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dae68ad8-1059-4185-855a-1de0c808fb17 | Bruce v. National City Mortgage | 2013 MT 7N | DA 12-0350 | Montana | Montana Supreme Court | DA 12-0350 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 7N JOSEPH M. BRUCE AND ANGELA A. BRUCE, Plaintiffs and Appellants, v. NATIONAL CITY MORTGAGE, A DIVISION OF NATIONAL CITY BANK, Defendant and Appellee. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV 11-137 Honorable Ted O. Lympus, Presiding Judge COUNSEL OF RECORD: For Appellants: Darrell S. Worm; Ogle & Worm, PLLP; Kalispell, Montana For Appellee: Mark C. Sherer; Mackoff Kellogg Law Firm; Dickinson, North Dakota Submitted on Briefs: December 19, 2012 Decided: January 15, 2013 Filed: __________________________________________ Clerk January 15 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. 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 Plaintiffs Joseph and Angela Bruce appeal the District Court’s grant of summary judgment in favor of Defendant National City Mortgage, which was a division of National City Bank (National). We affirm. ¶3 The Bruces took out a loan with National in June 2007 to finance construction of and payment for their new home. The loan documents called for a one-year construction phase followed by a thirty-year permanent mortgage. During the construction phase of the loan, which specified five draws based on percentage of completion, the Bruces were to make interest-only payments on the amounts of the loan that were disbursed for construction costs. If construction was completed and the final draw received by April 1, 2008, the Bruces could lock in at a 7.875% or lower interest rate for their thirty-year mortgage. Before the final draw could be disbursed, however, the Bruces had to be current on their construction phase interest-only payments. If those conditions were not met, the interest rate could be raised to 11.75% at National’s “sole discretion.” National notified the Bruces by letter in September 2008 that the interest rate would be increased, 3 effective November 1, 2008, to 11.75% since there had been no disbursements for construction since May 8, 2008. The letter advised that the Bruces could prevent the rate increase by taking a draw from the construction loan prior to the effective date or, if construction was complete, “by locking and modifying to your permanent mortgage.” In any event, all other terms and conditions of the loan remained in full force and effect. ¶4 The Bruces allege that National failed and refused to convert the initial construction financing to permanent financing under the terms of the Promissory Note and Deed of Trust. They claim that National advised them that they did not qualify for the permanent loan since they had not completed construction on time. The Bruces failed to make the $5,512.50 payment due on June 1, 2008. They made a payment in September 2008, which was applied to interest, and subsequently stopped making payments. ¶5 National instituted foreclosure proceedings under the Bruces’ Deed of Trust. Approximately one week before the Trustee Sale, the Bruces filed a complaint in the Eleventh Judicial District Court seeking declaratory and injunctive relief and damages for breach of contract, breach of the implied covenant of good faith and fair dealing, and fraud. The Bruces did not file a motion for preliminary injunction and the sale occurred as scheduled. National moved for summary judgment on all claims in the complaint and the matter was submitted on the parties’ briefs and affidavits. ¶6 The District Court found as an undisputed fact that the Bruces failed to pay all interest-only construction loan payments timely as agreed. Although the parties disputed 4 whether the project was completed by the deadline and whether the Bruces timely attempted to obtain a final disbursement, the court concluded that they could not have qualified for the lower interest rate even if they did complete construction on time because they were not current in the construction loan’s interest-only payments. ¶7 We review a district court’s ruling on motions for summary judgment de novo, applying the same M. R. Civ. P. 56(c) criteria as does the district court. We review for correctness a district court’s legal conclusion that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Turner v. Wells Fargo Bank, N.A., 2012 MT 213, ¶ 11, 366 Mont. 285, ___ P.3d ___ (citations omitted). ¶8 On appeal, the Bruces maintain that the District Court ignored the disputed fact whether they completed construction and requested the final disbursement on time, a fact they claim is pivotal to National’s contention that they were disqualified from the terms of their permanent loan and to the Bruce’s contention that National breached its contract with them. National, however, points out that the date of completion was important only for the Bruces’ ability to take advantage of a more favorable interest rate on their permanent loan and that they never were disqualified from their permanent loan. The September 17, 2008 letter on which both parties rely makes clear that National was increasing the interest rate to 11.75% and that “all other terms and conditions” of the loan remained in effect. ¶9 Although the Bruces dispute numerous facts, they do not dispute that they agreed in the Construction/Permanent Loan Agreement that all payments would be current prior 5 to the last advance on their construction loan. Nor do they dispute that they were twenty-two days late in making the interest payment that was due March 25, 2008, the last payment required before the April 1 “lock-in” deadline. Their payment was not made until April 16, 2008. National was within its contract rights to raise the interest rate on the loan and, when the Bruces were unable to make required payments, to institute foreclosure proceedings. ¶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. In response to National’s documentary evidence, the Bruces did not submit contrary evidence demonstrating a genuine factual issue for trial on their breach of contract claim or the related claims made in their complaint. The District Court ruled correctly that any factual disputes between the parties were not material to the Bruces’ claims for relief and that National was entitled to judgment as a matter of law. ¶11 The judgment is affirmed. /S/ Beth Baker We concur: /S/ Mike McGrath /S/ Patricia O. Cotter /S/ Michael E Wheat /S/ Jim Rice | January 15, 2013 |
e4f71feb-5218-4d1b-934c-39afe5dda522 | IN RE THE RULES FOR ADMISSION
TO TH | N/A | AF 11-0244 | Montana | Montana Supreme Court | January 30 2013 | January 30, 2013 |
4e9832e7-604f-4d7c-ae12-6a16b09bf311 | Thrivent Fin. for Lutherans v. Andronescu | 2013 MT 13 | OP 12-0408 | Montana | Montana Supreme Court | OP 12-0408 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 13 THRIVENT FINANCIAL FOR LUTHERANS, Plaintiff-Appellee, v. LUCIA E. ANDRONESCU, FKA Lucia E. Anderson, Defendant-Cross-defendant-Appellee, v. JOHANNA M. ANDERSON, Defendant-Cross-claimant-Appellant. APPEAL FROM: Certified Question, U.S. Court of Appeals for the Ninth Circuit Cause No. 11-35437 COUNSEL OF RECORD: For Appellant: Roberta Anner-Hughes; Anner-Hughes Law Firm; Billings, Montana For Appellee: Gary Zadick; Ugrin, Alexander, Zadick & Higgins, PC; Great Falls, Montana Submitted on Briefs: November 7, 2012 Decided: January 22, 2013 Filed: __________________________________________ Clerk January 22 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 We accepted the following certified question from the U.S. Court of Appeals for the Ninth Circuit, which we have reformulated in accordance with M. R. App. P. 15(4) and our order of July 17, 2012: ¶2 Does § 72-2-814, MCA, apply to a life insurance policy owner’s designation of his spouse as the beneficiary, where the parties were later divorced prior to enactment of § 72-2-814, MCA, and the policyholder died after enactment of the statute? ¶3 Our answer is “yes” because § 72-2-814, MCA, operates at the time of the insured’s death and applies to any divorce that took place during the insured’s lifetime. FACTUAL AND PROCEDURAL BACKGROUND ¶4 We summarize the undisputed facts from the Ninth Circuit’s certification order. In August 1990, Brent Anderson (Brent) purchased life insurance from Thrivent Financial for Lutherans and named the following beneficiaries: first, his then-wife Lucia, second, his parents, and third, his sister. In June 1993, Brent and Lucia divorced in Arizona. Brent was awarded his life insurance policy in the divorce decree. Later that same year, in October 1993, § 72-2-814, MCA, became effective in Montana.1 The statute provides that a divorce revokes “any revocable disposition or appointment of property made by a divorced individual to the individual’s former spouse in a governing instrument[.]” Section 72-2-814(2)(a)(i), MCA. ¶5 Brent died in Montana in August 2010. He had never changed his designation of Lucia as primary beneficiary under his life insurance policy. Thrivent filed an 1 Section 72-2-814, MCA, was enacted during the 1993 legislative session and became effective on October 1, 1993, because the statute did not provide a different effective date. Section 1-2- 201(1)(a), MCA. 3 interpleader action to determine the rightful beneficiary under Brent’s policy. The U.S. District Court for the District of Montana granted judgment on the pleadings in favor of Lucia, based in part on the fact that § 72-2-814, MCA, became effective after Brent and Lucia’s divorce. STANDARD OF REVIEW ¶6 When answering a certified question as permitted by M. R. App. P. 15(3), this Court’s review is “purely an interpretation of the law as applied to the [pertinent] facts underlying the action.” BNSF Ry. Co. v. Feit, 2012 MT 147, ¶ 6, 365 Mont. 359, 281 P.3d 225 (quoting State Farm Fire & Cas. Co. v. Bush Hog, LLC, 2009 MT 349, ¶ 4, 353 Mont. 173, 219 P.3d 1249). DISCUSSION ¶7 Our precedents establish that the interest of an insurance policy beneficiary is like that of a legatee under a will—“a mere expectancy of a gift at the time of the insured’s death.” In re Guardianship & Conservatorship of Anderson, 2009 MT 344, ¶ 23, 353 Mont. 139, 218 P.3d 1220 (quoting Grimm v. Grimm, 157 P.2d 841, 842-43 (Cal. 1945)); see also Feely v. Lacey, 133 Mont. 283, 297, 322 P.2d 1104, 1111 (1958). A life insurance policy owner, like a testator, may alter or revoke designations at any time until death; thus, either instrument—whether will or insurance policy—must be interpreted and applied at death in order to effectuate the transferor’s final intent. ¶8 The Official Comments to § 72-2-814, MCA, support the conclusion that the life insurance policy, like a will, is not given effect until the time of death. Montana adopted the revocation-upon-divorce statute from the Uniform Probate Code (UPC) in order to 4 “unify the law of probate and nonprobate transfers.” Tit. 72, ch. 2, Mont. Code Ann., Annotations, Official Comments at 635 (2012). The Comments indicate that the revocation statute operates at the time the “governing instrument is given effect” and the provision to the former spouse is to be treated “as if the divorced individual’s former spouse (and relatives of the former spouse) disclaimed the revoked provisions[.]” Tit. 72, ch. 2, Mont. Code Ann., Annotations, Official Comments at 636 (2012). ¶9 The Comments reference two law review articles that provide “[t]he theory of this section[.]” See Tit. 72, ch. 2, Mont. Code Ann., Annotations, Official Comments at 636 (2012) (citing Lawrence W. Waggoner, The Multiple-Marriage Society and Spousal Rights Under the Revised Uniform Probate Code, 76 Iowa L. Rev. 223 (1991) and John H. Langbein, The Nonprobate Revolution and the Future of the Law of Succession, 97 Harv. L. Rev. 1108 (1984)). The articles discuss the history and purpose of revocation- upon-divorce statutes and confirm that, under those statutes, life insurance is to be treated in the same manner as a will. According to Langbein: The label aside, life insurance is functionally indistinguishable from a will, for it satisfies the twin elements of the definition of a will. We say that a will is revocable until the death of the testator and that the interests of the devisees are ambulatory—that is, nonexistent until the testator’s death. Unless specially restricted by contract, the life insurance beneficiary designation operates identically. Langbein, 97 Harv. L. Rev. at 1110 (emphasis added). ¶10 This commentary is consistent with the interpretation of other jurisdictions that apply the revocation-upon-divorce statute as a rule of construction at the time the governing instrument is given effect. See e.g. Buchholz v. Storsve, 740 N.W.2d 107, 111 5 (S.D. 2007); Stillman v. Teachers Ins. & Annuity Assn. College Ret. Equities Fund, 343 F.3d 1311, 1317-18 (10th Cir. 2003) (“Revocation-upon-divorce statutes ‘reflect the legislative judgment that when the transferor leaves unaltered a will or trust or insurance beneficiary designation in favor of an ex-spouse, this failure to designate substitute takers more likely than not represents inattention rather than intention.’”) (quoting Statement of the Joint Editorial Board for Uniform Probate Code Regarding the Constitutionality of Changes in Default Rules as Applied to Pre-existing Documents at 3-4 (1991)).2 ¶11 Lucia argues that revoking her status as beneficiary would require impermissible retroactive application of the law. Section 1-2-109, MCA (“No law contained in any of the statutes of Montana is retroactive unless expressly so declared.”). A statute is retroactive if it “takes away or impairs vested rights, acquired under existing laws, or creates a new obligation, imposes a new duty or attaches a new disability, in respect to transactions already past.” Allen v. A. Richfield Co., 2005 MT 281, ¶ 16, 329 Mont. 230, 124 P.3d 132 (quoting Williams v. Wellman-Power Gas, Inc., 174 Mont. 387, 390, 571 P.2d 90, 92 (1977)); see also Porter v. Galarneau, 275 Mont. 174, 183, 911 P.2d 1143, 1150 (1979). A statute is not given retroactive effect “merely because it is applied in a case arising from conduct antedating the statute’s enactment.” Porter, 275 Mont. at 183, 911 P.2d at 1148. 2 Both South Dakota and Utah law, construed in Buchholz and Stillman, respectively, include the UPC’s “rule of construction” statute expressly providing that the law applies to governing instruments executed before its effective date. See Utah Code Ann. § 75-2-1301(2); S.D. Codified Laws § 29A-8-101(b)(2). Although Montana’s code lacks the express statutory provision, the Official Comments nonetheless suggest that the statute operates at the time the instrument is given effect—i.e., upon death. Tit. 72, ch. 2, Mont. Code Ann., Annotations, Official Comments at 636 (2012). 6 ¶12 Because § 72-2-814, MCA, operates at the time of the transferor’s death, the statute is not given retroactive effect when applied to a divorce predating its enactment. Prior to Brent’s death, Lucia had no vested rights in the proceeds of his insurance policy. Anderson, ¶ 23. Instead, her property interest was equivalent to that of a devisee under a will—“ambulatory” and “nonexistent.” Langbein, 97 Harv. L. Rev. at 1110. The operation of the revocation-upon-divorce statute therefore does not “impair[] vested rights” and did not result in a different legal effect from that which the transaction had under the law at the time it occurred. Porter, 275 Mont. at 183, 911 P.2d at 1148-49. The designation of Lucia as beneficiary had no legal effect before the date of Brent’s death. ¶13 Lucia also points out the U.S. District Court’s reliance on Eschler v. Eschler, 257 Mont. 360, 849 P.2d 196 (1993), a case decided prior to the effective date of § 72-2-814, MCA, which held that the life insurance policyholder’s designation of his wife as beneficiary was not revoked by subsequent divorce. There, the insured died having begun, but not completed, the necessary paperwork to change his policy beneficiary and we determined that his “actions do not evidence a sufficient determination to change the beneficiary designation[.]” Eschler, 257 Mont. at 369, 849 P.2d at 202. Eschler does not apply here because § 72-2-814, MCA, establishes the insured’s intention to revoke an ex-spouse’s beneficiary status and would have affected the analysis in that case. Eschler, moreover, is not relevant to the question certified for our review—whether the revocation-upon-divorce statute applies to a divorce that pre-dates the statute’s 7 enactment. The language of § 72-2-814, MCA, and the authorities we discuss address that question and direct us to answer in the affirmative. /S/ Beth Baker We concur: /S/ Mike McGrath /S/ Michael E Wheat /S/ Patricia O. Cotter /S/ Jim Rice | January 22, 2013 |
a7c53dbd-c2c7-43cf-878b-a60dc27d49c3 | State v. Michael W. McDonald | 2013 MT 74N | DA 12-0111 | Montana | Montana Supreme Court | DA 12-0111 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 74N STATE OF MONTANA, Plaintiff and Appellee, v. MICHAEL WAYNE MCDONALD, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 10-291 Honorable Edward P. McLean, 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; Pamela P. Collins, Assistant Attorney General; Helena, Montana Fred R. Van Valkenburg, Missoula County Attorney; Shawn Thomas, Deputy Missoula County Attorney; Missoula, Montana Submitted on Briefs: February 27, 2013 Decided: March 19, 2013 Filed: __________________________________________ Clerk March 20 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 Michael Wayne McDonald (McDonald) appeals from a final judgment entered by the Fourth Judicial District Court, Missoula County. The issue presented on appeal is whether the District Court abused its discretion in denying McDonald’s challenge for cause of a prospective juror. We affirm. ¶3 McDonald was charged with two counts of felony incest. Trial commenced in February 2011. During voir dire, when asked if she would be a suitable juror, prospective juror Lewis stated: “I’m not sure. I think that I can be impartial. However, knowing the statistics on domestic violence and sexual abuse cases, it seems that the question isn’t whether the girls have been molested. It’s a question of whether or not Mr. McDonald was the perpetrator.” In response to further questioning from the defense and the court, Lewis stated that she had not made up her mind and could be fair and impartial. McDonald moved to excuse Lewis for cause which was denied. ¶4 A prospective juror may be challenged and excused for cause if the court determines that the prospective juror “[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.” Section 46-16-115(2)(j), MCA. In 3 determining whether a prospective juror should be excused for cause, the court must consider both the statutory requirements and the totality of the circumstances. St. Germain v. State, 2012 MT 86, ¶ 65, 364 Mont. 494, 276 P.3d 886 (citing State v. Normandy, 2008 MT 437, ¶ 22, 347 Mont. 505, 198 P.3d 834; State v. Robinson, 2008 MT 34, ¶ 8, 341 Mont. 300, 177 P.3d 488). If the totality of a prospective juror’s responses raises serious questions about their ability to be fair and impartial, the juror should be removed. St. Germain, ¶ 65. If, however, the prospective juror merely expresses concern about impartiality but believes they can fairly weigh the evidence, the court is not required to remove the juror. St. Germain, ¶ 65. ¶5 “Jurors should be disqualified based on their prejudices only where they have ‘formed 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.’” State v. Hart, 2009 MT 268, ¶ 13, 352 Mont. 92, 214 P.3d 1273 (internal quotation omitted). We give deference to district courts who sit in a “peculiarly advantageous position,” wherefrom they may observe a juror’s demeanor, expression, and manner of answering questions in order to discern the true bias of a potential juror. Hart, ¶ 13. ¶6 In this case, Lewis never stated or inferred that she had a fixed opinion about McDonald’s guilt. Lewis stated that she “[had not] made up [her] mind,” that she “[could] be impartial, and . . . openly listen to the case,” and that she could be fair. The court excused nine other prospective jurors for cause because of statements about their ability to be fair and impartial. In Lewis’s case, however, the court decided based on the totality of the 4 circumstances that Lewis was qualified to sit as a juror. Under the circumstances of this case, we have determined that the District Court did not abuse its discretion when it denied McDonald’s challenge for cause of prospective juror Lewis. ¶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. ¶8 Affirmed. /S/ MICHAEL E WHEAT We Concur: /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JIM RICE | March 20, 2013 |
bdeb9829-018f-4176-906d-593463c8249b | Stokes v. Ford Motor Co. | 2013 MT 29 | DA 11-0713 | Montana | Montana Supreme Court | DA 11-0713 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 29 DENNIS STOKES, as Personal Representative of the Estate of Peter Andrew Carter, Plaintiff and Appellant, v. FORD MOTOR COMPANY, OVERLAND WEST, INC., and TODD DURHAM, Defendants, Appellees and Cross-Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 05-1236 Honorable Russell C. Fagg, Presiding Judge COUNSEL OF RECORD: For Appellant: Dennis P. Conner; Conner & Pinski, PLLP; Great Falls, Montana Daniel B. Bidegaray; Bidegaray Law Firm, LLP; Bozeman, Montana For Appellees: Neil G. Westesen; Ian McIntosh; Crowley Fleck, PLLP; Bozeman, Montana (Ford Motor Company) Lee A. Mickus; Vaughn A. Crawford; Snell & Wilmer, LLP; Denver, Colorado (Ford Motor Company) Guy W. Rogers; Jon A. Wilson; Brown Law Firm, P.C.; Billings, Montana (Overland West, Inc.) Submitted on Briefs: November 14, 2012 Decided: February 12, 2013 Filed: __________________________________________ Clerk February 12 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Appellant Dennis Stokes (Stokes), personal representative of the estate of Peter Andrew Carter (Carter), appeals the jury verdict and judgment of the Thirteenth Judicial District Court concluding that Ford Motor Company (Ford) and Overland West, Inc. (Overland) were not liable in strict products liability or negligence in Carter’s death. We affirm. ¶2 We consider the following issues on appeal: ¶3 1. Whether the District Court erred by denying Stokes’ motion for default judgment on liability as a sanction against Ford for withholding evidence of other incidents? ¶4 2. Whether the District Court erred by excluding Stokes’ proffered evidence of other incidents? ¶5 3. Whether the District Court erred by excluding evidence related to Ford’s actions in making the Safety Canopy System a standard feature in some other countries in 2002 and in the United States in 2007, and by permitting Ford to present an improper “consumer-choice” defense? ¶6 4. Whether the District Court erred by excluding the indemnity agreement between Ford and Overland and limiting questioning about the agreement and these parties’ prior adversarial position? FACTUAL AND PROCEDURAL BACKGROUND ¶7 On November 2, 2002, Peter Andrew Carter, a resident of Australia, rented a “2002.5” or mid-year model Ford Explorer at Overland’s Bozeman airport location after flying to Montana for a work-related visit. On November 7, Carter was driving on Highway 287 near Ennis when Todd Durham (Durham) executed a left-hand turn of his vehicle in front of Carter, leading to a collision. Carter’s Explorer was traveling between 3 76 and 83 miles per hour, and the impact caused the vehicle to roll five times across a distance of 286 feet. Although Carter’s passenger survived, Carter was partially ejected and killed. Dennis Stokes, personal representative for Carter’s estate, filed a wrongful death and survival claim against Ford, Overland, and Durham on November 3, 2005. The complaint alleged that the Defendants were responsible for Carter’s death under strict products liability and negligence theories. ¶8 Stokes claimed that safer alternative designs to protect the driver during rollover were “both technically and economically feasible,” including a Safety Canopy System (SCS), which first became available three months before the subject Explorer was manufactured and was offered as an optional feature for 2002.5 model Explorers. SCS technology was not installed in the Explorer that Carter was driving. Overland, a Hertz Corporation licensee, purchased its fleet of vehicles from Ford.1 Ford claimed that Overland chose not to equip its fleet of Explorers with the optional SCS, and Stokes claimed Overland was negligent in so doing. Ford and Overland ultimately entered into an indemnity agreement and thereafter presented a united position in the litigation. Ford defended by asserting that, even without the SCS technology, the 2002.5 Explorer was a safe vehicle that exceeded all safety standards. ¶9 Numerous pretrial motions were filed by the parties regarding discovery of evidence of other accidents, evidence regarding the standardization of SCS technology in Ford Explorers, the indemnity agreement between Ford and Overland, and the use of 1 Hertz was a subsidiary of Ford in 2002. 4 such evidence at trial. A ten-day jury trial was held between September 6 and 19, 2011. The jury unanimously concluded that Durham was liable in negligence and that Ford and Overland were not liable for Carter’s damages.2 The District Court entered judgment accordingly, and Stokes appeals. ¶10 Additional facts will be discussed herein. STANDARD OF REVIEW ¶11 “A district court has broad discretion in determining whether evidence is relevant and admissible.” Newman v. Lichfield, 2012 MT 47, ¶ 22, 364 Mont. 243, 272 P.3d 625 (quoting Weber v. BNSF Ry., 2011 MT 223, ¶ 18, 362 Mont. 53, 261 P.3d 984). We review a district court’s evidentiary rulings for an abuse of discretion. Newman, ¶ 22 (citing Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, ¶ 74, 338 Mont. 259, 165 P.3d 1079). Likewise, we review a district court’s decision to impose discovery sanctions for an abuse of discretion. Kraft v. High Country Motors, Inc., 2012 MT 83, ¶ 23, 364 Mont. 465, 276 P.3d 908. A district court abuses its discretion when it acts “arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.” Kraft, ¶ 23 (citations omitted). DISCUSSION ¶12 1. Whether the District Court erred by denying Stokes’ motion for default judgment on liability as a sanction against Ford for withholding evidence of other incidents? 2 The jury awarded damages to Carter’s Estate from Durham in the amount of $1,409,005. On September 29, 2011, the District Court granted Stokes’ motion for new trial against Durham on the issue of damages. 5 ¶13 Stokes moved to compel discovery of “other similar incident” information, including evidence about cases where it was alleged that the lack of SCS and other restraint system inadequacies in Explorers and other Ford light trucks led to injuries or death to occupants in rollover accidents. On April 19, 2011, the District Court granted the motion and set discovery criteria for Ford to follow. On May 27, Ford filed a motion for partial relief from the April 19 order. Ford identified more than 1,350 cases meeting the court’s criteria and argued that it would cost “over $2 million with respect to the production of Ford’s outside counsel files alone,” involving more than 60 law firms employed by Ford. On June 29, 2011, the District Court issued an order limiting the scope of this discovery to Ford’s internal case files, data already collected by Ford from outside counsel, preparation of a list of prospective cases with outside counsel, and production of files from a “reasonable number” of cases identified by Stokes that were managed by outside counsel. ¶14 Ford thereafter produced information about other incidents to Stokes on six occasions between June and August of 2011. This discovery consisted of approximately 17 gigabytes of electronic data. On August 12, Ford filed a motion in limine regarding other incident information, requesting exclusion of “all references, direct or indirect, to other accidents, incidents, claims, complaints and/or lawsuits until Plaintiff lays a foundation of substantial similarity, outside the presence of the jury.” On August 15, Stokes moved for default sanctions against Ford for failure to comply with the District Court’s June 29 discovery order. That same day, Ford provided an additional 300 6 gigabytes of electronic data about other incidents. In his response to Ford’s motion in limine, Stokes again requested default sanctions because Ford had produced “more than 10 times the evidence that had previously been produced less than a month before trial.”3 ¶15 At a hearing on August 24, the District Court addressed Stokes’ motion for default sanctions: I know the Plaintiff would like the Court to enter judgment on liability, because the Plaintiff argues Ford has vocally disregarded the court’s orders regarding discovery. I think there is no doubt there have been problems with discovery; I’m not saying Ford has done the best job possible, but I think they tried, and I don’t think the default sanction is appropriate. . . . Don’t let my denial of the motion – don’t let that give you the idea that I’m not frustrated with Ford, because I am. I’m just not clear that Ford has wantonly disregarded the order of the Court or intentionally tried to slow down discovery here. I just have to believe that a company of Ford’s significance, and all the litigation that it’s in – that it doesn’t have a more streamlined process for producing discovery. I mean, here we are dumping all this information on Plaintiff’s counsel on August 15, which is about three weeks before trial. I’m not happy about it; I’m just not convinced that it rises to the level of default sanctions. I want to be clear that if I get the idea as this thing goes along, or if when trial starts, that Ford is playing games, this can be revisited. The District Court also denied Ford’s motion in limine regarding other incidents, but directed that “Plaintiff will have to lay a foundation of substantial similarity to introduce this type of evidence in the trial.” ¶16 Stokes did not request a continuance of the trial date, stating in his briefing, “Plaintiff does not want a continuance. Plaintiff wants this matter tried. Plaintiff and 3 On August 1, 2011, this Court issued a writ of supervisory control reversing the District Court’s order of March 17, 2011, which had granted Ford’s motion in limine to prohibit admission of evidence of Carter’s seatbelt use. See Stokes v. Thirteenth Jud. Dist. Ct., 2011 MT 182, ¶ 27, 361 Mont. 279, 259 P.3d 754. 