)). Given the circumstances existing at the time, Jones’s unilateral intent that the bridge not be used by the public is not determinative. ¶14 The District Court noted in its factual findings, but then neglected to consider, the following sequence of events: (1) in April 2002, Jones purchased and installed the flatbed railcar as a bridge; (2) in July 2003, the District Court’s judgment granted public access to Boadle Road; and (3) in December 2004, we affirmed in PLA I that the public held a prescriptive easement to Boadle Road, including the bridge. During the March 2012 hearing, Jones acknowledged that the railcar bridge was in place during the original litigation over access to Boadle Road and Boadle Bridge. He also agreed that he and third parties had used the railcar as a bridge beginning in April 2002, until he removed it 8 in September 2011—approximately nine years later. In ruling that “Jones is under no obligation to facilitate [public] access,” the District Court ignored the state of the record at the time that we issued PLA I. Jones acted purely on his own initiative when he installed the bridge while PLA I was pending; we then recognized the public had a right to use the bridge free from interference; and Jones’s subsequent removal of the bridge constituted interference with public access, in violation of PLA I. ¶15 The District Court also considered the fact that, despite gaining access to Boadle Bridge as early as 2003, the public did not actually use the bridge because it gained access to Canal Road only in September 2011, when we decided PLA III. Jones had at that point already removed the bridge. Of course, the reason the public did not use the bridge was that Jones had blocked access to roads this Court ultimately held were open to the public. See PLA I; PLA III. In any event, whether the public actually exercised its right of access to the bridge is not relevant to the question of Jones’s compliance with PLA I. As noted, at the time of that decision, the railcar bridge was in place and we recognized the public’s right to use “the bridge and the land under the bridge without interference from Jones[.]” PLA I, ¶ 31. The District Court misapprehended our decision when it stated that PLA I granted public access only to the bridge that was destroyed by fire in 2002, and thus its dismissal of the Association’s complaint was based on an incorrect legal interpretation. ¶16 The District Court’s reasons for denying the petition for supplemental relief similarly are based on legal error. Section 27-8-313, MCA, provides that “[f]urther relief 9 based on a declaratory judgment or decree may be granted whenever necessary or proper.” The court stated that “[t]here is no final judgment determining liabilities, obligations, or rights pertaining to the physical structure spanning Sun River Slope Canal such that the supplemental relief [the Association] now requests is warranted.” It stated further that the Association had “never requested an interest in the bridge.” Given the discussion above, and the scope of the prescriptive easement determined in PLA I, the Association is entitled to consideration of its petition. PLA I, ¶ 31. ¶17 For the foregoing reasons, we reverse and remand the case for further proceedings on the Association’s Petition for Supplemental Declaratory Relief and Complaint for Damages. /S/ Beth Baker We concur: /S/ Mike McGrath /S/ Michael E Wheat /S/ Patricia Cotter /S/ Brian Morris | February 12, 2013 |
6961459f-179d-43db-a325-58cb014c38e3 | State v. Driscoll | 2013 MT 63 | DA 12-0389 | Montana | Montana Supreme Court | DA 12-0389 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 63 STATE OF MONTANA, Plaintiff and Appellant, v. DOMINIC PAUL DRISCOLL, Defendant and Appellee. APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Beaverhead, Cause No. DC-12-3461 Honorable Loren Tucker, Presiding Judge COUNSEL OF RECORD: For Appellant: Timothy C. Fox, Montana Attorney General, Helena, Montana James P. Dolan, Dillon City Attorney, Dillon, Montana For Appellee: J. Blaine Anderson, Jr., Attorney at Law, Dillon, Montana Submitted on Briefs: January 9, 2013 Decided: March 12, 2013 Filed: __________________________________________ Clerk March 12 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 The State appeals the order of the Fifth Judicial District, Beaverhead County, that suppressed statements made by Appellee Dominic Paul Driscoll (Driscoll) to two police officers. We affirm. ¶2 The State presents the following issues on appeal: ¶3 Whether the officers possessed particularized suspicion to question Driscoll? ¶4 Whether the officers violated Driscoll’s right against self-incrimination? PROCEDURAL AND FACTUAL BACKGROUND ¶5 Assistant Chief Don Guiberson and Officer Brad Rose of the Dillon Police Department observed Driscoll holding a beer can in a bar during a routine sweep during the annual Labor Day rodeo weekend in Dillon, Montana. The officers believed, based on Driscoll’s appearance, that Driscoll was younger than 21 years old. Officer Rose approached Driscoll to ask how old he was. Driscoll responded that he was 22 years old. Officer Rose asked Driscoll for identification to verify Driscoll’s age. Driscoll refused. Officer Rose told Driscoll to accompany the officers outside. ¶6 Driscoll accompanied the officers outside. Officer Rose asked Driscoll for his full name and his birthdate. Driscoll provided Officer Rose a false first name and a false birthdate. Officer Rose asked dispatch to verify this information. Dispatch responded that there was no return on that name and date of birth. Officer Rose placed Driscoll under arrest. Driscoll eventually admitted that his true first name was Dominic. Officer Rose found a 3 driver’s license, through a name-search of the database, which matched Dominic Driscoll. The birthdate on the driver’s license confirmed that Driscoll was under 21 years old. ¶7 The State charged Driscoll with minor in possession, in violation of § 45-5-624(1), MCA, and obstructing a peace officer, in violation of § 45-7-302, MCA. Driscoll moved to suppress his statements to the officers and to dismiss the charges. Driscoll first claimed that the officers lacked particularized suspicion to question him. Driscoll next claimed that the officers’ request for his name, date of birth, and identification had violated his federal and state constitutional right against self-incrimination. ¶8 The City Court granted Driscoll’s motion to suppress. The City Court also granted Driscoll’s motion to dismiss. The State appealed. The District Court affirmed Driscoll’s motion to suppress after determining that the officers had violated Driscoll’s right against self-incrimination. The District Court denied, however, Driscoll’s motion to dismiss. The District Court determined that it was the role of the State, not the court, to decide whether to proceed with the prosecution. The State appeals. STANDARD OF REVIEW ¶9 We engage in a twofold review of a district court’s motion to suppress. We initially review the court’s findings of fact to determine whether they are clearly erroneous. We conduct a plenary review of the conclusions of law to determine whether the district court correctly interpreted the law. State v. Jones, 2006 MT 209, ¶ 17, 333 Mont. 294, 142 P.3d 851. The parties have stipulated to the facts. We review therefore only the District Court’s conclusions of law. 4 DISCUSSION ¶10 Whether the officers possessed particularized suspicion to question Driscoll? ¶11 Section 46-5-401(1), MCA, provides that when an officer has particularized suspicion that a person has committed, is committing, or is about to commit an offense, the officer may stop that person. The officer may lawfully request the person’s name and present address and an explanation of the person’s actions. Section 46-5-401(2), MCA. ¶12 The District Court determined that the officers possessed particularized suspicion to question Driscoll. The officers saw Driscoll holding a beer can. Driscoll appeared younger than age 21. The State argues that these facts informed the officers with sufficient particularized suspicion to approach Driscoll and ask his age. We agree. ¶13 The existence of a particularized suspicion depends on the totality of the circumstances. State v. Fisher, 2002 MT 335, ¶ 12, 313 Mont. 274, 60 P.3d 1004. The totality of the circumstances includes objective observations and consideration of the modes or patterns of operation of certain kinds of lawbreakers. Fisher, ¶ 12. ¶14 We next address whether the officers improperly expanded their investigation by taking Driscoll outside. Section 46-5-401(2)(a), MCA, authorizes the officers to have asked Driscoll for his name, address, and an explanation for Driscoll’s actions. The officers approached Driscoll and asked for his age and an ID, rather than for his name, address, or an explanation for his actions. Driscoll informed the officers that he was 22. Driscoll declined to provide the officers with an ID. The officers never asked Driscoll for his address or an explanation for his actions. The officers failed to articulate any reason in their report for 5 continuing their questioning of Driscoll after he responded that he was 22. The officers simply described Driscoll as acting “defensively.” ¶15 Without additional articulable facts that led the officers to believe that Driscoll was underage, the officers should not have taken Driscoll outside. The officers could have pursued their investigation through other means. The officers exceeded the scope of their investigation, however, by taking Driscoll outside the bar without additional articulable facts. We need not consider whether the officers violated Driscoll’s right against self- incrimination because we have determined that the officers exceeded the scope of § 46-5- 401, MCA. ¶16 We also affirm the District Court’s denial of Driscoll’s motion to dismiss. We agree that the State, rather than a court, should assess whether sufficient evidence exists to continue the prosecution. ¶17 Affirmed. /S/ BRIAN MORRIS We Concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JIM RICE | March 12, 2013 |
15d9ba3d-8ec6-42f2-9394-5c546eb0bfb5 | State v. Whalen | 2013 MT 26 | DA 11-0134 | Montana | Montana Supreme Court | DA 11-0134 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 26 STATE OF MONTANA, Plaintiff and Appellee, v. TIMOTHY JOSEPH WHALEN, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 09-0571 Honorable Ingrid G. Gustafson, Presiding Judge COUNSEL OF RECORD: For Appellant: Timothy Joseph Whalen (self-represented), Laurel, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Jonathan Mark Krauss, Assistant Attorney General, Helena, Montana Submitted on Briefs: November 7, 2012 Decided: February 5, 2013 Filed: __________________________________________ Clerk February 5 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Timothy Joseph Whalen (Whalen) appeals from the judgment of the Thirteenth Judicial District Court, Yellowstone County, upon his plea of guilty to one count of felony negligent vehicular assault and one count of felony criminal endangerment. We affirm. ¶2 Whalen raises the following issues for review, which we restate as follows: ¶3 Issue One: Did the District Court impose an illegal sentence on Whalen? ¶4 Issue Two: Did the District Court impose unreasonable and unconstitutional probation conditions on Whalen? ¶5 Issue Three: Did the District Court illegally obtain Whalen’s guilty pleas? ¶6 Issue Four: Is the Sentence Review Division process unconstitutional? FACTUAL AND PROCEDURAL BACKGROUND ¶7 On August 13, 2010, Whalen pled guilty to one count of felony negligent vehicular assault and one count of felony criminal endangerment. The charges against Whalen stemmed from an incident that occurred in Billings, Montana, on the morning of September 25, 2009. Whalen, who was a licensed commercial driver employed as a bus driver at the time, was driving a school bus full of students when he struck a 15-year-old girl, E.D., who was crossing the street in a designated crosswalk. Whalen stopped the bus, got off, and ran to E.D. He did not identify himself or report the accident to authorities or his employer. After checking on E.D., Whalen got back on the bus with students still on board and drove off. ¶8 Whalen transported the students on his bus to West High School and returned to the scene of the accident. Officer Peter Lehman conducted a field sobriety investigation; 3 Whalen was arrested and transported to the Yellowstone County Detention Facility. At the jail, Whalen provided a breath test, which revealed an alcohol concentration of .118. E.D. suffered serious bodily injury as a result of the incident. ¶9 After accepting Whalen’s guilty pleas, the District Court held a sentencing hearing on December 8, 2010. Whalen argued for a three-year deferred sentence for both counts, with community service requirements. The State recommended a ten-year commitment to the DOC for each count, with the last five years suspended, to run concurrently. It also requested the court impose a fine. ¶10 Whalen made only two objections at the sentencing hearing, both pertaining to proposed conditions of probation. First, Whalen objected to the condition that he obtain a chemical dependency evaluation and undergo all treatment recommendations. Whalen asserted he had already fulfilled such requirements and therefore requested the court to give him credit for doing so. Second, Whalen objected to the proposed condition that his driver’s license be suspended. ¶11 After listening to witness testimony and sentencing recommendations from counsel, the District Court sentenced Whalen to the DOC for six years with 18 months suspended on each count, to run concurrently. The court recommended Whalen be considered for a community program through the DOC. Further, the court ordered Whalen complete 100 hours of community service, and imposed 29 enumerated conditions of probation. District Court Judge Ingrid Gustafson provided detailed reasoning for Whalen’s sentence at the hearing, explaining Montana’s sentencing policies and applying them to Whalen’s case. The court considered Whalen’s presentence investigation report, discussed several aggravating 4 and mitigating circumstances, and looked at other sentences for similar offenses throughout the state. With respect to Whalen’s two objections, the District Court gave Whalen credit for the chemical dependency evaluation and treatment he already completed, but maintained the suspension of his driver’s license was required pursuant to § 61-5-205(1)(b), MCA. ¶12 Whalen appealed on March 14, 2011. During the following months, Whalen filed a series of motions requesting extensions of time for various reasons. Then, on January 25, 2012, Whalen moved this Court for appointment of counsel. Although noting that such a request “this late in the day is inexcusable,” we granted Whalen’s motion and appointed the Office of Appellate Defender (OAD) to represent him. Based upon Whalen’s failure to complete the application for appellate representation, and Whalen’s affidavit filed with this Court requesting removal of OAD from his case, OAD ultimately moved to rescind the appointment of counsel. On March 21, 2012, we granted the motion and ordered OAD removed as counsel for Whalen. ¶13 The following month, Whalen filed a motion with this Court to stay his appeal for the purpose of filing a motion to withdraw his guilty plea in the District Court. We reasoned that “[t]his late in the day, after a multitude of extensions and delay tactics, we decline to stay this proceeding.” We further stated that Whalen “has flouted this Court’s authority and exhausted our patience, notwithstanding our considerable efforts to afford him access to justice.” The Court denied any further extensions, and ordered Whalen to file his opening brief. STANDARD OF REVIEW 5 ¶14 This Court reviews a criminal sentence for legality only. State v. Strong, 2009 MT 65, ¶ 7, 349 Mont. 417, 203 P.3d 848 (citing Adams v. State, 2007 MT 35, ¶ 21, 336 Mont. 63, 153 P.3d 601). We review the reasonableness of conditions of probation imposed in a sentence for abuse of discretion, if the conditions were objected to at sentencing. State v. Leyva, 2012 MT 124, ¶ 15, 365 Mont. 204, 280 P.3d 252. Furthermore, issues of justiciability—such as standing, mootness, ripeness, and political question—are questions of law, which this Court reviews de novo. Reichert v. State, 2012 MT 111, ¶ 20, 365 Mont. 92, 278 P.3d 455. ¶15 Additional standards of review will be discussed herein. DISCUSSION ¶16 Issue One: Did the District Court impose an illegal sentence on Whalen? ¶17 Whalen argues his sentence is illegal on three grounds. Whalen argues first that the District Court ignored alternatives to imprisonment required by Montana law for a first-time non-violent offender. Second, he argues the court considered “improper matter” in finding aggravating circumstances. Finally, Whalen contends his sentence constitutes cruel and unusual punishment prohibited under the Montana and United States Constitutions. ¶18 The State points out first that Whalen failed to raise these objections before the District Court and, accordingly, did not properly preserve them for appeal. Although the State believes the Lenihan exception would allow the Court to review Whalen’s sentence in regard to his claim of cruel and unusual punishment, it maintains the Lenihan exception is inapplicable to Whalen’s other two claims because such arguments would result in an objectionable, but not an illegal, sentence. 6 ¶19 Generally, we will not review an issue to which a party has failed to object and preserve for appeal. State v. Johnson, 2011 MT 286, ¶ 14, 362 Mont. 473, 265 P.3d 638. In State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979), we recognized a narrow exception to this rule to allow an appellate court “to review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.” A sentence is not illegal if it falls within statutory parameters. State v. Kotwicki, 2007 MT 17, ¶ 13, 335 Mont. 344, 151 P.3d 892 (citing State v. Garrymore, 2006 MT 245, ¶ 9, 334 Mont. 1, 145 P.3d 946). Further, “‘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.’” Johnson, ¶ 14 (quoting Kotwicki, ¶ 13). ¶20 The Lenihan rule may apply to constitutional challenges of criminal sentences as well, but not in every case. Strong, ¶¶ 7, 12 (citing Garrymore, ¶ 15). In Strong, we reviewed our caselaw to determine when a constitutional challenge to a sentence raised for the first time on appeal is appropriate for judicial determination. When a defendant alleged a facial challenge to the constitutionality of a statute in State v. Ellis, 2007 MT 210, ¶ 7, 339 Mont. 14, 167 P.3d 896, we reviewed the argument even though it was not raised to the district court. There, Ellis asserted § 46-8-113, MCA (2005)—a statute authorizing imposition of a condition requiring a defendant to repay the costs of his court-appointed counsel—violated the Equal Protection Clause of the Montana and U.S. Constitutions. Ellis, ¶ 2. Because he made a facial challenge that alleged, “in other words, that an illegal statute supported his illegal sentence,” we reviewed Ellis’s argument. Strong, ¶ 12. 7 ¶21 By contrast, in State v. Mainwaring, 2007 MT 14, 335 Mont. 322, 151 P.3d 53, we declined to address a constitutional challenge raised for the first time on appeal. Unlike Ellis, the defendant in Mainwaring did not contend a statute was facially unconstitutional; rather, he made an as-applied constitutional argument. Specifically, he argued the court’s application of the Persistent Felony Offender statute and the Youth Court Act violated his rights under the Equal Protection Clause. Mainwaring, ¶ 20. In Strong we noted that “our refusal to review [Mainwaring’s] as-applied challenge for the first time on appeal stemmed from the fact that the court had imposed a potentially ‘objectionable’ sentence as opposed to an ‘illegal’ sentence.” Strong, ¶ 13. ¶22 In Strong, the defendant made both a facial and an as-applied equal protection challenge to § 46-18-201(3)(d), MCA (2007)—a statute authorizing a sentencing judge to impose a Department of Corrections commitment—for the first time on appeal. In accordance with our prior decisions, we refused to address Strong’s as-applied constitutional challenge, but permitted appellate review of his facial constitutional challenge. Strong, ¶¶ 14-16. ¶23 With this in mind, we turn to the arguments in the case before us. Alternative sentence and aggravating factors ¶24 It is clear from the District Court record that Whalen never objected to the court’s alleged failure to consider alternatives to imprisonment or to its consideration of “improper matter” in finding aggravating circumstances. On appeal, Whalen relies on a number of sentencing statutes in making his arguments, primarily focusing on §§ 46-18-225, and -101, MCA. 8 ¶25 The Lenihan exception is not available to Whalen with respect to these two claims. Whalen’s contention is not that he was sentenced in excess of statutory authority—the District Court had authority pursuant to §§ 45-5-205(3) and -207(2), MCA, to impose a six- year DOC commitment with 18 months suspended, and community service. The sentence was thus within statutory parameters. Rather, Whalen argues the District Court failed to abide by various statutory requirements, an allegation that would result in an objectionable sentence, not an illegal one. Therefore, we decline to consider these issues further. Cruel and unusual punishment ¶26 We also refrain from addressing the merits of Whalen’s contention that his sentence violated his right to be free of cruel and unusual punishment under the Montana and U.S. Constitutions. Again, Whalen makes these arguments for the first time on appeal. Unlike the defendant in Ellis, who argued a statute was unconstitutional on its face, Whalen asserts the District Court’s application of various statutory sentencing policies and guidelines violated his constitutional rights. In conformity with our prior decisions on this issue, we will not consider such as-applied constitutional arguments when the defendant failed to properly preserve them for appeal. See Strong, ¶ 13; Mainwaring, ¶ 20. ¶27 Issue Two: Did the District Court impose unreasonable and unconstitutional probation conditions on Whalen? ¶28 Whalen challenges twelve of the probation conditions imposed during sentencing on the grounds that they “do not bear any [n]exus to defendant or his crime nor do they bear any relationship to the objectives of r[e]habilitation or the protection of the victim and [s]ociety.” Although none of these twelve conditions were objected to before the District Court, 9 Whalen maintains that this Court should invoke the Lenihan exception to review the conditions. ¶29 The State, on the other hand, argues that Whalen actively acquiesced and participated in the imposition of the sentencing conditions which he now challenges on appeal and we should therefore refrain from invoking the Lenihan exception. It further asserts that Whalen failed to make a plausible argument or colorable claim that his conditions are outside statutory parameters or without statutory authority. ¶30 The Lenihan exception does not apply in cases where a defendant did not remain silent at sentencing but, instead, actively acquiesced or participated in the imposition of a condition of sentence. State v. Walker, 2007 MT 205, ¶ 14, 338 Mont. 529, 167 P.3d 879 (citing State v. Micklon, 2003 MT 45, 314 Mont. 291, 65 P.3d 559). After a thorough review of the sentencing hearing transcript and Whalen’s sentencing memorandum submitted to the District Court, we do not find that Whalen actively acquiesced or participated in the imposition of each condition of his sentence. Although Whalen did not remain completely silent during his sentencing, objected to two other conditions, and expressed a willingness to accept punishment for his behavior, such actions do not constitute the active acquiescence or participation necessary to preclude appellate review under the Lenihan exception.1 ¶31 Nevertheless, we decline to apply the Lenihan exception here. When a sentencing court suspends all or a portion of a sentence, it is authorized to impose conditions or restrictions that are reasonably related to the objectives of rehabilitation or the protection of 1 For examples of active acquiescence or participation in the imposition of sentencing conditions, see, e.g., State v. Walker, 2007 MT 205, 338 Mont. 529, 167 P.3d 879; State v. Micklon, 2003 10 the victim or society. Section 46-18-201(4), MCA; Leyva, ¶ 23; State v. Hunter, 2008 MT 395, ¶ 7, 347 Mont. 155, 197 P.3d 998 (citing State v. Ashby, 2008 MT 83, ¶ 9, 342 Mont. 187, 179 P.3d 1164). For a condition to meet this standard, it must have “‘a nexus to either the offense for which the offender is being sentenced, or to the offender himself or herself.’” Hunter, ¶ 7 (quoting Ashby, ¶ 15). If a defendant argues that the nexus is inadequate, the challenge is that the condition is objectionable rather than illegal. Hunter, ¶ 7 (citing State v. Hameline, 2008 MT 241, ¶ 12, 344 Mont. 461, 188 P.3d 1052). Here, Whalen does not contend that the District Court exceeded its statutory authority by imposing conditions of probation; rather, he challenges the reasonableness of such conditions by attacking their nexus. Because he failed to object to the conditions at or before his sentencing hearing, he waived his right to appeal the issue. ¶32 Whalen also contends for the first time on appeal that twelve of the conditions violate Article II, sections 3, 12 and 17 of the Montana Constitution. Although he very briefly discusses these constitutional rights—asserting they are “fundamental” rights with “significant components of liberty . . . [a]ny infringement of which will trigger the highest level of scrutiny, and thus the highest level of protection by the Courts”—he fails to articulate any argument which would demonstrate that these twelve conditions are unconstitutional. Whalen merely clumps together all of the conditions, identifying them only by number, boldly states they are all “arbitrary and repressive and are th[u]s violative of the [l]aw . . .” and then cites to three sections of Article II of the Montana Constitution. We have repeatedly held that it is not our job “to conduct legal research on [a party’s] behalf, to MT 45, 314 Mont. 291, 65 P.3d 559; State v. Holt, 2011 MT 42, 359 Mont. 308, 249 P.3d 470. 11 guess as to [the party’s] precise position, or to develop legal analysis that may lend support to that position.” Johansen v. Dept. of Nat. Resources & Conserv., 1998 MT 51, ¶ 24, 288 Mont. 39, 955 P.2d 653; see also, Blackmore v. Dunster, 2012 MT 74, ¶ 7, 364 Mont. 384, 274 P.3d 748 (quoting Estate of Harmon, 2011 MT 84, ¶ 28, 360 Mont. 150, 253 P.3d 821 (citing M. R. App. P. 12(1)(f))). Consequently, because Whalen has not developed any argument that the conditions are unconstitutional, we decline to consider the issue further. ¶33 Issue Three: Did the District Court illegally obtain Whalen’s guilty pleas? ¶34 Whalen advances several reasons why his guilty plea was illegally obtained and accepted by the court. However, as the State points out, Whalen sets forth no argument or authority in the body of his brief. Instead, he attaches as an exhibit a 16-page excerpt of his brief in support of his motion to withdraw guilty plea, which he attempted to file with the District Court, and states he “in[]corporates all the text and argument in that exhibit as if fully set forth here as Argument on these [a]ppellate issues.” ¶35 Montana’s Rules of Appellate Procedure do not allow for “shortcut tactics” such as referring to authority in other briefs. State v. Ferguson, 2005 MT 343, ¶ 40, 330 Mont. 103, 126 P.3d 463. The argument portion of an appellant’s brief must contain the contentions of the appellant with respect to the issues presented, and the reasons thereof, with the citations to the authorities, statutes, and pages of the record relied on. M. R. App. P. 12(1)(f). This requirement “unquestionably precludes parties from incorporating trial briefs or any other kind of argument into appellate briefs by mere reference.” Ferguson, ¶ 41. The “mere reference to arguments and authorities presented in district court proceedings is no substitute for developing and presenting appellate arguments.” Ferguson, ¶ 41. 12 ¶36 Whalen provides numerous explanations for his failure to conform to the Montana Rules of Appellate Procedure, and maintains this Court has deprived him of sufficient time to adequately brief his issues. Whalen’s arguments are not well-taken. We have granted Whalen extension after extension, appointed him appellate counsel, and provided him with procedures for requesting annotations to statutes and constitutional provisions while in prison to assist with the preparation of his appellate brief. In our order filed May 22, 2012, we specifically instructed Whalen that his appellate brief must “comply substantially, in form and substance, with the Montana Rules of Appellate Procedure,” and warned that failure to do so would result in summary dismissal of his appeal. We also pointed out that the motion to withdraw guilty pleas that Whalen sought to file with the District Court was supported by affidavits and a brief with citations to authority, indicating that Whalen is fully capable of preparing a sufficient appellate brief. Consequently, because of Whalen’s inadequate briefing, we decline to consider his arguments on this issue. See State v. Cybulski, 2009 MT 70, ¶¶ 13-15, 349 Mont. 429, 204 P.3d 7 (declining appellate review of issues inadequately briefed). ¶37 Furthermore, we point out that even had Whalen sufficiently briefed this issue, his arguments are not properly before the Court at this time because he did not present them to the District Court prior to filing his appeal. Pursuant to § 46-16-105(2), MCA, Whalen had the opportunity to move the District Court to withdraw his guilty plea before he appealed. However, he chose to appeal first and file the motion nearly a year later. As a result, the District Court did not have jurisdiction to act on his motion and thus did not hear any of the arguments Whalen now raises with respect to his guilty plea. See Powers Mfg. Co. v. Leon 13 Jacobs Enters., 216 Mont. 407, 411, 701 P.2d 1377, 1380 (1985) (“When a notice of appeal has been filed, jurisdiction passes from the District Court and vests in the Supreme Court.”). In Montana, we generally refuse to consider issues presented for the first time on appeal because it is “fundamentally unfair to fault the trial court for failing to rule on an issue it was never given the opportunity to consider.” State v. Claassen, 2012 MT 313, ¶ 19, 367 Mont. 478, __ P.3d __ (citation omitted). Because the District Court has not had the opportunity to consider this issue, it is improperly before this Court.2 ¶38 Issue Four: Is the Sentence Review Division process unconstitutional? ¶39 Finally, Whalen asserts on appeal that the Sentence Review Division (SRD) is unconstitutional “as enacted and as applied” to criminal defendants seeking appellate review of their sentences. The State counters that Whalen has not yet pursued an application for sentence review, and his claim is therefore premature, unripe, and not a justiciable cause or controversy. Accordingly, the State requests we dismiss his claim. In his reply, Whalen does not specifically respond to the State’s contention. Instead, he reiterates his constitutional challenge to the sentence review process, claiming it “threatens him with [an] additional sentence” and that “if he is required to avail himself of the SRD process,” he will be harmed by having to wait “another year or two” before being able to do so. ¶40 We decline to review Whalen’s claim because no justiciable controversy exists. The existence of a justiciable controversy is a threshold requirement to a court’s adjudication of a dispute. Havre Daily News, LLC v. City of Havre, 2006 MT 215, ¶ 18, 333 Mont. 331, 142 2 Whalen should take note that pursuant to § 46-16-105(2)(b), MCA, the opportunity to pursue a withdrawal of guilty plea in the District Court will be available to him after this appeal. 14 P.3d 864. Among other reasons, a case may be non-justiciable because it presents an issue that is not ripe for judicial determination. Havre Daily News, ¶ 18. “Cases are unripe when the parties point only to hypothetical, speculative, or illusory disputes as opposed to actual, concrete conflicts.” Reichert, ¶ 54. As we recently stated in Donaldson v. State, 2012 MT 288, 367 Mont. 228, __ P.3d __, courts do not function “to determine speculative matters, to enter anticipatory judgments, to declare social status, to give advisory opinions or to give abstract opinions.” Donaldson, ¶ 9 (citing Mont. Dept. Nat. Res. & Cons. v. Intake Water Co., 171 Mont. 416, 440, 558 P.2d 1110, 1123 (1976)). ¶41 This Court can exercise supervisory authority to ensure that the SRD, as an arm of this Court, complies with the statutes and rules governing its operations, as well as the Montana Constitution and the U.S. Constitution. Driver v. Sentence Rev. Div. in the Sup. Ct. of Mont., 2010 MT 43, ¶ 12, 355 Mont. 273, 227 P.3d 1018 (citing Jordan v. State, 2008 MT 334, ¶ 22, 346 Mont. 193, 194 P.3d 657). The proper basis by which this Court may review a challenge to a decision of the SRD is through a petition for extraordinary relief. Driver, ¶ 9. ¶42 Here, Whalen has not proceeded through the sentence review process and has therefore not received any decision from the SRD regarding his sentence. It is unknown whether Whalen will apply for sentence review, and if he does, the result of his application is pure speculation at this time. Accordingly, this issue is not ripe for judicial determination. ¶43 As a final matter, Whalen contends he never waived his right to appellate counsel. On March 21, 2012, this Court granted OAD’s motion to be removed as Whalen’s counsel. The motion was supported by an affidavit filed by Whalen, in which he stated he approved 15 OAD’s motion for removal as his counsel. Since then, Whalen has not requested this Court appoint him counsel. Further, he did not even raise this claim until his reply brief. We have explained that we will not address the merits of an issue presented for the first time in a reply brief on appeal. State v. Makarchuk, 2009 MT 82, ¶ 19, 349 Mont. 507, 204 P.3d 1213 (citing Pengra v. State, 2000 MT 291, ¶ 13, 302 Mont. 276, 14 P.3d 499). We therefore decline to consider this issue any further. CONCLUSION ¶44 For the reasons stated above, we affirm the District Court’s judgment. ¶45 Affirmed. /S/ Michael E Wheat We Concur: /S/ Patricia Cotter /S/ Jim Rice /S/ Brian Morris /S/ Beth Baker | February 5, 2013 |
e582e05e-2864-470c-bf69-0c61afde9bdc | Stewart v. Rice | 2013 MT 55 | DA 11-0542 | Montana | Montana Supreme Court | DA 11-0542 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 55 VIANNA STEWART, Plaintiff and Appellee, v. CLARK E. RICE AND EDYTHE RICE, Defendants and Appellants. _______________________________________ JUANITA STANDS, Cross-Claim Plaintiff and Appellee, v. CLARK E. RICE AND EDYTHE RICE, Cross-Claim Defendants and Appellants, ________________________________________ EDYTHE RICE, Cross-Claim Plaintiff and Appellant, v. JUANITA STANDS, Cross-Claim Defendant and Appellee. APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Big Horn, Cause No. DV 06-122 Honorable Blair Jones, Presiding Judge March 5 2013 2 COUNSEL OF RECORD: For Appellants: Joseph M. Raffiani; Raffiani Law Firm, P.C.; Billings, Montana (for Edythe Rice) Clark E. Rice, self-represented; Lodge Grass, Montana For Appellees: Kelly J. Varnes; Hendrickson Law Firm; Billings, Montana (for Vianna Sewart) Elizabeth Honaker; Honaker Law Firm; Billings, Montana (for Juanita Stands) Submitted on Briefs: December 12, 2012 Decided: March 5, 2013 Filed: __________________________________________ Clerk 3 Justice Beth Baker delivered the Opinion of the Court. ¶1 Clark E. Rice and his mother, Edythe Rice, appeal from the Twenty-Second Judicial District Court’s judgment holding Clark and Edythe jointly and severally liable for injuries sustained by Juanita Stands and Vianna Stewart during a vehicular collision. ¶2 We address the following issues on appeal: ¶3 1. Whether Clark is entitled to a new trial and a new judge based on erroneous evidentiary rulings, biases of witnesses, the failure of some witnesses to attend trial, or the court’s failure to appoint trial counsel. ¶4 2. Whether the District Court committed reversible error by proceeding to trial without addressing Edythe’s mental competency or ensuring the parties met statutory notice requirements, and whether the trial violated Edythe’s right to due process. ¶5 We affirm the District Court’s judgment against Clark. We reverse the District Court’s judgment as to Edythe and remand the case to the District Court for an evaluation of Edythe’s need for a conservator and a new trial limited to the question of her vicarious liability. PROCEDURAL AND FACTUAL BACKGROUND ¶6 Edythe Rice owns and resides on a small cattle ranch in Big Horn County, Montana. Edythe is in her late eighties and her son, Clark Rice, assists her in performing ranch duties. On January 20, 2006, Clark, Juanita Stands and Vianna Stewart were involved in a vehicular collision on Old Highway 87 on the Crow Reservation in Big Horn County. It was a cloudy evening and the sun had set at approximately 4:59 p.m. Some time between 5:00 p.m. and 5:30 p.m., in “advanced twilight,” Clark turned a tractor onto Old Highway 87 from an intersecting dirt road. He could see cars 4 approaching from a distance on the highway. As Clark pulled onto the highway and began travelling northbound, the tractor’s left side extended into the highway’s northbound lane. The tractor’s lights were not illuminated. Juanita Stands, also driving northbound, approached at high speed and struck the tractor’s left rear tire. The impact caused Juanita’s vehicle to spin into the neighboring lane, where it collided with Vianna Stewart’s southbound vehicle. Juanita and Vianna sustained injuries from the accident. The tractor and both automobiles were total losses. ¶7 Beginning in December 2006, the parties spent nearly five years in litigation before the District Court to decide liability for the accident-related damages. Vianna filed an initial complaint alleging negligence against Clark and Juanita on December 1, 2006. Juanita filed a cross-claim against Clark, who filed a counter cross-claim against Juanita. Vianna later stipulated to dismissing the claims against Juanita, and amended her complaint to include Edythe as a defendant under the doctrines of respondeat superior and negligent entrustment. She alleged that Edythe owned the ranch and that Clark was operating the tractor on Edythe’s behalf at the time of the accident. On September 8, 2009, Edythe filed a pro se answer denying that Clark was acting as her employee at the time of the accident. On December 11, 2009, through her retained counsel, Robert Stephens, Edythe filed an amended answer denying vicarious liability and negligent entrustment and cross-claimed against Juanita. On February 2, 2010, Juanita amended her cross-claim to include Edythe as a defendant. The case was set for a 5 December 15, 2009, jury trial, but the trial date was continued as the parties filed motions to dismiss and motions for summary judgment. ¶8 By 2011, Clark and Edythe could no longer fulfill their obligations under the fee contracts with their attorneys. On January 7, 2011, Clark’s counsel, Paula Saye-Dooper, filed a motion to withdraw from representation based on Clark’s inability to pay the legal fees. Clark consented to his counsel’s withdrawal. On January 10, 2011, Vianna served “Rule 10 notice”1 upon Clark requiring him to appoint new counsel or proceed pro se. On January 12, 2011, the District Court granted Saye-Dooper’s motion to withdraw from representation. ¶9 On January 21, 2011, Edythe’s attorney, Robert Stephens, filed a Motion to Withdraw and Motion to Continue. He stated that his role in the lawsuit was intended to be “ancillary to lea[d] counsel, Paula Saye-Dooper,” that he no longer had access to the trial preparation materials now in Clark’s possession, that Edythe could no longer pay her fees, and that Edythe had become incompetent. His motion and supporting affidavit explained that “Edythe Rice is no longer competent, in counsel’s opinion, to understand the nature of the proceedings or to assist in her own defense.” Having spoken with Edythe’s physician, who “found mild cognitive impairment primar[ily] impacting recent memory and ability to recall details,” Stephens expressed concern that Edythe’s ability to testify as a witness would be significantly impaired. He stated in the affidavit that he had also spoken with Clark, who agreed that his mother “no longer knows[] where she is, no 1 Rule 10 of the Uniform District Court Rules (U. Dist. Ct. R. 10). 6 longer has an understanding of the immediate circumstances, has no memory and is otherwise non compos mentis.” He requested that the trial, now scheduled for February 2, 2011, be continued and that a conservator be appointed prior to any further proceedings because it would be “an injustice to require [an] incompetent woman to proceed to trial without representation[.]” ¶10 On February 4, 2011, Stephens filed a motion to allow Edythe to testify by deposition. The motion represented that, based on the medical opinion of Edythe’s doctor, Edythe’s mental condition would cause her to be “‘unavailable’ within the meaning of the Montana Rules of Civil Procedure for purposes of allowing her deposition testimony,” and that Edythe “may not be a competent witness based upon her mental impairment[.]” ¶11 On May 6, 2011, the District Court granted the motion to allow Edythe to testify by deposition and, on May 18, 2011, it granted Robert Stephens’s motion to withdraw from representation. The court did not address the question of Edythe’s competency or Stephens’s suggestion for appointment of a conservator. In February 2011, Clark filed a consent to waiver of a jury trial. ¶12 The District Court conducted a bench trial on July 7, 2011, in which Juanita and Vianna were represented by counsel and Clark and Edythe appeared pro se. Edythe was physically present but did not present any evidence or participate in the trial. ¶13 In its September 7, 2011 order, the District Court concluded that Clark was negligent per se for violating three traffic statutes: (1) § 61-8-343, MCA, by failing to 7 yield to oncoming traffic when he entered the highway; (2) § 61-9-201, MCA, by failing to illuminate the lights on his tractor within one-half an hour after sunset; and (3) § 61-9- 415(1), MCA, by failing to properly display an emblem while operating on a state highway a slow-moving vehicle normally used at speeds less than twenty-five miles per hour. The court determined that each statutory violation was an actual and proximate cause of the resulting collisions. The court further determined that Edythe was vicariously liable for the injuries because she was the principal of the ranch, Clark was her agent with regard to ranch business, and “Clark was acting within the scope of his duties at the time of the accident.” ¶14 Considering the atmospheric conditions at the time of the accident, the court also concluded that “Juanita should have anticipated the presence of Clark’s tractor in enough time to lessen the severity of the impact,” and that her comparative negligence was responsible for twenty percent of her injuries. The court’s judgment stated that Clark and Edythe were jointly and severally liable for eighty percent of Juanita’s claimed damages, amounting to $582,516, one hundred percent of Vianna’s claimed damages, amounting to $48,501.98, and for the cost of the action to both Juanita and Vianna. Clark, proceeding pro se, and Edythe, through appellate counsel, appealed to this Court. STANDARD OF REVIEW ¶15 We review the district court’s factual findings for clear error and its legal conclusions for correctness. Boyne USA, Inc. v. Spanish Peaks Dev., LLC, 2013 MT 1, ¶ 28, 368 Mont. 143, 292 P.3d 432. We review the district court’s evidentiary rulings for 8 an abuse of discretion. McEwen v. MCR, LLC, 2012 MT 319, ¶ 16, 368 Mont. 38, 291 P.3d 1253. ¶16 We generally do not review issues raised for the first time on appeal. Brookins v. Mote, 2012 MT 283, ¶ 24, 367 Mont. 193, 292 P.3d 347. We may review “a claimed error not previously raised in the district court which affects fundamental constitutional rights where failing to review it may result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process.” Paulson v. Flathead Conserv. Dist., 2004 MT 136, ¶ 40, 321 Mont. 364, 91 P.3d 569. This Court exercises plenary review of constitutional issues, “such as an alleged violation of the right to due process.” In re Marriage of Cini, 2011 MT 295, ¶ 15, 363 Mont. 1, 266 P.3d 1257. DISCUSSION ¶17 1. Whether Clark is entitled to a new trial and a new judge based on erroneous evidentiary rulings, biases of witnesses, the failure of some witnesses to attend trial, or the court’s failure to appoint trial counsel. ¶18 In his pro se brief, Clark alleges numerous factual, evidentiary and procedural errors, which we summarize as follows: (1) inaccurate and fraudulent witness testimony, particularly with regard to the time of day that the accident took place and the order of events following the accident, (2) law enforcement withheld relevant evidence and failed to attend the trial and the court prevented Clark from presenting evidence, (3) the trial was procedurally unfair due to Clark’s hearing issues and lack of representation by counsel, and (4) Clark did not knowingly and intelligently waive his right to a jury trial. 9 ¶19 We agree with the Appellees that Clark’s factual challenges are unsupported and that he fails to provide any grounds for concluding that the court’s findings were clearly erroneous. His evidentiary challenges are similarly unsupported by argument as to how any specific ruling was an abuse of discretion, or which relevant evidence the court refused to consider. Clark has not shown that the District Court abused its “broad” discretion in deciding the admissibility of evidence or that any allegedly improper ruling materially affected his substantial rights. Stevenson v. Felco Indus., 2009 MT 299, ¶ 16, 352 Mont. 303, 216 P.3d 763; see M. R. Evid. 103(a) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]”). ¶20 Though the trial transcript indicates that Clark on more than one occasion complained of having difficulty hearing, the District Court made every effort to accommodate his needs by repeating information for him and assuring that he heard and understood all of the proceedings as the trial progressed. ¶21 Clark asserts that he was entitled to court-appointed counsel. There is no absolute right to counsel in civil proceedings, however, particularly where a defendant’s deprivation of liberty is not at stake. See Turner v. Rogers, ___ U.S. ___, 131 S. Ct. 2507, 2518 (2011); see also In re Marriage of Prescott, 259 Mont. 293, 297, 856 P.2d 229, 232 (1993). Clark consented to the withdrawal of his counsel and chose to proceed pro se. 10 ¶22 Finally, on February 17, 2011, Clark filed a Waiver of Jury Trial, requesting that “the above-captioned matter be tried to the court sitting without a jury,” which he signed on February 10, 2011. There is no indication that he did not understand that he was waiving his jury trial and that a bench trial would be held. Since Clark is not entitled to a new trial, he also is not entitled to a new judge. ¶23 Accordingly, we affirm the District Court’s judgment against Clark and his liability to Vianna and Juanita. ¶24 2. Whether the District Court committed reversible error by proceeding to trial without addressing Edythe’s competency or ensuring the parties met statutory notice requirements, and whether the trial violated Edythe’s right to due process. ¶25 Edythe argues, first, that the District Court erred by failing to address her mental competency, as requested by her counsel prior to trial; second, that the plaintiffs failed to serve her with statutorily-required notice following her counsel’s withdrawal from representation; and third, that these pre-trial errors, as well as the trial in which she presented no defense, violated her fundamental right to due process of the law. a. Competency ¶26 While she recognizes that a party suffering from mental health problems does not necessarily have a right to a competency evaluation or the assistance of a conservator, Edythe argues that “the District Court’s failure to address this issue prior to the trial materially affected Edythe’s rights at trial.” She points out that, either her “mental deficiencies were real and she deserved, at least, a cursory review” of her competency to stand trial, “or they were not, and she should have been afforded an opportunity to at a 11 minimum testify, or better still, to have been treated as the party to the action that she was.” Edythe’s appellate counsel notes that, while Edythe was physically present at her trial, aside from a handful of instances, “the record is absolutely silent as to Edythe’s participation,” and indeed indicates Edythe “was not even in the courtroom as the trial progressed.” The trial transcript indicates at one point that Edythe was outside of the courtroom eating, and the court, with Clark’s approval, proceeded to hear testimony in her absence. ¶27 Vianna responds that there was no evidence Edythe suffered from mental health issues, given that “[t]here was no court-ordered mental examination conducted on her prior to trial.” Additionally, because the question of competency was raised only by “ancillary” co-counsel in a motion to withdraw from representation, Vianna contends it effectively was raised for the first time on appeal and should not be reviewed. Juanita adds to these arguments that Stephens’s motion requested as relief only his withdrawal as counsel and continuation of the trial date and, further, after filing the motion, he continued to represent Edythe for four months, but “never submitted any additional motion or evidence on behalf of Edythe to back up his contention.” Offering no authority, she argues that Stephens was required to file a separate motion requesting a competency evaluation. According to both Appellees, Edythe did not preserve the issue because she failed to challenge her own competency when she appeared pro se at trial. For the reasons explained below, we disagree with these arguments. 12 ¶28 Under § 72-5-401, MCA, any person who is interested in the protected person’s welfare may seek a conservatorship. See In re Conservatorship of Kloss, 2005 MT 39, ¶¶ 8-10, 326 Mont. 117, 109 P.3d 205 (recognizing that even opposing counsel has standing to petition for a conservatorship under the statute). As noted, Stephens was Edythe’s counsel of record when he filed a motion to withdraw, in which he raised concerns based on conversations with Edythe’s doctor and Clark, as well as his own observations, that Edythe was incompetent and required a conservator. His motion stated in part as follows: Edythe Rice is no longer competent, in counsel’s opinion, to understand the nature of the proceedings or assist in her own defense. There has been a serious decline in her mental state, and it is believed that she would not be a competent witness and could only testify through her prior deposition. On January 14, 2011, counsel had telephonic contact with Dr. John Foster, Edythe Rice’s physician. He advised that he had conducted a mini mental status exam (MMS). He found mild cognitive impairment primar[ily] impacting recent memory and ability to recall details. He stated that Edythe would be fairly easily confused especially under stressful conditions. He concluded her ability to testify as a witness would be significantly compromised. . . . It is counsel’s opinion that Edythe Rice, as an incompetent person, needs to have a conservator appointed so that she may have a legal representative to protect her interests, and that the current status of her mental health and the circumstances under which she is currently bound, dictate the need for a conservatorship before any proceedings may move forward in this matter. . . . The remedy is to continue the matter and have a conservator appointed to Edythe Rice in order to protect her legal interests. ¶29 Within two weeks of filing his motion to withdraw, Stephens filed a motion to allow Edythe to testify by deposition, which stated again that Edythe “may not be a competent witness based on her mental impairment[.]” These pre-trial motions raised the 13 issue of Edythe’s competency before the District Court and requested as relief the appointment of a conservator. ¶30 After approximately five years of pre-trial litigation, Edythe’s attorney raised concerns, based in part on her doctor’s opinion, that she was incompetent and could no longer understand the proceedings against her. Edythe then proceeded to trial without counsel, did not present a defense, and was apparently absent from the courtroom during portions of her trial. Whether or not Stephens filed a separate motion, we conclude that he put the court on notice of the problem sufficiently to preserve the issue for review. See State v. West, 2008 MT 338, ¶ 17, 346 Mont. 244, 194 P.3d 683 (rationale behind the “timely-objection rule” is to bring “alleged errors to the attention of each court involved, so that actual error can be prevented or corrected at first opportunity”) (quotation marks and citation omitted). ¶31 During trial, Clark expressed concern about his mother’s mental condition and her ability to serve as a witness. He stated, “I have a doctor’s statement that said she should not be put on the court stand.” The court recognized “there’s no guarantee that what she’s able to testify to she has an understanding of at this time,” and decided to admit her deposition as testimony. The District Court faced an understandably difficult challenge in attempting to provide appropriate procedural protections to two unrepresented litigants where significant interests were at stake. See Turner, 131 S. Ct. at 2519. The court aptly took measures to mitigate Edythe’s lack of representation and limited ability to comprehend trial proceedings by permitting her to adopt her deposition as her trial 14 testimony. See Richard Zorza, A New Day for Judges and the Self-Represented: The Implications of Turner v. Rogers, 50 Judges’ J., 16 (Fall 2011) (noting that best practices in pro se cases include allowing unrepresented parties to adopt written submissions as sworn testimony). We nonetheless recognize, based on our review of the entire record in this case, that the failure to evaluate Edythe’s competency prior to trial raises significant questions of the fundamental fairness of the proceedings with respect to her unrepresented participation in the trial. We conclude that these circumstances required an evaluation of Edythe’s need for a conservator. b. “Rule 10 Notice” Requirement ¶32 Edythe argues, secondly, that the Plaintiffs failed to meet the “Rule 10 notice” requirements provided in U. Dist. Ct. R. 10 and § 37-61-405, MCA, after Stephens withdrew from representation. The rule and statute require that when an attorney withdraws from representing a party to an action or proceeding, the opposing party must, “before any further proceedings are had” against that party, provide the party with notice requiring the party to appoint new counsel or personally appear in further proceedings. In Quantum Electric, Inc. v. Schaeffer, 2003 MT 29, ¶¶ 28, 34, 314 Mont. 193, 64 P.3d 1026, we established a “clear rule” requiring strict compliance with the statute and rule “when a party becomes unrepresented.” Noting the “relative ease with which proper notice is given,” we clarified that the Rule 10 notice requirement was satisfied only if it contained each of the components listed in the statute: Accordingly, we hold that in order to properly protect the interests of the unrepresented party, the opposing party, as required by the plain language 15 of § 37-61-405, MCA, must require the unrepresented party, by written notice, to appoint another attorney or appear in person. Further, that written notice must include the date of the next action required in the case. In addition, according to Rule 10, U. Dist. Ct. R., written notice must also include notice that if the unrepresented party fails to appoint an attorney or appear in person within twenty days from the date of the notice, the action or other proceeding will proceed and may result in a judgment or other order being entered against him.2 Quantum Electric, ¶ 27. ¶33 In Quantum Electric, the plaintiffs failed to provide Rule 10 notice following withdrawal of defendants’ counsel, but argued that the defendants’ substantial rights were not prejudiced because they had actual notice of the proceedings. There, the district court’s order for withdrawal of counsel, served on the defendants, included specific language stating that they must advise the court of new counsel within thirty days or proceed pro se. Quantum Electric, ¶ 5. We clarified that the defendant’s receipt of actual notice and appearance in subsequent proceedings did not render such error harmless and reversed a summary judgment ruling in favor of the plaintiffs. Quantum Electric, ¶ 35. ¶34 Edythe points out that Vianna provided Rule 10 notice to Clark after his counsel moved to withdraw, but did not provide any such notice to Edythe following the court’s May 18, 2011 Order Allowing Withdrawal of Edythe Rice’s Counsel of Record. Vianna claims that the notice sent to Clark on January 10, 2011, “was intended for both parties, although it only included Clark’s name.” She fails to recognize that Edythe was a 2 U. Dist. Ct. R. 10 now provides twenty-one days from the date of notice for the unrepresented party to appoint new counsel. 16 separate party to the lawsuit, on whom separate notice had to be served. Her suggestion that notice served upon Clark was sufficient for both parties is, moreover, implausible: Edythe’s counsel of record was not granted leave to withdraw from representation until more than four months after Vianna served notice upon Clark. ¶35 We disagree with Vianna’s contention that Quantum Electric is inapplicable because, there, “[t]he plaintiff failed to send any kind of notice as contemplated by Rule 10 and the statute,” whereas here, notice sent to Clark provided Edythe with actual notice as demonstrated by her appearance at the trial. The plaintiffs in this case failed to send Edythe any form of Rule 10 notice following withdrawal of her counsel and we have made clear that actual notice is insufficient. Quantum Electric, ¶ 35. Nor does it matter here, as Vianna argues, that Quantum Electric was decided prior to trial, on summary judgment—in both cases, plaintiffs failed to meet the statutory notice requirements and final judgment was entered in their favor. The Rule 10 notice requirement is an important procedural safeguard intended specifically to protect unrepresented litigants like Edythe from procedural unfairness. Puhto v. Smith Funeral Chapels, Inc., 2011 MT 279, ¶ 16, 362 Mont. 447, 264 P.3d 1142. We hold that the plaintiffs’ failure to provide Rule 10 notice to Edythe prejudiced her substantial rights and constitutes reversible error. Quantum Electric, ¶ 36. Accordingly, on the authority established in Quantum Electric, we agree with Edythe that the Plaintiffs’ failure to serve her with Rule 10 notice at the time she became unrepresented requires reversal of the District Court’s judgment against her. 17 c. Due Process ¶36 Finally, Edythe argues that the District Court denied her the opportunity to participate in her trial because she did not deliver an opening statement, call or cross- examine witnesses, give a closing argument, or have the opportunity to submit proposed findings of fact and conclusions of law. She states that, while the District Court made “model” efforts to guide Clark through the trial as a pro se litigant, “Edythe was hardly afforded such accommodations.” We must again acknowledge the difficulty of fairly and efficiently guiding unrepresented parties through trial proceedings and commend the District Court’s efforts to accommodate the parties’ needs in this case. While her appellate counsel again points out that Edythe was silent throughout the proceedings, there is no indication in the record that the court prevented Edythe from presenting a defense. We have concluded instead that Edythe’s failure to participate in the proceedings raises concerns about her competency to stand trial. ¶37 Our review of the record reveals that Edythe was generally not treated as a separate party in many of the pre-trial and trial proceedings. The court failed to address her competency despite her counsel’s request, the Appellees failed to provide her with Rule 10 notice after her counsel withdrew, and she was deemed liable for all of the accident-related damages without actively participating in her own trial. Appellees argue repeatedly that these issues should have been raised at trial by the parties. We, however, agree with Edythe’s appellate counsel that denying review of these issues would be substantially unjust—“namely, that someone who might have mental health issues, was 18 denied clearly-required statutory notice regarding the proceedings, all while appearing without counsel, be required to raise all of these concerns to the District Court at a trial.” ¶38 Because we reverse and remand on Edythe’s first two claims, we need not decide whether, independent of those concerns, the conduct of the trial itself violated Edythe’s due process rights. Weidow v. Uninsured Employers’ Fund, 2010 MT 292, ¶ 22, 359 Mont. 77, 246 P.3d 704 (“This Court attempts to avoid constitutional issues whenever possible.”) (quotation marks and citation omitted). ¶39 For the foregoing reasons, we reverse the District Court’s judgment against Edythe and remand the case for an evaluation of Edythe’s need for a conservator and new trial as to Edythe’s vicarious liability only. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ JIM RICE /S/ BRIAN MORRIS | March 5, 2013 |