7 several Australian witnesses have plane tickets purchased for the trial.” Stokes renewed his request for sanctions at trial, stating, “because of the late discovery from the Defendants, . . . we were not able to put on a substantial [other incident] case.” The District Court again denied the request. ¶17 On appeal, Stokes argues that “a defendant’s late disclosure of critical [other incident] evidence which prejudices a plaintiff’s ability to present its case justifies entry of default judgment on liability.” Stokes requests that this Court reverse the District Court’s denial of sanctions, noting our statement in Richardson v. State, 2006 MT 43, ¶ 56, 331 Mont. 231, 130 P.3d 634, that courts “must remain intent upon punishing transgressors rather than patiently encouraging their cooperation.” Ford responds that the cases in which default judgment has been imposed as a sanction for withholding evidence illustrate that the non-complying parties acted willfully and in bad faith, blatantly concealed relevant information, or demonstrated a flagrant disregard of court orders and discovery rules. Ford argues the District Court properly refused Stokes’ motions because it found “no evidence of bad faith or non-responsiveness” and that Ford “complied fully with the court’s mandates.” ¶18 Rule 37(b)(2), M. R. Civ. P.,4 authorizes a district court to sanction a party for failure to comply with a court order compelling discovery, including by dismissal of an action or by entering a judgment by default. In a case involving entry of a default 4 The Montana Rules of Civil Procedure were revised effective October 1, 2011. Because the District Court’s orders on appeal predate the amendments to the Rules, any references herein to the M. R. Civ. P. refer to the 2009 version of the Rules. 8 judgment as a sanction, we explained that sanctions are appropriate “where counsel or a party has acted willfully or in bad faith in failing to comply with the rules of discovery or with court orders enforcing the rules, or they have acted in flagrant disregard of those rules.” Kraft, ¶ 37 (citing Jerome v. Pardis, 240 Mont. 187, 192, 783 P.2d 919, 922 (1989)). The party requesting the entry of a default judgment as a sanction for discovery abuse must show prejudice. See Eisenmenger v. Ethicon, Inc., 264 Mont. 393, 406, 871 P.2d 1313, 1321 (1994); Estate of Willson v. Addison, 2011 MT 179, ¶ 28, 361 Mont. 269, 258 P.3d 410; Anderson v. Werner Enters., Inc., 1998 MT 333, ¶ 13, 292 Mont. 284, 972 P.2d 806 (“[T]he party assigning error to the trial court’s discovery rulings must show prejudice.”). “The trial judge is in the best position to know . . . which parties callously disregard the rights of their opponents and other litigants seeking their day in court. The trial judge is also in the best position to determine which sanction is the most appropriate.” Linn v. Whitaker, 2007 MT 46, ¶ 13, 336 Mont. 131, 152 P.3d 1282 (citing Xu v. McLaughlin Research Inst., 2005 MT 209, ¶ 17, 328 Mont. 232, 119 P.3d 100) (citations omitted). ¶19 In Richardson, we held that default judgment was an appropriate sanction where the defendant’s “willful and bad faith conduct” amounted to a “blatant and systemic” abuse of the discovery process that “undermined the integrity of the entire proceeding.” Richardson, ¶¶ 65, 68. The defendant had knowingly “concealed the evidence . . . until the eve of trial by asserting baseless objections” to plaintiff’s discovery requests and attempted to use the lack of knowledge created by the discovery abuses against the 9 plaintiff. Richardson, ¶ 23. In contrast to the situation here, the concealed evidence in Richardson consisted of one page of significant information concerning the other similar incidents. In Estate of Willson, the defendant hospital inadvertently destroyed some medical records that would have otherwise been discoverable in a medical malpractice case. Willson, ¶¶ 27-28. We held that the defendant did not “blatantly, systemically, willfully and in bad faith violate the rules of discovery.” Willson, ¶ 28. ¶20 Here, the discovery issue was complex and the District Court narrowed the scope of discovery and issued discovery criteria on June 29, 2011. Over the course of the following six weeks, Ford produced discovery information on seven separate occasions, with the bulk of information coming on August 15, three weeks before trial. The District Court was unhappy with the process of discovery, but found that Ford had not “wantonly disregarded” its order or had “intentionally tried to slow down discovery here.” The record supports the District Court’s finding that this was not the “blatant and systematic” discovery abuse that “undermined the integrity of the entire proceeding” at issue in Richardson. Richardson, ¶ 65. Stokes did not seek a continuance and decided to proceed to trial. We also stated in Richardson that “the principle of ‘trial on the merits’ weighs against the imposition of a default judgment.” Richardson, ¶ 68 (citing Schuff v. A.T. Klemens & Son, 2000 MT 357, ¶ 81, 303 Mont. 274, 16 P.3d 1002). We cannot conclude the District Court abused its discretion in weighing the circumstances and determining not to enter a default judgment against Ford. ¶21 2. Whether the District Court erred by excluding Stokes’ proffered evidence of other incidents? 10 ¶22 During a conference on evidentiary issues conducted outside of the jury’s presence, Stokes sought the court’s permission to introduce alternative “other incident” evidence that he had independently obtained. The evidence consisted of a compilation of summaries of more than 3,000 crashes and was offered for the purpose of establishing that Ford had actual notice of Explorer rollovers. The compilation had been previously used in an unrelated case known as “the Turley case.” For foundation, Stokes offered the “Ridenour deposition,” which was a deposition taken of a Ford representative in another 2002.5 Ford Explorer rollover case, referred to as “the Jones case.” Ford objected based on foundation, hearsay, and relevance because the materials had been prepared by a different law firm in a different case, adding “there has to be some base level showing of substantial similarity” to introduce this evidence. Stokes made no offer of proof or testimony to demonstrate “substantial similarity” of the evidence to Carter’s case or to otherwise lay a foundation for the evidence. The District Court excluded the evidence. ¶23 Stokes argues that “[w]hile the district court did not rule [other incident] evidence was inadmissible per se, its denial of Stokes’ motion for entry of default judgment on liability due to Ford’s tardy disclosure forced Stokes to find alternative ways to introduce” such evidence. Stokes suggests that this evidence “should have been held admissible as a minimum sanction for Ford’s dilatory discovery actions.” Ford responds that Stokes failed to lay a proper foundation for the evidence by an offer of proof that the case for which the case summaries were originally created, the Turley case, was substantially similar to this case, or that the individual cases summarized in the proposed 11 compilation exhibit were substantially similar to this case, and Stokes likewise failed to offer any witness involved in the creation of the summarization or to demonstrate that the Ridenour deposition would serve to lay a foundation for a summarization created by others. ¶24 Evidence of other similar instances may be admitted to show notice or knowledge of the existence of a danger or a defect. Faulconbridge v. State, 2006 MT 198, ¶ 30, 333 Mont. 186, 142 P.3d 777. “[T]he test of admissibility for evidence of the accidents in a products liability case is ‘whether the circumstances surrounding the product involved in other accidents were substantially the same or similar to the accident at issue.’” Krueger v. General Motors Corp., 240 Mont. 266, 274, 783 P.2d 1340, 1345-46 (1989) (quoting Kuiper v. Goodyear Tire & Rubber Co., 207 Mont. 37, 56, 673 P.2d 1208, 1219 (1983)). “The admission of evidence of other accidents in products liability litigation is entrusted to the discretion of the trial judge.” Krueger, 240 Mont. at 275, 783 P.2d at 1346 (citing Tacke v. Vermeer Mfg. Co., 220 Mont. 1, 9, 713 P.2d 527, 532 (1986)). “A concerted effort should be made by [the trial] court to allow the admission of evidence of only those accidents where both the product and the circumstances surrounding the accident were similar to the case at bar.” Preston v. Eighteenth Jud. Dist. Ct., 282 Mont. 200, 208, 936 P.2d 814, 818 (1997) (citations omitted). ¶25 The District Court denied Ford’s motion in limine to exclude evidence of other incidents, but properly ruled that Stokes “will have to lay a foundation of substantial similarity to introduce this type of evidence in that trial.” Stokes sought to introduce such 12 evidence in the form of the compilation summarizing 3,000 rollover cases, upon a foundation of a Ford representative’s deposition in an unrelated case. After Ford’s objection, Stokes made no further efforts to demonstrate that his proposed evidence satisfied the requirement of substantial similarity. On this record, we are unable to determine whether Stokes’ proposed evidence was similar to Carter’s accident and therefore must conclude that the trial court was within its discretion to exclude the evidence.5 ¶26 3. Whether the District Court erred by excluding evidence related to Ford’s actions in making the Safety Canopy System a standard feature in some other countries in 2002 and in the United States in 2007, and by permitting Ford to present an improper “consumer-choice” defense? ¶27 Ford filed motions in limine requesting the court to preclude Stokes from discussing or introducing evidence that Ford made the SCS standard equipment in certain foreign markets in 2002, including Australia, and in vehicles sold in the U.S. in 2007. Ford argued that the evidence of standardization in these markets would be irrelevant, prejudicial, and confusing because it would require mini-trials on the reasons for the timing of market introductions and, with regard to the 2007 U.S. standardization, would constitute a subsequent remedial measure inadmissible under M. R. Evid. 407. The District Court granted the motions. 5 Regarding Stokes’ suggestion that the evidence should have been admitted as a sanction, we have cautioned against the admission of “patently inadmissible and substantially prejudicial evidence over objection, as a sanction for a party’s failure to comply with a pretrial order.” Stevenson v. Felco Indus., 2009 MT 299, ¶ 45, 352 Mont. 303, 216 P.3d 763. 13 ¶28 Stokes makes broadly-stated arguments that the standardization evidence should have been admitted “to rebut and impeach all of Ford’s consumer-based and ‘migration of technology’ arguments,” to establish Ford’s notice and knowledge of the need for SCS technology, and for Ford’s culpability for punitive damages. Stokes argues that the 2007 U.S. standardization was not a subsequent remedial measure, but even if so, the evidence should have been admitted for purposes of “impeachment” and “feasibility of standardization.” ¶29 During trial, Stokes again offered the 2002 foreign country standardization evidence in an attempt to impeach the testimony of Douglas Scott, Ford’s North America SUV marketing manager, who testified that the 2002.5 Explorer was the first model for which SCS technology had been made available as an option in the U.S. Scott noted that the U.S. SUV market was extremely competitive and that consumers were driven by cost-consciousness. He testified that the 2002.5 Explorer had a “well-documented, well-established record of safety” even without SCS technology, explaining “we had a vehicle that exceeded all of the safety standards. It had a demonstrated record for delivering safety and was affordable, again, for our consumers.” The District Court again denied admission of the evidence, reasoning that Scott’s only responsibility was for North American markets and that he did not testify or have knowledge about SCS standardization in foreign markets. However, when cross-examining Michael Leigh, a research engineer in Ford’s Automobile Safety Office, Stokes was permitted to ask, over Ford’s objection, about the standardization of SCS technology in Australia in 2002. 14 Leigh testified that Ford commonly introduced new technology in small markets so that the technology could be analyzed in the field prior to implementation in Ford’s entire fleet, including the dominant U.S. market. This also served to ensure that “the customer[s] have a choice, do they want this new technology or not” in a vehicle that Leigh testified was safe with or without SCS technology. ¶30 Regarding the 2007 U.S. standardization, Stokes argues on appeal that this evidence was not a subsequent remedial measure governed by M. R. Evid. 407, as the District Court so ruled. However, Stokes conceded before the District Court that this evidence raised a subsequent remedial issue, and the matter was argued that way. Stokes offered the evidence to impeach what he described as Ford’s “consumer demand” testimony, and likewise argues on appeal that the evidence “controverts [Ford’s] position that it was waiting until consumers demanded SCS as a standard feature.” However, Ford’s witnesses did not offer the solitary proposition that Ford delayed employment of SCS technology until consumers demanded it. While consumer interest was one factor about which they testified, other factors such as performance of the new technology in test markets, prioritization of the feature in light of other safety features and the Explorer’s high safety ratings, and affordability were also considered. Further, Ford’s testimony was given with regard to its analysis at the time the 2002.5 model Explorer was introduced and SCS was first made optional, not about the U.S. standardization in 2007 that Stokes sought to introduce. We recently explained that “subsequent remedial measures are admissible for impeachment purposes where the defendant goes beyond 15 stating that the original condition was safe or adequate and attempts to make exaggerated claims that the condition was the safest possible” and that such evidence must “directly impeach a witness’s testimony or other evidence offered by a defendant.” United Tool Rental, Inc. v. Riverside Contracting, Inc., 2011 MT 213, ¶ 15, 361 Mont. 493, 260 P.3d 156 (citations and internal quotations omitted). In response to Stokes’ offer, the District Court said, “I don’t think there’s any impeachment here” and reasoned that it was convinced that admission of the evidence “would be a violation of Rule 407.” ¶31 After review of the record, we conclude that the District Court’s rulings on the 2002 and 2007 standardization evidence as offered by Stokes did not constitute abuses of discretion. ¶32 Lastly, Stokes generally argues that “[t]he district court improperly permitted Ford to pursue a consumer choice defense without allowing Stokes to rebut its position.” Stokes did not object to the Ford testimony that he characterizes as “consumer choice” testimony, but rather offered a “delegation” jury instruction in response, which provided: “[a] manufacturer has a duty to design a reasonably safe product and may not delegate such duty to a dealer, user, or purchaser of the product.” The District Court denied Stokes’ proposed instruction in favor of other instructions. Ford responds that, unlike the cases cited by Stokes in favor of the delegation instruction, it did not place responsibility for product safety on the consumer, but that the jury was instructed to determine whether 16 the Explorer was safe “at the time of sale by the Defendant” and whether the Explorer was defective pursuant to factors unrelated to consumer choice.6 ¶33 “A district court’s decision pertaining to jury instructions is reviewed for an abuse of discretion. While the district court’s discretion is broad, it is ultimately restricted by the overriding principle that jury instructions must fully and fairly instruct the jury regarding the applicable law.” Goles v. Neumann, 2011 MT 11, ¶ 9, 359 Mont. 132, 247 P.3d 1089 (citing State v. Christiansen, 2010 MT 197, ¶ 7, 357 Mont. 379, 239 P.3d 949). 6 Instruction 19 stated: “A product may cause injury because of its design even though it was faultlessly manufactured. In order to recover for such injury, Plaintiff must prove: First, at the time of sale by the Defendant, the product was in a defective condition because of its design; Second, that the design of the product caused injury to Peter Carter.” Instruction 20 stated: “In determining whether the Explorer was defective, you should consider whether an alternative design should have been utilized, in light of: 1) The likelihood at the time of manufacture that the product would cause the harm suffered by the claimant; 2) The seriousness of that harm; 3) The technological feasibility of manufacturing a product designed so as to have prevented claimant’s harm; 4) The relative costs of producing, distributing, and selling such an alternative design; and 5) The new or additional harms that may result from such an alternative design. A product may be in a defective condition if the manufacturer should have used an alternative design. In determining whether an alternative design should have been used, you should balance so many of the following factors as you find to be pertinent at the time of manufacture: a) The reasonable probability that the product as originally designed would cause serious harm to the claimant. b) Consideration of the reasonable probability of harm from the use of the original product as compared to the reasonable probability of harm from the use of the product with the alternative design. c) The technological feasibility of an alternative design that would have prevented claimant’s harm.” 17 After a review of the instructions, we conclude the District Court did not err in fully and fairly instructing the jury regarding the applicable law. ¶34 4. Whether the District Court erred by excluding the indemnity agreement between Ford and Overland and limiting questioning about the agreement and these parties’ prior adversarial position? ¶35 Ford’s answer to Stokes’ complaint raised an affirmative defense that “[a]ll of Plaintiff’s injuries were caused by the acts or omissions of third parties and/or Plaintiff and the other Defendants . . . .” Overland raised a similar defense, stating that “any damages claimed by Peter Carter, his estate and/or his heirs were caused by the wrongful and/or negligent conduct of Todd Durham, Ford and/or parties other than Overland . . . .” Neither Ford nor Overland filed a cross-claim against the other. Later, Ford and Overland entered into an indemnity agreement, whereby they withdrew their respective affirmative defenses implicating each other. Ford initially provided legal representation for Overland after the agreement was entered, although separate counsel later appeared for Overland for the remainder of the proceedings. The parties are represented separately on appeal. ¶36 Stokes sought admission of the indemnity agreement and, after extensive arguments by the parties, the District Court ultimately determined that the agreement could be addressed at trial, but would not be admitted as documentary evidence, stating, “I don’t want the jury to be looking at the Indemnity Agreement . . . . They wouldn’t understand it anyway.” The District Court also excluded the agreement and questioning about Ford and Overland’s initial pleadings on the ground that the final pretrial order had 18 superseded the pleadings and had not addressed this issue. Stokes asked the court if, as an alternative to admitting the agreement, it would instruct the jury on the effect of the agreement. The court indicated it would entertain a proposed instruction from Stokes, but none was submitted. ¶37 During trial, Stokes used the agreement in cross-examination of Jeffrey Ralph Heileson, Overland’s representative, to demonstrate bias. Stokes’ examination established the existence of the agreement and highlighted that, pursuant to the agreement, Ford had selected counsel for Overland, was paying for Overland’s defense, and would pay any judgment entered against Overland. Heileson offered, however, that he had not read the entire agreement and was not aware of its details: Q [by Stokes’ Attorney]. Well, is it true that the agreement provides that if Ford and Overland West no longer have a unity of interest in the defense to this case, Ford, at its sole option, can withdraw from the defense and indemnification of Overland West? A [by Heileson]. If that’s what it says, I guess that’s true. But like I said, I didn’t know that before you just said it . . . it’s not my charge at our company to analyze those types of documents, so I really—and no one has advised me as to what limits I may have and what I could say in my testimony or in answering any discovery questions or anything. Stokes also referenced the agreement during his opening statement and his closing argument. ¶38 Stokes argues on appeal that the indemnity agreement was admissible as evidence of a compromise under M. R. Evid. 408, which permits admission of such evidence when offered to prove bias or prejudice of a witness. He argues that the ability to introduce the agreement itself and ask questions about the parties’ original pleadings was critical to 19 establishing witness bias, particularly with Heileson. Ford argues that the agreement was not relevant, would have caused jury confusion, that Stokes failed to lay the necessary foundation for its admission, and that the District Court properly limited questioning to the terms of the final pretrial order. ¶39 Without addressing all of the parties’ arguments, we simply conclude that the District Court’s rulings did not constitute reversible error. The court gave Stokes considerable leeway in using the indemnity agreement. Stokes was able to establish the basic terms of the agreement and to well make the point to the jury that Ford and Overland had become allies in the suit. Further effort by Stokes to demonstrate bias on the part of Heileson would necessarily have been limited by Heileson’s testimony that he hadn’t read the entire agreement, had little knowledge or understanding of the agreement, and had not been advised of any restrictions upon his testimony because of the agreement. We conclude that Stokes was not prejudiced by the District Court’s rulings on the issue. ¶40 Affirmed. /S/ Jim Rice We concur: /S/ Mike McGrath /S/ Beth Baker /S/ Patricia Cotter /S/ Brian Morris | February 12, 2013 |
fe815597-c89f-480f-b46a-0bdf0777d7ab | STATE v METZ | N/A | 14682 | Montana | Montana Supreme Court | No. 14682 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 STATE OF MONTANA, Plaintiff and Respondent, -vs- DALE METZ, Defendant and Appellant. Appeal from: District Court of the Eleventh Judicial District, Honorable Robert C. Sykes, Judge presiding. Counsel of Record: For Appellant: Daley and Sherlock, Kalispell, Montana Patrick Sherlock argued, Kalispell, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Chris Tweeten, Assistant Attorney General, argued, Helena, Montana Ted Lympus, County Attorney, Kalispell, Montana Submitted: September 12, 1979 Decided : BEC 1 9 1979 Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. Defendant appeals the judgment and sentence of the Flathead County District Court which found the defendant guilty of the crime of sexual intercourse without consent, and sen- tenced him to 100 years in prison. In the early morning hours of September 24, 1978, defen- dant observed a young girl leaving a Circle K store in the vicinity of LaSalle, Montana. He followed the girl's car down a gravel road north of town. The girl, a 17 year old Kalispell high school student, stopped her car when she saw the blinking headlights of defendant's car. Defendant approached the victim's stopped car, told her that she had been given the incorrect change at Circle K, and that she could use the C.B. radio in his car to call the Circle K . The victim walked with defendant to his car where defendant pulled her into his car. He drove further down the road and with a pocket knife held to her neck forced the girl out of his car. A struggle ensued in which the girl was cut on the finger and pushed into a ditch where defendant had intercourse with her. Before driving away, defendant told the victim that he would kill her if she left the scene. Later the victim arrived home and informed her parents of the incident. On September 25, 1978, the State filed an information charging defendant with aggravated assault and sexual intercourse without consent. Defendant received notice on October 17, 1978, that the State intended to seek an increased penalty under the persistent felony statute, section 46-18-503, MCA. At his arraign- ment, defendant plead guilty to the charge of sexual intercourse without consent and the State dropped the charge of aggravated assault. On December 13, 1978, the court held hearings to deter- mine whether defendant was a persistent felony offender and to consider aggravating and mitigating circumstances prior to sentencing. At the conclusion of the hearings, the court found that defendant was a persistent felony offender and that there were no mitigating circumstances, and sentenced defendant to 100 years in prison. In this appeal, defendant contends: (1) the trial court erred in admitting a certificate of prior conviction without proof that defendant was the person named in the certificate; (2) the evidence did not support the trial court's conclusion that the facts surrounding this crime indicated the absence of any factors in mitigation of the sentence; (3) a one-hundred year prison term under the circumstances of this case is cruel and unusual punish- ment. We hold that defendant, by failing to make a specific ob- jection, waived his right to assert that the State's certificate of prior conviction is not competent evidence. Defendant was informed well in advance of the time he entered his guilty plea that he would be tried as a persistent felony offender. At the hearing to determine whether defendant was a persistent felony offender, the defendant had an opportunity to object to the State's lack of identification but he failed to do so. When defendant has ample notice and a fair opportunity to raise a specific objection to the State's failure to identify him as the person named in the certificate of prior conviction, he cannot make that assertion for the first time on appeal. See State v . Campbell (1972), 160 Mont. 111, 500 P.2d 801. Defendant's next assertion of error is that the trial court failed to give proper consideration to factors in mitigation of his sentence. Defendant maintains that his criminal tendencies are the result of drinking and sexual problems which could be successfully treated with psychological therapy. He believes that if the trial court gave due consideration to his psychological abnormality, it would have assigned him to a mental treatment center or at least, would have lessened his sentence. We disagree. The trial court held a hearing to determine if aggravating or mitigating factors were present. See section 46-18-223(1), MCA. It found that none of the mitigating circum- stances stated in section 46-18-222, MCA, applied to the present case. The court's findings of fact indicate that it considered defendant's drinking and sexual problems but concluded that these conditions did not excuse defendant from accountability for his acts. The evidence presented at the hearing and in the pre- sentence investigation report supports the trial court's conclu- sion. Defendant has a long criminal record including at least one other conviction for a sexual crime. He has been diagnosed as a sexual sadist with a chronic drinking problem. Previous efforts to treat these conditions at the Winnebago Mental Health Institute, Winnebago, Wisconsin, were unsuccessful largely because defendant did not cooperate with the staff and eventually escaped from the institution. The trial court did not abuse its discretion when it concluded that there were no factors in mitigation of the sentence. See State v . Karathanos (1972), 158 Mont. 461, 469, 493 P.2d 326; State v. Brooks (1967), 150 Mont. 399, 412, 436 P.2d 91. The final issue presented in this appeal is whether a 100 year jail term under the facts of this case is so excessive that it constitutes cruel and unusual punishment. Defendant's sentence is within the maximum allowable by the persistent felony offender statute. Section 46-18-502(1), MCA. As a general rule, sentences within the maximum statutory limits do not violate the Eighth Amendment. Matter of Jones (1978), Mont. , 578 P.2d 1150, 35 St-Rep. 469; State v. Karathanos (1972), 158 Mont. 461, 493 P.2d 326. Defendant must establish that his sentence is an exception to this rule. State v. Kirk- land (1979), Mont . P.2d , 36 St.Rep. 1963, and ' - cases cited therein. The evidence presented here does not establish that the length of the sentence was unconstitutional. The court's 100 year sentence may in defendant's eyes seem inequitable, but it is not so shocking or oppressive as to be cruel and unusual punishment. Challenges to the equitabil- ity of a sentence as opposed to its legality are properly directed to the Sentence Review Board. See section 46-18-901 et seq., MCA; State v. Simtob (1969), 154 Mont. 286, 288, 462 P.2d 873. Affirmed. .................................. Chief Justice Mr. Justice Daniel J. Shea dissents and will file a dissenting opinion later. | December 19, 1979 |
844fed06-962e-45ca-827e-ec805e989c12 | Harris v. State | 2012 MT 16 | DA 11-0260 | Montana | Montana Supreme Court | DA 12-0191 IN THE SUPREME COURT OF THE STATE OF MONTANA 2012 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 |
793c0429-3616-4b63-9f21-1845c0ca3288 | BOARD OF TRUSTEES v STATE EX REL | N/A | 14722 | Montana | Montana Supreme Court | N o . 14722 I N T H E S U P R E M E COURT O F THE STATE O F M O N T A N A BOARD OF TRUSTEES O F BILLINGS S C H O O L DISTRICT NO. 2, of Yellowstone County, Montana, P e t i t i o n e r and Appellant, STATE O F MONTANA, ex rel. BOARD O F PERSONNEL APPEALS and BILLINGS EDUCATION ASSOCIATION, a Montana non-profit corporation, Defendant and Respondent. Appeal from: District Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , Honorable Robert Wilson, Judge presiding. Counsel of Record: For Appellant: James C. Capser argued, B i l l i n g s , Montana For Respondent: H i l l e y and Loring, G r e a t F a l l s , Montana Benjamin H i l l e y argued, Great F a l l s , Montana J e r r y P a i n t e r , Helena, Montana F i l e d : Submitted: September 2 1 , 1979 Decided : mc21 fgg Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. On July 18, 1977, a hearings examiner held that a school teacher had been dismissed in violation of her rights and that the Billings School District (School District) had interfered with this employee's rights. The hearings examiner ordered reinstate- ment with full back pay and benefits. On August 5, 1977, the School District filed exceptions to the order of the hearings examiner. On the day of the hearing on this matter the School District filed a motion to reopen the record to take additional evidence. On November 1, 1977, the Board of Personnel Appeals (BPS) affirmed the findings of fact, conclusions of lawland proposed order of the hearings examiner. The School District filed for judicial review and made a motion to reopen the record before the District Court. The motion was denied and subsequently the District Court affirmed the BPS.. From this judgment the School District appeals. Ms. Widenhofer, the teacher on whose behalf the unfair labor practice charge was filed by the Billings Education Asso- ciation (BEA), was first employed as a teacher in the School Dis- trict during the years 1959-61. In 1973, she was again employed by the School District and taught a sixth grade class at the Poly Drive School during the academic years 1973-76. During this latter period Ms. Widenhofer was an active member of the BEA, serving as an alternate building representative, a member of the Legislative Committee, and a member of the Strike Financial Aid Committee, From the record it appears that the School District was initially satisfied with Ms. Widenhofer's performance as a teacher. During the agency hearing on this matter the BEA introduced as exhibits written evaluations of Ms. Widenhofer's performance as a teacher. These evaluations, which uniformally gave Ms. Widen- hofer good and excellent ratings in all areas, were written by the Poly Drive p r i n c i p a l and d a t e from October 8, 1973, u n t i l March 3 , 1975. The a r e a s upon which t h e evaluations w e r e based included personal traits, teacher-pupil r e l a t i o n s h i p s , i n s t r u c - t i o n s k i l l s , classroom management, s t a f f r e l a t i o n s h i p s and pro- f e s s i o n a l t r a i t s and teacher-pupil-community r e l a t i o n s . During t h i s t i m e M s . Widenhofer was a nontenured teacher. The BEA c a l l e d an economic s t r i k e on October 2, 1975, and M s . Widenhofer, along with e i g h t o t h e r t e a c h e r s a t Poly rive went o u t on s t r i k e . Apparently, 102 nontenured t e a c h e r s i n t h e School D i s t r i c t f a i l e d t o r e p o r t t o work during t h e s t r i k e . M s . Widenhofer had been a c t i v e i n p r e s t r i k e preparations and along with another Poly Drive t e a c h e r , M s . Sayler, a c t i v e l y picketed t h e Poly Drive School. M s Widenhofer had been a c t i v e i n encourag- ing her colleagues t o p a r t i c i p a t e i n and support t h e s t r i k e . M s . Widenhofer was t h e only nontenured Poly Drive teacher t o p i c k e t her own school. H e r picketing was v i s i b l e as t h e p a r e n t s d e l i v e r e d and picked up t h e i r c h i l d r e n from school. O n t h e f i r s t day of t h e s t r i k e , some of M s . Widenhofer's s t u d e n t s u t i l i z e d a n t i - s t r i k e placards. M s . Widenhofer continued t o p i c k e t t h e Poly Drive School u n t i l October 17, 1975. Three days l a t e r , t h e s t r i k e was s e t t l e d . Soon a f t e r t h e s t r i k e was s e t t l e d M s . Widenhofer encounter- ed problems with c e r t a i n p a r e n t s and school o f f i c i a l s . O n Novem- ber 20, 1975, she and M s . Sayler w e r e asked t o meet with a group of seven parents. These p a r e n t s were concerned about a comment M s . Sayler had made concerning her c l a s s . They a l s o w e r e upset with M s . Widenhofer because she had asked a student where her mother had taught during t h e s t r i k e and because she had given a test i n which a l l of her s i x t h grade c l a s s e s had performed poorly. Later, t h e p a r e n t s of another c h i l d c a m e t o school .,.cry upset and requested a conference with M s . Widenhofer i n regard t o her questioning of t h e i r c h i l d a s t o t h e method i n which a homework assignment was done. As to these and other poststrike events the hearings examiner made the following findings: "10. On November 20, 1975, a group of seven parents asked to have a meeting with Ms. Sayler and Ms. Widenhofer. One of the parents involved was Ms. Bowman. "a. Notice of the meeting was given to the two teachers involved after lunch that there was going to be a meeting with the parents that after- noon. "b. The meeting concerned a question asked by Ms. Widenhofer of Ms. Bowman's daughter, Amy, as to which school Ms. Bowman taught at during the strike. Evidently Ms. Bowman filled in as a teacher when the teachers struck. Ms. Bowman claimed that the school was intimidating and psycho- logically damaging her child by asking this type of question of Amy. "c. The other parents at the conference were parents of Ms. Saylerts students and they were annoyed because Ms. Sayler had told them that the group of sixth graders were a tough group to handle. "d. Finally the parents were upset because Ms. Widenhofer had given a test in which the four sixth grade classes h ~ d done poorly. "11. After the meeting with the parents, Ms. Sayler and Ms. Widenhofer expressed their concern over the meeting to M r . Croff, the school principal, and stated that the next time they would either: like to have a tape recorder or a BEA representative present. Mr. Croff stated that a tape recorder could not be used without the permission of all persons present at the meeting and also said that the meeting con- cerned the teachers and parents and to keep the BEA out of it. "12. At the same conversation with Mr. Croff, Mr. Croff indicated to Ms. Widenhofer that he was dis- appointed that she had gone out on strike against him because he had hired her. "13. In another incident, Ms. Widenhofer assigned her class to make a family coat of arms. One child made the coat of arms on old paper. Ms. Widenhofer questioned the child if she had done it. When the child replied, 'yest, Ms. Widenhofer pointed out that the paper was old and the scotch tape was yellowed. The parents of the child came to the school very upset and explained that the child had used materials that the mother had kept from when she had taught kindergarten. "a. Mr. Croff did not attend the meeting with the parents even though it was his policy to usually attend meetings with parents and teachers. "14. On January 28, 1976, Ms. Widenhofer and Ms. Sayler again talked to Mr. Croff concerning some rumors that there was a drive to have them removed from their teaching position. Mr. Croff remarked that the rumors were from the BEA rumor mill. Mr. Croff went on to remark that he had heard rumors that there was a petition being circulated concern- ing Ms. Widenhofer's removal. "15. On February 3, 1976, Mr. Frank, assistant super- intendent of school [sic] in the elementary division visited Ms. Widenhofer's room. No written evaluation resulted from that visit. "a. After Mr. Frank visited Ms. Widenhofer's room, Ms. Widenhofer had a conference with Mr. Frank. Mr. Frank indicated that he was not there to save Ms. Widenhofer's life or skin, that it might be too late for that. Mr. Frank indicated that everyone else in the district had gotten back to normal after the strike except Ms. Widenhofer, that she had held a grudge and that she had upset several parents, and that he had had several phone calls about it. He went on to state that Ms. Widenhofer was not getting along with the staff at Poly Drive and that he, Mr. Frank, did not feel welcome in Ms. Widenhofer's room. "b. Ms. Widenhofer asked if Mr. Frank thought a transfer would be feasible. Mr. Frank stated no, that they would not bow to parent pressure any more as far as transfers go. "c. Mr. Frank said no one should know what was said during the conference except for Ms. Widenhofer's husband. Mr. Frank's suggestion for improvement was that Ms. Widenhofer try to be pleasant and smile a lot. Nothing was said about Ms. Widenhofer's class- room performance. "16. Mr. Frank again visited Ms. Widenhofer's class- room on February 12, 1976. Upon his leaving Ms. Widenhofer asked if he had heard anything more from any parents. Mr. Frank said no, and said that he knew Ms. Widenhofer could do the job, just keep smiling. "17. On February 20, 1976, Ms. Widenhofer had a discussion with Mr. Croff. l t r . Croff came into her classroom when she was free and said that nine letters had been admitted to the school board, to Mr. Frank and himself, by parents who were unhappy with what Ms. Widenhofer was doing. "a. Four of the letters had been written by par- ents whose children had been in Ms. Widenhofer's class in previous years. "b. Although Ms. Widenhofer requested to see them, and although Mr. Croff agreed to show them to her, later he changed his mind and decided that she should not see them since they had been addressed to him. "18. On February 20, 1976, Mr. Croff asked Ms. Widenhofer how she felt about the situation and if she would ever strike again. Ms. Widenhofer responded that she would never put her family through it again. "a. Ms. Widenhofer asked Mr. Croff if he felt all the problems she was having were strike related. Mr. Croff responded that he felt that they were directly strike related. That the parents had indicated to Mr. Croff that they were unhappy with Ms. Widenhofer because she had gone out on strike. "19. Mr. Frank again visited Ms. Widenhofer's class- room on February 24, 1976. Mr. Frank's only comment was to keep smiling. "20. Mr. Croff told Ms. Widenhofer that he had to attend a school board meeting to discuss Ms. Widen- hofer's evaluation. After the meeting he came into Ms. Widenhofer's classroom and told her that he had said as many positive things about her as he could, but that he did not feel that any decision had been reached at that time." (Citations to transcript omitted. ) On December 19, 1975, Ms. Widenhofer was again evaluated by Mr. Croff. The hearing examiner found that the tenor of this evaluation was negative with respect to Ms. Widenhofer's teaching performance. The evaluation contained the following comments: "You have demonstrated support for your professional organization." While Ms. Widenhofer's request for a transfer was refused by Mr. Frank, Ms. Sayler, the other Poly Drive teacher who picketed her own school, but who was tenured, received a transfer for the next school year. At one point Mr. Croff made it clear to Ms. Widenhofer that "all of this trouble" was caused by her membership in the BEA. On or about March 16, 1976, the School Board met and dis- cussed the matter of the renewal of Ms. Widenhofer's employment contract. The record establishes that the school board questioned Mr. Frank and Mr. Croff closely concerning Ms. Widenhofer and their evaluations of her. Ms. Widenhofer was informed by a school board member, Ms. Heizer, that no one had been fired at the March 16, 1976, meeting. Nevertheless, the official minutes of the School District for that meeting indicate t h i l t the decision to terminate Ms. Widenhofer's employment was made on that date. Ms. Widenhofer was notified by letter of the Board's decision on April 9, 1976. This letter stated, in part, that "[tlhe reason for nonrenewal is unsatisfactory evaluations by your Principal." The issues presented by this appeal are as follows: I . Did the BEA meet its burden of proof requirement in establishing that an unfair labor practice had occurred? 11. Was it error for the BPA and the District Court to affirm the hearing examiner in the absence of evidence which established that the Board of Trustees of the School District knew of Ms. Widenhofer's strike activities? 111. Was it error for the hearings examiner, the BPA, and the District Court to fail to make the finding that Ms. Widen- hofer's discharge would not have occurred 'but for' her protected, union activity? Appellants are contending that there is an insufficiency of proof to show that an unfair labor practice occurred in this case. The complaint which was originally filed in this action alleged violations of section 39-31-401(1) & (3), MCA. These statutes define unfair labor practices of public employers. In the event of a charge of an unfair labor practice under these statutes the Board of Personnel Appeals must conduct a hearing. Section 39-31-405, MCA. The complainant's case must be established by a preponderance of the evidence before an unfair labor practice may be found. Section 39-31-406, MCA. The scope of judicial review for an unfair labor practice case 1 . s provided by section 39-31-409, MCA. This statute provides, in essence, that the courts are not to substitute their judgment for that of the agency. The findings of the board as to questions of fact are conclusive if supported by substantial evidence on the record considered as a whole. Section 39-31-409(4). In Vita Rich Dairy, Inc. v . Dept. of Business Regulations (1976), 170 Mont. 341, 553 P.2d 980, this Court had occasion to discuss and comment upon the purposes of limited judicial re- view of agency decisions. Several reasons are given for the desirability of this approach. This Court summarized one of the reviewing court's functions as follows: "The agency's actions need a balancing check. In the absence of a body within the agency which is separated from the actual decision and in which all parties have confidence, a limited judicial inquiry to see (a) that a fair procedure was used, (b) that questions of law were properly decided and, (c) that the decision is supported by substantial evidence is necessary." 170 Mont. at 345. "Substantial evidence has been defined by this Court as such as will convince reasonable men and on which such men may not reasonably differ as to whether it establishes the plaintiff's case, and, if all reasonable men must conclude that the evi- dence does not establish such case, then it is not substantial evidence. The evidence may be inherently weak and still be deemed 'substantial', and one witness may be sufficient to establish the preponder- ance of a case." Olson v . West Fork Properties, Inc. (1976), 171 Mont. 154, 158, 557 P.2d 821. In the instant case the agency decision is well documented. The references to anti-union animus of the parents and of Mr. Croff and Mr. Frank runs to several pages. Some of the more striking examples are: Mr. Frank's comments on February 3, 1976, to the effect that he could not save Ms. Widenhofer's "skin" and that everyone else was back to normal after the strike; the fact that only the detrimental letters appeared in Ms. Widenhofer's file; Mr. Croff's statements that Ms. Widenhofer's problems were all strike related; and Mr. Croff's remarks that the parei1.t~ were un- happy over Ms. Widenhofer's strike activities. This evidence stands uncontradicted. There are more examples of anti-union animus, but the above examples serve the purpose of establishing substantial evidence. This Court finds that there was substantial evidence to support the finding of anti-union animus and the commission of an unfair labor practice. The appellants allege that it was error to find an unfair labor practice where the hearings examiner made a finding that x . h e trustees did not know of Ms. Widenhofer's union activities. There are no Montana cases which deal with this precise point. Therefore, it is helpful to consider cases from jurisdictions which have dealt with the issue of the employer's knowledge of the employee's protected union activities. There are federal cases which discuss the knowledge requirement under S8(a)(3) of the National Labor Relations Act. 29 U.S.C. 158(a) (3). This federal statute is identical, in pertinent part, to the statute under which the instant case was brought. Section 39-31-401(3), MCA. These statutes say: "It shall be [is] an unfair labor practice for an [a public] employer [to] : "(3) by discrimination [discriminate] in regard to hire or tenure of employment or any term or condition of employment [in order] to encourage or discourage membership in any labor organization . . ." (Differ- ences in Montana Act are bracketed,) In NLRB v . Whitin Machine Works (1st Cir. 1953), 204 F.2d 883, the Court said: "When a charge is made that by firing an employee the employer has exceeded the lawful limits of his right to manage and to discipline, substantial evidence must be adduced to support at least three points. First, it must be shown that the employer knew that the employee was engaging in some activity protected by the Act. Second, it must be shown that the employee was discharg3d because he had engaged in a protected activity. (Cites omitted.) Third, it must be shown that the discharge had the effect of encouraging or discouraging membership in a labor organization. (Cites omitted.) The first and second points con- stitute discrimination and the practically automatic inference as to the third point results in a violation of S8(a)(3)." 204 F.2d at 884. In the instant case, the trustees had the sole authority to hire and fire teachers. The hearings examiner found that the trustees were unaware of Ms. Widenhofer's union activities. The hearing examiner dealt with this point as follows: " . . . since Mr. Croff is an agent of the school board, the school board is responsible for his behavior and having dismissed Mrs. Widenhofer because of Mr. Croff's evaluation as was stated in her letter of nonrenewal, they terminated Ms. Widenhofer because of her union activity." We hold that the appellants have committed an unfair labor practice despite the trustees' lack of knowledge of Ms. Widenhofer's union activities. Under the usual employer-employee relationship, there cannot be discrimination unless the employer knows of the protected activity. However, in the circumstances presented by this case, we are not dealing with a usual employee-employer relationship. The authority to hire or not hire is vested with the trustees, but their decision not to hire in this case was based on a tainted evaluation. The hearings examiner found a direct connection between the tainted evaluation and the decision not to hire. In other words, Ms. Widenhofer was denied employment be- cause of her protected union activities. This violates her rights under section 39-31-401, MCA. We reach this decision without imputing knowledge to the trustees. An anti-union act was committed when Mr. Croff presented the tainted evaluation to the trustees. The trustees are respon- sible for this action by Mr. Croff. They relied upon this eval- uation, thereby committing the prohibited act of discrimination. They may not insulate themselves by claiming lack of knowledge. If we were not to adopt such a policy a school board could violate a public employee's rights with impunity in almost every instance. We do not believe that the legislature intended that public employees' rights should be disregarded in such a manner. Appellant's last contention concerns the application of the correct legal test to be used in a case where the employer's motivation is a material question. The task of determining moti- vation is not easy, and agencies and courts must rely on the out- ward manifestations of the employer's subjective intent. The task is compounded in employment cases where there exist permissible and impermissible reasons for a particular discharge. This is a problem of dual motivation. Ms. Widenhofer was a nontenured teacher. The services of a nontenured school teacher may be terminated without cause, as long as the termination is not because of an impermissible reason. Branch v . School District No. 7 (D.C. Mont. 1977), 432 F.Supp.608, 609. Since no reason need be given for dismissing a nontenured teacher such as Ms. Widenhofer, the present case presents a dual motivation problem. Courts have devised several tests to use when confronted with this problem. The trouble with most of these tests is that employees could conceivably place themselves in a better position by engaging in protected activity than they would have been had they not engaged in such conduct. The United States Supreme Court had occasion to address and resolve this situation in Mt. Healthy City Board of Education v . Doyle (1977), 429 U.S. 274, 97 S.Ct. 568, 50 L Ed 2d 471. In Mt. Healthy a nontenured school teacher was fired. There were several reasons given for this action. One of the rea- sons for the termination was a protected free speech activity. There were additional reasons which involved nonprotected activity and these additional reasons were adequate reasons to discharge a teacher. The lower court held that the teacher could not be dis- charged because one of the reasons given involved a protected ac- tivity. The Supreme Court reversed the lower court on the issue of motivation or causation. The Supreme Court handled the problem as follows: "A rule of causation which focuses solely on whether protected conduct played a part, 'sub- stantial' or otherwise, in a decision not to rehire, could place an employee in a better posi- tion as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing. The difficulty with the rule enunciated by the District Court is that it would require reinstatement in cases where a dramatic and perhaps abrasive incident is inevitably on the minds of those responsible for the decision to rehire, and does indeed play a part in that decision--even if the same decision would have been reached had the incident not occurred. The constitutional principal at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct. A borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct. But that same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record, simply because the protected con- duct makes the employer more certain of the correct- ness of its decision. "This is especially true where, as the District Court observed was the case here, the current decision to rehire will accord 'tenure'. The long- term consequences of an award of tenure are of great moment both to the employee and the employer. They are too significant for us to hold that the Board in this case would be precluded, because it considered constitutionally protected conduct in deciding not to rehire Doyle, from attempting to prove to a trier of the fact that quite apart from such conduct Doyle's record was such that he would not have been rehired in any event. "Initially, in this case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that this con- duct was a'substantial factorf--or, to put it in other words, that it was a 'motivating factor' in the Board's decision not to rehire him. Respondent having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent's re-employment even in the absence of the protected conduct." 429 U.S. at 285-287. Even though the Mt. Healthy "but for'' test dealt with first amendment rights, some Federal Circuit Courts have adopted this test in labor law dual motivation cases. The First Circuit specifically adopted this test in Coletti's Furniture, Inc. v. NLRB (1st Cir. 1977), 550 F.2d 1292. This was reaffirmed in NLRB v . Rich's of Plymouth, Inc. (1st Cir. 1978), 578 F.2d 880, 887. The Second Circuit has also applied the Mt. Healthy causation test to the federal labor law field in the case of United States v . Winston (2nd Cir. 1977), 558 F. 2d 105, 110. On the other hand the Fifth Circuit has refused to adopt the Mt. Healthy test in labor law cases. In Federal Mogul Corp. v. NLRB (5th Cir. 1978), 566 F.2d 1245, 1265, Thornberry, J. spec- ially concurring,said: "The Supreme Court has utilized a 'but for' test in first amendment cases, e.g., Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L Ed 2d 471 (1977), but that hardly means the test is appropriate in the labor context. In Mt. Healthy the Court, as it has done so often, struck a balance between competing interests. Sim- ilar competing interests exist in-the labor setting, but there Congress has already established a balance by passing the labor laws. That balance favors the employee, for Congress clearly recognized the superior bargaining position of the employer. See American Shipbuilding Co. v . N.L.R.B., 380 U . S . 300, 316, 85 S.Ct. 955, 966, 13 L Ed 2d 855 (1965) (labor laws attempt to redress the 'imbalance of economic power between labor and management'). The 'but for' standard significantly restrikes this balance in favor of the employer, and such a test is contrary to Congressional policy and the case law in this Circuit." We do not find in the Montana statutes a policy which tips the balance in favor of either the public employee or employer. The policy is stated in pertinent part, as follows: " . . . it is the policy of the state of Montana to encourage the practice and procedure of collec- tive bargaining to arrive at friendly adjustment of all disputes between public employers and their employees." Section 39-31-101, MCA. It must be noted, as it was in Federal Mogul, that the courts are attempting to balance competing interests. Mt. Healthy balanced first amendment rights against the need of a school dis- trict to be able to dismiss a person who obviously deserved to be dismissed for permissible reasons. Labor law rights under Montana law should not be given a higher degree of protection than federal first amendment rights are given. The Mt. Healthy 'huc for' test is adopted for dual-motivation cases under Montana's Collective Bargaining Act. This adequately protects the interests and rights of both parties. In the instant case it is not readily apparent which test the hearings examiner applied. The language used by the hearings examiner is as follows: " . . . it becomes clear that this Board's author- ity is limited to that instance where it can be shown that an employee was discharged for union activity. However, if the discharge was partially motivated by the employee's union activity, it is unlawful. Finally if there is substantial evidence that an employee was illegally discharged for union activity, then the burden is on management to show the reason for discharge was not union related." (Emphasis added.) A comparison of this language with the following Mt. Healthy passage is instructive: " . . . the District Court should have qone on to determine whether the Board had shown b ; a prepon- derance of the evidence that it would have reached the same decision as to respondent's reemployment even in the absence of the protected conduct." (Emphasis added.) 429 U.S. at 287. Even though the two passages are not identical they are saying the same thing. The hearings examiner was, in essence, using the 'but for' test. Affirmed. w g e , sitting in place of Mr. J u w e John C. Sheehy. - i 7 Chief Justice | December 21, 1979 |