4471706f-f17b-474c-b0ec-a816ea3a511a | Simpson v. Simpson | 2013 MT 22 | DA 11-0781 | Montana | Montana Supreme Court | DA 11-0781 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 22 LARISSA L. SIMPSON, Petitioner, Appellee, and Cross Appellant, v. DENNIS SIMPSON, Respondent, Appellant, and Cross Appellee. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DR 06-1018 Honorable Ingrid Gustafson, Presiding Judge COUNSEL OF RECORD: For Appellant: Christopher J. Gillette, Attorney at Law, Bozeman, Montana For Appellee: John M. Kauffman, Kasting, Kauffman & Mersen, P.C., Bozeman, Montana Submitted on Briefs: October 30, 2012 Decided: January 31, 2013 Filed: __________________________________________ Clerk January 31 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Dennis Simpson (“Dennis”) appeals the denial of his motion to modify child support by the Thirteenth Judicial District Court, Yellowstone County. Larissa Simpson (“Larissa”) cross-appeals the District Court’s denial of her motion to invalidate the parties’ stipulation amending the final decree. We affirm both issues. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Dennis and Larissa were married on December 17, 1988, in Twin Bridges, Montana. Larissa filed a petition for dissolution of the marriage on October 13, 2006, citing serious marital discord. At the time of the dissolution, Dennis and Larissa had three minor children. Dennis’s primary source of income was from Simpson’s Hot Springs, Inc., d/b/a Bozeman Hot Springs (“the Hot Springs”), of which he is an owner. The Hot Springs afforded Dennis an income of roughly $1,500,000.00 a year. Larissa worked as a homemaker. ¶3 As part of the dissolution, Dennis and Larissa entered into a Property Settlement Agreement (“the Agreement”) and a Stipulated Final Parenting Plan (“the Plan”) in October of 2006. The Agreement distributed Dennis’s and Larissa’s property and allocated their debts and liabilities. Under the Agreement, Dennis retained the marital residence, the retirement and investment accounts in his name, vehicles titled in his name, accounts held in his name, and all real and personal property in his possession. He also assumed sole responsibility for all bills that existed at the time of the dissolution. Larissa was to receive several forms of payment from Dennis. These payments consisted of a $10,000.00 per month payment “for life” and a $500,000.00 payment to be rendered in 3 total by January 7, 2009. Dennis’s monthly payment obligation was set to begin “in the month following the parties’ youngest child’s graduation from high school or one month following his 19th birthday.” Dennis was also required to make the payments on Larissa’s vehicle and give Larissa a lifetime membership to a fitness center. The Agreement finally provided that it “shall not be modified in any future legal proceeding under the authority of § 40-4-201(6), MCA.” ¶4 The Plan directed Dennis to pay Larissa $10,000.00 per month in child support until “terminated by emancipation of each child or each child’s graduation from high school,” but in no event later than each child’s 19th birthday. Thus, the combined operation of the Plan and the Agreement entitled Larissa to a $10,000.00 per month payment from Dennis for the rest of her life, first in child support, and later, after the youngest child reached 19 years of age, in the form of a property settlement. The District Court found that the Agreement was not unconscionable and found that the Plan was in the best interests of the children, adopting and incorporating both into the court’s Final Decree of Dissolution of Marriage, filed November 3, 2006. ¶5 Dennis eventually began to fall behind in paying the $10,000.00 per month in child support. In response, Larissa filed a motion for contempt on August 29, 2008, alleging Dennis owed $77,412.05 in child support through July 2008, and $47,510.41 in an outstanding tax bill he accepted responsibility for under the Agreement. Shortly thereafter, a fire at the Hot Springs resulted in significant damage, and Dennis claimed this fire impaired both his ability to pay his obligations and his ability to appear for a show cause hearing. Dennis accordingly sought a series of continuations and the parties 4 finally agreed to participate in mediation regarding Dennis’s alleged arrearage in May of 2009. In light of the pending mediation, the District Court continued the show cause hearing on Larissa’s motion for contempt, ordering that it could be re-set upon the request of either party following the completion of mediation. ¶6 Dennis has claimed that prior to the mediation both he and Larissa disputed the amount of arrearage and whether child support should continue. At the mediation, Dennis and Larissa stipulated to several modifications of Dennis’s original payment obligations and agreed upon the arrearage. Specifically, Dennis and Larissa agreed to amend the court’s November 3, 2008 final decree to: (1) indefinitely extend the January 7, 2009 deadline for the $500,000.00 lump-sum payment, agreeing that the obligation would accrue simple interest at the rate of five percent per year until paid in full; (2) agree that Dennis owed $55,000.00 in child support through June 2009, and that this arrearage would accrue five percent annual interest beginning January 7, 2009, until paid in full; (3) agree that Dennis would pay $6,000.00 per month in “child support” beginning July 1, 2009, to be paid by automatic deposit; (4) agree that the remaining $4,000.00 in child support owing each month would accrue five percent annual interest until paid in full; (5) agree that until the obligations are paid in full, any net proceeds greater than $500.00 from the sale of Dennis’s real or personal property would be paid towards his obligations; and (6) agree that Dennis had roughly six months to either satisfy his outstanding tax obligation or remove Larissa’s liability. These agreements were memorialized in a document entitled “Stipulation and Order Amending Final Decree,” (“the Stipulation”) and it was signed by Larissa, but not Dennis. Notably, the Stipulation 5 did not decrease Dennis’s total monthly child support obligation in light of Larissa’s diminished parental responsibilities. Instead, the Stipulation provided for a delayed child support payment schedule and set the interest rate to be applied to any arrearage. ¶7 After the mediation, Dennis and Larissa engaged in protracted wrangling over Larissa’s discovery requests. In response to Dennis’s recalcitrance and failure to pay the mediated child support obligation, Larissa requested that the court set a hearing on her motion for contempt, which the court scheduled for November 17, 2010. Following the hearing, the Court ordered Dennis to begin paying child support per the Stipulation on December 1, 2010, and to pay the outstanding tax obligation. ¶8 Dennis filed a Motion to Modify Child Support (“the Motion”) on November 17, 2010. The Motion alleged that the $10,000.00 per month in child support was unconscionable in light of changed circumstances. Specifically, Dennis alleged that Larissa was no longer supporting any children, as two of his three children had reached the age of majority and the youngest was residing with him, and argued that Larissa’s income had changed. Larissa opposed the Motion, arguing that circumstances had not changed and that the child support was part of a “greater agreement” dividing the marital estate and could therefore not be modified without reforming “the entire agreement.” ¶9 At a March 16, 2011 show cause hearing concerning Larissa’s motion to hold Dennis in contempt for failing to abide by the court’s November 17, 2010 order, Larissa challenged the validity of the Stipulation. There, Larissa somewhat incongruously claimed that the Stipulation was invalid while also asking the court to hold Dennis in contempt for failing to follow its terms regarding the payment of child support. In a 6 subsequent motion, Larissa claimed the Stipulation lacked either sufficient consideration or mutual consent and argued the Plan and Settlement were not modifiable. ¶10 The District Court addressed Dennis’s motion to modify child support and Larissa’s motion to invalidate the Stipulation in its September 23, 2011 order. The court denied Dennis’s motion to modify child support payments by concluding that the parties intended to provide Larissa a $10,000 per month income regardless of her parental responsibilities. In support, the court cited Dennis’s statement that characterizing payments as child support was a “misnomer” in light of Larissa’s lack of parenting responsibilities. The court reasoned its conclusion was bolstered by the fact that the Stipulation did not reduce child support payments even though “Larissa [had] no children residing with her.” Because Dennis’s “child support” obligation seemed to exist independent of Larissa’s actual child support needs, the court concluded that it was “the obvious intention” of the parties to provide Larissa $10,000 per month for life, regardless of labels. ¶11 The court similarly denied Larissa’s motion to invalidate the stipulation, finding that because the parties had “significant disputes” concerning the amounts Dennis owed Larissa, “there clearly was consideration for the stipulation.” More importantly, the court found that Larissa was estopped from asserting the Stipulation was invalid in light of her prior representations that the Stipulation embodied the parties’ mediated agreement and because of her various efforts to enforce its terms. ¶12 Dennis and Larissa’s appeals followed the District Court’s September 23, 2011 order dispatching their motions. 7 STATEMENT OF THE ISSUES ¶13 1. Whether the District Court erred by denying Dennis’s Motion to Modify Child Support. ¶14 2. Whether the District Court erred by denying Larissa’s motion to invalidate the parties’ stipulation amending Dennis’s child support and lump sum payments. STANDARD OF REVIEW ¶15 We review a district court’s overall decision on modification of child support for an abuse of discretion. In re Marriage of Wilson, 2009 MT 203, ¶ 12, 351 Mont. 204, 210 P.3d 170. A trial court abuses its discretion when it acts arbitrarily without conscientious judgment or so exceeds the bounds of reason as to work a substantial injustice. In re Kessler, 2011 MT 54, ¶ 15, 359 Mont. 419, 251 P.3d 147. Further, the court’s findings of fact are reviewed for clear error, and its conclusions of law are reviewed for correctness. In re Marriage of Damschen, 2011 MT 297, ¶ 22, 363 Mont. 19, 265 P.3d 1245. A divorce court is also a court of equity, Libra v. Libra, 157 Mont. 252, 256, 484 P.2d 748 (1971), and when we consider matters of an equitable nature, we review findings of fact and conclusions of law with an eye towards doing “complete justice.” In re Marriage of Stoneman, 2008 MT 448, ¶ 22, 348 Mont. 17, 199 P.3d 232; see § 3-2-204(5), MCA. DISCUSSION ¶16 1. Whether the District Court erred by denying Dennis’s Motion to Modify Child Support. 8 ¶17 The District Court denied Dennis’s motion to modify the child support payments by concluding that the parties intended that Dennis would pay Larissa $10,000.00 per month for life, regardless of whether it was labeled as child support or a property settlement. As noted, this decision was based on the court’s interpretation of the joint operation of the Plan, Agreement, and Stipulation, and Dennis’s and Larissa’s representations to the court. ¶18 On appeal, Dennis argues the District Court erred by using extrinsic evidence to rewrite the unambiguous language of the Plan. Because the Plan termed Dennis’s payment obligations as “child support,” Dennis denies that the parties intended the Agreement and the Plan to jointly provide Larissa with $10,000.00 per month regardless of her parental responsibilities. Instead, Dennis argues the plain language of the Plan established that the $10,000.00 per month payments owed to Larissa were child support, and were therefore modifiable pursuant to § 40-4-208, MCA. As a consequence, Dennis argues the District Court erred by denying his motion to modify child support in light of clearly changed circumstances. ¶19 Larissa counters that each party intended that Larissa was to receive $10,000.00 per month for life, regardless of labels. Larissa argues this intent is evident from Dennis’s characterization of the Plan’s use of “child support” as a “misnomer” and from the general nature of the division of the marital estate. Larissa also argues that because of a court’s equitable powers in dissolution proceedings, see Karr v. Karr, 192 Mont. 388, 409-10, 628 P.2d 267 (1981), courts are not bound by the labels affixed to obligations. 9 ¶20 As originally executed, the Plan provided that Dennis owed Larissa $10,000.00 per month in “child support” until the youngest of their three children reached the age of majority. However, the court considered the context of the agreements, circumstances of the parties, and Dennis’s representations to the court to deny Dennis’s motion to modify the child support. As the court noted, under the Stipulation the parties agreed to maintain what amounted to the same $10,000.00 per month child support obligation after two of the children had aged out of child support considerations and after the youngest child was residing solely with Dennis. The court also considered Dennis’s prior statement that Larissa’s characterization of the child support payments was a “misnomer” in light of her diminished parental responsibilities. Dennis contests the District Court’s consideration of these surrounding circumstances and claims any reference to external evidence was inappropriate. ¶21 It is generally true that “evidence of the circumstances under which an instrument was made may not be considered where the language of the instrument is clear and certain in its terms.” Mary J. Baker Revocable Trust v. Cenex Harvest States, Coops., Inc., 2007 MT 159, ¶ 47, 338 Mont. 41, 164 P.3d 851. Yet the court was right to not ignore the context of the child support obligation. Indeed, it is well-established that “the operative meaning [of a contract] is found in the transaction and its context rather than in the law or in the usages of people other than the parties.” Restatement (Second) of Contracts, § 212 cmt. a (1981). Here, as the District Court noted, “[i]t would make no sense for Dennis to agree as he did to provide child support to Larissa in any amount [after the children had either aged out of consideration or moved in with Dennis], but for 10 the obvious intention of the parties to provide monthly income to Larissa of $10,000 per month.” We agree, and as we outline below, the court’s consideration of this context was not an abuse of discretion. ¶22 The District Court’s holding comports with our longstanding recognition that the general rule prohibiting the application of extrinsic evidence to an unambiguous writing does not preclude all reference to the circumstances of the agreement. In Hopper v. Hopper, 183 Mont. 543, 550, 601 P.2d 29 (1979), we concluded that “this Court will look past mere labels to the substance of the parties’ agreement” to determine the intended nature of particular obligations. We have likewise recognized that “ ‘meaning can almost never be plain except in context,’ ” Mary J. Baker Revocable Trust, ¶ 48, (quoting Restatement (Second) of Contracts, § 212 cmt. b (1981) (emphasis added)), and determining the object of a writing necessarily requires consideration of the objective circumstances of the agreement. We have previously adopted the Ohio Supreme Court’s articulation of the benefits of this approach: These parties [to the writing in question] may be fairly presumed to have understood the matter about which they were contracting. But the same thing cannot be said of every court and jury that may be called on to interpret their contract. To enable the court and jury to be as wise as the parties, and so to arrive at and give application to the words they have used, and thus carry out their intentions, the law permits them to hear a full description, from evidence, of the subject matter of the contract, and of all the circumstances that surrounded the parties at the time it was made; and to learn what were the motives and inducements that led to the contract, and the object to be attained by it; . . . . The object or tendency of this evidence is not to contradict or vary the terms of the instrument, but to enable the court to come to the language employed, with an enlightened understanding of the subject matter in reference to which it has been used. 11 Mary J. Baker Revocable Trust, ¶ 49, (quoting Hildebrand v. Fogle, 20 Ohio 147, 157 (1851)). In Bridges & Co. v. Bank of Fergus County, we similarly recognized that: The face of an instrument is not always conclusive of its purpose. The [parol evidence] rule regards the circumstances of the parties and executes their real intention, and prevents either of the parties to the instrument from committing a fraud on the other by claiming it to be what it in fact is not. In other words, the real transaction may be proved. 77 Mont. 524, 538, 251 P. 1057 (1926); see also § 1-4-102, MCA (“For the proper construction of an instrument, the circumstances under which it was made . . . may also be shown so that the judge is placed in the position of those whose language the judge is to interpret.”). ¶23 More specifically regarding the circumstances of this case, we have recognized that this Court is not bound by labels given by the parties to provisions in their separation agreements. King v. King, 276 Mont. 500, 503, 917 P.2d 434, 436 (1996). On several occasions, we have refused to modify a maintenance award when it has been determined to be “an integral part of the property distribution and that was the intent of the parties at the time of the agreement[.]” King, 276 Mont. at 503-04, 917 P.2d at 437; In re Marriage of Robertson, 237 Mont. 406, 773 P.2d 1213 (1989); Washington v. Washington, 162 Mont. 349, 354, 512 P.2d 1300, 1302-03 (1973). It follows that the District Court properly considered the objective circumstances of the parties and context of the agreements to determine the peculiar meaning of “child support” in this case. Here, when the Plan and Agreement were executed, the parties had a substantial marital estate, with Dennis’s annual income estimated at over $1.5 million. The youngest child was nine years old. Thus, aside from the lump sum payment of $500,000.00, and without 12 consideration of the child support payments, the Agreement provided Larissa with no distribution of property and no other monetary payment from Dennis for ten years. Further, under the Stipulation, Dennis agreed to continue to pay $10,000.00 per month in child support despite the fact that no children resided with Larissa. Even more tellingly, Dennis sought and obtained an order blocking Larissa from enforcing the child support payment through Montana’s Child Support Enforcement Division by arguing that because Larissa had never been primary custodian of any of the children, “the characterization of her payments as ‘child support’ is a misnomer.” ¶24 As noted, we have previously recognized exceptions to the general rule that courts may not consider evidence of the circumstances of a writing when the language is clear. Mary J. Baker Revocable Trust, ¶¶ 47-53; see In re Estate of Stukey, 2004 MT 279, ¶ 73, 323 Mont. 241, 100 P.3d 114 (“ ‘The judge, however, may consider circumstances surrounding the execution [of a writing], including the situation of the subject of the instrument and of the parties, to place himself in a position to interpret the language’ ”) (quoting Martin v. Laurel Cable TV, 215 Mont. 229, 233, 696 P.2d 454, 457 (1985)); Newell v. Nicholson, 17 Mont. 389, 393, 43 P. 180 (1896) (affirming admission of testimony on technical or peculiar meaning of words in an agreement “in the particular instance before the court.”). When we look at the context of the agreements filed by the parties in support of the final decree of dissolution, it is clear that Dennis’s obligation to pay the $10,000.00 per month in child support “was undertaken by [him] in exchange for [Larissa’s] forbearance in regard to the property of the marital estate.” Robertson, 237 Mont. at 410, 773 P.2d at 1216. Dennis’s child support obligation therefore cannot be 13 severed from the Settlement without destroying the parties’ agreements. Robertson, 237 Mont. at 410, 773 P.2d at 1216. This conclusion is bolstered by the context of the Stipulation and Dennis’s statement to the District Court that the characterization of his monthly obligation as “child support” was a “misnomer.” It follows that the District Court did not exceed the bounds of reason by determining that the parties may have placed some “otherwise peculiar signification” on the term “child support.” Laurel Cable TV, 215 Mont. at 233, 696 P.2d at 457. We accordingly conclude that the District Court did not err by concluding that the parties intended Dennis’s “child support” obligation to be a form of property settlement not subject to modification pursuant to § 40-4-208, MCA. ¶25 2. Whether the District Court erred by denying Larissa’s motion to invalidate the parties’ stipulation amending Dennis’s child support and lump sum payments. ¶26 The District Court denied Larissa’s motion to invalidate the Stipulation, concluding that Larissa was estopped from denying an agreement she had previously acknowledged and finding that the agreement contained sufficient consideration because it settled a dispute concerning the amount of arrearage. On appeal, Larissa argues that because Dennis did not detrimentally rely on “any representation or act” by Larissa regarding the Stipulation, the court erred by finding she was estopped from challenging the Stipulation’s validity. Larissa further asserts the court erred in finding the Stipulation contained consideration by arguing Dennis provided insufficient past consideration. Because we agree that Larissa is estopped from denying the Stipulation, we need not address her latter argument. 14 ¶27 First, “[j]udicial estoppel is a doctrine created by judges that . . . seeks to prevent a litigant from asserting a position [that is] inconsistent, conflicts with, or is contrary to one that she has previously asserted in the same or in a previous proceeding . . . .” Nelson v. Nelson, 2002 MT 151, ¶ 20, 310 Mont. 239, 50 P.3d 139. We have recognized that the “ ‘[j]udicial estoppel doctrine is equitable and is intended to protect the courts from being manipulated by chameleonic litigants who seek to prevail, twice, on opposite theories.’ ” Nelson, ¶ 20 (quoting 28 Am. Jur. 2d. Estoppel and Waiver § 33 (2012)). Thus, although judicial estoppel is a form of estoppel, it partakes rather of positive rules of procedure based on manifest justice and, to a greater or lesser degree, of considerations of orderliness, regularity, and the expedition of litigation, and “those elements such as reliance and injury, or prejudice to the individual, which are generally essential to the operation of equitable estoppel, may not enter into judicial estoppel, at least not to the same extent.” Kauffman-Harmon v. Kauffman, 2001 MT 238, ¶ 15, 307 Mont. 45, 36 P.3d 408 (quoting Rowland v. Klies, 223 Mont. 360, 367, 726 P.2d 310, 315 (1986) (emphasis added)). The primary goal of judicial estoppel is to preserve the integrity of the judicial process, and reliance by the opposite party, while an element of promissory or equitable estoppel,1 is not required. ¶28 Here, Larissa frequently acknowledged the Stipulation in filings before the court and repeatedly sought to enforce its terms. She specifically referenced the validity of the 1 Equitable estoppel provides that a person may not deny the existence of a statement of fact if they intentionally led another person to believe it was true and to rely on that belief. 28 Am. Jur. 2d Estoppel and Waiver § 39 (2012). Promissory estoppel similarly provides that a promisor is bound by a promise that “the promisor reasonably expects to induce action or forbearance on the part of the promisee . . . and that does induce action or forbearance . . . .” 29 Am. Jur. 2d Estoppel and Waiver § 51 (2012) (emphasis added). 15 Stipulation while resisting Dennis’s motion for a protective order and relied upon the Stipulation when opposing Dennis’s motion to modify child support. In filings to the court, Larissa acknowledged “[t]he parties stipulated at mediation to the temporary modification of certain conditions of the original settlement,” outlined those amendments, sought to enforce the stipulated arrearage, and attached a copy of the Stipulation. She agreed that “the agreements made at mediation did not substantially alter the parties’ obligations,” and sought to use Dennis’s “bad faith” failure to abide by the terms of the Stipulation in support of her motion for contempt. Larissa further acknowledged the validity of the Stipulation in her response to Dennis’s motion to modify child support, arguing therein that Dennis “[had] not become current with his child support arrearages, which the parties set forth in their mediated agreement as $55,000 as of January, 2009, and accruing interest at 5% thereafter.” (Emphasis added.) Moreover, Larissa prevailed in her attempts to enforce the Stipulation, as the court’s November 17, 2010 order enforced the terms of the Stipulation and required Dennis to arrange for the automatic transfer of $6,000.00 in child support each month. Larissa further sought to enforce this order, and through it the Stipulation, in a January 21, 2011 motion, while Larissa’s counsel acknowledged “[w]e believe that we entered into that [Stipulation] agreement,” at a March 16, 2011 show cause hearing. ¶29 In light of these representations, Larissa may not now deny the validity of the Stipulation. Regardless of whether Dennis relied on the representations, allowing a litigant to alternatively acknowledge or deny the validity of an agreement according to the shifting demands of their self-interest would undermine the integrity of judicial 16 proceedings. Judicial estoppel applies where, as here, “chameleonic” litigants advance opposite theories in an attempt to manipulate the court. Nelson, ¶ 20. We therefore find that the District Court correctly concluded Larissa was judicially estopped from denying the Stipulation. Larissa succeeded in persuading the court to enforce the terms of the Stipulation on several occasions and may not thereafter take an inconsistent position. ¶30 Because we find that Larissa was estopped from denying the validity of the Stipulation, we need not address Larissa’s arguments concerning whether the Stipulation was supported by sufficient consideration. Larissa repeatedly asked the District Court to either enforce the Stipulation or enforce orders of the court reflecting the terms of the Stipulation. Larissa is therefore estopped from proffering further arguments attacking the validity of the Stipulation, whether relating to the sufficiency of consideration or otherwise. See Englund v. Englund, 169 Mont. 418, 420-21, 547 P.2d 841 (1976). CONCLUSION ¶31 We accordingly affirm the decisions of the District Court denying Dennis’s motion to modify child support and Larissa’s motion to invalidate the Stipulation. ¶32 Affirmed. /S/ Michael E Wheat We Concur: /S/ Mike McGrath /S/ Brian Morris /S/ Beth Baker 17 Justice Patricia O. Cotter concurs and dissents. ¶33 I dissent from the Court’s resolution of Issue One and concur with the Court’s resolution of Issue Two. ¶34 The Court goes to tortuous lengths to rationalize its conclusion that the parties did not truly intend for Dennis’s “child support” obligations to actually be “child support” obligations. In so doing, the Court ignores both the provisions of the contracts negotiated between the parties and settled law. ¶35 The Plan, negotiated in 2006, unequivocally provided for Dennis to pay Larissa monthly child support payments in the sum of $10,000, as calculated in accordance with § 40-4-204, MCA, and the Montana Child Support Guidelines. The obligation was to continue until terminated by emancipation of each child, but in no event later than each child’s nineteenth birthday. The parties prepared Montana Child Support Guidelines Worksheets A and B, and attached these worksheets to the Plan that was submitted to the District Court for approval. The worksheets reflected the incomes of both parties and the parenting arrangements in effect at the time. According to the Plan, the eldest and youngest child would reside primarily with Dennis and the middle child would reside primarily with Larissa. The worksheets reflected that each child would be residing essentially equally with both parents. Subsequently, on November 3, 2006, the District Court entered a Decree of Dissolution, obligating Dennis to pay $10,000 per month for child support, for the care of the children. ¶36 In sum, the Plan, the Stipulation, and the Decree all provided for the payment of child support until the children were emancipated. Nowhere in the documents did the 18 parties or the court say or even infer that the child support obligation was actually intended as a form of property settlement. In order for the Court to reach this conclusion, it disregards the plain language of both the parties’ agreements and the District Court’s Decree of Dissolution, and rewrites all three documents. ¶37 In defense of its decision, the Court attaches significance to the fact that by the time the parties entered the 2009 Stipulation, none of the children resided with Larissa. Opinion, ¶ 23. However, as indicated above, only one of the children resided primarily with Larissa when the parties agreed to the child support calculation in the 2006 Plan. Further, Larissa freely conceded in her testimony that the parties intended to comply with the Child Support Guidelines, and that they intended an open residential schedule with the children. These circumstances underscore the intent of the parties to have Dennis support the children regardless of where they lived. The Court ignores these factors in its haste to declare contractual child support obligations—which are incorporated into a District Court Decree—to be something else altogether. ¶38 In In re Marriage of Craib, 266 Mont. 483, 880 P.2d 1379 (1994), the parties were before the Court on cross-motions seeking to modify provisions of a decree of dissolution. Kenneth sought to introduce certain information regarding income tax responsibility, arguing to the Court that since the parties’ agreement incorporated into the decree was silent on the point of tax payments, the Court must now determine who is responsible for the payment. Craib, 266 Mont. at 498-99, 880 P.2d at 1389. The district court denied admission of any evidence pertaining to the circumstances at the time of the 19 dissolution, concluding that the parties’ agreement “speaks for itself.” Craib, 266 Mont. at 499, 880 P.2d at 1389. We affirmed this ruling, stating: We conclude the District Court properly refused to admit evidence in this proceeding about the circumstances at the time of the dissolution. We further conclude that the court’s statement that the agreement speaks for itself is a determination that the evidence sought to be admitted was not relevant to this proceeding. Craib, 266 Mont. at 499, 880 P.2d at 1389. ¶39 This Court has a long history of interpreting contracts to allow the document to speak for itself: The true rule is, to give effect to the intention of the parties if the words they employ will admit of it. But if the words used, by their clearness and certainty, absolutely forbid the aid of extrinsic evidence in their interpretation, it would be changing the certain written contract of the parties to let in outside parol proof. Parties must contract for themselves, courts cannot make contracts for them, and the rules of interpretation are utterly unavailing to aid a contract or agreement that is specific and certain in its terms, and clearly speaks what the parties intended it should. . . . The language must control and not the circumstances. The written words must stand and no parol proof can destroy them. Taylor v. Holter, 1 Mont. 688, 698-99 (1872) (emphasis in original). The majority’s decision represents a striking departure from these long-standing rules. The words “child support” are clear and unequivocal in their meaning, yet the Court ignores the language of the parties’ agreements and the District Court’s Decree, and substitutes its own contradictory interpretation. ¶40 An agreement speaks for itself. Absent a mistake or imperfection of the writing that is put in issue by the pleadings, or a contention that the agreement itself is invalid— 20 neither of which is alleged here—there can be no evidence of the terms of the agreement other than the contents of the writing. Section 28-2-905(1), MCA. When the language of a contract is clear, “there is nothing for the courts to interpret or construe and the court must determine the intent of the parties from the wording of the contract alone.” Mary J. Baker Revocable Trust v. Cenex Harvest States, Coops., Inc., 2007 MT 159, ¶ 55, 338 Mont. 41, 164 P.3d 851 (quoting Doble v. Bernhard, 1998 MT 124, ¶ 19, 289 Mont. 80, 959 P.2d 488); see also § 28-3-401, MCA (“The language of a contract is to govern its interpretation if the language is clear and explicit and does not involve an absurdity.”). Therefore, “the duty of the court is to apply the language as written.” Doble, ¶ 19. I disagree strongly with the Court’s determination to jettison these statutory mandates in the interests of reaching a desired result. ¶41 On November 17, 2010, Dennis filed a Motion to Modify Child Support pursuant to § 40-4-208, MCA. He argued that the financial impact of the fire at the hot springs, when combined with the economic downturn, rendered him unable to pay child support as required under the Decree and Stipulation. He also argued that two of the children were emancipated. Instead of addressing the merits of these claimed changes in circumstance under § 40-4-208, MCA, the District Court determined that the parties intended the monthly payments to be for the benefit of Larissa and not the children. We perpetuate this clear error. ¶42 I would reverse and remand for consideration of Dennis’s Motion to Modify Child Support under § 40-4-208, MCA. On remand, the court would consider the totality of the previous and present circumstances pursuant to §§ 40-4-204(2) and -208(2)(b), MCA, in 21 determining whether a substantial change in circumstances has actually occurred. Having done so, the court could find justification for Dennis’s motion, or reject it as unsupported by the facts. The point is that a child support order should be reviewed for modification under the child support statutes, keeping in mind the best interests of the children. It is important to perpetuate the distinction between child support on the one hand, and property settlement and maintenance on the other. I fear that our decision today gives tacit approval to a blurring of these wholly separate obligations. ¶43 I therefore concur and dissent. /S/ Patricia O. Cotter | January 31, 2013 |
26fc1ac9-2b1b-4c54-baf1-f0c9168b58c7 | Hartsoe v. Christopher | 2013 MT 57 | DA 12-0351 | Montana | Montana Supreme Court | DA 12-0351 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 57 JOHN HARTSOE, Plaintiff and Appellant, v. HONORABLE DEBORAH KIM CHRISTOPHER, Defendant and Appellee. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DV-11-220 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: John L. Hartsoe, self-represented, St. Ignatius, Montana For Appellee: Margaret A. Sampsel, Special Assistant Attorney General, Risk Management & Tort Defense Division; Helena, Montana Submitted on Briefs: January 16, 2013 Decided: March 5, 2013 Filed: __________________________________________ Clerk March 5 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 John Hartsoe (Hartsoe) appeals from the judgment of the Twentieth Judicial District Court, Lake County, granting Judge Deborah Christopher’s (Judge Christopher) motion for summary judgment. We affirm. ¶2 We review the following issue on appeal: ¶3 Did the District Court err by granting summary judgment to Judge Christopher? FACTUAL AND PROCEDURAL BACKGROUND ¶4 On August 9, 2011, Hartsoe filed a complaint against Judge Christopher in Lake County. In the complaint, Hartsoe alleged Judge Christopher violated a number of his United States and Montana constitutional rights. In January, 2012, Judge Christopher voluntarily appeared in the case by filing a motion for summary judgment on the grounds that she was entitled to judicial immunity from Hartsoe’s claims. Further, she asserted that Hartsoe’s claims were barred by the doctrines of res judicata and collateral estoppel. ¶5 The District Court held a hearing on the motion on March 27, 2012. At the hearing, Hartsoe objected that summary judgment was premature because he had not yet served a summons and complaint on Judge Christopher, and that she should not be allowed to accelerate the proceedings by a voluntary appearance. The court denied Hartsoe’s objection and granted Judge Christopher’s motion for summary judgment. In its order, the District Court cited to § 2-9-112(2), MCA, and a number of Montana and federal cases to support its decision that Judge Christopher was entitled to judicial immunity from Hartsoe’s claims. 3 ¶6 The District Court also concluded Hartsoe’s claims were barred by the doctrines of res judicata and collateral estoppel. In making this determination, the court took judicial notice, pursuant to M. R. Evid. 202(b)(6), of Hartsoe v. Heisel, et al., Cause No. CV-11-17-M- DWM-JCL, in which Hartsoe filed a complaint in the United States District Court for the District of Montana, Missoula Division, in January, 2011. One of the named defendants in the case was Judge Christopher. In his complaint, Hartsoe alleged that Judge Christopher violated his right to counsel, his right to individual dignity, his right to reasonable bail, and his right to due process. ¶7 On May 23, 2011, U.S. District Judge Donald Molloy filed an order in which he found, inter alia, that Judge Christopher was entitled to judicial immunity from Hartsoe’s claims. Judge Molloy dismissed the complaint for failure to state a claim. Hartsoe appealed to the U.S. Court of Appeals for the Ninth Circuit. His appeal was dismissed because he failed to respond to an order of the court. Based on Hartsoe v. Heisel, the District Court in the present matter found that Hartsoe’s claims were already examined and rejected by a federal judge, and the issue of judicial immunity already litigated and decided. STANDARD OF REVIEW ¶8 We review de novo a district court’s grant of summary judgment, applying the same M. R. Civ. P. 56 criteria as the district court. Dubiel v. Mont. DOT, 2012 MT 35, ¶ 10, 364 Mont. 175, 272 P.3d 66. The moving party must establish the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. Dubiel, ¶ 10. We review a district court’s conclusions of law for correctness. Dubiel, ¶ 10. 4 ¶9 In addition, a district court’s application of res judicata is an issue of law which is reviewed for correctness. Wiser v. Mont. Bd. of Dentistry, 2011 MT 56, ¶ 7, 360 Mont. 1, 251 P.3d 675. DISCUSSION ¶10 Did the District Court err by granting summary judgment to Judge Christopher? ¶11 Hartsoe argues the District Court erred by granting Judge Christopher judicial immunity from his claims. He asserts there is no qualified immunity for a state or local government employee who violates state constitutional rights. The State counters that Hartsoe’s claims are based on judicial actions by Judge Christopher for which she had jurisdiction as a state district court judge. Because “[t]he principles of judicial immunity are well established,” the State argues the District Court correctly granted Judge Christopher judicial immunity. ¶12 Pursuant to § 2-9-112(2), MCA, “[a] member, officer, or agent of the judiciary is immune from suit for damages arising from the lawful discharge of an official duty associated with judicial actions of the court.” Judicial immunity applies with no stated limitation, and judges are absolutely immune from suit for civil damages for acts performed in their judicial capacities. Hartsoe v. McNeil, 2012 MT 221, ¶ 5, 366 Mont. 335, 286 P.3d 1211 (citing Silvestrone v. Park Co., 2007 MT 261, ¶ 14, 339 Mont. 299, 170 P.3d 950; Steele v. McGregor, 1998 MT 85, ¶ 16, 288 Mont. 238, 956 P.2d 1364). Judicial immunity is a public policy designed to safeguard principles of independent decision making. Hartsoe, ¶ 5 (citing Mead v. McKittrick, 223 Mont. 428, 430, 727 P.2d 517, 519 (1984)). 5 ¶13 All of the acts that form the basis for Hartsoe’s complaint occurred while Judge Christopher was acting in her role as a state district court judge, a fact Hartsoe conceded during the summary judgment hearing. Therefore, the District Court properly granted Judge Christopher judicial immunity from Hartsoe’s claims. Hartsoe also cites to a case from the Ninth Circuit to argue that state judges do not enjoy judicial immunity from unconstitutional actions when there are sufficient facts to grant a party declaratory or injunctive relief against a judge. Hartsoe did not seek declaratory or injunctive relief against Judge Christopher in this case, and he has not shown that there are sufficient facts to grant him such relief. He has thus failed to show why judicial immunity would not apply here. ¶14 The State additionally argues that Hartsoe’s claims are barred by the doctrine of res judicata, a conclusion the District Court reached that Hartsoe did not specifically challenge on appeal. The doctrine of res judicata bars relitigation of a claim that a party has already had the opportunity to litigate. Olsen v. Milner, 2012 MT 88, ¶ 20, 364 Mont. 523, 276 P.3d 934. “Central to res judicata are the concepts that litigation must come to an end at some point, and that judicial economy is promoted by a single action instead of multiple suits.” Olsen, ¶ 20. ¶15 Pursuant to M. R. Evid. 202(b)(6), we take judicial notice of the proceedings in Hartsoe v. Heisel. There, Hartsoe alleged Judge Christopher violated several of his constitutional rights, based on the same fact allegations made in the case at hand. The U.S. District Court decided that Judge Christopher was entitled to judicial immunity from Hartsoe’s claims. We agree with the District Court’s conclusions in the present matter that 6 Hartsoe’s claims have therefore already been litigated, and the issue of judicial immunity already decided. Accordingly, the doctrine of res judicata bars Hartsoe from relitigating his claims. ¶16 Hartsoe also argues on appeal that the District Court violated Rule 4(t) of the Montana Rules of Civil Procedure. However, Hartsoe only raises this assertion in the statement of the issues section of his appellate brief; he fails to present any legal authority or argument in support of his contention. We therefore decline to consider the issue further. See State v. Morris, 2010 MT 259, ¶ 16, 358 Mont. 307, 245 P.3d 512 (“On appeal, the Appellant has the burden to present legal authority that establishes error on the part of the district court.”). CONCLUSION ¶17 For the reasons stated above, we affirm the District Court’s judgment. ¶18 Affirmed. /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ BRIAN MORRIS /S/ LAURIE McKINNON /S/ BETH BAKER | March 5, 2013 |
3bd6da6e-0e21-4531-8bd9-1622a5cf624a | Pub. Land/Water Access Ass'n, Inc. v. Jones | 2013 MT 31 | DA 12-0289 | Montana | Montana Supreme Court | DA 12-0289 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 31 PUBLIC LAND/WATER ACCESS ASSOCIATION, INC., Petitioner and Appellant, v. ROGER JONES, Respondent and Appellee. APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Teton, Cause No. DV-11-054 Honorable Wm. Nels Swandal, Presiding Judge COUNSEL OF RECORD: For Appellant: J. Devlan Geddes; Bejamin J. Alke; Goetz, Gallik & Baldwin, P.C.; Bozeman, Montana For Appellee: John E. Bloomquist, Rachel A. Kinkie; Doney Crowley Payne Bloomquist, P.C.; Helena, Montana Submitted on Briefs: November 28, 2012 Decided: February 12, 2013 Filed: __________________________________________ Clerk February 12 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 This is the fourth appeal involving public access across Appellee Roger Jones’s Teton County property. In prior litigation, Public Land/Water Access Association, Inc. (Association) established public prescriptive easements over Boadle Road, Boadle Bridge and Canal Road, which together form a route across the property. The Association now appeals a decision of the Ninth Judicial District Court denying its petition for supplemental relief and dismissing its complaint against Jones for damages resulting from his removal of the Boadle Bridge. We reverse the District Court’s order and remand the case for further proceedings. ¶2 The dispositive issue is whether the District Court erred by dismissing the Association’s claims and denying its petition for supplemental relief after Jones removed a bridge connecting Boadle and Canal Roads. PROCEDURAL AND FACTUAL BACKGROUND ¶3 In 2000, Jones purchased a parcel of land in Teton County, on which Boadle and Canal Roads intersect. The roads connect across Sun River Slope Canal via the Boadle Bridge, which Teton County periodically maintained and then rebuilt in 1990. The public has since the early 1900s used the roads and bridge for various purposes, including recreation, moving cattle, travel to work, and access to the town of Choteau. In 1999 or 2000, Jones’s predecessor-in-interest erected a gate on Boadle Road and posted signs indicating the road was closed to the public. Upon purchasing the property, Jones continued to deny public access to both roads. 3 ¶4 The Association’s first lawsuit against Jones established a public prescriptive easement across both Boadle Road and Boadle Bridge. Pub. Lands Access Assn., Inc. v. Jones (PLA I), 2004 MT 394, 325 Mont. 236, 104 P.3d 496. In February 2002, while that case was pending, a wildland fire destroyed the bridge and Jones replaced it in April 2002 with a personally-owned flatbed railcar. Jones argued on appeal to this Court that “because [he] built and owns the current bridge,” he could destroy it or prevent public access to it from Boadle Road. PLA I, ¶ 28. We disagreed with Jones and held that “the public has a right to access the bridge and the land under the bridge without interference from Jones[.]” PLA I, ¶ 31. ¶5 The parties’ second dispute concerning public access, this time to Canal Road, first came before the Court in Public Lands Access Assn., Inc. v. Jones (PLA II), 2008 MT 12, 341 Mont. 111, 176 P.3d 1005, and was resolved when we affirmed in a memorandum opinion that a public prescriptive easement had been established by facts nearly identical to those we considered in PLA I. Pub. Lands Access Assn., Inc. v. Jones (PLA III), 2011 MT 236N, ¶ 6, 362 Mont. 545, 272 P.3d 125. ¶6 On November 22, 2011, the Association filed a Petition for Supplemental Declaratory Relief and Complaint for Damages, alleging that Jones had destroyed the bridge in violation of PLA I. The complaint stated that Jones had removed Boadle Bridge, placed “no access” signs along Boadle Road, and built a new bridge accessing a private road, which he marked with “no trespassing” signs. The complaint included claims of tortious interference with public easement, public nuisance and actual malice, 4 for which the Association claimed punitive damages. The Association petitioned for supplemental declaratory relief in the form of a sanction against Jones, and an order requiring him to finance reconstruction of the bridge, remove all signs indicating that Boadle Bridge was closed, and pay reasonable costs and attorneys’ fees. On December 23, 2011, Jones filed a M. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim on the basis that no court had addressed rights to the Boadle Bridge and that “[t]o the extent that the public had an interest in any bridge over the Sun River Slope Canal, that interest was in the bridge that existed prior to February 2002.” The District Court held a hearing on March 7, 2012. ¶7 On April 11, 2012, the District Court dismissed the Association’s complaint and petition, based primarily on its conclusion that: to the extent the public had an easement to use a specific bridge, that bridge was destroyed by fire in February 2002. The public retains an easement for the Boadle Road, which includes an easement for a bridge should the public or other person or entity construct a bridge within the Boadle Road right-of- way. The District Court held that Jones had no obligation to facilitate public access. In denying supplemental relief, the District Court stated that neither it “nor the Montana Supreme Court has ever been asked to grant or has actually granted the public an interest in Jones’ bridge or reserved such post-judgment relief for a later time.” STANDARD OF REVIEW ¶8 “We review de novo a district court’s decision on a motion to dismiss.” Martin v. Artis, 2012 MT 249, ¶ 8, 366 Mont. 513, 290 P.3d 687. We review for an abuse of 5 discretion a district court’s ruling granting or denying supplemental relief under § 27-8- 313, MCA. Western Tradition Partn. v. Atty. Gen. of Mont., 2012 MT 271, ¶ 7, 367 Mont. 112, 291 P.3d 545. DISCUSSION ¶9 1. Did the District Court err by dismissing the Association’s claims and denying its petition for supplemental relief after Jones removed a bridge connecting Boadle and Canal Roads? ¶10 The Association argues that the District Court erred by concluding on the basis of Jones’s ownership of the bridge that he could remove it from the public right-of-way. The Association points out that our holding in PLA I was not contingent on who owned the bridge, and, moreover, that Jones’s railcar bridge was in place when we issued that decision. We agree with the Association that we squarely addressed the question whether Jones could remove his personally-owned bridge from the roadway. We summarized Jones’s argument as follows: Therefore, because Jones built and owns the current bridge, he argues he can either destroy the bridge to prevent the public from accessing it once they reach the end of the public easement, or he can continue to keep the gate on the bridge locked so the public cannot access it. PLA I, ¶ 28. In holding that the Boadle Bridge was included within the scope of the prescriptive easement, we expressly disagreed with Jones’s argument that he could remove the bridge or otherwise interfere with public access to it: [T]he public has a right to access the bridge and the land under the bridge without interference from Jones as the easement burdens the servient tenement, Jones’ land, not merely the physical structure connecting the Boadle Road to the Canal Road. See § 70-17-103, MCA. Whether Jones 6 has rights in the bridge itself is a question that was not litigated below and will not be addressed on appeal. PLA I, ¶ 31. ¶11 Jones now asserts that, since we declined to discuss ownership of the bridge in PLA I, we did not address whether the public had a right to access the particular bridge in place at the time, which he independently purchased and installed. Again, we disagree. By definition, an easement involves the right to use property owned by another. See Ray v. Nansel, 2002 MT 191, ¶ 22, 311 Mont. 135, 53 P.3d 870 (“An easement is a nonpossessory interest in land that gives a person the right to use the land of another for a specific purpose.”). The scope of a prescriptive easement is determined, not by ownership of the underlying property, but by “use during the prescriptive period.” Han Farms, Inc. v. Molitor, 2003 MT 153, ¶ 24, 316 Mont. 249, 70 P.3d 1238. In PLA I, we concluded based on the historical public use of Boadle Bridge that the bridge fell within the easement’s scope. PLA I, ¶ 31 (“[T]he evidence presented at trial clearly established the public used the Boadle Road, including the Boadle Bridge[.]”). Thus, we did not consider “[w]hether Jones has rights in the bridge itself” because that issue had not been raised and was not necessary to our decision that the bridge was included in the public right of access. PLA I, ¶ 31. ¶12 Our pronouncement in PLA I that the public had a right to access Boadle Bridge “without interference from Jones,” PLA I, ¶ 31, regardless of whether “Jones built and owns the current bridge,” PLA I, ¶ 28, became the law of the case, which “must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent 7 appeal.” Hafner v. Conoco, Inc., 1999 MT 68, ¶ 20, 293 Mont. 542, 977 P.2d 330 (citation and quotation marks omitted). We deny Jones’s attempt to re-litigate a question already decided. Jones’s private ownership of the railcar bridge and his concerns about its suitability for public use are matters to be evaluated in determining the appropriate relief to be granted. ¶13 At the time Jones installed the railcar bridge, there had been public use of the roadway for a hundred years, save for the period when Jones and his predecessor blocked access. See PLA I, ¶ 8; PLA III, ¶ 3. Litigation over that access was pending when Jones took it upon himself to place the bridge within the roadway, upon which it “became a part thereof.” State ex rel. Donlan, 49 Mont. 517, 522-23, 143 P. 984, 985 (1914) (citing State ex rel. Foster v. Ritch, 49 Mont. 155, 156-57, 140 P. 731, 731 (1914)). Given the circumstances existing at the time, Jones’s unilateral intent that the bridge not be used by the public is not determinative. ¶14 The District Court noted in its factual findings, but then neglected to consider, the following sequence of events: (1) in April 2002, Jones purchased and installed the flatbed railcar as a bridge; (2) in July 2003, the District Court’s judgment granted public access to Boadle Road; and (3) in December 2004, we affirmed in PLA I that the public held a prescriptive easement to Boadle Road, including the bridge. During the March 2012 hearing, Jones acknowledged that the railcar bridge was in place during the original litigation over access to Boadle Road and Boadle Bridge. He also agreed that he and third parties had used the railcar as a bridge beginning in April 2002, until he removed it 8 in September 2011—approximately nine years later. In ruling that “Jones is under no obligation to facilitate [public] access,” the District Court ignored the state of the record at the time that we issued PLA I. Jones acted purely on his own initiative when he installed the bridge while PLA I was pending; we then recognized the public had a right to use the bridge free from interference; and Jones’s subsequent removal of the bridge constituted interference with public access, in violation of PLA I. ¶15 The District Court also considered the fact that, despite gaining access to Boadle Bridge as early as 2003, the public did not actually use the bridge because it gained access to Canal Road only in September 2011, when we decided PLA III. Jones had at that point already removed the bridge. Of course, the reason the public did not use the bridge was that Jones had blocked access to roads this Court ultimately held were open to the public. See PLA I; PLA III. In any event, whether the public actually exercised its right of access to the bridge is not relevant to the question of Jones’s compliance with PLA I. As noted, at the time of that decision, the railcar bridge was in place and we recognized the public’s right to use “the bridge and the land under the bridge without interference from Jones[.]” PLA I, ¶ 31. The District Court misapprehended our decision when it stated that PLA I granted public access only to the bridge that was destroyed by fire in 2002, and thus its dismissal of the Association’s complaint was based on an incorrect legal interpretation. ¶16 The District Court’s reasons for denying the petition for supplemental relief similarly are based on legal error. Section 27-8-313, MCA, provides that “[f]urther relief 9 based on a declaratory judgment or decree may be granted whenever necessary or proper.” The court stated that “[t]here is no final judgment determining liabilities, obligations, or rights pertaining to the physical structure spanning Sun River Slope Canal such that the supplemental relief [the Association] now requests is warranted.” It stated further that the Association had “never requested an interest in the bridge.” Given the discussion above, and the scope of the prescriptive easement determined in PLA I, the Association is entitled to consideration of its petition. PLA I, ¶ 31. ¶17 For the foregoing reasons, we reverse and remand the case for further proceedings on the Association’s Petition for Supplemental Declaratory Relief and Complaint for Damages. /S/ Beth Baker We concur: /S/ Mike McGrath /S/ Michael E Wheat /S/ Patricia Cotter /S/ Brian Morris | February 12, 2013 |
3a8ca879-264d-4a75-8703-23cfb8e063ef | State v. Haldane | 2013 MT 32 | DA 12-0055 | Montana | Montana Supreme Court | DA 12-0055 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 32 STATE OF MONTANA, Plaintiff and Appellee, v. MARK ANDREW HALDANE, Defendant and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 11-152A Honorable Holly Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender, Jennifer A. Hurley, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana Kyla C. Murray, City Prosecutor, City of Bozeman, Bozeman, Montana Submitted on Briefs: December 4, 2012 Decided: February 12, 2013 Filed: __________________________________________ Clerk February 12 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Mark Andrew Haldane (Haldane) was convicted of driving under the influence of alcohol (DUI) following a jury trial in the City of Bozeman Municipal Court. He appealed to the District Court. Haldane appeals from an order of Montana’s Eighteenth Judicial District Court, Gallatin County, affirming the Municipal Court’s denial of Haldane’s motion to suppress that had challenged the particularized suspicion to stop Haldane based on the obstruction of a license plate. Haldane also asserts that his counsel rendered ineffective assistance by failing to elicit certain testimony from the officers at trial and not renewing the motion to suppress once those facts were elicited. Lastly, Haldane challenges his sentence on the grounds that it violated his due process rights because it was based on his indigency. We affirm the District Court’s denial of Haldane’s motion to dismiss, reject his ineffective assistance of counsel arguments, vacate his sentence on due process grounds, and remand for entry of a new sentence that comports with due process concerns. ISSUES ¶2 Haldane raises the following three issues on appeal: ¶3 1. Was Haldane’s constitutional right to be free from unreasonable seizure violated when officers stopped his car based on an obstruction of his temporary registration permit by snow and a trailer hitch? ¶4 2. Did Haldane’s counsel render ineffective assistance by failing to properly investigate and elicit testimony at the suppression hearing that the officers could in fact 3 read the temporary permit, and later for failing to renew the motion to suppress once the officer testified at trial that he could read the permit? ¶5 3. Did Haldane’s sentence violate due process because it was based on indigency? FACTUAL AND PROCEDURAL BACKGROUND ¶6 On January 12, 2011, City of Bozeman police officers Lindsay Shepherd and Hal Richardson executed a traffic stop of a car driven by Haldane. Officer Richardson was a field training officer and was assigned to supervise Officer Shepherd, who was in the second phase of field training at the time of the stop. Officer Shepherd was driving and Officer Richardson was in the passenger seat of the patrol car. The officers encountered Haldane’s vehicle as it was stopped at a red light at the intersection of 23rd Street and Main Street in Bozeman, Montana. When the officers pulled up behind Haldane’s vehicle, they noticed that its license plate was obstructed by snow and a trailer hitch. The officers observed that snow had built up at the base of the license plate well, which prevented the officers from viewing the digits on Haldane’s temporary license plate. It was not actively snowing and had not snowed for at least a day prior to the traffic stop. ¶7 Police officers use the license plate number of a vehicle to check its registration using the Mobile Data Terminal (MDT) in their patrol vehicles. The MDT allows officers to connect to the dispatch center. Running license plate numbers through the MDT provides officers with information about the vehicle and its owner, and is commonly used to verify whether a vehicle’s registration is current. ¶8 Haldane was driving a black Ford Explorer at the time of the stop. Haldane had purchased the vehicle two days prior to the stop from a local auto dealer. The auto dealer 4 provided Haldane with a temporary registration and affixed a temporary plate. The ball trailer hitch was attached to the vehicle at the time of purchase. Haldane claims that he was unaware that his temporary plate was obstructed in any way. ¶9 Officer Shepherd initiated the traffic stop as Haldane turned onto St. Estephe Drive. Officer Shepherd approached the vehicle and asked Haldane for his driver’s license, registration, and proof of insurance. Haldane was only able to produce his driver’s license. Officer Richardson noticed that Haldane was “fervently” smoking a cigarette and had red, bloodshot eyes. Both officers returned to the patrol car to verify Haldane’s license. When the officers re-approached Haldane’s vehicle to return his license, Officer Richardson asked Haldane how many drinks he had that night. According to Officer Richardson, Haldane slurred and responded, “two to three beers.” Officer Richardson conducted field sobriety tests and noted multiple signs of impairment during the maneuvers, including Haldane’s inability to properly recite the alphabet. Haldane refused to submit to a breathalyzer test and became belligerent. ¶10 Haldane was arrested and charged with the following three offenses: (1) DUI in violation of § 61-8-401, MCA; (2) Driving with an Obstructed Plate in violation of § 61-3-301, MCA; and (3) Operating a Motor Vehicle without Liability Insurance in violation of § 61-6-301, MCA. On May 5, 2011, Haldane filed a motion in Municipal Court to suppress evidence based on a lack of particularized suspicion to conduct the investigative stop. On May 26, 2011, the Municipal Court held a hearing on the motion to suppress. Officers Shepherd and Richardson testified at the hearing. Neither officer was able to recall how Haldane’s registration was verified. 5 ¶11 Following the evidentiary hearing, the Municipal Court issued an order on June 1, 2011, denying Haldane’s motion to suppress. On June 21, 2011, Haldane was found guilty of DUI, first offense, in violation of § 61-8-401, MCA, following a jury trial. The State chose not to pursue the obstructed plates and no insurance charges against Haldane. At trial, both officers testified that the license plate was obstructed by snow and the ball hitch. Officer Richardson recalled that once he approached the vehicle and changed his vantage point, he was able to read the numbers on the license plate. ¶12 On June 29, 2011, the Municipal Court sentenced Haldane for the DUI offense. Originally, the Municipal Court discussed sentencing Haldane to six months in the Gallatin County Detention Center with all but three days suspended, ordering fines totaling $935, and imposing other sentencing conditions. Later in the sentencing hearing, the length of Haldane’s suspended sentence was doubled to one year to allow Haldane more time to make the monthly payments. The Municipal Court instituted a payment plan for the fines and fees that allowed Haldane to pay $100 per month. ¶13 Haldane appealed his conviction to the District Court. Specifically, Haldane challenged the Municipal Court’s denial of his motion to suppress, denial of his motion for a mistrial for wrongfully impaneling the jury, and decision to sustain the State’s objection to the defense’s attempt to impeach Officer Richardson on cross-examination. The District Court affirmed the Municipal Court on all grounds. Of relevance here, the District Court held that the testimony of the officers was credible and sufficient to support the finding of particularized suspicion for the stop. 6 ¶14 Haldane appeals the District Court’s order affirming the Municipal Court’s rulings and the jury’s verdict. Haldane also raises an ineffective assistance of counsel claim, and challenges his sentence on due process grounds. STANDARDS OF REVIEW ¶15 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. Anders, 2012 MT 62, ¶ 9, 364 Mont. 316, 274 P.3d 720; State v. Spaulding, 2011 MT 204, ¶ 13, 361 Mont. 445, 259 P.3d 793; State v. Hafner, 2010 MT 233, ¶ 12, 358 Mont. 137, 243 P.3d 435. ¶16 We review de novo the mixed questions of law and fact presented by claims of ineffective assistance of counsel. Ariegwe v. State, 2012 MT 166, ¶ 13, 365 Mont. 505, 285 P.3d 424; State v. Edwards, 2011 MT 210, ¶ 13, 361 Mont. 478, 260 P.3d 396. ¶17 We review a sentence of less than one year of actual incarceration for both legality and abuse of discretion. City of Billings v. Edward, 2012 MT 186, ¶ 17, 366 Mont. 107, 285 P.3d 523; State v. Breeding, 2008 MT 162, ¶ 10, 343 Mont. 323, 184 P.3d 313. In reviewing the legality of a sentence, we look to whether the sentencing court had statutory authority to impose the sentence and whether the sentence falls within statutory parameters. Breeding, ¶ 10; State v. Stephenson, 2008 MT 64, ¶ 15, 342 Mont. 60, 179 P.3d 502. This determination is a question of law and, as such, our review is de novo. Stephenson, ¶ 15. A sentencing court abuses its discretion when it acts “arbitrarily without employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.” Edward, ¶ 17; Breeding, ¶ 10. This Court reviews 7 de novo whether a district court violated a defendant’s constitutional rights at sentencing. State v. Bullplume, 2011 MT 40, ¶ 10, 359 Mont. 289, 251 P.3d 114; State v. Hill, 2009 MT 134, ¶ 20, 350 Mont. 296, 207 P.3d 307. DISCUSSION ¶18 Was Haldane’s constitutional right to be free from unreasonable seizure violated when officers stopped his car based on an obstruction of his temporary registration permit by snow and a trailer hitch? ¶19 The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution protect individuals from unreasonable searches and seizures. State v. LeMay, 2011 MT 323, ¶ 61, 363 Mont. 172, 266 P.3d 1278; State v. Larson, 2010 MT 236, ¶ 19, 358 Mont. 156, 243 P.3d 1130. Montanans enjoy even greater protections against government intrusions by virtue of an express right to privacy set forth in Article II, Section 10 of the Montana Constitution. State v. Graham, 2007 MT 358, ¶ 12, 340 Mont. 366, 175 P.3d 885; State v. Bullock, 272 Mont. 361, 384, 901 P.2d 61, 75-76 (1995). These constitutional protections apply to investigative stops of vehicles by law enforcement. Lemay, ¶ 61; Larson, ¶ 19. ¶20 Montana law provides that “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.” Section 46-5-401(1), MCA. The State bears the burden of proving that an officer had particularized suspicion to stop a vehicle by showing: (1) objective data and articulable facts from which an officer can make certain reasonable inferences; and (2) a resulting suspicion that the person to be stopped has committed, is committing, or is about to 8 commit an offense. LeMay, ¶ 62; Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842. “Whether particularized suspicion exists is evaluated under the totality of the circumstances 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.” LeMay, ¶ 62; City of Missoula v. Moore, 2011 MT 61, ¶ 16, 360 Mont. 22, 251 P.3d 679. ¶21 The statute at issue here, § 61-3-301(1)(a), MCA, provides that “a person may not operate a motor vehicle . . . upon the public highways of Montana unless the motor vehicle . . . is properly registered and has the proper license plates conspicuously displayed on the motor vehicle.” Furthermore, § 61-3-301(1)(a), MCA, requires that the “license plate must be securely fastened to prevent it from swinging and may not be obstructed from plain view.” The statute defines “conspicuously displayed” as “obviously visible and firmly attached.” Section 61-3-301(4), MCA. Haldane possessed a temporary registration permit at the time of the stop. Section 61-3-224(5), MCA, contains the rules for display of a temporary permit, and similarly requires that the permit “must be plainly visible and firmly attached to the rear exterior of the vehicle where a license plate is required to be displayed.” ¶22 Haldane argues that Montana’s weather and the prevalence of farm and other towing vehicles make it unlawful for law enforcement officers to effectuate a stop on the sole basis that they cannot read a temporary registration permit due to snow and a ball hitch. Haldane maintains that he did not violate the statute because the temporary registration permit was fully visible and readable once the officers approached the vehicle. Haldane relies on Justice Nelson’s concurrences in State v. Rutherford, 2009 9 MT 154, 350 Mont. 403, 208 P.3d 389 and State v. Cooper, 2010 MT 11, 355 Mont. 80, 224 P.3d 636. ¶23 In Rutherford, a witness called 911 and reported a suspected drunk driver after a vehicle pulled out in front her and drove erratically. Rutherford, ¶¶ 3-4. The witness could only provide the dispatcher with a partial license plate number because a trailer hitch covered the middle numbers on the plate, but the witness continued to follow the vehicle and provided details about the make, model, and color. Rutherford, ¶ 4. The dispatcher relayed this information to a police officer, who identified the subject vehicle and conducted a traffic stop. Rutherford, ¶¶ 5-6. The officer informed the driver that he had stopped him because the truck’s rear license plate was obstructed and because of a citizen’s complaint. Rutherford, ¶¶ 6-7. The driver was arrested and charged with DUI. Rutherford, ¶ 6. ¶24 The driver challenged whether the arresting officer had particularized suspicion to support the traffic stop. Rutherford, ¶ 13. The driver argued that the alleged obstructed license plate could not provide a lawful basis for a traffic stop because the trailer hitch was factory-installed. Rutherford, ¶ 13. This Court determined that the citizen informant provided reliable objective data from which the officer could infer that the driver was under the influence. Rutherford, ¶ 19. The stop was supported by particularized suspicion, even discounting the matter of the obstructed license plate. Rutherford, ¶¶ 18-20. Justice Nelson concurred in the result, but wrote separately to note his belief that an obscured license plate cannot provide particularized suspicion for a traffic stop: 10 There is nothing in § 61-3-301, MCA, or in Lacasella1 that leads me to the conclusion that an otherwise “conspicuously displayed” and “clearly visible” license plate ceases to be that if the numbers are “obscured” by a trailer hitch, mud, snow, dust, or dirt. If that is the case, then few drivers in this State will be free from a peace officer’s discretionary investigatory stop, given the number of vehicles with trailer hitches and given weather, seasonal road conditions, and the number of dirt and farm roads on which we all drive. “Obscured” license plates are a fact of life; we all have them at one time or another. In my view, a peace officer effecting an investigatory stop needs more particularized suspicion of criminal activity than that afforded by an “obscured” license plate which is otherwise attached to the vehicle in accordance with § 61-3-301, MCA. Rutherford, ¶ 27 (Nelson, J., concurring). ¶25 In Cooper, a driver pulled out directly in front of a highway patrol trooper, crossed the fog line, executed a U-turn, and proceeded at an incredibly slow speed. Cooper, ¶ 3. The trooper performed a traffic stop and told the driver that the reason he stopped her was because her license plate was covered in snow. Cooper, ¶ 3. After an ensuing investigation, the driver was charged with DUI. Cooper, ¶ 3. Based on the totality of the circumstances, we held that the officer had particularized suspicion to stop the driver. Cooper, ¶ 11. Justice Nelson concurred, but reiterated his concerns from Rutherford: I continue to disagree with the proposition that, in this state, a license plate’s being obscured by the natural accumulation of the elements or driving conditions can constitute particularized suspicion for anything— except that Montanans often drive in foul weather and on foul roads. Cooper, ¶ 15 (Nelson, J., concurring). 1 In State v. Lacasella, 2002 MT 326, 313 Mont. 185, 60 P.3d 975, this Court held that an officer did not have particularized suspicion to stop a vehicle with a license plate displayed in the front corner of the windshield, which comported with the requirements of § 61-3-301, MCA. Section 61-3-301, MCA, was amended in 2003 to require display of license plates on the exterior of a vehicle. 11 ¶26 Though both Rutherford and Cooper involved facts in addition to an obstructed plate that gave rise to particularized suspicion, nothing in these decisions forecloses an officer from conducting an investigatory stop based solely on a violation of § 61-3-301, MCA. “A statutory violation alone is sufficient to establish particularized suspicion for an officer to make a traffic stop.” State v. Schulke, 2005 MT 77, ¶ 16, 326 Mont. 390, 109 P.3d 744. While we note Justice Nelson’s concerns, we cannot ignore the plain language of § 61-3-301, MCA, which requires that a license plate “may not be obstructed from plain view” and must be “obviously visible.” The statute serves an important purpose of enabling officers to ascertain if the vehicle is properly registered. Lacasella, ¶ 16. Law enforcement officers are unable to check a vehicle’s registration if the plates are not conspicuously displayed. ¶27 Officer Shepherd testified at both the suppression hearing and at trial that the reason for the investigatory stop of Haldane was because his license plate was obstructed by snow and a ball hitch. Officer Richardson independently noticed that Haldane’s plates were obstructed, and observed this possible violation before discussing it with Officer Shepherd. Because of these obstructions, Officer Shepherd was unable to verify whether the vehicle was properly registered. Such observations are sufficient to allow an officer to develop a resulting suspicion that Haldane was in violation of § 61-3-301, MCA, by having a license plate that was “obstructed from plain view” and not “obviously visible.” Even if a vehicle is properly registered, a driver can still be cited for violation of § 61-3-301, MCA, which is a stand-alone offense. 