d1726ea7-f114-408f-a19d-fb202b9c9956 | Situ v. Smole | 2013 MT 33 | DA 12-0329 | Montana | Montana Supreme Court | DA 12-0329 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 33 MING DA SITU and PEI SHU ZHOU, Plaintiffs and Appellants, v. H. DOUGLAS SMOLE, as successor trustee of the LOIS M. MURPHY revocable trust, Defendant and Appellee. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV-2009-732 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellants: R. J. “Jim” Sewell, Jr., Scott H. Clement, Smith Law Firm, P.C., Helena, Montana For Appellee: Scott M. Svee, Jackson, Murdo & Grant, P.C., Helena, Montana Submitted on Briefs: December 19, 2012 Decided: February 12, 2013 Filed: __________________________________________ Clerk February 12 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Ming Da Situ and Pei Shu Zhou (collectively “Situs”) appeal from an order and judgment of the First Judicial District Court, Lewis and Clark County, dismissing Situs’ breach of lease claim on statute of limitation grounds and granting judgment in favor of Lois M. Murphy1 (Murphy). We affirm. ISSUES ¶2 Situs raise the following two issues on appeal: ¶3 1. Did the District Court err in granting Murphy’s motion to dismiss in light of Situs’ presentation of facts to demonstrate that the statute of limitations had not expired, as well as facts to demonstrate that Murphy should have been estopped from claiming the statute of limitations as a defense? ¶4 2. Did the District Court improperly consider matters outside the pleadings in ruling on Murphy’s motion to dismiss, and fail to provide proper notice and an opportunity for the Situs to present all pertinent materials pursuant to a M. R. Civ. P. 56 motion for summary judgment? FACTUAL AND PROCEDURAL BACKGROUND ¶5 On or about October 14, 1989, the Situs acquired the assets of a restaurant located at 1306 Euclid Avenue, in Helena, Montana. The real property on which the restaurant building was located was and continues to be owned by Murphy. Situs and Murphy 1 Lois M. Murphy passed away during the pendency of this case before the District Court. H. Douglas Smole, as successor trustee of the Lois M. Murphy revocable trust, has been substituted as a party to the proceedings. 3 entered into a Memorandum of Agreement (the “Lease”) dated October 4, 1989, that granted Situs a ten-year lease of Murphy’s real property on which the building was situated. The Lease required Situs to make monthly payments of $175 to Murphy. The Lease granted Situs the option to purchase Murphy’s real property at the October 3, 1999 expiration of the Lease. The relevant provision of the Lease provided as follows: IT IS FURTHER AGREED, that at the expiration of the full term of the within lease agreement, [Situs] shall have, and are hereby granted, an option to purchase from [Murphy] the land which is the subject matter of this lease, at a price mutually agreeable to the parties, it being understood and agreed that in the event that the parties hereto find themselves unable to reach agreement as to the fair value of said land (exclusive of improvements other than paving) at the date of exercise of said option, that parties shall hire mutually acceptable independent qualified appraisers at mutual expense, to evaluate said land, and it is understood and agreed that the parties hereto shall accept said appraisal as fully determinative of the purchase price to be paid. ¶6 Situs claimed that they provided written notice to Murphy of their interest in purchasing the property, although the date of such notice was not provided. Situs alleged that Murphy agreed to the appointment of an independent appraiser on September 28, 2000, but Murphy never followed through in procuring an appraisal. ¶7 Situs continued to pay Murphy $175 per month until April 2008. In April 2008, Murphy sent Situs a written notice that the monthly rental rate would increase to $650 per month beginning May 1, 2008. Situs ignored this notice and continued to pay $175 per month through March 2009. Murphy served Situs with written notice of tenancy termination dated March 31, 2009. The notice demanded unpaid rent in the amount of $5,700, which represented the difference between the $650 monthly payment demanded by Murphy and the $175 monthly payments made by Situs over the course of the 4 preceding year. Situs continued to send monthly payments of $175 to Murphy through August 2009. Murphy rejected all of Situs monthly payments that occurred after Murphy sent notice of tenancy termination. ¶8 On August 17, 2009, Situs filed a complaint in District Court requesting a declaratory judgment and order requiring Murphy to select an independent appraiser and sell the property. In addition, Situs sought damages for loss of prospective sales from their restaurant business allegedly caused by Murphy’s breach of the Lease, together with costs and attorney fees. Murphy filed an answer on September 4, 2009, which included a counterclaim for unlawful detainer. Murphy also filed a motion to dismiss the complaint pursuant to M. R. Civ. P. 12(b)(6) arguing that the applicable statute of limitations had expired. On July 22, 2010, the District Court dismissed Situs’ complaint on statute of limitations grounds. Situs attempted to appeal the District Court’s dismissal of their complaint to this Court, but their appeal was dismissed because Murphy’s counterclaim was still pending in District Court. ¶9 On April 14, 2011, Murphy filed a motion for summary judgment on her counterclaim for unlawful detainer. The District Court held oral argument on the motion for summary judgment on August 9, 2011, and granted summary judgment in favor of Murphy in an order dated January 19, 2012. The District Court determined that Murphy was entitled to recover the requested rent, trebled for any amounts due after May 1, 2009. The District Court also ordered Situs to vacate the property within 30 days. A subsequent April 26, 2012 order granted Situs an additional 60 days to vacate the property. On May 30, 2012, the District Court entered a final judgment requiring Situs to remove all of their 5 property from Murphy’s lot by June 25, 2012, and awarding Murphy $5,700 in unpaid rent and trebled rent totaling $66,300 for all rent due after May 1, 2009. ¶10 Situs ask the Court to vacate the grant of summary judgment on Murphy’s unlawful detainer counterclaim should the Court determine that the District Court erred in granting Murphy’s motion to dismiss, but they do not directly challenge any of the District Court’s conclusions regarding Murphy’s counterclaim on appeal. Rather, their appeal is limited to a review of the District Court’s decision to dismiss the Situs’ complaint on statute of limitations grounds. STANDARDS OF REVIEW ¶11 We review de novo a district court’s ruling on a motion to dismiss for failure to state a claim pursuant to M. R. Civ. P. 12(b)(6). Meagher v. Butte-Silver Bow City-County, 2007 MT 129, ¶ 13, 337 Mont. 339, 160 P.3d 552; Plouffe v. State, 2003 MT 62, ¶ 8, 314 Mont. 413, 66 P.3d 316. The determination of whether a complaint states a claim is a conclusion of law, and the district court’s conclusions of law are reviewed for correctness. Farmers Coop. Ass’n v. Amsden, 2007 MT 287, ¶ 9, 339 Mont. 452, 171 P.3d 684; Guest v. McLaverty, 2006 MT 150, ¶ 2, 332 Mont. 421, 138 P.3d 812. DISCUSSION ¶12 Did the District Court err in granting Murphy’s motion to dismiss in light of Situs’ presentation of sufficient facts to demonstrate that the statute of limitations had not expired, as well as facts to demonstrate that Murphy should have been estopped from claiming the statute of limitations as a defense? ¶13 A motion to dismiss under M. R. Civ. P. 12(b)(6) allows the district court to examine only whether “a claim has been adequately stated in the complaint.” Meagher, 6 ¶ 15. The court is limited to an examination of the contents of the complaint in making its determination of adequacy. Meagher, ¶ 15. The effect of a Rule 12(b)(6) motion to dismiss is that all of the well-pleaded allegations in the complaint are admitted as true, and the complaint is construed in the light most favorable to the plaintiff. Amsden, ¶ 9; Plouffe, ¶ 8. Therefore, we will affirm the district court’s dismissal only if we conclude that the plaintiff would not be entitled to relief based on any set of facts that could be proven to support the claim. Guest, ¶ 2; Plouffe, ¶ 8. ¶14 The District Court determined that under Situs’ version of the facts as alleged in the complaint, their claims would be barred by the statute of limitations. The District Court relied on § 27-2-202(1), MCA, which states that the “period prescribed for the commencement of an action upon any contract, obligation, or liability founded upon an instrument in writing is within 8 years.” Since the written Lease expired in October 1999, the District Court reasoned that § 27-2-202(1), MCA, would function to bar any contract claim commenced after October 2007. Alternatively, the District Court determined that any implied contract claim would be barred by § 27-2-202(2), MCA, which provides that the “period prescribed for the commencement of an action upon a contract, account, or promise not founded on an instrument in writing is within 5 years.” The District Court concluded that the impliedly renewed lease agreement ended in October 2000, so any action commenced after October 2005 would be time-barred by this provision. ¶15 Situs argue that the District Court erred in dismissing their complaint because they effectively alleged a sufficient set of facts to state a claim. Situs maintain that Murphy’s 7 repudiation took place in November 2007, which would extend the statute of limitations until 2015. Situs rely on Wright v. Brooks, 47 Mont. 99, 130 P. 968 (1913), to support their contention that notwithstanding a specific repudiation of an obligation by a vendor, a vendee in possession is not barred from suing for specific performance by delay, as his possession is the continued assertion of his claim. ¶16 Wright involved a claim for specific performance by a buyer under an oral contract for the sale of real estate. The agreement to sell the property was made in 1898, and the lawsuit was commenced over thirteen years later, in 1911. Wright, 47 Mont. at 108, 130 P. at 969. The buyer possessed and improved the property during this thirteen-year period. Wright, 47 Mont. at 106, 130 P. at 968. The Court cited to the general rule that specific performance will be ordered in cases where the buyer takes possession and makes improvements with the seller’s knowledge or consent. Wright, 47 Mont. at 108, 130 P. at 969. The Court determined that “where the vendee has made repeated efforts to pay, and stands ready, able and willing to pay, the vendor is placed in the same position as though payment had been made; that is to say, he holds the legal title in trust for the vendee.” Wright, 47 Mont. at 108, 130 P. at 969. Under this theory, the Court held that the statute of limitations does not commence to run until the vendor has in some manner disavowed his trust. Wright, 47 Mont. at 109, 130 P. at 969. ¶17 We find Wright distinguishable from the instant case in several important ways. First, the Lease merely granted Situs an option to purchase the real property, with the terms of the deal to be settled at a later date only if the option was exercised. This stands in contrast to Wright, where all that remained under the agreement was the exchange of 8 money for title. Under these facts, it cannot be said that Murphy held title to the real property in trust for Situs. Second, Situs were not standing ready to tender a previously agreed-upon sum which Murphy expressly rejected. Situs failed to timely complete the steps needed to arrive at a fair market price or timely commence an action to protect their rights. Third, Situs possessed the real estate under a lease, unlike in Wright, where the possession of the land was pursuant to a contract for purchase. The factual and legal distinctions between Wright and the instant case render it unpersuasive. ¶18 More recent decisions from this Court are instructive. In Nevala v. McKay, 178 Mont. 327, 583 P.2d 1065 (1978), the lessor agreed to lease a parcel of ranch land to lessee from 1964 to 1971, and the lease was to continue thereafter on a year-to-year basis unless terminated by one of the parties. The lease also granted the lessee a right of first refusal if the lessor decided to sell the land. Nevala, 178 Mont. at 328-29, 583 P.2d at 1066. Instead of executing written one-year extensions, the parties wrote a three-year handwritten extension of the lease to December 1, 1974, by writing on the back of the original lease. Nevala, 178 Mont. at 329, 583 P.2d at 1066. After 1974, the Nevalas stayed on the farm until 1975 with no written lease extensions. Nevala, 178 Mont. at 329, 583 P.2d at 1066. In September 1975, the lessor offered to sell the land to the lessee, but before the lessee obtained financing and tendered the purchase money, the lessor sold the land to a third party. Nevala, 178 Mont. at 329, 583 P.2d at 1067. The lessee sought specific performance of the right of first refusal contained in the lease. Nevala, 178 Mont. at 330, 583 P.2d at 1067. 9 ¶19 We held that the lessee was a holdover tenant when he attempted to assert his right of first refusal, and as such, the lessee had no right to exercise the right of first refusal. Nevala, 178 Mont. at 332, 583 P.2d at 1068. This Court recognized that “a few jurisdictions have allowed holdover tenants to exercise an option to purchase or right of first refusal during the holdover period, but by far the greater weight of authority is that such option or right cannot be exercised by a lessee holding over after the expiration of the lease.” Nevala, 178 Mont. at 332, 583 P.2d at 1068. In reaching its conclusion, the Court rejected the lessee’s contention that every provision of an expired lease is extended into a holdover period based on the language of § 42-205, R.C.M. (1947),2 which provided as follows: If a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessor accepts a rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one month, when the rent is payable monthly, nor in any case one year. The Court also relied on Miller v. Meredith, 149 Mont. 125, 423 P.2d 595 (1967) (overruled on other grounds by Rasmussen v. Lee, 276 Mont. 84, 916 P.2d 98 (1996)), in which we explicitly held that an option to purchase does not carry over into a holdover tenancy because the lease and the option are distinct agreements. ¶20 The Lease granted Situs an option to purchase the real estate “at the expiration of the full term” of the Lease, which expired pursuant to its terms on October 3, 1999. The Lease did not contain any language permitting renewal or extension beyond the Lease 2 The current version of § 42-205, R.C.M. (1947), is similar in pertinent parts and contained in § 70-26-204, MCA. 10 term. Following the expiration of the Lease, Situs continued to pay monthly rent in the same amount as set forth in the Lease. Situs occupied the premises as holdover tenants until receiving a notice of termination on March 31, 2009. The notice of termination ended the holdover tenancy as of May 1, 2009. ¶21 As discussed in Nevala and Miller, the option to purchase in the Lease is a covenant which is separate from and independent of the Lease. The option to purchase was not a term of the tenancy. Therefore, the option to purchase does not extend throughout the pendency of the holdover tenancy and cannot be exercised at any point later than granted by the Lease. Section 70-26-204, MCA, states that: If a lessee of real property leased under an arrangement not governed by Title 70, chapter 24,3 remains in possession of the property after the expiration of the hiring and the lessor accepts rent from the lessee, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding 1 month when the rent is payable monthly, or in any case 1 year. The option to purchase accrued at the termination of the Lease on October 3, 1999. While a reasonable period of time must be granted to Situs to exercise the option, the contractual basis for the option to purchase does not extend indefinitely through a holdover period. Pursuant to § 70-26-204, MCA, Situs maintained a renewed month-to-month lease on the same terms of tenancy as the original Lease,4 but the option 3 Title 70, chapter 24, is the Residential Landlord and Tenant Act of 1977, and does not apply to commercial properties. 4 As discussed in Willson v. Terry, 265 Mont. 119, 874 P.2d 1234 (1994), a renewal of a lease pursuant to § 70-26-204, MCA, cannot be presumed to contain all the terms of the initial written agreement when renewed beyond one year. 11 to purchase was a separate and independent covenant, which is not statutorily renewed as a term of tenancy absent some language in the contract providing for renewal. ¶22 According to the allegations in the complaint, Situs exercised their right to purchase the real estate from Murphy by written notice. The parties were initially unable to agree on a purchase price. Situs allege that Murphy agreed to appoint an appraiser to determine the fair market value of the property on September 28, 2000. However, Murphy did not follow through and no appraisal was performed. Pursuant to § 27-2-202(1), MCA, an action to enforce a contract provision must be commenced within eight years. Generally, “a claim or cause of action accrues when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action.” Section 27-2-102(1)(a), MCA. Montana law states that: Where a right exists but a demand is necessary to entitle a person to maintain an action, the time within which the action must be commenced must be computed from the time when the demand is made, except where the right grows out of the receipt or detention of money or property by an agent, trustee, attorney, or other person acting in a fiduciary capacity, the time must be computed from the time when the person having the right to make the demand has actual knowledge of the facts upon which that right depends. Section 27-2-301, MCA. ¶23 Relying on §§ 27-2-102(1)(a) and -301, MCA, and the nature of the option to purchase, we conclude that the statute of limitations began to run on Situs’ claims at the time they exercised the option by demanding performance. As noted above, the Situs did not establish in the District Court the actual date upon which they ostensibly provided 12 written notice to Murphy of their interest in purchasing the property. See Opinion, ¶ 6. For purposes of the statute of limitations, however, even if we look to September 28, 2000, the date upon which Situs claim in their complaint that Murphy allegedly agreed to the appointment of an appraiser, the commencement of Situs’ action was still untimely. Situs commenced an action to enforce the option to purchase on August 17, 2009. Situs can prove no set of facts that would demonstrate that they commenced their cause of action within eight years of the exercise of their option, as required by § 27-2-202(1), MCA. Accordingly, we hold that the District Court did not err in granting Murphy’s motion to dismiss Situs’ complaint as time-barred by § 27-2-202(1), MCA. ¶24 Situs also argue that Murphy should be equitably estopped from claiming protection under the statute of limitations. Situs assert that Murphy initially acquiesced when Situs attempted to exercise the option, and that Murphy’s ensuing silence in response to their efforts to get an appraisal induced the Situs into believing that Murphy did not intend to repudiate the contract. ¶25 To succeed on an equitable estoppel claim, a party must prove the following six elements: (1) the existence of conduct, acts, language, or silence amounting to a representation or concealment of material facts; (2) the party estopped must have knowledge of these facts at the time of the representation or concealment, or the circumstances must be such that knowledge is necessarily imputed to that party; (3) the truth concerning these facts must be unknown to the other party at the time it was acted upon; (4) the conduct must be done with the intention or expectation that it will be acted upon by the other party, or have occurred under circumstances showing it to be both 13 natural and probable that it will be acted upon; (5) the conduct must be relied upon by the other party and lead that party to act; and (6) the other party must in fact act upon the conduct in such a manner as to change its position for the worse. Johnson Farms, Inc. v. Halland, 2012 MT 215, ¶ 28, 366 Mont. 299, ___ P.3d ___; Pankratz Farms, Inc. v. Pankratz, 2004 MT 180, ¶ 67, 322 Mont. 133, 95 P.3d 671. ¶26 We conclude that the doctrine of equitable estoppel has no application under the facts presented here. We have previously determined that Situs did not need to wait until Murphy expressly repudiated the option before commencing an action to enforce the option. This Court has held that estoppel arises “when a party through its acts, conduct, or acquiescence, has caused another party in good faith to change its position for the worse.” Selley v. Liberty Northwest Ins. Corp., 2000 MT 76, ¶ 9, 299 Mont. 127, 998 P.2d 156. We also observed in Selley that the doctrine is intended “to prevent one party from unconscionably taking advantage of a wrong while asserting a strict legal right, and will be invoked where justice, honesty, and fair dealing are promoted.” Selley, ¶ 11 (internal quotations marks omitted). It cannot reasonably be argued that by invoking the statute of limitations after eight years, Murphy acted unconscionably or unjustly, or that Situs were lulled for that long into changing their position for the worse. Situs had eight years to file an action on the contract. We will not fault Murphy for Situs’ failure to act within that time period. ¶27 We hold that Situs have failed to demonstrate a set of facts that would enable them to equitably estop Murphy from raising her statute of limitations defense. 14 ¶28 Did the District Court improperly consider matters outside the pleadings in ruling on Murphy’s motion to dismiss, and fail to provide proper notice and an opportunity for the Situs to present all pertinent materials pursuant to a M. R. Civ. P. 56 motion for summary judgment? ¶29 When presented with a Rule 12(b)(6) motion to dismiss, a district court has the discretion to consider matters presented to it that are outside of the pleadings, but if it chooses to do so, it must treat the motion as one for summary judgment under M. R. Civ. P. 56 and provide notice to the parties of its intention. Lozeau v. GEICO Indem. Co., 2009 MT 136, ¶ 10, 350 Mont. 320, 207 P.3d 316; Meagher, ¶ 16. The district court is required to provide notice to the parties of its intention to convert a motion to dismiss into a motion for summary judgment “to allow the parties a reasonable opportunity to present all material made pertinent to the motion and avoid surprise.” Plouffe, ¶ 15. ¶30 Situs assert that the District Court improperly considered matters beyond the scope of the motion to dismiss because its order dismissing Situs’ claims referenced a fact outside the pleadings in a footnote. The footnote in question reads as follows: The complaint indicates the rent change was March 2009, while an unsigned letter with a handwritten date of April 1, 2008 included within exhibit 1 to Plaintiff’s response to the motion to dismiss states that the rent increase was to begin May 1, 2008. The date the rent increased had no bearing on the District Court’s analysis of the statute of limitations. The footnote merely noted the inconsistencies within Situs’ own filings. The District Court’s inclusion of this fact in a footnote does not convert the motion to dismiss into a motion for summary judgment, and therefore did not deprive Situs of an opportunity to present additional materials for the District Court’s consideration. We 15 hold that the District Court did not improperly consider matters outside the pleadings in reaching its decision to dismiss Situs’ complaint pursuant to Rule 12(b)(6). CONCLUSION ¶31 For the foregoing reasons, we affirm the District Court’s dismissal of Situs’ complaint. /S/ Patricia Cotter We Concur: /S/ Mike McGrath /S/ Beth Baker /S/ Michael E Wheat /S/ Jim Rice | February 12, 2013 |
9f329107-4534-4c27-8ffa-131fac366a5f | Total Indust. Plant Servs. v. Turner Indust. Group, LLC | 2013 MT 5 | DA 11-0769 | Montana | Montana Supreme Court | DA 11-0769 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 5 TOTAL INDUSTRIAL PLANT SERVICES, INC., an Oklahoma corporation, Plaintiff, Appellant, and Cross-Appellee, v. TURNER INDUSTRIES GROUP, LLC., a Louisiana limited liability company; CHS, INC., a Minnesota corporation; and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Maryland corporation, Defendants and Appellees, and Cross-Appellants. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 09-1688 Honorable Gregory R. Todd, Presiding Judge COUNSEL OF RECORD: For Appellant: Jon E. Doak, Doak & Associates, P.C., Billings, Montana Norman A. Abood, Attorney at Law, Toledo, Ohio For Appellee: Alan L. Joscelyn; KD Feeback; Gough, Shanahan, Johnson &Waterman, PLLP, Helena, Montana Submitted on Briefs: October 10, 2012 Decided: January 15, 2013 Filed: __________________________________________ Clerk January 15 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Total Industrial Plant Services, Inc. (“TIPS”), appeals the District Court’s entry of judgment in favor of defendants Turner Industries Group, LLC (“Turner”), and Fidelity and Deposit Company of Maryland (“Fidelity”), dismissing TIPS’s claims for additional compensation under either quantum meruit or breach of contract, awarding fees and costs to Turner, and finding TIPS’s construction lien time barred by operation of § 71-3-535, MCA. Turner cross-appeals, arguing the District Court erred both by granting TIPS partial summary judgment on the return of retainage and by dismissing Turner’s bill of costs as being untimely filed. ISSUES ¶2 We restate the issues on appeal as follows: ¶3 1. Did the District Court err by denying TIPS’s claim for additional compensation under a theory of either quantum meruit or breach of contract? ¶4 2. Did the District Court err by failing to find that TIPS was the prevailing party and awarding costs and fees to Turner? ¶5 3. Did the District Court err by finding TIPS’s construction lien was barred by the 90-day statute of limitations found in § 71-3-535, MCA? ¶6 4. Did the District Court err by granting partial summary judgment to TIPS and ordering Turner to return the retainage? ¶7 5. Did the District Court err by dismissing Turner’s bill of costs for being untimely filed pursuant to § 25-10-501, MCA? FACTUAL AND PROCEDURAL BACKGROUND 3 ¶8 This appeal stems from a construction contract dispute between TIPS, an Oklahoma corporation, and Turner, a limited liability company formed in Louisiana. Fidelity and Deposit Company of Maryland (“Fidelity”) is the surety for Turner’s substitution bond filed in November of 2008 in lieu of TIPS’s construction lien. ¶9 Turner entered into a written subcontract with TIPS to install insulation at a “coker” unit at a refinery in Laurel, Montana, on April 14, 2007. Turner also entered into two other subcontracts with TIPS for fireproofing and painting the coker, neither of which is at issue. Cenex Harvest States (“CHS”) owns the refinery and hired Turner to act as the general contractor on the coker project. The initial subcontract between Turner and TIPS was to be paid as a fixed price totaling $2,336,967.00, with payment rendered by percentage of completion. The subcontract further provided that TIPS was responsible for the costs of all labor, services, and materials. ¶10 The original subcontract contemplated a start date in May of 2007 and a completion date of December 31, 2007. While TIPS began work fireproofing structural steel in May, Turner did not release TIPS to start insulating until October of 2007. It soon became apparent that TIPS would not meet the completion date. Both sides acknowledge that this was due to delays in the work of other subcontractors, a harsh winter, a change in insulation material, and an inability to obtain pipe and cable following Hurricane Katrina. Specifically, TIPS testified at trial that the cold weather reduced productivity because workers would periodically take breaks to warm in tents, and Turner also requested that TIPS not insulate welds on the piping to accommodate hydrostatic pressure testing that had run behind schedule. TIPS could thereafter only insulate straight-run piping in the first pass and had to 4 leave the welded sections of pipe without insulation, returning to finish the job once the welds were tested. In response to the increasing delays, Turner repeatedly requested that TIPS increase the number of workers on the job. ¶11 The subcontract did address how the parties were to deal with delays, changes to the scope of work, jobsite conditions, and the costs of “manning up.” The recitals provided that “SUBCONTRACTOR shall furnish and pay for all labor, services and/or materials and perform all the work necessary or incidentally required for the completion of” the project. Section 7.2 directed that TIPS was to supply “a sufficient number of properly qualified workers” to perform the work “efficiently and promptly.” Section 11.2 stated that TIPS was to “take all measures necessary to eliminate . . . delays,” including hiring extra personnel, “at no cost” to Turner or CHS. Section 10 allowed Turner to make alterations to the scope of work and required TIPS to submit written change orders to cover any additional costs or time extensions that resulted. Moreover, Section 3 required TIPS to assume responsibility for unanticipated costs stemming from the location of the project and general and local conditions. ¶12 Despite these provisions, TIPS claimed that Turner’s requested changes resulted in inefficiencies and extra costs not covered by the original fixed price subcontract and not paid for after the switch to time and materials. As noted, Section 10 specifically addressed how the parties were to handle Turner’s requested changes to the project, and required TIPS to submit written change orders describing the nature and cost of the extra work. TIPS did submit a number of change orders following some of Turner’s requests, and uncontested testimony at trial established that Turner paid every change order that TIPS submitted. 5 Indeed, the parties had agreed that TIPS would have to submit a change order to cover the additional costs stemming from leaving welds without insulation. Whether TIPS submitted written change orders to cover the requested changes and increased costs was contested, however, and TIPS has instead argued that Turner made oral promises of compensation that obviated the need for written change orders. ¶13 Turner and TIPS also agreed to several increases in the compensation paid to TIPS, eventually revising the subcontract five times to increase TIPS’s pay. On January 4, 2008, Turner and TIPS agreed to a revised fixed price payment of $4,224,278.96, an increase of $1,887,311.96 over the original subcontract. This increase consisted of $38,300.00 for extra insulation, $1,460,756.00 for work approved over the original bid amount, $36,078.76 in additional equipment, and $352,177.20 for mineral wool. ¶14 TIPS and Turner subsequently began discussing changing from fixed price payment to “time and materials” invoicing in January of 2008. TIPS sought the change to realize direct compensation for the additional manpower and work it claims Turner was requesting. CHS and Turner agreed to the change on February 6, 2008, retroactive to February 4, 2008, believing that it would incentivize TIPS to increase manpower and allow Turner to exact more control over the project. Turner also believed the change would eliminate issues concerning unknown extra costs, remove the need for future payment negotiations, and potentially preclude a claim by TIPS over compensation. ¶15 TIPS began to submit invoices based on time and materials costs on February 4, 2008. At that time, Turner calculated that TIPS had completed 47% of the insulation project under the fixed price subcontract. TIPS contested this calculation and payment, and also argued 6 that it has not been compensated for losses it suffered from inefficiencies that resulted from Turner’s requests. ¶16 Thereafter, on March 10, 2008, a second revision increased payment to TIPS to $7,000,000.00. This increase included payment of $94,685.00 for hydraulic power manifolds, $148,500.00 in filtration system materials, $347,051.90 in extra work, and $2,185,484.14 in estimated future time and materials work. This revision also incorporated a $4.00 per hour increase in the labor rate agreed to on February 13, 2008, bringing the hourly rate to $43.45. This was apparently done at TIPS’s request to enable them to attract more qualified insulators. ¶17 A third revision increased TIPS’s payment to $10,000,000 on April 17, 2008. This increase was based on an invoice TIPS submitted for additional work. A fourth revision on June 6, 2008, increased TIPS’s pay to $13,000,000.00, and was similarly based on a TIPS invoice for work under time and materials. A final, fifth, revision on July 25, 2008, increased TIPS’s payment to $13,250,000.00. It is uncontested that TIPS was paid the final revised amount, and all time and materials claims from February 4, 2008, onward have been paid. ¶18 TIPS began to claim additional compensation was owed in the spring of 2008 despite these modifications. In particular, Turner refused to pay TIPS’s invoice 1895-1, which claimed a payment of $700,095.00 for “inefficiencies,” and Turner thereafter left the work site on June 25, 2008. TIPS remained at CHS through July, and while the end date of TIPS’s work under contract was in dispute, the parties do not dispute that TIPS completed its work under the subcontract. TIPS thereafter filed a construction lien against the CHS refinery on 7 September 24, 2008, alleging Turner owed TIPS $1,283,704.08. Turner then filed a substitution bond for 1.5 times the lien. ¶19 TIPS filed its complaint on December 3, 2009, alleging theories of breach of contract, quantum meruit and unjust enrichment, breach of the covenant of good faith and fair dealing, and seeking foreclosure of the lien. The complaint sought $1,283,704.08. ¶20 Prior to trial, the parties filed cross-motions for summary judgment. The court granted TIPS’s motion for partial summary judgment, ordering Turner to return the $374,225.82 in retainage it had withheld. The court also denied Turner’s motion alleging that TIPS’s lien was void and requesting the court dismiss the complaint, arguing venue in Montana was not proper and the court lacked subject matter jurisdiction. ¶21 A bench trial was held on July 11, 12, and 29, 2011. At trial, TIPS sought additional compensation for what it claimed was uncompensated additional work Turner requested under the fixed price contract, payment owed under the fixed price agreement for percentage completed, and unpaid time and materials work between January 1, 2008, and February 4, 2008. Turner presented testimony that TIPS was paid $13,250,000.00, argued that TIPS bore responsibility for extra costs under the fixed price contract, and presented evidence that TIPS had not submitted written change orders as required for the additional compensation it sought. The District Court entered its Findings of Fact and Conclusions of Law on November 22, 2011, and found for Turner on each allegation in TIPS’s complaint. STANDARD OF REVIEW ¶22 “We review the findings of a trial court sitting without a jury to determine if the findings are clearly erroneous. Rule 52(a), M. R. Civ. P,” and we review the court’s 8 conclusions of law for correctness. Lewistown Miller Constr. Co. v. Martin, 2011 MT 325, ¶¶ 15, 17, 363 Mont. 208, 271 P.3d 48. A district court’s construction and interpretation of a contract is a question of law that is also reviewed for correctness. Richards v. JTL Group, Inc., 2009 MT 173, ¶ 14, 350 Mont. 516, 212 P.3d 264. An order concerning attorney fees is reviewed for an abuse of discretion. B Bar J Ranch, LLC v. Carlisle Wide Plank Floors, Inc., 2012 MT 246, ¶ 10, 366 Mont. 506, 288 P.3d 288. This Court reviews a decision on summary judgment de novo. Dick Anderson Constr., Inc. v. Monroe Prop. Co., 2011 MT 138, ¶ 16, 361 Mont. 30, 255 P.3d 1257. DISCUSSION ¶23 1. Did the District Court err by denying TIPS’s claim for additional compensation under a theory of either quantum meruit or breach of contract? ¶24 TIPS alleges on appeal that the District Court erred by not finding that it was owed additional compensation under either a theory of breach of contract or quantum meruit and unjust enrichment. TIPS’s claim specifically involves three sources of allegedly owed compensation. First, TIPS disputes that it was adequately paid for the 47% of the project Turner calculated it had completed at the time of the switch to time and materials invoicing on February 4, 2008. Second, TIPS asserts that cold weather and changes in the scope of work increased costs, which TIPS contends Turner orally promised to pay for. Last, TIPS argues that it is owed for additional man hours provided in January of 2008. As a result, TIPS alleges that it is still owed $2,102,878.25 above the $13,250,00.00 it acknowledges receiving. In response, Turner argues that TIPS did not submit the required written change 9 orders for the payments it is requesting, and that pre-February 4, 2008 labor costs were TIPS’s responsibility. ¶25 At the outset, we find that the District Court properly concluded that because all of the work completed by TIPS was done pursuant to an express contract, there was no basis for TIPS’s claims under the theory of quantum meruit or unjust enrichment. Theories of quasi- contractual obligations are premised on the absence of an express contract, and as such, do not apply here. See Estate of Pruyn v. Axmen Propane, Inc., 2009 MT 448, ¶ 63, 354 Mont. 208, 223 P.3d 845. We accordingly affirm the court’s dismissal of TIPS’s quantum meruit and unjust enrichment claims. ¶26 The District Court also determined that TIPS’s contract-based claims were “directly refuted by the plain language of the Subcontract.” The court based this conclusion on findings that the subcontract required written modifications, placed responsibility for site conditions on TIPS, allowed Turner to change the scope of work, and provided that written change orders were the exclusive mechanism by which TIPS could seek extra compensation in response to these changes. As noted above, we review the court’s findings of fact for clear error, Lewistown Miller Constr. Co. ¶¶ 15, 17, and its legal conclusions for correctness. Richards, ¶ 14. ¶27 a. TIPS’s Claimed Percent of Completion Payment ¶28 TIPS claims that Turner did not fully compensate it for the 47% of piping TIPS insulated prior to February 4, 2008, asserting that Turner’s payments for “materials” could not be applied to sums owing for labor. Essentially, TIPS contests the characterization of fixed price payments as applying generally towards one “bucket” of owed money, and claims 10 that invoices paid for rentals, vehicles, or storage cannot count towards money owed for labor. Turner counters that payments made under fixed price invoicing are essentially fungible and are applied towards the total contract price. ¶29 The District Court rejected TIPS’s argument, finding that the evidence established that funds paid under the fixed price subcontract, whether labeled as for materials or labor, were interchangeable and applied to the total owed under the contract. On appeal, TIPS has not presented any authority, legal or otherwise, in support of their argument. While we recognize that the appellant, rather than this Court, is obligated to conduct legal research or develop legal analysis supporting their position, M. R. App. P. 12(1)(f), it is clear that the original fixed price subcontract contemplated a total payment of $2,336,967.00 to TIPS, all costs included. Indeed, under fixed price contracts generally, “[t]he [sub]contractor receives one fixed price for performing the work no matter how costly it is to perform,” and periodic payments “are typically based upon the percentage of the project completed.” Philip L. Bruner & Patrick J. O’Connor, Jr., Bruner & O’Connor on Construction Law vol. 2, § 6:71, 621-22, (West 2002) (emphasis added). Because fixed price contracts consist of essentially indistinguishable periodic payments applied towards a set price, it is clear that TIPS places undue significance on the labels affixed to various payments. In light of the nature of fixed price contracts generally and, more specifically, the subcontract at issue, the court correctly concluded that payments made under the fixed price subcontract were functionally indistinguishable, and we affirm the District Court’s dismissal of TIPS’s claim for owed completion pay. ¶30 b. TIPS’s Claimed Inefficiency and Change in Scope Costs 11 ¶31 TIPS also claims Turner owes for pre-2008 changes in scope and costs resulting from various inefficiencies. However, the subcontract required TIPS to submit written change orders for such costs under the fixed price scheme, and it is undisputed that TIPS did not submit written change orders to Turner referencing these costs. TIPS instead claims that Turner made oral representations to TIPS promising payment and disputes that the fixed price scheme made TIPS responsible for the costs of additional labor. ¶32 i. Fixed Price vs. Time and Materials Contracts ¶33 Initially, TIPS’s argument mischaracterizes the nature of fixed price contracts, and the District Court concluded that costs for additional personnel and inefficiencies were the express responsibility of TIPS under the fixed price subcontract. As noted, the nature of fixed price contracts placed the burden of additional or unexpected costs on TIPS. See Sperry Rand Corp. v. United States, 201 Ct. Cl. 169, 181, 475 F.2d 1168 (1973) (“Absent unusual circumstances, a ‘fixed-price [subcontractor] . . . shoulders the responsibility for unexpected losses, as well as for his failure to appreciate the problems of the undertaking . . . .’ ”); Bruner & O’Connor, Bruner & O’Connor on Construction Law, § 6:71, 621-22 (noting that under a fixed price contract, “[i]f the work is more expensive than anticipated, that too is the [subcontractor’s] sole risk.”). The subcontract specifically provided that TIPS would bear the cost of all labor and materials resulting from local conditions or changes in scope, unless it submitted a written change order. By contrast, under time and materials invoicing, “the [subcontractor] receives reimbursement for the costs it incurs, plus a fee.” Bruner & O’Connor, Bruner & O’Connor on Construction Law, 12 § 6:81, 639-40 (emphasis added). Indeed, the parties’ contract revision switching to time and materials reflected this difference, as it paid TIPS’s workers on a cost-plus hourly basis. ¶34 Recognizing the difference between fixed price and time and materials contracts, it is clear the fixed price subcontract did not intend to compensate TIPS for the costs of additional labor, inefficiencies, or local conditions without a written change order. Under the fixed price scheme, TIPS only realized compensation for additional labor if the extra workers increased TIPS’s percent of completion. Moreover, Turner was free to increase the scope of work under the terms of the subcontract, and TIPS was required to submit written change orders for “all costs and time extensions” associated with these requests. As it was undisputed that TIPS did not submit written change orders for the costs at issue, the court correctly concluded that alleged inefficiencies and additional labor were the sole responsibility of TIPS under fixed price invoicing. ¶35 ii. The Alleged Oral Modifications ¶36 Despite the foregoing, TIPS contends that it is owed payment for inefficiencies and changes in scope because Turner made oral promises of payment that should be considered executed oral modifications. In support of this argument, TIPS asserts Turner should not be allowed to avoid executing these oral agreements by withholding payment, citing our decisions in Dalakow v. Geery, 132 Mont. 457, 318 P.2d 253 (1957), and Lewistown Miller. ¶37 TIPS’s reliance on Dalakow and Lewistown Miller is misplaced. In Dalakow and Lewistown Miller, we recognized that while only executed oral agreements may modify a written contract, § 28-2-1602, MCA, one side’s refusal to pay following an oral request for services did not prevent a valid oral modification “merely because of that fact.” Dalakow, 13 132 Mont. at 464, 318 P.2d at 258; see also Lewistown Miller Constr. Co., ¶ 23. TIPS argues Turner orally promised payment for additional labor and, following Dalakow and Lewistown Miller, it should not be allowed to avoid allegedly valid oral modifications by withholding payment. ¶38 However, in Dalakow, we found that “the record [was] replete” with evidence that the defendant knew an oral modification had been effected, Dalakow, 132 Mont. at 464, 318 P.2d at 258, and evidence of oral requests was similarly “unequivocal” in Lewistown Miller, ¶ 19. TIPS failed to provide similar evidence that Turner understood it was responsible for compensating TIPS for additional labor under fixed price invoicing without written change orders. Indeed, TIPS was responsible for the cost of labor under the subcontract, and TIPS failed to establish evidence of oral agreements to the contrary. ¶39 TIPS’s claims are also contradicted by the testimony of Ted Estraca (“Estraca”), President of TIPS. Estraca’s testimony indicates that he did not understand Turner’s communications to say that Turner would pay the additional workers brought on in January outside of the payments provided according to the subcontract’s fixed price scheme. Estraca also testified that when Turner asked TIPS to increase manpower in January he asked to convert to time and materials, but Turner said no, revealing that both parties understood that the additional labor was TIPS’s responsibility. This testimony cannot be reconciled with TIPS’s claim to the contrary, and Estraca admitted that TIPS did not submit written change orders for the costs of “manning up.” Thus, the record does not support TIPS’s claims for additional pay prior to February 4, 2008, and we find that the District Court correctly dismissed TIPS’s claims. 14 ¶40 c. TIPS’s Claimed Additional Pay for January 2008 ¶41 TIPS finally claims Turner owes pay for additional labor provided between January 1 and February 4, 2008. The District Court found that TIPS failed to prove non-payment for any additional work performed by TIPS that complied with “the plain language” of the subcontract requiring written change orders. Again, the subcontract expressly required TIPS to submit written change orders for costs, like those for additional labor, incurred in response to Turner’s changes in scope. Also again, TIPS admits it did not submit any change orders referencing these costs. It is further undisputed that time and materials invoicing did not begin until February 4, 2008. Thus, in January of 2008, TIPS was working under a fixed price contract. As we noted, fixed price contracts place all responsibility for additional costs on the subcontractor, namely TIPS. Because TIPS’s claimed costs for additional labor occurred under the fixed price contract without the necessary written change orders, and because TIPS failed to establish oral agreements providing payment for these costs, we hold that the District Court correctly concluded these costs “were the responsibility of TIPS.” ¶42 2. Did the District Court err by failing to find that TIPS was the prevailing party and awarding costs and fees to Turner? ¶43 TIPS claims the District Court abused its discretion by concluding Turner was the prevailing party in the litigation. We have previously held that the “ ‘prevailing party is the one who has an affirmative judgment rendered in his favor at the conclusion of the entire case.’ ” Avanta Fed. Credit Union v. Shupak, 2009 MT 458, ¶ 49, 354 Mont. 372, 223 P.3d 863 (emphasis added). We have also recognized that a money award is not dispositive in this determination. E.C.A. Envtl. Management Servs. v. Toenyes, 208 Mont. 336, 345, 679 15 P.2d 213 (1984). In essence, TIPS claims that it is the prevailing party because the court granted its motion for partial summary judgment and found that TIPS was entitled to the retainage once Turner had posted a substitution bond. However, the court’s grant of TIPS’s Motion for Partial Summary Judgment was not an affirmative judgment rendered at the conclusion of the entire case, but was rather an interlocutory order determining a subordinate question that did not finally decide the case TIPS alleged in its complaint. See M. R. App. P. 4(1)(b); Farmers Union Mut. Ins. Co. v. Bodell, 2008 MT 363, ¶ 16, 346 Mont. 414, 197 P.3d 913. As such, the court’s order granting TIPS’s motion for the retainage did not make TIPS the prevailing party in the litigation, and TIPS ultimately lost on each count of its complaint when a final decision was rendered. We therefore affirm the District Court’s decision that TIPS was not the prevailing party and was not entitled to costs and fees. ¶44 3. Did the District Court err by finding TIPS’s construction lien was barred by the 90 day filing deadline found in § 71-3-535, MCA? ¶45 The District Court found that TIPS’s construction lien was filed at least one day after the 90 day statute of limitations found in § 71-3-535, MCA. The statute directs that a construction lien must be filed “not later than 90 days after” the person’s “final furnishing of services or materials” or the owner files a notice of completion. Section 71-3-535(1), MCA. Here, the District Court found that Turner left the job site on June 25, 2008, and that while TIPS continued to work at the refinery, it did so under a series of purchase order contracts with CHS and not under the Turner subcontract. Because TIPS filed the construction lien on September 24, 2008, 91 days after the Court determined TIPS had stopped working for Turner, the Court found that the lien was barred by operation of law. We agree. 16 ¶46 TIPS claims the court erred by finding that TIPS was off the site no later than June 25, 2008. In support, TIPS claims that the court ignored testimony that TIPS was on the job site after June 25th, and argues that because it “was performing essentially the same insulation duties before and after Turner left the site,” its later work for CHS should provide the relevant date for § 71-3-535(1), MCA. TIPS finally claims the court erred by relying on hearsay to find a separate contract existed. ¶47 Conversely, Turner argues TIPS’s work under the subcontract ended on June 25, 2008. In support, Turner proffered a notice of final completion sent to CHS dated June 24, 2008. Turner also argues that TIPS entered into a separate contract with CHS after June 25th, and asserts this work therefore did not toll the 90 day time limit with respect to the Turner subcontract. ¶48 The court based its finding that TIPS finished its obligations under the Turner subcontract prior to June 25, 2008, on Turner’s June 24, 2008, Notice of Completion, evidence that the last payment Turner made to TIPS was for work on June 25th, testimony by TIPS Project Superintendant Rumaldo Herrera that TIPS left the site on June 25th and began insulating for CHS on June 30th, testimony by Richard Day that TIPS was off the site on June 25th, and an affidavit by Pat Kimmet, CHS plant manager, that TIPS’s work after June 25th was under a separate CHS contract. ¶49 As noted above, we review the court’s findings of fact for clear error. A finding of a trial court sitting without a jury is clearly erroneous if it is not supported by substantial credible evidence, if the trial court misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that the trial court made 17 a mistake. Lewistown Miller Constr. Co., ¶ 15. From a review of the record, it is clear that the court’s findings concerning the timeliness of the lien were supported by substantial credible evidence. Several parties testified that TIPS left the job site, and completed the subcontract with Turner, by June 25, 2008. TIPS’s own Project Superintendant testified that the company quit insulating under Turner on June 25, 2008, and TIPS’s Estraca testified that after Turner left, TIPS submitted an estimate to CHS and CHS issued a separate purchase order for TIPS’s work. Significantly, Turner’s admitted final notice of completion clearly shows a date of June 24, 2008. It was not clear error for the court to find TIPS finished working under Turner on June 25, 2008. ¶50 We are also not persuaded by TIPS’s argument that the District Court erred by finding that its work at the refinery after June 25, 2008, was under a separate contract and could not toll the 90 day time limit. It is well-established that if work is performed under separate contracts, “ ‘the lien should be filed within the time prescribed by the statute after the delivery under each of such contracts.’ ” See Frank J. Trunk & Son v. De Haan, 143 Mont. 442, 445, 391 P.2d 353 (1964), quoting Helena Steam-Heating & Supply Co. v. Wells, 16 Mont. 65, 69, 40 P. 78 (1895). It is a question of fact whether work was finished under one or more contracts, Frank J. Trunk & Son, 143 Mont. at 445-46, 391 P.2d at 355, and the District Court did not commit clear error by finding TIPS’s work after June 25th was under a separate contract. Both sides agree that Turner left the site on June 25th, and it is undisputed that CHS paid TIPS under separate purchase orders for its later work. TIPS Superintendant Herrera stated that TIPS began work on June 30th under CHS, and testimony by Mr. Day, Superintendant for Turner, established that the last day of the job was “Wednesday the 25th” 18 of June and that no TIPS personnel were left working on site. Further, TIPS Invoice # 1971, admitted at trial, clearly shows that TIPS submitted 330 hours of work for Turner on June 25, 2008, and none thereafter. This was confirmed by Turner’s project engineer, Mr. Stampley, who testified that Invoice 1971 was the last invoice Turner processed for TIPS labor at the refinery, and by Plaintiff’s Exhibit 73, which shows TIPS billed CHS, not Turner, for its work starting June 30th. Based on this review of the record, we conclude that it was not clearly erroneous for the court to find that TIPS operated under a separate contract with CHS after June 25, 2008. ¶51 TIPS is also incorrect to argue that the District Court solely relied on inadmissible hearsay to find that TIPS’s work after June 25th came under a separate contract. A review of the court’s findings shows the court referenced testimony by Mr. Herrera, testimony by Mr. Day, invoices, and admitted correspondence between CHS and Turner, in addition to the Pat Kimmet affidavit. Even if, as TIPS claims, the Kimmet affidavit was inadmissible hearsay, its reference by the trial court was harmless error because the finding was supported by other admissible evidence that proved the same facts. M. R. Civ. P. 61; State v. Sanchez, 2008 MT 27, ¶ 22, 341 Mont. 240, 177 P.3d 444. ¶52 In light of the foregoing, we find that the court correctly concluded that because TIPS filed its construction lien on September 24, 2008, 91 days after it furnished services under the Turner subcontract, the lien was barred by operation of law. See Section 71-3-535(1), MCA; Johnston v. Palmer, 2007 MT 99, ¶ 33, 337 Mont. 101, 158 P.3d 998 (requiring that the procedural requirements for construction liens be strictly followed). 19 ¶53 4. Did the District Court err by granting partial summary judgment to TIPS and ordering Turner to return the retainage? ¶54 Turner cross-appeals the District Court’s grant of TIPS’s motion for partial summary judgment seeking the return of contractual retainage. Turner asserts that the District Court erred because the subcontract authorized retaining money in anticipation and defense of “any lien or claim.” In granting TIPS’s motion for partial summary judgment on the retainage, the District Court found that because Turner had filed a substitution bond in lieu of TIPS’s lien, the lien was discharged by operation of § 71-3-552, MCA. Section 71-3-552, MCA, provides that “[u]pon the filing of a bond as provided in 71-3-551, the lien against the real property shall forthwith be discharged and released in full and the bond shall be substituted for such lien.” The District Court thus concluded that by filing a substitution bond, Turner obviated the need for TIPS to submit a final release of lien because § 71-3-552, MCA, effected a release by operation of law. ¶55 Here, the subcontract allowed Turner to withhold 10 percent of payments to TIPS as retainage until TIPS provided “a final release of lien.” Turner had retained $364,757.32 when TIPS filed its construction lien on September 24, 2008. Turner subsequently filed a substitution bond in an amount 1.5 times the lien. Section 71-3-551, MCA, provides that a “contracting owner of any interest in the property” may file a bond in an amount 1.5 times the lien, and § 71-3-552, MCA, declares that this bond discharges and releases the lien in full. However, Turner is not a “contracting owner” pursuant to § 71-3-522(4)(a), MCA, and therefore does not fall within the operation of § 71-3-551, MCA. While this is so, it is generally recognized that the purpose of allowing a construction lien to attach to a release 20 bond is to “allow the property to be entirely free of liens” and allow “a general contractor, acting on the owner’s behalf, to substitute a bond for the property.” 53 Am. Jur. 2d Mechanics’ Liens § 307 (2012); see also AAA Constr. of Missoula, LLC v. Choice Land Corp., 2011 MT 262, ¶ 33, 362 Mont. 264, 264 P.3d 709 (“[A] bond ‘does not change the relation or rights of the parties otherwise than in substituting its obligations for the [property] subject to the lien . . . .’ ”); Hutnick v. United States Fidelity & Guaranty Co., 47 Cal. 3d 456, 462, 763 P.2d 1326, 1330 (1988). This intent was demonstrated by the parties’ stipulation dismissing CHS from the case, which can be seen as the parties acquiescing to the release of the lien in light of Turner’s bond. Turner therefore may not now oppose the return of the retainage by asserting TIPS has not filed a final release of lien. The subcontract authorized Turner to hold the retainage until a final release of lien, but a release was made superfluous by the parties’ actions. We accordingly affirm the District Court’s grant of TIPS’s motion for partial summary judgment on the retainage. ¶56 TIPS in turn claims it is owed prejudgment interest on the retainage, arguing that the court’s decision to the contrary was clear error. TIPS alleges that interest is appropriate because the retainage was a liquidated sum payable under a construction contract, citing James Talcott Constr., Inc. v. P&D Land Enterprises, 2006 MT 188, 333 Mont. 107, 141 P.3d 1200, while also claiming that the subcontract’s silence on retainage interest is immaterial. The District Court rejected TIPS’s claim, finding that as “[t]he Subcontract does not provide for payment of interest on retainage,” TIPS is not owed interest on the $374,225.82 that Turner withheld. Turner argues that the retainage is a cost of business and 21 that Subsections 16.2 and 16.6 authorized withholding money pending litigation, but did not permit any payment of interest. ¶57 A district court’s decision concerning prejudgment interest is a question of law, and as such, we review it for correctness. Am. Music Co. v. Higbee, 2004 MT 349, ¶ 13, 324 Mont. 348, 103 P.3d 518. Here, the court denied TIPS’s claim for interest because of the lack of contractual language authorizing it. We conclude that this denial was incorrect. ¶58 Here, Turner filed the substitution bond in November of 2008, and, as noted above, this bond discharged TIPS’s lien by operation of law. Because a final release of lien was rendered unnecessary by the substitution bond, Turner was required to remit the retainage once the bond was filed. However, Turner failed to do so until so ordered by the District Court on October 12, 2010. ¶59 A party is entitled to prejudgment interest if they establish “(1) the existence of an underlying monetary obligation; (2) the amount of recovery is certain or capable of being made certain by calculation; and (3) the right to recover the obligation vests on a particular day.” Talcott, ¶ 40. Moreover, § 27-1-211, MCA, provides a right to prejudgment interest that arises independent of contractual authorization, see Turner, ¶ 44, and the statute “mandates interest as long as the legal situation fits within the broad guidelines of the statute.” Price Bldg. Serv. v. Holms, 214 Mont. 456, 469, 693 P.2d 553, 560 (1985). Thus, a party is entitled to interest on “amounts capable of being made certain” that are required “in order to make [the party] whole.” Talcott, ¶¶ 44, 46. Here, Turner’s substitution bond discharged the lien in November of 2008, and Turner no longer had a right to keep the retainage. Turner therefore wrongly withheld $374,225.82 from TIPS, and it did not raise 22 issues concerning the quality or completeness of TIPS’s work as a possible justification. As the overriding purpose of § 27-1-211, MCA, is “to fully compensate the injured party for the loss of use of his money during the period in which a valid claim was not paid,” Holms, 214 Mont. at 469, we conclude that TIPS is entitled to interest at the legal rate on the retainage from the date the bond was filed until the court’s October 12, 2010 order. The decision of the District Court is therefore reversed and we remand to the District Court with instruction to determine the dollar value of 10% interest on the retainage from the November 2008 filing of the substitution bond until October 12, 2010. ¶60 5. Did the District Court err by dismissing Turner’s bill of costs for being untimely filed pursuant to § 25-10-501, MCA? ¶61 The District Court dismissed and denied Turner’s bill of costs, finding it was filed after the statutory deadline, lacked a signature or notary, and was “unintelligible and not in a form of separately delineated costs pursuant to § 25-10-501.” On appeal, Turner argues that Subsection 24 of the subcontract displaces the requirements of § 25-10-501, MCA, based on freedom of contract, citing Arrowhead Sch. Dist. No. 75 v. Klyap, 2003 MT 294, ¶ 20, 318 Mont. 103, 79 P.3d 250. Turner alternatively claims that the bill of costs was timely filed because the court failed to file a separate judgment pursuant to M. R. Civ. P. 58(a) until January 16, 2012. We review a court’s order concerning costs for an abuse of discretion, Hitshew v. Butte/Silver Bow County, 1999 MT 26, ¶ 29, 293 Mont. 212, 974 P.2d 650, and a district court’s application of a statute in determining entitlement to costs is a question of law reviewed for correctness. Neal v. State, 2003 MT 53, ¶ 4, 314 Mont. 357, 66 P.3d 280. ¶62 a. Application of Title 25, Chapter 10, MCA, to Turner’s Claimed Costs 23 ¶63 At the outset, a party’s entitlement to costs in a civil action is governed by Title 25, chapter 10, MCA. Under chapter 10, a defendant must be allowed costs “upon a judgment in the defendant’s favor in the actions mentioned in 25-10-101.” Section 25-10-102, MCA. One of the “actions” mentioned in § 25-10-101, MCA, is “an action for the recovery of money or damages, exclusive of interest, when a plaintiff recovers over $50.” Section 25-10-101(3), MCA. We previously construed the interaction of § 25-10-101 and -102, MCA, in Rodgers v. Mony Life Ins. Co., 2005 MT 290, 329 Mont. 289, 124 P.3d 137. There, we found that a defendant may recover costs by way of § 25-10-102, MCA’s reference to § 25-10-101(3), MCA, even if the plaintiff does not recover $50. Rodgers, ¶ 21. We reasoned the relevant action specified in § 25-10-101(3), MCA, is “ ‘an action for the recovery of money or damages,’ ” and concluded that “[t]he language, ‘when plaintiff recovers over $ 50[]’ does not change the type of action.” Rodgers, ¶ 21. We found that the latter clause was “only applicable to a plaintiff,” and concluded that if we were to interpret it as applicable to the defendant, “a defendant could never recover costs in an action for recovery of money or damages. Such is not the intent of the Legislature.” Rodgers, ¶ 21. As TIPS’s claim against Turner is clearly an action for money or damages under § 25-10-101(3), MCA, Turner’s claim for costs is enabled by § 25-10-102, MCA, and our decision in Rodgers. ¶64 While Rodgers and § 25-10-102, MCA, establish a statutory basis for Turner’s claim for costs, we have frequently allowed parties to contract for costs not allowed by Title 25, chapter 10. Section 25-10-201, MCA, enumerates the types of costs “generally allowable” in a party’s bill of costs, but we have long held that the list of items in that section “is exclusive 24 except as to cases taken out of its operation by special statute, by stipulation of parties, or by rule of court.” Roseneau Foods v. Coleman, 140 Mont. 572, 580, 374 P.2d 87 (1962) (emphasis added); accord Kuhr v. City of Billings, 2007 MT 201, ¶ 37, 338 Mont. 402, 168 P.3d 615; Springer v. Becker, 284 Mont. 267, 275, 943 P.2d 1300 (1997); Masonovich v. School Dist., 178 Mont. 138, 140, 582 P.2d 1234 (1978). Subsection 24 of the subcontract is such a stipulation allowing costs, and reads: Should CONTRACTOR employ an attorney to enforce any of the provisions hereof, or to protect its interest in any matter arising under this SUBCONTRACT, or to collect damages for the breach of this SUBCONTRACT, or to prosecute or defend any suit resulting from this SUBCONTRACT or to recover on the performance bond given by SUBCONTRACTOR under this SUBCONTRACT, SUBCONTRACTOR and his surety, jointly, and severally, agree to pay CONTRACTOR all reasonable costs and attorney’s fees expended or incurred therein. Thus, while Turner’s bill of costs falls within the ambit of § 25-10-102, MCA, following our decision in Rodgers, Turner and TIPS have also entered into a stipulation allowing costs regardless of statutory authority, a practice that we have frequently upheld. ¶65 However, while we have long recognized a party’s freedom to contract for costs not allowed by § 25-10-201, MCA, the District Court’s denial of Turner’s bill of costs was based on the procedural requirements of § 25-10-501, MCA. Section 25-10-501, MCA, specifically requires: The party in whose favor judgment is rendered and who claims the party’s costs shall deliver to the clerk and serve upon the adverse party, within 5 days after the verdict or notice of the decision of the court . . . a memorandum of the items of the party’s costs. . . . The memorandum must be verified by the oath of the party, the party’s attorney or agent, or the clerk of the party’s attorney . . . . 25 Section 25-10-501, MCA (emphasis added). Here, the District Court issued its final Findings of Fact and Conclusions of Law on November 22, 2011. Turner filed a notice of entry judgment on November 29, 2011. This notice both acknowledged the date of the judgment and attached a copy of it. Turner filed its bill of costs, without either a signature or notary, on December 12, 2011, well more than 5 days after Turner had notice of the judgment. Turner clearly failed to adhere to the requirements of § 25-10-501, MCA, and failure to file a timely bill of costs results in waiver of the right to receive an award of costs. Pastimes, LLC v. Clavin, 2012 MT 29, ¶ 38, 364 Mont. 109, 274 P.3d 714. However, on appeal Turner challenges the court’s application of § 25-10-501, MCA, to the subcontract. ¶66 In essence, Turner argues that Subsection 24 of the subcontract displaced the procedural requirements of § 25-10-501, MCA. As support, Turner cites our prior holdings that parties are free to contract what costs may be awarded. See Kuhr, ¶ 37 (“Section 25-10-201, MCA, is an exclusive list of costs which may be taxed to an opponent unless the case is taken out of its operation by a more specialized statute, by stipulation of the parties, or by rule of the court.”); Bovee v. Helland, 52 Mont. 151, 155, 156 P. 416, 417 (1916). Thus, following Kuhr, Turner claims Subsection 24 of the subcontract is a stipulation that displaces § 25-10-501, MCA, despite the Kuhr decision’s clear reference to § 25-10-201, MCA. Indeed, § 25-10-501, MCA, concerns the form, not the substance, of a bill of costs. Turner’s citation to our previous decisions upholding contractual stipulations for costs beyond those allowed under § 25-10-201, MCA, is therefore misplaced. Deciding what procedures govern filing a bill of costs is a different question than determining what costs 26 are allowed either by operation of Title 25, chapter 10 or by stipulation of the parties. Turner’s citations regarding the latter question are therefore unpersuasive. ¶67 Instead, we have previously found that “Section 25-10-501, MCA, provides the procedure for which the party in whose favor judgment is rendered claims his costs,” and routinely hold parties to its requirements. Sage v. Rogers, 257 Mont. 229, 242, 848 P.2d 1034 (1993); see also Doyle v. Clarke, 2011 MT 117, ¶ 40, 360 Mont. 450, 254 P.3d 570; Kuhr ¶ 38, (“§ 25-10-501, MCA, [controls] when a party was required to file his or her memorandum of costs.”); McDermott v. Carie, 2005 MT 293, ¶ 26, 329 Mont. 295, 124 P.3d 168 (finding § 25-10-501, MCA, requires a notary to verify the oath, and concluding that failure to properly swear to the accuracy of the bill renders it invalid). We reiterated the broad applicability of § 25-10-501, MCA, in In re Estate of Lande, 1999 MT 179, 295 Mont. 277, 983 P.2d 316. There, we recognized: By its caption, and by the terms of the statutes contained therein, [Title 25, chapter 10,] Part 5 provides the means and manner in which costs are to be claimed. Nothing in those statutes makes a distinction or exception for costs being claimed in different types of actions. . . . The language of the statute is plain and unequivocal in encompassing all claims for costs. In re Lande, ¶ 22 (emphasis added). Section 25-10-501, MCA, clearly applied to Turner’s bill of costs. ¶68 Additionally, even if we were to accept Turner’s argument that Subsection 24’s allowance of costs displaces § 25-10-501, MCA, the subcontract’s language is utterly devoid of any indication whatsoever of what procedures the parties intended to replace those found in § 25-10-501, MCA. We all recognize the language of a contract governs its interpretation, however there is nothing in Subsection 24 that either addresses or purports to replace the 27 requirements of § 25-10-501, MCA. Accepting Turner’s argument would therefore require us to infer that the lack of contractual procedures for filing a bill of costs necessarily implies that the parties had some other procedures in mind. What those procedures would be, however, is a mystery. Without the application of § 25-10-501, MCA, to the subcontract, Turner would seemingly be free to submit the bill of costs at any time, in any form, and without either Turner or Turner’s counsel attesting to its accuracy. We have previously recognized that the requirements of § 25-10-501, MCA, serve an important informational function, in that filing a bill of costs pursuant to § 25-10-501, MCA, facilitates the uniform, timely notification of what costs are claimed and enables the opposing party to enter an objection. See Sherner v. Nat’l Loss Control Servs. Corp., 2005 MT 284, ¶ 55, 329 Mont. 247, 124 P.3d 150. Accepting Turner’s argument would therefore run contrary to the clear purposes of § 25-10-501, MCA. Sherner, ¶ 55. ¶69 In light of the plain language of the subcontract, we cannot conclude that the parties intended to displace the procedural requirements of § 25-10-501, MCA. This decision does not restrict the parties’ freedom of contract. See Klyap, ¶ 20. Because the subcontract contained no procedural language concerning how to file the bill of costs, it could not displace § 25-10-501, MCA. We conclude that Turner was correctly required to abide by the procedures contained in § 25-10-501, MCA, and therefore hold that the District Court’s denial of Turner’s bill of costs was not an abuse of discretion. ¶70 b. Effect of M. R. Civ. P. 58(a) ¶71 We also disagree that Turner’s bill of costs was nonetheless timely filed. Turner claims that because it filed a bill of costs on January 20, 2012, five days after the court issued 28 its January 16, 2012 Notice of Entry of Judgment, we must reverse the District Court’s order dismissing and denying their claim for costs. However, to do so we would have to disregard both Turner’s prior recognition of the November 22, 2012 date of judgment and our holdings interpreting the language of § 25-10-501, MCA. ¶72 First, Turner filed a notice of entry of judgment on November 29, 2011, acknowledging November 22, 2011, as the date of judgment. Turner now argues that we should disregard this “premature” filing made before its counsel engaged in “close review of the newly revised Montana Rules of Civil Procedure.” As the District Court observed, “Turner not only filed a notice of entry of judgment but referred to the Court’s Findings and Conclusions as a judgment. That judgment was from November 22, 2011.” Turner is bound by this recognition. ¶73 Second, § 25-10-501, MCA, requires a bill of costs to be delivered to the clerk and served upon the adverse party “within 5 days after the verdict or notice of the decision of the court . . . .” We have previously found that “notice” under the statute “indicated knowledge of the court’s decision and that formal notification was not necessary.” Karell v. American Cancer Soc’y, 239 Mont. 168, 176-77, 779 P.2d 506 (1989); accord Shull v. Lewis & Clark County, 93 Mont. 408, 419, 19 P.2d 901 (1933); Miles v. Miles, 76 Mont. 375, 382, 247 P. 328 (1926). Turner had notice of the decision of the court at least at the time it filed its notice of entry of judgment on November 29, 2011. Turner’s earliest bill of costs, filed December 12, 2011, and received by TIPS no earlier than December 9, 2011, came more than five days after this date. We therefore find that the District Court’s order denying and 29 dismissing Turner’s bill of costs as untimely was not an abuse of discretion and affirm its decision. CONCLUSION ¶74 We accordingly affirm the decisions of the District Court regarding TIPS’s claims for additional compensation, TIPS’s claim it was the prevailing party, whether the construction lien was time barred, the return of the retainage, and Turner’s bill of costs. We reverse the District Court’s decision denying TIPS prejudgment interest on the retainage. ¶75 Affirmed in part, reversed in part, and remanded for further proceedings consistent with this Opinion. /S/ Michael E Wheat We Concur: /S/ Patricia O. Cotter /S/ Jim Rice /S/ Beth Baker /S/ Brian Morris | January 15, 2013 |
3cbd9fa9-445b-4d57-938b-f5b6a51b9fb1 | State v. Randall L. Stone | 2013 MT 18N | DA 12-0221 | Montana | Montana Supreme Court | DA 12-0221 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 18N STATE OF MONTANA, Plaintiff and Appellee, v. RANDALL L. STONE, Defendant and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 00-254 Honorable Mike Salvagni, Presiding Judge COUNSEL OF RECORD: For Appellant: Randall L. Stone (self-represented); Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana Marty Lambert, Gallatin County Attorney; Ashley Whipple, Deputy County Attorney, Bozeman, Montana Submitted on Briefs: January 3, 2013 Decided: January 29, 2013 Filed: __________________________________________ Clerk January 29 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 Randall L. Stone (Stone) appeals from the order of the District Court of the Eighteenth Judicial District, Gallatin County, that denied his petition for post-conviction relief. We affirm. ¶3 Stone filed a pro se motion for re-designation of his sex offender risk level on January 25, 2012. The District Court issued an order on January 30, 2012, that directed the State of Montana (State) to file a response by February 22, 2012. The State filed its response a day late on February 23, 2012. The District Court denied Stone’s motion without prejudice on that same day. Stone appeals. ¶4 Stone argues on appeal that the State’s late filing of its response brief entitled him to a default judgment. The State counters that default judgments “are ordinarily unavailable in criminal cases.” State ex rel. Dusek v. Eighth Jud. Dist. Ct., 2003 MT 303, ¶ 11, 318 Mont. 166, 79 P.3d 292. We agree. ¶5 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our 1996 Internal Operating Rules, as amended in 2006, that provide for memorandum opinions. The District Court did not abuse its discretion in imposing Stone’s original sex offender designation. State v. Price, 2006 MT 79, ¶ 17, 331 Mont. 502, 134 P.3d 45. Moreover, the 3 District Court did not abuse its discretion in declining to revise Stone’s sex offender designation despite the State’s failure to file its brief in accordance with the District Court’s schedule. Price, ¶ 17. ¶6 Affirmed. /S/ Brian Morris We Concur: /S/ Mike McGrath /S/ Michael E Wheat /S/ Beth Baker /S/ Jim Rice | January 29, 2013 |
9848372c-83d3-4d44-87b4-d855378e52d1 | DaSilva v. State | 2013 MT 28N | DA 12-0413 | Montana | Montana Supreme Court | DA 12-0413 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 28N ROBERT AYRES DaSILVA, JR., 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. DV 11-949 Honorable Dirk M. Sandefur, Presiding Judge COUNSEL OF RECORD: For Appellant: Robert Ayres DaSilva, Jr., 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, Great Falls, Montana Submitted on Briefs: January 9, 2013 Decided: February 5, 2013 Filed: __________________________________________ Clerk February 5 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Robert Ayres DaSilva, Jr. appeals the order entered by the Eighth Judicial District Court, Cascade County, dismissing his petition for postconviction relief. ¶3 On October 22, 2009, DaSilva was found guilty after trial by jury of Failure of Sex Offender to Provide Notice of Address Change, a felony, in violation of §§ 46-23-505, 46-23-504(5), 46-23-507, and 46-23-502(9), MCA, and Resisting Arrest, a misdemeanor, in violation of § 45-7-301, MCA. DaSilva appealed his conviction, asserting that his due process rights were violated by the District Court’s instruction to the jury that his prior Washington conviction was a “sexual offense” as a matter of law, and that the District Court had erred by granting a continuance to the State for purposes of amending the information. We affirmed. State v. DaSilva, 2011 MT 183, 361 Mont. 288, 258 P.3d 419. ¶4 On November 9, 2011, DaSilva filed a petition for postconviction relief asserting 11 claims, and asserted two additional claims by way of a later pleading. DaSilva’s claims alleged, in sum, that he was deprived of his right to counsel, that his counsel was ineffective, and that the elements of the crime of failing to provide an address change were not proven. The District Court restated DaSilva’s contentions as seven claims, denying them on the ground that they were “record-based contentions that Petitioner either did raise or could have raised on direct appeal.” The District Court further concluded that “to the extent that these contentions can arguably be properly construed as not record-based,” they were either defeated on their merits by a review of the record or by DaSilva’s failure “to make a particularized legal and factual showing that counsel’s performance was not objectively reasonable and that a 3 substantial likelihood exists that his trial would have resulted in a different outcome if counsel had performed as Petitioner alleges he should have.” ¶5 On appeal, DaSilva states two issues: (1) his trial counsel rendered ineffective assistance by failing to provide the proper jury instruction for the change of address charge as it was amended and, alternatively, that he was entitled to an evidentiary hearing on this claim;1 and (2) the State committed prosecutorial misconduct by failing to disclose every element of the amended change of address charge to the jury, thus failing to prove each element of that offense. The State responds by arguing that the prosecutorial misconduct claim was correctly denied by the District Court as procedurally barred because the claim could reasonably have been raised on direct appeal from DaSilva’s conviction, and that the ineffective assistance of counsel claim was insufficiently supported, but, in any event, DaSilva’s claim that a different jury instruction was necessary in order to properly instruct the jury about the change of address charge is legally incorrect. ¶6 “We review a district court’s denial of a petition for postconviction relief to determine whether the court’s findings of fact are clearly erroneous and whether its conclusions of law are correct.” Sanchez v. State, 2012 MT 191, ¶ 12, 366 Mont. 132, 285 P.3d 540 (citations omitted). Ineffective assistance of counsel claims are mixed questions of law and fact, which are reviewed de novo. Sanchez, ¶ 12 (citation omitted). ¶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 legal 1 The District Court dismissed the petition without a hearing, reasoning that evidentiary hearings in postconviction proceedings are “discretionary, required only in ‘unique circumstances,’” citing Heath v. State, 2009 MT 7, ¶¶ 21-24, 348 Mont. 361, 202 P.3d 118. 4 and are controlled by settled Montana law, which the District Court correctly interpreted, or are issues of judicial discretion and there clearly was not an abuse of discretion. ¶8 Affirmed. /S/ Jim Rice We concur: /S/ Mike McGrath /S/ Brian Morris /S/ Michael E Wheat /S/ Laurie McKinnon | February 5, 2013 |
693527e5-5651-4479-8590-bf39ca1c1990 | REINKE v BIEGEL | N/A | 14826 | Montana | Montana Supreme Court | No. 14826 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 WILBUR H. REINKE and OMA J. REINKE, Plaintiffs and Counter-Defendants, VS. FRANK MILLER BIEGEL and JOYCE E. BIEGEL, Defendants and Counter-Claimants and Appellants. Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert H. Wilson, Judge presiding. Counsel of Record: For Appellants: Hauf and Forsythe, Billings, Montana For Respondents: Mouat and Martinson, Billings, Montana Submitted on briefs: October 30, 1979 Decided: DEC 2 7 1979 Clerk M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court. Frank ~ i l l e r ~ i e g e l and Joyce E. Biegel, t h e purchasers of two l o t s from Wilbur H. Reinke and Oma J. Reinke under a c o n t r a c t f o r deed, bring t h i s appeal from a f i n a l judgment of t h e D i s t r i c t Court of t h e Thirteenth J u d i c i a l D i s t r i c t , Yellowstone County, s i t t i n g without a jury. The judgment terminated a c o n t r a c t f o r deed between t h e p a r t i e s , declared a f o r f e i t u r e of t h e down payment made by t h e purchasers, q u i e t e d t i t l e i n favor of t h e s e l l e r s , and w a s entered upon a finding t h a t t h e purchasers were i n d e f a u l t f o r f a i l u r e t o make timely payment under t h e c o n t r a c t . The D i s t r i c t Court's judgment a l s o denied t h e purchasers' counterclaim f o r damages o r i n j u n c t i v e r e l i e f based on t h e sellers' a l l e g e d breach of t h e c o n t r a c t f o r deed by v i o l a t i o n of a r e s t r i c t i v e covenant and awarded reasonable a t t o r n e y f e e s t o t h e s e l l e r s . O n February 15, 1974, Reinkes and Biegels entered i n t o a c o n t r a c t f o r deed whereby Biegels w e r e t o purchase from Reinkes Lots 15 and 16 of Block 2 i n t h e Heyn Subdivision i n Yellowstone County. Biegels paid $200 i n e a r n e s t money under t h e c o n t r a c t which provided t h a t a warranty deed f o r each l o t be placed i n escrow and t h a t Biegels would o b t a i n a deed f o r each l o t upon payment of $3100 p l u s 8 percent per annum i n t e r e s t f o r each l o t before t h e due d a t e , December 31, 1975. The c o n t r a c t f u r t h e r provided t h a t d e f a u l t would be entered a g a i n s t t h e buyer a f t e r 30 days n o t i c e and t h a t t i m e was of t h e essence. Biegels paid i n f u l l f o r Lot 16 sometime i n December 1975 before t h e due d a t e , obtained a deed t o t h a t l o t , and completed construction of a home thereon i n September 1976. ~ e i n k e s and Gertrude V. Heyn prepared, f i l e d and duly recorded an amended d e c l a r a t i o n of r e s t r i c t i o n s with t h e subdivision p l a t of t h e Heyn Subdivision on April 24, 1973. The r e s t r i c t i v e covenants provided, among o t h e r things, t h a t "no building s h a l l be located and e r e c t e d nearer than 30 f e e t t o t h e f r o n t l o t l i n e . " The d e c l a r a t i o n of restric- t i o n s f u r t h e r provided t h a t it was binding upon a l l h e i r s , a s s i g n s , devisees and p a r t i e s claiming through them, and t h a t f a i l u r e by t h e p r e s e n t property owners t o enforce t h e r e s t r i c t i o n s a t t h e t i m e of any v i o l a t i o n thereof would n o t be deemed a waiver of t h a t r i g h t . Reinkes d e s i r e d t o b u i l d a house on Lot 1 4 , which they had n o t sold and which w a s a d j a c e n t t o Lot 15, t h e property s u b j e c t t o t h i s c o n t r a c t f o r deed. They began building a house on Lot 1 4 on October 1, 1974 and completed construc-- t i o n i n t h e e a r l y p a r t of 1975. The house w a s set back approximately 20 f e e t from t h e f r o n t l i n e , r a t h e r than 30 f e e t as required by t h e d e c l a r a t i o n of r e s t r i c t i o n s which Reinkes had prepared and f i l e d . Reinkes d i d n o t attempt t o amend t h i s setback requirement by obtaining t h e s i g n a t u r e s of 80 percent of t h e owners within t h e subdivision a s pro- vided f o r i n t h e r e s t r i c t i v e covenants. Instead, they sought and obtained a variance of zoning r e s t r i c t i o n s from t h e City-County Planning Board of Yellowstone County on November 8, 1974, allowing them t o b u i l d with a setback of only 20 f e e t from t h e f r o n t property l i n e . A n o t i c e of t h e variance w a s posted on Lot 1 4 on t h e s a m e date. ~ e i n k e s completed construction of t h e Lot 1 4 house i n t h e e a r l y p a r t of 1975. Biegels f a i l e d t o pay t h e balance of t h e purchase p r i c e of Lot 15 by t h e due d a t e , December 31, 1975, and f a i l e d t o c u r e t h e d e f a u l t w i t h i n 30 days a f t e r receiving n o t i c e as required under t h e c o n t r a c t f o r deed. Notice of d e f a u l t w a s served on February 18, 1976. O n A p r i l 1 4 , 1976, 25 days a f t e r t h e t i m e f o r curing t h e i r d e f a u l t under the c o n t r a c t had expired, Biegels o f f e r e d t o pay t h e $3100 c o n t r a c t p r i c e f o r Lot 15. This o f f e r w a s refused by t h e Reinkes, and Lot 1 5 remained vacant and unimproved t o t h e t i m e of t r i a l with Reinkes paying t h e property taxes. Reinkes commenced an a c t i o n on August 24, 1977 t o q u i e t t i t l e and t o terminate and f o r f e i t the c o n t r a c t f o r deed because of Biegels' de- f a u l t . Biegels r a i s e d t h e a f f i r m a t i v e defense of breach of c o n t r a c t and counterclaimed f o r damages t o Lot 15 o r f o r i n j u n c t i v e r e l i e f based on Reinkes' breach of t h e c o n t r a c t f o r deed, i.e. t h e breach of t h e r e s t r i c t i v e covenant run- ning with t h e land, which rendered Reinkes unable t o perform t h e c o n t r a c t f o r deed t o convey t o Biegels t h e l o t i n t h e condition it was represented t o be when t h e c o n t r a c t was entered i n t o . The D i s t r i c t Court made a conclusion of law t h a t : "Defendants f a i l e d t o make timely payment under t h e Contract f o r Deed as t o Lot 15, Block 2, Heyn Subdivision, and w e r e i n d e f a u l t thereunder a s t o Lot 15, Block 2 a t t h e t i m e p l a i n t i f f s n o t i f i e d them i n w r i t i n g of t h e d e f a u l t . De- fendants f a i l e d and