12 ¶28 Once Officer Shepherd lawfully stopped Haldane, she was authorized to “request the person’s name and present address and an explanation of the person’s actions and, if the person is the driver of a vehicle, demand the person’s driver’s license and the vehicle’s registration and proof of insurance.” Section 46-5-401(2)(a), MCA. Both officers approached Haldane’s vehicle and Officer Shepherd asked for his license, registration, and proof of insurance. We recognize that a stop authorized by § 46-5-401, MCA, “may not last longer than is necessary to effectuate the purpose of the stop.” Section 46-5-403, MCA. However, even if the officers could see the license plate when they approached the vehicle and changed their vantage point, the officers still had the right to speak to the driver and request certain documentation. ¶29 We have determined in previous cases that particularized suspicion can be based on “observations between the time [the officer] initiated the stop of the truck and the time he returned [the defendant’s] identification.” Larson, ¶ 26. Officer Richardson noticed that Haldane’s speech was slurred, his eyes were bloodshot, and his movements were slow. In addition to these common signs of intoxication, Haldane admitted to consuming two to three beers when Officer Richardson asked if he had been drinking. These facts enlarged the scope of the investigatory stop to include a possible DUI offense. See State v. Henderson, 1998 MT 233, ¶ 22, 291 Mont. 77, 966 P.2d 137. ¶30 Haldane has failed to demonstrate that any of the findings of fact upon which the District Court relied in denying Haldane’s motion to suppress were clearly erroneous. The District Court correctly interpreted the law and applied it to those facts in finding that the officers had particularized suspicion to support the investigatory stop. 13 Accordingly, we conclude that Haldane’s right to be free from unreasonable seizures was not violated. ¶31 Did Haldane’s counsel render ineffective assistance by failing to properly investigate and elicit testimony at the suppression hearing that the officers could in fact read the temporary permit, and later for failing to renew the motion to suppress once the officer testified at trial that he could read the permit? ¶32 The Sixth Amendment to the United State Constitution and Article II, Section 24 of the Montana Constitution guarantee the right of effective assistance of counsel. State v. Roundstone, 2011 MT 227, ¶ 32, 362 Mont. 74, 261 P.3d 1009; State v. Sartain, 2010 MT 213, ¶ 29, 357 Mont. 483, 241 P.3d 1032. This Court reviews ineffective assistance of counsel claims under the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Roundstone, ¶ 32; Sartain, ¶ 29. Under the Strickland test, a defendant must prove that (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness, and (2) counsel’s performance prejudiced the defense. Roundstone, ¶ 32; Sartain, ¶ 29. A defendant must satisfy both prongs of the Strickland test to prevail on an ineffective assistance of counsel claim. Whitlow v. State, 2008 MT 140, ¶ 11, 343 Mont. 90, 183 P.3d 861. A defendant must overcome a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. ¶33 We will review an ineffective assistance of counsel claim on direct appeal if the record reveals why counsel acted as he did, or if there is “no plausible justification” for what defense counsel did or failed to do. State v. Kougl, 2004 MT 243, ¶¶ 14-15, 323 Mont. 6, 97 P.3d 1095. While the record does not contain information regarding why 14 Haldane’s attorney acted as he did at trial and during the suppression hearing, the record does reveal a rather lengthy line of questions regarding how Officer Richardson verified the registration of the vehicle and what he observed during the traffic stop. In fact, the District Court described the cross-examination as “dizzying.” Haldane’s direct appeal can be sustained only upon a showing that there was “no plausible justification” for his counsel’s actions. ¶34 Haldane asserts that his counsel failed to elicit testimony from Officer Richardson at the suppression hearing regarding whether Officer Richardson could read Haldane’s temporary registration permit once he approached the vehicle. At the suppression hearing, Officer Shepherd testified that she verified that Haldane’s vehicle was properly registered, but could not recall how she had done so. Officer Richardson testified that he believed Haldane provided documentation which enabled them to check the registration, but he was also unable to recall those details with certainty. At trial, defense counsel pointed out that Haldane’s citation actually contained the license plate number, and Officer Richardson testified that he may have been able to see the plate number once he approached the vehicle and viewed it from a different angle. Haldane argues that had this testimony been elicited at the suppression hearing, the motion to suppress would have been granted. We disagree. ¶35 Section 61-3-301, MCA, requires that a license plate “may not be obstructed from plain view” and must be “obviously visible.” Both officers testified that Haldane’s temporary registration permit was obscured by snow and a ball hitch and could not be seen when they were driving directly behind Haldane’s vehicle. Officer Richardson was 15 unable to read the numbers on the license plate until he changed his vantage point and was standing directly behind the vehicle. The fact that Officer Richardson could see the plate after approaching on foot and standing directly over it does not change the fact that both officers were unable to read the license plate from their vehicles. ¶36 The terms “obviously visible” and “plain view” certainly contemplate a higher standard of visibility than that the plate merely be decipherable upon close inspection by an officer who has exited his vehicle and stands over the bumper. “The purpose of requiring a license plate to be conspicuously displayed on the front and rear of a vehicle is to enable law enforcement officers to ascertain whether a vehicle that is approaching or being followed is properly registered.” Lacasella, ¶ 16. Haldane’s interpretation of § 61-3-301, MCA, compels a hypertechnical reading of the statute and ignores its purpose. As discussed in ¶¶ 27-30 of this Opinion, the investigatory stop was supported by particularized suspicion and the officers did not exceed the permissible scope of the investigatory stop. The fact that Officer Richardson could read the license plate numbers upon close inspection does not change these legal conclusions. ¶37 An ineffective assistance of counsel claim cannot succeed when predicated on counsel’s failure to take an action which, under the circumstances, would likely not have changed the outcome of the proceeding. Riggs v. State, 2011 MT 239, ¶ 11, 362 Mont. 140, 264 P.3d 693; Heddings v. State, 2011 MT 228, ¶ 33, 362 Mont. 90, 265 P.3d 600. We conclude that there is no reasonable probability that the results of Haldane’s proceedings would have been different had his counsel elicited additional testimony at the suppression hearing or renewed his motion to suppress at trial. Therefore, we hold 16 that Haldane has failed to demonstrate that he was prejudiced by his counsel’s actions, and his ineffective assistance of counsel claims must fail. ¶38 Did Haldane’s sentence violate due process because it was based on indigency? ¶39 At the outset, the State argues that Haldane has waived his right to challenge his sentence because he did not object when it was announced by the Municipal Court and did not raise the issue in his appeal to the District Court. The State also contends that Haldane’s active participation in the sentencing discussion precludes his right to challenge his sentence on appeal. While the State is correct in its statement of the general rule for preserving an issue for appeal, the State fails to consider the Lenihan exception, which reads as follows: It appears to be the better rule to allow an appellate court to review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing. Adams v. State, 2007 MT 35, ¶ 55, 336 Mont. 63, 153 P.3d 601; State v. Garrymore, 2006 MT 245, ¶ 11, 334 Mont. 1, 145 P.3d 946 (quoting State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979)). This Court will hear Haldane’s constitutional challenge to his sentence under the Lenihan exception. ¶40 A criminal defendant’s sentence must comport with the due process guarantees of the Fourteenth Amendment to the United State Constitution and Article II, Section 17 of the Montana Constitution. “[A] criminal defendant’s right to due process requires that indigency or poverty not be used as the touchstone for imposing the maximum allowable punishment.” State v. Pritchett, 2000 MT 261, ¶ 28, 302 Mont. 1, 11 P.3d 539; State v. 17 Farrell, 207 Mont. 483, 499, 676 P.2d 168, 177 (1984) (internal quotations marks omitted). ¶41 In Farrell, the defendant was convicted of theft of public assistance funds and was given the maximum ten-year sentence, all suspended. Farrell, 207 Mont. at 487, 676 P.2d at 171. The sentencing court stated that it was imposing the maximum sentence, suspended, because it did not think that the defendant could pay the restitution imposed in less than ten years. Farrell, 207 Mont. at 494, 676 P.2d at 174. The defendant challenged the length of his sentence on appeal, alleging that he was sentenced to the maximum time because he was indigent. Farrell, 207 Mont. at 493-94, 676 P.2d at 174-75. This Court applied a due process analysis and concluded that it was arbitrary and unfair to subject a defendant to the maximum sentence simply because he may not be able to pay the restitution in less than that amount of time. Farrell, 207 Mont. at 498, 676 P.2d at 176-77. We vacated the defendant’s sentence and remanded for further proceedings. Farrell, 207 Mont. at 499, 676 P.2d at 177. ¶42 In Pritchett, the defendant was convicted of burglary and given the maximum twenty-year sentence, all suspended. Pritchett, ¶ 26. The record revealed that the probation/parole officer who prepared the presentence investigation report explicitly recommended the sentence to “give the Defendant adequate time to pay off the restitution.” Pritchett, ¶ 3. This Court determined that, while the sentencing court did not expressly state it was doing so, sufficient evidence in the record supported a conclusion that the length of the sentence was based on the defendant’s indigency, thus violating his due process rights. Pritchett, ¶¶ 35, 37. 18 ¶43 Our review of the record demonstrates that the Municipal Court imposed the maximum sentence on Haldane based on his inability to pay the fines and fees. The record shows that the Municipal Court initially discussed sentencing Haldane to six months in the Gallatin County Detention Center with all but three days suspended, ordering fines totaling $935, and imposing other sentencing conditions. Later in the sentencing hearing, the following colloquy took place: THE COURT: Okay, so the total on that [fines/fees] is going to be $935. And do you want to make monthly payments on that or can you pay that in one shot, Mr. Haldane? HALDANE: I’d have to make monthly payments. THE COURT: What kind of work are you doing right now? HALDANE: I detail cars. With the possibility of my license being suspended I might not have a job, so I could probably do $100 a month right now. THE COURT: Okay, why don’t we do this. I’m going to suspend sentence for one year, and that’ll give, that’ll give you some extra time. It’ll be a six-month sentence suspended for one year except for three days. And with that extra time I’ll go ahead and give you $100 a month time payment schedule. Section 61-8-714(1), MCA, provides that the penalty for DUI first offense shall be imprisonment for not less than 24 hours or more than six months, and by a fine of not less than $300 or more than $1,000. Except for the initial 24 hours of imprisonment, the imprisonment sentence may be suspended for a period of up to one year pending successful completion of court-ordered chemical dependency assessment, education, or treatment. Section 61-8-714(1)(c), MCA. The preceding discussion demonstrates that, by suspending the sentence for a full year instead of doing so for six months, as originally 19 intended, the Municipal Court imposed the maximum sentence available under § 61-8-714, MCA, because of Haldane’s financial situation. Pursuant to Pritchett and Farrell, such sentencing justifications violate due process. ¶44 Accordingly, we hold that the Municipal Court violated Haldane’s due process rights by imposing the maximum sentence for his DUI offense based on his indigency. CONCLUSION ¶45 For the foregoing reasons, we affirm the District Court’s denial of Haldane’s motion to dismiss and reject his ineffective assistance of counsel claims. We vacate Haldane’s DUI sentence on due process grounds, and remand for entry of a new sentence in accordance with this Opinion and the due process guarantees of the Fourteenth Amendment to the United State Constitution and Article II, Section 17 of the Montana Constitution. /S/ Patricia Cotter We Concur: /S/ Mike McGrath /S/ Beth Baker /S/ Michael E Wheat /S/ Brian Morris | February 12, 2013 |
60fe53b5-fa27-4b0b-a6cf-caa232453468 | Marriage of Bain | 2013 MT 42N | DA 12-0276 | Montana | Montana Supreme Court | DA 12-0276 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 42N IN RE MARRIAGE OF: JEFFERY D. BAIN, Petitioner and Appellant, v. WILHELMINA J. BAIN, Respondent and Appellee, and TRAVIS BAIN, Appellant and Intervenor. APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Dawson, Cause No. DR 08-043 Honorable Richard A. Simonton, Presiding Judge COUNSEL OF RECORD: For Appellant: Albert R. Batterman, Attorney at Law, Baker, Montana For Appellee: Peter O. Maltese, Attorney at Law, Sidney, Montana Submitted on Briefs: January 9, 2013 Decided: February 19, 2013 Filed: __________________________________________ Clerk February 19 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 Jeffery Bain appeals from the District Court’s Findings of Fact, Conclusions of Law and Decree of Dissolution of Marriage filed October 6, 2011, and the Order Amending Findings of Fact filed April 12, 2012. We affirm. ¶3 The parties were married in 1989 and separated in 2008. Prior to separation the parties operated a trucking company. Major issues in the property division arose from valuation of the assets and liabilities of that enterprise, and from the respective ownership interests of Jeffery, Wilhelmina and their son Travis, who intervened as a party in the divorce action. The District Court conducted a bench trial in July 2011 and issued findings of fact, conclusions of law and an order in October, 2011. Wilhelmina moved to alter or amend, in April 2012, and the District Court entered an order amending its findings and order. Jeffery argues that the District Court’s division of the marital assets is not supported by substantial evidence; that the Court’s conclusions of law are clearly erroneous; and that the Court abused its discretion by accepting medical expense evidence from Wilhelmina. ¶4 A district court’s division of marital property is governed by § 40-4-202, MCA, which requires consideration of all relevant factors to “equitably apportion” the property between the parties. Arnold v. Sullivan, 2010 MT 30, ¶ 23, 355 Mont. 177, 226 P.3d 594. This Court 3 reviews a district court’s findings of fact regarding the division of marital assets to determine whether the decision is clearly erroneous. 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 evidence convinces us that the district court made a mistake. In re Marriage of Tummarello, 2012 MT 18, ¶ 21, 363 Mont. 387, 270 P.3d 28. If the factual findings are not clearly erroneous, we will reverse the district court’s decision if there has been an abuse of discretion; which occurs when the district court acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason, resulting in a substantial injustice. In re Marriage of Jackson, 2008 MT 25, ¶ 9, 341 Mont. 227, 177 P.3d 474. ¶5 Here the District Court conducted a bench trial, and received hundreds of pages of exhibits along with the briefs of the parties prior to issuing its findings of fact and conclusions of law. The District Court specifically found: “Complicating this case is the absence of any expert testimony in the form of accountants and appraisers. The Court is limited to witnesses who generally do not agree and exhibits which often do not support the testimony.” Nonetheless, the District Court allocated the trucking business, its assets and its indebtedness to Jeffery because he “is the experienced trucker and he has had sole control over the trucking assets for the past three years, and he has incurred any indebtedness that is associated with that business. . . .” ¶6 The District Court considered further arguments and evidence upon Wilhelmina’s motion to alter or amend, and issued amended findings. The District Court noted that Jeffery raised the issue of a $30,000 tax liability for the first time post-trial, resulting from amended 4 tax returns that Jeffery filed. This liability arose from the trucking company, covered tax years after the parties separated, and “is being assumed by Jeffery.” The amended findings increased Jeffery’s debt and reduced Wilhelmina’s debt, resulting in a determination that there should be a $50,000 equalization payment to her, reduced from $90,000 as initially ordered. While there was conflicting evidence, the District Court achieved as equitable a division of the parties’ complicated assets and liabilities as was possible under the circumstances. Jeffery has not established that the District Court’s findings of fact are clearly erroneous or that its conclusions of law are an abuse of discretion. ¶7 The District Court’s findings of fact are supported by substantial evidence and there was not an abuse of discretion. We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for memorandum opinions. ¶8 Affirmed. /S/ MIKE McGRATH We concur: /S/ BETH BAKER /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JIM RICE | February 19, 2013 |
c700e1e9-8296-4ff4-9e88-4ec90a67f094 | State v. Chapman | 2013 MT 95N | DA 12-0474 | Montana | Montana Supreme Court | DA 12-0474 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 95N STATE OF MONTANA, Plaintiff and Appellee, v. ALLISON CHAPMAN, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDC-11-320 Honorable Kenneth R. Neill, Presiding Judge COUNSEL OF RECORD: For Appellant: Allison Chapman (Self-Represented), Great Falls, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana John Parker, Cascade County Attorney, Great Falls, Montana Submitted on Briefs: March 27, 2013 Decided: April 9, 2013 Filed: __________________________________________ Clerk April 10 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Defendant Allison Chapman appeals the decision of the Eighth Judicial District Court, Cascade County, affirming her convictions in Cascade County Justice Court of failing to carry proof of insurance and failing to wear a seatbelt. Chapman argues on appeal that there was no particularized suspicion to stop her vehicle and that she was denied her right to a speedy trial. We affirm. ¶3 On February 12, 2011, at approximately 6:08 p.m., Montana Highway Patrol Trooper Donald Lee stopped Chapman on U.S. Highway 87 after observing that her vehicle had only one working headlight. As Lee approached Chapman’s vehicle, he saw that Chapman was not wearing a seatbelt. Further, Chapman was not able to provide Lee with proof of insurance. Lee cited Chapman with failing to wear a seatbelt in violation of § 61-13-103, MCA, and operating a motor vehicle without proof of liability insurance in violation of § 61-6-302(2), MCA. Chapman appeared in the Justice Court on February 22 and entered pleas of not guilty. The court set a jury trial for June 2, 2011. ¶4 Chapman filed a motion to dismiss the charges on or about April 13, arguing that Trooper Lee lacked particularized suspicion to stop her vehicle. The Justice Court denied the motion on May 9, finding that Lee had reasonable suspicion to stop Chapman’s 3 vehicle based on violations of §§ 61-9-109 and -203, MCA, which require a vehicle to have two operable headlamps at all times. Chapman filed a “Writ of Supervisory Control” in the District Court on or about May 16. The District Court denied the request, stating that it had no authority to issue a writ of supervisory control directed to the Justice Court. ¶5 On the scheduled trial date of June 2, Chapman informed the Justice Court that she intended to enter no-contest pleas to the charges. Justice of the Peace Steven Fagenstrom explained that he normally does not accept a no-contest plea unless the defendant had no recollection of the underlying events. Chapman therefore told the Justice Court to reset her case for trial and filed a motion to disqualify the judge. ¶6 On September 15, the District Court appointed Judith Basin County Justice of the Peace Larry Carver to hear Chapman’s disqualification request. Justice of the Peace Carver conducted a disqualification hearing on November 1 and denied Chapman’s request in a written order dated November 9. ¶7 Meanwhile, on October 21, Chapman filed in the Justice Court another motion to dismiss the charges, this time based on alleged statutory speedy trial violations. Justice of the Peace Fagenstrom denied the motion on November 28. Chapman thereafter filed a motion to reconsider on December 14, which the Justice Court denied on December 22. ¶8 Justice of the Peace Fagenstrom conducted a bench trial on February 8, 2012, and found Chapman guilty of failure to carry proof of insurance and failure to wear a seatbelt. Chapman was fined $20 for the seatbelt violation and $250 for failing to carry proof of insurance. A $35 surcharge was also applied. 4 ¶9 Chapman appealed to the District Court, raising three issues: (1) whether Trooper Lee had particularized suspicion to stop her vehicle; (2) whether Montana law required her to have headlamps illuminated at all times; and (3) whether the Justice Court erred in denying her motion to dismiss for statutory speedy trial violations. On August 2, 2012, the District Court issued an order rejecting all three claims and affirming Chapman’s convictions in Justice Court. Chapman now asserts on appeal before this Court the same three issues she raised in the District Court. ¶10 On Chapman’s appeal from the Cascade County Justice Court, which is a court of record, the District Court functioned as an intermediate appellate court. See §§ 3-5-303 and 3-10-115, MCA. On Chapman’s appeal to this Court, we review the case as if the appeal originally had been filed in this Court. State v. Ellison, 2012 MT 50, ¶ 8, 364 Mont. 276, 272 P.3d 646. We examine the record independently of the District Court’s decision, applying the appropriate standard of review. Ellison, ¶ 8. ¶11 Section 46-5-401(1), MCA, authorizes a peace officer to conduct an investigative stop of “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.” Pursuant to §§ 61-9-109 and -203, MCA, operating a motor vehicle without two headlamps in proper working order is a misdemeanor. Because Chapman was driving a vehicle without two working headlamps in violation of these statutes, Trooper Lee possessed the requisite particularized suspicion to believe that Chapman was committing an offense, which warranted an investigatory stop of her vehicle. State v. Farabee, 2000 MT 265, ¶¶ 15-19, 302 Mont. 29, 22 P.3d 5 175. The District Court did not err in affirming the Justice Court’s denial of Chapman’s motion to dismiss for lack of particularized suspicion. ¶12 As for Chapman’s motion to dismiss for lack of a speedy trial, the record reflects that Chapman did not receive a trial in Justice Court within the statutory six-month period set forth in § 46-13-401(2), MCA. The delay, however, is completely chargeable to Chapman. She filed a writ of supervisory control in the District Court, a motion to disqualify Justice of the Peace Fagenstrom, a motion to dismiss on speedy trial grounds, and a motion to reconsider. Since Chapman caused the delay, the Justice Court correctly attributed the delay to Chapman and correctly denied her motion to dismiss for statutory speedy trial violations. ¶13 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 Justice Court’s findings of fact are supported by substantial evidence and the legal issues are controlled by settled Montana law, which the Justice Court correctly interpreted. The District Court, in turn, correctly applied the standards of review applicable to the Justice Court’s rulings. ¶14 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ JIM RICE | April 10, 2013 |
6c24c619-1c0c-4cc7-80ea-e3e5a3ebc860 | State v. Andress | 2013 MT 12 | DA 11-0297 | Montana | Montana Supreme Court | DA 11-0297 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 12 STATE OF MONTANA, Plaintiff and Appellee, v. JOSHUA KAYE ANDRESS, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 2010-487 Honorable Edward P. McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender, Jennifer A. Hurley, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana Submitted on Briefs: November 21, 2012 Decided: January 22, 2013 Filed: __________________________________________ Clerk January 22 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 The defendant Joshua Kaye Andress appeals from his conviction of felony violation of a permanent order of protection and tampering with a witness. We affirm in part and remand in part. ¶2 Under the terms of a permanent order of protection (POP) dated March 2009, Joshua Andress is prohibited from any contact with his ex-girlfriend, Sara Nichols. In October 2010, Andress saw Nichols in a Missoula bar. It is undisputed that he was within fifteen hundred feet of Nichols in violation of the POP. Andress was on felony probation at this time for previous violations of this POP. Nichols called the police and Andress was subsequently arrested and charged with violating the order of protection. ¶3 While incarcerated at the Missoula County Detention Center, Andress created various notes he claimed were for his attorney. One note, however, was obtained by a soon-to-be-released cellmate, Paul Randleas. Randleas claimed Andress gave him the note to give to one of Andress’s acquaintances, Morgan Styles. The note asked Styles to make an untruthful statement to the authorities to help Andress. Randleas turned the note over to the police upon his release which resulted in Andress being charged with tampering with a witness. Following a jury trial in the Fourth Judicial District Court, Andress was convicted on both counts and sentenced from the bench to 15 years for each charge with 10 years for each charge suspended, to be served concurrently. The subsequent written sentence contained terms and conditions that were not expressly stated during oral pronouncement of sentence. 3 ¶4 On appeal, Andress does not challenge any action taken by the District Court nor does he challenge his sentence; rather, he claims his attorney was ineffective in offering erroneous jury instructions and in failing to file a motion to conform the written sentence to the orally-pronounced sentence. ISSUE ¶5 The issue on appeal is whether counsel rendered ineffective assistance. FACTUAL AND PROCEDURAL BACKGROUND ¶6 In March 2009, after a few years of dating, Sara Nichols sought and obtained a permanent order of protection against Josh Andress, claiming physical and mental abuse. Andress responded by leaving at least ten extremely profane and frightening messages on Nichol’s answering machine. These calls and other actions quickly resulted in multiple violations of the POP, the third and subsequent offenses being felonies. ¶7 On October 16, 2010, while on probation for these charges, Andress entered the Rhino Bar in Missoula and immediately saw Nichols. He left the bar but returned shortly thereafter at which time he saw Nichols was still there and he left again. Nichols claimed he subsequently left and re-entered twice more. She also claimed that he approached her after his third entrance, tapped her on the shoulder and spoke to her.1 He then left the bar and returned for the last time. Nichols left and called 9-1-1. The police came and interviewed Nichols, Nichols’ companion, and Andress but did not arrest Andress that night. The following day, Nichols called Andress’s probation officer, the county 1 Andress denied that he touched or spoke with Nichols, but while in the Missoula County Detention Center he purportedly told Paul Randleas that he had done so. 4 attorney’s office, and one of the responding police officers. Andress was subsequently arrested and charged with violating the POP. ¶8 While jailed in Missoula County, Andress made numerous notes about his case. He claims he made these notes to discuss with his attorney. One note, however, came into the possession of a soon-to-be-released cellmate, Randleas. Randleas testified that Andress gave him the note and asked that he deliver the message contained in it to Morgan Styles, a former co-worker of Andress. The note asked Styles to testify that he saw Andress at the Rhino Bar on the night of October 16 but that Andress spoke with no one and left the bar without returning. Styles never received the note, however, because Randleas, a police informant, turned it over to the police. The police contacted Styles who reported that he was not at the Rhino Bar that night and was out of town for that entire weekend. Andress was charged with tampering with a witness. ¶9 A jury trial was conducted on January 31, 2011, and Andress’s defense was that his contact with Nichols at the bar was unintentional and he never intended to violate the order of protection. He also admitted writing the Styles note but denied giving it to Randleas for delivery. A unanimous jury convicted Andress on both charges. ¶10 On March 23, 2011, the District Court judge orally pronounced sentence, sentencing Andress, as a persistent felony offender, to Montana State Prison (MSP) for 15 years for each charge with 10 years for each charge suspended. The sentences were to run concurrently with each other but consecutive to a two-year sentence that had been 5 imposed on Andress the day before in another Montana district court.2 On March 25, 2011, the District Court issued its written judgment which included the prison sentence as well as 26 terms and conditions of probation and the requirement that Andress pay $260 in fines and fees. ¶11 Andress filed a timely appeal claiming his trial counsel was ineffective for offering jury instructions that set forth an incorrect mental state for the charged offenses, and for failing to move the District Court to conform Andress’s written sentence to his oral sentence. We affirm in part and remand in part. STANDARD OF REVIEW ¶12 We review claims of ineffective assistance of counsel under the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To prevail under Strickland, a defendant must show (1) that counsel’s performance was deficient, and (2) that counsel’s deficient performance prejudiced him or her. Both prongs of this test must be satisfied; thus, an insufficient showing on one prong negates the need to address the other. This Court must also “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” State v. Mitchell, 2012 MT 227, ¶ 21, 366 Mont. 379, 286 P.3d 1196. Claims of ineffective assistance of counsel are mixed questions of law and fact which this Court reviews de novo. St. Germain v. State, 2012 MT 86, ¶ 7, 364 Mont. 494, 276 P.3d 886. 2 On March 22, 2011, Andress appeared before Judge Robert Deschamps on a Petition to Revoke his probation for felony and misdemeanor violations of this same order of protection. Judge Deschamps revoked Andress’s probation and sentenced him to two years at MSP. 6 ¶13 Jury instructions serve an important role in trial. They guarantee decisions consistent with the evidence and the law, which can be accomplished when the instructions are as plain, clear, concise, and brief as possible. District courts have broad discretion when issuing jury instructions, but this discretion is restricted by the overriding principle that jury instructions must fully and fairly instruct the jury regarding the applicable law. The instructions must prejudicially affect the defendant’s substantial rights to constitute reversible error. State v. Hovey, 2011 MT 3, ¶ 10, 359 Mont. 100, 248 P.3d 303 (citations omitted). DISCUSSION ¶14 Did Andress’s trial counsel provide ineffective assistance? ¶15 Andress was charged with violating § 45-5-626(1), MCA, which states in relevant part: A person commits the offense of violation of an order of protection if the person, with knowledge of the order, purposely or knowingly violates a provision of . . . an order of protection under Title 40, chapter 15. Andress stipulated to having knowledge of the protective order and its contents, including the prohibition of being within fifteen hundred feet of Nichols. ¶16 Andress was also charged with witness tampering. Section 45-7-206(1)(a), MCA, provides, in relevant part: A person commits the offense of tampering with witnesses and informants if, believing that an official proceeding or investigation is pending or about to be instituted, the person purposely or knowingly attempts to induce or otherwise cause a witness or informant to: testify or inform falsely . . . . 7 ¶17 By their express language, these statutes provide that violation of the statute requires a person to commit an act “purposely or knowingly.” During settlement of jury instructions, Andress’s counsel proposed instructions that defined the terms “purposely” and “knowingly” as used in the statutes. Counsel proposed the following jury instructions derived from § 45-2-101, MCA, and the Montana Criminal Jury Instructions: A person acts purposely when it is his/her conscious object to engage in conduct of that nature; or to cause such a result. A person acts knowingly: when the person is aware of his or her conduct; or when the person is aware there exists the high probability that the person’s conduct will cause a specific result. (Emphasis added.) The District Court accepted these proposed instructions and gave them to the jury. ¶18 Andress argues that his counsel’s proposed instructions included definitions of purposely and knowingly that did not apply to his charged offenses and, as a result, allowed the jury to convict him based upon his conduct, even if the jury believed his defense that he did not intend to violate the POP or tamper with a witness. ¶19 Section 45-2-101(65), MCA, defines “purposely” in relevant part: [A] person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is the person’s conscious object to engage in that conduct or to cause that result. When a particular purpose is an element of an offense, the element is established although the purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense. ¶20 Section 45-2-101(35), MCA, defines “knowingly” as: [A] person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when the person is aware of the person’s own conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when the person is aware that it is highly probable that 8 the result will be caused by the person’s conduct. When knowledge of the existence of a particular fact is an element of an offense, knowledge is established if a person is aware of a high probability of its existence. ¶21 Relying on State v. Lambert, 280 Mont. 231, 929 P.2d 846 (1996), and State v. Patton, 280 Mont. 278, 930 P.2d 635 (1996), Andress claims that the District Court was “required to instruct the jury on the definition of purposely and the definition of knowingly that applies in the context of the particular crime.” We agree that Lambert and Patton require courts to instruct the jury on the proper mental state element based upon the charged offense; however, beyond that these cases are distinguishable in that they address Montana’s criminal endangerment statute and our deliberate homicide statute. We have not previously determined whether §§ 45-5-626 and 45-7-206(1)(a), MCA, emphasize conduct or result of conduct. ¶22 Andress asserts the statutes he is charged with violating, as in Lambert, do not particularize conduct which, if engaged in, results in commission of the offense; rather, one may engage in a wide variety of conduct and still commit the offense. He maintains that § 45-5-626, MCA, “seeks to avoid the ‘singular result’ of the violation of a protective order, not the many forms of conduct that result in the violation of a protective order.” Similarly, he opines that § 45-7-206(1)(a), MCA, seeks to avoid the “singular” result of causing a witness to testify falsely, without regard to the many forms of conduct that could result in a witness testifying falsely. ¶23 In other words, it appears Andress is claiming that the correct jury instruction would have instructed the jury that he could be guilty of violating the POP only if it was his “conscious object,” or intention, to violate the order of protection or that he was 9 aware that it was highly probable that his conduct would violate the statute. Additionally, vis-à-vis the witness tampering claim, because he admits he wrote the note but asserts he did not give the note to Randleas to give to Styles and he did not write the note with the purpose of committing witness tampering, the result-based purposely and knowingly jury instruction should have been given. Therefore, Andress asserts the appropriate jury instructions were: A person act purposely when it is his/her conscious object to cause such a result. A person acts knowingly when the person is aware there exists the high probability that the person’s conduct will cause a specific result. The “result” contemplated in these definitions is violation of the particular statute. ¶24 Based upon his defense theories, he maintains his counsel’s failure to present the appropriate jury instructions constitutes ineffective assistance. ¶25 For the following reasons, we conclude that the instructions given by the court “fully and fairly” instructed the jury on the applicable law. Hovey, ¶ 10. Additionally, we find no prejudice to Andress in the giving of these instructions. ¶26 The jury was presented with conflicting testimony throughout the trial. Andress maintained he did not intentionally run into Nichols nor did he touch her or speak to her. Nichols’ testimony, however, strongly refuted Andress’s claims. Appropriately, the District Court expressly instructed the jurors that they were “the sole judges of the credibility . . . of all the witnesses testifying in this case, and of the weight . . . to be given their testimony.” 10 ¶27 The jury heard evidence that Andress was forbidden under the order of protection to be within fifteen hundred feet of Nichols. He knew of this prohibition. He nonetheless entered the bar repeatedly after he saw her there, repeatedly placing himself well within fifteen hundred feet of her. Additionally, the jury also heard from Nichols that Andress approached her, touched her and spoke to her. Under these circumstances, Andress consciously engaged in and was aware of the prohibited conduct knowing it was in violation of the POP. Both his conduct and the result of his conduct could have reasonably led the jury to find him guilty under either the result-based jury instruction argued by Andress on appeal or the jury instruction given. Therefore, the jury instructions given fully and fairly instructed the jury on the mental state required to violate an order of protection. Furthermore, Andress’s behavior defies his claim that he did not intend to violate the POP. Had he left the bar after seeing Nichols for the first time and not returned, his claim that he lacked intention to violate the POP may have had greater credibility. ¶28 As to the witness tampering charge, Andress admitted that he wrote the note to Styles but claims he did not give it to Randleas for delivery. Therefore, he had no intent to tamper with a witness. Randleas testified otherwise. Based upon the jury’s unanimous verdict of guilt on the witness tampering charge, it appears the jury found Randleas more credible than Andress. If, as believed by the jury, Andress gave Randleas a note to give to Styles instructing Styles to lie under oath, Andress’s conduct and the result of his conduct justified his conviction, and instructing the jury solely on the result-based definition would not have changed the outcome. 11 ¶29 As for his claim that his counsel was ineffective for proposing the jury instructions, having determined that Andress suffered no prejudice from the instructions, the second prong of Strickland has not been satisfied. ¶30 Andress next argues that his counsel was ineffective by failing to move to conform Andress’s written judgment to his orally-pronounced sentence. We need not find Andress’s counsel ineffective to resolve this issue. Under State v. Malloy, 2004 MT 377, ¶ 16, 325 Mont. 86, 103 P.3d 1064, we may review a sentence on a direct and timely appeal. We note that Andress did not have the opportunity to respond to the correctness or appropriateness of the 26 terms and conditions contained in his written sentence as these terms and conditions were not addressed or listed by the court during the sentencing hearing on March 23, 2011. For this reason, we remand to the District Court for another sentencing hearing in which Andress is presented with the proposed terms and conditions of his sentence and allowed to respond to them. CONCLUSION ¶31 For the foregoing reasons, we conclude Andress’s trial counsel did not provide ineffective assistance to Andress. We remand the matter to the District Court for another sentencing hearing in which Andress is given the opportunity to respond to the inclusion of various terms and conditions in his sentence. /S/ Patricia O. Cotter We concur: /S/ Mike McGrath /S/ Michael E Wheat /S/ Brian Morris /S/ Jim Rice | January 22, 2013 |
10f17acc-8ae0-4f87-b064-1960620f61ad | In re J.S.W. | 2013 MT 34 | DA 12-0245 | Montana | Montana Supreme Court | DA 12-0245 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 34 IN THE MATTER OF: J.S.W., Respondent and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADI 2012-22 Honorable Dorothy McCarter, Presiding Judge COUNSEL OF RECORD: For Appellant: Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Leo Gallagher, Lewis and Clark County Attorney, Michael Menahan, Deputy County Attorney, Helena, Montana Submitted on Briefs: January 9, 2013 Decided: February 12, 2013 Filed: __________________________________________ Clerk February 12 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 J.S.W. appeals an order of the District Court for the First Judicial District, Lewis and Clark County, committing her to the Montana State Hospital in Warm Springs, Montana, for a period not to exceed 90 days. We affirm. ¶2 J.S.W. raises two issues on appeal which we have restated as follows: ¶3 1. Whether this Court should apply the plain error doctrine to review J.S.W.’s claim that her constitutional rights have been violated. ¶4 2. Whether J.S.W. was denied the effective assistance of counsel. Factual and Procedural Background ¶5 J.S.W. voluntarily admitted herself to the Behavioral Health Unit (BHU) at St. Peter’s Hospital in Helena, Montana, on March 2, 2012, after law enforcement officers brought her to the hospital for a mental health assessment following a disturbance. After six days of voluntary commitment, J.S.W. requested that she be discharged. However, the Lewis and Clark County Attorney’s Office filed a petition with the District Court requesting that J.S.W. be committed for further evaluation and treatment. The petition alleged that J.S.W. had a mental disorder making her incapable of caring for herself or of managing her own affairs, thus she required commitment. ¶6 That same day, J.S.W. appeared before the District Court. The court advised J.S.W. of her rights, appointed a “friend of respondent” as specified in § 53-21-122(2)(b), MCA, and appointed the Office of Public Defender to represent her. The court set a hearing on the petition for commitment for the following day. 3 ¶7 The State’s only witness at the hearing was Susan Hemion, a psychiatric nurse practitioner with the BHU at St. Peter’s Hospital. At the time of the hearing, it was as yet undetermined from which mental disorder J.S.W. was suffering. Hemion testified that the two working diagnoses for J.S.W. were “mood disorder not otherwise specified” and “dementia.” According to Hemion, J.S.W. was experiencing “hyper verbal behavior, hyper irritability . . . racing thoughts, [and] tangential thinking.” ¶8 Hemion also testified that J.S.W. had difficulty sleeping while at the BHU and that she appeared agitated. In addition, Hemion testified to a number of behaviors exhibited by J.S.W. while at the BHU which concerned Hemion, including J.S.W. spitting out her medication, and invading the space of other patients. Hemion stated that during a recent examination, J.S.W. forgot what she was talking about, could not stay on topic to answer questions, and could not keep her train of thought longer than a few moments. Hemion concluded that J.S.W. was “too disorganized to be able to do her daily activities safely,” and that she was “a danger to herself and others.” Thus, Hemion requested that the District Court commit J.S.W. to the Montana State Hospital for “a thorough evaluation” and that she be involuntarily medicated. ¶9 After Hemion testified, the following exchange occurred between J.S.W.’s counsel and the District Court Judge: [J.S.W.’s counsel]: Your Honor, I think [J.S.W.] would like to address the Court. THE COURT: For three minutes, and no more than three minutes. J.S.W.’s counsel did not object to this time restriction. J.S.W. addressed the court under the examination of counsel. J.S.W. was also cross-examined by the State’s counsel. 4 ¶10 At the conclusion of the hearing, the District Court determined that J.S.W. suffered from a mental disorder that required treatment. The court also determined that “the least restrictive, most appropriate alternative” was the Montana State Hospital in Warm Springs. Consequently, the court committed J.S.W. to the Montana State Hospital for a period not to exceed 90 days with a treatment order that included the involuntary administration of medication. J.S.W. appeals. Discussion ¶11 As a preliminary matter, we note here, as we have done in numerous other cases, that an appeal from an order of involuntary commitment is not moot even if the individual has been released, since the issues raised would fall “under the ‘capable of repetition, yet evading review’ exception to the mootness doctrine.” In re D.K.D., 2011 MT 74, ¶ 14, 360 Mont. 76, 250 P.3d 856 (citing In re D.M.S., 2009 MT 41, ¶ 10, 349 Mont. 257, 203 P.3d 776; In re Mental Health of D.V., 2007 MT 351, ¶¶ 30-32, 340 Mont. 319, 174 P.3d 503; Matter of N.B., 190 Mont. 319, 322-23, 620 P.2d 1228, 1231 (1980)). Issue 1. ¶12 Whether this Court should apply the plain error doctrine to review J.S.W.’s claim that her constitutional rights have been violated. ¶13 J.S.W. argues that the District Court violated her right to testify on her own behalf when the court imposed an arbitrary time restriction on her testimony. Because J.S.W.’s counsel did not object to the court’s time limitation at trial, J.S.W. argues that we should review this alleged error under the doctrine of plain error. 5 ¶14 The State argues on the other hand that plain error review is not warranted here because there was no error. The State contends that although the court initially indicated that J.S.W.’s testimony would be limited to three minutes, in actuality the court did not hold her to that three minutes and did not prevent her from testifying. The State maintains that the District Court properly exercised its discretion regarding the court’s control over the mode and order of interrogating witnesses and presenting evidence. ¶15 Although we generally will not review issues raised for the first time on appeal, we have determined that if a constitutional or substantial right is at issue, we may review such a claim under the plain error doctrine. State v. Gunderson, 2010 MT 166, ¶ 99, 357 Mont. 142, 237 P.3d 74 (citing State v. Longfellow, 2008 MT 343, ¶ 19, 346 Mont. 286, 194 P.3d 694). We invoke plain error review “ ‘where failing to review the claimed error may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process.’ ” Gunderson, ¶ 99 (quoting State v. Taylor, 2010 MT 94, ¶ 12, 356 Mont. 167, 231 P.3d 79). ¶16 When an individual raises the plain error doctrine to request review of issues that were not objected to at the district court level, our review is discretionary. Gunderson, ¶ 99 (citing State v. Gray, 2004 MT 347, ¶ 13, 324 Mont. 334, 102 P.3d 1255; State v. Daniels, 2003 MT 247, ¶ 20, 317 Mont. 331, 77 P.3d 224). Furthermore, we have repeatedly stated that we will use plain error review sparingly on a case-by-case basis. Gunderson, ¶ 99 (citing State v. Hayden, 2008 MT 274, ¶ 17, 345 Mont. 252, 190 P.3d 1091; State v. Rosling, 2008 MT 62, ¶ 77, 342 Mont. 1, 180 P.3d 1102). 6 ¶17 The plain error doctrine establishes a two-part test with the burden on the criminal defendant, or in this case, the person facing involuntary commitment,1 to meet both parts of that test. Gunderson, ¶ 100 (citing State v. Whipple, 2001 MT 16, ¶ 32, 304 Mont. 118, 19 P.3d 228). Under this test, we ask two questions: (1) does the alleged error implicate a fundamental right; and (2) would failure to review the alleged error result in one of the three consequences mentioned above. Gunderson, ¶ 100. “[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.” Gunderson, ¶ 100; see also State v. Mitchell, 2012 MT 227, ¶ 10, 366 Mont. 379, 286 P.3d 1196. ¶18 In the case sub judice, J.S.W. has identified a constitutional right that is applicable to these sorts of proceedings. The Fifth Amendment to the United States Constitution and Article II, Section 25 of the Montana Constitution guarantee an individual the right against self-incrimination. A necessary corollary to the right against self-incrimination is the right to testify in one’s own behalf. Rock v. Arkansas, 483 U.S. 44, 52, 107 S. Ct. 2704, 2709 (1987). “ ‘Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.’ ” Rock, 483 U.S. at 53, 107 S. Ct. at 2710 (quoting Harris v. New York, 401 U.S. 222, 225, 91 S. Ct. 643, 645 (1971)). ¶19 In addition, the Fourteenth Amendment secures the right of a criminal defendant to choose between silence and testifying in his own behalf. Rock, 483 U.S. at 51, 107 1 An individual facing involuntary commitment has all of the rights guaranteed by both the United States Constitution and the Montana Constitution. Section 53-21-115, MCA. 7 S. Ct. at 2708-09 (“The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that ‘are essential to due process of law in a fair adversary process.’ ” (quoting Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S. Ct. 2525, 2533 n. 15 (1975)). ¶20 Thus, while the State is correct that a district court does have discretion to manage courtroom proceedings, a court must do so mindful of a party’s constitutional rights. See e.g. State v. Couture, 2010 MT 201, ¶ 78, 357 Mont. 398, 240 P.3d 987; State v. Garcia, 2003 MT 211, ¶¶ 32-33, 317 Mont. 73, 75 P.3d 313. ¶21 Nevertheless, in the instant case, while J.S.W.’s claim does implicate her fundamental right to testify, thereby meeting the first prong of the test for plain error review, she has failed to establish any factual basis for her contention that her right to testify was violated. While we do not condone the District Court’s statement that J.S.W. was limited to three minutes, the record reflects that the court did not cut J.S.W. off and her counsel appeared to have sufficient time to develop the line of questioning he felt best served his client. Moreover, the Judge encouraged additional questioning by J.S.W.’s counsel, and also allowed the State to question J.S.W. The transcript clearly reflects this: [J.S.W.’s counsel]: Your Honor, I think [J.S.W.] would like to address the Court. THE COURT: For three minutes, and no more than three minutes. [Emphasis added.] J.S.W.’s counsel then proceeded to question J.S.W. for a short time after which the following transpired: [J.S.W.’s counsel]: I guess I have no further questions, Your Honor. THE COURT: Okay. Anything? 8 [The State’s counsel]: Could I ask a couple of questions? THE COURT: Sure. The State then asked J.S.W. a few questions at the end of which the following occurred: [The State’s counsel]: I don’t have any further questions. THE COURT: Okay. Anything else? [J.S.W.’s counsel]: That’s it, Your Honor. ¶22 J.S.W. has failed to persuade this Court that there is any error to review, let alone that a failure to review 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. In contrast, see e.g. State v. West, 2008 MT 338, ¶ 30, 346 Mont. 244, 194 P.3d 683 (concluding that the factual circumstances identified by West constituted “a quintessential example of ‘where failing to review the claimed error at issue . . . may compromise the integrity of the judicial process’ ”). ¶23 To the extent J.S.W.’s theory on appeal is that the District Court’s statement imposing a three-minute limitation is itself a due process violation, without regard to what actually transpired on the record subsequent to the court’s statement, J.S.W. has not cited any legal authority supporting this as a constitutional violation. As we indicated above, “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.” Gunderson, ¶ 100. ¶24 Because J.S.W. has failed to meet both prongs of the test for plain error review, we hold that plain error review of this issue is not warranted. 9 Issue 2. ¶25 Whether J.S.W. was denied the effective assistance of counsel. ¶26 J.S.W. argues that she was denied the effective assistance of counsel when her counsel failed to object to the District Court’s imposition of a time restriction on J.S.W.’s testimony. Claims of ineffective assistance of counsel are mixed questions of law and fact which this Court reviews de novo. State v. Miner, 2012 MT 20, ¶ 10, 364 Mont. 1, 271 P.3d 56 (citing Gunderson, ¶ 66; Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861). ¶27 In her brief on appeal, J.S.W. relies on Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the traditional test for evaluating ineffective assistance of counsel claims, to evaluate her claim. This Court has determined, however, that Strickland is inappropriate to evaluate involuntary civil commitment proceedings because Strickland fails to adequately protect the liberty interests of the person facing involuntary commitment. In re T.J.F., 2011 MT 28, ¶ 33, 359 Mont. 213, 248 P.3d 804 (citing In re C.R.C., 2009 MT 125, ¶ 16, 350 Mont. 211, 207 P.3d 289). ¶28 Instead, the proper role of an attorney in involuntary commitment proceedings is “to represent the perspective of the respondent and to serve as a vigorous advocate for the respondent’s wishes.” T.J.F., ¶ 33 (citing C.R.C., ¶ 18). To that end, we look to the following five “critical areas” to measure effective assistance of counsel in these types of proceedings: (1) appointment of counsel; (2) counsel’s initial investigation; (3) counsel’s interview with the patient-respondent; (4) the patient-respondent’s right to remain silent; and (5) counsel’s role as an advocate for the patient-respondent. T.J.F., ¶ 33. 10 ¶29 We will consider the entire record and evaluate each factor “based on the facts and circumstances of the entire case.” In re C.R., 2012 MT 258, ¶ 28, 367 Mont. 1, 289 P.3d 125 (quoting C.R.C., ¶ 19). We will vacate an order of involuntary commitment upon a substantial showing of evidence that counsel did not effectively represent the patient-respondent’s interests pursuant to the foregoing standards. C.R., ¶ 28 (citing C.R.C., ¶ 16; In re Mental Health of K.G.F., 2001 MT 140, ¶ 91, 306 Mont. 1, 29 P.3d 485). ¶30 In the instant case, J.S.W.’s claim implicates only the fourth and fifth factors— J.S.W.’s right to remain silent (or, in this case, her right to testify), and counsel’s role as an advocate for J.S.W. Neither J.S.W.’s briefs nor the record as a whole indicate any insufficiency regarding the first three factors. ¶31 Based upon our review of the record, we conclude that J.S.W. has failed to make a “substantial showing of evidence that counsel did not effectively represent [J.S.W.’s] interests.” C.R., ¶ 28. In his cross-examination of Hemion, the State’s witness who was advocating for J.S.W.’s commitment to the Montana State Hospital, counsel effectively elicited that Hemion had no first-hand knowledge of J.S.W.’s driving, or J.S.W.’s abilities in daily tasks such as cooking and cleaning. In addition, under counsel’s cross-examination, Hemion conceded that J.S.W. had secured her own food and lodging in Helena, and that J.S.W. had voluntarily checked herself into the BHU. Hemion also conceded under cross-examination that J.S.W. did not display any physical danger to others during her time in the BHU, nor did she demonstrate any level of self harm. 11 Moreover, while Hemion had testified to J.S.W.’s disorganized thought processes, in his direct examination of J.S.W., counsel was able to keep J.S.W. focused. ¶32 J.S.W.’s allegation of error on counsel’s part was counsel’s failure to object to the court’s statement that J.S.W.’s testimony would be restricted to three minutes. However, as we indicated in the previous issue, J.S.W. testified under both direct and cross-examination, thus the court did not actually restrict her testimony. ¶33 Additionally, in the final few pages of her opening brief on appeal, J.S.W. notes that the following exchange took place after the District Court pronounced judgment: [J.S.W.]: Your Honor, I have something to say. May I say it? THE COURT: Yes. [J.S.W.]: May my attorney assist me? (Discussion off the record.) [J.S.W.]: Ma’am, -- THE COURT: We are done. [J.S.W.]: I would like to request that instead of going to Warm Springs that you send me to three months in St. Peter’s Hospital, the behavior mod unit, because -- THE COURT: You talk that over with your lawyer. (End of proceedings.) Although J.S.W. includes this excerpt from the record at the end of her issue regarding ineffective assistance of counsel, J.S.W. does not indicate just how counsel was ineffective here. Instead, J.S.W. returns to her contentions from the first issue that the District Court erred in limiting her testimony. ¶34 Nevertheless, the court had already indicated, based on the testimony presented, that the least restrictive, most appropriate placement for J.S.W. was at Warm Springs 12 State Hospital. Moreover, even though J.S.W. expressed her wish to be committed to the BHU at St. Peter’s Hospital, the reason the State filed its petition for involuntary commitment for J.S.W. in the first place was because J.S.W. requested to be discharged from that facility. ¶35 We conclude that the record as a whole demonstrates that J.S.W.’s counsel served as “a vigorous advocate” for J.S.W.’s wishes. T.J.F., ¶ 33. Consequently, we hold that J.S.W. was not denied the effective assistance of counsel. ¶36 Affirmed. /S/ Laurie McKinnon We Concur: /S/ Beth Baker /S/ Patricia Cotter /S/ Michael E Wheat /S/ Brian Morris | February 12, 2013 |
007468f2-6e62-47ae-9815-c0bf2cea2d05 | IN RE THE RULES FOR ADMISSION
TO TH | N/A | AF 11-0244 | Montana | Montana Supreme Court | IN THE SUPREME COURT OF THE STATE OF MONTANA No. AF 11-0244 IN RE PETITION TO ADOPT AMENDED BOARD OF BAR EXAMINERS' RULES ) ) ) PILEfJ OR DE R JAN ~ 0 2013 ;Ed'Smitli CLERK OF l'H! SUPA&ME COURT '!;l'ATF OF MONTANA Pursuant to Article VII, section 2 of the Montana Constitution, the Montana Supreme Court holds the authority to establish rules for admission to the State Bar of Montana. To fully implement the Uniform Bar Examination (UBE) as adopted by the Court in its Order dated July 3, 2012, two sets of rules require modification -- the Rules for Admission to the Bar of Montana and the Montana Board of Bar Examiners' Rules. At the Court's request, the Montana Board of Bar Examiners has filed proposed amendments to both ofthose sets ofrules. The proposed amendments to the Board of Bar Examiners' Rules relate principally to the creation and implementation of a Montana law educational component as part of the Montana Bar Examination, elimination of four Montana essay questions, and the increased passing score. They also include some clean-up of language in existing rules. In addition, the Board has proposed new provisions regarding cheating, necessitated by recent advances in electronic devices. The Court having reviewed the changes to the Montana Board of Bar Examiners' Rules as proposed by the Board, IT IS HEREBY ORDERED that the rule changes proposed by the Board are ADOPTED. The Montana Board of Bar Examiners' Rules are amended to read as shown in the attachment to this Order. The Clerk is directed to provide copies of this order and the attached Rules to the Chair and each member of the Board of Bar Examiners; Marie Connolly, administrator of the Montana Bar Examination; Thomson Reuters; Todd Everts at the Montana January 30 2013 Legislative Services Division; and Dean Irma Russell at the University of Montana School ofLaw. DATED this 30 day of January, 2013. 2 MONTANA BOARD OF BAR EXAMINERS' RULES Rule 101 - Board of Bar Examiners. A. Contact with Board of Bar Examiners. All correspondence or other communications to the members of the Board of Bar Examiners must be directed to the Bar Admissions Administrator at the State Bar of Montana, P.O. Box 577, Helena, MT 59624, phone (406) 442-7660. Applicants are prohibited from contacting Board members directly, unless given prior approval by the Bar Admissions Administrator. B. Public Request. Upon request, the State Bar of Montana staff may confirm that an individual has filed an application for admission. Rule 102 - Bar Examination Certification, Dates, & Content. A. Certification. No applicant will be allowed to sit for the Montana Bar Examination until and unless he or she has been duly certified or conditionally certified by the Commission on Character and Fitness. B. Dates of Examination. The UBE is administered over two days, with the MBE given on the last Wednesday of February and July and the MEE and MPT given on the prior Tuesday. Unless otherwise directed by the Board, the examination will be held in Helena during the February administration and in Missoula during the July administration. The examination facility will be determined by the Board. C. Montana Law Seminar. All applicants are required to attend a Montana law seminar prior to admission to the Montana Bar. The seminar will be held bi- annually on the Thursday following administration ofthe bar examination. Rule 103 - Testing Accommodations. A. Application Deadline for Testing Accommodations. An applicant who claims a disability and who seeks an accommodation on the bar examination must submit a request for the accommodation with supporting evidence by the deadline for application for the relevant bar examination. Applications for accommodations not submitted by the application deadline will not be considered, except where the disability occurs after the application filing deadline. B. Consideration of Requests. Requests for accommodation will be considered on a case-by-case basis. To be entitled to an accommodation, the requesting applicant must submit evidence sufficient to satisfy the Board of Bar Examiners or its designee that: 3 1. The applicant is otherwise qualified for the bar examination; 2. The applicant suffers from a physical or mental impairment; 3. The impairment substantially limits the applicant in a major life activity that is of central importance to daily life. (To be substantially limited in a major life activity means the impairment prevents or severely restricts the applicant from doing activities that are of central importance to most people's daily lives.); 4. The impairment is permanent or long-term; 5. The impairment in terms of the applicant's own experience is substantial. (It is insufficient for an applicant attempting to prove disability status merely to submit evidence of a medical diagnosis of impairment. The applicant must provide persuasive evidence that the impairment has had a substantial impact on the applicant.); and 6. The requested accommodation is tailored to address the impairment as it relates to the bar examination and will effectively permit the applicant to perform "on a level playing field" with other applicants (The accommodation must not be designed to grant an advantage, but merely to address a disability the law will recognize). Requests for accommodations will be considered by the Board or its designee based on the information submitted by the applicant and such other information as may be reasonably available to the Board. Taking into account the resources available to it, the Board may, but is not required to, seek the assistance of expert counsel on the particular request for accommodation. The Board may, in its discretion, require the applicant to provide additional information relating to the disability and/or prior accommodations, and may also require that the applicant submit to examination by a qualified professional designated by the Board in connection with the applicant's request for testing accommodations. C. Appeal of Board Decision. Unless specifically stated otherwise, a decision by the Board on whether or not to grant the accommodation requested or to offer an alternative accommodation shall be final. An applicant may petition for relief from a decision of the Board by petitioning the Montana Supreme Court, which is the final authority on all matters relating to the bar examination and bar admissions in Montana. D. Subsequent Accommodation Requests. If an applicant defers or does not pass the examination, previously granted testing accommodations may not automatically extend to future examinations. The Bar Admissions Administrator may request an applicant to update the original accommodation request. 4 If an applicant seeks different accommodations than those previously granted, the Bar Admissions Administrator may request the applicant to file a new request for accommodations. E. Definitions. 1. The term "disability" shall mean a disability under the Americans with Disabilities Act of 1990 (ADA), which defines a person with a disability as someone with a physical or mental impairment that substantially limits one or more major life activities. In the bar examination setting, the impairment must limit an applicant's ability to demonstrate, under standard testing conditions, that the applicant possesses the knowledge, skills, and abilities tested on the bar examination. 2. The term "qualified professional" shall mean a licensed physician, psychiatrist, or other health care provider who has comprehensive training in the field related to the applicant's disability. 3. An accommodation is an adjustment to or modification of the standard testing conditions that addresses the functional limitations related to the applicant's disability without: a) Fundamentally altering the nature of the examination or the Board's ability to determine through examination whether the applicant possesses the necessary knowledge, skills, and abilities to pass the bar examination; or b) Imposing an undue burden on the Board; or c) Compromising the security ofthe examination; or d) Compromising the validity ofthe examination. Rule 104 - Examination, Administration, & Grading. A. Attendance at Examination. No applicant will be admitted to the examination more than one-half hour after the examination begins. If an applicant is late, no extra time will be awarded. The examination session will conclude as scheduled. B. Examination Composition. The Uniform Bar Examination (UBE) is prepared and coordinated by the National Conference of Bar Examiners and is composed of the Multistate Essay Examination (MEE), two Multistate Performance Test (MPT) 5 tasks, and the Multistate Bar Examination (MBE). It is uniformly administered, graded, and scored by user jurisdictions and results in a portable score. Applicants must sit for all components in the same administration to earn a UBE score. Scores from anyone component of the UBE may not be carried forward to any subsequent examination. C. MEE and MPT Grading Method. Each examination paper produced by an applicant on the MEE and MPT will be separately graded. Answers will be graded and credited by applicant number and not by applicant name. D. Score Combining. MEE and MPT answers will be graded on a scale of zero to six, with six being the highest qualifying score and zero being the lowest possible score. All scores will be converted to the 400 UBE point scale and combined with the MBE scaled scores. MEE and MPT scores are scaled to the MBE, with the MBE weighted 50%, the MEE 30%, and the MPT 20%. MBE answer sheets are scanned and centrally scored by the National Conference ofBar Examiners. Applicants with a combined scaled score of 270 or higher will be deemed to have passed the Montana Bar Examination. E. Disruption During Examination. Should a serious disruption occur during any portion of the bar examination, the Bar Admissions Administrator and/or proctors will record the incident on the proctor report forms and the Board will be so advised. If examination time is lost by the general examination population due to the disruption, a corresponding amount of time will be added to the end of the same examination session, ifreasonably feasible. F. Individual Emergencies During Examination. If during the course of the examination an applicant has a sudden and unexpected emergency not of the applicant's making and the Bar Admissions Administrator has approved the applicant's departure, the departure will be treated as a deferral and the fees will transfer to the next examination. The Bar Admissions Administrator will record the incident on the proctor report form and the Board will be so advised. Rule 105 - Rules of Conduct. A. Examination Rules of Conduct. All applicants shall abide by all rules and instructions governing the administration of all portions of the bar examination. Applicants MAY NOT: 1. Falsify the application or proofs required for admission to the bar examination. 6 2. Utilize any unauthorized notes, books, recordings, electronically retrievable data or other unauthorized materials while taking the examination. The only items permitted in the exam room are those which have been approved by the Board, namely: (1) computers specifically configured for use of computer-based testing, such as Exam Soft; or (2) blue books issued by the test proctors and approved writing tools. Any items which may provide the applicant with information or access to information other than the applicant's own knowledge shall be prohibited. Without limitation, such items include notes, cell phones, backpacks, purses, or timing devices other than a non-digital wristwatch. The Board reserves the right to prohibit any item not specifically referenced at any time, including at the examination. Possession of a prohibited device in the examination may be treated as a cheating incident, and proctors are authorized to confiscate any unauthorized item or device. 3. Use answers or information from other applicants while taking the examination. 4. Provide answers or information to other applicants taking the examination. 5. Read questions on the examination prior to the announcement to begin the examination. 6. Continue to answer any question after the announcement to stop when the session has ended. 7. Remove any multiple-choice, machine-scored examination question from the examination room or otherwise communicate the substance of any of those questions to other applicants or to persons who are employed by or associated with bar review courses. 8. Remove any essay questions, scrap paper, or other materials from the examination room or otherwise communicate the substance of any of those questions to other applicants. 9. Otherwise compromise the security or the integrity of the bar examination in any fashion. 10. Disregard any instruction given by the Bar Admissions Administrator during the course of the examination or cause generalized disruption of the examination. 7 B. It is the policy of the Montana Board of Bar Examiners that the bar examination and related conduct of bar applicants be beyond reproach. Applicants are at all times to maintain a professional attitude toward other applicants, proctors, and other examination personnel. Conduct that constitutes a violation of these Rules, the Rules for Admission, or any rules or instructions provided by examination personnel may result in immediate disqualification and ejection from the examination. Violation of the rules, cheating, or taking any action that disrupts or compromises the security or integrity of the bar examination may result in immediate disqualification and ejection from the examination. Rule 106 - Impoundment, Investigation, & Appeal. A. Impoundment of Examination Results. If the Board of Bar Examiners or the Bar Admissions Administrator has cause to believe an applicant has violated any of the rules of conduct set forth above, the applicant's bar examination answers and results may be impounded pending an investigation by the Board. B. Investigation by the Board of Bar Examiners Subcommittee. I. Any concerns the Bar Admissions Administrator has regarding violation of the Rules of Conduct will be referred to a subcommittee of two (2) members of the Board for further investigation. In every such investigation, the Bar Admissions Administrator or the subcommittee may obtain such information that relates to the applicant's conduct, administer oaths and affirmations, and compel by subpoena the attendance of witnesses and the production of books, papers, and documents. The subcommittee may require sworn taped interviews with an applicant to clarify information or to facilitate the investigation. 2. If it appears to the subcommittee that there is credible evidence that would establish that an applicant violated any of the rules of conduct, the Bar Admissions Administrator shall serve written notice on such applicant by certified mail stating with particularity the facts upon which the alleged violations are based. 3. The applicant must file a verified answer with the Bar Admissions Administrator within 30 days of service of the notice. The answer shall identify with specificity the alleged violations disputed by the applicant and set forth any evidence which can be adduced by the applicant in contradiction of such charges. The applicant may include a request for a hearing before the Board of Bar Examiners. The applicant must supply an original and seven (7) copies of all such materials to the Board's office. 8 4. In the event the applicant does not submit a written answer as provided in subsection (B)(3) above, the Board shall deem the facts set forth in the written charges to be established. The charges shall become part of a permanent file before the Commission on Character and Fitness. The applicant may not reapply for admission for at least three years from the date ofthe Board's charges. 5. Should an applicant file an Answer, but fail to request a hearing, the Board Chairman shall appoint a committee made up of Board Members other than the two members assigned to investigate the claimed violation of the Rules of Conduct. The committee shall consist of no fewer than 3 members and no more than 5 members. [The Chairman may appoint a member of the bar to sit as a member of the committee in the absence of a Board Member.] The committee shall review the evidence gathered by the Bar Admissions Administrator, the 2-member subcommittee, together with any submission received from the Applicant. The committee shall render a final decision by a majority vote ofits members. C. Hearing. 1. In the event the applicant requests a hearing, the hearing panel shall consist of a majority of the members of the Board of Bar Examiners who did not serve on the subcommittee. A majority of the hearing panel shall make the final decision. 2. The Board shall notify the applicant in writing of the date, time, and place of such hearing and of the applicant's right to be represented by counsel at the hearing, to examine and cross-examine witnesses, and to present evidence. 3. If the applicant files a written request for hearing, the applicant shall supply a list of witnesses, including addresses and phone numbers, and all supporting documentation including evidence, affidavits, exhibits, etc., he or she feels is necessary to support his or her certification at least ten (10) days prior to the hearing. The applicant shall supply an original and seven (7) copies of all such materials to the Board's office. 4. The hearings before the Board shall be open to the public unless the applicant requests that they be private and the panel chair rules that the applicant's individual privacy requires that the meeting be closed. In making this determination, the panel chair must find that the demands of individual privacy clearly exceed the merits ofpublic disclosure. 9 5. The hearing panel shall determine by a preponderence of the evidence whether the applicant violated the examination rules ofconduct. 6. Rules of Evidence need not be observed. The Board may, in its discretion, take evidence in other than testimonial form, having the right to rely upon records and other materials furnished to the Board in response to its request for assistance in its inquiries. The Board may, in its further discretion, determine whether evidence to be taken in testimonial form will be taken in person at the hearing or upon deposition, but in either event all testimonial evidence shall be taken under oath. A complete record of the hearing must be kept. D. Findings and Decision. 1. The Board of Bar Examiners shall issue a written decision which shall be reported to the Commission on Character and Fitness. 2. In the decision the Board of Bar Examiners may take one or more of the following actions: a) Nullify the results ofthe examination taken. b) Transmit a written report of the matter to bar admission authorities in any jurisdiction. c) Take such other action as the Board deems appropriate. E. Supreme Court Review. 1. The final decision of the Board shall be conclusive unless a verified Petition for Review is filed by the applicant with the Montana Supreme Court within thirty (30) days following service upon the applicant of the decision in the manner provided by these rules. If an applicant seeks review, the applicant must have the hearing record before the Board transcribed at the applicant's expense and provided to the Court. A copy of the Petition for Review and the hearing transcript must also be filed with the Board. 2. Within thirty (30) days of receipt of said Petition, the Board shall transmit the entire record to the Clerk of the Supreme Court and a response to the Petition fully advising the Court as to the Board's reasons for its decision, and admitting or contesting any assertions made by the applicant in said Petition. 10 | January 30, 2013 |