refused t o remedy t h e de- f a u l t within t h e t i m e provided by t h e c o n t r a c t o r a t a l l , and any r i g h t s they might have ac- q u i r e d by t h e c o n t r a c t became f o r f e i t e d by rea- son of t h e i r f a i l u r e to cure t h e d e f a u l t i n a timely manner. " On March 13, 1979, t h e D i s t r i c t Court entered judgment i n favor of Reinkes and denied Biegels' counterclaim. The p a r t i e s i n t h e i r b r i e f s have f a i l e d t o address t h e threshold i s s u e involved i n t h i s appeal--that is, where l o t s within a l e g a l subdivision are sold pursuant t o a c o n t r a c t f o r deed, does t h e s e l l e r s ' breach of a r e s t r i c t i v e covenant, occurring p r i o r t o t h e contracted due d a t e and r e l a t i n g t o a t h i r t y f o o t setback requirement on s e l l e r s ' adjacent l o t , excuse t h e buyer from h i s duty t o make payment by t h e due d a t e so t h a t h i s r i g h t t o recover damages i s not precluded by h i s f a i l u r e t o make such payment? Because our answer t o t h a t question i s i n the negative, w e must affirm the judgment of t h e D i s t r i c t Court. Appellants contend t h a t t h e recorded r e s t r i c t i v e cove- nants w e r e incorporated i n t o the c o n t r a c t f o r deed between the p a r t i e s and t h a t t h e i r c o n t r a c t was made subject t o those provisions s o t h a t a v i o l a t i o n of t h e setback requirement by the s e l l e r s was a breach of contract. While the c o n t r a c t f o r deed d i d not expressly r e f e r t o t h e d e c l a r a t i o n of r e s t r i c t i o n s applicable t o t h e Heyn Subdivision previously f i l e d and recorded by t h e sellers, it d i d make reference t o the recorded p l a t of t h e Heyn Subdivision. Furthermore, t h e d e c l a r a t i o n of r e s t r i c t i o n s provided t h a t : "The r e s t r i c t i o n s herein set f o r t h s h a l l run with the land and bind t h e present owners, t h e i r h e i r s , and assigns, and a l l p a r t i e s claiming by, through o r under them . . ." I t i s unnecessary, however, t o decide whether o r not t h e r e s t r i c t i v e covenants became a p a r t of t h e c o n t r a c t f o r deed between the p a r t i e s t o t h i s appeal. W e reach t h i s con- clusion because even i f we assume t h a t t h e r e s t r i c t i v e covenants were incorporated i n t o t h e c o n t r a c t f o r deed, t h e promises contained i n t h e r e s t r i c t i v e covenants a r e indepen- dent of t h e other promises i n the c o n t r a c t f o r deed. I n p a r t i c u l a r , they a r e independent of t h e promise t o make payment by t h e due date. Therefore, Reinkes' breach of t h e t h i r t y f o o t setback requirement on t h e i r l o t adjacent t o t h e one being sold, which occurred before t h e d a t e payment w a s due under t h e c o n t r a c t , d i d n o t excuse Biegels' o b l i g a t i o n t o make payment by t h e due d a t e . Biegels could n o t stand on t h e i r c o n t r a c t f o r deed and counterclaim f o r damages f o r breach of t h e r e s t r i c t i v e covenant a s a p a r t of t h e c o n t r a c t f o r deed without f u l f i l l i n g t h e i r o b l i g a t i o n t o make payment by t h e due date. The r i g h t s c r e a t e d by r e s t r i c t i v e covenants a r e con- t r a c t u a l r i g h t s . Sheridan v. Martinsen (1974), 164 Mont. 383, 523 P.2d 1392, 1395. Assuming t h a t t h e r e s t r i c t i v e covenants contained i n t h e recorded d e c l a r a t i o n of r e s t r i c - t i o n s became incorporated i n t o t h e c o n t r a c t f o r deed by reference, t h e governing r u l e is s t a t e d i n O'Conner v. W h i t e s i t t (1948), 1 2 1 Mont. 257, 193 P.2d 365, 366: " P l a i n t i f f ' s claim of r i g h t t o have a r e s c i s s i o n of h i s c o n t r a c t because of defendant's removal of about $75 worth of lumber and building mater- i a l s from t h e premises f o r which p l a i n t i f f had contracted t o pay $5,800 cannot be sustained. This breach of agreement by t h e defendant went t o only a very s m a l l p a r t of t h e consideration and could e a s i l y be compensated i n damages. I t cannot t h e r e f o r e c o n s t i t u t e a ground f o r r e s c i s - s i o n of p l a i n t i f f ' s c o n t r a c t . " I n Johnson v. Meiers, Mont., 164 P.2d 1 0 1 2 , 1014, we quoted with approval t h e following from 12 Am.Jur., ' C o n t r a c t s , ' s e c t i o n 440: ' I t i s n o t every breach of a c o n t r a c t o r f a i l u r e e x a c t l y t o perform--certainly n o t every p a r t i a l f a i l u r e t o perform--that e n t i t l e d t h e o t h e r .. p a r t y t o rescind. A breach which goes to only a p a r t of t h e c o n s i ~ e r a t i o n , i s n c i d e n t a l and - -- subordinate ---- t o m m a i n o = of -- t h e c o n t r a c t , and m a y be compensated i n damages does n o t war- rant - - a r e s c i s s i o n of -- t h e c o n t r a c t ; * i n j u r e d p a r t y is s t i l l bound t o perform ---- h i s p a r t of t h e agreement, and h i s on% remedy -- f o r t h e breach c o n s i s t s of -- t h e damages -- he has s u f f e r e d there- from. A r e s c i s s i o n i s not warranted by a mere breach of c o n t r a c t not so s u b s t a n t i a l and funda- mental a s t o d e f e a t t h e o b j e c t of t h e p a r t i e s i n making t h e agreement. Before p a r t i a l f a i l u r e of performance of one p a r t y w i l l g i v e t h e o t h e r t h e r i g h t of r e s c i s s i o n , t h e a c t f a i l e d t o be per- formed must go t o t h e r o o t of t h e c o n t r a c t o r t h e f a i l u r e t o perform the c o n t r a c t must be i n r e s p e c t of m a t t e r s which would render t h e per- formance of t h e remainder a t h i n g d i f f e r e n t i n substance from t h a t which was contracted f o r . ' " (Emphasis added.) For statements t o t h e same e f f e c t , see 17A C.J.S. Contracts S344 a t 334: "When a covenant goes only t o p a r t of t h e consideration on both s i d e s and a breach may be compensated f o r i n damages, and it i s only subordinate and i n c i d e n t a l t o t h e main purpose of t h e c o n t r a c t , it i s t o be regarded a s an independent covenant unless t h i s i s c o n t r a r y t o t h e expressed i n t e n t of t h e p a r t i e s " ; and 17A C.J.S. Contracts S453 a t 571: "A p a r t y ' s f a i l u r e t o perform an independent s t i p u - l a t i o n of a c o n t r a c t does n o t bar h i s r i g h t t o recover f o r t h e o t h e r p a r t y ' s breach o r excuse such o t h e r p a r t y from performing t h e s t i p u l a t i o n s made by him." The same r u l e i s s t a t e d i n 17 Am.Jur.2d Contracts 5355 a t 792: ". . . where t h e c o n t r a c t i s executory on both s i d e s , t h e o b l i g a t i o n of one of t h e p a r t i e s t o perform frequently depends on whether t h e mutual promises a r e dependent o r independent. I f t h e promises a r e independent of each o t h e r , a p a r t y must perform h i s p a r t of the c o n t r a c t when t h e t i m e f o r performance has a r r i v e d , i r r e s p e c t i v e of whether t h e o t h e r p a r t y has performed h i s o b l i g a t i o n . . ." See a l s o Nolan v. Lunsford (1940), 142 Fla. 671, 196 So. 193, 128 A.L.R. 649, where t h e c o u r t considered a similar issue--namely, whether o r n o t performance by a vendor of h i s covenant t o make improvements was a necessary condition t o h i s r i g h t t o f o r e c l o s e on t h e c o n t r a c t . I n discussing t h e n a t u r e of dependent and independent covenants, the c o u r t s t a t e d : "An independent covenant is one which goes only t o a p a r t of t h e consideration on both s i d e s and a breach of which may be paid f o r i n damages . . . "In determining whether covenants are dependent or not, the intention of the parties is sought for and regarded in the light of all the circum- stances evidenced by the contract. The court will consider whether the acts contemplated by the covenants are subordinate and incidental or whether they go to the entire consideration. . ." Nolan, 196 So. at 197. Applying these principles to the present case, it is clear that the restrictive covenant relating to a 30 foot setback requirement was incidental and subordinate to the main purpose of the contract for deed and that the sellers' breach went at most to only a part of the consideration. The primary consideration in a contract for deed is the sellers' delivery of a deed in exchange for the buyers' payment of the purchase price. The sellers' breach of the restrictive covenant was not so substantial and fundamental as to defeat the object of the parties in making the con- tract for deed. Therefore, under the rule announced in O'Conner and the other authorities cited above, Biegels, the parties injured by the Reinkes' breach of the restrictive covenant, were still bound to perform their part of the agreement by tendering payment of the purchase price on or before the due date. Having failed to do so, they cannot now stand on the contract and recover damages. The District Court properly declared a forfeiture and denied appellants' counterclaims. Because the issue discussed is dispositive of this case, it is unnecessary to consider the other issues raised by the parties, such as the effect of asking the City for zoning variance, etc. The judgment of the District Court being fully supported by the evidence is affirmed. - ' , \ . / , ? + - Jus W e concur: ~ d 4 , % 4 4 Chief J u s t i c e , # - / ' 'I J u s t i c e s | December 27, 1979 |
4de75136-5926-4984-abef-eb6f0fc995ad | DOWNS v SMYK | N/A | 14772 | Montana | Montana Supreme Court | N o . 14772 I N T H E SUPREME C O U R T O F T H E STATE O F M O N T A N A 1979 ROBERT F. D O W N S , P l a i n t i f f and Respondent, -vs- B E R N A R D SMYK, a/k/a B E R N A R D L. SMYK, and LOIS SMYK, Defendants and Appellants. Appeal from: D i s t r i c t Court o f t h e T h i r t e e n t h J u d i c i a l D i s t - r i c t , Honorable Charles Luedke, Judge p r e s i d i n g . Counsel o f Record: For Appellant: Bernard and Lois Smyk, B i l l i n g s , Montana For Respondent : Calvin A. Calton, B i l l i n g s , Montana Submitted on B r i e f s : October 1 8 , 1 9 7 9 Decided : GEC 2 1 1 m F i l e d : Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an action to quiet title to certain real prop- erty located in Yellowstone County in the District Court of the Thirteenth Judicial District, the Honorable Charles Luedke presiding. Defendant-appellant, Bernard L. Smyk, leased approxi- mately seven and one-half acres of certain commercially desirable land in Billings, Montana, in 1976. Appellant was given the option to purchase such land by a letter received from his lessor on March 2, 1976. According to the terms of the letter, the option to purchase called for a total pur- chase price of $300,000 and a down payment of $60,000 and was to be exercised by appellant within 120 days. Unable to make the down payment, appellant contacted plaintiff-respon- dent, Robert F. Downs, for financial assistance. Respondent agreed to furnish appellant with the $60,000 down payment, and an agreement was executed to that effect in June 1976. That agreement recited that "Robert F. Downs will advance the down payment of $60,000.00 and in consideration therefor will acquire a 50% interest in the property." The agreement also stated: "When the proposed contract for deed will permit, the parties hereto agree to execute whatever may be required to establish their respective in- terests in the real estate of record with the Clerk and Recorder, Yellowstone County, Montana." Under the agreement, respondent controlled all contrac- tual arrangements concerning the property until appellant contributed, by means of monthly installments, an amount equal to that of the down payment. At that time, both appellant and respondent would share profits and liabilities equally. ~ a v i n g obtained t h e down payment, a p p e l l a n t e n t e r e d i n t o a c o n t r a c t f o r deed t o purchase t h e property i n J u l y 1976. ~ p p e l l a n t t h e r e a f t e r occupied t h e property a s h i s place of business u n t i l a d i s p u t e a r o s e between t h e p a r t i e s over t h e import of t h e agreement i n connection with a pos- s i b l e sale of t h e land. The d i s p u t e concerned whether respondent had merely loaned a p p e l l a n t t h e money f o r t h e purchase of t h e land o r had entered i n t o an agreement whereby he was conveyed an undivided one-half i n t e r e s t i n t h e land. A s a r e s u l t of t h e d i s p u t e , respondent f i l e d an a c t i o n i n D i s t r i c t Court on February 27, 1978, seeking s p e c i f i c performance of t h e agreement, a p a r t i t i o n i n g of t h e prop- e r t y , and an accounting and payment of r e n t a l s . A n amended complaint w a s f i l e d i n August 1978, asking t h e c o u r t t o q u i e t t i t l e t o an undivided one-half i n t e r e s t i n t h e prop- e r t y , p a r t i t i o n t h e property, order an accounting, and i s s u e d e c l a r a t o r y judgment a s t o t h e r i g h t of c o n t r o l f o r t h e sale of t h e property. O n August 2 3 , 1978, respondent f i l e d a motion f o r summary judgment pursuant t o Rule 56, M.R.Civ.P. Both p a r t i e s submitted b r i e f s on t h e motion and, on February 13, 1979, t h e c o u r t granted summary judgment as t o respon- d e n t ' s claim t o q u i e t t i t l e and h i s r e q u e s t f o r an account- i n g and payment of income due. Judgment was then entered by t h e c o u r t on February 23, 1979, and f i n a l judgment was entered on October 1, 1979. W e consider t h e following t h r e e i s s u e s on appeal: (1) Whether t h e D i s t r i c t Court e r r e d i n e n t e r i n g sum- mary judgment because it d i d n o t make f i n d i n g s of f a c t and conclusions of law. (2) Whether t h e D i s t r i c t Court e r r e d i n granting sum- mary judgment because t h e r e w e r e genuine i s s u e s of material f a c t before t h e court. (3) whether a p p e l l a n t may introduce, and whether t h i s Court may properly review, evidence which i s extraneous t o t h e record on appeal. A s h i s f i r s t i s s u e , a p p e l l a n t contends it was e r r o r f o r t h e D i s t r i c t Court t o g r a n t summary judgment and n o t e n t e r f i n d i n g s of f a c t and conclusions of law. Appellant main- t a i n s t h a t such f i n d i n g s w e r e necessary because they inform t h e p a r t i e s and a reviewing c o u r t of t h e b a s i s f o r t h e decision. Because no f i n d i n g s were included i n t h e i n s t a n t case, a p p e l l a n t contends t h a t t h e D i s t r i c t Court e r r e d . W e disagree. Rule 5 2 ( a ) , M.R.Civ.P., provides t h a t f i n d i n g s of f a c t and conclusions a r e n o t required t o be entered upon motions f i l e d pursuant t o Rule 56, M.R.Civ.P., f o r summary judgment, except when t h e r e i s a f a i l u r e by a p l a i n t i f f t o prosecute o r comply with t h e r u l e s of t h e c o u r t under Rule 4 1 (b) , M.R.Civ.P. Rule 52 ( a ) states i n p e r t i n e n t p a r t t h a t " f i n d i n g s . . . a r e unnecessary on d e c i s i o n s of motions under Rules 12 o r 56 o r any o t h e r motion except a s provided i n Rule 4 1 ( b ) . " Appellant attempts t o r e l y upon t h e case of Upper Missouri G&T Elec. Coop. v. McCone Elec. Co-op (1971), 157 Mont. 239, 484 P.2d 741, f o r t h e proposition t h a t such f i n d i n g s a r e necessary. Upper Missouri was a case i n which a D i s t r i c t Court of i t s own v o l i t i o n made f i n d i n g s of f a c t i n g r a n t i n g a motion f o r summary judgment. The judgment was reversed because t h e f i n d i n g s were unsupported by t h e evi- dence. I n t h a t opinion, t h i s Court noted t h a t f i n d i n g s w e r e n o t required i n d e c i s i o n s on motions f o r summary judgment, b u t t h a t , i f f i n d i n g s were entered and w e r e unsupported by t h e evidence, t h e judgment would be reversed: "While, under Rule 5 2 ( a ) , M.R.Civ.P., f i n d i n g s of f a c t and conclusions of l a w are unnecessary i n d e c i s i o n s on summary judgment, w e f i n d here t h a t an a n a l y s i s of t h e findings determines t h e c o r r e c t n e s s of t h e summary judgment involved. A s w e remarked before, our a n a l y s i s w i l l o f t e n show no evidence--that i s t h e negative." Upper Missouri, 157 Mont. a t 244, 484 P.2d a t 744. The motion f o r summary judgment i n t h i s case does n o t relate t o t h e f a i l u r e of p l a i n t i f f t o prosecute o r comply with t h e o r d e r of t h e D i s t r i c t Court. Therefore, t h e D i s - t r i c t Court d i d n o t err i n granting summary judgment because it d i d n o t e n t e r f i n d i n g s of f a c t and conclusions of l a w . Appellant n e x t argues t h a t t h e D i s t r i c t Court e r r e d i n g r a n t i n g summary judgment because an i s s u e of m a t e r i a l f a c t w a s before t h e court. By s t a t u t e it i s c l e a r t h a t summary judgment i s only properly granted " i f t h e pleadings, deposi- t i o n s , answers t o i n t e r r o g a t o r i e s , and admissions on f i l e s , together with t h e a f f i d a v i t s , i f any, show t h a t t h e r e i s no genuine i s s u e a s t o any m a t e r i a l f a c t and t h a t the moving p a r t y i s e n t i t l e d t o judgment a s a matter of law." Rule 56 ( c ) , M.R.Civ.P. I n a motion f o r summary judgment, t h e moving p a r t y has t h e burden of showing t h a t no genuine i s s u e of f a c t i s before t h e t r i a l court. Where t h e record c l e a r l y shows no i s s u e , t h e burden s h i f t s , and t h e opposing p a r t y must come forward with s u b s t a n t i a l evidence r a i s i n g t h e i s s u e . Har- land v. Anderson (1976), 169 Mont. 447, 450-451, 548 P.2d "The Court has c o n s i s t e n t l y held t h a t t h e p a r t y moving f o r summary judgment has t h e burden of showing t h e complete absence of any genuine is- sue as t o a l l f a c t s which a r e deemed m a t e r i a l i n l i g h t of those s u b s t a n t i v e p r i n c i p l e s which e n t i t l e him t o a judgment as a matter of law "The primary p o l i c y and general purpose under- l y i n g Rule 56, M.R.Civ.P., i s t o encourage judi- c i a 1 economy through t h e prompt elimination of questions n o t deserving of r e s o l u t i o n by t r i a l . [ C i t a t i o n omitted.] Thus while t h e i n i t i a l bur- den of proof must a t t a c h t o t h e movant, t h a t burden s h i f t s where t h e record d i s c l o s e s no genuine i s s u e of m a t e r i a l f a c t . Under t h e s e circumstances, t h e p a r t y opposing t h e motion must come forward with s u b s t a n t i a l evidence r a i s i n g t h e i s s u e . [ C i t a t i o n s omitted.]" H e r e , respondent f i l e d a motion f o r summary judgment and thus had t h e burden of e s t a b l i s h i n g t h e absence of any m a t e r i a l i s s u e of f a c t . Respondent attempted t o c a r r y t h i s burden by arguing i n h i s b r i e f t o t h e t r i a l c o u r t t h a t t h e record w a s c l e a r and devoid of any genuine i s s u e of material f a c t . Appellant argued, however, t h a t t h e record was ambigu- ous and t h a t a m a t e r i a l i s s u e of f a c t was before t h e c o u r t . That i s s u e was whether respondent, under t h e terms of t h e agreement between a p p e l l a n t and respondent, obtained any i n t e r e s t i n t h e property by advancing money and, i f so, when he obtained such i n t e r e s t . O n t h e one hand, a p p e l l a n t argued t h a t respondent d i d n o t o b t a i n any i n t e r e s t i n t h e property because t h e money w a s advanced a s a loan. O n t h e o t h e r hand, a p p e l l a n t argued t h a t respondent, by t h e terms of t h e agreement, obtained only a f u t u r e i n t e r e s t i n t h e land. The t r i a l c o u r t was faced with, as w e are, looking t o t h e record t o determine t h e existence of any genuine i s s u e of m a t e r i a l f a c t . Appellant relies heavily on t h e t e r m s of t h e c o n t r a c t f o r one of h i s arguments. Appellant emphasizes t h a t , ac- cording t o t h e t e r m s of t h e c o n t r a c t , respondent obtained h i s i n t e r e s t i n t h e property only "when t h e proposed con- tract f o r deed w i l l permit . . ." Therefore, a p p e l l a n t contends t h a t respondent acquired only a f u t u r e i n t e r e s t i n t h e land. According t o t h e r u l e s of construction, a c o n t r a c t i s t o be i n t e r p r e t e d s o a s t o give e f f e c t t o t h e mutual i n t e n - t i o n of t h e p a r t i e s . Section 28-3-301, MCA. Where t h e language of a c o n t r a c t i s c l e a r and e x p l i c i t and does not involve an absurdity, t h e i n t e r p r e t a t i o n of a c o n t r a c t i s governed by such language. Section 28-3-401, MCA. The whole of t h e c o n t r a c t i s t o be taken together so a s t o give e f f e c t t o every p a r t i f reasonably p r a c t i c a b l e , each c l a u s e helping t o i n t e r p r e t t h e o t h e r . Section 28-3-202, MCA. " I t is well e s t a b l i s h e d t h a t a c o u r t , i n i n t e r - p r e t i n g a w r i t t e n instrument, w i l l n o t i s o l a t e c e r t a i n phrases of t h a t instrument i n order t o garner t h e i n t e n t of t h e p a r t i e s , b u t w i l l grasp t h e instrument by i t s four corners and i n l i g h t of t h e e n t i r e instrument, a s c e r t a i n t h e paramount and guiding i n t e n t i o n of t h e p a r t i e s . Mere i s o - l a t e d t r a c t s , c l a u s e s and words w i l l n o t be a l - lowed t o p r e v a i l over t h e general language u t i l i z e d i n t h e instrument." Steen v. Rustad (1957), 132 Mont. 96, 102, 313 P.2d 1014, 1018. Appellant's argument i s predicated on an i s o l a t e d phrase of t h e c o n t r a c t , which is taken o u t of context and omits t h e remaining p a r t of t h e sentence. The sentence i n i t s e n t i r e t y is: "When t h e proposed c o n t r a c t f o r deed w i l l permit, t h e p a r t i e s h e r e t o agree t o execute whatever may be required t o e s t a b l i s h t h e i r r e s p e c t i v e i n t e r - ests i n t h e real e s t a t e of record with t h e Clerk and Recorder, Yellowstone County, Montana." Viewed i n i t s e n t i r e t y , t h e provision takes on new meaning. The c l a u s e , by i t s very t e r m s , i n d i c a t e s t h a t respondent received a p r e s e n t i n t e r e s t i n t h e land which was t o be recorded a t a f u t u r e d a t e . That t h i s i s c l e a r l y t h e i n t e n t i o n of t h e p a r t i e s i s f u r t h e r evidenced by o t h e r provisions of t h e agreement: "Robert F. Downs w i l l advance t h e down payment of $60,000.00 and i n consideration t h e r e f o r w i l l acquire a 50% i n t e r e s t i n t h e property. "Downs w i l l c o n t r o l any c o n t r a c t u a l arrange- ments u n t i l Smyk has contributed, by payment of monthly i n s t a l l m e n t s , t h e sum of $60,000.00. A t t h a t time, Downs and Smyk s h a l l e q u a l l y share a l l l i a b i l i t i e s and p r o f i t s , i f any." Appellant again relies heavily on an i s o l a t e d phrase f o r t h e argument t h a t respondent obtained no i n t e r e s t i n t h e land because t h e money advanced by respondent was merely a loan. That phrase i s found i n respondent's deposition i n which respondent states t h a t he "lend[ed] t h e money t o him [ a p p e l l a n t ] . " I n evaluating a p p e l l a n t ' s argument, it is f i r s t important t o note t h a t the answer was given by respon- d e n t only a f t e r h i s counsel voiced two o b j e c t i o n s as t o form. Secondly, it i s a l s o important t o examine o t h e r p o r t i o n s of t h e deposition. There, it i s e s t a b l i s h e d t h a t t h e answer i s taken o u t of context and t h a t respondent never considered t h e t r a n s a c t i o n a loan: "Q. NOW, I n o t i c e i n Paragraph 3 of t h e agree- ment t h a t it states, 'Robert F. Downs w i l l ad- vance t h e down payment of $60,000.00 and i n consideration t h e r e f o r w i l l acquire a 50% in- terest i n t h e property.' Now, when w e r e you supposed t o acquire t h e 50% i n t e r e s t i n the property? A. W e l l , I had 50% when I give t h e $60,000 down. "Q. A r e you t h e owner of t h i s property? A. I ' m h a l f owner. "Q. Where does M r . Carlson f i t i n t o t h i s ? A. I ' m half buyer. I ' l l c o r r e c t m y statement." W e need n o t look t o t h e deposition, however, t o d e t e r - mine whether t h e money was advanced by respondent f o r a down payment o r a s a loan. The agreement i t s e l f r e v e a l s t h e answer. The c o n t r a c t d e s c r i b e s t h e money as a down payment, n o t as a loan. Nowhere i n t h e c o n t r a c t i s t h e r e made men- t i o n of a loan, o r a provision f o r repayment of a loan, o r a provision regarding i n t e r e s t on t h e $60,000. Rather, t h e c o n t r a c t s t a t e s t h a t i n consideration f o r t h e down payment, - respondent w i l l acquire a 50% i n t e r e s t i n t h e property. Further, t h e r e is a provision which i n d i c a t e s t h a t t h e p a r t i e s w i l l equally share p r o f i t s and l i a b i l i t i e s when a p p e l l a n t has contributed an amount equal t o t h e down pay- ment. Without question, t h e r e i s a c l e a r and d e f i n i t e i n t e n t of t h e p a r t i e s t o share 50-50 i n t h e ownership, l i a b i l i t i e s , and income of t h e p r o p e r t i e s . W e f i n d , t h e r e f o r e , t h a t t h e D i s t r i c t Court d i d n o t err i n g r a n t i n g summary judgment t o respondent. There was no genuine i s s u e of m a t e r i a l f a c t i n t h e record before t h e c o u r t . It i s c l e a r from t h e f a c e of t h e c o n t r a c t t h a t respondent obtained a one-half i n t e r e s t i n t h e property upon furnishing t h e down payment, such i n t e r e s t t o be recorded when t h e c o n t r a c t f o r deed permitted. Appellant f a i l e d t o come forward with s u b s t a n t i a l evidence of t h e e x i s t e n c e of a genuine i s s u e of m a t e r i a l f a c t . A s t h i s Court s t a t e d i n Yecny v. Day (1977), - Mont. , 571 P.2d 386, 388, 34 St.Rep. 1323, 1325: s e n t w i l l . t h e p a r t y opposing t h e motion must pre- f a c t s i n proper form--conclusions of law n o t s u f f i c e ; and t h e opposing p a r t y ' s f a c t s must be m a t e r i a l and of a s u b s t a n t i a l nature, n o t f a n c i f u l , f r i v o l o u s , gauzy, nor merely sus- picious. " ( C i t a t i o n s omitted. ) The f i n a l i s s u e concerns whether a p p e l l a n t may i n t r o - duce, and whether t h i s Court may properly consider, evidence which i s extraneous t o t h e record on appeal. Appellant begs t h i s Court, i n considering t h e p r o p r i e t y of t h e summary judgment, t o examine a deposition given by respondent i n a d i s s o l u t i o n and property settlement proceeding previously decided by t h i s Court. That deposition, however, was n e i t h e r introduced i n t o evidence nor considered by t h e t r i a l c o u r t i n t h i s matter. I t i s a w e l l - s e t t l e d p r i n c i p l e t h a t t h i s Court i s confined i n equity c a s e s t o a consideration of evidence presented i n the record. Section 3-2-204(5), MCA, s t a t e s i n p e r t i n e n t p a r t : " I n e q u i t y cases and i n m a t t e r s and proceedings of an e q u i t a b l e n a t u r e , t h e supreme c o u r t s h a l l review a l l questions of f a c t a r i s i n g upon t h e evidence presented -- i n t h e record . . ." (Empha- sis added.) W e have previously refused t o consider attempts by l i t i g a n t s t o introduce testimony extraneous t o t h e record. I n Montgomery v. F i r s t National Bank (1943), 1 1 4 Mont. 395, 4 1 2 , 136 P.2d 760, 768, w e s t a t e d : "Reference has been made t o c e r t a i n testimony given a t t h e t r i a l i n Montgomery v. G i l b e r t . Section 9745, Revised Codes, provides what con- s t i t u t e s t h e record on appeal from an order i n probate. The testimony -- i n t h e p r i o r l i t i g a t i o n i s n o t p a r t of t h e p r e s e n t record. Although w e ----- do n o t see wherein it has any bearing on t h e i s s u e s presented by respondents' p e t i t i o n t o sell and a p p e l l a n t s ' o b j e c t i o n s t h e r e t o , nevertheless, i f i t - h a s , w e m x ---- n o t look t o t h a t testimony for t h e p u r p o s e o f supplying -- f a c t s n o t presented in t h e record f o r review -- i n t h e p r e s e n t proceeding." ( C i t a t i o n s omitted.) (Emphasis added.) I n Farmers S t a t e Bank of Conrad v. Iverson (1973), 162 Mont. 130, 133-134, 509 P.2d 839, 841, w e a l s o s t a t e d : " I n a d d i t i o n w e must comment on t h e 'back door' attempt by p e t i t i o n e r s and a p p e l l a n t s t o i n t r o - duce extraneous evidence i n t h e s e proceedings by a t t a c h i n g Appendix ' A ' , ' B ' , and ' C ' t o t h e i r b r i e f on appeal. Said appendices being a f f i d a - v i t s of Ralph Bouma, t o which are attached p h o t o s t a t i c copies of c e r t a i n c i t a t i o n s and o r d e r s i n causes 8073 and 8221, Pondera County, r e f e r r e d t o previously. "We s t r o n g l y condemn t h i s p r a c t i c e Q counsel f o r a p p e l l a n t s and use t h i s occasion to warn o t h e r p a r t i e s t o f u t u r e appeals -- t h a t t h i s prac- tice w i l l n o t t o l e r a t e d . " - - We find, therefore, that we may not consider evidence which is extraneous to the record on this appeal. Accordingly, the judgment of the District Court is affirmed. We concur: ~ A A J p4&&@ Chief Justice Justices Mr. Justice John C. Sheehy, deeming himself disqualified, did not participate in this case. | December 21, 1979 |