e36973c4-1c38-49b0-8bfd-ac55b31adfbd | WRIGHT CONSTR CO v DEBEER MECH | N/A | 14832 | Montana | Montana Supreme Court | No. 14832 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 HOWARD S. WRIGHT CONSTRUCTION COMPANY, a Washington Corporation, and SAFECO INSURANCE COMPANY I Plaintiffs and Respondents, F. E. DeBEER MECHANICAL CONSTRUCTION COMPANY, et al., Defendants and Appellants. Appeal from: District Court of the Fifth Judicial District, Honorable Frank E . Blair, Judge Presiding. Counsel of Record: For Appellants: Berg, Angel, Morgan and Coil, Bozeman, Montana Ben Berg argued, Bozeman, Montana For Respondents: Brown, Pepper and Kommers, Bozeman, Montana Gene Brown argued, Bozeman, Montana Submitted: December 12, 1979 Decided : DEC 31 l ! j C @ Filed: G ~ C Q ~ @ J Mr. Justice John C. Sheehy delivered the Opinion of the Court. This appeal is by DeBeer Mechanical Construction Company from a judgment entered against it in the Fifth Judicial District, Madison County. Big Sky of Montana, Inc. (Big Sky) is the developer of a condominium project known as Stillwater Condominiums located in Madison County, Montana. By written contract dated April 19, 1973, Big Sky entered into a contract with Howard S. Wright Construction Company (Wright) whereby Wright became the general contractor for the construction of the condominiums. Wright entered into a subcontract with F. E. DeBeer Mechanical Construction Company (DeBeer) under the terms of which DeBeer was to do the plumbing and mechanical work on the condominiums. DeBeer commenced work under a verbal agreement during the spring of 1973. The verbal agreement was reduced to writing on August 15, 1973. The subcontract between Wright and DeBeer contains an indemnity provision as follows: "(1) To indemnify and save harmless the CONTRACTOR from and against any and all suits, claims, actions, losses, costs, penalties, and damages, of whatsoever kind or nature, including attorney's fees, arising out of, in connection with, or incident to the SUB- CONTRACTOR'S performance of this SUBCONTRACT." Regene Shannon was a plumber employed by DeBeer. On October 4, 1973, Shannon arrived for work at Building B of the Stillwater Condominiums. Shannon was scheduled to work on the second floor of the building, but Wright had failed to provide access to the second floor. Wright had transferred its framing crew to another project at Big Sky. While Shannon was attempting to gain access through a second floor window, his ladder slipped and Shannon fell to the ground suffering severe injuries to his right ankle. Shannon filed a personal injury suit against Wright, De- Beer and Big Sky on October 3, 1975. During the course of the suit Shannon entered into a "stipulation of dismissal" with DeBeer on November 9, 1977 in consideration of payment of $3,000 by DeBeer. Continuing the cause against Wright and Big Sky, Shannon obtained judgment against both in the amount of $250,000. The case was appealed and affirmed by this Court in Shannon v. Howard S. Wright Const. Co. (1979), Mont . , 593 P.2d 438, 36 St.Rep. 632. Wright and its insurer paid the full amount of the judgment and did not seek contribution from Big Sky. Subsequently Wright brought this declaratory judgment action attempting to place the ultimate responsibility for the personal injury judgment on DeBeer and its insurers. Two claims for relief were alleged in Wright's amended complaint: (1) that DeBeer was required to indemnify Wright based upon an indemnity provision contained in the subcontract, and (2) that DeBeer breached a provision of the subcontract by not having Wright named as an additional insured on DeBeer's insurance coverage. Trial was held on September 25, 1978, and the District Court entered judgment in favor of Wright on January 19, 1979. The District Court concluded that Wright was passively negligent and that the indemnity clause in the subcontract is clear, unambiguous and intended to cover - all suits. It therefore rendered DeBeer liable to indemnify Wright. It is from this judgment DeBeer appeals setting forth the following issues for our review: (1) Does the indemnity provision in the subcontract protect Wright, the indemnitee, from its own negligence? (2) Was Wright, the indemnitee, actively negligent? (3) Can DeBeer be required to pay Big Sky's portion of the personal injury judgment? Recently, this Court held that an employer who had paid an employer benefits pursuant to a Workers' Compensation claim is not subject to further liability arising out of the injuries of the employee as to a third party claiming contribution for indemnity from the same industrial accident. However we expressly excluded from that rule those cases in which there was "some other legal transaction" between the parties. Cordier v. Stetson-Ross, Inc. (1979) , Mont. I - P.2d I In the present case there is "some other legal transaction" consisting of a contract of indemnity which includes not only the negligent acts of DeBeer but also those of Wright. Under Ballard v. Vollestedt Kerr Lumber Company (1973), 163 Mont. 324, 517 P.2d 349, this clause can be enforced. As to the second issue, if the indemnity provision is broad enough, as appears here, to include the negligent acts of Wright, it makes no difference if Wright was actively or passively negligent. "With respect to an indemnification claim based on a tort, resort can be had to consideration of whether the negligence of each is 'active' or 'passive', or 'primary' or 'secondary', to determine whether the difference in the gravity of the fault of the participants is sufficient to justify burdening one party with the entire loss. Great Northern Railway Company v. - United States (D. Mont. 1960). 187 F. Supp. 690, 693; Fletcher v . City of - Helena (1973), 163 Mont. 337, 517 P.2d 365. "However, these cases do not apply to a theory of indemnity based upon contract. In an indemnity action arising out of contract, the 'application of the theories of "active" or "passive" as well as "primary" and "secondary" negligence is inappropriate.' Weyerhaeuser --- S.S. Co. v. Nacirema Operating Co. (1958). 355 U.S. 563, 569, 78 S.Ct. 438, 442, 2 L ~ d x 491, 495; -- Hill v. George Engine Company (D. La. 1961) , 190 F.Supp. 417." Ferguson v . Town Pump, Inc. (1978), Mont. , 580 P.2d 915, 920, 35 St.Rep. 824, 830. Since a separate contractual agreement does exist in the present case, this degree of negligence rule is not applicable. As for the covenant not to sue, it only protects DeBeer from any further action by Shannon relating to the same accident. The right of Wright to collect on the indemnity clause cannot be affected by a contract between other parties (i.e. Shannon and DeBeers) . This same reasoning resolves the last issue. Irrespective of which of the two parties in fact paid the full amount of the judgment, the judgment in this case is against Wright and Big Sky and does not involve a comparative negligence situation. As a result, a right to contribution does not arise and in any event DeBeer has no standing to raise such an issue. See Consolidated Freightways Corporation v . Osier (19791, Mon t . I P.2d , 36 St.Rep. 1810; Panasuk v. Seaton (D. Mont. 19681, 277 F.Supp. 979. The decision of the District Court is affirmed. Justice We Concur: Chief Justice /' f- Justices | December 31, 1979 |
12545558-44d9-4d12-be01-6c05d335a26e | Johnson v. State | 1013 MT 9N | DA 11-0386 | Montana | Montana Supreme Court | DA 11-0386 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 9N LYLE H. JOHNSON, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-94-11338 Honorable Karen S. Townsend, Presiding Judge COUNSEL OF RECORD: For Appellant: Lyle H. Johnson (Pro Se), Shelby, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Fred Van Valkenburg, Missoula County Attorney, M. Shaun Donovan, Deputy County Attorney, Missoula, Montana Submitted on Briefs: December 4, 2012 Decided: January 22, 2013 Filed: __________________________________________ Clerk January 22 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Lyle H. Johnson (Johnson) appeals from an order from the Fourth Judicial District Court, Missoula County, which denied his motion to modify his sentence. Johnson argues on appeal that because he is proceeding pro se, the District Court should have construed his petition more liberally so as to afford him the relief that he has requested. We affirm. ¶3 Johnson pled guilty to felony indecent exposure on February 13, 1995. He was sentenced to a term of five years in the Montana State Prison for the indecent exposure charge and to a concurrent forty-five year term for being a persistent felony offender. Johnson appealed his conviction, and we affirmed in a noncite opinion. In August of 1996, Johnson petitioned the Sentence Review Division to reconsider his sentence. The Sentence Review Division found that Johnson’s sentence was not excessive, but rather concluded that it was inadequate. Accordingly, the Sentence Review Division issued an order that amended the judgment to prohibit him from becoming eligible for parole until he has served thirty years of his sentence and completed all phases of the Sex Offender Treatment Program at the prison. 3 ¶4 Because Johnson committed his offense in 1994, he has been eligible to earn “good time allowance” that operates as a credit towards his sentence pursuant to § 53-30-105, MCA (1993)1. See Orozco v. Day, 281 Mont. 341, 354, 934 P.2d 1009, 1016 (1997) (holding that prisoners have liberty interest in good time allowance as permitted by the statute in effect at the time the offense was committed). On April 12, 2011, after learning that he had been receiving good-time allowance credit towards his discharge date but not towards his parole eligibility date, Johnson filed a letter with the District Court titled “Petition for Modification of Sentence.” In the letter, Johnson claimed that he would have been eligible for parole sometime in 2009 if he had been credited good time allowance towards his parole eligibility date. He accordingly asked the District Court to suspend the balance of his sentence and allow him to complete the remainder of the Sex Offender Program “on the streets.” The District Court held that it did not have jurisdiction to modify Johnson’s sentence and issued an order denying his request on June 1, 2011. ¶5 “No provision of law allows a court to vacate a conviction simply upon the motion of the defendant.” State v. Baker, 1999 MT 251, ¶ 14, 296 Mont. 253, 989 P.2d 335. There must be a statutory basis for a trial court to modify a validly pronounced sentence. Baker, ¶ 14. When a prisoner fails to cite a statutory basis for a sentence modification motion, we consider the motion under the postconviction relief statute. Baker, ¶ 15. The postconviction relief statute in effect at the time Johnson committed his offense had a 1 Section 53-30-105, MCA (1993) subsequently has been amended and then repealed. 4 five-year statute of limitations. Section 46-21-102, MCA (1993). Thus, the District Court correctly held that Johnson’s request for modification was untimely.2 ¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2006, which provides for memorandum opinions. The issues are clearly controlled by settled Montana law, and we find no reason in fact or law to disturb the District Court’s order. ¶7 Affirmed. /S/ Mike McGrath We Concur: /S/ Beth Baker /S/ Michael E Wheat /S/ Patricia O. Cotter /S/ Brian Morris 2 We note that while the District Court properly considered Johnson’s letter, Johnson’s complaint that his sentence is illegal and his good time allowance has not been credited toward his parole eligibility date, may more appropriately be addressed in a writ of habeas corpus filed pursuant to §§ 46-22-101 et seq., MCA. | January 22, 2013 |
237e83c4-8214-4c38-b49a-65c463ae09d0 | Green v. Gerber | 2013 MT 35 | DA 12-0054 | Montana | Montana Supreme Court | DA 12-0054 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 35 LINDA GREEN, Plaintiff, Appellant, and Cross Appellee, v. RONALD RAY GERBER and STOCKTON OIL COMPANY, Defendant, Appellee, and Cross Appellant. APPEAL FROM: District Court of the Fourteenth Judicial District, In and For the County of Musselshell, Cause No. DV-11-06 Honorable Randal I. Spaulding, Presiding Judge COUNSEL OF RECORD: For Appellant: Patricia D. Peterman, Patten, Peterman, Bekkedahl & Green, PLLC, Billings, Montana For Appellee: Perry J. Schneider, Tim E. Dailey, Milodragovich, Dale, & Steinbrenner, P.C., Missoula, Montana Submitted on Briefs: November 7, 2012 Decided: February 12, 2013 Filed: __________________________________________ Clerk February 12 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 In December 2008, Linda Green was driving her vehicle southbound on Highway 87 North in Musselshell County, Montana, when she was struck by a truck owned by Stockton Oil Company (Stockton Oil or Stockton) and driven by Ronald Ray Gerber. Green suffered bodily injuries as a result of the accident as well as property damage to her vehicle. On January 7, 2011, Green filed a Complaint in the Fourteenth Judicial District Court against Stockton Oil and Gerber seeking damages. Stockton Oil was served but Gerber was not. Stockton did not respond to the Complaint and a default was entered against the company in February 2011. A damages hearing was subsequently conducted and a judgment for damages totaling $308,200 was entered in April 2011. In October 2011, Stockton moved to set aside the default judgment. Sixty-eight days later, the District Court granted Stockton’s motion. ¶2 Green appeals, contending the District Court lacked jurisdiction to set aside the default judgment once 60 days expired, citing M. R. Civ. P. 60(c)(1). She also opines that Stockton failed to satisfy the elements of a successful Rule 60(b) motion. Stockton urges us to uphold the District Court order setting aside the default judgment. In the event we conclude the motion was deemed denied by operation of Rule 60(c)(1) and the District Court’s order must therefore be vacated, it cross-appeals, arguing that the deemed denial constituted a slight abuse of discretion. We reverse and remand. ISSUES ¶3 Direct appeal: Did the District Court err in granting Stockton Oil’s Motion to Set Aside Default Judgment 68 days after it was filed? 3 ¶4 Cross-appeal: Did the District Court slightly abuse its discretion in deeming denied Stockton’s motion to set aside the default judgment? FACTUAL AND PROCEDURAL BACKGROUND ¶5 On December 2, 2008, Green’s vehicle was struck by a Stockton Oil Company truck driven by Ronald Gerber. Green was injured and her car was damaged. Following the accident, Green and Stockton Oil’s insurer, EMC, worked together for a period of time during which EMC paid $139,246.80 toward Green’s medical bills and resolution of the claim. However, in late December 2010 discussions broke down and on January 7, 2011, Green filed a Complaint and Demand for Jury Trial (Complaint) against Stockton Oil and Gerber seeking damages. On January 10, 2011, summonses were prepared for both Stockton Oil and Gerber, and on January 27, Stockton Oil was served with the Complaint and Summons.1 ¶6 On February 22, 2011, a default was entered against Stockton after the company failed to answer the Complaint. On March 31, 2011, the District Court held a hearing to determine Green’s damages. Green did not disclose to the court receipt of funds from EMC. On April 5, 2011, the District Court entered a Judgment by Default against Stockton Oil ordering the company to pay Green $308,200 in damages plus 10% interest per annum. These damages included claims for past and future medical bills, emotional distress, loss of enjoyment of life, and pain and suffering. 1 It is undisputed that Gerber was never served with the Complaint or the Summons and, therefore, is not a party to this appeal. The default judgment was entered solely against Stockton Oil. 4 ¶7 On September 26, 2011, a Writ of Execution for Green’s judgment was issued. It was served on Stockman Bank on October 11, 2011. The record reveals that $138,273.15 was collected from both Gerber’s and Stockton Oil’s Stockman Bank accounts on behalf of Green and placed in trust with Green’s attorney. However, these levied funds were subsequently returned to Gerber and Stockton.2 ¶8 On October 19, 2011, citing M. R. Civ. P. 60(b)(6), Stockton Oil filed a Motion to Set Aside Default Judgment. Stockton Oil primarily argued that Green had failed to disclose to the District Court that she had received payments totaling $139,246.80 from Stockton Oil’s insurer, EMC. Stockton maintained that the Default Judgment in the amount of $308,200 should be set aside as it represented excessive damages in light of the undisclosed insurance payments. ¶9 On October 31, 2011, Green filed her brief in opposition to Stockton Oil’s motion. She argued that she had not yet recovered monies pursuant to the Judgment, and she acknowledged that the $308,200 judgment would be reduced by the amount of funds previously received from Stockton’s insurer. She also argued that Stockton’s motion should not be granted because Stockton could not satisfy the elements of a successful Rule 60(b) motion. ¶10 Pursuant to Rule 60(c), the District Court had 60 days within which to rule on Stockton’s Rule 60(b) motion to set aside the default judgment. The failure to rule within those 60 days resulted in the motion being “deemed denied.” Rule 60(c)(1). The 2 As noted above, no judgment was entered against Gerber so the levy upon his account was executed in error. 5 deadline for the District Court’s ruling was December 19, 2011. In a two-line order dated December 27, 2011, the District Court, without explanation or rationale, granted Stockton’s motion to set aside the default judgment. ¶11 On January 17, 2012, Stockton Oil filed an answer to Green’s Complaint on behalf of itself and Gerber. Green appeals the District Court’s order granting Stockton’s motion, asserting in part that upon expiration of the 60 days allocated for a ruling under Rule 60(c), the District Court lost jurisdiction over the matter and could no longer issue any rulings in the case. In the alternative, she argues that Stockton failed to establish that it was entitled under Rule 60(b) to have the default judgment set aside. Stockton argues the court’s order setting aside the default judgment was correct, and that the order should stand in light of the misconduct of Green’s counsel in the manner in which she obtained the default judgment. STANDARD OF REVIEW ¶12 Whether a district court has jurisdiction to rule on a matter is a question of law which we review to determine whether the district court had authority to act. A court exceeds jurisdiction through acts which exceed the defined power of a court, whether that power be defined by constitutional provisions, express statutes or rules developed by the courts. In re Marriage of Richards, 2001 MT 183, ¶ 5, 306 Mont. 212, 31 P.3d 1002. ¶13 We review the deemed denial of a motion to set aside a default judgment for a slight abuse of discretion. Ford Motor Credit Co. v. Wellnitz, 2008 MT 314, ¶ 11, 346 Mont. 61, 194 P.3d 630. DISCUSSION 6 ¶14 Did the District Court err in granting Stockton Oil’s Motion to Set Aside Default Judgment 68 days after it was filed? ¶15 M. R. Civ. P. 55(c) permits a court to set aside a default judgment in accordance with Rule 60(b). Rule 60(b)(1)-(5) allows a party to file a motion with the district court to relieve the party from a final judgment, order or proceeding for several specific reasons, including but not limited to, a mistake, newly discovered evidence, fraud, and a void or satisfied judgment. Rule 60(b)(1)-(5). Rule 60(b)(6) allows a party to seek relief from a final judgment for “any other reason that justifies relief.” A party seeking relief under Rule 60(b) must file its motion “within a reasonable time.”3 Rule 60(c)(1)(2011). Rule 60(c)(1) further provides that if the court fails to rule on the 60(b) motion within 60 days after the motion is filed, “the motion must be deemed denied.” ¶16 For many years, district courts and this Court have stated that once a motion has been deemed denied, the district court loses jurisdiction to act further. See e.g. State ex rel. Sinko v. District Court, 64 Mont. 181, 187-88, 208 P. 952, 955 (1922); Johnson v. Eagles Lodge Aerie 3913, 284 Mont. 474, 478, 945 P.2d 62, 64 (1997); Wellnitz, ¶ 17; Mobley & Sons, Inc. v. Weaver, 2009 MT 312, ¶ 17, 352 Mont. 396, 218 P.3d 472. For the reasons set forth below, these cases as well as those cited in footnote 4 are to a limited extent overruled. ¶17 In Miller v. Eighteenth Jud. Dist. Court, 2007 MT 149, 337 Mont. 488, 162 P.3d 121, we acknowledged our confusing and often “confounding” use of the term “jurisdiction.” In Miller, we were asked to determine the consequences of a prosecutor’s 3 Prior to October 1, 2011, the effective date of the current Montana Rules of Civil Procedure, motions filed under Rule 60(b)(1)-(3) had to be filed within 60 days of entry of the judgment. 7 failure to file a notice of intent to seek the death penalty within 60 days of criminal arraignment. Standard 1.1a of the Montana Supreme Court Standards for Competency of Counsel for Indigent Persons in Death Penalty Cases (Standard) obligates a prosecutor to file in the district court and serve upon counsel of record within 60 days after arraignment a notice stating whether the prosecutor intends to seek the death penalty upon a conviction. The prosecutor in Miller let the 60 days following arraignment expire without filing the notice. Miller, ¶ 6. Upon expiration of the 60-day notice of intent period, Miller and his co-defendant LeBrum filed separate motions to preclude the State from seeking the death penalty and preclude imposition of the death penalty as a sentence. Miller, ¶ 7. The State subsequently filed its notice of intent arguing that the defendants were not prejudiced by its delinquent filing. Miller, ¶ 8. The district court agreed and denied Miller’s and LeBrum’s motions. Miller, ¶ 12. Miller and LeBrum sought supervisory control from this Court. Miller, ¶ 14. ¶18 Miller and LeBrum argued that the 60-day deadline created “a jurisdictional defect” precluding the State from seeking the death penalty and imposing it as a sentence. Miller, ¶ 42. We responded that “[i]t is important not to confuse categorical time prescriptions with jurisdictional provisions.” Miller, ¶ 43. We explained that subject-matter jurisdiction “involves the fundamental power and authority of a court to determine and hear an issue. Hence, a provision is properly characterized as ‘jurisdictional’ if it ‘delineates the classes of cases . . . falling within a court’s adjudicatory authority.’ ” Miller, ¶ 43 (citation omitted). While disagreeing with Miller and LeBrum’s jurisdictional argument, we determined that the prosecutor failed to timely 8 file the requisite notice, and that the Standard did not contain an exception that would allow a late filing. We observed that the Standard constituted “a categorical time prescription and not a jurisdictional provision,” and that it is “ ‘unalterable’ on a defendant’s motion but can be forfeited if the defendant ‘waits too long to raise the point.’ ” Miller, ¶ 46. We therefore reversed the district court’s order allowing the late notice of intent. ¶19 In Davis v. State, 2008 MT 226, 344 Mont. 300, 187 P.3d 654, we revisited this issue as it applied to the one-year period within which a criminal defendant may challenge the validity of his or her sentence. Section 46-21-102, MCA. In Davis, Davis agreed to plead guilty to attempted deliberate homicide, assault on a peace officer, and criminal endangerment. He also waived his right to withdraw his guilty plea or to challenge his sentence by direct appeal, habeas corpus, or post-conviction relief. Davis, ¶ 5. ¶20 Subsequently, Davis moved for appointment of counsel for post-conviction proceedings. The district court issued a minute entry indicating that Davis’ earlier counsel remained as appointed counsel for post-conviction; however, neither Davis nor his counsel received notice of the continuation of representation. By the time it was discovered, the one-year post-conviction time bar in § 46-21-102, MCA, had run. Davis, ¶ 7. Davis moved to have the one-year time bar tolled. The State did not respond to Davis’ motion and the district court, sua sponte, questioned whether it had jurisdiction over this motion. It ultimately concluded that the one-year time bar was “jurisdictional” 9 and could not be tolled absent new evidence of a constitutional violation. Davis, ¶ 8. Davis appealed. Davis, ¶ 9. ¶21 Citing extra-jurisdictional cases concluding that statutorily-prescribed time periods are “rigid time prescriptions for constitutionally significant purposes, but . . . do not define or limit subject-matter jurisdiction,” (In re Civil Commitment of Giem, 727 N.W.2d 198, 203 (Minn. App. 2007)), we determined that the one-year time bar in § 46-21-102, MCA, was not jurisdictional. Davis, ¶¶ 15, 25. We therefore remanded the matter to the district court with specific instructions to consider Davis’ motion on equitable grounds. Davis, ¶ 25. ¶22 More recently in BNSF Ry. Co. v. Cringle, 2010 MT 290, 359 Mont. 20, 247 P.3d 706, we were asked to determine whether BNSF’s failure to satisfy the 14-day filing deadline contained in § 49-2-505(3)(c), MCA, deprived the district court of subject-matter jurisdiction. Relying on Davis and Miller, among others, we noted in Cringle that “[t]he [L]egislature does not deprive the courts of subject matter jurisdiction when it enacts filing or notice deadlines. . . . We have emphasized the importance of not confusing the situation of a claimant’s untimely filing with the district court’s subject matter jurisdiction.” Cringle, ¶ 13. We continued that “categorical time prescriptions” do not “withdraw” or “circumscribe” the district courts’ subject matter jurisdiction. Cringle, ¶ 14. Accordingly, we remanded Cringle to the district court with instructions that the court hear BNSF’s “alleged good cause that would justify its motion for an extension of time” to file its appeal of the Department of Labor’s ruling under § 49-2-505(3)(c) and (4), MCA. Cringle, ¶ 28. 10 ¶23 The foregoing cases are not completely apposite because they address situations in which a party has failed to comply with a rule-based or statutory deadline. Here, it is the court which failed to comply with a rule-based deadline. Nonetheless, we conclude that the analyses in these cases of whether a court has jurisdiction to act once a deadline has expired have application in both contexts. In other words, the legal concepts to be considered vis-à-vis a court’s jurisdiction to further act once a court misses a rule-based or statutory deadline are the same as those applied when a party misses such a deadline. ¶24 As the foregoing cases illustrate and for good reason, we have moved away from past pronouncements that statutory or rule-based time bars constitute jurisdictional impediments upon the district courts’ authority to act. Quite simply, unless a statute, rule, or constitutional provision expressly imposes jurisdictional limitations, the expiration of a time bar does not deprive a district court of the jurisdiction to further act in the matter before it.4 Therefore, we conclude the District Court did not lose jurisdiction of this matter upon expiration of the 60-day time period. 4 Accordingly, we hereby overrule the cases set forth in ¶ 16 of this Opinion to the limited extent that they stand for the proposition that a court loses jurisdiction to act upon the expiration a statutory or rule-based time bar. We also overrule in the same limited manner State ex rel. King v. District Court,107 Mont. 476, 86 P.2d 755 (1939); State ex rel. Green v. District Court, 126 Mont. 176, 178, 246 P.2d 813, 814 (1952); State ex rel. Gilreath v. District Court, 127 Mont. 431, 265 P.2d 651 (1954); Leitheiser v. Montana State Prison, 161 Mont. 343, 347, 505 P.2d 1203, 1206 (1973); Cain v. Harrington, 161 Mont. 401, 506 P.2d 1375 (1973); Oster v. Oster, 186 Mont. 160, 606 P.2d 1075 (1980); Wallinder v. Lagerquist, 201 Mont. 212, 653 P.2d 840 (1982); Winn v. Winn, 200 Mont. 402, 651 P.2d 51 (1982); Marriage of Miller, 238 Mont. 108, 112, 776 P.2d 1218, 1220 (1989); Bechhold v. Chacon, 248 Mont. 111, 809 P.2d 586 (1991); Marriage of McKinnon, 251 Mont. 347, 825 P.2d 551 (1992); Maulding v. Hardman, 257 Mont. 18, 22, 847 P.2d 292, 295 (1993); Wippert v. Blackfeet Tribe, 260 Mont. 93, 102, 859 P.2d 420, 425 (1993); Marriage of Richards, 2001 MT 183, 306 Mont. 212, 31 P.3d 1002; and Forsythe v. Leydon, 2004 MT 327, 324 Mont. 121, 102 P.3d 25. 11 ¶25 Having concluded the court did not lose jurisdiction of the case once the 60-day time period expired, we must next determine whether the District Court erred in entering its untimely order setting aside the default judgment. We conclude that it did. While many of the cases cited herein erroneously conclude that the district court lost jurisdiction after failing to meet a time bar, these cases also stand for the proposition that the time limits set forth in Rules 59 and 60 are mandatory and should be strictly enforced. For example, in Wellnitz we stated “Rule 60(c) incorporates the strict 60 day time limit for a district court to rule on a motion for relief from a judgment under Rule 60(b). We have consistently enforced this deadline. The time limits provided in these rules are mandatory and are strictly enforced.” Wellnitz, ¶ 13. ¶26 In Forsythe, we rejected Forsythe’s argument that the temporal limitations contained in Rule 59(d) (the “deemed denied” provision similar to that contained in Rule 60, are unconstitutional because they deprive her of procedural due process). Forsythe, ¶ 10. We cited Kelly v. Sell & Sell Paint Contractors, 175 Mont. 440, 443, 574 P.2d 1002, 1003 (1978), for the proposition that while Rule 59(d) “may in some cases, work harsh results . . . it is perhaps more important that the public have the expectation and right to finality of judgments. This can only be accomplished when there is a cut-off time for a District Court to rule.” We further observed that “just because a rule is arbitrary does not mean it should not be favored.” Forsythe, ¶ 9. ¶27 Statutory and rule-based deadlines are important and must be strictly enforced. Thus, though the District Court had jurisdiction to act after the 60-day “deemed denied” deadline had passed, it erred in categorically ignoring the expiration of the deadline and 12 granting the motion to set aside the default judgment. Once the motion to set aside the judgment was deemed denied by operation of law, Stockton’s recourse was “to appeal the denial in order to preserve the issue as to whether the default judgment should be set aside.” Johnson, 284 Mont. at 479, 945 P.2d at 65. ¶28 The foregoing rule that rule-based and statutory deadlines must be strictly enforced carries with it a caveat. As we noted in Miller, ¶ 46, a time prescription is “unalterable” but can be forfeited if a party “waits too long to raise the point.” By way of illustration, had Green failed to promptly challenge the District Court’s untimely granting of Stockton’s motion to set aside the default judgment, and instead proceeded to trial on the merits of the action, a belated appeal challenging the court’s earlier untimely ruling would be too late. As we noted in State v. Malloy, 2004 MT 377, ¶ 11, 325 Mont. 86, 103 P.3d 1064, quoting § 1-3-207, MCA, “it is a well-established maxim of law that ‘acquiescence in error takes away the right of objecting to it.5’ ” Because Green timely appealed the District Court’s order, this caveat does not come into play here. ¶29 The practical effect of our ruling that the District Court erred in setting aside the default judgment is that the motion to set aside the default judgment was “deemed denied” at the expiration of 60 days. This being so, we now address Stockton’s cross-appeal issue and Green’s argument that Stockton failed to satisfy the elements of a successful Rule 60(b) motion. 5 By contrast, the existence of subject-matter jurisdiction can be raised at any time by any party or by the court. Big Spring v. Conway (In re Estate of Big Spring), 2011 MT 109, ¶ 23, 360 Mont. 370, 255 P.3d 121. 13 ¶30 Did the District Court slightly abuse its discretion in deeming denied Stockton’s motion to set aside the default judgment? ¶31 Stockton argued to the District Court that it was seeking relief from the default judgment under Rule 60(b)(6). Relying on Maulding v. Hardman, 257 Mont. 18, 847 P.2d 292 (1993), the company asserted that to be successful under Maulding, it was required to show (1) good cause and (2) a meritorious defense to the underlying claim. Stockton proclaimed that its “good cause” was Green’s failure to share adverse information with the District Court which, in turn, led the court to award excessive damages. Similarly, Stockton’s claimed meritorious defense was that the “judgment clearly [had] excessive damages.” ¶32 Green countered that Maulding was inapposite and, therefore, the two-prong standard in Maulding was not applicable to this case. She asserted that the proper standard for setting aside a default judgment under Rule 60(b)(6) was set forth in Essex Ins. Co. v. Moose’s Saloon, Inc., 2007 MT 202, ¶ 25, 338 Mont. 423, 166 P.3d 451. Green argued that for Stockton’s Rule 60(b)(6) motion to prevail, Stockton must establish: (1) extraordinary circumstances; (2) that it moved to set aside the judgment within a reasonable period of time, and (3) that it was blameless. Green maintained that Stockton did not establish that it was blameless for the entry of a default judgment against it. She also argued that under Essex, Stockton had to show that none of the specific reasons set forth in Rule 60(b)(1)-(5) applied to this case, and that the company failed to address this requirement. Therefore, Green argued, Stockton’s failure to establish blamelessness; extraordinary circumstances; and that it did not qualify for relief 14 under Rule 60(b)(1)-(5) precluded the District Court from granting the motion to set aside the default judgment. ¶33 On appeal, Green claims Stockton did not meet its burden of establishing any of the three Essex requirements needed to prevail under Rule 60(b)(6). She argues that Stockton did not establish extraordinary circumstances that prevented the company from properly filing an answer to the Complaint or that the company was blameless for failing to answer. She contends that Mykel Stockton’s affidavit to the effect he could not recall being served was insufficient to establish that he had not been served, in light of the process server’s affirmative affidavit to the contrary. She further states that Stockton’s motion to set aside the default judgment, filed six months after entry of the judgment, was not filed within a reasonable time. ¶34 As in the District Court, Stockton maintains on appeal that Maulding provides the appropriate legal standard here because cases involving “an analysis of the counsel’s misconduct in obtaining the default judgment and not that of the party moving to set aside the default judgment” are “different from the run-of-the-mill Rule 60(b)(6) case.” As such, Stockton urges us to not rely on “the more recent Rule 60(b)(6) cases,” such as Essex, but return to our Maulding analysis. Stockton opines that a review of “the entire Rule 60(b)(6) case law” reveals there are two categories of cases: (1) cases involving extraordinary situations that go beyond those covered in the first five subsections of Rule 60(b); and (2) cases in which the party in whose favor judgment was entered has acted improperly. The company asserts the Essex standard applies to cases in category 1 and the Maulding standard applies to cases in category 2. Additionally, Stockton maintains 15 that “this case and Maulding fit hand in glove,” and therefore we should affirm the District Court’s ruling setting aside the default judgment. For the reasons set forth below, we disagree. ¶35 Because Stockton brought its motion to set aside the default judgment under Rule 60(b)(6), and the District Court granted the motion based upon such argument, we analyze the case under that provision of Rule 60(b) and do not analyze whether the motion should have been brought under Rule 60(b)(1)–(5). However, we take this opportunity to reiterate 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. Mont. Prof’l Sports, LLC v. Nat’l Indoor Football League, LLC, 2008 MT 98, ¶ 54, 342 Mont. 292, 180 P.3d 1142. See also Bartell v. Zabawa, 2009 MT 204, 351 Mont. 211, 214 P.3d 735 (Cotter, J., dissenting). We now turn to the question of whether to apply the Maulding test or the Essex test. ¶36 In Maulding, Maulding claimed to have been injured when he was a passenger in a car driven by Hardman and the car slid off the road and into a ditch. With Maulding then taking the wheel, Hardman and the two other passengers pushed the car out of the ditch. No one appeared injured and everyone went home. However, Maulding later went to the hospital claiming injuries. Maulding, 257 Mont. at 21, 847 P.2d at 294. ¶37 In his complaint, Maulding alleged Hardman was drinking and driving recklessly. Although served, Hardman failed to answer Maulding’s complaint and the district court entered a default judgment against him. Maulding, 257 Mont. at 21, 847 P.2d at 295. He moved to have it set aside and the district court scheduled a hearing on the motion. The 16 hearing, however, was conducted after the “deemed denied” deadline and Maulding argued at the hearing that the district court no longer had jurisdiction over the matter. The district court took the issue of jurisdiction under advisement but conducted the hearing. Maulding, 257 Mont. at 22, 847 P.2d at 295. At the hearing, Hardman testified that he was not reckless and that loose gravel caused the car to slide off the road as they rounded a curve. He also stated that another passenger in the car was a corroborating witness who would testify in support of Hardman’s defense. Maulding, 257 Mont. at 23-24, 847 P.2d at 296. In other words, Hardman presented a meritorious defense to the underlying claim. Hardman also presented evidence of gross misconduct on the part of Maulding’s attorney in obtaining the default judgment. Subsequently, however, the court concluded it was without jurisdiction to set aside the default judgment and Hardman appealed. ¶38 On appeal, we reversed the district court and set aside the default judgment under Rule 60(b)(6). Citing First Nat’l Bank v. Springs, 225 Mont. 62, 67, 731 P.2d 332, 335 (1987),6 we applied a two-prong test of “good cause” and a “meritorious defense to the action.” Maulding, 257 Mont. at 23, 847 P.2d at 296. We acknowledged Hardman’s meritorious defense and concluded that “good cause” for setting aside the default judgment existed, in large part, based upon plaintiff’s counsel’s conduct. Maulding, 257 Mont. at 25, 847 P.2d at 297. Among other things, plaintiff’s counsel had initially worked with Hardman’s insurer and then refused to return any calls from the insurer or 6 In First Nat’l Bank, we stated “the party seeking to set aside an entry of default [judgment] must establish good cause for his failure to appear and the existence of a meritorious defense to the action.” 17 provide documentation of the claim. Instead, plaintiff sought and obtained a default judgment against Hardman for special and punitive damages, and then delayed giving notice of the judgment to the insurer until after the 60 days within which Hardman could have filed a Rule 60(b)(1)-(3) motion had expired. We further observed that plaintiff’s counsel failed to disclose certain facts to the court in the ex parte default proceedings that were material to the propriety of default judgment and the award of punitive damages. Based upon this conduct and the questionable manner in which plaintiff’s damages were established in the district court, we concluded that Hardman was entitled to relief under Rule 60(b)(6). Maulding, 257 Mont. at 25, 847 P.2d at 298. ¶39 Stockton maintains that the conduct of Green’s counsel compels the same result, arguing that Green’s failure to advise the District Court at the time of entry of the default judgment that Stockton’s insurer had already paid her the sum of $139,246.80, justified the order setting aside the default judgment. We disagree. Although the sums previously paid by the insurer were not disclosed at the time of entry of judgment, Green has consistently conceded the propriety of a set-off for these amounts against the judgment amount. Moreover, Maulding obtained an award of compensatory damages without presenting expert testimony on plaintiff’s medical condition and an award of punitive damages by arguably misrepresenting the facts underlying the accident to the district court. Here, there was no similar level of misconduct. While we do not condone her lack of candor with the District Court at the time of the default judgment hearing on damages, the actions of Green’s counsel do not present the level of improper conduct that we found in Maulding to constitute good cause for setting aside the default judgment. In re 18 Marriage of Castor, 249 Mont. 495, 500, 817 P.2d 665, 668 (1991). We therefore conclude that Maulding is inapposite. Moreover, because this Court in Maulding erroneously applied the two-part test to be applied when considering a motion to set aside a default—as opposed to a default judgment—we are constrained to overturn it to a limited extent so as to eliminate competing lines of authority in our Rule 60(b)(6) case law. ¶40 It is important to maintain the distinction between setting aside a default and setting aside a default judgment. Rule 55(c) provides that “[t]he court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b).” We have repeatedly held that a party seeking to set aside the entry of default must establish good cause for doing so, and the existence of a meritorious defense to the action. McClurg v. Flathead County Comm’rs, 188 Mont. 20, 610 P.2d 1153 (1980). However, we subsequently—and erroneously—relied upon a “good cause” analysis when addressing the propriety of setting aside a default judgment in First Nat’l Bank. First Nat’l Bank, 225 Mont. at 67, 731 P.2d at 335. In turn, we relied upon First Nat’l Bank in Maulding, quoting it for the proposition that “a party seeking to set aside a default judgment must show both a good cause for doing so under Rule 60(b) and the existence of a meritorious defense.” Maulding, 257 Mont. at 23, 847 P.2d at 296. Thus, Maulding perpetuated the erroneous importation of the “good cause” standard for setting aside a default, into cases concerned with setting aside a default judgment. ¶41 A default is accomplished at the request of the moving party by mere clerical entry at the expiration of the time allotted for a responsive pleading; a default judgment, on the 19 other hand, is the final decision of a court of law. While the terms we use when addressing the burden on a movant seeking to set aside a default versus a default judgment are somewhat amorphous, it should be more difficult to achieve the latter than the former. We therefore deem it necessary to reassert the distinction between the burden imposed on a party seeking to set aside a default (good cause and a meritorious defense), versus that imposed in setting aside a default judgment. More particularly, we reassert that the burden on a person seeking to set aside a default judgment under Rule 60(b)(6) shall be that set forth in Essex. To the extent that the test applied in First Nat’l Bank and Maulding imposed a lesser burden on the party moving to set aside a default judgment under Rule 60(b)(6), these cases are overturned. ¶42 In Essex, we stated: A successful Rule 60(b)(6) motion requires that the movant demonstrate each of the following elements: (1) extraordinary circumstances; (2) the movant acted to set aside the judgment within a reasonable period of time; and (3) the movant was blameless. (Emphasis added.) Essex, ¶ 25 (citations omitted). This well-established three-prong test requires that all three prongs be met. In Orcutt v. Orcutt, 2011 MT 107, 360 Mont. 353, 253 P.3d 884, a dissolution matter, we reviewed the wife’s request to set aside a final judgment under Rule 60(b)(6). Applying the Essex test, and addressing the “extraordinary circumstances” prong, we stated that “extraordinary circumstances” include gross neglect or actual misconduct by an attorney. Orcutt, ¶ 12. We further noted that “Rule 60(b)(6) . . . is designed primarily for situations where a party is wronged through no fault of its own.” Orcutt, ¶ 15. We determined that wife’s attorney “grossly neglected” her case, 20 resulting in a flagrantly inequitable distribution of the marital estate. Orcutt, ¶ 17. This constituted extraordinary circumstances. Further, it was undisputed that the wife promptly moved to set aside the final judgment, and it was apparent that she was blameless. We therefore concluded that the district court had abused its discretion in denying her motion. See also Bartell, ¶ 25; Wellnitz, ¶ 18; C.T.E.-H. v. T.M.E., 2004 MT 307, ¶ 45, 323 Mont. 498, 101 P.3d 254; Bahm v. Southworth, 2000 MT 244, ¶ 14, 301 Mont. 434, 10 P.3d 99; Karlen v. Evans, 276 Mont. 181, 190, 915 P.2d 232, 238 (1996). ¶43 In the case before us, Stockton has not met its burden of establishing extraordinary circumstances or blamelessness. Given the fact that Green has always conceded the propriety of a full offset against the judgment of the amounts she received from the insurance company, her conduct does not present the type of “gross neglect or actual misconduct” that existed in Orcutt as an extraordinary circumstance. Further, in light of proof from the process server that Stockton was served with the Complaint and Summons, the affidavit assertion of registered agent Mykel Stockton that he cannot recall seeing the Complaint does not established blamelessness. As we are here analyzing the propriety of the deemed denial, we therefore conclude that the District Court did not slightly abuse its discretion in deeming denied Stockton’s motion to set aside the default judgment. CONCLUSION ¶44 For the foregoing reasons, we reverse the District Court’s order granting Stockton’s motion to set aside the default judgment, and direct the District Court to 21 withdraw its December 27, 2011 order, reinstate the default judgment, and enter a corrected judgment reflecting the remaining amounts owed to Green by Stockton. /S/ Patricia Cotter We Concur: /S/ Beth Baker /S/ Michael E Wheat /S/ Brian Morris /S/ Jim Rice /S/ Laurie McKinnon Chief Justice Mike McGrath concurs and dissents. ¶45 While I concur with the majority opinion, I write separately on the narrow issue addressing the standard to be used to set aside a default judgment raised by the cross- appeal. I concur with the Court’s determination that the trial court did not abuse its discretion, but I dissent from the majority’s application of the three-part test used in Essex Ins. Co. v. Moose’s Saloon, Inc., 2007 MT 202, ¶ 16, 338 Mont. 423, 166 P.3d 451, and other opinions. ¶46 The majority opinion makes clear that our case law is confusing, convoluted, and far too complex. It does not need to be. I agree with the Court’s decision to overrule Maulding v. Hardman, 257 Mont. 18, 847 P.2d 292 (1993). I would additionally cease stating the M. R. Civ. P. 60(b)(6) standard as a three-part test as we have done in the past 22 and as the Court does here. See ¶¶ 41-42. Instead, I would simply instruct the district courts to apply the plain language of Rule 60(b)(6) and to consider whether circumstances other than those listed in the first five subsections justify setting aside the judgment. ¶47 As an initial matter, our interpretations correctly incorporate a judicial policy that protracted and needless litigation is not favored. The process needs to come to a final resolution. “There must be some point at which litigation ends and the respective rights between the parties are forever established.” In re Marriage of Weber, 2004 MT 211, ¶ 26, 322 Mont. 341, 96 P.3d 716. Setting aside a judgment is not a matter to be considered lightly. That principle should be incorporated in the criteria to be reviewed, and I agree with the Court in that regard. ¶48 My concern with the Court’s approach is the use of the “three-part test.” I do not suggest that a Rule 60(b)(6) movant does not have to demonstrate extraordinary circumstances to be entitled to relief. Requiring extraordinary circumstances is simply another way of saying that there must be some “other reason that justifies relief.” In fact, demonstrating circumstances that justify relief should be the sole focus of Rule 60(b)(6) analysis. I also do not suggest that a Rule 60(b)(6) motion does not have to be filed within a reasonable time; subsection (c)(1) tells us that it must. It is not necessary, however, that a district court always require a movant to demonstrate “blamelessness.” Its inclusion as an essential element muddles our analysis and detracts from what should be the court’s focus—whether justice requires relief from the judgment. 23 ¶49 The language of Rule 60(b)(6) is purposely broad. It is a catch-all provision to cover unforeseen situations not addressed by the first five clauses of Rule 60(b). In re Marriage of Tesch, 199 Mont. 240, 245, 648 P.2d 293, 196 (1982) (citing Charles Alan Wright, Arthur Raphael Miller, & Edward H. Cooper, Federal Practice and Procedure vol. 11, § 2864, 211-12 (1st ed., West 1973)). As the United States Supreme Court noted, “the language of the ‘other reason’ clause, for all reasons except the five particularly specified, vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.”1 Klapprott v. United States, 335 U.S. 601, 614-15, 69 S. Ct. 384, 390 (1949). ¶50 As the majority opinion notes, we have long held that relief under subsection (6) is only available in extraordinary situations not covered by the first five subsections. Tesch, 199 Mont. at 245, 648 P.2d at 293; In re Marriage of Castor, 249 Mont. 495, 500, 817 P.2d 665, 668 (1991); Karlen v. Evans, 276 Mont. 181, 190, 915 P.2d 232, 238 (1996). That limitation derives from the language of the Rule itself. Rule 60(b)(6) permits a court to grant relief from a judgment for “any other reason that justifies relief.” (Emphasis added). ¶51 In Karlen, we considered whether a judgment could be set aside under subsection (6) for an attorney’s mistake, inadvertence, misconduct, or neglect in representing a client, or whether relief in those circumstances must be obtained under subsection (1). Subsection (1) provides that a judgment can be set aside for “mistake, inadvertence, 1 We purportedly adopted this interpretation of subsection (6) in Bartell v. Zabawa, 2009 MT 204, 351 Mont. 211, 214 P.3d 735, yet in that case we nevertheless applied the three- part test as the Court does here. 24 surprise, or excusable neglect.” We held that subsection (1) will be applicable in ordinary circumstances of attorney error, but that, where the moving party can meet the higher burden of demonstrating extraordinary circumstances, gross neglect or actual misconduct, that the client was blameless and he or she acted to set aside the default within a reasonable period of time, then, under our case law, subsection (6) of Rule 60(b) is available. Karlen, 276 Mont. at 190, 915 P.2d at 238. Importantly, we did not hold that was the exclusive method of satisfying the requirement of subsection (6). ¶52 In Bahm v. Southworth, 2000 MT 244, 301 Mont. 434, 10 P.3d 99, another case involving attorney error, we restated our Karlen holding in unqualified terms as a three- part test. We held that “Rule 60(b)(6) applies when the movant demonstrates each of the following elements: 1) extraordinary circumstances including gross neglect or actual misconduct by an attorney; 2) the movant acted to set aside the judgment within a reasonable time period; and 3) the movant was blameless.” Bahm, ¶ 14. We concluded that the district court properly denied the Rule 60(b)(6) motion because the movant had failed to demonstrate each of the three “required elements.” Bahm, ¶ 14. In doing so, we laid the groundwork for our current confusion. ¶53 As the Court does here, we have since frequently cited the three-part test as the standard to be applied to all Rule 60(b)(6) motions. See Essex Ins. Co., ¶ 25; In re Paternity of C.T.E.-H., 2004 MT 307, ¶ 45, 323 Mont. 498, 101 P.3d 254; In re Marriage of Orcutt, 2011 MT 107, ¶ 12, 360 Mont. 353, 253 P.3d 884. This three-part test needlessly confuses Rule 60(b)(6) analysis and distracts from what the trial court should be focusing on; whether the circumstances justify relief. By using the three-part test, we 25 have needlessly narrowed the application of a rule that was intended to address a wide range of unknown circumstances. ¶54 Our holding in Karlen did not set forth the exclusive path for relief under Rule 60(b)(6). Yet our repeated recitation of the three-part test has made it so. As noted above, I believe that the sole focus should be on whether the circumstances justify relief. Other “elements” are unnecessary when considering the merits of a Rule 60(b)(6)motion. The requirement that a Rule 60(b)(6) motion must be filed within a reasonable time used to be mandated by Rule 60(b)(6) itself. That requirement is now set forth as Rule 60(c)(1). Thus its inclusion in the analysis of the merits of a Rule 60(b)(6) motion is redundant and unnecessary. ¶55 Additionally, requiring a movant to prove “blamelessness” should be limited to cases in which the circumstances that allegedly justify relief are an attorney’s mistake, inadvertence, misconduct, or neglect in the representation of a client. In those cases, like in Karlen, the movant must demonstrate blamelessness because otherwise subsection (1) would be applicable. However, the “blameless” component unnecessarily constricts our review in other cases. While a party’s fault or lack of good faith can certainly be a factor in the court’s consideration of whether the circumstances justify relief, the wide array of “other circumstances” that could conceivably justify relief under Rule 60(b)(6) will not always require the movant to demonstrate “blamelessness.” ¶56 This approach accurately reflects our holdings before the three-part test led us astray. It is also consistent with the approach taken by the federal courts, which do not use a three-part test when considering the analogous federal rule. See Klapprott, 335 26 U.S. at 614-15, 69 S. Ct. at 390; Ackermann v. United States, 340 U.S. 193, 197-200, 71 S. Ct. 209, 211-12 (1950); Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64, 108 S. Ct. 2194, 2204-05 (1988); Gonzalez v. Crosby, 545 U.S. 524, 534-35, 125 S. Ct. 2641, 2649-50 (2005); Mackey v. Hoffman, 682 F.3d 1247, 1250-51 (9th Cir. 2012). ¶57 Rule 60(b)(6) was meant to be flexible and malleable to accommodate unforeseeable situations. A catch-all provision, by its very nature, is not meant to be limited. The three-part test attempts to inject certainty into a rule that was meant to address uncertain circumstances. I would not apply the three-part test and would instead instruct the trial courts to apply the plain language of the Rule. Most situations will be covered by the first five subsections of the Rule. In extraordinary cases that are not covered by the first five subsections, however, the trial court should be given the discretion to consider all of the relevant factors and not just those that we have previously identified as pertinent. Our prior cases serve as guidance to help identify relevant considerations in different circumstances. The trial courts’ analysis should focus simply on whether the circumstances justify relief. While this standard is somewhat vague, it is purposely and necessarily so. Consequently, I dissent from the application of the three- part test first articulated in Bahm and adopted in subsequent opinions. /S/ Mike McGrath | February 12, 2013 |
0bb9b53e-e9fd-4857-9680-52b168c391ff | State v. Kime | 2013 MT 14 | DA 12-0320 | Montana | Montana Supreme Court | DA 12-0320 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 14 STATE OF MONTANA, Plaintiff and Appellee, v. DAVID KIME, Defendant and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 11-161C Honorable John C. Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Jeanne M. Walker, Hagen & Walker, PLLC, Billings, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman, Assistant Attorney General, Helena, Montana Marty Lambert, Gallatin County Attorney; Eric Kitzmiller, Deputy County Attorney, Bozeman, Montana Submitted on Briefs: January 3, 2013 Decided: January 29, 2013 Filed: __________________________________________ Clerk January 29 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 David Kime appeals from his sentence as a persistent felony offender. We affirm in part and reverse in part. ¶2 Kime presents the following issues for review: ¶3 Issue One: Whether the District Court erred by sentencing Kime as a persistent felony offender. ¶4 Issue Two: Whether the District Court erred in sentencing Kime to 30 days in jail for careless driving. ¶5 Issue Three: Whether Kime received ineffective assistance of counsel at sentencing. PROCEDURAL AND FACTUAL BACKGROUND ¶6 In August 2011, the State charged Kime with felony driving under the influence of alcohol (§§ 61-8-401 and 61-8-731, MCA); careless driving (§ 61-8-302, MCA); and operating a motor vehicle while a habitual traffic offender (§ 61-11-213, MCA). The charges arose from a traffic accident in which Kime drove through an intersection and hit another vehicle. In January 2012, the State filed notice pursuant to § 46-13-108, MCA, that it intended to seek persistent felony offender status for Kime under § 46-18-501, MCA. A person designated as a persistent felony offender is subject to sentencing as a persistent felony offender under § 46-18-502, MCA. The predicate conviction for the State’s persistent felony offender notice was Kime’s May 2009 conviction for felony DUI.1 1 In addition to the 2009 felony DUI offense, Kime has a criminal offense history that includes a 1991 conviction for felony kidnapping in Idaho; a 1997 Montana conviction for felony assault for which he was designated a persistent felony offender; a 2001Montana conviction for felony theft, and numerous convictions for DUI. 3 ¶7 Kime’s attorney filed a brief objecting to the proposed designation as a persistent felony offender and the District Court held a hearing on the issue. On February 17, 2012, the District Court entered its order denying Kime’s objection. The order noted that while persistent felony offender designation was proper, the District Court would nonetheless consider alternatives to imprisonment as provided in § 46-18-225, MCA. ¶8 Kime entered a plea agreement under which he pled guilty to the felony DUI charge and the State dismissed the charge of driving while a habitual traffic offender. The District Court conducted a bench trial on the careless driving charge, resulting in a conviction. On March 28, 2012, the District Court sentenced Kime to ten years at Montana State Prison with no time suspended as a persistent felony offender based upon the felony DUI, and to 30 days in jail on the careless driving conviction. The District Court gave Kime credit for 246 days he had already served in jail. STANDARD OF REVIEW ¶9 This Court reviews a sentence longer than one year to determine whether it is legal. State v. Garrymore, 2006 MT 245, ¶ 9, 334 Mont. 1, 145 P.3d 946; State v. Bullplume, 2011 MT 40, ¶ 10, 359 Mont. 289, 251 P.3d 114. A sentence is legal if it falls within statutory parameters. State v. Kotwicki, 2007 MT 17, ¶ 5, 335 Mont. 344, 151 P.3d 982. ¶10 This Court reviews a claim of ineffective assistance of counsel to determine whether counsel’s performance was deficient and if so whether the defense was prejudiced. Baca v. State, 2008 MT 371, ¶ 16, 346 Mont. 474, 197 P.3d 948. DISCUSSION 4 ¶11 Issue One: Whether the District Court erred by sentencing Kime as a persistent felony offender. ¶12 Kime argues that the persistent felony offender statutes conflict with the sentencing provided for felony DUI; that the persistent felony offender statutes are general while the DUI sentencing statute is specific; and that therefore the specific DUI statute should be followed. Kime urges that we overrule State v. Damon, 2005 MT 218, 328 Mont. 276, 119 P.3d 1194, and cases following that decision because it applied a “very simplistic analysis” to wrongly allow persistent felony offender sentencing of a felony DUI offender. Kime does not otherwise attack the application of the persistent felony offender statutes to his case. ¶13 A persistent felony offender is an offender who has been convicted of a felony and is being sentenced for a second felony, if the prior felony conviction happened within five years. Section 46-18-501, MCA. The prosecution must give notice of its intent to seek persistent felony offender status and of the prior convictions supporting the designation. Section 46-13-108(2), MCA. If the defendant objects the court must hold a hearing to determine “if the allegations in the notice are true.” If so, “the accused must be sentenced as provided by law.” Section 46-13-108(3) and (4), MCA. A persistent felony offender may be sentenced to imprisonment for five to 100 years, depending upon the circumstances. Section 46-18-502, MCA. The sentence for a felony DUI is provided in § 61-8-731, MCA, and consists generally of a term of 13 months to the custody of the Department of Corrections, followed by a term of not more than five years to the DOC or to prison. ¶14 In decisions following Damon, this Court has clearly established that the intent of the persistent felony offender statutes is that they “replace the sentence for the underlying 5 felony.” State v. Gunderson, 2010 MT 166, ¶ 54, 357 Mont. 142, 237 P.3d 74 (emphasis in original); State v. Brooks, 2010 MT 226, ¶ 18, 358 Mont. 51, 243 P.3d 405; State v. Burns, 2011 MT 167, ¶ 46, 361 Mont. 191, 256 P.3d 944. Because the persistent felony offender sentencing provisions in § 46-18-502, MCA, replace the sentencing provision for the underlying felony offense, there is no need to resort to rules of statutory construction to determine which statute applies. ¶15 Where there are several statutory provisions that may apply, the preferred result is to give effect to all if possible. Section 1-2-101, MCA; Damon, ¶ 39. The very purpose of the persistent felony offender designation is to conflict with and to supplant the specific sentencing provisions provided for individual crimes. Damon, ¶ 39. If Kime’s specific statute-general statute construction argument were adopted, the persistent felony offender statutes would be effectively nullified since there will always be a conflict with the sentencing provision for the underlying felony. This result would not apply the statutes to give effect to them all and would be an absurd result in which the persistent felony offender statutes would never apply. The Legislature has specifically and particularly described the situations in which the persistent felony offender designation may be applied (§§ 46-13-108, 46-18-501 and -502, MCA), and DUI offenders are not excluded. Damon, ¶ 36; State v. Gallagher, 2005 MT 336, ¶ 31, 330 Mont. 65, 125 P.3d 1141 (“a DUI conviction is and remains a felony which is subject to the persistent felony offender statutes.”). ¶16 The District Court therefore lawfully sentenced Kime to a term of ten years, which is a lawful sentence within the range provided by § 46-18-502, MCA. 6 ¶17 Issue Two: Whether the District Court erred in sentencing Kime to 30 days in jail for careless driving. ¶18 The State concedes that the District Court exceeded its authority when it imposed a 30-day jail sentence for Kime’s careless driving conviction. The only penalty for careless driving is a fine between $10 and $100. Sections 61-8-711(2) and -716, MCA. However, the State notes that because Kime was credited with 246 days of time served at sentencing, he had already discharged the 30-day careless driving sentence at that time. The State concludes that there is therefore no effective relief that can be given. Kime argues that since his 30 days cannot be restored, the careless driving charge should be dismissed. ¶19 Kime does not attack the validity of his conviction for careless driving, but only claims, correctly, that the jail sentence was unlawful. There is therefore no basis upon which to void the conviction itself. However, it is possible to correct the sentence, and this Court has recognized that correcting invalid sentences “protects the integrity of the judicial process and furthers the express correctional and sentencing policy of the state.” State v. Heafner, 2010 MT 87, ¶ 12, 356 Mont. 128, 231 P.3d 1087. In this case, the proper remedy is to remand to the District Court with instructions to strike the illegal jail time imposed in the sentence for careless driving. Heafner, ¶ 11. ¶20 Issue Three: Whether Kime received ineffective assistance of counsel at sentencing. ¶21 A claim of constitutionally-deficient ineffective assistance of counsel requires that counsel’s performance be deficient and that the deficiency prejudice the defense. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984); Whitlow v. State, 2008 MT 140, 343 Mont. 90, 183 P.3d 861; Baca, ¶ 16. The defendant must show a reasonable probability that 7 but for his attorney’s deficient performance the result of the proceeding would have been different. State v. Henderson, 2004 MT 173, ¶ 4, 322 Mont. 69, 93 P.3d 1231. The defendant must show that his attorney was not functioning as the “counsel” guaranteed by the United States and Montana Constitutions. Review on appeal is highly deferential to the actions of the attorney, and this Court rarely grants relief if there is “some evidence that the [attorney’s] decision was strategic.” Henderson, ¶ 5. ¶22 Kime argues that his attorney’s performance at sentencing was deficient because she had an obligation to urge the District Court to impose a sentence less than the 10 years suggested by the State, and failed to do so. Kime describes that failure as “per se ineffective assistance of counsel any way you slice it.” At the same time, Kime concedes that the State has established that he “wanted no suspended time and would accept whatever term of years the District Court imposed.” Kime argues that this issue can be decided based upon the present record. ¶23 The record shows that Kime’s repeated position was that he wanted admission to the WATCh alcohol rehabilitation program; that he would accept whatever sentence the District Court imposed; and that above all he wanted no suspended time. At the hearing on Kime’s change of plea to guilty of DUI in the present case, the District Court advised and Kime agreed that under the plea agreement the Court could impose whatever sentence it deemed fit for the DUI, as a persistent felony offender. Kime told the District Court that he wanted to be sentenced that day without waiting for a new presentence investigation (PSI). Kime said: “I would be happy with you sentencing me with whatever you would care to do as long as there’s no suspended time. That the—that would be my only requirement.” Kime also 8 expressed his understanding that the plea agreement contained no guarantee of a specific sentence, stating to the District Court: “And if you want to give me 15, that’s what he [the author of the PSI] wanted to give me, but [if] there’s no suspended time included, I’m good.” ¶24 The District Court declined to sentence Kime without a PSI and ordered that one be prepared. In the PSI Kime was asked to provide his recommendation for the disposition of his case and stated: “Whatever as long as there is no suspended time. Allow me to go back to my family in Kentucky. My mom has dementia and is in her 70s. She owns a large portion of land my brothers & I will inherit, I can live there.” A handwritten letter from Kime to the District Court attached to the PSI stated: “I know I’m going to MSP. Judge Brown I ask you sentence me to prison time with none suspended so I will have a chance of going back to my family in Kentucky.” In Kime’s more recent criminal history his suspended sentences for various offenses were revoked on a number of occasions and he was sent to prison as a result. ¶25 Kime and his attorney argued repeatedly in District Court that he needed and wanted to go to the WATCh alcohol rehabilitation program, and that it represented his best chance of overcoming his alcoholism. Kime’s attorney discussed this at length in her briefing in opposition to the State’s notice of intent to seek designation as a persistent felony offender. Kime’s attorney complained about his not getting accepted into the WATCh program the last time he was in prison and how that had impacted his inability to deal with his alcoholism. She explained Kime’s desire that admission to or completion of the WATCh program not be tied to parole eligibility so as to increase his chances for admission. This was a major topic of discussion at the sentencing hearing as well. 9 ¶26 At sentencing the State recommended a sentence of 10 years at MSP with no time suspended. The PSI recommended 15 years with all but the first five suspended. When the District Court asked defense counsel if she had a recommendation, she stated: “I’m going to leave that up to you. Mr. Kime wants me to leave that up to you.” (Emphasis added.) Immediately thereafter the District Court and Kime’s attorney each asked Kime if he wanted to say anything and he said “No, Your Honor.” ¶27 The District Court sentenced Kime to ten years at MSP with none suspended, based upon his “lengthy criminal history,” his designation as a persistent felony offender, and Kime’s request that the sentence contain no suspended time. The District Court noted defense counsel’s arguments made in opposition to the persistent felony offender designation, and that Kime’s long history of alcoholism had “derailed his life” and “contributed greatly” to his criminal conduct. The District Court explained that the sentence provided an “appropriate and commensurate punishment,” that it held Kime accountable for his conduct, and that it would hopefully provide him with the opportunity for rehabilitation and self-improvement by participating in the WATCh program. ¶28 The record in this case shows that starting with the change of plea hearing, through the PSI process and to the sentencing hearing, Kime made it clear that he would accept whatever prison time his sentence specified and that he wanted no suspended time. Kime did this through his attorney and through his own direct statements to the District Court, both orally and in writing. Kime’s motivations for this position were his past experiences with suspended sentences that resulted in his return to prison on numerous occasions and his desire to complete his sentence obligations with a clean break so that he could return to 10 Kentucky. Most tellingly, Kime’s attorney represented to the District Court that Kime instructed her to make no specific recommendation as to sentence length, and immediately thereafter Kime expressly said that he had no other statement to make. While Kime was not required to make his own argument concerning sentencing, he showed no reluctance to clearly express his views to the District Court in prior proceedings. ¶29 There is no indication that the District Court sentenced Kime based upon the absence of a specific time recommendation from the defense. By the time of sentencing, the District Court was quite familiar with Kime’s record, his situation, and his outlook on it. The District Court knew, because Kime had expressly said so, that his overriding interests were access to WATCh and a sentence without any suspended time. The District Court carefully stated the reasoning behind the sentence and there is nothing more than speculation to support a contention that the sentence was affected by the absence of a specific length request from the defense. ¶30 The conclusion to be drawn from this record is that Kime agreed to not make a specific recommendation or request as to the length of his sentence for his own reasons. It is clear that he instructed his attorney to act accordingly and that she did so. It is also clear that the District Court sentenced Kime to the low end of the sentence range for a persistent felony offender (not less than 10 nor more than 100 years in state prison, § 46-18-502(2), MCA), while making it clear that Kime should be admitted to the WATCh program. Kime received a sentence like the one he repeatedly said he wanted. ¶31 Where ineffective assistance of counsel claims are based upon facts of record, they must be raised on direct appeal. State v. Main, 2011 MT 123, ¶ 48, 360 Mont. 470, 255 P.2d 11 1240. Clearly the record in this case demonstrates that counsel’s performance was not deficient. Consequently Kime has failed to establish the first prong of the Strickland requirements. Failure to establish either prong is fatal to a claim of ineffective assistance of counsel. State v. Lindsey, 2011 MT 46, ¶ 43, 359 Mont. 362, 249 P.3d 491. The ineffective assistance of counsel claim is without merit. ¶32 We affirm the sentence for felony DUI as a persistent felony offender. We reverse the jail time sentence for the conviction for careless driving and remand to the District Court with instructions to strike that sentence. /S/ Mike McGrath We concur: /S/ Beth Baker /S/ Patricia O. Cotter /S/ Michael E Wheat /S/ Brian Morris | January 29, 2013 |
2498f0ef-1c0d-42c0-8e10-04d91d7c5bf9 | State v. Haldane | 2013 MT 32 | DA 12-0055 | Montana | Montana Supreme Court | DA 12-0055 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 32 STATE OF MONTANA, Plaintiff and Appellee, v. MARK ANDREW HALDANE, Defendant and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 11-152A Honorable Holly Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender, Jennifer A. Hurley, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana Kyla C. Murray, City Prosecutor, City of Bozeman, Bozeman, Montana Submitted on Briefs: December 4, 2012 Decided: February 12, 2013 Filed: __________________________________________ Clerk February 12 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Mark Andrew Haldane (Haldane) was convicted of driving under the influence of alcohol (DUI) following a jury trial in the City of Bozeman Municipal Court. He appealed to the District Court. Haldane appeals from an order of Montana’s Eighteenth Judicial District Court, Gallatin County, affirming the Municipal Court’s denial of Haldane’s motion to suppress that had challenged the particularized suspicion to stop Haldane based on the obstruction of a license plate. Haldane also asserts that his counsel rendered ineffective assistance by failing to elicit certain testimony from the officers at trial and not renewing the motion to suppress once those facts were elicited. Lastly, Haldane challenges his sentence on the grounds that it violated his due process rights because it was based on his indigency. We affirm the District Court’s denial of Haldane’s motion to dismiss, reject his ineffective assistance of counsel arguments, vacate his sentence on due process grounds, and remand for entry of a new sentence that comports with due process concerns. ISSUES ¶2 Haldane raises the following three issues on appeal: ¶3 1. Was Haldane’s constitutional right to be free from unreasonable seizure violated when officers stopped his car based on an obstruction of his temporary registration permit by snow and a trailer hitch? ¶4 2. Did Haldane’s counsel render ineffective assistance by failing to properly investigate and elicit testimony at the suppression hearing that the officers could in fact 3 read the temporary permit, and later for failing to renew the motion to suppress once the officer testified at trial that he could read the permit? ¶5 3. Did Haldane’s sentence violate due process because it was based on indigency? FACTUAL AND PROCEDURAL BACKGROUND ¶6 On January 12, 2011, City of Bozeman police officers Lindsay Shepherd and Hal Richardson executed a traffic stop of a car driven by Haldane. Officer Richardson was a field training officer and was assigned to supervise Officer Shepherd, who was in the second phase of field training at the time of the stop. Officer Shepherd was driving and Officer Richardson was in the passenger seat of the patrol car. The officers encountered Haldane’s vehicle as it was stopped at a red light at the intersection of 23rd Street and Main Street in Bozeman, Montana. When the officers pulled up behind Haldane’s vehicle, they noticed that its license plate was obstructed by snow and a trailer hitch. The officers observed that snow had built up at the base of the license plate well, which prevented the officers from viewing the digits on Haldane’s temporary license plate. It was not actively snowing and had not snowed for at least a day prior to the traffic stop. ¶7 Police officers use the license plate number of a vehicle to check its registration using the Mobile Data Terminal (MDT) in their patrol vehicles. The MDT allows officers to connect to the dispatch center. Running license plate numbers through the MDT provides officers with information about the vehicle and its owner, and is commonly used to verify whether a vehicle’s registration is current. ¶8 Haldane was driving a black Ford Explorer at the time of the stop. Haldane had purchased the vehicle two days prior to the stop from a local auto dealer. The auto dealer 4 provided Haldane with a temporary registration and affixed a temporary plate. The ball trailer hitch was attached to the vehicle at the time of purchase. Haldane claims that he was unaware that his temporary plate was obstructed in any way. ¶9 Officer Shepherd initiated the traffic stop as Haldane turned onto St. Estephe Drive. Officer Shepherd approached the vehicle and asked Haldane for his driver’s license, registration, and proof of insurance. Haldane was only able to produce his driver’s license. Officer Richardson noticed that Haldane was “fervently” smoking a cigarette and had red, bloodshot eyes. Both officers returned to the patrol car to verify Haldane’s license. When the officers re-approached Haldane’s vehicle to return his license, Officer Richardson asked Haldane how many drinks he had that night. According to Officer Richardson, Haldane slurred and responded, “two to three beers.” Officer Richardson conducted field sobriety tests and noted multiple signs of impairment during the maneuvers, including Haldane’s inability to properly recite the alphabet. Haldane refused to submit to a breathalyzer test and became belligerent. ¶10 Haldane was arrested and charged with the following three offenses: (1) DUI in violation of § 61-8-401, MCA; (2) Driving with an Obstructed Plate in violation of § 61-3-301, MCA; and (3) Operating a Motor Vehicle without Liability Insurance in violation of § 61-6-301, MCA. On May 5, 2011, Haldane filed a motion in Municipal Court to suppress evidence based on a lack of particularized suspicion to conduct the investigative stop. On May 26, 2011, the Municipal Court held a hearing on the motion to suppress. Officers Shepherd and Richardson testified at the hearing. Neither officer was able to recall how Haldane’s registration was verified. 5 ¶11 Following the evidentiary hearing, the Municipal Court issued an order on June 1, 2011, denying Haldane’s motion to suppress. On June 21, 2011, Haldane was found guilty of DUI, first offense, in violation of § 61-8-401, MCA, following a jury trial. The State chose not to pursue the obstructed plates and no insurance charges against Haldane. At trial, both officers testified that the license plate was obstructed by snow and the ball hitch. Officer Richardson recalled that once he approached the vehicle and changed his vantage point, he was able to read the numbers on the license plate. ¶12 On June 29, 2011, the Municipal Court sentenced Haldane for the DUI offense. Originally, the Municipal Court discussed sentencing Haldane to six months in the Gallatin County Detention Center with all but three days suspended, ordering fines totaling $935, and imposing other sentencing conditions. Later in the sentencing hearing, the length of Haldane’s suspended sentence was doubled to one year to allow Haldane more time to make the monthly payments. The Municipal Court instituted a payment plan for the fines and fees that allowed Haldane to pay $100 per month. ¶13 Haldane appealed his conviction to the District Court. Specifically, Haldane challenged the Municipal Court’s denial of his motion to suppress, denial of his motion for a mistrial for wrongfully impaneling the jury, and decision to sustain the State’s objection to the defense’s attempt to impeach Officer Richardson on cross-examination. The District Court affirmed the Municipal Court on all grounds. Of relevance here, the District Court held that the testimony of the officers was credible and sufficient to support the finding of particularized suspicion for the stop. 6 ¶14 Haldane appeals the District Court’s order affirming the Municipal Court’s rulings and the jury’s verdict. Haldane also raises an ineffective assistance of counsel claim, and challenges his sentence on due process grounds. STANDARDS OF REVIEW ¶15 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. Anders, 2012 MT 62, ¶ 9, 364 Mont. 316, 274 P.3d 720; State v. Spaulding, 2011 MT 204, ¶ 13, 361 Mont. 445, 259 P.3d 793; State v. Hafner, 2010 MT 233, ¶ 12, 358 Mont. 137, 243 P.3d 435. ¶16 We review de novo the mixed questions of law and fact presented by claims of ineffective assistance of counsel. Ariegwe v. State, 2012 MT 166, ¶ 13, 365 Mont. 505, 285 P.3d 424; State v. Edwards, 2011 MT 210, ¶ 13, 361 Mont. 478, 260 P.3d 396. ¶17 We review a sentence of less than one year of actual incarceration for both legality and abuse of discretion. City of Billings v. Edward, 2012 MT 186, ¶ 17, 366 Mont. 107, 285 P.3d 523; State v. Breeding, 2008 MT 162, ¶ 10, 343 Mont. 323, 184 P.3d 313. In reviewing the legality of a sentence, we look to whether the sentencing court had statutory authority to impose the sentence and whether the sentence falls within statutory parameters. Breeding, ¶ 10; State v. Stephenson, 2008 MT 64, ¶ 15, 342 Mont. 60, 179 P.3d 502. This determination is a question of law and, as such, our review is de novo. Stephenson, ¶ 15. A sentencing court abuses its discretion when it acts “arbitrarily without employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.” Edward, ¶ 17; Breeding, ¶ 10. This Court reviews 7 de novo whether a district court violated a defendant’s constitutional rights at sentencing. State v. Bullplume, 2011 MT 40, ¶ 10, 359 Mont. 289, 251 P.3d 114; State v. Hill, 2009 MT 134, ¶ 20, 350 Mont. 296, 207 P.3d 307. DISCUSSION ¶18 Was Haldane’s constitutional right to be free from unreasonable seizure violated when officers stopped his car based on an obstruction of his temporary registration permit by snow and a trailer hitch? ¶19 The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution protect individuals from unreasonable searches and seizures. State v. LeMay, 2011 MT 323, ¶ 61, 363 Mont. 172, 266 P.3d 1278; State v. Larson, 2010 MT 236, ¶ 19, 358 Mont. 156, 243 P.3d 1130. Montanans enjoy even greater protections against government intrusions by virtue of an express right to privacy set forth in Article II, Section 10 of the Montana Constitution. State v. Graham, 2007 MT 358, ¶ 12, 340 Mont. 366, 175 P.3d 885; State v. Bullock, 272 Mont. 361, 384, 901 P.2d 61, 75-76 (1995). These constitutional protections apply to investigative stops of vehicles by law enforcement. Lemay, ¶ 61; Larson, ¶ 19. ¶20 Montana law provides that “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.” Section 46-5-401(1), MCA. The State bears the burden of proving that an officer had particularized suspicion to stop a vehicle by showing: (1) objective data and articulable facts from which an officer can make certain reasonable inferences; and (2) a resulting suspicion that the person to be stopped has committed, is committing, or is about to 8 commit an offense. LeMay, ¶ 62; Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842. “Whether particularized suspicion exists is evaluated under the totality of the circumstances 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.” LeMay, ¶ 62; City of Missoula v. Moore, 2011 MT 61, ¶ 16, 360 Mont. 22, 251 P.3d 679. ¶21 The statute at issue here, § 61-3-301(1)(a), MCA, provides that “a person may not operate a motor vehicle . . . upon the public highways of Montana unless the motor vehicle . . . is properly registered and has the proper license plates conspicuously displayed on the motor vehicle.” Furthermore, § 61-3-301(1)(a), MCA, requires that the “license plate must be securely fastened to prevent it from swinging and may not be obstructed from plain view.” The statute defines “conspicuously displayed” as “obviously visible and firmly attached.” Section 61-3-301(4), MCA. Haldane possessed a temporary registration permit at the time of the stop. Section 61-3-224(5), MCA, contains the rules for display of a temporary permit, and similarly requires that the permit “must be plainly visible and firmly attached to the rear exterior of the vehicle where a license plate is required to be displayed.” ¶22 Haldane argues that Montana’s weather and the prevalence of farm and other towing vehicles make it unlawful for law enforcement officers to effectuate a stop on the sole basis that they cannot read a temporary registration permit due to snow and a ball hitch. Haldane maintains that he did not violate the statute because the temporary registration permit was fully visible and readable once the officers approached the vehicle. Haldane relies on Justice Nelson’s concurrences in State v. Rutherford, 2009 9 MT 154, 350 Mont. 403, 208 P.3d 389 and State v. Cooper, 2010 MT 11, 355 Mont. 80, 224 P.3d 636. ¶23 In Rutherford, a witness called 911 and reported a suspected drunk driver after a vehicle pulled out in front her and drove erratically. Rutherford, ¶¶ 3-4. The witness could only provide the dispatcher with a partial license plate number because a trailer hitch covered the middle numbers on the plate, but the witness continued to follow the vehicle and provided details about the make, model, and color. Rutherford, ¶ 4. The dispatcher relayed this information to a police officer, who identified the subject vehicle and conducted a traffic stop. Rutherford, ¶¶ 5-6. The officer informed the driver that he had stopped him because the truck’s rear license plate was obstructed and because of a citizen’s complaint. Rutherford, ¶¶ 6-7. The driver was arrested and charged with DUI. Rutherford, ¶ 6. ¶24 The driver challenged whether the arresting officer had particularized suspicion to support the traffic stop. Rutherford, ¶ 13. The driver argued that the alleged obstructed license plate could not provide a lawful basis for a traffic stop because the trailer hitch was factory-installed. Rutherford, ¶ 13. This Court determined that the citizen informant provided reliable objective data from which the officer could infer that the driver was under the influence. Rutherford, ¶ 19. The stop was supported by particularized suspicion, even discounting the matter of the obstructed license plate. Rutherford, ¶¶ 18-20. Justice Nelson concurred in the result, but wrote separately to note his belief that an obscured license plate cannot provide particularized suspicion for a traffic stop: 10 There is nothing in § 61-3-301, MCA, or in Lacasella1 that leads me to the conclusion that an otherwise “conspicuously displayed” and “clearly visible” license plate ceases to be that if the numbers are “obscured” by a trailer hitch, mud, snow, dust, or dirt. If that is the case, then few drivers in this State will be free from a peace officer’s discretionary investigatory stop, given the number of vehicles with trailer hitches and given weather, seasonal road conditions, and the number of dirt and farm roads on which we all drive. “Obscured” license plates are a fact of life; we all have them at one time or another. In my view, a peace officer effecting an investigatory stop needs more particularized suspicion of criminal activity than that afforded by an “obscured” license plate which is otherwise attached to the vehicle in accordance with § 61-3-301, MCA. Rutherford, ¶ 27 (Nelson, J., concurring). ¶25 In Cooper, a driver pulled out directly in front of a highway patrol trooper, crossed the fog line, executed a U-turn, and proceeded at an incredibly slow speed. Cooper, ¶ 3. The trooper performed a traffic stop and told the driver that the reason he stopped her was because her license plate was covered in snow. Cooper, ¶ 3. After an ensuing investigation, the driver was charged with DUI. Cooper, ¶ 3. Based on the totality of the circumstances, we held that the officer had particularized suspicion to stop the driver. Cooper, ¶ 11. Justice Nelson concurred, but reiterated his concerns from Rutherford: I continue to disagree with the proposition that, in this state, a license plate’s being obscured by the natural accumulation of the elements or driving conditions can constitute particularized suspicion for anything— except that Montanans often drive in foul weather and on foul roads. Cooper, ¶ 15 (Nelson, J., concurring). 1 In State v. Lacasella, 2002 MT 326, 313 Mont. 185, 60 P.3d 975, this Court held that an officer did not have particularized suspicion to stop a vehicle with a license plate displayed in the front corner of the windshield, which comported with the requirements of § 61-3-301, MCA. Section 61-3-301, MCA, was amended in 2003 to require display of license plates on the exterior of a vehicle. 11 ¶26 Though both Rutherford and Cooper involved facts in addition to an obstructed plate that gave rise to particularized suspicion, nothing in these decisions forecloses an officer from conducting an investigatory stop based solely on a violation of § 61-3-301, MCA. “A statutory violation alone is sufficient to establish particularized suspicion for an officer to make a traffic stop.” State v. Schulke, 2005 MT 77, ¶ 16, 326 Mont. 390, 109 P.3d 744. While we note Justice Nelson’s concerns, we cannot ignore the plain language of § 61-3-301, MCA, which requires that a license plate “may not be obstructed from plain view” and must be “obviously visible.” The statute serves an important purpose of enabling officers to ascertain if the vehicle is properly registered. Lacasella, ¶ 16. Law enforcement officers are unable to check a vehicle’s registration if the plates are not conspicuously displayed. ¶27 Officer Shepherd testified at both the suppression hearing and at trial that the reason for the investigatory stop of Haldane was because his license plate was obstructed by snow and a ball hitch. Officer Richardson independently noticed that Haldane’s plates were obstructed, and observed this possible violation before discussing it with Officer Shepherd. Because of these obstructions, Officer Shepherd was unable to verify whether the vehicle was properly registered. Such observations are sufficient to allow an officer to develop a resulting suspicion that Haldane was in violation of § 61-3-301, MCA, by having a license plate that was “obstructed from plain view” and not “obviously visible.” Even if a vehicle is properly registered, a driver can still be cited for violation of § 61-3-301, MCA, which is a stand-alone offense. 12 ¶28 Once Officer Shepherd lawfully stopped Haldane, she was authorized to “request the person’s name and present address and an explanation of the person’s actions and, if the person is the driver of a vehicle, demand the person’s driver’s license and the vehicle’s registration and proof of insurance.” Section 46-5-401(2)(a), MCA. Both officers approached Haldane’s vehicle and Officer Shepherd asked for his license, registration, and proof of insurance. We recognize that a stop authorized by § 46-5-401, MCA, “may not last longer than is necessary to effectuate the purpose of the stop.” Section 46-5-403, MCA. However, even if the officers could see the license plate when they approached the vehicle and changed their vantage point, the officers still had the right to speak to the driver and request certain documentation. ¶29 We have determined in previous cases that particularized suspicion can be based on “observations between the time [the officer] initiated the stop of the truck and the time he returned [the defendant’s] identification.” Larson, ¶ 26. Officer Richardson noticed that Haldane’s speech was slurred, his eyes were bloodshot, and his movements were slow. In addition to these common signs of intoxication, Haldane admitted to consuming two to three beers when Officer Richardson asked if he had been drinking. These facts enlarged the scope of the investigatory stop to include a possible DUI offense. See State v. Henderson, 1998 MT 233, ¶ 22, 291 Mont. 77, 966 P.2d 137. ¶30 Haldane has failed to demonstrate that any of the findings of fact upon which the District Court relied in denying Haldane’s motion to suppress were clearly erroneous. The District Court correctly interpreted the law and applied it to those facts in finding that the officers had particularized suspicion to support the investigatory stop. 13 Accordingly, we conclude that Haldane’s right to be free from unreasonable seizures was not violated. ¶31 Did Haldane’s counsel render ineffective assistance by failing to properly investigate and elicit testimony at the suppression hearing that the officers could in fact read the temporary permit, and later for failing to renew the motion to suppress once the officer testified at trial that he could read the permit? ¶32 The Sixth Amendment to the United State Constitution and Article II, Section 24 of the Montana Constitution guarantee the right of effective assistance of counsel. State v. Roundstone, 2011 MT 227, ¶ 32, 362 Mont. 74, 261 P.3d 1009; State v. Sartain, 2010 MT 213, ¶ 29, 357 Mont. 483, 241 P.3d 1032. This Court reviews ineffective assistance of counsel claims under the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Roundstone, ¶ 32; Sartain, ¶ 29. Under the Strickland test, a defendant must prove that (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness, and (2) counsel’s performance prejudiced the defense. Roundstone, ¶ 32; Sartain, ¶ 29. A defendant must satisfy both prongs of the Strickland test to prevail on an ineffective assistance of counsel claim. Whitlow v. State, 2008 MT 140, ¶ 11, 343 Mont. 90, 183 P.3d 861. A defendant must overcome a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. ¶33 We will review an ineffective assistance of counsel claim on direct appeal if the record reveals why counsel acted as he did, or if there is “no plausible justification” for what defense counsel did or failed to do. State v. Kougl, 2004 MT 243, ¶¶ 14-15, 323 Mont. 6, 97 P.3d 1095. While the record does not contain information regarding why 14 Haldane’s attorney acted as he did at trial and during the suppression hearing, the record does reveal a rather lengthy line of questions regarding how Officer Richardson verified the registration of the vehicle and what he observed during the traffic stop. In fact, the District Court described the cross-examination as “dizzying.” Haldane’s direct appeal can be sustained only upon a showing that there was “no plausible justification” for his counsel’s actions. ¶34 Haldane asserts that his counsel failed to elicit testimony from Officer Richardson at the suppression hearing regarding whether Officer Richardson could read Haldane’s temporary registration permit once he approached the vehicle. At the suppression hearing, Officer Shepherd testified that she verified that Haldane’s vehicle was properly registered, but could not recall how she had done so. Officer Richardson testified that he believed Haldane provided documentation which enabled them to check the registration, but he was also unable to recall those details with certainty. At trial, defense counsel pointed out that Haldane’s citation actually contained the license plate number, and Officer Richardson testified that he may have been able to see the plate number once he approached the vehicle and viewed it from a different angle. Haldane argues that had this testimony been elicited at the suppression hearing, the motion to suppress would have been granted. We disagree. ¶35 Section 61-3-301, MCA, requires that a license plate “may not be obstructed from plain view” and must be “obviously visible.” Both officers testified that Haldane’s temporary registration permit was obscured by snow and a ball hitch and could not be seen when they were driving directly behind Haldane’s vehicle. Officer Richardson was 15 unable to read the numbers on the license plate until he changed his vantage point and was standing directly behind the vehicle. The fact that Officer Richardson could see the plate after approaching on foot and standing directly over it does not change the fact that both officers were unable to read the license plate from their vehicles. ¶36 The terms “obviously visible” and “plain view” certainly contemplate a higher standard of visibility than that the plate merely be decipherable upon close inspection by an officer who has exited his vehicle and stands over the bumper. “The purpose of requiring a license plate to be conspicuously displayed on the front and rear of a vehicle is to enable law enforcement officers to ascertain whether a vehicle that is approaching or being followed is properly registered.” Lacasella, ¶ 16. Haldane’s interpretation of § 61-3-301, MCA, compels a hypertechnical reading of the statute and ignores its purpose. As discussed in ¶¶ 27-30 of this Opinion, the investigatory stop was supported by particularized suspicion and the officers did not exceed the permissible scope of the investigatory stop. The fact that Officer Richardson could read the license plate numbers upon close inspection does not change these legal conclusions. ¶37 An ineffective assistance of counsel claim cannot succeed when predicated on counsel’s failure to take an action which, under the circumstances, would likely not have changed the outcome of the proceeding. Riggs v. State, 2011 MT 239, ¶ 11, 362 Mont. 140, 264 P.3d 693; Heddings v. State, 2011 MT 228, ¶ 33, 362 Mont. 90, 265 P.3d 600. We conclude that there is no reasonable probability that the results of Haldane’s proceedings would have been different had his counsel elicited additional testimony at the suppression hearing or renewed his motion to suppress at trial. Therefore, we hold 16 that Haldane has failed to demonstrate that he was prejudiced by his counsel’s actions, and his ineffective assistance of counsel claims must fail. ¶38 Did Haldane’s sentence violate due process because it was based on indigency? ¶39 At the outset, the State argues that Haldane has waived his right to challenge his sentence because he did not object when it was announced by the Municipal Court and did not raise the issue in his appeal to the District Court. The State also contends that Haldane’s active participation in the sentencing discussion precludes his right to challenge his sentence on appeal. While the State is correct in its statement of the general rule for preserving an issue for appeal, the State fails to consider the Lenihan exception, which reads as follows: It appears to be the better rule to allow an appellate court to review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing. Adams v. State, 2007 MT 35, ¶ 55, 336 Mont. 63, 153 P.3d 601; State v. Garrymore, 2006 MT 245, ¶ 11, 334 Mont. 1, 145 P.3d 946 (quoting State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979)). This Court will hear Haldane’s constitutional challenge to his sentence under the Lenihan exception. ¶40 A criminal defendant’s sentence must comport with the due process guarantees of the Fourteenth Amendment to the United State Constitution and Article II, Section 17 of the Montana Constitution. “[A] criminal defendant’s right to due process requires that indigency or poverty not be used as the touchstone for imposing the maximum allowable punishment.” State v. Pritchett, 2000 MT 261, ¶ 28, 302 Mont. 1, 11 P.3d 539; State v. 17 Farrell, 207 Mont. 483, 499, 676 P.2d 168, 177 (1984) (internal quotations marks omitted). ¶41 In Farrell, the defendant was convicted of theft of public assistance funds and was given the maximum ten-year sentence, all suspended. Farrell, 207 Mont. at 487, 676 P.2d at 171. The sentencing court stated that it was imposing the maximum sentence, suspended, because it did not think that the defendant could pay the restitution imposed in less than ten years. Farrell, 207 Mont. at 494, 676 P.2d at 174. The defendant challenged the length of his sentence on appeal, alleging that he was sentenced to the maximum time because he was indigent. Farrell, 207 Mont. at 493-94, 676 P.2d at 174-75. This Court applied a due process analysis and concluded that it was arbitrary and unfair to subject a defendant to the maximum sentence simply because he may not be able to pay the restitution in less than that amount of time. Farrell, 207 Mont. at 498, 676 P.2d at 176-77. We vacated the defendant’s sentence and remanded for further proceedings. Farrell, 207 Mont. at 499, 676 P.2d at 177. ¶42 In Pritchett, the defendant was convicted of burglary and given the maximum twenty-year sentence, all suspended. Pritchett, ¶ 26. The record revealed that the probation/parole officer who prepared the presentence investigation report explicitly recommended the sentence to “give the Defendant adequate time to pay off the restitution.” Pritchett, ¶ 3. This Court determined that, while the sentencing court did not expressly state it was doing so, sufficient evidence in the record supported a conclusion that the length of the sentence was based on the defendant’s indigency, thus violating his due process rights. Pritchett, ¶¶ 35, 37. 18 ¶43 Our review of the record demonstrates that the Municipal Court imposed the maximum sentence on Haldane based on his inability to pay the fines and fees. The record shows that the Municipal Court initially discussed sentencing Haldane to six months in the Gallatin County Detention Center with all but three days suspended, ordering fines totaling $935, and imposing other sentencing conditions. Later in the sentencing hearing, the following colloquy took place: THE COURT: Okay, so the total on that [fines/fees] is going to be $935. And do you want to make monthly payments on that or can you pay that in one shot, Mr. Haldane? HALDANE: I’d have to make monthly payments. THE COURT: What kind of work are you doing right now? HALDANE: I detail cars. With the possibility of my license being suspended I might not have a job, so I could probably do $100 a month right now. THE COURT: Okay, why don’t we do this. I’m going to suspend sentence for one year, and that’ll give, that’ll give you some extra time. It’ll be a six-month sentence suspended for one year except for three days. And with that extra time I’ll go ahead and give you $100 a month time payment schedule. Section 61-8-714(1), MCA, provides that the penalty for DUI first offense shall be imprisonment for not less than 24 hours or more than six months, and by a fine of not less than $300 or more than $1,000. Except for the initial 24 hours of imprisonment, the imprisonment sentence may be suspended for a period of up to one year pending successful completion of court-ordered chemical dependency assessment, education, or treatment. Section 61-8-714(1)(c), MCA. The preceding discussion demonstrates that, by suspending the sentence for a full year instead of doing so for six months, as originally 19 intended, the Municipal Court imposed the maximum sentence available under § 61-8-714, MCA, because of Haldane’s financial situation. Pursuant to Pritchett and Farrell, such sentencing justifications violate due process. ¶44 Accordingly, we hold that the Municipal Court violated Haldane’s due process rights by imposing the maximum sentence for his DUI offense based on his indigency. CONCLUSION ¶45 For the foregoing reasons, we affirm the District Court’s denial of Haldane’s motion to dismiss and reject his ineffective assistance of counsel claims. We vacate Haldane’s DUI sentence on due process grounds, and remand for entry of a new sentence in accordance with this Opinion and the due process guarantees of the Fourteenth Amendment to the United States Constitution and Article II, Section 17 of the Montana Constitution. /S/ Patricia Cotter We Concur: /S/ Mike McGrath /S/ Beth Baker /S/ Michael E Wheat /S/ Brian Morris | February 12, 2013 |
c06f7b8b-221a-4c0f-a8bc-1cbb95b6b1e2 | Harris vs. Montana et al. | 2013 MT 16 | DA 11-0260, DA 12-0191 | Montana | Montana Supreme Court | DA 12-0191 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 16 DAVID W. HARRIS, Plaintiff and Appellant, v. STATE OF MONTANA, DEPARTMENT OF CORRECTIONS and FICTITIOUS DEFENDANTS 1 through 10, Defendants and Appellees. APPEAL FROM: District Court of the Second Judicial District, In and For the County of Silver Bow, Cause No. DV 09-315 Honorable Brad Newman, Presiding Judge COUNSEL OF RECORD: For Appellant: Robert G. McCarthy, McCarthy Law, P.C., Butte, Montana For Appellees: James P. Harrington, Attorney at Law, Butte, Montana Submitted on Briefs: September 4, 2012 Decided: January 29, 2013 Filed: __________________________________________ Clerk January 29 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Plaintiff appeals from the judgment of the District Court for the Second Judicial District, Silver Bow County, granting summary judgment to Appellees. We affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 David Harris (Harris) has been employed by the Department of Corrections (DOC) for approximately 13 years, specifically as a correctional officer at the Montana State Prison (MSP) in Deer Lodge, Montana. Since November 16, 2000, he has served as a member of the Special Response Team (SRT) at MSP, which he continues to do today. SRT is an elite special weapons and tactical response team (SWAT) whose members are extensively trained to respond to the prison’s most dangerous crises such as inmate riots, escapes, and hostage situations. Membership is voluntary. To become a member, an applicant must qualify in physical fitness and firearms proficiency, and successfully undergo an interview process. If selected to join the team, the member must agree to fulfill the rigorous training requirements, which include attending a specialized six-day, 70-hour Primary SWAT Training and monthly 8-hour training sessions at the prison. Any SRT member who does not wish to fulfill the training requirements may resign from the team at any time. As of July 1, 2005, members of the SRT received an extra 50 cents per hour for being a team member. ¶3 In 2006, Mike Mahoney (Mahoney), the Warden at MSP, decided that the prison would purchase and use X-26 tasers, manufactured by Taser International. A taser is an electric stunning device which temporarily incapacitates superficial muscles. In accordance with the manufacturer’s recommendations, Mahoney issued a policy 3 requiring all individuals who wanted to be authorized to use a taser at the prison to complete taser training, which included undergoing a five-second taser exposure. The direct experience of the voluntary exposure was meant to instill in the trainee an understanding of the effects of the taser and encourage the trainee to use the taser in a safe manner. According to Mahoney, none of the training was intended “to harm or injure any of the trainees in any way,” and extensive safety precaustions were used during the training to avoid injury. No employees were required to use tasers at MSP, and none were subject to job loss if he or she refused to undergo the tasing training. However, the training was mandatory for all members of the voluntary SRT team. ¶4 On June 28, 2006, all of the MSP wardens, which included Mahoney, the deputy warden, and the associate wardens, underwent taser training and the five-second exposure at the DOC. The lead instructor of the training was Sergeant Kim Micu (Micu), who at the time was an employee of MSP and certified by Taser International. There is no allegation or evidence that any of the wardens received any injuries as a result of their five-second exposures. ¶5 Then, on July 26, 2006, a taser training was held for the SRT at the DOC Center. Micu was the lead instructor. The training was conducted according to the Taser International training standards, and consisted of a classroom component and a five- second exposure. The classroom component of the training involved a 173-page Power Point presentation based on the training materials provided by Taser International. All of the materials from the Power Point presentation, which included slides specifically addressing the risks of taser exposure, were distributed as handouts to each trainee, 4 including Harris. The risks of undergoing taser exposure were also disclosed in a written consent form that Harris signed prior to his five-second exposure. These risks included “severe” muscle contractions that “may result in injuries to muscles, tendons, ligaments, backs, joints and stress fractures.” Additionally, the form advised that the nature of tasing “involves a degree of risk that someone will get hurt or may even be killed due to physical exertion, unforeseen circumstances and individual susceptibilities.” At no time did Harris or any other SRT member object to completing the training or undergoing the voluntary exposure. ¶6 Art Garrison (Garrison), a corrections officer at MSP and lieutenant in command of the SRT, in July 2006, was the first person to undergo the voluntary exposure at the July 26, 2006, training. He suffered no injury from the tasing, and afterwards he served as a spotter to the other trainees. Following Garrison’s tasing, the SRT members underwent the exposure, including Harris. As a result of his five-second taser exposure, Harris claimed to have sustained injuries to his thoracic and lumbar spine. He received workers’ compensation benefits. ¶7 On July 23, 2009, Harris filed a complaint against the State of Montana, the DOC and several fictitious defendants (collectively “Appellees”). He alleged that he suffered an intentional infliction of personal injury by his fellow employee when he was tased by Micu at the July 26, 2006, training. He further raised a spoliation of evidence claim for the alleged loss or destruction of the DOC’s video recording of the taser training session. Appellees moved for summary judgment, arguing the suit was barred by the exclusive remedy provision of the Workers’ Compensation Act (WCA) and that there was no 5 independent cause of action for Harris’s spoliation of evidence claim. On March 6, 2012, the District Court granted Appellees’ motion for summary judgment, and dismissed Harris’s claims with prejudice. ¶8 Harris timely appealed. We restate the issues on appeal as follows: ¶9 Issue One: Did the District Court err in granting summary judgment for Appellees on the grounds that Harris’s suit is barred by the exclusive remedy provision of the Workers’ Compensation Act? ¶10 Issue Two: Did the District Court err in determining that Harris does not have a cause of action for spoliation of evidence? STANDARD OF REVIEW ¶11 We review the grant of summary judgment de novo, using the same M. R. Civ. P. 56 criteria used by the district court. Albert v. City of Billings, 2012 MT 159, ¶ 15, 365 Mont. 454, 282 P.3d 704. Summary judgment is appropriate when the moving party demonstrates both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. Albert, ¶ 15. Once the moving party has met its burden, the non-moving party must present substantial evidence essential to one or more elements of the case to raise a genuine issue of material fact. Styren Farms, Inc. v. Roos, 2011 MT 299, ¶ 10, 363 Mont. 41, 265 P.3d 1230. Conclusory statements are insufficient to raise a genuine issue of material fact. Styren Farms, Inc., ¶ 10. We further review a question of law to determine if the district court’s legal conclusions are correct. Palmer v. Bahm, 2006 MT 29, ¶ 11, 331 Mont. 105, 128 P.3d 1031. 6 DISCUSSION ¶12 Issue One: Did the District Court err in granting summary judgment for Appellees on the grounds that Harris’s suit is barred by the exclusive remedy provision of the Workers’ Compensation Act? ¶13 Harris argues on appeal that the District Court incorrectly concluded that his suit was barred by § 39-71-411, MCA, and thus erred in granting summary judgment against him. He contends that because Appellees intentionally and deliberately caused him to be tased, knowing it would injure him, his claim involves an “intentional injury” and therefore falls into the exception to the exclusive remedy provision of the WCA. ¶14 Appellees counter that their actions did not create an intentional injury as defined by § 39-71-413, MCA, and Harris’s claims are thus subject to the exclusive remedy provision. The purpose of the training and voluntary exposure, they contend, was to educate and train the employees to safely use a taser and to experience exposure in a controlled environment; it was not to injure anyone. Further, while they admit that they knew that the use of a taser entails a risk of harm, as clearly detailed in the Power Point presentation and in the consent form that Harris signed, they did not know for certain that Harris would be injured. Since Harris did not submit any evidence that suggested Appellees intended to harm him, nor did he present any information showing Appellees had actual knowledge that using a taser on him would cause him injury, Appellees argue the District Court correctly determined there were no issues of material fact and that summary judgment in favor of Appellees was appropriate. 7 ¶15 The WCA generally provides the exclusive remedy for an employee who suffers an injury in the scope of his or her employment. Section 39-71-411, MCA. However, there is a narrow exception to this provision if an employee is “intentionally injured” by the employee’s employer or fellow employee while performing the duties of employment. Section 39-71-413(1), MCA; Wise v. CNH Am., LLC, 2006 MT 194, ¶ 7, 333 Mont. 181, 142 P.3d 774. The statute defines intentional injury as an injury caused by an “intentional and deliberate act that is specifically and actually intended to cause injury to the employee injured and there is actual knowledge that an injury is certain to occur.” Section 39-71-413(3), MCA; see Wise, ¶ 7. In other words, for a suit to fall into the exception to the exclusivity provision of the WCA, plaintiffs must allege facts or submit evidence sufficient to satisfy two required elements: (1) an intentional and deliberate act specifically and actually intended to cause injury; and (2) actual knowledge of the injury’s certainty. Alexander v. Bozeman Motors, Inc., 2010 MT 135, ¶ 21, 356 Mont. 439, 234 P.3d 880; see also Wise, ¶ 11. ¶16 Harris maintains that the actions of Appellees in exposing Harris to the taser “were intentional and deliberate” and thus fall within the WCA exception. He asserts that although Appellees did not actually intend that he receive the injuries he did, this “has no bearing on the fact that [Appellees] intentionally caused him to be subjected to the [taser],” knowing there was the possibility of serious injury. The District Court was correct when it stated that Harris’s argument “missed the legal mark,” because a chance of injury is not the same as an employer’s deliberate act to injure an employee. 8 ¶17 We recently took the opportunity in Alexander v. Bozeman Motors, Inc., to discuss the evolution of the law relative to establishing intent for purposes of recognizing when plaintiffs are limited to the exclusive remedy of the WCA, and when their claim falls within its exception. While we do not think it is necessary to recite the entire history of § 39-71-413, MCA, again today, we will highlight what is most instructive to our analysis in the case before us. ¶18 In 2001, the Legislature amended § 39-71-413, MCA, to its present form. 2001 Mont. Laws 1095-96. Prior to the amendments, the statute provided that an injured employee’s remedy was not restricted to workers’ compensation benefits if the employee’s injury was caused by the “intentional and malicious act or omission” of the employer or fellow employee. 2001 Mont. Laws 1096. The purpose of the amendments was to remove the “malice” component and allow an injured employee to recover from an employee or employer who caused an “intentional injury,” and to narrowly define the meaning of such an “intentional injury.” 2001 Mont. Laws 1095-96. ¶19 In his brief, Harris cites to several cases that were decided before the 2001 amendments.1 Our analyses in these cases regarding what constitutes “intentional” conduct in the context of the WCA’s exclusivity provision remain useful to the extent they considered the proof required to show harm an employer specifically directed at an employee. None, however, provides support for Harris’s arguments. In only one of these cases did we determine that the plaintiff presented sufficient allegations to support his 1 Specifically, he cites to Blythe v. Radiometer Am., Inc., 262 Mont. 464, 866 P.2d 218 (1993); Calcaterra v. Mont. Resources, 1998 MT 187, 289 Mont. 424, 962 P.2d 590; Lockwood v. W.R. Grace & Co., 272 Mont. 202, 900 P.2d 314 (1995). 9 contention that there was an intentional injury allowing exception to the exclusive remedy of the WCA; however, it is distinguishable from the present case on both the facts and the law. In Lockwood v. W.R. Grace & Co., 272 Mont. 202, 900 P.2d 314 (1995), the plaintiff alleged his employer, W.R. Grace, intentionally harmed him by allowing him to work in a vermiculite mine and mill for several years when it knew or had reason to know that extended inhalation of vermiculite and asbestos particles created a high degree of harm. Lockwood, 272 Mont. at 208, 900 P.2d at 318. Lockwood worked in the mill for approximately ten years. Lockwood, 272 Mont. at 204, 900 P.2d at 316. Six years after he retired, he was diagnosed with mesothelioma, an asbestos-specific cancer, and died shortly thereafter. Lockwood, 272 Mont. at 204, 900 P.2d at 316. His widow filed a complaint against W.R. Grace; however, the district court dismissed it on the grounds that benefits under the Occupational Disease Act of Montana (MODA) were her exclusive remedy pursuant to § 39-72-305, MCA2. Lockwood, 272 Mont. at 204, 900 P.2d at 316. ¶20 On appeal, we determined that Lockwood’s allegations included an intentional harm sufficient to avoid MODA’s exclusivity. Lockwood, 272 Mont. at 211, 900 P.2d at 319. Specifically, his allegations include that: Grace knew its acts created a high degree of harm to Lockwood; Grace actively concealed this knowledge from Lockwood; Grace failed to provide protective equipment sufficient to avoid the danger; Grace advised 2 MODA generally provided for compensation by an employer to an employee disabled by reason of occupational disease arising out of the course of employment. It applied to all employers and employees subject to Montana’s WCA. In 2005, the Montana Legislature merged MODA into the WCA. For purposes of analyzing intent, the analysis under MODA in Lockwood with respect to its exclusive remedy provision is instructive to our analysis under the exclusive remedy provision of the WCA. 10 Lockwood that exposure to vermiculite and asbestos was safe; and these actions proximately caused Lockwood’s death. Lockwood, 272 Mont. at 208, 900 P.2d at 318. Harris relies on Lockwood for the proposition that an “intent to injure does not mean desire to injure;” even if an employer did not desire for an employee to be injured, he or she could still have “intended that the employee [ ] undergo the injury . . . .” Lockwood, 272 Mont. at 210, 900 P.2d at 319. Harris argues that the fact Appellees did not desire that he be injured, just as W.R. Grace did not desire for Lockwood to receive his injuries, does not mean the intent element was not satisfied. ¶21 Lockwood was decided under a different version of the “intentional harm” exception to exclusivity, but retains some relevancy for its focus on the employer’s actual knowledge that the employee was being harmed as opposed to a “mere allegation of known risk.” Lockwood, 272 Mont. at 210, 900 P.2d at 319. Harris nevertheless fails to establish that the intent to injure was present in his case. Appellees submitted affidavits to the District Court in which they maintained that the intent in using a taser during the training was to train individuals in the safe and effective use of the taser at MSP, not to injure anyone. Harris submitted one personal affidavit in which he explained his understanding of the purpose and effects of the taser, and his awareness of the risks associated with the five-second exposure, but did not present any affidavits or discovery materials placing Appellees’ intent at issue. ¶22 Unlike in Lockwood, where Grace allegedly concealed knowledge from the plaintiff that the work environment was dangerous, lied to him that it was safe, and failed to provide any protection against the known harm, here Appellees made the potential 11 risks of the tasing very clear to Harris, and provided mats and spotters to protect him. Additionally, Harris’s supervisors, including Mahoney, underwent the five-second exposure before Harris or any of the other SRT members. Harris therefore was not asked to do anything his supervisors were not willing to do themselves. Mahoney’s policy was not meant to injure the trainees, who included himself and the other wardens, but rather to ensure that all employees at MSP who wanted to use a taser learn how to do so in a safe manner. Harris underwent the tasing at his own free will, giving full written consent to the exposure while acknowledging its potential risks. There is nothing to suggest Appellees deliberately acted with the intent to harm him. ¶23 Harris correctly points out that an employer’s intent may be inferred from facts and circumstances, and direct proof that the employer intended to cause an intentional injury is not required in order to survive a motion for summary judgment. See Alexander, ¶ 26. However, as we just illustrated, Harris failed to provide any evidence from which we can infer that the intent was to harm rather than educate and train. Instead, he points to the training materials that disclosed the risks associated with tasing, and merely speculates that Appellees intended to injure Harris “to some extent” by using the taser on him. We have previously said that the party opposing summary judgment “ ‘must set forth specific facts and cannot rely on speculative, fanciful, or conclusory statements.’ ” Sprunk v. First Bank Sys., 252 Mont. 463, 466, 830 P.2d 103, 105 (quoting Simmons v. Jenkins, 230 Mont. 429, 432, 750 P.2d 1067, 1069 (1988)). Viewing the facts in the light most favorable to Harris we conclude that he did not meet his burden and that the District 12 Court correctly determined that Harris failed to present any evidence that Appellees deliberately intended to harm him. ¶24 We also agree with the District Court that Harris failed to identify any evidence that Appellees had actual knowledge that Harris’s exposure to the taser was certain to injure him, the second requirement of § 39-71-413(3), MCA. On appeal, Harris argues that Appellees knew that shooting Harris would “cause . . . pain which can be stressful.” He points to the materials that were presented at the training session to argue that because Appellees knew of the potential effects of being shot with a taser, they knew that he was going to “receive at least some injury and knew the possibility of serious injury or even death existed.” Harris additionally argues that Appellees took the precautions of placing the trainees on padded mats and providing them with spotters for physical support because they knew he would be injured. ¶25 A risk or possibility of injury does not establish actual knowledge of the injury’s certainty as required by the statute. In Alexander, two former employees of Bozeman Motors, Ostermiller and Alexander, filed suit against the company on the grounds that it intentionally injured them when a gas stove leaked propane into their office, causing a build-up of carbon monoxide. Alexander, ¶¶ 2-7. Ostermiller worked in the office first, and stated that after he noticed the smell of propane at work, and upon feeling ill as a result of the inhalation of the chemical, he complained to Bozeman Motors. Bozeman Motors allegedly did nothing. Alexander, ¶ 3. Not long after, Ostermiller lost consciousness while in the office. Alexander, ¶ 3. He did not return to work thereafter. Alexander, ¶ 3. Alexander began working in the office soon after Ostermiller left, and 13 also complained to Bozeman Motors about the harmful physical symptoms he was experiencing at work. Alexander, ¶ 4. Bozeman Motors did nothing, and Alexander’s health allegedly deteriorated to the point where he could no longer come to work. Alexander, ¶¶ 4-5. The district court granted summary judgment against Ostermiller and Alexander, determining they failed to show that Bozeman Motors intentionally injured them, and their claims were thus subject to the exclusivity provision of the WCA. Alexander, ¶ 10. ¶26 On appeal, we affirmed the entry of summary judgment against Ostermiller, and reversed with respect to Alexander. Alexander, ¶ 37. We concluded that Ostermiller’s allegations that Bozeman Motors intentionally and deliberately exposed him to dangerous conditions in his office (contaminated air), and did not respond to his complaints that he was becoming ill, nor take any measures to address the conditions, “viewed in a light most favorable to the Employees, simply do[es] not establish that Bozeman Motors had actual knowledge that requiring Ostermiller to work in this office would result in certain injury.” Alexander, ¶ 22. With regard to Alexander, however, the facts led us to a different conclusion. Alexander alleged that since Bozeman Motors knew of Ostermiller’s injury it had actual knowledge of the harm posed by the use of the stove in the office when it sent Alexander to work there. Alexander, ¶ 31. Further, Alexander asserted that he complained to Bozeman Motors, and that Bozeman Motors failed to warn him about the dangers posed by the stove. Alexander, ¶ 31. We determined that these allegations were sufficient to raise a genuine issue of material fact on whether Bozeman 14 Motors “intentionally injured” Alexander as defined by § 39-71-413, MCA, and summary judgment was thus inappropriate. Alexander, ¶¶ 31-32. ¶27 In the case at hand, like Bozeman Motors who had no actual knowledge that injury was certain to occur to Ostermiller, Appellees had no such knowledge that tasing Harris would result in certain injury. There is no evidence of any prior reports of injury during taser training, nor of any other actions on Appellees’ behalf to suggest they knew with certainty that Harris’s voluntary exposure would harm him. Harris’s supervisors underwent the exposure prior to Harris, and no one received any injuries as a result. Further, unlike in Alexander where Bozeman Motors allegedly failed to warn Alexander of known dangers, Appellees were nothing but candid about the known risks of the taser. ¶28 Harris cites to Lockwood to support his position that Appellees knew that the taser would cause him injury. He argues that like Lockwood, who was put in a situation where his employer “knew that a high risk existed that he would be injured,” Appellees knew that tasing Harris would cause some injury and had the potential to cause serious injury or death. Harris’s reliance on Lockwood is misplaced. In Lockwood, we stated that “an allegation of less than actual knowledge . . . is insufficient as a matter of law to serve as the basis for avoiding MODA exclusivity.” Lockwood, 272 Mont. at 209, 900 P.2d at 318. We recognized the difference between situations in which a defendant knew that its acts created a high degree of risk to the plaintiff versus a high degree of harm. The former, we determined, does not constitute an intentional injury. Lockwood, 272 Mont. at 209, 900 P.2d at 318. The latter, we said, “differs significantly from a mere allegation of known risk.” Lockwood, 272 Mont. at 210, 900 P.2d at 319. 15 ¶29 In Lockwood, we found sufficient support for Lockwood’s allegations that Grace knew its acts created a high degree of harm to Lockwood, particularly because Grace allegedly concealed its knowledge of the harm and affirmatively advised Lockwood that exposure to the vermiculite and asbestos dust was safe. Lockwood, 272 Mont. at 210, 900 P.2d at 319. The distinction between cases in which the knowledge element is met and when it is not is “the employer’s alleged knowledge that the employee is being injured, in the former, versus the employer’s exposing the employee to risk of harm without certain knowledge that the employee is being or will be harmed, in the latter.” Lockwood, 272 Mont. at 210, 900 P.2d at 319. ¶30 Here, Appellees knew that using a taser created a risk of harm to Harris and the other employees who chose to undergo the exposure, which it fully disclosed during the training. However, there is nothing to indicate that they had certain knowledge that any of the employees would be harmed. Because an employer’s knowledge that its acts pose a risk to a plaintiff is not sufficient to establish “actual knowledge” of an injury’s certainty, as required by § 37-71-413, MCA, Harris failed to satisfy this requirement. ¶31 For the foregoing reasons, we conclude that the District Court did not err when it determined that the WCA was the exclusive remedy for Harris’s injuries and that his claims did not fall within the exception set forth in § 39-71-413, MCA. ¶32 Issue Two: Did the District Court err in determining that Harris does not have a cause of action for spoliation of evidence? ¶33 Harris argues the DOC either intentionally or negligently lost or destroyed the videotape of the July 26, 2006, training, and that he therefore has a valid cause of action 16 against Appellees for intentional or negligent spoliation of evidence. ¶34 The torts of intentional and negligent spoliation of evidence are not recognized in Montana as independent causes of action against a direct party. See Oliver v. Stimson Lumber Co., 1999 MT 328, ¶ 32, 297 Mont. 336, 993 P.2d 11. They apply only to non- parties to the litigation. Estate of Willson v. Addison, 2011 MT 179, ¶ 23, 361 Mont. 269, 258 P.3d 410. Under the Montana Rules of Civil Procedure, trial judges are well- equipped to address a situation where one party alleges spoliation of evidence by another party in a lawsuit, and can even enter default when necessary. Oliver, ¶ 32. Here, Harris brought the claim against a direct party in the case; no third party was alleged to have destroyed evidence. Therefore, his tort claim is not recognized in Montana. In order for the District Court to have had authority to address Harris’s spoliation of evidence argument in some other way, there would have to first be a viable cause of action. See Oliver, ¶ 32. Because Harris’s personal injury claim against Appellees is barred by § 39- 71-411, MCA, the District Court correctly determined that it could not remedy his alleged spoliation of evidence assertions. CONCLUSION ¶35 For the reasons stated above, we affirm the District Court’s Order granting Appellees’ motion for summary judgment. ¶36 Affirmed. /S/ Michael E Wheat 17 We Concur: /S/ Mike McGrath /S/ Beth Baker /S/ Patricia O. Cotter Justice Jim Rice, concurring. ¶37 I concur with the result reached by the Court but not with the analysis. I believe the Court’s decision will foster confusion regarding the intentional injury exception to worker’s compensation exclusivity. ¶38 Harris cites to several cases that were decided under prior statutory schemes governing the intentional injury exception. The Court states that the analyses regarding intentional injury in these prior-law cases “remain useful” regarding “the proof required to show harm an employer specifically directed at an employee.” Opinion, ¶ 19. About one of these, the 1995 Lockwood case, the Court states the holding there concerning the intention necessary to establish that an injury was intentional “retains some relevancy.” Opinion, ¶¶ 20-21. The Court’s overall holding is premised in large part upon its discussion and application of Lockwood. See Opinion, ¶¶ 19, 20, 22, 28, 29. The Court concludes by reaffirming the Lockwood construct that “[t]he distinction between cases in which the knowledge element is met and when it is not is ‘the employer’s alleged knowledge that the employee is being injured, in the former, versus the employer’s exposing the employee to risk of harm without certain knowledge that the employee is being or will be harmed, in the latter.’” Opinion, ¶ 29 (quoting Lockwood). After 18 reaffirming the analysis in Lockwood, the Court distinguishes it from the present case on the ground that the employer in Lockwood “allegedly concealed knowledge from the plaintiff that the work environment was dangerous.” Opinion, ¶ 22. I submit that the Court’s analysis is not a precise statement of current law and will engender confusion. ¶39 The legislative amendments to § 39-71-413, MCA, were significant, as they were expressly intended to overturn prior court applications of the statute. See Ch. 229, Laws of Montana (2001) (stating the bill was introduced to redefine the standard of intentional injury in response to court decisions); see also Wise v. CNH America, 2006 MT 194, ¶ 11, 333 Mont. 181, 142 P.3d 774 (“The amended version of § 39-71-413, MCA, contains significantly different language than the version we interpreted in Sherner.”). The “intentional injury” necessary to come within the exception to exclusivity is now defined as “an injury caused by an intentional and deliberate act that is specifically and actually intended to cause injury to the employee injured and there is actual knowledge that an injury is certain to occur.” Section 39-71-413(3), MCA (emphasis added); see also Alexander, ¶ 21. This is not the same definition as provided in the Lockwood construct of intentional injury here employed by the Court. See Opinion, ¶ 29. The Lockwood construct determined that “the knowledge element is met” by “the employer’s alleged knowledge that the employee is being injured.” Opinion, ¶ 29 (citing Lockwood). The Lockwood construct does not incorporate the concept, now in current law, that the necessary intention for the injury is multi-layered: caused by an “intentional and deliberate act” that was “specifically and actually intended to cause injury,” plus “actual 19 knowledge that an injury is certain to occur.” In Alexander, we cited Lockwood as background but enunciated a new standard based upon the new statute: [W]e hold that deliberate and intentional conduct may be inferred from factual allegations indicating that an employer knew an employee was being harmed, failed to warn the employee of the harm, and intentionally continued to expose the employee to the harm. Additionally, as required under the plain language of § 39-71-413(3), MCA, the employee must allege and demonstrate that the employer had “actual knowledge” of the certainty of injury. Alexander, ¶ 30. Whatever relevancy Lockwood and other prior-law cases have was subsumed into this statement about the new standard. It strikes me as unwise to premise an opinion primarily on the Lockwood construct when, at best, it addresses the new intention element only in part. ¶40 Instead of reaffirming prior-law cases and holding that this case turns on the absence of “concealed knowledge . . . that the work environment was dangerous” that distinguishes this case from Lockwood, Opinion, ¶ 22, I would simply affirm the District Court by concluding that the evidence offered by Harris did not satisfy the definition of “intentional injury” as currently defined by statute and as applied in Alexander. ¶41 I concur. /S/ Jim Rice | January 29, 2013 |
a8253e7a-1713-4056-a675-0cf0483540f0 | State v. Fehringer | 2013 MT 10 | DA 12-0238 | Montana | Montana Supreme Court | DA 12-0238 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 10 STATE OF MONTANA, Plaintiff and Appellee, v. NEAL EDWARD FEHRINGER, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 10-0565 Honorable Mary Jane Knisely, Presiding Judge COUNSEL OF RECORD: For Appellant: Michael B. Anderson, Anderson & Liechty, P.C., Billings, MT For Appellee: Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant Attorney General, Helena, MT Scott Twito, Yellowstone County Attorney; Kimberly Hamm, Deputy County Attorney, Billings, MT Submitted on Briefs: December 4, 2012 Decided: January 22, 2013 Filed: __________________________________________ Clerk January 22 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Neal Fehringer appeals the District Court’s order affirming his Justice Court conviction and sentence for partner or family member assault. We affirm. ¶2 Fehringer presents the following issues for review: ¶3 Issue One: Whether the Justice Court jury was properly called. ¶4 Issue Two: Whether the charge against Fehringer should have been dismissed because the complaint and notice to appear were defective. ¶5 Issue Three: Whether the jury should have been instructed on disorderly conduct as a lesser-included offense. PROCEDURAL AND FACTUAL BACKGROUND ¶6 On March 29, 2010, Fehringer argued with his wife over whether they should engage in intercourse. She went downstairs and saw a box for a blow-up sex doll left by their son. She wrote a note to Fehringer on the box stating that it was what he had been looking for, for only $19.99, and that the two of them could be happy together. Fehringer came into the room, saw the note and hit his wife with the box. As she walked away from him he pushed her into a refrigerator, breaking her watch and causing bruising on her face, arm and shoulder. She later reported the incident to the Sheriff’s Department. ¶7 Deputy Eckart interviewed Fehringer and he admitted throwing the box at his wife and pushing her into the refrigerator. Eckart prepared a complaint and notice to appear in Yellowstone County Justice Court that charged Fehringer with partner or family member assault. Fehringer appeared for arraignment on April 6, 2010, and on that date the Justice Court set a bench trial for August 10, 2010. Justice of the Peace Hernandez conducted an 3 omnibus pre-trial hearing on June 15, 2010. The resulting order required that a demand for a jury trial be filed within 20 days, and that a demand for a jury trial made within 10 days of the trial date would be deemed to be a motion for a continuance of the trial. Both Fehringer and his attorney signed the omnibus hearing order. ¶8 On July 14, 2010, the prosecution moved to continue the trial due to the unavailability of witnesses, and trial was reset for September 28, 2010. On September 21 the prosecution again moved to continue the trial due to the unavailability of witnesses, and trial was reset for October 5, 2010. On the morning set for the bench trial, Justice of the Peace Hernandez recused himself because Fehringer’s attorney had represented Hernandez in a prior unrelated matter. Fehringer’s attorney then demanded a jury trial for the first time and the case was transferred to Justice of the Peace Herman. Justice Herman granted Fehringer’s demand for a jury trial, and Fehringer refused to waive speedy trial. ¶9 Because of Fehringer’s late demand for a jury trial and his refusal to waive speedy trial, Justice Herman set the jury trial for the next day, October 6, 2010. The Clerk of the Justice Court summoned a jury by telephoning members of a jury pool previously drawn by the District Court. The Clerk excused some persons who were called and who had conflicts serving on a jury trial the next day. At trial on October 6 Fehringer admitted to throwing the box at his wife and then pushing her. The jury found Fehringer guilty of partner or family member assault. The Justice Court sentenced Fehringer to one year in jail with all but 5 days suspended and a $500 fine. 4 ¶10 Fehringer appealed his conviction to District Court. The District Court affirmed the conviction by order dated March 12, 2012.1 Fehringer appeals. STANDARD OF REVIEW ¶11 The applicable standard of review will be noted in the discussion of each issue. DISCUSSION ¶12 Issue One: Whether the Justice Court jury was properly called. A court’s decision on a challenge to the composition of the jury is a conclusion of law that this Court reviews to determine whether it is correct. State v. Bearchild, 2004 MT 355, ¶ 7, 324 Mont. 435, 103 P.3d 1006. ¶13 For approximately six months (April 6, 2010, until October 5, 2010) the charge against Fehringer was set for a bench trial in Justice Court. Pursuant to the omnibus hearing order of June 15, 2010, Fehringer had 20 days from that date to demand a jury trial. He did not do so. Pursuant to the omnibus hearing order, a late demand for a jury trial would be deemed a motion for a continuance. Fehringer made a demand for jury trial on October 5, 2010, well beyond the date provided in the omnibus hearing order, and that demand was not treated as a motion for a continuance. Rather, the prosecution, the Justice of the Peace, and the Clerk of the Court all scrambled to provide a jury to try Fehringer the next day, October 6, 2010. That date was the trigger for speedy trial dismissal in Justice Court, § 46-13-401(2), MCA (misdemeanor charge must be dismissed if not brought to trial in six months, “unless good cause to the contrary is shown.”) While the primary reason for delay in bringing 1The Court notes the irony inherent in the fact that the District Court decision was delivered more than 17 months after the Justice Court verdict in a case where speedy trial was an initial concern. 5 Fehringer’s case to trial was the two continuances requested by the prosecution, the sole reason for having to assemble a jury on very short notice was Fehringer’s tardy demand for a jury trial. ¶14 Fehringer’s attorney conducted voir dire and passed the jury panel for cause and the case went to trial in Justice Court. Fehringer did not raise the jury selection issue until he had been convicted in Justice Court and appealed to District Court pursuant to § 25-33-103, MCA. At that time he argued that there was error because it was “unknown” how the jurors were selected from the jury pool, and that there was “no evidence” that prospective jurors were properly contacted and excused from service, citing §§ 3-15-312 and -313, MCA. ¶15 In the District Court appeal the prosecution responded with an affidavit from the Justice Court Clerk describing the “routine” process for calling jurors. Pursuant to that practice the Justice Court obtains a computer-generated list of a juror pool from the District Court. A computer program then randomly selects potential jurors from that District Court pool. The Justice Court Clerk then uses the telephone to call persons on the potential juror list for service (in this instance, for the next day). The Clerk excuses potential jurors who have conflicts such as scheduled medical appointments or travel. ¶16 In addition to the affidavit, the record contains a “Justice Court of Record Panel List.” That list contains the names of the pool of approximately 60 potential jurors that the Justice Court received from the District Court. Notes on the list indicate that the Justice Court Clerk contacted or attempted to contact about 30 of these persons by phone. Approximately 16 names are highlighted in yellow, apparently indicating potential jurors who were contacted and who could serve the next day. There are brief handwritten notations about attempts to 6 contact others on the list. There are indications that messages were left with eight potential jurors, and the word “no” or “not available” is written beside the names of an additional five. ¶17 The District Court on appeal noted that Fehringer does not argue that he did not receive an impartial jury, but rather argues that there may have been technical variations by the Clerk of the Justice Court from the statutory requirements for jury pool selection. The District Court found that the jury selection process was expedited (to fit Fehringer’s late jury demand within the speedy trial deadline), and that even if the process for calling the jury pool “deviated slightly from the norm . . . the jury pool was still selected randomly.” Further, the District Court found that there was “no evidence that jurors were excused for any reason other than scheduling conflicts” and that juror excuses were issued for “wholly objective” reasons. ¶18 Fehringer argues that the Justice Court Clerk lacked authority to excuse potential jurors who were contacted by phone and who indicated that they had a conflict with serving the next day. He argues that once he questioned the propriety of jury selection (in the appeal to the District Court), the prosecution bore the burden of demonstrating in the record that all statutory requirements had been met. Fehringer contends that absent such a demonstration his conviction must be reversed. Fehringer relies upon Tribby v. Northwestern Bank, 217 Mont. 196, 205, 704 P.2d 409, 415 (1985) to support his argument that he is entitled to reversal unless the record demonstrates the answers to each of his speculations on how the jury pool selection process may have been flawed. Tribby involved apparently clear evidence that the clerk of court phoned prospective jurors and asked them questions furnished by one of the parties without the knowledge of the other party. Tribby does not 7 stand for the proposition that a defendant upon appeal may place the burden of proof upon the prosecution and a burden of demonstration upon the record simply by alleging that there might have been a failure to follow all statutory requirements for calling a jury. ¶19 The clerks of the district courts prepare lists of potential jurors, “selected in any reasonable manner that ensures fairness,” and furnish those lists to each justice, municipal and city court in the county. The lists must be filed with the clerk of the district court and must be posted in a public place in each county, city or town. Section 46-17-202, MCA. The clerk of the justice court serves as the “jury commissioner” for that court. Section 3-15- 404, MCA. The justice of the peace, or the jury commissioner “with the approval of the court” must (“shall”) excuse a potential juror upon a “finding that jury service would entail undue hardship for the person.” Section 3-15-313(1), MCA; Tribby, 217 Mont. at 205, 704 P.2d at 415. ¶20 In the present case, the Clerk of the Justice Court, acting as the jury commissioner, apparently excused five persons from the list of 60 because they had medical appointments or were traveling the next day when Fehringer’s jury trial would take place. The District Court found that this was the routine practice for the Justice Court, and Fehringer did not present any evidence to support his allegation that the excuses were made without the approval of the Justice Court as provided by § 3-15-313, MCA. ¶21 Fehringer does not complain that the jury pool received from the Clerk of the District Court was improperly drawn. He does not complain that any particular juror who heard his case was not qualified to serve or should have been excused, and he does not complain that he failed to receive a fair trial from the jury. Fehringer only complains that he could not find 8 in the record sufficient evidence to prove compliance with § 3-15-313, MCA. However, it was Fehringer who, upon appeal of his conviction to the District Court, raised the accusation that the Clerk of the Justice Court failed to follow the law. Fehringer had the burden to prove his contention to the District Court and did not do so. The District Court properly concluded that there was substantial compliance with § 3-15-313, MCA. ¶22 Issue Two: Whether the charge against Fehringer should have been dismissed because the complaint and notice to appear were defective. This Court reviews a trial court’s denial of a motion to dismiss a criminal charge for lack of probable cause for abuse of discretion. State v. Elliott, 2002 MT 26, ¶ 27, 308 Mont. 227, 43 P.3d 279. ¶23 Fehringer contends that the Justice Court required him to stand trial based upon a defective notice to appear and based upon an allegation of “possible cause” rather than upon the required standard of “probable cause.” See § 46-11-110, MCA. He did not raise these issues in the six months prior to the October 6 trial date, but rather waited until the first witness had been sworn and then filed a motion to dismiss the charge. ¶24 The charge against Fehringer arose from the notice to appear and complaint on a form prepared by Deputy Eckart. Fehringer complains about two entries on that form. First, he argues that the form erroneously cites § 45-5-206(2), MCA, as the statute that Fehringer violated. Section 45-5-206, MCA, establishes the offense of partner or family member assault, but subsection (2) only defines the terms “family member” and “partner.” Second, he argues that the affidavit of probable cause portion of the form recites the basic facts of the confrontation between Fehringer and his wife, and that he pushed her into the refrigerator “pausably” causing bruises to her face, shoulders and hand. Fehringer insists that this word 9 should be construed to be “possibly” and therefore that the affidavit is based on “possible cause” rather than “probable cause.” ¶25 The purpose of charging documents is to reasonably appraise the accused of the charges against him so that he has the opportunity to prepare and present a defense. State v. Wilson, 2007 MT 327, ¶ 25, 340 Mont. 191, 172 P.3d 1264. The charging documents must be read together, Elliott, ¶ 26, and are sufficient if a person of common understanding would know what was charged. State v. Hocter, 2011 MT 251, ¶ 16, 362 Mont. 215, 262 P.3d 1089. A charging document that contains an erroneous name for the offense or an erroneous statutory reference is not invalid if the charging language meets the “common understanding” test. State v. Bahr, 2009 MT 378, ¶ 9, 353 Mont. 294, 224 P.3d 610. ¶26 In this case, while Deputy Eckart erroneously cited to a subsection of § 45-5-206, MCA, immediately below that entry Eckart wrote that Fehringer was accused of “the crime of partner/family member assault. To wit: caused bodily injury to his wife.” Immediately below that entry, Eckart’s narrative of probable cause stated: On 3-29-10 the def and his wife got into an argument. The def’s wife gave him a sex doll which upset him. He threw sex doll box at her hitting her, unknown where. They argued some more and he pushed her. She hit the refrigerator pausably causing a bruise on her face, shoulders, and hand. The def gave a statement after given the Miranda warning. It is clear from the notice to appear that Fehringer had adequate notice of the charge against him and of the facts upon which it was based. The erroneous citation to a subsection of § 45- 5-206, MCA, was de minimus. The charging document here would clearly inform a person of common understanding that he had been charged with “the crime of partner/family member assault” for hitting his wife with a box and pushing her into a refrigerator. At his 10 initial appearance on the charge Fehringer expressly acknowledged his understanding that he was charged with partner or family member assault under § 45-5-206, MCA. Fehringer does not claim any surprise or any lack of understanding of the charge against him, and his waiting until the day of trial to raise the issue would belie any such claim. Bahr, ¶ 11. ¶27 Second, Fehringer contends that the word “pausably” as used in the affidavit of probable cause should be read as “possibly” and therefore that word taints the affidavit which must be based upon “probable” cause. Section 46-11-110, MCA, requires that upon presentation of a complaint charging an offense, the court must examine the sworn complaint to determine whether probable cause exists to allow filing the charge. ¶28 The law, as noted above, requires that the charging documents be considered in their entirety and against a standard of whether a person of common understanding would appreciate the charge. Hocter, ¶ 16. An affidavit in support of a charge need not make out a prima facie case of guilt, and is sufficient if it shows a “mere probability” that the defendant committed the offense. Elliot, ¶ 26. Here the charging document completed by Deputy Eckart contains a recital of all the essential facts supporting the charge and expressly informed Fehringer that he was being charged with “partner/family member assault” for “causing bodily injury to his wife.” The use of the term “plausibly” or even “pausably” in the narrative does nothing to materially undermine the charging document. The complaint clearly established probable cause that Fehringer committed the offense of partner or family member assault. ¶29 The determination that the charging documents in this case were sufficient under the law was not an abuse of discretion. 11 ¶30 Issue Three: Whether the jury should have been instructed on disorderly conduct as a lesser-included offense. Whether an offense is a lesser included offense is an issue of law that this Court reviews de novo to determine whether it is correct. State v. Molenda, 2010 MT 215, ¶ 3, 358 Mont. 1, 243 P.3d 387. ¶31 Fehringer contends that the District Court erred by refusing his offered jury instructions that would have allowed the jury to convict him of disturbing the peace instead of partner or family member assault. He contends that he was entitled to those instructions because disturbing the peace is a lesser included offense of partner or family member assault. The District Court on appeal held that disorderly conduct did not meet the definition of “included offense” in § 46-1-202(9), MCA, in the context of a charge of partner or family member assault. Therefore, the District Court held that the Justice Court did not err in refusing the lesser included offense instructions. ¶32 A defendant may be found guilty of an offense “necessarily included in the offense charged.” Section 46-16-607, MCA. A defendant is entitled to jury instructions on a lesser included offense if that offense is a lesser included offense of the offense charged, and if there is sufficient evidence to support an instruction on the lesser included offense. State v. Martinosky, 1999 MT 122, ¶ 18, 294 Mont. 427, 982 P.2d 440. An “included offense” is one that: (a) is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (b) consists of an attempt to commit the offense charged or to commit an offense otherwise included in the offense charged; or (c) differs from the offense charged only in the respect that a less serious injury or risk to the same person, property or public interest or a lesser kind of 12 culpability suffices to establish its commission. Section 46-1-202(9), MCA. The “facts” referred to in subsection (a) are the statutory elements of the two offenses, not the individual facts of the case. Molenda, ¶ 9. ¶33 A person commits the offense of disorderly conduct if he “knowingly disturbs the peace.” Section 45-8-101(1), MCA. The statute lists a number of actions that can constitute disturbing the peace, including quarreling or fighting, making loud noise, or discharging firearms. However, for any of these activities to constitute disorderly conduct they must disturb the peace. A person commits the offense of partner or family member assault if he causes bodily injury or reasonable apprehension of bodily injury to a partner or family member. Section 45-5-206, MCA. A defendant therefore may be convicted of partner or family member assault without any proof that the defendant disturbed the peace. ¶34 Since disorderly conduct would not be proven by proof of the same or less than all the elements of partner or family member assault, it is not a lesser included offense of partner or family member assault. Section 45-8-101(1), MCA; State v. Weatherell, 2010 MT 37, ¶ 13, 355 Mont. 230, 225 P.3d 1256 (sexual assault is not an included offense of partner or family member assault). The District Court correctly affirmed the decision of the Justice Court to reject the proposed jury instructions. ¶35 The District Court is affirmed. /S/ Mike McGrath We Concur: /S/ Beth Baker /S/ Michael E Wheat 13 /S/ Patricia O. Cotter /S/ Brian Morris | January 22, 2013 |
42c48ff3-6559-4a99-8a2b-ababbc2b229b | Boyne USA, Inc. v. Spanish Peaks Dev., LLC | 2013 MT 1 | DA 12-0094 | Montana | Montana Supreme Court | DA 12-0094 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 1 BOYNE USA, INC., Plaintiff and Appellee, v. SPANISH PEAKS DEVELOPMENT, LLC, LONE MOUNTAIN HOLDINGS, LLC and JOHN DOES 1-5, Defendants and Appellants. APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Madison, Cause No. DV 29-2008-8 Honorable Loren Tucker, Presiding Judge COUNSEL OF RECORD: For Appellants: Stephen R. Brown; Charles E. McNeil; Elena J. Zlatnik; Garlington, Lohn & Robinson, PLLP, Missoula, MT For Appellee: David M. Wagner, Crowley Fleck PLLP, Bozeman, MT Submitted on Briefs: September 26, 2012 Decided: January 2, 2013 Filed: __________________________________________ Clerk January 2 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Boyne USA, Inc. (Boyne) filed an action for breach of contract against Blixseth Group, Inc. that covered a land sale for 15 acres of property on Lone Peak in Madison County, Montana. Boyne sought specific performance. Boyne joined Yellowstone Mountain Club, LLC as a party due to Yellowstone Mountain Club’s acquisition of the contested property. ¶2 Yellowstone Mountain Club purportedly conveyed the contested 15-acre Lone Peak property to Spanish Peaks Development, LLC (SPD). Boyne joined SPD as a party. SPD, in turn, conveyed the 15-acre Lone Peak property to Lone Mountain Holdings, LLC (LMH). Boyne joined LMH as a party. Boyne further alleged abuse of the legal process and deceit. The District Court dismissed Blixseth Group and Yellowstone Mountain Club from the case on January 15, 2010, due to Yellowstone Mountain Club’s bankruptcy. ¶3 The jury awarded Boyne $300,000 from each defendant based on its determination that SPD and LMH had deceived Boyne and had abused the legal process. The District Court awarded Boyne specific performance on the Peak Agreement. The District Court also awarded attorney fees to Boyne. SPD and LMH appeal and we affirm subject to one minor modification. (See ¶ 70). We will refer to SPD and LMH collectively as “Appellants” when we address their claims on appeal. ¶4 Appellants raise the following issues on appeal: ¶5 1. Whether the District Court properly awarded specific performance to Boyne. ¶6 2. Whether the jury properly awarded compensatory damages to Boyne. 3 ¶7 3. Whether the District Court properly awarded legal fees to Boyne pursuant to the terms of the contract. ¶8 4. Whether Boyne is entitled to legal fees on appeal. PROCEDURAL AND FACTUAL BACKGROUND ¶9 The dizzying array of land transfers, assignments, and corporate metamorphoses leads us to prepare a program to identify the players: BLS Blixseth’s & McDougal brothers’ entities; owned checker-boarded land that it exchanged with the U.S. for the Lone Peak property; entered into the Peak Agreement with Boyne. Yellowstone Mountain Club Entity managed by Dolan & Blixseth; owned the Lone Peak property and transferred it to SPD. Spanish Peaks Development (SPD) Entity managed by Dolan and Blixseth. Spanish Peaks Holding (SPH) Entity owned by SPD; managed by Dolan and Blixseth. Lone Mountain Holdings (LMH) Entity owned and managed by Dolan and his family; purchased the Lone Peak property from SPD. Peak Agreement Boyne receives Lone Peak land in return for 4 items of consideration that included transfer of land under the Southfork Agreement. Boyne entered into the Peak Agreement with BLS; BLS transferred its rights to SPD. Southfork Agreement Boyne transfers 25 acres of land as partial consideration for the Peak Agreement. Boyne entered into the Southfork Agreement with McDougals; McDougals transferred their rights to SPD; SPD transferred its rights to SPH. 4 ¶10 The United States Forest Service (U.S.) decided to consolidate lands in the Gallatin National Forest pursuant to the Gallatin Land Consolidation Act of 1998, Pub. L. No. 105- 267, 112 Stat. 2371. Consolidation would make these lands easier for the U.S. to manage. Blixseth Group and two other entities, LeeLynn, Inc., and Wiley Mt., Inc., (collectively BLS), owned checker-boarded lands in the Gallatin National Forest that the U.S. wished to acquire. The U.S. entered into an agreement with BLS to exchange BLS lands for certain federal lands, including 15 acres of federal land at the top of Lone Peak. The Peak Agreement ¶11 BLS contracted to sell this Lone Peak property to Boyne through the Peak Agreement. Boyne owns and operates Big Sky Resort. Boyne intended to use the Lone Peak property as part of its ski resort. Boyne and BLS finalized the Peak Agreement on September 30, 1998. The Peak Agreement provided that BLS would transfer the property to Boyne if BLS were successful in obtaining the Lone Peak property from the U.S. ¶12 The Peak Agreement required Boyne to perform four obligations as consideration for its receipt of the Lone Peak property. First, Boyne would not challenge the U.S.’s decision to transfer the property to BLS. Second, Boyne would pay for a survey of the Lone Peak property. Third, Boyne would exchange 25 acres of Boyne’s property with the McDougal brothers for the first half of the Lone Peak property, pursuant to a separate agreement, the Southfork Agreement. The Peak Agreement referred to the McDougal brothers because two brothers, Mel and Norm McDougal, owned LeeLynn, Inc. and Wiley Mt., Inc., two of the three entities that comprised BLS. Fourth, Boyne would pay cash to the Blixseth Group for the second half of the Lone Peak property. The parties estimated the Lone Peak property’s 5 value at $800 per acre. Boyne agreed to pay the appraised price of the property when the U.S. and BLS exchanged lands. The Southfork Agreement ¶13 McDougals owned nine hundred acres of property, Southfork, situated south of Boyne’s property. McDougals planned to develop Southfork into Spanish Peaks Resort. McDougals wanted ski in/ski out access to Big Sky Resort’s chairlifts. Ski in/ski out access would increase the value of McDougals’ planned Spanish Peaks Resort. Boyne owned the property between the planned Spanish Peaks Resort and the nearest chairlift at Big Sky Resort. ¶14 McDougals and Boyne finalized the Southfork Agreement in September 1998. The Southfork Agreement required Boyne to transfer 25 acres of Boyne’s property to McDougals. The parties did not identify the exact location of the property to be transferred because McDougals had not yet designed Spanish Peaks Resort. The parties understood, however, that Boyne would transfer property that would provide McDougals ski in/ski out access for Spanish Peaks Resort to Big Sky Resort. McDougals agreed to pay an override fee to Boyne for each property that McDougals sold at Spanish Peaks Resort that would have ski in/ski out access to Big Sky Resort’s chairlifts. Assignment of Peak Agreement and Southfork Agreement ¶15 James Dolan (Dolan) and Tim Blixseth (Blixseth) co-managed SPD. SPD purchased the property that the McDougal brothers had been planning to develop as the Spanish Peaks Resort. The McDougal brothers then assigned their rights under both the Peak Agreement and the Southfork Agreement to SPD on September 5, 2000. The Southfork Agreement 6 required Boyne to transfer the 25 acres that would facilitate ski in/ski out access for Spanish Peaks Resort. The third party to the Peak Agreement, Blixseth Group, managed by Blixseth, also assigned its rights under the Peak Agreement to SPD. These assignments left SPD as the sole beneficiary of both the Peak Agreement and the Southfork Agreement. ¶16 Dolan and Blixseth formed Spanish Peaks Holding (SPH) in 2002. The same two also managed SPH. SPH purchased the McDougals’ Spanish Peaks Resort property from SPD. SPD then assigned its interest in the Southfork Agreement to SPH. SPD maintained its interest in the Peak Agreement. Original Parties to Peak Agreement (1998) Blixseth Group & McDougal Brothers Transfer of McDougals’ rights (2000) McDougal Brothers to SPD Transfer of Blixseth Group’s rights (2000) Blixseth Group to SPD Final party with all rights to Peak Agreement SPD Original Party to Southfork Agreement (1998) McDougal Brothers Transfer 1 (2000) McDougal Brothers to SPD Transfer 2 (2002) SPD to SPH Final party with all rights to Southfork Agreement SPH The Purchase and Sale Agreement 7 ¶17 SPH, Boyne, and a third entity, Blue Sky Ridge, LLC, entered into a Purchase and Sale Agreement on March 30, 2002. Blixseth and Dolan owned and controlled Blue Sky Ridge. SPH and Blue Sky Ridge purchased approximately 1,734 acres of property from Boyne as part of the Purchase and Sale Agreement. SPH and Blue Sky Ridge paid $7 million to Boyne for this property. ¶18 The Purchase and Sale Agreement also modified the Southfork Agreement to limit the property at Spanish Peaks Resort for which Boyne would receive override fees. Boyne also agreed to upgrade the Southern Comfort chairlift at Big Sky Resort on a different schedule than originally contemplated in the Southfork Agreement. Boyne agreed further to forfeit override fees if Boyne failed to upgrade the Southern Comfort chairlift according to the new accelerated schedule. ¶19 All parties agree that Boyne transferred the 25 acres needed to facilitate ski in/ski out access as described in the Southfork Agreement as part of this Purchase and Sale Agreement. Appellants contend that Boyne actually sold these 25 acres, along with the other property, and received $7 million in return. Boyne agrees that the transfers occurred at the same time. Boyne argues, however, that the $7 million did not include any payment for the 25 acres. ¶20 Boyne suggests that the $7 million constituted payment for SPH and Blue Sky Ridge’s purchase of the 1,734 acres of property from Boyne. SPH requested that the transfers occur at the same time to simplify the property transaction for SPH. The Southfork Agreement and the Purchase and Sale Agreement transferred contiguous parcels. The transfer of the Southfork Agreement property to SPH at the same time as the property 8 transfer under the Purchase and Sale Agreement apparently allowed SPH to evade subdivision review. Boyne’s Alleged Breaches of Contract ¶21 The U.S. issued a patent to BLS for the Lone Peak property on August 23, 2004. BLS conveyed the Lone Peak property to Yellowstone Mountain Club on December 21, 2004. Dolan and Blixseth co-managed Yellowstone Mountain Club. Blixseth informed Boyne on January 1, 2005, that Yellowstone Mountain Club would not transfer the Lone Peak property to Boyne as originally contemplated in the Peak Agreement. ¶22 Blixseth and Dolan’s lawyer, Mike Doyle (Doyle), informed Boyne in January 2005, for the first time, that Boyne had breached the Southfork Agreement by not upgrading the Southern Comfort chairlift quickly enough. Doyle claimed that Boyne’s breach of the Southfork Agreement would deprive Boyne of the 15-acre Lone Peak property. Boyne points out that its upgrade of the Southern Comfort chairlift never figured into the consideration for receiving the Lone Peak property. Boyne argues that Appellants fabricated this illusory breach as a pretext to withhold the Lone Peak property. ¶23 Doyle told Boyne in February 2005 that Boyne also had breached the Southfork Agreement by its sale to SPH in 2002 of the 25 acres of Boyne’s property identified in the Southfork Agreement. Doyle informed Boyne that Boyne should have transferred the 25 acres to SPD. Boyne instead, at the request of SPH, had transferred the 25 acres to SPH, a different entity owned by SPD and managed by Dolan and Blixseth. Doyle insisted that Boyne transfer an additional 25 acres of Boyne’s property to SPD before Boyne would receive the Lone Peak property. 9 ¶24 Nobody had suggested to Boyne before February 2005 that its transfer of the 25 acres to SPH had breached the Southfork Agreement. In fact, Boyne believed that its transfer of the 25 acres had fulfilled Boyne’s obligation under the Southfork Agreement. SPD had assigned its interest in the Southfork Agreement to SPH in 2002. Boyne further believed that it had transferred the property to SPH, rather than separately having sold it, as Doyle suggested. ¶25 Boyne alleged at trial that Doyle, Blixseth, and Dolan had fabricated this breach of contract issue to pressure Boyne to discount or eliminate the override fees that SPH owed to Boyne for the ski in/ski out access afforded to Spanish Peaks Resort. The override fees for the ski in/ski out access that Boyne had provided to SPH were due in February 2005. Boyne alleged that Doyle, Blixseth, and Dolan manufactured this alleged breach in February 2005 solely to force Boyne to modify the override fees. Boyne Files Complaint ¶26 Boyne filed a complaint against Blixseth Group and Yellowstone Mountain Club on January 29, 2008. Yellowstone Mountain Club conveyed the Lone Peak property to SPD on February 7, 2008. Boyne added SPD as a party on February 20, 2008. Dolan and his family created a new entity, LMH, on November 25, 2008. SPD conveyed the Lone Peak property to LMH on December 22, 2008. Boyne added LMH as a party on August 28, 2009. Boyne further sought damages for Appellant’s abuse of the legal process and deceit. The District Court dismissed Blixseth Group and Yellowstone Mountain Club from the case on January 15, 2010, due to Yellowstone Mountain Club’s bankruptcy. 10 ¶27 The District Court conducted a five-day jury trial in November 2010. The jury decided the legal claims that Boyne presented, including the breach of contract and damages issue, and issued advisory judgments on Boyne’s equitable claims. The jury determined that SPD had breached the Peak Agreement with Boyne. The jury also determined that SPD and LMH each had deceived Boyne and had abused the legal process. The jury awarded Boyne $300,000 from SPD and $300,000 from LMH as compensatory damages. The jury also awarded $1 in punitive damages. The District Court, acting as a court of equity, awarded Boyne specific performance on the Peak Agreement and ordered LMH to transfer the Lone Peak property to Boyne. The District Court also awarded attorney fees to Boyne pursuant to a provision in the Peak Agreement. SPD and LMH appeal. STANDARD OF REVIEW ¶28 We review for clear error a district court’s findings of fact. Pastimes, LLC v. Clavin, 2012 MT 29, ¶ 18, 364 Mont. 109, 274 P.3d 714. 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. Pastimes, ¶ 18. We review for correctness a district court’s conclusion of law. Varano v. Hicks, 2012 MT 195, ¶ 7, 366 Mont. 171, 285 P.3d 592. ¶29 We review a jury’s verdict for substantial credible evidence. Evidence that a reasonable mind might accept as adequate to support a conclusion qualifies as substantial credible evidence. Seltzer v. Morton, 2007 MT 62, ¶ 94, 336 Mont. 225, 154 P.3d 561. ¶30 We review for abuse of discretion an award of attorney fees. Tripp v. Jeld-Wen, Inc., 2005 MT 121, ¶ 12, 327 Mont. 146, 112 P.3d 1018. A district court abuses its discretion 11 when it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason resulting in substantial injustice. Tripp, ¶ 12. DISCUSSION ¶31 1. Whether the District Court properly awarded specific performance to Boyne. ¶32 Appellants appeal the District Court’s award of specific performance of the Peak Agreement to Boyne. Appellants correctly note that Boyne must have performed its obligations under the contract in order to be eligible for specific performance. Baker v. Berger, 265 Mont. 21, 29, 873 P.2d 940, 944-45 (1994); § 27-1-416, MCA. Appellants argue that Boyne failed to meet two of Boyne’s four contractual obligations, and, therefore, Boyne remains ineligible for the equitable award of specific performance. ¶33 All parties agree that Boyne fulfilled its first contractual obligation: not to contest the U.S.’s decision to exchange the Lone Peak property with BLS. All parties also agree that Boyne fulfilled its contractual obligation to pay for the survey when Boyne retained Gaston Engineering in 1999 to survey the Lone Peak property. We address whether Boyne fulfilled its final two obligations under the Peak Agreement. A. Exchange of Property Under the Southfork Agreement ¶34 The Peak Agreement’s third contractual obligation required Boyne to “exchange certain lands with McDougal” for the Lone Peak property. All parties agree that the Southfork Agreement enumerated all of the lands to be exchanged with the McDougal brothers. Boyne assuredly transferred the 25 acres described in the Southfork Agreement to SPH on March 30, 2002, as part of a bigger transaction under the Purchase and Sale 12 Agreement. Appellants argue, nevertheless, that Boyne’s transfer of property failed to fulfill Boyne’s contractual obligations under the Southfork Agreement. 1. transfer to SPH instead of SPD ¶35 Boyne originally had entered into the Southfork Agreement with the McDougal brothers. The McDougal brothers later assigned their rights under the Southfork Agreement to SPD. Appellants apparently accept the validity of the McDougals’ assignment to SPD. Appellants argue that the Southfork Agreement required Boyne to transfer this property to SPD. Boyne instead transferred the property to SPH. ¶36 SPD earlier had transferred all right, title, and interest that it possessed under the Southfork Agreement to SPH through the Assignment and Assumption document. The Assignment and Assumption document provides that “Assignor [SPD] hereby assigns and transfers to Assignee [SPH] all right, title and interest of Assignor in, to and under the agreements and contracts described in Exhibit A attached hereto.” Exhibit A includes the Southfork Agreement and the documents that assigned the McDougal brothers’ rights under the Southfork Agreement to SPD. ¶37 Dolan, the manager of both SPH and SPD, admitted at trial that SPD had transferred the Southfork Agreement to SPH. Dolan further admitted that SPD retained no rights under the Southfork Agreement. The same people, Dolan and Blixseth, managed SPH and SPD. The same attorney, Doyle, represented both SPH and SPD. SPH, an entity owned by SPD, publicly represented in court filings in a different case that SPH had taken assignment of the Southfork Agreement. 13 ¶38 Appellants do not address directly Boyne’s claim that SPD had assigned its rights under the Southfork Agreement to SPH. During their closing argument, Appellants urged jurors to ignore the Assignment and Assumption agreement and made no attempt to explain it. Appellants seem to argue that the Assignment and Assumption agreement does not mean what it says and that SPD did not assign away its rights under the Southfork Agreement. Appellants simply claim that Boyne erroneously transferred the 25 acres to “another party” instead of transferring the property to SPD. Appellants argue that Boyne’s transfer of the 25 acres to “another party” --SPH-- owned by SPD and managed by the same people as SPD, somehow breached the Southfork Agreement and therefore breached the Peak Agreement. ¶39 Appellants point to no evidence to suggest that SPD did not transfer all of its rights and obligations under the Southfork Agreement to SPH. The Assignment and Assumption document details this transfer of rights. Dolan admitted at trial that this transfer occurred and that SPD retained no rights under the Southfork Agreement. We decline Appellants’ suggestion to suspend belief and ignore the clear transfer of its rights set forth in the Assignment and Assumption document. The record supports the District Court’s finding that SPD had transferred all of its rights under the Southfork Agreement to SPH. Pastimes, ¶ 18. ¶40 Appellants next attempt to re-write the Peak Agreement and the Southfork Agreement. Appellants argue in their reply brief, apparently for the first time, that the Peak Agreement required Boyne to have transferred the 25 acres described in the Southfork Agreement to the party with rights under the Peak Agreement. Appellants criticize Boyne’s “convoluted reliance” on Boyne’s transfer of 25 acres pursuant to the Southfork Agreement to SPH, a party with no rights under the Peak Agreement. Appellants claim that “[t]he only 14 relevance of this second contract [the Southfork Agreement] was to identify 25 acres to be used for the exchange . . . . The Peak Agreement did not say anything such as ‘this agreement is contingent upon performance of the other agreement’ or anything that would make Boyne’s arguments [that Boyne transferred 25 acres pursuant to the Southfork Agreement] valid.” ¶41 Appellants’ argument that the Southfork Agreement merely identified the exchange acres assumes, however, that the Peak Agreement and the Southfork Agreement do not identify the parties to whom Boyne was obligated to convey the 25 acres. They do. Boyne and three entities executed the Peak Agreement. One entity, Blixseth Group, was to receive a cash payment for half of the Lone Peak property. The other two entities, owned by the McDougal brothers, were to receive land described in a “separate agreement” for their half of the Lone Peak property. ¶42 Appellants quote the Peak Agreement to support their interpretation of the Southfork Agreement: “Boyne will exchange certain lands . . . for the remaining one half of the surveyed lands.” Appellants conveniently omit key language from the Peak Agreement, however, that indicates the McDougal brothers were intended to receive the 25 acres under the Southfork Agreement as their half of the payment. “Boyne will pay BGI [Blixseth Group] the referenced price for one half of the surveyed acreage. Boyne will exchange certain lands with McDougal for the remaining one half of the surveyed lands. The land to be exchanged in [sic] described in a separate agreement between Boyne and McDougal.” (Emphasis added on Appellants’ omitted words.) 15 ¶43 The Southfork Agreement, the “separate agreement,” also clearly identifies the McDougal brothers, referred to as “Southfork,” as the party to receive the 25 acres. “Boyne will transfer to Southfork approximately 25 acres . . . .” The Southfork Agreement makes no mention of the Peak Agreement and nowhere states that Boyne must transfer these 25 acres to the party with rights under the Peak Agreement. Absolutely nothing in these two contracts suggests that the party with rights under the Peak Agreement represents the proper party to receive the 25 acres. The plain language of the two contracts confirms that SPH was to receive the 25 acres from Boyne. ¶44 Further, the terms of the Southfork Agreement establish a stand alone contract, rather than merely a description of the 25 acres to be transferred. The Southfork Agreement addresses numerous issues between the McDougal brothers and Boyne. These issues include Boyne’s obligation to upgrade the Southern Comfort ski lift at Big Sky Resort as part of the effort to facilitate ski in/ski out access for Spanish Peaks Resort. The Southfork Agreement also addresses Boyne’s obligation to pay $225,000 for a second chair lift that McDougals would build as part of the ski in/ski out access for Spanish Peaks Resort. In addition, the Southfork Agreement addresses the override fees that Boyne would receive on McDougals’ property at Spanish Peaks Resort sold within walking distance of Big Sky Resort’s ski lifts. ¶45 As a final matter, SPD owned SPH at the time that Boyne transferred the 25 acres to SPH. Dolan and Blixseth managed both SPH and SPD, and their attorney, Doyle, represented both entities. Nobody suggested to Boyne that Boyne transferred the 25 acres to the wrong entity in 2002. In fact, Dolan and Doyle repeatedly made representations to Boyne over the next three years that led Boyne to believe that both agreements were still in 16 good standing. The parties to the Southfork Agreement, rather than the parties to the Peak Agreement, were the proper party to receive the 25 acres. Boyne properly transferred the 25 acres to SPH. 2. selling instead of exchanging property ¶46 Appellants next argue, apparently in the alternative, that the Southfork Agreement required Boyne to “exchange” 25 acres of Boyne’s property, but that Boyne instead “sold” this property to SPH. Boyne transferred the 25 acres to SPH in 2002 as part of a larger transfer of property described in the Purchase and Sale Agreement. ¶47 Boyne entered into the Purchase and Sale Agreement with two entities owned and controlled by Dolan and Blixseth: SPH and Blue Sky Ridge. SPH and Blue Sky Ridge paid Boyne $7 million under the Purchase and Sale Agreement. In return, Boyne sold 1,734 acres of property to SPH and Blue Sky Ridge. The Purchase and Sale Agreement nowhere discusses the transfer of the 25 acres described in the Southfork Agreement. ¶48 Moreover, subdivision review would have been necessary if Boyne had transferred the 25 acres independently. Section 76-3-103, MCA; § 76-3-104, MCA. Boyne’s lawyer for the Purchase and Sale Agreement testified at trial that Boyne had transferred the 25 acres at the same time as the property transfer under the Purchase and Sale Agreement to help SPH evade subdivision review. SPD did not claim that Boyne had breached the Southfork Agreement until three years after Boyne had transferred the 25 acres. In the interim, SPH and SPD made statements to Boyne that indicated that all parties still believed that a valid contract existed and that SPD soon would transfer the Lone Peak property to Boyne. 17 ¶49 Appellants point to no evidence to show that Boyne had “sold” the 25 acres rather than “exchanging” the 25 acres. Appellants point only to the timing of the transaction. The transaction occurred at the same time as the property transfer pursuant to the $7 million Purchase and Sale Agreement. Appellants make no effort whatsoever to address Boyne’s claim that the exchange was done at the same time as the Purchase and Sale Agreement to help SPH evade subdivision review. ¶50 The District Court found that Boyne had exchanged the property, as required under the Southfork Agreement, rather than selling the property. The District Court noted that from 2002, when SPH received the property, to February 2005, SPD, Dolan, Blixseth, and Doyle did not claim that Boyne had breached the Peak Agreement or the Southfork Agreement by transferring the property to SPH. The District Court found that in 2004, SPD, SPH, and their lawyer made a number of representations to Boyne that were intended to, and did, leave Boyne with the impression that the Peak Agreement and Southfork Agreement were in good standing. The District Court further found that Boyne’s transfer of the 25 acres of property to SPH in 2002 had fulfilled Boyne’s obligation to transfer property under the Southfork Agreement. ¶51 Evidence in the record supports the District Court’s findings. The District Court noted that SPH would have objected in 2002 if Boyne had breached the Southfork Agreement by requiring SPH to pay for the property, rather than waiting until 2005 to object. We cannot say that the District Court clearly erred in finding that Boyne had exchanged the 25 acres rather than having sold it. Pastimes, ¶ 18. This finding confirms that Boyne had fulfilled its third contractual obligation of exchanging 25 acres of property with SPH. 18 B. Payment for Half of Lone Peak ¶52 The fourth contractual condition required Boyne to pay for half of the Lone Peak property. Appellants claim that Boyne cannot seek specific performance for the Peak Agreement because Boyne failed to fulfill this fourth obligation. Boyne admits that it has not yet paid this money. Boyne claims, however, that the Peak Agreement did not obligate it to pay before it sought specific performance because SPD anticipatorily had breached the contract. 1. anticipatory breach ¶53 Boyne claims that SPD anticipatorily breached the Peak Agreement by requiring Boyne to perform an additional term not contained in the contract before SPD would transfer the Lone Peak property. Boyne argues that SPD’s demand that Boyne transfer an additional 25 acres of property to SPD, after Boyne already had transferred 25 acres of property to SPH, constituted a demand to perform an additional term not contained in the Peak Agreement. SPD informed Boyne in 2005 that it would not transfer the Lone Peak property to Boyne unless Boyne fulfilled this additional term. ¶54 The District Court agreed that SPD’s demand for Boyne to transfer an additional 25 acres constituted an additional term not contained in the contract. The District Court also found that SPH had made an unequivocal statement in 2005 that SPH would not transfer the Lone Peak property unless Boyne transferred an additional 25 acres of property. SPD informed Boyne that it would not transfer the Lone Peak property to Boyne even if Boyne paid for the Lone Peak property. Further, after it received title to the Lone Peak property, SPD transferred the property to LMH, a different entity managed by Dolan. This transfer 19 made it impossible for SPD to fulfill its contractual obligation to transfer the Lone Peak property to Boyne. The District Court concluded that SPD had anticipatorily breached the Peak Agreement. ¶55 The Peak Agreement and the Southfork Agreement required Boyne to transfer a single 25-acre parcel. SPD’s demand for Boyne to transfer additional property represented a demand to fulfill a term not contained in the Peak Agreement. An anticipatory breach occurs if a party demands performance of a term not included in the contract and the party unequivocally states that it will not perform the contract unless the additional term is met. Chamberlin v. Puckett Constr., 277 Mont. 198, 203, 921 P.2d 1237, 1240 (1996). The record supports the District Court’s finding that Boyne had fulfilled its obligation to transfer 25 acres under the Peak Agreement in 2002. Pastimes, ¶ 18. The record further supports the District Court’s finding that SPD made an unequivocal statement to Boyne in 2005 that Boyne must fulfill this additional term before SPD would transfer the Lone Peak property. SPD anticipatorily breached the contract. Chamberlin, 277 Mont. at 203, 921 P.2d at 1240. 2. useless acts not required before seeking specific performance ¶56 The District Court determined that Boyne could enforce the Peak Agreement without first fulfilling Boyne’s final contractual requirement of paying SPD in light of SPD’s repudiation of its contractual duty to transfer the Lone Peak property to Boyne. The District Court relied on Eschenbacher v. Anderson, 2001 MT 206, ¶¶ 35-36, 306 Mont. 321, 34 P.3d 87, for its conclusion that Boyne was not required to continue performing Boyne’s contractual obligations before seeking specific performance. We review for correctness a district court’s conclusion of law. Varano, ¶ 7. 20 ¶57 Appellants claim that “Boyne can point to no Montana case law that says it is entitled to specific performance of a contract when it failed to provide the consideration . . . it was obligated to provide.” Appellants ignore the District Court’s citation of Eschenbacher. Incredibly, Appellants cite Eschenbacher for the opposite conclusion—that Boyne was required to perform fully Boyne’s contractual obligations before it could seek specific performance. ¶58 Appellants correctly recognize that “Eschenbacher supports the proposition that a party may bring an action to enforce a contract if the other party has anticipatorily breached.” Appellants claim that Boyne would receive a windfall if Boyne were not required to perform fully Boyne’s contractual duties before bringing this action for specific performance. Appellants dismiss the notion that SPD’s “so-called anticipatory breach somehow excused Boyne’s further performance under the Agreement.” ¶59 Appellants highlight one sentence from Eschenbacher for the proposition that Boyne must perform fully Boyne’s contractual duties before it requests specific performance. “Before a party may require another party to perform under an obligation, the requesting party must fulfill all conditions precedent required of the requesting party.” Eschenbacher, ¶ 35. The following two sentences of Eschenbacher clearly indicate that Boyne did not need to perform fully before it could seek specific performance in light of Appellants’ anticipatory breach of the contract. Eschenbacher, ¶ 35. Eschenbacher emphasizes that the law does not require a party to an agreement to perform a useless act: “If a party to a contract repudiates his contractual duty prior to his obligation to perform, the other party may enforce the 21 obligation without performing or offering to perform any of her obligations.” Eschenbacher, ¶ 35. ¶60 Boyne may bring its action for specific performance of the Peak Agreement even though Boyne has not yet fulfilled its last contractual obligation to pay SPD for the Lone Peak property. Eschenbacher, ¶ 40. We do not require Boyne first to perform the useless act of paying SPD when SPD already anticipatorily has breached the Peak Agreement. Eschenbacher, ¶ 35. The District Court properly applied the law of anticipatory breach. 3. value of the Lone Peak property ¶61 Appellants further argue against specific performance due to the lack of a price term specified in the contract. The Peak Agreement required Boyne to pay SPD for half of the value of the Lone Peak property. The Peak Agreement provides that Boyne will pay “the appraised value of the [Lone Peak] Property in the Swap” of land between the U.S. and BLS. The Peak Agreement estimates that the cost will be approximately $800 per acre. ¶62 The Gallatin Land Consolidation Act of 1998 required that the U.S. exchange land for “equal value.” This requirement forced the U.S. to ascertain the appraised value of the Lone Peak property before the U.S. could “swap” the Lone Peak property with BLS. This land swap ultimately occurred and the final appraised value was determined. The price per acre does not appear to have been a question at trial. Neither party introduced direct evidence of the appraised value. Sufficient circumstantial evidence in the record establishes, however, that the final appraised value was $800 per acre. ¶63 Only one witness, Brian Wheeler (Wheeler), the director of real estate and development for Big Sky Resort, testified directly about the value per acre of the property. 22 Appellants asked Wheeler if he had “an understanding about the amount Boyne would have had to pay in 1998 dollars under [the Peak Agreement]?” Wheeler responded, “[i]t would be seven acres, just seven and a half, acres times $800.” Appellants asked no additional questions to suggest that Wheeler incorrectly had stated the value per acre of the Lone Peak property. Appellants introduced no evidence at trial to suggest that the final appraised value of the property was anything other than $800 per acre. 4. specific performance ¶64 Specific performance constitutes an equitable remedy within the discretion of the district court. Larson v. Undem, 246 Mont. 336, 342, 805 P.2d 1318, 1323. Specific performance may be necessary when pecuniary compensation for a defendant’s failure to perform pursuant to the terms of a contract fails to afford adequate relief. Section 27-1- 411(2), MCA. A court presumes that the breach of the contract cannot be relieved adequately by pecuniary compensation for contracts that involve the sale of land. Section 27-1-419, MCA. ¶65 Boyne had fulfilled its obligation to transfer 25 acres of property and stood ready to pay SPD for the Lone Peak property. All parties understood that Boyne would pay $800 per acre for half of the Lone Peak property. The presumption in favor of specific performance applies to Boyne’s claim under these facts. Section 27-1-419, MCA. C. LMH to Transfer Lone Peak Property ¶66 The District Court ordered LMH to transfer title of the Lone Peak property to Boyne. The court may require the successor in interest to title to perform specifically the obligation of its predecessor if a successor was not a purchaser in good faith for value. Section 27-1- 23 421, MCA. “[O]ne who acquires or purchases property, knowing that the property is subject to a contract to be sold to another, may be compelled to perform the contract in the same manner and to the same extent as his grantor would have been liable to do had the grantor not made the transfer to him.” Naylor v. Hall, 201 Mont. 59, 68, 651 P.2d 1010, 1015 (1982). Appellants argue, “there is no evidence in the record to establish that LMH was not a purchaser of the property in good faith.” ¶67 Dolan, the same person who manages SPD, manages LMH. LMH acquired the Lone Peak property with full knowledge that the Peak Agreement required the conveyance of the property to Boyne. Further, Boyne had recorded a lis pendens on the property. SPD also transferred the property after Boyne had filed this lawsuit. The record supports the District Court’s finding that LMH failed to qualify as a purchaser in good faith. LMH remains liable to perform the Peak Agreement in the same manner and under the same terms that SPD was required to perform. Naylor, 201 Mont. at 68, 651 P.2d at 1015. D. The District Court’s Deduction of $6,188 from Boyne’s Damage Award ¶68 The District Court deducted $6,188 from Boyne’s compensatory damage award to account for Boyne’s contractual obligation to pay SPD for half of the Lone Peak property. Appellants deride this “post-hoc attempt to satisfy [Boyne’s obligation to pay] by including it as an arbitrary setoff.” Eschenbacher confirms that SPD’s anticipatory breach of the Peak Agreement relieved Boyne of its obligation to pay before it filed this action. The District Court’s grant of specific performance now requires Boyne to perform fully Boyne’s obligation to pay for half of the Lone Peak property. Nothing arbitrary attaches to the District Court’s decision to set off this amount from Boyne’s compensatory damage award. 24 ¶69 Appellants next argue that the District Court improperly valued the Lone Peak property. The District Court directed Boyne to subtract $6,188 from Boyne’s damage award. The survey established that the Lone Peak property comprised 15.47 acres. The value of the Lone Peak property was determined to be $800 per acre. The District Court simply divided the 15.47 acres in half, and then multiplied the resulting 7.735 acres by $800. The court reached a final figure of $6,188. All of the evidence in the record indicated that the appropriate value of the property was $800 per acre. Appellants offer no evidence that the value of the property was anything other than $800 per acre. ¶70 Appellants further argue that the District Court improperly deducted this $6,188 in equal shares from each of Appellants’ damages. Appellants argue in effect, that this deduction means that Boyne only paid SPD $3,094—half of the amount required under the Peak Agreement—and in turn, Appellants argue that Boyne paid $3,094 to LMH, even though LMH has no right to payment under the Peak Agreement. We agree with Appellants that it would be improper to require Boyne to pay LMH, a party with no rights under the Peak Agreement. Boyne must fulfill its contractual obligation by deducting the full $6,188 purchase price from the damage award assessed against SPD. E. Prescriptive Easement ¶71 The District Court’s order grants Boyne both an easement over the Lone Peak property and ownership of the Lone Peak property. Appellants cite this apparent inconsistency as further evidence of the District Court’s “irredeemably contradictory” judgment. Boyne sought outright ownership of the Lone Peak property through its claim for 25 specific performance. Boyne also sought, in the alternative, an easement over the property so that Boyne could continue to use the Lone Peak property as part of Big Sky Resort. ¶72 The jury found that Boyne was entitled to an easement over the property. The District Court separately determined that Boyne was entitled to specific performance and therefore legal ownership of the Lone Peak property. The District Court’s order provided that Boyne was entitled both to an easement and to ownership of the property. The District Court appropriately specified alternative relief in the event that this Court could have reversed the District Court’s conclusion that Boyne was entitled to specific performance. ¶73 An easement holder’s acquisition of legal ownership of the servient land extinguishes the easement associated with that parcel. Tungsten Holdings v. Olson, 2002 MT 158, ¶ 19, 310 Mont. 374, 50 P.3d 1086; § 70-17-105, MCA. Boyne’s acquisition of legal ownership over the Lone Peak property will extinguish Boyne’s easement on the same parcel and therefore eliminate any “irredeemable contradictions” in the court’s judgment. Tungsten Holdings, ¶ 19. ¶74 2. Whether the jury erroneously awarded compensatory damages to Boyne. ¶75 The jury found that SPD and LMH each had deceived Boyne and that each had abused the legal process. The jury awarded Boyne $300,000 from SPD and $300,000 from LMH. A. Abuse of the Legal Process ¶76 The tort of abuse of the legal process first requires proof of an ulterior purpose, and second, a willful act in the use of the process not proper in the regular conduct of the proceeding. Brault v. Smith, 209 Mont. 21, 28-29, 679 P.2d 236, 240 (1984). A decision to 26 press a valid legal claim to its regular conclusion, even with an ulterior motive, fails by itself to constitute abuse of process. Brault, 209 Mont. at 29, 679 P.2d at 240. The party alleging abuse of process must prove that the other party attempted to use the process to coerce the plaintiff to do some collateral thing that he legally and regularly could not be compelled to do. Brault, 209 Mont. at 29, 679 P.2d at 240. ¶77 Boyne alleged at trial that Appellants had abused the legal process through their filing of a frivolous counterclaim against Boyne that forced Boyne to defend itself for two and a half years. Appellants dropped this counterclaim the last business day before the start of the trial. ¶78 Appellants counterclaimed that Boyne had rescinded the Peak Agreement by transferring to SPH the 25 acres that Boyne was required to transfer under the Peak Agreement and the Southfork Agreement. Boyne argues that Appellants knew this claim to be frivolous in light of the fact that Appellants were asserting a contrary claim in a different lawsuit at the same time that Appellants made a claim for rescission for failure of consideration. ¶79 SPH, an entity owned by SPD, claimed in a lawsuit filed in the 18th Judicial District, Gallatin County, Spanish Peaks Holding, LLC v. Boyne, USA, Cause No. DV 06-570A, that Boyne had transferred all of its rights and obligations under the Southfork Agreement to SPH. This alleged transfer would mean that SPH no longer would be required to pay Boyne override fees for the property in Spanish Peaks Resort that would benefit from the ski in/ski out access to Big Sky Resort. This transfer of rights also would mean that Boyne no longer 27 had an obligation to transfer 25 acres to anyone. SPH further argued, in the Gallatin County action, that Boyne had failed to fulfill its obligation to transfer the 25 acres to SPH. ¶80 Boyne highlights the incompatibility of these three claims: (1) that Boyne was required to transfer the 25 acres to SPD; (2) that Boyne was required to transfer the same 25 acres to SPH; or (3) that Boyne was not required to transfer the 25 acres to anyone, because Boyne already had assigned all of its rights and obligations under the Southfork Agreement to SPH. Boyne argued at trial that the inconsistency of these three claims demonstrated abuse of the legal process. ¶81 Boyne further argued that Appellants had filed this legal claim for the ulterior purpose of convincing Boyne to do something Boyne was not otherwise required to do. Appellants sought to compel Boyne to transfer an additional 25 acres of property to Appellants before Boyne could receive the Lone Peak property. Appellants further sought to convince Boyne to modify or eliminate the override fees that the Southfork Agreement provided to Boyne. ¶82 Appellants defend this apparent duplicity on the basis that LMH was not a party to the action when SPD filed its allegedly frivolous counter-claim against Boyne. Boyne added LMH as a party in August 2009. Appellants filed their dubious counterclaim in September 2009. Appellants listed LMH as a party on their counterclaim. LMH participated in any abuse of the legal process perpetrated by Appellants. B. Deceit ¶83 Boyne further alleged that Appellants had deceived Boyne. A deceit involves a suggestion of a fact that is not true by one who does not believe that it is true. Section 27-1- 28 712, MCA. One who willfully deceives another with intent to induce that party to alter his position is liable for any damage that party suffers. Section 27-1-712, MCA. ¶84 Between 2002, when Boyne transferred the 25 acres to SPH, and 2005, when SPD informed Boyne that Boyne had breached the Southfork Agreement, Dolan and Doyle made numerous statements to Boyne to imply that Boyne had not breached the Southfork Agreement. ¶85 SPD asked Boyne in 2003 to help SPD in a different lawsuit over the Lone Peak property. The U.S. had transferred 0.16 acres of the Lone Peak property to Moonlight Basin. SPD wanted to correct this mistake. SPD worked with Boyne to litigate this matter against the U.S. Boyne’s assistance in this matter caused Boyne to believe that Dolan and Blixseth intended to transfer the Lone Peak property to Boyne after the U.S. had issued a patent. ¶86 Dolan and Blixseth sought to purchase Big Sky Resort from Boyne in 2003. Dolan drafted and signed a letter that set forth the terms of a potential sale. Dolan addressed the Lone Peak property. Dolan wrote that this property would “inure to the benefit of the owner of the Big Sky Resort.” ¶87 Boyne requested the Lone Peak property, other than the 0.16 acres, in 2004. SPD’s counsel, Doyle, responded that SPD could not yet transfer the property. Doyle cited the fact that the U.S. would not issue a patent for the property until the conclusion of the litigation over the 0.16 acres. Doyle made no mention that Boyne would not receive the Lone Peak property due to Boyne’s breach of the Southfork Agreement. ¶88 Doyle simultaneously worked with Boyne to upgrade the Southern Comfort chairlift at Big Sky Resort. The Southfork Agreement required Boyne to pay for the upgrade. Boyne 29 also worked with SPH to determine from which lots Boyne would receive an override fee for the ski in/ski out access to Big Sky Resort. The Southfork Agreement entitled Boyne to these override fees. No one—not Blixseth, not Dolan, not Doyle, not anyone from SPD or SPH—ever suggested to Boyne that Boyne had breached the Southfork Agreement. Dolan ultimately conceded at trial that his implications to Boyne that the Southfork Agreement was still in good standing amounted to a false representation. Dolan further conceded that it would have been “prudent” to have disclosed Dolan’s position that Boyne had breached the Southfork Agreement. ¶89 Appellants argue that LMH could not have deceived Boyne because LMH did not exist until after the lawsuit was filed. Appellants further argue that all of the allegedly deceitful activities occurred between 2002 to 2005. The jury found that LMH had deceived Boyne. We do not need to resolve whether the jury properly found that LMH had deceived Boyne because substantial evidence of damages exist from LMH’s abuse of the legal process against Boyne. The jury awarded $300,000 either for LMH’s abuse or deceit. C. Damages ¶90 Appellants do not argue that they did not abuse the legal process or that they had a legitimate purpose for filing their frivolous counter-claim. Appellants also do not deny that SPD’s actions deceived Boyne. Appellants instead argue that Boyne suffered only nominal damages from any abuse of the legal process or deceit. Appellants argue that no evidence in the record supports the jury’s award of compensatory damages for either abuse of the legal process or deceit. Appellants claim that the jury could have awarded nominal damages, at most, for Boyne’s two tort claims, rather than a total of $600,000. 30 ¶91 Boyne argued to the jury that Appellants used the Lone Peak property as an asset to leverage Boyne on numerous matters, both related and unrelated to this litigation. The jury learned that Boyne and Dolan, through Dolan’s various entities, had numerous contracts. Boyne argued that Dolan and Dolan’s entities obtained favorable treatment on these other contracts by leading Boyne to believe that Boyne was in compliance with the Southfork Agreement between 2002 to 2005. Boyne further argued to the jury that Dolan and Dolan’s entities had damaged Boyne after the litigation began by creating additional uncertainties in Boyne’s business operations as a result of Appellants’ abusive counterclaim. ¶92 The jury learned about Dolan’s 2004 “Christmas List” email to Boyne. Dolan requested renegotiation of a number of contracts between Boyne and Dolan’s entities in this email. Dolan requested that Boyne renegotiate a contract with Lone Moose Meadows that had made Boyne the exclusive rental manager for condominiums. Dolan wanted to discuss Boyne’s operation of Big Sky Resort’s Southern Comfort chairlift, including hours, opening and closing dates, and other matters that would benefit Dolan’s entities. Dolan wanted to renegotiate the Purchase and Sale Agreement of 2002, which permitted only Boyne to operate ski rentals, ski repair, restaurants, and bars on the property. Dolan requested special lift line access for Dolan’s ski instructors and guides, as well as season passes for Spanish Peaks Resort and Lone Moose Mountain staff. Dolan further requested advertising signs for Dolan’s condominiums and properties throughout Big Sky Resort. ¶93 Dolan admitted at trial that he sought to modify multiple contracts that Dolan had with Boyne. Dolan claimed that he had taken a “holistic approach” in an effort to modify multiple agreements at once. Boyne argued that Dolan instead sought to leverage the 31 promise of the Lone Peak property against Boyne to extract concessions in these other contracts. ¶94 The jury learned that Boyne had spent $3 million to upgrade the Southern Comfort chairlift needed to facilitate the ski in/ski out access to Big Sky Resort as part of the Southfork Agreement with SPH. Boyne had disagreed with SPH about the timing of the upgrade, but ultimately had upgraded the Southern Comfort lift earlier than required under the Southfork Agreement. Boyne argued at trial that SPH, an entity owned by SPD, had induced Boyne to upgrade the Southern Comfort lift earlier by implying that the Southfork Agreement was still in good standing. ¶95 The Southfork Agreement also entitled Boyne to override fees for properties that SPH sold with ski in/ski out access to Big Sky Resort’s chairlifts. The jury learned at trial that SPH had sold almost $83.5 million worth of property at Spanish Peaks Resort, but had not yet paid any override fees to Boyne. ¶96 Boyne also argued to the jury that SPD’s failure to fulfill its obligation under the Peak Agreement had cost Boyne the opportunity to have held title to the property from 2004 to the date of the 2011 trial. LMH contributed to this damage to Boyne by its “purchase” of the property from SPD. Boyne could have transferred, leased, mortgaged, or sold the property according to its own wishes during those eight years. SPD’s actions prevented Boyne from taking any of these steps. SPD “sold” the property to LMH for $250,000 during that time period. Boyne argued that this sale demonstrated that Boyne could have sold the property for $250,000 if Boyne had obtained title to the property. 32 ¶97 The jury further learned that Dolan had attempted to interfere with Boyne’s ability to obtain financing after Boyne filed this action. Boyne contacted CNL Lifestyle Properties, Inc. (CNL) to obtain a loan. Dolan contacted CNL’s president to inform CNL’s president that Dolan, rather than Boyne, owned the Lone Peak property. Dolan further told CNL’s president that Dolan’s ownership of the land could be a problem for CNL. ¶98 Appellants urge this Court to review the jury’s award of damages on Boyne’s tort claims of abuse of the legal process and deceit. Appellants characterize all of Boyne’s damages as “speculative” and argue for application of the Court’s analysis of contract damages in Watson v. West, 2009 MT 342, ¶ 34, 353 Mont. 120, 218 P.3d 1227. We instead will review the jury’s damage award under our tort jurisprudence in light of the fact that the jury awarded $600,000 to Boyne for its tort claims. ¶99 We determine whether substantial credible evidence supports a jury’s verdict. Substantial credible evidence comprises evidence that a reasonable mind might accept as adequate to support a conclusion. We view the evidence in the light most favorable to the prevailing party. Seltzer, ¶ 94. We afford the prevailing party any reasonable inference that can be drawn from the facts. The evidence will be considered substantial even if this Court views it as inherently weak and conflicting and somewhat less than a preponderance. Substantial evidence must consist of more than a mere scintilla of evidence, however, and it must rise above the level of trifling or frivolous. Seltzer, ¶ 94. ¶100 This Court will not substitute its judgment for the jury’s judgment unless the amount awarded is so grossly out of proportion to the injury as to shock the conscience. Frisnegger v. Gibson, 183 Mont. 57, 67, 598 P.2d 574, 580 (1979). The jury learned of Appellants’ 33 numerous efforts to leverage Boyne on a variety of issues. For example, Boyne spent $3 million to upgrade the Southern Comfort chairlift on an expedited basis due to Appellants’ machinations over the Lone Peak property. Boyne could have performed the upgrade according to the original schedule and used the money for other purposes in the interim. Appellants failed to pay any override frees to Boyne on the ski in/ski out property despite having sold approximately $83.5 million of property at Spanish Peaks Resort. Boyne’s delayed receipt of these override fees-- to which the Southfork Agreement entitled it -- cost Boyne the use of these override funds for a substantial period of time. We affirmed a jury’s award of damages for lost investment value of funds that occurred due to a party’s delay in Kiely Constr. L.L.C. v. City of Red Lodge, 2002 MT 241, ¶¶ 104, 106, 312 Mont. 52, 57 P.3d 836. We also affirmed the jury’s award of lost future investment value due to the defendant’s delay. Kiely, ¶¶ 104, 106. Some of Boyne’s damages mirror the type of damages that we affirmed in Kiely. ¶101 The jury awarded Boyne $300,000 in damages from SPD and $300,000 in damages from LMH for the related torts of abuse of the legal process and deceit committed by Appellants. Boyne presented evidence to the jury of substantial damages arising from Appellants’ abuse of the legal process and from SPD’s deceit of Boyne. Nothing shocks the conscience regarding the jury’s award of $600,000 for Appellant’s well cataloged abuses of the legal process and deceit. Frisnegger, 183 Mont. at 67, 598 P.2d at 580. We decline to disturb the jury’s damage award. ¶102 3. Whether the District Court properly awarded legal fees to Boyne pursuant to the terms of the contract. 34 ¶103 The District Court awarded $176,834 in attorney fees to Boyne pursuant to a provision in the Peak Agreement that provided attorney fees to the prevailing party. Appellants ignore this clear statement and implicitly argue that no contractual provision addresses attorney fees: “[w]ithout an explicit entitlement to fees . . . fees are not available.” Appellants cite Blue Ridge Homes, Inc. v. Thein, 2008 MT 264, ¶ 78, 345 Mont. 125, 191 P.3d 374, for the proposition that a court may award fees “only where a statute or contract provides for their recovery.” ¶104 The Peak Agreement contains an express provision related to fees. The Peak Agreement could not be more clear: “[i]n the event either party to this agreement finds it necessary to bring an action at law . . . to enforce any of the terms, conditions or covenants hereof . . . the party prevailing in such action or other proceedings shall be paid all reasonable attorney’s fees by the other party.” ¶105 Boyne submitted a claim for fees as directed by the District Court’s judgment. Boyne failed to title its motion “Motion for Attorney Fees,” however, as Appellants claim M. R. Civ. P. 54(d)(2)(A) requires. Boyne filed a motion entitled “Proposed Findings and Conclusions and a Statement of Attorney’s fees.” Boyne’s motion set forth the amount of fees that Boyne sought and the basis for these fees. Boyne cites Moody v. Northland Royalty Co., 286 Mont. 89, 95, 951 P.2d 18, 22 (1997), for the proposition that the substance of the document, rather than the caption should control. Boyne’s submission requested attorney fees and detailed the amount of fees sought. ¶106 Nothing in M. R. Civ. P. 54(d)(2)(A), required Boyne to file a separate motion titled “motion for fees” when the Peak Agreement provided for fees to the prevailing party and 35 when the District Court directed Boyne to submit a claim for fees. Appellants’ argument borders on frivolous. See M. R. App. P. 19(5). This Court generally has held that for purposes of characterizing post-judgment orders, “the substance, not the caption, of the document controls.” Moody, 286 Mont. at 95, 951 P.2d at 22. “We shall look to the substance of a motion, not just its title, to identify what motion has been presented.” Miller v. Herbert, 272 Mont. 132, 136, 900 P.2d 273, 275 (1995). Boyne’s motion sufficiently put Appellants on notice that Boyne sought attorney fees in the amount described in the motion. ¶107 Appellants next insist that the District Court did not issue a valid fee award. The District Court issued its judgment on December 5, 2011. The District Court’s judgment instructed Boyne to submit a statement of the amount of attorney fees sought within ten days. The District Court further provided that Boyne’s claimed fee amount would be “incorporated into this Judgment as if fully set forth herein” if Appellants did not object to the attorney fees within ten days. ¶108 Boyne submitted its motion on December 12, 2011, with the amount of its claimed attorney fees. Appellants did not object to the amount of attorney fees or request a hearing within ten days. More than three weeks later, on January 3, 2012, Boyne submitted a Statement of Amount of Attorney’s Fees to be Incorporated into Judgment. The court incorporated the fees into the judgment. ¶109 Appellants argue that they have not had an opportunity to contest the amount of fees. Boyne submitted its request for fees as the District Court ordered on December 12, 2011, and the District Court incorporated these fees into the judgment on January 3, 2012. Appellants finally filed a motion to contest Boyne’s attorney fees on January 10, 2012. Appellants did 36 not object to the reasonableness, or to the amount of the fees, within the 10-day period. Appellants did not seek a hearing on the amount of fees within the 10-day period. Appellants’ failure to make a timely objection when given the opportunity waives their right to object for the first time on appeal. Entriken v. Motor Coach Fed. Credit Union, 256 Mont. 85, 94, 845 P.2d 93, 98 (1992). ¶110 4. Whether Boyne is entitled to legal fees on appeal. ¶111 Boyne argues that the Peak Agreement entitles it to fees on appeal. We agree. A contractual provision that provides for attorney fees includes attorney fees for appeal. In re Estate of Burrell, 2010 MT 280, ¶ 41, 358 Mont. 460, 245 P.3d 1106 (citing Boyne USA, Inc. v. Lone Moose Meadows, LLC, 2010 MT 133, ¶ 26, 356 Mont. 408, 235 P.3d 1269). Boyne’s status as the prevailing party entitles it to attorney fees reasonably incurred in enforcing the Peak Agreement on appeal. We remand to the District Court for a determination of reasonable attorney fees incurred on appeal. CONCLUSION ¶112 Our legal system provides a mechanism to resolve disputes between parties. Our review of the record convinces the Court that Appellants elected to use every procedural mechanism of our legal system to evade its contractual obligations, obfuscate, manufacture disputes, and leverage its business position in a duplicitous manner. ¶113 Appellants operated in this manner throughout the protracted period of negotiations with Boyne from the execution of the Peak Agreement in 1998 through Boyne’s decision to file this action in 2008. Boyne had to litigate every major contract that it had entered with Appellants and their related entities. The bankruptcy proceedings in In re Yellowstone Mt. 37 Club, LLC, 436 B.R. 598 (2010), confirm that Appellants and their agents “do business” in this manner generally. ¶114 Appellants continued this course of conduct through this litigation in the District Court. Appellants claimed that SPD was the appropriate party to receive the 25 acres from Boyne under the Southfork Agreement despite the Assignment and Assumption document and Dolan’s admission at trial that SPD had conveyed this right to SPH. Appellants urged the jury to ignore the Assignment and Assumption document that clearly specified this transfer of rights. Appellants filed a frivolous counterclaim that they dropped the final business day before the trial. Appellants asserted a position in this litigation, that Boyne had failed to transfer land to SPD, that was directly contrary to the position that Appellants had asserted in a different lawsuit in Gallatin County. Appellants further claimed that Boyne had “sold” SPH the 25 acres when Boyne actually had transferred the 25 acres as part of a larger land transaction to help SPH evade subdivision review. ¶115 Of greater concern to this Court is the fact that Appellants have elected to continue with this course of conduct on appeal. Appellants’ challenge to Boyne’s claim for fees based on Boyne’s failure to caption its motion to the District Court as a request for fees underscores the baseless nature of their claims. Appellants further do not challenge on appeal the fact that they abused the legal process and committed deceit. As the record demonstrates, Appellants do not challenge these rulings with good reason. Appellants instead argue on appeal that their admitted abuse of the legal process and their admitted deceit caused no damages to Boyne. We cannot agree. ¶116 Affirmed. 38 /S/ Brian Morris We Concur: /S/ Michael E Wheat /S/ Patricia O. Cotter /S/ Beth Baker /S/ Jim Rice | January 2, 2013 |
c6f8a2dc-b11e-447a-a04f-c2ed4484c080 | MARRIAGE OF ADAMS v ADAMS | N/A | 14782 | Montana | Montana Supreme Court | No. 14782 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN RE THE MARRIAGE OF EARL E. ADAMS, Petitioner and Respondent, and MILDRED A . ISSACSON ADAMS, Respondent and Appellant. MILDMD A . ISSACSON ADAMS, Third Party Plaintiff and Appellant, VIOLETTE AGNES SMITH, Plaintiff in Intervention, VS. ALBERT A. ADAMS and HAZEL BAYERS, Third Party Defendants. Appeal from: District Court of the Fourteenth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellants: Lee Overfelt, Billings, Montana For Respondents: Berger, Anderson, Sinclair and Murphy, Billings, Montana James, Gray and McCafferty, Great Falls, Montana Submitted on briefs: November 7, 1979 Decided: ' E c 3 1 1979 ;\PC 7 - ; - . 7 Filed: L. - - , Mr. Justice John C. Sheehy delivered the Opinion of the Court. his is an appeal from a judgment declaring a marriage invalid entered by the Hon. Nat Allen, District Court, Fourteenth Judicial District, Musselshell County. On September 13, 1977, Earl E. Adams, now deceased, and Mildred A. Isaacson Adams were married. They were first cousins. The parties had known each other for the greater portion of their lives and had always been on friendly terms. In later years, when Earl's health was failing, he and his first cousin, Mildred, were fairly constant companions. She looked out for his needs. At the time of their discussions about the possibility of marriage, he was 72 and Mildred was 67 years old. She was aware of the fact that their first cousin relationship might be a problem, but he assured her that the relationship would make no difference. It was contended by Mildred that the marriage occurred because Earl would have had to enter a nursing home if he could not find someone to take care of him. As a part of the marriage discussion, Earl offered to take care of Mildred for the rest of her life, and to leave her everything he owned. As evidence of his good faith, he named her as a co- owner of twelve certificates of deposit, and they entered into mutual wills. On November 9, 1977, Earl fell and broke both of his hips. He was hospitalized in Billings and later entered a nursing home there. On November 30, 1977, he commenced an action for a declaration of invalidity of his marriage to Mildred, and changed the ownerships on the various certificates of deposit so that he was the sole owner thereof. While Earl's action against Mildred was pending, he died on January 2, 1978. His estate is presently being probated in Musselshell County. Whether Mildred is truly his -2- widow is a point for consideration in connection with the probate proceedings. Following Earl's death, Albert J. Adams and Hazel J. Bayers, the co-personal representatives of his estate, were substituted as party petitioners in the invalidity action. Trial was held on March 31, 1978. Although Mildred filed an answer and cross-complaint denying that she and the petitioner were first cousins and denying that the marriage was prohibited, at the trial she admitted that she and Earl were in fact first cousins. On May 25, 1978, the District Court entered a judgment based on its finding that the marriage between the parties was invalid - ab initio. Appeal was properly taken, and the matter is before this Court for submission on briefs without oral argument. We find that this marriage between first cousins is void - ab initio and affirm the District Court. The matter is controlled by statute. Under section 40- 1-401(1) (b), MCA (formerly section 48-310, R.C.M. 1947), a marriage between first cousins is specifically prohibited. In this respect, the present Montana statutory law differs from the Uniform Marriage and Divorce Act which does not include marriage between first cousins as a prohibited union. The public policy in Montana against marriages between first cousins is buttressed by the provisions of section 40-1-402, MCA, which states when the District Court shall enter its decree declaring the invalidity of a marriage prohibited by law. That section provides in subdivision (5), that "[u]nless the court finds, after a consideration of all relevant circumstances, including the effect of a retroactive decree on third parties, that the interests of justice would be served by making the decree not retroactive, - 3- it shall declare the marriage invalid as of the date of the marriage.. . ." The foregoing provision of section 40-1-402(5), MCA, in effect mandates a finding that the marriage is void - ab initio. The exception noted in section 40-1-402, MCA, that the interests of justice would be served by making the decree not retroactive is lacking in this case, the District Court having made no such finding. The action begun by Earl to invalidate the marriage did not abate by reason of his death. Section 27-1-501, MCA. It is lawful that the action be continued by his personal representatives. However, Mildred contends that under principles of estoppel the validity of her marriage to Earl should be sustained. Before the adoption of section 40-1-402, MCA, relating to decrees declaring the invalidity of marriages, it was proper for courts to examine in annulment cases whether the marriage was void, or merely voidable. The distinction is summarized by the author in Annot., 47 A.L.R.2d 1393 (1956), entitled Marriage--Posthumous Attack, - wherein it is stated: ".. . . a voidable marriage is one affected by a defect which can be cured by ratification or confirmation, or by removal of a disability, while a void marriage is one which the parties have no power under any circumstances to ratify, confirm, or validate." 47 A.L.R.2d at 1403. Accordingly, this Court held in In Re Shun T. Takahashi's Estate (1942), 113 Mont. 490, 129 P.2d 217, involving a marriage between a Japanese man and a Caucasian woman, that since the marriage offended Montana's then existing miscegenation statute, it was completely void, could not be cured by any later act of the parties and as such could be attacked by the parties themselves or collaterally (in that case by the public administrator). The force and effect of the holding in Takahashi appears to have been modified by the legislature by the adoption of section 40-1-402, MCA. That statute declares that any action for a declaration of invalidity of a prohibited marriage, including the marriage of first cousins, may be brought "at any time prior to the death of one of the parties". The parties that may bring the action are also limited. The provision of section 40-1- 402(5), MCA, that the court may find after a consideration of all the relevant circumstances that the interests of justice require not making the decree retroactive, appears to grant power to the district judge to make this determination without regard to any distinction as to whether a marriage is void or merely voidable. With respect to estoppel, the equitable principles which are applicable remain the same. To iterate, for equitable estoppel to exist, there must be: (1) a false representation or a concealment of facts, (2) made with the knowledge, actual or constructive, of the facts, (3) to a party without knowledge or means of knowledge of the facts, (4) with the intention that it should be acted upon and (5) reliance on the false representation to his or her prejudice by the other party. Cedar Creek Oil & Gas Co. v. Fidelity Gas Co. (9th Cir. 1957), 249 F.2d 277, cert.den. 356 U.S. 932, 78 S.Ct. 775, 2 L.Ed.2d 763; State ex rel. Howeth v. D. A. Davidson & Co. (1973), 163 Mont. 355, 517 P.2d 722. In this case, the evidence is that Mildred knew that a problem existed with respect to validity of marriages between first cousins, and certainly had equal means to discover the facts concerning the law. Moreover, in the case of a marriage of such short duration, it is difficult to perceive any real prejudice. There is no equitable basis therefore to forestall the application of the rule against the validity of this marriage as of its date. The judgment of the District Court is affirmed. -5- Justice We Concur: Chief Justice , , ' I- Justices I concur i n t h e r e s u l t b u t n o t i n a l l t h a t i s s t a t e d . r'- JUSTICE | December 31, 1979 |
c227d71b-2dd3-494f-88f6-55aeec0a2f12 | N. Cheyenne Tribe v. Roman Catholic Church | 2013 MT 24 | DA 12-0010 | Montana | Montana Supreme Court | DA 12-0010 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 24 THE NORTHERN CHEYENNE TRIBE, a Sovereign Indian Tribe of the United States and as a Nation of People, both Individually and Collectively, Plaintiff and Appellant, v. THE ROMAN CATHOLIC CHURCH; by and through its Corporate and other Business Entities, to include, but not limited to, THE DIOCESES OF GREAT FALLS/BILLINGS; ST. LABRE INDIAN SCHOOL EDUCATIONAL ASSOCIATION, INC., ST. LABRE HOME FOR INDIAN CHILDREN AND YOUTH, INC., and JOHN DOES I-X, Defendants and Appellees. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 05-0286 Honorable Susan P. Watters, Presiding Judge COUNSEL OF RECORD: For Appellant: Jackie S. Shields; A. Clifford Edwards; Triel D. Culver; A. Christopher Edwards; Edwards, Frickle & Culver, Billings, Montana For Appellees: Maxon R. Davis; Jeffry M. Foster; Davis, Hatley, Haffeman & Tighe, P.C., Great Falls, Montana (Diocese) Herbert I. Pierce, III, Jeffery J. Oven, Crowley Fleck PLLP, Billings, Montana February 5 2013 2 Submitted on Briefs: August 29, 2012 Decided: February 5, 2013 Filed: __________________________________________ Clerk 3 Justice Brian Morris delivered the Opinion of the Court. ¶1 The Northern Cheyenne Tribe (NCT) appeals from an order of the Thirteenth Judicial District Court, Yellowstone County that granted summary judgment on all of NCT’s claims. We affirm in part, reverse in part, and remand. ¶2 Our resolution of NCT’s appeal requires us to address the following issues: ¶3 Whether the District Court properly granted summary judgment to St. Labre on NCT’s claims of unjust enrichment, constructive trust, and forensic accounting? ¶4 Whether the District Court properly granted summary judgment to St. Labre on NCT’s claims of breach of contract, negligent misrepresentation, fraud, and wrongful conversion? ¶5 Whether the District Court properly granted judgment on the pleadings to St. Labre on NCT’s cultural genocide and constitutional claims? FACTS AND PROCEDURE ¶6 NCT brings its claims both individually, as a tribal entity, and collectively, on behalf of the Northern Cheyenne Tribal Members. NCT names “The Roman Catholic Church” as the lead defendant in the suit. NCT also names in the suit “The Roman Catholic Church by and through its Corporate and other Business Entities, to include, but not limited to, The Dioceses of Great Falls/Billings.” We refer to these defendants collectively as “the Diocese.” ¶7 NCT also names the St. Labre Indian School Education Association, Inc. and the St. Labre Home for Indian Children and Youth. St. Labre Indian School Educational Association, Inc. is a Catholic school that offers preschool through high school education. 4 St. Labre Home for Indian Children and Youth provides community support that includes housing to at-risk children who attend the St. Labre Indian School. Both entities appear to have the same interests in this suit and have been represented by the same counsel. We refer to the two entities collectively as “St. Labre.” ¶8 A Catholic nun first claimed the majority of the land upon which St. Labre sits in April 1884, as grounds for the St. Labre Mission School. President Chester Alan Arthur issued an executive order to create a reservation for the “use and occupation of the Northern Cheyenne Indians in November 1884.” President Arthur exempted from transfer to the Northern Cheyenne those lands “which have been located, resided upon, and improved by bona fide settlers, prior to the 1st day of October, 1884.” St. Labre was settled approximately six months before the October 1, 1884 deadline. ¶9 President William McKinley issued an executive order to expand the size of the Northern Cheyenne Reservation in 1900. The order explicitly exempted from transfer tracts of land “belonging to the [St. Labre’s] Mission.” The United States Government later enacted the Northern Cheyenne Allotment Act (Act) in 1926. The Act reaffirmed the lands originally set out by President McKinley in 1900 to be the property of the Northern Cheyenne Indians and to be “for the permanent use and occupation of the Northern Cheyenne Indians.” ¶10 Section 4 of the Act detailed exempted lands. These exempted lands included those used by St. Labre “so long as they continue to be used solely in the advancement of religious and welfare work for the benefit of the Northern Cheyenne Indians.” The Secretary of the 5 Interior granted St. Labre’s request in 1929 for “temporary use and occupancy” of 2.5 additional acres of land. St. Labre retains use of these lands. ¶11 The United States Government originally funded St. Labre based on the number of attending students. St. Labre closed its high school through the late 1930’s and 1940’s due to financial problems. Enrollment decreased to 41 students and St. Labre suffered a corresponding loss in aid. ¶12 St. Labre began a direct mail fundraising campaign in 1952 that aimed to offset its decrease in government funding. St. Labre has relied on this private fundraising almost exclusively since 1952. St. Labre raises millions of dollars annually. Its current endowment reaches approximately $90 million dollars. NCT alleges that St. Labre raised between $27 and $30 million for two of the four years before the filing of its complaint. ¶13 St. Labre runs its fundraising efforts through a direct mail campaign. St. Labre titled its fundraising letter associated with the direct mail campaign “The Race of Sorrows.” An Army officer in the 1880’s coined the phrase to characterize the Northern Cheyenne Tribe. ¶14 NCT asserts that St. Labre has raised millions of dollars through its fundraising efforts that market the plight and need of NCT. NCT submitted as exhibits a number of The Race of Sorrows letters. A fundraising letter from 1970 describes the purpose of St. Labre: Education of the young; opportunity of self-support for the adults, improvement of the economic and social status of the Northern Cheyenne, once called the Race of Sorrows because of their sorry plight, have been the goals of St. Labre, the only reasons for its existence. 6 Sample letters detail stories in which Northern Cheyenne parents seek aid with house payments and heating bills, children in need of shoes, and other similar depictions of impoverishment. ¶15 NCT and St. Labre have enjoyed a mixed relationship over the years. A commentator characterized the perception of NCT at the time of the development of St. Labre: “Cheyenne people viewed the priest as a means to improve their material condition on the reservation and as an intermediary who might speak for the Cheyenne people to federal officials.” Suzanne H. Schrems, The Northern Cheyennes and the Fight for Cultural Sovereignty, Montana: The Magazine of Western History 18, 22 (Spring 1995). St. Labre has provided financial support to individual Tribal Members. NCT argues, however, that St. Labre’s financial contributions have been irregular and insufficient relative to the fundraising totals that St. Labre has achieved. ¶16 St. Labre’s disbursement of funds raised through its direct mail campaign appears to have served as a long-standing dispute between St. Labre and NCT. The District Court traced this dispute back to at least 1984 when NCT set up a task force to address the disbursement issue. The Tribal President sought an accounting from St. Labre in 1997. NCT alleged that St. Labre had been soliciting money “for and on behalf of the Northern Cheyenne people,” but that the funds were not going regularly to NCT. ¶17 NCT asserts that St. Labre “consistently” made disbursements or donations to NCT whenever NCT demanded a right to a share of the funds. NCT claims that it always took issue with the timing and the amount of the disbursements from St. Labre. NCT alleges that St. Labre never actually refused to provide NCT with at least some access to these funds 7 until January 28, 2005. NCT argues that St. Labre’s outright denial of access to these funds finally prompted NCT to file the current lawsuit. NCT filed this action on March 11, 2005. ¶18 NCT alleges nine separate causes of action in its amended complaint. We categorize these claims into three general groups. The first group involves allegations that St. Labre’s fundraising system created a constructive trust on behalf of NCT. NCT alleges that St. Labre wrongfully has converted these funds to its own use, and, as a result, unjustly has enriched itself. NCT’s second group of claims alleges contract and fraud type issues. The third group of claims alleges a constitutional tort in which St. Labre has committed cultural genocide against NCT in violation of Article II, Sections 3, 4, and 10 of the Montana Constitution. ¶19 The District Court granted St. Labre’s motion for judgment on the pleadings on NCT’s cultural genocide claim and its constitutional claims upon which NCT had predicated its cultural genocide claim. The District Court granted summary judgment on NCT’s contract related claims due to NCT’s failure to produce any evidence that an express or implied contract existed between NCT and St. Labre. The District Court also granted summary judgment on NCT’s constructive trust claim and determined that the statute of limitations barred NCT’s unjust enrichment claims that arose from St. Labre’s fundraising that had taken place before March 2002. The District Court finally determined that NCT’s failure to prove that NCT had suffered any loss barred its unjust enrichment claims that arose from St. Labre’s fundraising after March 2002. ¶20 The District Court granted the Diocese’s motion for summary judgment on all of NCT’s claims based on “the same rational” that it had granted St. Labre’s motions. NCT appeals. 8 STANDARD OF REVIEW ¶21 We review for correctness a district court’s grant for judgment on the pleadings. Ritter v. Bill Barrett Corp., 2009 MT 210, ¶ 10, 351 Mont. 278, 210 P.3d 688. We review de novo a district court’s grant of summary judgment. Dubiel v. Mont. Dept. of Transp., 2012 MT 35, ¶ 10, 364 Mont. 175, 272 P.3d 66. Summary judgment represents an extreme remedy that should be granted only when no material factual controversy exists. Mont. Metal Bldgs., Inc. v. Shapiro, 283 Mont. 471, 474, 942 P.2d 694, 696 (1997). District courts need consider only admissible evidence when determining whether to grant a motion for summary judgment. Hiebert v. Cascade County, 2002 MT 233, ¶ 30-31, 311 Mont. 471, 56 P.3d 848. We review for correctness a district court’s legal determinations. Conner v. City of Dillon, 2012 MT 21, ¶ 6, 364 Mont. 8, 270 P.3d 75. DISCUSSION ¶22 Whether the District Court properly granted summary judgment to St. Labre on NCT’s claims of unjust enrichment, constructive trust, and forensic accounting? ¶23 NCT asked the District Court to place the funds raised by St. Labre over the past half- century in an “Equitable Trust,” to allow a “proper redistribution in Equity.” NCT further alleged that St. Labre’s retention of millions of dollars without paying an equitable share to NCT “constitutes an unjust enrichment.” In denying NCT’s claim, the District Court focused on NCT’s failure to establish that St. Labre had “done something wrong or taken advantage of the Tribe in some way”or that St. Labre had “retained a benefit to the loss of the Tribe.” 9 ¶24 The court specifically noted that “[NCT] has not presented any evidence of how it was damaged or sustained any loss because of St. Labre’s references to the Northern Cheyenne [r]eservation or its condition in St. Labre’s fundraising materials.” The Court also stated that NCT “must show some element of misconduct or fault on the part of the defendant or that the defendant somehow took advantage of the [NCT].” St. Labre similarly argues on appeal that NCT failed to present any evidence that points to “any wrongdoing”by St. Labre. Unjust Enrichment Post-2002 ¶25 The District Court relied upon Ragland v. Sheehan, 256 Mont. 322, 327, 846 P.2d 1000, 1004 (1993), for the proposition that NCT needed to “show some element of misconduct or fault” on the part of St. Labre in order to establish a claim for unjust enrichment. This Court consistently has required some bad act or misconduct on the part of the defendant to support a claim for unjust enrichment that arose from an alleged implied contract. Ragland, 256 Mont. at 327, 846 P.2d at 1004; Randolph V. Peterson, Inc. v. J.R. Simplot Co., 239 Mont. 1, 8, 778 P.2d 879, 883-884 (1989); Brown v. Thorton, 150 Mont. 150, 156, 432 P.2d 386, 391 (1967); see also Est. of Pruyn v. Axmen Propane, Inc., 2009 MT 448, ¶ 64, 354 Mont. 208, 223 P.3d 845; Hinebauch v. McRae, 2011 MT 270, ¶ 29, 362 Mont. 358, 264 P.3d 1098. Ragland discussed unjust enrichment in the context of an alleged implied contract that sprang from the plaintiff’s decision to change his legal position in reliance on an oral assurance from the defendant that the defendant intended to proceed with the purchase of an interest in a hydroelectric project. Ragland, 256 Mont. at 326-327, 846 P.2d at 1003-1004. Ragland cited Peterson to the same effect. 10 ¶26 Peterson never actually analyzed, however, whether the defendant had engaged in misconduct or had taken advantage of the plaintiff due to Randolph V. Peterson, Inc.’s (RVP) (failure to establish that it deserved any commission from the sale of a mining shovel. The Court instead rejected contract and unjust enrichment claims based on the fact that the buyer had contacted the seller “fully three months before” the buyer was contacted by RVP. Peterson, 239 Mont. at 8, 778 P.2d at 884. RVP further conceded that the seller “probably would have been better off financially to have sold the shovel through RVP.” Peterson, 239 Mont. at 9, 778 P.2d at 884. ¶27 Brown, in turn, involved a lapsed construction lien on property that resulted in the mortgagee obtaining clear title. Brown, 150 Mont. at 156-157, 432 P.2d at 390. The Court determined that the lienholder had to show “some element of misconduct or fault” by the mortgagee, or that the lienholder “was in some way taken advantage of.” Brown, 150 Mont. at 156, 432 P.2d at 390 (citing Butler v. Peters, 62 Mont. 381, 205 P. 247 (1922)). The Court declined to blame the mortgagee for the fact that Brown had allowed his construction lien to lapse. Brown, 150 Mont. at 156, 432 P.2d at 390. ¶28 A party in Butler sought to attach the property of a corporate director based upon the corporation’s failure to file its annual report. The Court refused to allow the attachment in light of the fact that “the complaint herein does not state a cause of action upon a contract, express or implied, for the direct payment of money” and thus the attachment statutes did not apply. Butler, 62 Mont. at 387, 205 P. at 249. Butler makes no mention of any requirement of misconduct or fault. In fact, Butler never directly applies the concept of unjust enrichment. 11 ¶29 Like all of these other cases, Butler involves an alleged implied contract. Here NCT’s claim for unjust enrichment arises from the alleged imposition of a constructive trust as opposed to an alleged implied contract. This Court has dispensed with the requirement that the plaintiff must establish that the defendant has engaged in some bad act or misconduct in order to prove a claim of unjust enrichment in the context of an alleged constructive trust. In re Est. of McDermott, 2002 MT 164, ¶¶ 25-26, 310 Mont. 435, 51 P.3d 486, clarified that Montana law no longer requires some wrongful act on the part of the defendant in order to establish a constructive trust. ¶30 A constructive trust instead arises when a person holding title to property “is subject to an equitable duty to convey it to another on the ground that the person holding title would be unjustly enriched if he were permitted to retain it.” McDermott, ¶ 25 (quoting Section 72- 33-219, MCA). Title 72, Chapter 33 broadly defines property to include “anything that may be the subject of ownership.” Section 72-33-108(3), MCA. Section 72-33-219, MCA, makes no mention of a requirement of wrongdoing by the defendant in order to impose a constructive trust. The legislature’s enactment of the Trust Code in 1989 eliminated the requirement that a showing of fraud or other wrongful acts constitutes a “prerequisite to imposing a constructive trust.” McDermott, ¶ 25. ¶31 The Court in McDermott faced a claim for unjust enrichment that arose from a 1973 transaction that predated the legislature’s 1989 adoption of the Trust Code. The legislature addressed these situations when it enacted Section 72-33-102(1), MCA. The statute expressly provides that the trust code applies to all trusts “regardless of when they were created.” McDermott, ¶ 26. The Court affirmed the imposition of a constructive trust in 12 2001 on the proceeds from the sale of the real property that had been sold in 1972. McDermott, ¶ 28. ¶32 This Court previously recognized the broad discretion afforded by the principles of equity to impose a constructive trust. Eckart v. Hubbard, 184 Mont. 320, 325, 602 P.2d 988, 991 (1979), affirmed that the principles of equity allowed a court simply to declare a constructive trust “shall be [declared] to exist. Nothing else is required.” The statutory trust scheme in effect in 1979 still required some sort of misconduct or wrongdoing on the part of the defendant in order to establish a constructive trust. Eckart, 184 Mont. at 326, 602 P.2d at 991. The Court nevertheless recognized that constructive trusts “occur where the parties have expressed no intent to create a trust.” Eckart, 184 Mont. at 326, 602 P.2d at 991. A court creates a constructive trust “to work an equitable result.” Eckart, 184 Mont. at 326, 602 P.2d at 991; see also Lawrence v. Clepper, 263 Mont. 45, 52-53, 865 P.2d 1150, 1155- 1156 (1993) (confirming that the 1989 adoption of the Trust Code provides for imposition of a constructive trust when equity requires it). ¶33 Other jurisdictions have evolved to this approach. The court in Simmonds v. Simmonds, 380 N.E.2d 189, 194 (N.Y. 1978), recognized that “unjust enrichment, however, does not require the performance of any wrongful act by the one enriched. Innocent parties may frequently be unjustly enriched” (citations omitted). Unjust enrichment, as a concept of restitution, simply requires that “a party hold property under such circumstances that in equity and good conscience he ought not to retain it.” Simmonds, 380 N.E.2d at 194 (citations and internal quotations omitted). A constructive trust serves to prevent unjust enrichment. Unjust enrichment, in the context of a constructive trust, “does not necessarily 13 implicate the performance of a wrongful act.” Counihan v. Allstate Ins. Co., 194 F.3d 357, 361 (2d Cir. 1999). ¶34 The Utah Supreme Court likewise has clarified that a party who asserts a claim of unjust enrichment need not establish any wrongful act. Rawlings v. Rawlings, 240 P.3d 754 (Utah 2010). Siblings argued in Rawlings that their older brother had been unjustly enriched by accepting their contributions to a family farm. The father had deeded the property to the older brother in what the siblings suggested was an attempt to create a constructive trust. The father had been diagnosed with cancer and the siblings contended that owning the property had made him ineligible for welfare assistance. The siblings alleged that the father had placed the property in their older brother’s name so that the older brother could act as trustee for the property for the benefit of the family. Rawlings, ¶ 1. ¶35 The trial court found that the older brother for decades had represented to his siblings that the farm property was to be used to support their mother. The siblings contributed to the upkeep and maintenance of the farm property because they believed the older brother’s representations. Rawlings, ¶ 10. The Utah Supreme Court approved the imposition of a constructive trust to avoid unjust enrichment to the older brother. The court reaffirmed its position that unjust enrichment “will support imposition of a constructive trust, even absent wrongful conduct.” Rawlings, ¶ 47, fn. 62; see also State ex rel. Palmer v. Unisys Corp., 637 N.W.2d 142, 150 (Iowa 2001) (determining that unjust enrichment supports restitution “with or without the existence of some underlying wrongful conduct”). ¶36 The court further explained that a claim for unjust enrichment requires proof of three elements: “(1) a benefit conferred on one person by another; (2) an appreciation or 14 knowledge by the conferee of the benefit; and (3) the acceptance or retention by the conferee of the benefit under such circumstances as to make it inequitable for the conferee to retain the benefit without payment of its value.” Rawlings, ¶ 29. The court emphasized that the concept of unjust enrichment plays an important role as a tool of equity: “unjust enrichment law developed to remedy injustice when other areas of the law could not,” and, therefore, “must remain a flexible and workable doctrine.” Rawlings, ¶ 29 (citations omitted). ¶37 NCT brings its claim for unjust enrichment in the context of an alleged constructive trust. The creation of a constructive trust “need not be limited to the person who obtained property by fraud or deception from another.” Lawrence, 263 Mont. at 53, 865 P.2d at 1156. Thus a party’s proof of unjust enrichment entitles it to restitution from the other party— regardless of any wrongdoing on the part of the unjustly enriched party. Lawrence, 263 Mont. at 53, 865 P.2d at 1156. ¶38 This approach conforms with the modern view that unjust enrichment serves as a unifying principle for a wide variety of equitable claims and that a court may order restitution to vindicate these types of equitable claims. Dan B. Dobbs, Dobbs Law of Remedies: Damages-Equity-Restitution vol. 1, § 4.1(3), 564 (Pract. Treatise Series, 2d ed., West 1993) [hereinafter Law of Remedies]. Under these circumstances, a court would measure restitution remedies “by the defendant’s gain.” Dobbs, Law of Remediesat§ 4.1(1), 555. The plaintiff, in the context of a constructive trust, need not necessarily have been deprived of something in order to recover—it is sufficient that the defendant gained something that it should not be allowed to retain. McDermott, ¶ 26; see also Restatement of Restitution § 1 com. e (1937) (where “a benefit has been received by the defendant but the 15 plaintiff has not suffered a corresponding loss or, in some cases any loss, but nevertheless the enrichment of the defendant would be unjust . . . the defendant may be under a duty to give the plaintiff the amount by which [the defendant] has been enriched”). ¶39 To summarize, the imposition of a constructive trust serves as a possible remedy to rectify the unjust enrichment of a party. The aggrieved party, in this instance, NCT, first must establish a claim of unjust enrichment in order for the court to consider the imposition of a constructive trust as a possible remedy for the unjust enrichment. We agree with the Utah court in Rawlings that NCT must establish the following elements to prove unjust enrichment: (1) a benefit conferred upon St. Labre by another, in this case by third-party donors moved by the plight of the NCT; (2) an appreciation or knowledge of the benefit by St. Labre; and (3) the acceptance or retention of the benefit by St. Labre under such circumstances that would make it inequitable for St. Labre to retain the benefit without payment of its value. Rawlings, ¶ 29; 66 Am. Jur. 2d Restitution and Implied Contracts§ 11. NCT, as the aggrieved party, would not need to establish any wrongdoing on the part of St. Labre. Lawrence, 263 Mont. at 53, 865 P.2d at 1156. Finally, a claim for unjust enrichment, of the type asserted by NCT, should be limited to situations in which no other remedy exists. Rawlings, ¶ 29. ¶40 The District Court improperly required NCT to establish evidence of bad acts or wrongdoing on the part of St. Labre as an element of its claim of unjust enrichment in the context of a constructive trust. See McDermott, ¶ 25. We reverse the District Court’s grant of summary judgment with respect to NCT’s claims for unjust enrichment based upon St. Labre’s fundraising efforts that took place after 2002. We remand this issue to the District 16 Court to allow NCT to develop its claim that St. Labre’s fundraising appeals, that referred to the Northern Cheyenne Reservation, or the condition of the tribal people living there, require the imposition of a constructive trust on these funds raised from third-party donors for the benefit of NCT to avoid unjust enrichment to St. Labre. The District Court further must determine whether NCT has a right to possession of these funds, or some portion of these funds, for itself or on behalf of the individual tribal members. NCT must support its claims for unjust enrichment and imposition of a constructive trust with admissible evidence that comports with the requirements of the law. See Hiebert, ¶¶ 30-32. Unjust Enrichment Pre-2002 ¶41 The District Court determined that the three-year statute of limitations barred NCT’s unjust enrichment claims related to St. Labre’s fundraising that had taken place before 2002. Section 27-2-202(3), MCA, provides for a three-year limitations period for the commencement of an action upon an obligation or liability, other than a contract, account, or promise, not founded upon an instrument in writing. The period of limitations for a constructive trust or unjust enrichment claim begins when the claim accrues. Section 27-2- 102(2), MCA. ¶42 The District Court reasoned that a constructive trust would have been created by law when St. Labre began “reaping enormous monies marketing the [NCT’s] plight and needs.” The court concluded that any constructive trust would have been created by law in 1952 when St. Labre started its direct mail campaign. Accordingly, application of the three-year statute of limitations would have run on NCT’s unjust enrichment and constructive trust claims in 1955. NCT filed this action on March 11, 2005. The District Court granted 17 summary judgment on NCT’s unjust enrichment claims that originated before March 11, 2002. ¶43 The District Court correctly determined that the statute of limitations generally begins to run as to a constructive trust “at the moment the law creates the trust.” Opp v. Boggs, 121 Mont. 131, 139, 193 P.2d 379, 384 (1948). An exception to this general rules exists, however, where “there is a relationship of trust and confidence” and the beneficiary of the constructive trust “has no reason to believe that the constructive trustee is holding the property adversely.” Opp, 121 Mont. at 139, 193 P.2d at 384. The statute of limitations begins to run on claims of constructive trust and unjust enrichment under the circumstances of this “relationship of trust and confidence” only when “the beneficiary has received notice of the assertion of an adverse interest.” Opp, 121 Mont. at 139, 193 P.2d at 384. ¶44 No express trust exists here. The existence of any trust alleged by NCT must arise, therefore, in the context of a constructive trust. Constructive trusts may “occur where the parties have expressed no intent to create a trust.” Eckart, 184 Mont. at 326, 602 P.2d at 991. A constructive trust simply serves “to work an equitable result.” Eckart, 184 Mont. at 326, 602 P.2d at 991. NCT alleges first that St. Labre’s fundraising efforts grounded on the plight and need of the NCT have resulted in the unjust enrichment of St. Labre that requires the imposition of a constructive trust. NCT further alleges that the circumstances that give rise to the imposition of a constructive trust demonstrate a relationship of trust and confidence between NCT and St. Labre. ¶45 The District Court determined that any unjust enrichment claim by NCT accrued when St. Labre began fundraising in 1952. St. Labre would not necessarily be unjustly 18 enriched simply by the fact that it raised money through its direct mail fundraising efforts that marketed the plight and needs of the Northern Cheyenne. An unjust enrichment claim in the context of a constructive trust created through the existence of a “relationship of trust and confidence” accrues only when an entity in a position of trust acts adversely to the interest of the beneficiary and “the beneficiary has received notice of the assertion of an adverse interest.” Opp, 121 Mont. at 139, 193 P.2d at 384; see § 27-2-102(1)(a), MCA. ¶46 NCT argues that it did not receive notice of St. Labre’s adverse interest until St. Labre stopped disbursements entirely to NCT when negotiations broke down with St. Labre in 2005. St. Labre argues that it informed NCT repeatedly, since as early as 1984, that it felt no obligation, legal or other, to disburse funds raised through its fundraising efforts to NCT. The existence of conflicting evidence as to when a cause of action accrued precludes summary judgment based on the statute of limitations. Hill v. Squibb & Sons, E. R., 181 Mont. 199, 212, 592 P.2d 1383, 1390-1391 (1979). ¶47 The District Court concluded that NCT had been aware of St. Labre’s fundraising efforts since at least 1952 when St. Labre began “reaping enormous monies marketing [NCT’s] plight and needs.” The District Court further determined that NCT has “known about St. Labre’s fundraising programs and has known that St. Labre has not given all of the proceeds to the Tribe, nor ever intended to give all the proceeds to the Tribe.” The court deemed NCT’s knowledge of St. Labre’s fundraising efforts and St. Labre’s intention of not giving all of the proceeds of these fundraising efforts to NCT sufficient to trigger the launch of the three-year statute of limitations. 19 ¶48 The District Court never addressed directly whether NCT actually received notice of “the assertion of an adverse interest” by St. Labre. NCT’s mere knowledge of St. Labre’s fundraising efforts would not necessarily trigger the statute of limitations in the context of a constructive trust. NCT’s mere knowledge that St. Labre never intended to give “all of the proceeds” to NCT likewise does not necessarily trigger the statute of limitations in the context of a constructive trust. ¶49 The District Court cited to various documents that appear to evidence knowledge on the part of NCT of disputes with St. Labre regarding the purpose and ownership of the funds raised by St. Labre. For example, the court cited a 1983 memorandum of NCT’s St. Labre Mission Task Force that raised “questions as to whether or not [St. Labre] is helping the Northern Cheyenne to the fullest extent that it is capable.” The court also cited a 1997 letter to NCT’s Tribal Council President that raised concerns with St. Labre’s apparent failure to disclose “[f]inances, assets, investments, audits, etc.” Another 1997 statement from the NCT Tribal President to St. Labre questioned whether NCT could continue to allow St. Labre “to solicit monetary contributions on our behalf while we have little or no input.” Finally, the court quoted from a 1999 letter from NCT’s Tribal President to St. Labre that threatened legal action if St. Labre rebuffed NCT’s request for “a meaningful dialogue” to address the appropriate distribution of the “vast sums” that St. Labre had raised “largely through the use of the name, identity and symbols of the Tribe, as well as the persona of individual members of the Tribe.” ¶50 NCT cites to portions of the record that contain various examples of efforts or statements by St. Labre that could be construed as evidencing cooperation and good faith. A 20 2000 letter from the executive director of St. Labre to NCT explains a recent $70,000 grant from St. Labre to NCT. A 2000 response from the executive director of St. Labre to NCT’s St. Labre Mission Task Force set forth St. Labre’s recent efforts to assist NCT, including $2.7 million from the Northern Cheyenne Business Development Endowment Fund, a joint endeavor of St. Labre and NCT. The letter also cites St. Labre’s transfer of the Northern Cheyenne Pine Company to NCT for $1. The transaction apparently had a book value in excess of $8 million. The letter goes on to discuss other areas of potential cooperation before concluding with a warning that “in the spirit of honesty and good faith, there are some expectations of the Task Force that St. Labre will not agree to.” ¶51 These documents raise the specter of two competing narratives: an acrimonious history marked by discord, recriminations, and threats, or a history of mutual give and take that reflects two competing, yet cooperative, visions of the role of St. Labre’s fundraising efforts and the appropriate distribution of these funds. In light of the fact that District Court did not evaluate the accrual date of NCT’s unjust enrichment claim under the standards that we discuss here, we deem it appropriate to remand this issue to allow the District Court to analyze in the first instance whether any genuine issues of material fact exist as to when NCT became aware of the assertion of an adverse interest in the alleged constructive trust, by St. Labre, the putative constructive trustee. Forensic Accounting ¶52 NCT also argues that “Defendants” should be ordered to “open all books of accounting” regarding anything of value that the Diocese and St. Labre have acquired over this past half-century through the direct marketing enterprise or investment proceeds thereof. 21 The District Court cited NCT’s failure to provide any Montana authority to support its claim that forensic accounting constitutes a valid cause of action. NCT argues that forensic accounting has survived as a viable cause of action in Montana since at least 1910. ¶53 NCT points to the Court’s decision in Alywin v. Morley, 41 Mont. 191, 108 P. 778 (1910). A legitimate need for an accounting cause of action may have existed in 1910. The Court’s adoption of the Montana Rules of Civil Procedure, including those rules that pertain to discovery, largely has eliminated the need for a stand-alone cause of action that seeks a forensic accounting. Dobbs, Law of Remedies at § 4.3(5), 610. The Montana Rules of Civil Procedure provide the appropriate tools for NCT to obtain pertinent financial information from the Diocese and St. Labre. We agree with the District Court that NCT could obtain all of the information that it needs to prove its unjust enrichment claim without a separate claim of forensic accounting. ¶54 Whether the District Court properly granted summary judgment to St. Labre on NCT’s claims of breach of contract, negligent misrepresentation, fraud, and wrongful conversion? ¶55 The District Court granted summary judgment on NCT’s express and implied contract claims due to NCT’s failure, under Hiebert, ¶ 31, to submit admissible evidence based on personal knowledge to defeat a claim for summary judgment. NCT produced exhibits without supporting affidavits or indications of personal knowledge. NCT also submitted interrogatories that lacked signature pages. NCT further failed to paginate many of its exhibits and thereby allow for pinpoint citations. NCT has failed to persuade us that the District Court improperly granted summary judgment based on NCT’s failure to support its 22 express and implied contract claims through admissible evidence based on personal knowledge. Hiebert, ¶¶ 30-32. ¶56 The District Court determined that NCT had attempted to support its negligent misrepresentation, fraud, and wrongful conversion claims through “unsupported, conclusory statements.” For the same reason as its contract related claims, NCT has failed to persuade us that the District Court improperly granted summary judgment on NCT’s claims of breach of contract, negligent misrepresentation, fraud, and wrongful conversion. Hiebert, ¶¶ 30-32. ¶57 Whether the District Court properly granted judgment on the pleadings to St. Labre on NCT’s cultural genocide and constitutional claims? ¶58 The District Court rejected NCT’s tort of cultural genocide due to NCT’s failure to cite any authority that would establish or clarify the elements of the claim. The court also rejected NCT’s constitutional claims on the basis that Article II, Sections 3, 4, and 10 protect only against state action. The court further recognized that adequate non-constitutional remedies exist to provide relief to NCT on its Section 3 claim. ¶59 We have not yet addressed a tort claim based directly upon an alleged violation of Article II, Section 10 of the Montana Constitution. We generally avoid addressing constitutional issues if a defendant’s alleged harm can be remedied through a non- constitutional basis. Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, ¶ 62, 338 Mont. 259, 165 P.3d 1079. NCT has alleged potentially viable claims of unjust enrichment and constructive trust that could serve as the basis for relief for St. Labre’s alleged failure to distribute equitable shares of funds to NCT. An unjust enrichment claim can address 23 sufficiently the principal harm alleged—whether NCT has been deprived of funds to which it is entitled. We decline to address the District Court’s dismissal of NCT’s constitutional claims made under these circumstances. Sunburst, ¶ 62. CONCLUSION ¶60 We reverse and remand the District Court’s decision to grant summary judgment to the Diocese and St. Labre on NCT’s claim for unjust enrichment and the imposition of a constructive trust that may arise from St. Labre’s fundraising activities after 2002. The court improperly determined that NCT had to establish evidence of loss by NCT or wrongdoing by the Diocese and St. Labre in order to make out a claim for unjust enrichment. We also reverse and remand the District Court’s decision to grant summary judgment to the Diocese and St. Labre regarding St. Labre’s fundraising activities before 2002. The District Court should evaluate in the first instance the accrual date of NCT’s unjust enrichment claim pursuant to the standards set forth herein. The District Court can address on remand those - defenses raised by the Diocese and St. Labre not resolved through the summary judgment proceedings. We affirm the District Court’s grant of summary judgment on all of NCT’s remaining claims. /S/ Brian Morris We Concur: /S/ Mike McGrath /S/ Patricia O. Cotter /S/ Beth Baker /S/ Jim Rice 24 | February 5, 2013 |
65820158-10f2-40fe-a4a8-8ce4948d76cf | MARRIAGE OF REESE v REESE | N/A | 14872 | Montana | Montana Supreme Court | No. 14872 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN RE THE MARRIAGE OF KENNETH REESE, Petitioner and Respondent, VS . MARTHA LOUISE REESE, Respondent and Appellant. Appeal from: District Court of the Fourth Judicial District, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record:. For Appellant: Datsopoulos and MacDonald, Missoula, Montana For Respondent : Garnaas, Hall, Riley & Pinsoneault, Missoula, Montana Submitted on briefs: November 14, 1979 Decided : I)EC 3 1 1973 Filed: Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. Martha Louise Reese appeals from a property division and maintenance award entered in a marital dissolution action in the Fourth Judicial District, Missoula County. Martha and Kenneth Reese were married on February 10, 1966 and resided together until their separation in October 1977. Kenneth petitioned for dissolution in June 1978. Martha responded and agreed to the dissolution in August 1978. She prayed for $600 per month maintenance. Both parties sought an equitable property division. At the time of the marriage of the parties in 1966, Kenneth was 44 years of age and had been an employee of the Missoula City Police Department for a period of 16 years. Martha was 49 years of age and was engaged in a contract cleaning business with the Hoerner-Waldorf Company, located in Missoula. During the marriage, Martha received title to 136.95 acres of land situated in Powell County, Montana, as an inheritance from her mother. During the course of the marriage the parties paid the taxes on the land from joint funds. Following the separation of the parties, Martha divested herself of the land by deeding it to her children in joint tenancy. Subsequently one of the children died which resulted in that child's interest in the property reverting to Martha who in turn divested herself of the property by deeding it to her remaining children. Kenneth did not claim ownership of any portion of this land but asserted that it should be included as an asset in determining the claim of Martha to maintenance. During the course of the marriage, the parties accumulated debts and obligations which totaled $15,000 at the time the parties separated. The total assets of the parties consisted of a trailer house valued at $3,200, a 1972 Jeep pickup worth $2,000, a 21 foot 1978 travel trailer which cost $8,000, a 1978 American Motors automobile which cost $5,000 and a motorcycle with a value of $1,400. The assets were mortgaged for a total amount of $15,000. Martha presently has independent income of $425 per month resulting from a payment to her by the Social Security Administration of $135.90 per month and income from employment in the cleaning business of $290 per month. Martha divested herself of ownership of the cleaning business by transferring it to her son for whom she now works. The maximum amount which Martha can earn without incurring a reduction in Social Security payments is the sum of $290 per month. Kenneth receives income of $545 per month as a disability pension from the City of Missoula. Since September 24, 1970 and at the time of trial he was employed as a security officer by Hoerner-Waldorf and received $6.90 per hour. In addition, Kenneth will become entitled to a pension from Hoerner- Waldorf of $180 per month after completion of ten years of service, and upon retirement, in lieu of the wages mentioned above. Both parties testified that they suffered from physical disabilities. Martha testified she suffers from an arthritic condition and Kenneth testified that physical disabilities resulted in his being retired from the Missoula Police Depart- ment. Dissolution was granted in 1979 and Kenneth was ordered to pay $100 per month maintenance. The property was divided as follows: Martha was awarded the trailer house, furnishings, and the car which was in her possession. Kenneth received the rest of the property and assumed all of the debts incurred before separation. It is from this award that Martha appeals alleging the following two issues as error: - 3- (1) The findings and conclusions of the District Court are inadequate as a matter of law. (2) The District Court erred in awarding only $100 .per month maintenance to Martha. Martha contends that the District Court erred in failing to include in its findings and conclusions, an express deter- mination of the net worth of the parties at the time of dissolution of their marriage. In a recent decision, this Court stated: "Ordinarily the trial court must first determine the net worth of the parties at the time of their divorce before a proper distribution of marital property can be made. Vivian v Vivian (1978), Mont . , 583 P.2d 1072, 35 St.Rep. 1359. But where, as here, the only issue is the disposition of the family home and furnishings, the net value thereof was not an issue. Under such circumstances, the failure of the District Court to find the net worth of the marital property is of no consequence." Schwartz v. ~chwartz (1979) , Mont. I P.2d , 36 St.Rep. 1980, 1981. Similarly, here, net value of the family property is not an issue. Furthermore, in the presence case, "[tlhere is no evidence in the record that the trial court did not establish the net worth of the marital estate prior to granting maintenance to [the] petitioner." Maberry v. Maberry (19791, Mont. , 598 P.2d 1115, 1116, 36 St.Rep. 1511, 1513. Appellant additionally asserts that the facts do not support the findings of the District Court. "Findings of fact shall not be set aside unless clearly erroneous.. . ." Rule 52(a), M0nt.R.Civ.P. The substance of this issue is whether the lower court abused its discretion in the distribution of the marital property and in making the award of maintenance. The judgment of the District Court will not be altered unless a clear abuse of discretion is shown. In Re Marriage of Vashler (1979) , Mont. , 600 P.2d 208, 210, 36 St.Rep. 1726, 1728; In Re Marriage of Metcalf (19791, Mont . I 598 P.2d 1140, 1142, 36 St.Rep. 1559, 1562; In Re Marriage of Aanenson (1979) , Mont. , 598 P.2d 1120, 1123, 36 St.Rep. 1525, 1528; In Re Marriage of Kramer (1978), Mont . , 580 P.2d 439, 442, 35 St.Rep. 700, 704; Zell v. Zell (1977), Mont . , 570 P.2d 33, 35, 34 St.Rep. 1070, 1074. The District Court in making its property and main- tenance determinations must consider the factors enumerated in sections 40-4-202 and 40-4-203, MCA. The record here indicates that the District Court heard testimony and reviewed other evidence concerning the relevant factors set out in the statutes. We conclude that the District Court did not err in awarding maintenance of $100 per month to the appellant. The decision of the District Court is affirmed. Justice We Concur: w --__------_----_--_------------ Justices | December 31, 1979 |
099ed2f3-64ba-4002-ae50-0ff1bb2e9dc1 | In re Marriage of Klatt | 2013 MT 17 | DA 12-0205 | Montana | Montana Supreme Court | DA 12-0205 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 17 IN RE THE MARRIAGE OF SHEILA KLATT, Petitioner and Appellee, and SHILOH W.B. KLATT, Respondent and Appellant. APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Madison, Cause No. DR 06-14 Honorable Loren Tucker, Presiding Judge COUNSEL OF RECORD: For Appellant: Shiloh W.B. Klatt, self-represented, Ennis, Montana For Appellee: Christopher J. Gillette; Law Office of Christopher J. Gillette; Bozeman, Montana Submitted on Briefs: November 28, 2012 Decided: January 29, 2013 Filed: __________________________________________ Clerk January 29 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Shiloh Klatt appeals the Fifth Judicial District Court’s order amending a prior parenting plan and granting to his former spouse, Sheila Klatt, primary custody of their three children. We affirm. ¶2 We address the following issues on appeal: ¶3 1. Did the District Court comply with § 40-4-219, MCA, when it amended the prior parenting plan? ¶4 2. Did the District Court err in determining the best interest of the Klatt children? PROCEDURAL AND FACTUAL BACKGROUND ¶5 Shiloh and Sheila Klatt were married in Gallatin County, Montana, in 1993. Between the years of 1998 and 2002, the Klatts had a daughter and two sons: C.J.K., T.S.K. and C.S.K., respectively. In June 2006, after Sheila filed a petition for dissolution of their marriage, the Klatts entered a Marital Dissolution Agreement and Parenting Plan (June 2006 Parenting Plan), which provided in part that “the parties shall share alternate two weeks of parenting with the minor children, with all the children being together whenever possible. The parties shall each enjoy five weeks of uninterrupted parenting a year to allow for vacation time with the minor children.” At that time, Sheila was a non-practicing licensed cosmetologist, who stayed at home full-time to care for the children. Shiloh worked as a self-employed certified public accountant (CPA) and 3 agreed to pay maintenance and child support to Sheila pursuant to the parenting plan. Following entry of the parenting plan, Shiloh often took the children on extended international trips during his parenting time. ¶6 On September 28, 2009, Sheila filed a motion to modify the June 2006 Parenting Plan. She stated that the Klatts had not followed the plan due to Shiloh’s business activities and personal trips, which caused a significant decrease in his visitation with the children. Particularly during tax season—January through April—when Shiloh’s professional activities increased, the children resided with Sheila on a full-time basis. Her motion alleged, “[t]he fact that the children are and have been spending substantially less time with their father than what is allowed in the existing parenting plan constitutes a substantial change of circumstances as contemplated by § 40-4-219[,] MCA.” Shiloh filed a response denying that his business and personal trips had decreased his parenting time. He alleged that Sheila remained underemployed and, as a result of her financial difficulties, the parties had agreed to increase Shiloh’s work during tax season so that he could provide additional support to the family. ¶7 After attending mediation in January 2010, the parties stipulated to hiring Christopher Hahn, Ph.D., as Guardian ad Litem and Parenting Plan Coordinator. They stipulated that Dr. Hahn would, among other things, “have some of the authority ordinarily reserved to the Court to make decisions clarifying, augmenting, implementing, adapting, and to a certain extent, interpreting and modifying the court-ordered parenting plan when the parents disagree.” They agreed that Dr. Hahn would “base all decisions on 4 the best interests of the children.” The District Court’s April 2, 2010 order appointed Dr. Hahn as Guardian ad Litem, directed him to prepare a report of his observations of the family by June 4, 2010, and stated that the court would “review the results” of the Klatts’ stipulation rather than mandate conformance to its terms. Dr. Hahn filed an Initial Report on June 4, 2010, stating that he had limited opportunity to observe the Klatts, particularly the interaction of the children with their father, and that he would file additional reports as he gathered information and spent more time with the family. ¶8 On October 25, 2010, Shiloh agreed to a temporary child residency arrangement, under which the Klatt children would reside with Sheila from September 1, 2010, through May 31, 2011, but would have varying weekend visitation with Shiloh. Beginning June 1, 2011, the children would continually alternate between three weeks with Shiloh and two weeks with Sheila until August 31, 2011, when the arrangement would expire. ¶9 On October 20, 2011, after observing the Klatt family for about one and one-half years, Dr. Hahn filed a full report. He recommended that “the parenting plan be amended to reflect the changes that were made by stipulation for the 2010/2011 school year.” Dr. Hahn now had observed closely the interactions between the children and each parent, had on numerous occasions communicated individually with the Klatt children and each parent, and also had met once with the whole family. Dr. Hahn’s report revealed that the Klatt children “strongly preferred” residing with their mother and emphasized, “[i]t is remarkable how strong, constant, and unified the opinions of the children have been throughout the duration of my term as parenting plan coordinator. 5 They have never wavered in their basic wishes.” For that reason, Dr. Hahn suggested that the “wishes of the child,” under § 40-4-212(1)(b), MCA, would be a “particularly relevant” factor in determining the best interest of the Klatt children. According to Dr. Hahn, the children expressed frustration with Shiloh’s failure to provide for their basic needs and described experiences while in their father’s care that caused them apprehension, fear, and anger—including an incident when Shiloh became angry while driving on the interstate highway and slammed on the brakes so hard that his vehicle, in which the children were passengers, spun 180 degrees in the roadway. Dr. Hahn concluded in summary, “I believe that the children would want more time with their Dad if their basic parenting needs are better met by him, but at the present time and for the entire period of time that I have been involved with this case, the children are highly frustrated and sometimes angry about the time they have to spend with their Dad.” ¶10 On December 16, 2011, Shiloh filed a motion to dismiss Dr. Hahn and rescind the contract appointing him as Guardian ad Litem. He requested that the District Court strike Dr. Hahn’s October 2011 report, as it was made after the court-ordered date of June 4, 2010, and was based on “factual misstatements.” Sheila filed a response on December 30, 2011, reiterating her reasons for requesting an amendment to the parenting plan and suggesting that the District Court adopt Dr. Hahn’s recommendations. On January 9, 2012, Shiloh filed a petition to hold Sheila in contempt under § 3-1-501(e), MCA, for failing to follow the court’s orders and the June 2006 Parenting Plan. He alleged that Sheila had prevented, obstructed, or frustrated his contact with the children, 6 in particular his communication with their thirteen-year-old daughter, C.J.K. His supporting affidavit stated that Sheila had blocked calls from Shiloh to C.J.K., would not allow C.J.K. to speak with Shiloh alone, and, in January 2012, supported C.J.K.’s refusal to stay with Shiloh, in disregard of the June 2006 Parenting Plan. ¶11 The District Court held a hearing on February 13, 2012, in which it heard testimony from Sheila, Shiloh, Dr. Hahn and other witnesses, and questioned the parties. At the conclusion of the hearing, the court discussed on the record the § 40-4-212, MCA, factors used to determine the best interest of the child. The court found the evidence did not support Shiloh’s allegation that Sheila had obstructed his communication and contact with the children and stated that “respect” had become an issue central to the family. The court stated that mutual anger existed between the children and their father, which could adversely affect the children, and noted the incident where Shiloh “slammed on the [brakes], the vehicle spun around and scared the kids badly.” The court also stated that credible evidence indicated that “at least from time to time, if not constantly, the children are frightened.” Shiloh had conceded during the hearing that he had on occasion over-disciplined the children. The court agreed with Dr. Hahn that the wishes of the children and the § 40-4-212, MCA, factors, including continuity and stability of care, were “cogent here” and expressed concern that if the historical divergence from the parenting plan continued, the children would experience a lack of structure and consistency. On February 29, 2012, the District Court ordered a new parenting plan 7 providing that the children primarily would reside with Sheila during the school year and granting Shiloh visitation on one weekday each week and every other weekend. STANDARD OF REVIEW ¶12 We review for clear error the findings of fact underlying a district court’s decision to modify a parenting plan. In re Marriage of Banka, 2009 MT 33, ¶ 9, 349 Mont. 193, 201 P.3d 830 (citing Jacobsen v. Thomas, 2006 MT 212, ¶ 13, 333 Mont. 323, 142 P.3d 859). If its findings are not clearly erroneous, “we will reverse the district court’s decision only where an abuse of discretion is clearly demonstrated.” Jacobsen, ¶ 13 (citing In re Marriage of Oehlke, 2002 MT 79, ¶ 9, 309 Mont. 254, 46 P.3d 49). We review de novo whether a court’s action conforms to statutory requirements. Jacobsen, ¶ 13. ¶13 We have repeated on numerous occasions that the trial court’s decision is to be accorded great deference because it “is in a better position than this Court to resolve child custody issues.” In re Marriage of Wilson, 2009 MT 203, ¶ 15, 351 Mont. 204, 210 P.3d 170 (quoting In re Marriage of McKenna, 2000 MT 58, ¶ 17, 299 Mont. 13, 996 P.2d 386); see also Pankratz v. Teske, 2002 MT 112, ¶ 12, 309 Mont. 499, 48 P.3d 30. DISCUSSION ¶14 1. Did the District Court comply with § 40-4-219, MCA, when it amended the prior parenting plan? 8 ¶15 Shiloh contends that the District Court erred by failing to make a finding of changed circumstances as required by § 40-4-219, MCA. Section 40-4-219(1), MCA, provides in relevant part as follows: The court may in its discretion amend a prior parenting plan if it finds, upon the basis of facts that have arisen since the prior plan or that were unknown to the court at the time of entry of the prior plan, that a change has occurred in the circumstances of the child and that the amendment is necessary to serve the best interest of the child. ¶16 The District Court did not expressly discuss changed circumstances in its order, but, on the record, acknowledged the § 40-4-219, MCA, requirements and noted numerous facts that had arisen since the parties entered the June 2006 Parenting Plan. Our precedents provide that, while an explicit finding is “preferable,” a district court may satisfy the requirement by “clearly stat[ing] the component parts of a change in circumstances finding[.]” In re Marriage of Burk, 2002 MT 173, ¶ 11, 310 Mont. 498, 51 P.3d 1149. We have reversed the district court’s custody modification order when there is “no explicit indication that the court found, based on new or previously unknown facts, a change in circumstances[.]” Jacobsen, ¶¶ 18, 21 (remanding for entry of factual findings where the district court entered a one sentence order of modification and provided no account of the “evidence relative to the statutory requirements necessary to modify an existing parenting plan”); see also Banka, ¶¶ 8, 11 (reversing because the district court modified the parenting plan without holding a hearing or entering written findings and the Court was “unable to ascertain what essential and determining facts the District Court relied upon”); see also In re Marriage of Whyte, 2012 MT 45, ¶¶ 20, 24, 9 364 Mont. 219, 272 P.3d 102 (reversing decision to modify where the district court did not provide account of facts arising since prior parenting plan, and prior plan was “faithfully followed over many years and work[ed] well.”). ¶17 In contrast, a change of circumstances has been established where, as here, the evidence showed facts that had arisen since the prior parenting plan—including the parties’ failure to follow the plan. See e.g. Burk, ¶ 10 (father had moved the children to his parents’ home when parenting plan ordered that children would reside with him at his residence); In re Marriage of Robison, 2002 MT 207, ¶ 34, 311 Mont. 246, 53 P.3d 1279 (the parties’ actual arrangement differed from the parenting plan). Sheila points out that the parties sought the assistance of Dr. Hahn and entered a temporary parenting schedule because they agreed they had substantially deviated from the June 2006 Parenting Plan. The Klatts’ stipulation confirms that Sheila and Shiloh expressly contemplated “modification of a court-ordered parenting plan through the informal process described in this Order.” While the stipulation did not carry the force of a court order, it reflects the parties’ agreement that the June 2006 Parenting Plan could be subject to modification. ¶18 Sheila also notes that the District Court expressed concern during the hearing, based in part on Dr. Hahn’s commentary, that, during his parenting time, Shiloh had tended to over-discipline the children in a fashion that was “potentially abusive.” Shiloh acknowledged that he had sometimes “lost control of my anger,” grabbed the children “by the back of the neck and I’ve grabbed them by the hairs of the back of their neck.” The District Court referred to these and other incidents when it concluded, “I understand 10 that the children are angry. It’s very apparent their father is angry, too, very angry.” Sheila testified that fear and a lack of mutual respect between Shiloh and the children had recently caused an increase in the children’s behavioral issues. This testimony supports the District Court’s decision that a change in circumstances required re-evaluating the best interest of the children. ¶19 Shiloh also argues that the District Court applied an incorrect legal standard when it amended the June 2006 Parenting Plan. He alleges that the court failed to make any findings of fact or conclusions of law relating to § 40-4-219, MCA, which governs amendment of the parenting plan, but instead relied on § 40-2-212, MCA, which lists the factors relevant to determining the “best interest of the child.” ¶20 Section 40-4-219, MCA, provides that: (1) . . . In determining the child’s best interest under this section, the court may, in addition to the criteria in 40-4-212, also consider whether: (a) the parents agree to the amendment; (b) the child has been integrated into the family of the petitioner with consent of the parents; (c) the child is 14 years of age or older and desires the amendment; (d) one parent has willfully and consistently: (i) refused to allow the child to have any contact with the other parent; or (ii) attempted to frustrate or deny contact with the child by the other parent; or (e) one parent has changed or intends to change the child’s residence in a manner that significantly affects the child’s contact with the other parent. 11 . . . (3) The court shall presume a parent is not acting in the child’s best interest if the parent does any of the acts specified in subsection (1)(d) . . . . Contrary to Shiloh’s assertion, the statutory language makes clear that, in deciding whether to modify a parenting plan, the court may rely on the factors listed in § 40-4-212, MCA, to determine the best interest of the child. ¶21 Shiloh argues that the District Court was required under § 40-4-219, MCA, to consider the allegations in his contempt petition and supporting affidavit that Sheila had denied him contact with C.J.K. He points out that Sheila conceded during the hearing that she had blocked Shiloh’s calls to C.J.K.’s phone and supported C.J.K.’s decision not to return to Shiloh’s custody as required by the June 2006 Parenting Plan. He contends that “[h]ad the court addressed § 40-4-219(3), it would have made a different conclusion in its determination of the best interests of the children[.]” ¶22 Section 40-4-219, MCA, provides the trial court broad discretion in evaluating which factors are relevant to the child’s best interest and how much weight to give each factor—it states the court “may” consider the listed criteria in addition to those provided in § 40-4-212, MCA. Moreover, our review of the record reveals that the District Court considered the allegations in Shiloh’s contempt petition and affidavit but found them unsupported by the evidence: Now, as I’ve said that there isn’t any evidence that Mother has maneuvered to try to place a wedge between Father and the children, I reiterate that; I don’t see that’s the case. 12 Sheila testified that she blocked Shiloh from contacting C.J.K.’s cell phone in response to “disrespectful” text messages he sent to C.J.K., including “You have no guts, you disgust me,” and, “You make me sick.” She stated that she also let Shiloh know at that time that he could contact the home to talk with the children. The District Court’s discussion on the record indicates that it considered the § 40-4-219, MCA, factors, including subsection (3), and decided that they were not pertinent. We defer to its evaluation of the facts. “It is the function of the district court”—not the appellate court—“to resolve conflicts regarding evidence.” Pankratz, ¶ 12. “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). The court did not clearly err in determining that § 40-4-219(3), MCA, did not apply in this case and did not abuse its discretion in relying on the factors listed in § 40-4-212, MCA, when deciding the best interest of the children. ¶23 2. Did the District Court err in determining the best interest of the Klatt children? ¶24 Shiloh argues that the District Court erred in determining the best interest of the children because it failed to rule on his petition for contempt. He also reiterates his earlier argument that the court did not “adequately consider § 40-4-219(3)” and did not deliver sufficient findings of fact and conclusions of law. 13 ¶25 Shiloh contends that the June 2006 Parenting Plan should have been enforced and that the court was obligated to hold Sheila in contempt for violating its terms. We disagree because the District Court addressed Shiloh’s concerns during the hearing. Sheila’s motion to modify the June 2006 Parenting Plan was pending for nearly two and one-half years, during which time the parties participated in mediation, hired a Guardian ad Litem, and attempted to resolve the differences that had arisen since entry of the initial plan. There was substantial evidence to show that Sheila had not willfully disregarded the terms of the parenting plan and the District Court’s rulings make clear that it did not agree with Shiloh’s position. ¶26 It bears emphasis that the District Court made findings as to each of the following § 40-4-212, MCA, parenting factors: (a) the wishes of the child’s parent or parents; (b) the wishes of the child; (c) the interaction and interrelationship of the child with the child’s parent or parents and siblings and with any other person who significantly affects the child’s best interest; (d) the child’s adjustment to home, school, and community; . . . (h) continuity of and stability of care; The evidence supported the District Court’s findings that the children feared their father, were angered by him, felt frustrated by the lack of structure provided in his home, and desired unequivocally to be with their mother, even at times when they reported positive experiences with their father. The court was fully within its discretion when it concluded 14 that the wishes of the children, continuity of and stability of care, and other factors weighed in favor of modifying the parenting plan. ¶27 For the foregoing reasons, the judgment of the District Court is affirmed. /S/ Beth Baker We concur: /S/ Mike McGrath /S/ Patricia O. Cotter /S/ Michael E Wheat /S/ Brian Morris | January 29, 2013 |
1d3d494c-2ab1-4499-832f-e3d17daded4d | State v. Murry | 2013 MT 4N | DA 12-0326 | Montana | Montana Supreme Court | DA 12-0326 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 4N STATE OF MONTANA, Plaintiff and Appellee, v. SANDRA LEE MURRY, Defendant and Appellant. APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 11-56 Honorable James A. Haynes, 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; Jonathan M. Krauss, Assistant Attorney General, Helena, Montana William E. Fulbright, Ravalli County Attorney; Angela Wetzsteon, Deputy County Attorney, Hamilton, Montana Submitted on Briefs: December 19, 2012 Decided: January 8, 2013 Filed: __________________________________________ Clerk January 8 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 Sandra Lee Murry appeals her May 2012 conviction for felony DUI, challenging the District Court’s conclusion that her 1997 Washington State conviction properly was included as a predicate offense for purposes of enhancing her current charge to a felony pursuant to § 61-8-731, MCA. We affirm. ¶3 Murry was charged with DUI after a Hamilton City Police Officer stopped her on December 31, 2010, for driving with high beams illuminated and for having an inoperable passenger-side headlight. When the traffic stop developed into a DUI investigation, Murry consented to a preliminary breath test that showed she was under the influence of alcohol. Upon being charged with felony DUI, Murry sought to amend the information to a misdemeanor, which the District Court denied. Murry filed a motion to reconsider, which was denied, and then moved to set aside and reconsider the previous order, which the District Court also denied. Murry pleaded guilty and was sentenced to the custody of the Montana Department of Corrections for a period of thirteen months for placement in an appropriate treatment or correctional facility or program, followed by a five-year consecutive commitment to the Department, suspended with conditions. 3 ¶4 Murry agrees that she was convicted of DUI in Montana in May 2005 and February 2006, and that both of those offenses “count” toward determining whether the 2010 offense should be considered a felony. She claims, however, that there is insufficient evidence to show that her 1997 conviction in Washington State was for DUI rather than a “per se” conviction for operating a motor vehicle with an alcohol concentration in excess of the legal limit. Murry argues that, under Montana’s former sentencing scheme in which “per se” offenses were expunged after five years, the Washington conviction cannot be used to support an enhanced felony charge. Section 61-8-722(6) (1993). ¶5 The parties dispute whether the 1993 or 1997 version of Montana’s DUI sentencing statutes controls, since Murry’s Washington offense was committed in 1994 but, for unknown reasons, she was not convicted and sentenced until 1997. Murry argues that she is entitled to the application of Montana law in effect at the time her offense was committed, under which the “per se” offense should be expunged since she committed no additional offense within the next five years. Unlike the 1993 statutes, there was no BAC expungement statute in effect in 1997. The State therefore argues, citing State v. Brander, 280 Mont. 148, 155, 930 P.2d 31, 36 (1996), that the expungement provision does not apply because it was not in effect at the time the conviction was entered. ¶6 We conclude that it is unnecessary to resolve this conflict. Although whether a prior conviction may be used for sentence enhancement generally presents a question of law, a trial court’s findings of fact regarding the circumstances of the underlying conviction will be upheld unless they are clearly erroneous. State v. Hass, 2011 MT 296, 4 ¶ 13, 363 Mont. 8, 265 P.3d 1221. The District Court found, after considering evidence submitted by the parties on Murry’s motion to amend the information, that her 1997 Washington State conviction was for DUI, not for a “per se” offense based on her blood alcohol concentration. Murry argued that since Washington law provided for both DUI and “per se” violations under the same code section, the State of Montana had not proven that her 1997 conviction was for DUI and not a “per se” offense. Based on the evidence, however, including in part the Washington court’s judgment reflecting that Murry had “refused” a test of her breath or blood, the District Court concluded that Murry was convicted of DUI in the State of Washington in 1997, bringing her prior DUI convictions to three and supporting the felony charge. ¶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 District Court’s findings of fact are based on substantial evidence in the record and support its conclusion that Murry’s 1997 Washington conviction properly was used to support her felony DUI charge in this case. ¶8 Affirmed. /S/ Beth Baker We concur: /S/ Mike McGrath /S/ Michael E Wheat /S/ Patricia O. Cotter /S/ Jim Rice | January 8, 2013 |
3db75fc6-28dc-471b-a102-a053bc7fd95a | State v. Keech | 2013 MT 111N | DA 12-0635 | Montana | Montana Supreme Court | DA 12-0635 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 111N STATE OF MONTANA, Plaintiff and Appellee, v. ROGER KEECH, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 08-0173 Honorable Gregory R. Todd, Presiding Judge COUNSEL OF RECORD: For Appellant: Roger Keech, self-represented, Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman, Assistant Attorney General; Helena, Montana Scott Twito, Yellowstone County Attorney; Victoria Callender, Deputy County Attorney; Billings, 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 Defendant and Appellant Roger Keech (Keech) filed first a motion to clarify and amend judgment and later a motion to withdraw a guilty plea, both of which the District Court treated as a petition for postconviction relief (PCR) and denied as time-barred. We affirm. ¶3 In January 2003, Keech was sentenced in Lewis and Clark County for three felony convictions: deceptive practices—10 years, 6 suspended; burglary—20 years, 16 suspended; and accountability to forgery—10 years, 6 suspended (Cause No. DC 2002-181). While on probation for the Lewis and Clark County crimes Keech was charged with felony accountability to forgery in Yellowstone County (Cause No. DC 08-0173). Keech entered into a plea agreement whereby, in exchange for a guilty plea, the State would, among other things, recommend a sentence of 5 years to the Department of Corrections (DOC) which shall “run concurrently” to the sentence imposed in Lewis and Clark County (Cause No. DC 2002-181). In November 2008, Keech was sentenced in Yellowstone County as provided in the plea agreement. Judgment was issued on December 12, 2008, which Keech did not appeal. 3 ¶4 On March 12, 2009, pursuant to a petition to revoke suspended sentence in Cause No. DC 2002-181, filed in the fall of 2008, to which Keech admitted, Keech was sentenced to serve 4 years each for deceptive practices and accountability to forgery, and 16 years, with 11 suspended, for burglary. However, the judgment failed to specify whether the sentence was to run concurrently or consecutively with the Yellowstone County judgment. Keech did not appeal this judgment. ¶5 On February 23, 2010, Keech filed a motion to clarify and to amend the Yellowstone County judgment because the DOC was treating his two sentences as running consecutively rather than concurrently. The State did not respond and the court did not rule on the motion for more than two years. In the meantime, in October 2011, Keech filed a petition for writ of habeas corpus with this Court, again asserting that the DOC was misinterpreting his sentences. We denied the petition on the basis that when the Lewis and Clark County court “failed to specify that Keech’s sentences should run concurrently, they must run consecutively.” On June 13, 2012, Keech filed a motion to withdraw his guilty plea in the Yellowstone County case, asserting that he never would have agreed to plead guilty if he had known the sentences would run consecutively. ¶6 The District Court treated Keech’s motions as a petition for PCR and denied them as untimely. We review a district court’s denial of a petition for PCR 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 PCR must be filed within one (1) year of the date that the conviction becomes final. Section 46- 4 21-102, MCA. Furthermore, a motion to withdraw a guilty plea must also be filed within one (1) year of the date that the conviction becomes final. Section 46-16-105(2), MCA. The District Court denied Keech’s motions for relief as statutorily time-barred. ¶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 statute, which the District Court correctly interpreted. ¶8 Affirmed. /S/ MICHAEL E WHEAT We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON /S/ JIM RICE | April 23, 2013 |
b7ce2aac-6012-42f9-ad89-b9a296782df4 | Marriage of Perry | 2013 MT 6 | DA 11-0704 | Montana | Montana Supreme Court | DA 11-0704 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 6 IN RE THE MARRIAGE OF: TERANCE PATRICK PERRY, Petitioner and Appellee, and KAREN JANE PERRY, Respondent and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DR 09-841 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Linda Osorio St. Peter; St. Peter Law Offices, P.C.; Missoula, Montana For Appellee: Gail H. Goheen; Gail H. Goheen, P.C.; Hamilton, Montana Submitted on Briefs: September 12, 2012 Decided: January 15, 2013 Filed: __________________________________________ Clerk January 15 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Appellant Karen Jane Perry (Karen) appeals the Fourth Judicial District Court’s order denying her request to disqualify and enjoin attorney Gail H. Goheen (Goheen) from representing Appellee Terance Patrick Perry (Terance) in this proceeding. We affirm and address the following issues: ¶2 1. Did the District Court err by denying Karen’s motion to disqualify Goheen as counsel for Terance pursuant to Rule 1.20 of the Montana Rules of Professional Conduct? ¶3 2. Did Goheen violate her duty to Karen under Rule 1.9 of the Montana Rules of Professional Conduct? ¶4 3. Did the District Court err by permitting Goheen to testify at the disqualification hearing? ¶5 4. Did the District Court err by relying on privileged communications between Goheen and Karen? ¶6 5. Was Karen denied due process when the District Court relied on documents and sworn testimony not subject to cross examination? ¶7 6. Did the District Court err by determining that Karen abused the rules of disqualification? FACTUAL AND PROCEDURAL BACKGROUND ¶8 On December 4, 2009, Terance filed for dissolution of his marriage to Karen in Missoula County. Karen subsequently filed a dissolution proceeding in Massachusetts, which was dismissed for lack of subject matter jurisdiction. Terance is a partner of the law firm of Datsopoulos, MacDonald & Lind, P.C. in Missoula. Terance was represented by three different attorneys before filing a notice of withdrawal and substitution of counsel on January 24, 2011, naming himself as counsel of record. On February 25, 3 2011, Terance filed a subsequent substitution of counsel naming Goheen as his counsel of record. ¶9 In January 2008, before any dissolution proceedings were filed, Karen contacted Goheen’s office in Hamilton seeking legal advice concerning the potential filing of a dissolution action. Karen spoke with Goheen’s assistant, Kailah Van Note (Van Note), and later Goheen herself. ¶10 Karen filed a motion to disqualify Goheen and an application for a preliminary injunction on March 1, 2011. Terance opposed the motion and filed two office memorandums and affidavits from Goheen and Van Note regarding their telephone conversations with Karen. A disqualification hearing was held on November 7, 2011. Two days before the hearing, Karen filed a motion to strike the office memorandums and affidavits as privileged, asserting that the documents “included information which is harmful to [Karen].” The District Court took the motion under advisement, granted the parties’ motion to seal the documents from public access, limited Goheen’s testimony about the documents, and did not permit Karen to cross-examine Goheen about the documents. ¶11 At the hearing, Karen testified that she provided personal information about herself and Terance during one telephone conversation with Van Note and two telephone conversations with Goheen. Karen said the conversations with Goheen lasted 45 minutes and 3 minutes, respectively. She said that she gave information about the marriage, 4 including domestic abuse1 and finances, and that she asked for legal advice on her “position,” which she described as: “[w]here I wanted to end up. If I could end up at a certain place. What would happen if I stayed here. What happen if I left here. Goals of settlement. My weaknesses and fears.” Karen testified that she identified individuals who were present during domestic disputes. She said Goheen quoted her a “ridiculously enormous” retainer, but conceded that she was never sent a retainer agreement and that Goheen had “denied representation.” Karen admitted awareness of some sort of conflict between Goheen and Datsopoulos, MacDonald & Lind. Karen testified that she thought the information she gave to Goheen’s office would be confidential. When asked by her counsel why she believed she had an attorney-client confidential relationship with Goheen in 2008, Karen said “[b]ecause it was promised to me.” ¶12 When asked “[h]ow does Gail Goheen’s representation of your husband now, in this dissolution of marriage that he brought three years later, harm you,” Karen responded: [P]sychologically, it’s like getting beat up again by him. It’s like I can’t trust anybody. There’s nobody I can turn to. He took away everything and everybody I could trust. And now he’s done it again with somebody who I confided in, who’s now on the opposite side of the table. And it – I – I’m betrayed again. It’s another form of abuse and control . . . When asked “[i]s there anything in the communications [from Goheen], even within the brief of the attachments, that you feel have already harmed you,” Karen responded, “Yeah . . . I’ve been called a liar. I’ve been discredited already.” 1 Terance denies the abuse allegations, the validity of which are beyond the scope of this appeal. 5 ¶13 Overruling Karen’s objections that Goheen “can’t testify to attorney-client communications and that she cannot be an advocate and material witness,” the District Court permitted Goheen to offer testimony about the length of the telephone conversations, her office procedures, and background information established in the court file. Goheen testified without another attorney questioning her. Goheen admitted to having one conversation with Karen in January 2008, which she said lasted less than 12 minutes because the time entry information on the record was left blank and it is her office policy that time information is left blank when a conversation lasts 12 minutes or less. Goheen denied having a second conversation with Karen. Explaining her office procedures for new clients, Goheen stated: Whenever I meet with a client, Your Honor, I don’t do it over the phone, in the sense of getting information. I sit down and I meet with the client for a half a day, usually, is my first meeting with a client on a divorce action. It’s at that time that I go over everything I can think of, in terms of – at least broadly, in terms of the scope of the case, what the assets may be, the liabilities may be, whether there are children, what the nature of the relationship is with the party. All details. I’m not interested in it, information, in terms of any details prior to that time. And my policy is that I never give anybody a retainer quote until I get all that information. . . . So I can state unequivocably [sic] that I would not have given a retainer quote to Karen Perry, or any other client under these circumstances. Goheen said she was aware that Karen’s husband was an attorney at Datsopoulos, MacDonald & Lind and that she does not represent someone against an attorney in Ravalli or Missoula County when the opposing attorney is from a firm that she regularly faces in divorce cases. Goheen said she did not remember the details of a conversation 6 with Karen, relying on the office memorandums created from her and Van Note’s conversations with Karen. Goheen said that a 45 minute telephone conversation did not occur, and that her telephone records indicate she made a two or three minute telephone call to refuse the case and refer Karen to someone else. Goheen said she was notified by Karen’s current attorney that Karen had contacted Goheen’s office in September 2009 and in January 2010 but that her telephone records revealed only two telephone conversations with Karen in January 2008. Van Note also testified about Goheen’s office procedures. ¶14 Throughout the hearing, Goheen referred to, and Karen repeatedly objected to, the office notes, memorandums, and the related affidavits, which were the subject of Karen’s motion to strike. After the hearing, the District Court issued an order stating: Before issuing its ruling, the Court requests that Ms. Goheen submit a sealed copy of the “Note” from her office discussed at the hearing, along with any other relevant materials generated by Ms. Goheen or her staff pertaining to [Karen’s] communications with Ms. Goheen and/or her office, for in camera review. After receiving this information, the District Court denied Karen’s motion to disqualify and application for a preliminary injunction. The court kept the documents sealed from public access. It found that no attorney-client relationship existed between Karen and Goheen, commenting that it was “hard to believe that, as a seasoned paralegal, Karen ‘reasonably believed’ she had an attorney-client relationship with Ms. Goheen.” The District Court reasoned that Karen’s motion to disqualify was “a tactic designed to delay resolution of this case and force hardship and increased litigation expenses upon 7 Terance,” and “disqualification of Ms. Goheen would be unjust and unreasonably harsh in this case.” Karen appeals. STANDARD OF REVIEW ¶15 “A district court’s denial of a motion to disqualify is reviewed for an abuse of discretion.” Krutzfeldt Ranch, LLC v. Pinnacle Bank, 2012 MT 15, ¶ 13, 363 Mont. 366, 272 P.3d 635 (citing Schuff v. A.T. Klemens & Son, 2000 MT 357, ¶ 26, 303 Mont. 274, 16 P.3d 1002). An abuse of discretion occurs if the district court acted “arbitrarily without the employment of conscientious judgment or exceed[ed] the bounds of reason, in view of all the circumstances, ignoring recognized principles resulting in substantial injustice.” Schuff, ¶ 27. “The existence of an attorney-client relationship is generally a question of fact.” Krutzfeldt, ¶ 14 (citations omitted). “We review a district court’s factual determinations for clear error.” Krutzfeldt, ¶ 14 (citation omitted). District courts have broad discretion to determine the admissibility of evidence, including oral testimony, and we review for abuse of discretion. Clark v. Bell, 2009 MT 390, ¶ 16, 353 Mont. 331, 220 P.3d 650; State v. Snell, 2004 MT 334, ¶ 17, 324 Mont. 173, 103 P.3d 503. ¶16 “While the denial of a temporary or permanent injunction is reviewed for ‘manifest abuse of discretion,’ deference is not applied to the district court’s conclusions of law, which are reviewed de novo to determine whether its interpretation of the law is correct.” Krutzfeldt, ¶ 13 (citing City of Whitefish v. Bd. of Co. Commrs. of Flathead Co., 2008 MT 436, ¶ 7, 347 Mont. 490, 199 P.3d 201; Jefferson Co. v. Dept. of Envtl. Quality, 8 2011 MT 265, ¶ 16, 362 Mont. 311, 264 P.3d 715). “Ultimately, it is this Court’s ‘constitutional mandate to fashion and interpret the Rules of Professional Conduct.’” Krutzfeldt, ¶ 15 (quoting In re Rules of Prof. Conduct, 2000 MT 110, ¶ 9, 299 Mont. 321, 2 P.3d 806). DISCUSSION ¶17 1. Did the District Court err by denying Karen’s motion to disqualify Goheen as counsel for Terance pursuant to Rule 1.20 of the Montana Rules of Professional Conduct? ¶18 Karen claims that the District Court erred by not disqualifying Goheen because an implied attorney-client relationship was formed between Karen and Goheen when Karen gave Goheen information that was “confidential” in nature, citing Krutzfeldt and Pro-Hand Services Trust v. Monthei, 2002 MT 134, 310 Mont. 165, 49 P.3d 56. Terance argues that the District Court correctly found that there was “nothing disclosed by Karen to Ms. Goheen or her staff ‘that could be significantly harmful’ to Karen in this matter” to warrant disqualification under Rule 1.20 of the Montana Rules of Professional Conduct. Karen replies that she is “psychologically harmed” by the fact that Terance has hired Goheen and “[t]he district court did not properly address the correct standard or pertinent issue relative to Rule 1.20(c) with respect to the harm to Karen in determining Goheen’s conflict of interest.” (Emphasis in original.) 9 ¶19 We have not yet addressed a lawyer’s duty to prospective clients under the Montana Rules of Professional Conduct as amended in 2004.2 We considered this relationship under prior rules in Pro-Hand Services, stating: An implied attorney-client relationship may result when a prospective client divulges confidential information during a consultation with an attorney for the purpose of retaining the attorney, even if actual employment does not result. . . . In determining whether an implied attorney-client relationship exists, we will examine whether the alleged client reasonably believed that such relationship was formed. Pro-Hand Services, ¶ 14 (internal citations omitted). Our ruling in Pro-Hand Services was based upon former Rule 1.9, entitled “Conflict of Interest, Former Client,” requiring an analysis of whether confidential information had been exchanged. We adopted the Ninth Circuit’s “reasonable probability” rule to determine whether confidences were disclosed. Pro-Hand Services, ¶ 15 (citing Trone v. Smith, 621 F.2d 994, 998 (9th Cir. 1980)). If confidential information was not disclosed, then an attorney-client relationship did not exist. Pro-Hand Services, ¶ 14. “If an attorney-client relationship was not formed, there is no conflict of interest,” Pro-Hand Services, ¶ 13, and an attorney could then represent a client in a matter that was adverse to the former prospective client. ¶20 In 2004, Rule 1.20, entitled “Duties to Prospective Clients” was adopted. Rule 1.20 defines and addresses a lawyer’s relationship with a prospective client. It provides in its entirety: 2 See Or., In Re: Revising the Montana Rules of Professional Conduct (Mont. Feb. 17, 2004) (No. 03-264). 10 (a) A person who consults with or has had consultations with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. (b) Even when no client-lawyer relationship ensues, a lawyer who has had consultations with a prospective client shall not use or reveal information learned in the consultation(s), except as Rule 1.9 would permit with respect to information of a former client. (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). (d) Representation is permissible if both the affected client and the prospective client have given informed consent, confirmed in writing, or: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the prospective client. M. R. Pro. C. 1.20. ¶21 Instead of determining whether an attorney-client relationship was created by disclosure of confidential information, Rule 1.20 creates duties to the prospective client “[e]ven when no client-lawyer relationship ensues.” M. R. Pro. C. 1.20(b). Generally, and subject to exceptions discussed herein, a lawyer may not “use or reveal information learned in the consultation(s)” with a prospective client. M. R. Pro. C. 1.20(b). Pertinent to the present issue, Rule 1.20 also prohibits a lawyer from representing a party with “interests materially adverse” to the prospective client in the same or substantially related proceeding “if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.” M. R. Pro. C. 1.20(c). Thus, Rule 1.20 does not merely consider whether information was divulged by the prospective 11 client but whether such information could be significantly harmful to that person in that or a related matter. Rule 1.18 of the American Bar Association’s Model Rules of Professional Conduct (Model Rules) is nearly identical to Montana Rule 1.20. The Committee Comments to Model Rule 1.18 state “the lawyer is not prohibited from representing a client with interests adverse to those of the prospective client in the same or a substantially related matter unless the lawyer has received from the prospective client information that could be significantly harmful if used in the matter.” Model R. Prof. Conduct 1.18 cmt. 6 (ABA 2012). ¶22 Our recent holding in Krutzfeldt dealt with the distinction between current and former clients. Hoskins, an attorney representing the Krutzfeldts, joined the Crowley Fleck firm, which represented a party opposing the Krutzfeldts. Crowley argued that the Krutzfeldts necessarily became Hoskins’ former clients, and were no longer current clients, when Hoskins joined Crowley. Krutzfeldt, ¶ 20. We rejected this argument and concluded that Hoskins did not withdraw from representing the Krutzfeldts, that Krutzfeldts were current clients when Hoskins joined Crowley, and a concurrent conflict of interest existed among Hoskins, Krutzfeldts, and Crowley. Krutzfeldt, ¶ 26. ¶23 The rule enforced in Krutzfeldt applied to current clients, where the proponent of the motion to disqualify “must offer sufficient proof that the continued representation of one party by the attorney or firm will prejudice or adversely impact the rights of another party in the matter pending before the court.” Krutzfeldt, ¶ 17 (quoting Schuff, ¶ 36). Rule 1.20 applies to prospective clients and prohibits representation of a party with 12 materially adverse interests in the same or substantially related proceeding if the prospective client divulged information to the lawyer that could be significantly harmful to the prospective client in the matter. ¶24 Karen is a “prospective client” as defined by Rule 1.20(a) (“A person who consults with or has had consultations with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.”). Karen called Goheen’s office more than once and spoke with Van Note and Goheen concerning representation. The question here does not depend on whether an attorney-client relationship was established or whether Karen reasonably believed such a relationship was formed, as in Pro-Hand Services, ¶¶ 13-15. Rather, under Rule 1.20, the question is whether the information conveyed in Karen’s conversations could be significantly harmful to Karen in this dissolution proceeding.3 ¶25 After hearing the testimony, the District Court found that the information conveyed by Karen to Goheen was not harmful to Karen. The court found that Goheen’s office documentation of Karen’s phone calls and the testimony of Goheen and Van Note were credible and that “there was nothing disclosed by Karen to Ms. Goheen or her staff ‘that could be significantly harmful’ to Karen in this matter.” Karen claims a personal or psychological victimization by Goheen’s representation of Terance. While we do not 3 Even if Pro-Hand Services governed here, Karen did not persuade the District Court that an implied attorney-client relationship had been established by her reasonable belief a relationship had been formed. Pro-Hand Services, ¶ 14. Karen acknowledged that Goheen declined representation of her due to a conflict of some nature between Goheen’s firm and Datsopoulos, MacDonald & Lind. Because it is necessary for resolution of the issues raised herein, we affirm the District Court’s conclusion that an implied relationship was not formed. 13 minimize the significance of such an effect, Rule 1.20 requires that the lawyer receive “information” that is “significantly harmful” to Karen in the proceeding. M. R. Pro. C. 1.20(c). Karen did not establish that any information she divulged to Goheen in the telephone calls several years earlier could have any impact on the proceeding, particularly since, as discussed below, Goheen was not associated as counsel until three years into the proceeding, by which time substantially more information had been disclosed than the information Karen claims to have shared during those phone calls. We therefore conclude that the District Court did not abuse its discretion in denying Karen’s motion to disqualify under Rule 1.20. ¶26 2. Did Goheen violate her duty to Karen under Rule 1.9 of the Montana Rules of Professional Conduct? ¶27 Karen claims that Goheen violated Rule 1.9 of the Montana Rules of Professional Conduct, which Karen labels the “duty of loyalty,” by representing Terance. Karen’s argument under Rule 1.9, entitled “Duties to Former Clients,” is premised upon her assumption that an implied attorney-client relationship was established between her and Goheen, making Karen a “former client.” However, as noted above, Karen failed to establish an attorney-client relationship, and thus the portion of her argument premised thereon fails. Karen also argues that Goheen violated Rule 1.9 by using or disclosing information Karen had divulged to her. Because the provisions of Rule 1.9 regarding use of former client information are incorporated by Rule 1.20, governing the duties to prospective clients, we take up Karen’s argument in that regard. 14 ¶28 Rule 1.20(b) provides that “a lawyer who has had consultations with a prospective client shall not use or reveal information learned in the consultation(s), except as Rule 1.9 would permit with respect to information of a former client.” M. R. Pro. C. 1.20(b). In turn, Rule 1.9 states, in pertinent part: (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. M. R. Pro. C. 1.9(c). ¶29 Additionally, Rule 1.6, “Confidentiality of Information,” generally governs a lawyer’s use of client information, and provides: (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to secure legal advice about the lawyer’s compliance with these Rules; (3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or (4) to comply with other law or a court order. M. R. Pro. C. 1.6. ¶30 As established under Issue 1, Karen has not demonstrated that Goheen received information that could be significantly harmful to her in this proceeding. At the 15 disqualification hearing, the District Court first limited Goheen’s testimony to information that was “generally known.” M. R. Pro. C. 1.9(c)(1). The parties had previously filed information detailing Karen’s and Terance’s personal information, the parties’ financial situations, and Karen’s affidavits alleging spousal abuse. In its order, the District Court found that “any information regarding Terance’s alleged abuse of Karen is now moot given what Karen herself subsequently disclosed early on in this case.” The District Court permitted Goheen to testify concerning the background information in the court file, then permitted Goheen to testify as to the length of the telephone conversations with Karen, and Goheen’s office procedures. It was permissible under the Rules for Goheen to use this information about her previous contact with Karen “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” M. R. Pro. C. 1.6(b)(3). The District Court properly limited Goheen’s testimony to prevent disclosure of Karen’s confidences, if any. See Pro-Hand Services, ¶ 16. ¶31 Karen’s allegations against Goheen are generalized and vague. Goheen’s limited use of Karen’s information was permitted under Rules 1.6(b) and 1.9(c), and Goheen did not violate a duty to Karen. ¶32 3. Did the District Court err by permitting Goheen to testify at the disqualification hearing? ¶33 In a related issue, Karen challenges the District Court’s ruling that permitted Goheen to testify in any manner at the hearing. Karen claims this was error because Goheen did not qualify as a “necessary witness” under Rule 3.7 of the Montana Rules of Professional Conduct. Terance responds that Goheen’s testimony falls under the 16 exceptions within Rule 3.7 because it was related to the nature of the legal services provided to Karen, M. R. Pro. C. 3.7(a)(2), and because disqualification would render a substantial hardship to Terance, M. R. Pro. C. 3.7(a)(3). ¶34 Rule 3.7, entitled “Lawyer as Witness,” provides, in pertinent part: (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. M. R. Pro. C. 3.7(a). Other jurisdictions have defined the term “necessary witness” in this context as a witness whose testimony is both admissible and unavailable by other means. See i.e. Brown v. Spectrum Networks, Inc., 904 N.E.2d 576, 580-81 (Ohio 2008); Sec. Gen. Life Ins. Co. v. Super. Ct., 718 P.2d 985, 988 (Ariz. 1986).4 If the advocate- witness lawyer knows she will be a necessary witness, it is her burden to establish an exception to Rule 3.7. See Klupt v. Krongard, 728 A.2d 727, 741 (Md. 1999) (citations omitted). Committee Comments to Model Rule 3.7, which is identical to Montana Rule 3.7, explain: Paragraph (a)(2) recognizes that where the testimony concerns the extent and value of legal services rendered in the action in which the testimony is 4A third prong is commonly required in cases where party A calls opposing party B’s attorney in an attempt to disqualify opposing party B’s attorney. “[W]hen an attorney is sought to be disqualified from representing his client because an opposing party desires to call the attorney as a witness, the motion for disqualification should not be granted unless the following factors can be met: First, it must be shown that the attorney will give evidence material to the determination of the issues being litigated; second, the evidence cannot be obtained elsewhere; and, third, the testimony is prejudicial or may be potentially prejudicial to the testifying attorney’s client.” Smithson v. U.S. Fid. & Guar. Co., 411 S.E.2d 850, 856 (W. Va. 1991). See also Klupt v. Krongard, 728 A.2d 727, 740 (Md. 1999); LeaseAmerica Corp. v. Stewart, 876 P.2d 184, 192 (Kan. App. 1994). 17 offered, permitting the lawyers to testify avoids the need for a second trial with new counsel to resolve that issue. Moreover, in such a situation the judge has firsthand knowledge of the matter in issue; hence, there is less dependence on the adversary process to test the credibility of the testimony. Model R. Prof. Conduct 3.7 cmt. 3. The Model Rule Comments add: “paragraph (a)(3) recognizes that a balancing is required between the interests of the client and those of the tribunal and the opposing party.” Model R. Prof. Conduct 3.7 cmt. 4. ¶35 Goheen sought leave to testify concerning the nature of the legal services provided by her office and in support of her position that disqualification would work a substantial hardship for Terance. Although the District Court did not expressly find that Goheen was a necessary witness, it impliedly did so by allowing Goheen to testify but carefully limited the scope of her testimony to subjects discussed above. We conclude that Goheen’s testimony was properly taken pursuant to Rule 3.7(a)(2), permitting a lawyer’s testimony relating to the nature of legal services rendered. We thus decline to address Terance’s argument that Goheen’s disqualification would work a hardship to Terance under Rule 3.7(a)(3). We affirm the District Court’s actions.5 ¶36 4. Did the District Court err by relying on privileged communications between Goheen and Karen? ¶37 Karen argues that Goheen’s office memorandum, Goheen’s and Van Note’s handwritten notes, and the “Note” that the District Court required Goheen to produce after the hearing, were confidential communications and the District Court’s reliance 5 The District Court did note its surprise that Goheen intended to testify without the assistance of counsel and said “I think that’s a problem.” However, the District Court permitted the testimony and did not comment further on the issue in its order. The issue is not fully analyzed in the briefing, and we decline to address it further. 18 upon them violated the attorney-client privilege, which she did not waive. Karen moved to strike this evidence shortly before the hearing. Terance responds that there was no attorney-client relationship, and, even if so, Karen waived the privilege by filing the motion to disqualify Goheen. ¶38 The attorney-client privilege is one of the professional relationship privileges recognized by the statutory provisions governing evidence: (1) An attorney cannot, without the consent of the client, be examined as to any communication made by the client to the attorney or the advice given to the client in the course of professional employment. (2) A client cannot, except voluntarily, be examined as to any communication made by the client to the client’s attorney or the advice given to the client by the attorney in the course of the attorney’s professional employment. Section 26-1-803, MCA (2011). Regarding statutory privileges, Rule 503 of the Montana Rules of Evidence provides that “[a] person upon whom these rules confer a privilege against disclosure waives the privilege if the person . . . voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.” M. R. Evid. 503(a). The attorney-client privilege may be impliedly waived “if a party injects into . . . litigation an issue that requires testimony from its attorneys or testimony concerning the reasonableness of its attorneys’ conduct” or “where a party makes assertions in the litigation or asserts a claim that in fairness requires the examination of the protected communications.” Dion v. Nationwide Mut. Ins. Co., 185 F.R.D. 288, 294 (D. Mont. 1998) (internal quotations and citations omitted). “An implied waiver of the attorney[-]client privilege occurs when (1) the party asserts the 19 privilege as a result of some affirmative act, such as filing suit; (2) through this affirmative act, the asserting party puts the privileged information at issue; and (3) allowing the privilege would deny the opposing party access to information vital to its defense.” Dion, 185 F.R.D. at 295. ¶39 Dion involved more typical personal injury and “bad faith” litigation where the insurer sought to exclude communications between it and the attorney expert witness. Dion, 185 F.R.D. at 291, 295-96. The court found that the insurer had waived the privilege by its litigation actions. Dion, 185 F.R.D. at 295-96. Similarly, Karen’s actions necessarily waived the evidentiary privilege. Karen, a former prospective client of Goheen, filed a motion to disqualify Goheen on the basis of the consultations between her and Goheen’s office. As Dion noted, “in fairness,” Goheen’s defense against Karen’s claim required examination of the protected communications. Dion, 185 F.R.D. at 294. “The doctrine of waiver by implication reflects the notion that the attorney-client privilege ‘was intended as a shield, not a sword.’” Dion, 185 F.R.D. at 295 (citations omitted). Thus, even if Karen had established that an implied attorney-client relationship existed, Karen’s claims that privileged information was being misused and that Goheen should be disqualified put these communications at issue and waived any attorney-client privilege. Allowing Karen’s invocation of the privilege to deny Goheen’s use of her office’s notes would eliminate “access to information vital” to Goheen’s defense to the motion and prevent the court from properly analyzing the claim. Dion, 185 F.R.D. at 295. 20 ¶40 5. Was Karen denied due process when the District Court relied on documents and sworn testimony not subject to cross examination? ¶41 Karen contends that her right to due process was denied when the court took under advisement her motion to strike the documents from Goheen’s office and did not permit Karen to cross-examine Goheen about the documents. The motion had been filed shortly before the hearing. Terance notes that the District Court also limited the scope of Goheen’s and Van Note’s testimony pending its decision on the motion to strike. ¶42 However, Karen’s brief offers no supporting law or analysis for her state constitutional law claim. Rule 12 of the Montana Rules of Appellate Procedure requires that an argument section of a brief “contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes, and pages of the record relied on.” M. R. App. P. 12(1)(f). This Court has stated it will not consider unsupported issues or arguments and “is under no obligation to locate authorities or formulate arguments for a party in support of positions taken on appeal.” In re Marriage of Damschen, 2011 MT 297, ¶ 41, 363 Mont. 19, 265 P.3d 1245 (citing Leichtfuss v. Dabney, 2005 MT 271, ¶ 37 n. 8, 329 Mont. 129, 122 P.3d 1220; In re Marriage of McMahon, 2002 MT 198, ¶ 6, 311 Mont. 175, 53 P.3d 1266). We thus decline to consider this issue further. ¶43 6. Did the District Court err by determining that Karen abused the rules of disqualification? ¶44 Karen challenges the District Court’s comments that “[d]isqualification rules can be abused by clients. Such is the case at hand,” and “the Court is concerned that Karen’s 21 motion to disqualify is, in reality, a tactic designed to delay resolution of this case and force hardship and increased litigation expenses upon Terance.” Karen argues that Terance has delayed and raised the cost of this proceeding by choosing Goheen to represent him, and that there is no evidence that Karen manipulated or abused the disqualification rules. ¶45 We have reviewed Karen’s claims under the Montana Rules of Professional Conduct at face value and decided them without regard to her personal motives in the litigation. Despite the District Court’s comments, we believe it nonetheless likewise properly applied the Rules and reached the correct conclusions. Thus, the comments made regarding Karen’s motives had no impact on the outcome of this proceeding. ¶46 Affirmed. /S/ Jim Rice We concur: /S/ Mike McGrath /S/ Patricia O. Cotter /S/ Beth Baker /S/ Brian Morris | January 15, 2013 |
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