74f9cc8d-e187-4952-85e7-ae0daf27cf6a | ROUNDUP CATTEL FEEDERS v HORPESTAD | N/A | 14817 | Montana | Montana Supreme Court | N o . 14817 I N T H E S U P R E M E COURT O F T H E STATE O F MONTANA 1979 R O U N D U P CATTLE FEEDERS, P l a i n t i f f and Appellant, VS . FRJ3D HORPESTAD, Defendant and Respondent. Appeal from: D i s t r i c t Court of t h e Fourteenth J u d i c i a l , Honorable N a t Allen, JuJge presiding. Counsel of Record: For Appellant: Towe, B a l l , Enright and Mackey, B i l l i n g s , Montana Stephen Mackey argued, B i l l i n g s , Montana For Respondent: Ask and P r a t t , Roundup, Montana Thomas M. Ask argued, Roundup, Montana - - Submitted: November 5 , 1979 Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. This appeal is from a judgment and award of damages in favor of defendant-cross complainant Fred Horpestad. Trial was in the District Court of Musselshell County, the Honorable Nat Allen presiding without a jury. On February 11, 1974, Horpestad, a rancher, entered a joint venture agreement with Roundup Cattle Feeders, Inc. (RCF), a feedlot operator. The agreement provided that Horpestad would deliver cattle to RCF at its Roundup, Montana, feedlot. RCF was then to feed and prepare the cattle for market. Upon sale of the fattened cattle, each party was to recover its investment and then split the profits. The agreement, in pertinent part, reads: "2. [RCF] agrees to feed and care for said live- stock for the periods as hereinafter specified. "The cattle will be fed for a minimum of 120 days from the respective dates they were delivered at said feedlot and thereafter until at least 80% of each respective lot will grade choice. "4. The cattle feeding project shall be deemed a joint venture whereby the parties will share in the profits or losses, in accordance with the following provisions: " (a) [Horpestad] will have contributed the live- stock with agreed values as above set forth for the purposes of this agreement which will constitute [Horpestad'sl investment in the enterprise. "[RCF] will advance the actual cost of feed, vet- erinary services, yardage, work and labor, and keep a record of these charges, the total of which will constitute in dollars [RCF's] investment in said enterprise. "(b) When said livestock are sold as fat cattle . . . the net proceeds received from the sale of [cattle] will be remitted to [Horpestad] by the packers, but are to be accounted for between [Horpe- stad] and [RCF] in accordance with the following formula: "If the proceeds from the sale of the [cattle] are sufficient so that [Horpestad] may be reimbursed for the agreed in-value of the animals and [RCF] may be reimbursed for its feeding costs, the balance shall be considered the profit on the transaction and shall be divided equally between the parties. "However, in the event the net proceeds of sale of said [cattle] to a packer are not sufficient so that [Horpestad] can be reimbursed in full for the agreed in-value thereof, and [RCF] cannot be reimbursed in full for its feeding costs thereof, then and in that event the total agreed in-value of the animals and [RCF's] total feeding costs shall be added together, the net proceeds subtracted therefrom and the balance which would constitute the loss, shall be divided equally between the parties, whereupon one-half the loss would be deducted from [Horpestad's] in-value of the animals and the balance of the cost of the animals remitted to [Horpestad] and one-half of the loss would be deducted from [RCF's] feeding costs for said cattle and the balance of the feeding costs remitted to [RCF]. "5. [RCF] represents that it has made adequate and suitable arrangements so that it can provide the necessary feed, labor and equipment to properly care for said cattle." As per the contract, Horpestad delivered the cattle and RCF began feeding them. Unfortunately, cattle prices plummeted during the first half of 1974. As a result, RCF lost its bank financing and could not provide feed for the cattle. Being unable to perform its contractual obligation, RCF informed Horpestad he would have to provide the necessary feed or remove the cattle. On May 31, 1974, RCF fed the cattle dry hay instead of silage along with their regular grain and supplement. This took the cattle off their feed at a critical time and set their weight back drastically. On June 1, Horpestad terminated the contract and removed his cattle to a yard in Powell, Wyoming. RCF agrees the joint venture ended on this date. As a result of the move to Powell, the cattle were further taken off their feed and their progress was set back even more. Because the cattle had been removed from their feed, they had to be fed longer in order for 80% of them to grade choice. They were fed at the Powell, Wyoming, feedlot until they were sold Between February 11 and June 1, 1974, RCF expended $57,872.66 for feed and labor. It was never reimbursed for this amount. RCF sought an accounting as of the date the joint ven- ture was terminated or, in the alternative, restitution. Horpe- stad counterclaimed for damages in the amount of the expenses incurred in moving the cattle and feeding them to make up for the time they were off their feed. RCF was denied relief on both its claims but Horpestadts counterclaim was allowed in the amount of $27,347. RCF appeals and raises the following issues: 1. Whether an accounting must be made. 2 . Whether RCF is entitled to restitution. 3 . Whether the award of damages was proper. The theory underlying RCFts claim for an accounting is that it is entitled either contractually or equitably to the money it expended in performing as much of the contract as it did. To this end we must first determine whether the contract was entire or severable. The rule upon which the question is resolved has been stated as follows: " . . . Whether a contract is entire or divisible depends very largely on its terms and on the in- tention of the parties disclosed by its terms. As a general rule a contract is entire when by its terms, nature and purpose, it contemplates and in- tends that each and all of its parts are inter- dependent and common io one another and to the consideration . . ." Traiman v. Rappaport (3rd Cir. 1930), 41 F.2d 336, 338; Purdin v . Westwood Ranch and Livestock Co. (1923), 67 Mont. 553, 557, 216 P. 326, 327. The contract here provided that RCF was to feed the cattle until 80% graded choice. Only after this was achieved were the cattle to be sold and the proceeds from the sale split between the joint venturers. It is clear the parties intended the contract to be entire and nonseverable. Complete performance was required of RCF until the desired weight gain was accomplished; partial performance could not satisfy its contractual obligation, RCF, by defaulting on its obligation and abandoning the contract completely frustrated the purpose, intent and terms of the joint venture agreement. It thereby forfeited any right it may have had to an accounting under the contract. Brooks v . Muth (1956), 144 Cal.App.2d 560, 301 P.2d 404, 408. The instant case is distinguishable from Murphy v . Redland (1978) , Mont . I - - 583 P.2d 1049, 1053, 35 St.Rep. 1267, 1272, wherein we said, "[Albsent a default agreement joint adventurers cannot forfeit the rights of a member and exclude him from participation in the enterprise because he is in default." In Murphy, the joint venture was never terminated and the party seeking an accounting remained a fully participating venturer. Here, the complaining party agrees the joint venture was terminated by its own abandonment. Even though its own wrong destroyed the joint venture, RCF attempts to invoke the court's equity power to order an account- ing. The contention fails as equity is premised on the notion that a wrongdoer may not take advantage of his own wrong. Mitchell v . Pestal (1949), 123 Mont. 142, 150, 208 P.2d 807, 811; section 1-3-208, MCA. In a case similar to the one at bar, the Washington Supreme Court said: "Appellants did not offer to do equity in their complaint. It seems strange, indeed, that suitors, admitting their breach of a joint venture contract, should seek the aid of the court of equity to enforce rights claimed by them under the identical contract, No one may profit by his own wrong. It seems to us that by their own admitted misconduct appellants forfeited any rights to an accounting." Saletic v . Stamnes (1958), 51 Wash.2d 696, 321 P,2d 547, 549. RCF argues its performance became impossible because of the drop in cattle prices which caused it to lose its financing. It concludes it was thus excused from performing under the doctrine of commercial impossibility. We cannot agree for two reasons. First, in order for commercial impossibility to excuse performance of a contract, the parties thereto must have no reason to forsee the impossibility at the time they contracted. Rest. Contracts, section 456; Smith v. Zepp (1977), 173 Mont. 358, 567 P.2d 923,927-928 34 St.Rep. 753, 758-759. Here, fluctuation in cattle prices is a fact of life--it is forseeable. Second, in order for commercial impossibility to excuse performance, the contractual duties must be impossible for anyone to perform. Rest. Contracts, section 455; Marshick v . Marshick (1976), 25 Ariz-App. 588, 545 P.2d 436, 439; Cannon v . Huhndorf (1966), 67 Wash.2d 778, 409 P.2d 865, 867. As stated in 17 Am Jur 2d Contracts, S415: "It is generally well settled that the subjective impossibility, that is, an impossibility that is personal to the promisor and does not inhere to the nature of the act to be performed, does not excuse nonperformance of a contractual obligation. Accord- ingly, the fact that one is unable to perform a contract because of his inability to obtain money, whether due to his poverty, a financial panic, or failure of a third person on whom he relies for furnishing the money, will not ordinarily excuse nonperformance, in the absence of a contract pro- vision in that regard." The impossibility in this case was personal to RCF. This fact is illustrated by Horpestad's obtaining adequate financing once the cattle were moved. We turn next to RCF1s argument that it is entitled to restitution of the expenses it incurred in partially performing the contract. As discussed, the agreement was entire and nonsev- erable; failing in the complete performance of such a contract, RCF cannot recover thereunder. Being a plaintiff in substantial default and without a remedy under the contract, RCF's argument for restitution is necessarily based on an implied contract under which it seeks to recover a benefit conferred on a nondefaulting defendant. It contends if the benefit (less damages caused by its breach) is not returned, Horpestad will be unjustly enriched. We disagree. The rule allowing restitution in some cases is said to be grounded on principles of equity. As such, the party seeking restitution cannot base its c l a b on its own willful breach of an entire contract. Mitchell v . Pestal, supra, holding that a wrongdoer may not take advantage of its own wrongdoing; section 1-3-208, MCA. order for a claim restitution to lie: "'There must be no willful or intentional de- parture, and the defects must not pervade the whole, or be so essential as that the object which the parties intended to accomplish--to have a specified amount of work performed in a particular manner is not accomplished.' [Cita- tions omitted.] To permit a plaintiff to recover though it appears that he has willfully disre- garded his engagement in essential particulars, would be for the law to encourage parties to be delinquent in the performance of their solemn engagements; whereas its policy is to compeX cgbservance of them." Waite v. C . E, Shoemaker & Co. (1915), 50 Mont. 264, 278, 146 P. 736, 739; see also Harris v . The Cecil N . Bean (2nd Cir. 1952), 197 F.2d 919; Hayeck Building & Realty Co. v. Turcotte (1972), 361 Mass. 785, 282 N . E . 2 d 907; McLeod v . Belvedale (1967) , 115 Ga.App. 444, 154 S.E.2d 756; Jones & Laughlin Steel Co. v . Abner Doble Co. (1912), 162 Cal. 497, 123 P . 290. A workable composite of the above cited authorities is that a party who has completely breached an entire, nonserverable contract, without justification or excuse, may not recover for any performance rendered prior to the breach. Here, RCF expressly represented it had "made adequate and suitable arrangement so that it can provide the necessary feed, labor and equipment to properly care for said cattle." The drop in cattle prices, which was a forseeable event, caused RCF to lose its financing. Here RCF had not made suitable arrangements in accord with its promises. - There is no justification or excuse. No restitution can be allowed. The award of damages to Horpestad on his counterclaim will not be disturbed. The object of a damage award is to recompense the aggrieved party for detriment suffered as a proximate result of a breach of contract. Section 27-1-311, MCA. The evidence indicates that RCF's breach caused the cattle to be moved and to be fed for thirty extra days. The award for expenses incurred in moving and i n the extra feeding was proper. The award covered nothing but costs incurred a s a r e s u l t of R C F ' s breach. Affirmed. \ Chief J u s t i c e J u s t i c e s J | December 13, 1979 |
0d491151-e1ca-4dcd-8f83-fed61abd01c5 | MARRIAGE OF O NEILL v O NEILL | N/A | 14799 | Montana | Montana Supreme Court | No. 14799 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN RE THE MARRIAGE OF THERESA C. O'NEILL, Petitioner and Respondent, -vs- PAT A. O'NEILL, Respondent and Appellant. Appeal from: District Court of the Nineteenth Judicial District, Honorable Robert M. Holter, Judge presiding. Counsel of Record: For Appellant: Donald L. Shaffer, Libby, Montana For Respondent: Fennessy, Crocker, Harman and Bostock, Libby, Montana Filed: NOV " t t - - - .!! Submitted on briefs: October 4, 1979 Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. A father appeals from a judgment of the Lincoln County District Court holding him in contempt of court for failure to pay child support. Pat and Theresa O'Neill were granted a dissolution of marriage on January 14, 1977. On January 6, 1977, the parties had entered into a child custody and property settlement agree- ment whereby the mother was granted custody of the minor children and the father was required to pay $100 per month per child as sup- port which was incorporated in the decree. Pursuant to a show cause hearing held on November 16, 1978, the husband was found in contempt of court for failure to pay child support. He was sentenced to five days in Lincoln County Jail and was required to pay the accrued child support. The five day sen- tence, according to the District Court's order, was suspended if the husband paid the accrued child support, continued making such payments in the future, and maintained major medical and dental insurance for the benefit of the minor children. The father appeals from this judgment and order. Neither party addresses the controlling issue in this appeal, viz. Is a contempt order appealable? Section 3-1-523, MCA, states in pertinent part: "The judgment and orders of the court or judge made in cases of contempt are final and conclu- sive. There is no appeal, but the action of a district court or judge can be reviewed on a writ of certiorari by the supreme court or a judge thereof . . ." The statutes governing contempt of court are found at sections 3-1-501, et seq., MCA. These statutes provide for two kinds of procedure depending upon whether the contempt was committed in the presence of the court or not. Sections 3-1-511 and 512, MCA. It must be noted, however, that these two sections make the dis- tinction between the two types of contempt merely on procedural grounds. Section 3-1-523 makes no distinction between the two types of contempt. In State ex rel. Rankin v . District Court (1920), 58 a36 Mont. m, 191 P . 772, a case which involved contempt committed in the presence of the court, this Court said " . . . the convic- ted contemnor, if he chooses, may submit it [the record] to the appellate tribunal for review by appeal from the final judgment, or by other appropriate method. In this state he may do this only by invoking the writ of certiorari . , ." 58 Mont. at 289. Subsequently, this Court cited the above language from Rankin with approval in Ex parte Burns (1928), 83 Mont, 200, 208, 271 P. 439. Burns involved a contempt citation which was issued when the relator would not relinquish custody of a minor daughter pur- suant to a valid court order. In Hanson v . Hanson (1928), 83 Mont. 428, 272 P . 543, the District Court held a hearing concerning the plaintiff's alleged contempt in failing to comply with the terms of a decree of divorce. The District Court dismissed the contempt proceeding and the defen- dant appealed, In a per curiam opinion this Court merely cited the relevant statute (now section 3-1-523, MCA) and said, "nothing remains for us to do but to dismiss the attempted appeal, and it is so ordered." 83 Mont. at 429. In the Rankin case, supra, this Court said: "The power to inflict punishment in either [indirect or direct contempt] is inherent in the courts . . , The power is designated as 'inherent' because it is necessary to preserve the dignity of the judicial department of the government, and . . . must be exercised to its fullest extent . . . to enforce . . . rights after they have been determined." 58 Mont. at 288 This inherent power must be exercised by the courts with the knowledge that it will not be upset on appeal. This is neces- sary to preserve the dignity and authority of the court. Appeal dismissed. Chief Justice We concur: , /' n | November 30, 1979 |
ca772aad-2991-41ea-813f-ec831f3bdd28 | State v. Bekemans | 2013 MT 11 | DA 11-0630 | Montana | Montana Supreme Court | DA 11-0630 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 11 STATE OF MONTANA, Plaintiff and Appellee, v. KAMLA L. BEKEMANS, Defendant and Appellant. APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Beaverhead, Cause No. DC 10-3335 Honorable Loren Tucker, 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 A. Hinderman, Assistant Attorney General, Helena, Montana Jed Fitch, Beaverhead County Attorney, Dillon, Montana Submitted on Briefs: October 2, 2012 Decided: January 22, 2013 Filed: __________________________________________ Clerk January 22 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Kamla L. Bekemans (Bekemans) appeals from her convictions in the Fifth Judicial District Court, Beaverhead County, of felony criminal endangerment; failing to use a lamp on a parked vehicle; failure to carry flares or other warning devices; failure to display warning devices on a disabled vehicle; operating a vehicle without insurance; and failure to park as close as practicable to the edge of the shoulder. We affirm in part and reverse in part. ¶2 Bekemans presents the following issues for review: ¶3 Issue One: Whether sufficient evidence supports Bekemans’ criminal endangerment conviction. ¶4 Issue Two: Whether Bekemans was denied her right to be personally present at all critical stages of the trial. ¶5 Issue Three: Whether Bekemans was denied effective assistance of counsel. ¶6 Issue Four: Whether the District Court violated Bekemans’ constitutional rights by basing its sentence in part on her refusal to acknowledge guilt. ¶7 Issue Five: Whether the District Court had the authority to restrict Bekemans’ eligibility for parole. PROCEDURAL AND FACTUAL BACKGROUND ¶8 Brandon Davis (Davis) was killed in the early morning hours of July 28, 2009, when the vehicle that he was driving collided with a small bus parked in the middle of Interstate 15 (I-15). Bekemans had been driving the bus home to Livingston after purchasing it in Utah when it began to chug, slow down, and lose power intermittently. Bekemans had a mechanic 3 at a truck stop near Idaho Falls examine the bus, but the mechanic could not identify the problem. After having difficulty crossing Monida Pass, the bus again started slowing down and chugging near mile marker thirty-two, south of Dillon. Instead of safely pulling the bus onto the shoulder of the road on the dark, moonless night, Bekemans stopped the bus in the middle of the right, northbound lane of traffic. ¶9 Bekemans’ attempts to restart the bus failed. After stopping the bus, Bekemans turned the engine off and then tried to restart the bus. When she turned the key, however, the “Wait to Start” light came on that is common to vehicles with diesel engines. Not knowing that she simply had to wait a couple of seconds for the light to extinguish before cranking the engine, Bekemans turned the key to the off position. ¶10 Bekemans failed to deploy standard warning devices after she failed to restart the bus. Bekemans was not carrying flares or emergency reflective triangles. She did not know how to activate her hazard lights. Upon finding herself parked in the middle of the interstate highway on a dark night without any warning devices deployed, Bekemans decided to turn the bus’s lights off. She told people on the scene after the crash that she had turned her lights off to conserve battery power. She claimed that she turned them back on whenever she saw a car approaching. ¶11 Bekemans had failed to turn her lights on to warn approaching drivers before the collision, however. Michael Twilleager (Twilleager) passed Bekemans’ bus while it was parked in the middle of the interstate. Twilleager, a professional driver for a transportation company, had been driving a large passenger van north on I-15 on the night of the crash. 4 About a mile before reaching Bekemans, Twilleager saw two pairs of taillights in front of him. Twilleager watched the vehicle in the left lane pull away from the other vehicle, and then the taillights in the right lane disappeared. Twilleager mistakenly assumed that the vehicle had pulled onto the shoulder of the road. As he approached, Bekemans’ lights remained off. Twilleager saw Bekemans’ bus in his lane at the last moment. He was able to narrowly avoid a collision by swerving into the left lane. He immediately called 9-1-1 to warn of the situation. ¶12 Jeff Buchman (Buchman), a professional truck driver, also passed Bekemans’ bus on the night of the crash. Buchman saw what appeared to be flashing lights come on in the right lane as three trucks approached Bekemans’ bus a ways in front of him. He watched as the three trucks put on their left turn signals and went around the flashing lights. After the three trucks had passed, the flashing lights disappeared. Buchman heard the drivers talking to each other on their CB radios, so he knew that a vehicle was in the road. Buchman slowed down to forty-five miles per hour and approached with his bright headlights on. Even so, Buchman did not see the bus in front of him until Bekemans turned her lights back on when he was one-quarter of a mile away. Buchman moved into the left lane and passed Bekemans going thirty miles per hour. After he passed the bus, Buchman warned a driver behind him on his CB radio that a bus was stopped in the middle of the interstate. ¶13 Davis received no such warning. He was traveling north on I-15 on July 28, 2009, on his way home to Red Lodge from Boise, Idaho. He was eighteen years old. Davis was reportedly driving well above the seventy-five mile-per-hour speed limit, and the toxicology 5 report indicated that he had consumed an entire bottle of Robitussin Cough Syrup. Even so, a number of drivers whom he had passed just miles before the collision testified that they did not observe anything to indicate that his driving was impaired. ¶14 Unlike Twilleager and Buckman, Davis did not see Bekemans’ bus in the middle of the interstate until it was too late. Davis may have swerved to the right a split-second before the collision, but there were no skid marks and no indication that he had attempted to engage his brakes. A witness testified that he saw Bekemans’ bus with its lights on just after the moment of impact. ¶15 Bekemans was charged with criminal endangerment, a felony, and other traffic violations as noted above. J.B. Anderson (Anderson), the first attorney assigned to represent Bekemans, moved to withdraw from the case at Bekemans’ request on Thursday, November 4, 2010. The next day, the District Court scheduled a show-cause hearing for Tuesday, November 9th. A notice was mailed to Bekemans informing her that her attendance was required. Bekemans failed to appear at the hearing. ¶16 At the hearing, the judge told Anderson that he wanted to hear from Bekemans. Anderson responded that he had talked to Bekemans on the phone the day before the hearing. He said that he made sure that Bekemans knew about the hearing. Anderson also said that he had told Bekemans that he could ask for a continuance if she could not make it, but that she had not asked him to do so. The judge informed Anderson that he was considering issuing a bench warrant and asked him to speak on Bekemans’ behalf. Anderson responded, “I would hate to see that happen, but maybe she needs a wake-up call. I just think this is a 6 person that just doesn't give a rip, Your Honor.” Anderson did, however, convince the judge to not issue a bench warrant at that time. The judge rescheduled the hearing for November 23, 2010, which Bekemans attended and participated in. At the hearing, the court found that Anderson and Bekemans had lost all meaningful ability to communicate and granted Anderson’s motion to withdraw. ¶17 The District Court conducted a two-day trial on April 21-22, 2011. The jury convicted Bekemans of felony criminal endangerment and a number of the charged misdemeanor traffic offenses. Bekemans was sentenced to the custody of the Montana Department of Corrections (DOC) for ten years with all but five years suspended. The sentencing order requires Bekemans to complete a specific rehabilitation program before she can be released from custody. STANDARD OF REVIEW ¶18 We review de novo claims of insufficient evidence. State v. Swann, 2007 MT 126, ¶ 19, 337 Mont. 326, 160 P.3d 511. Claims that a defendant received ineffective assistance of counsel are mixed questions of fact and law, which we also review de novo. State v. Kougl, 2004 MT 243, ¶ 12, 323 Mont. 6, 97 P.3d 1095. We exercise plenary review over constitutional questions, including alleged violations of a defendant’s constitutional right to be personally present at all critical stages of trial. State v. Charlie, 2010 MT 195, ¶ 21, 357 Mont. 355, 239 P.3d 934. DISCUSSION ¶19 Issue One: Whether sufficient evidence supports Bekemans’ criminal endangerment 7 conviction. ¶20 We review the record for sufficient evidence in the light most favorable to the prosecution. State v. Gunderson, 2010 MT 166, ¶ 58, 357 Mont. 142, 237 P.3d 74. There is sufficient evidence to support a conviction if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Finley, 2011 MT 89, ¶ 18, 360 Mont. 173, 252 P.3d 199. It is the jury’s role as factfinder to evaluate the credibility of witnesses, weigh the evidence, and ultimately determine which version of events should prevail. State v. Weigand, 2005 MT 201, ¶ 7, 328 Mont. 198, 119 P.3d 74. Thus, it is immaterial to our review whether the evidence could have also supported a different result. Weigand, ¶ 7. ¶21 A person commits the offense of criminal endangerment if the person knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another. Section 45-5-207(1), MCA. With respect to the offense of criminal endangerment, a person acts knowingly when the person is aware that there exists the high probability that her conduct would create a substantial risk of death or serious bodily injury to another. Section 45-2-101(35), MCA; § 45-5-207(1), MCA. ¶22 The uncontroverted evidence presented at trial established that Bekemans bought a small bus that she did not know how to fully operate. Bekemans drove the bus from Utah to Montana without insurance and without proper emergency warning devices. Bekemans continued driving the bus even after it began experiencing mechanical difficulties. Bekemans then stopped her bus in the middle of an isolated section of the interstate highway 8 and turned off her lights during the dark, moonless night. There is no indication that Davis saw the bus in the middle of the road more than a split-second before the crash. Bekemans claimed to have turned her lights back on whenever she saw a vehicle approaching, but she had previously failed to turn her lights on to give adequate warning to other drivers. One witness testified that as he was approaching, Bekemans completely had failed to turn her lights on. Another witness testified that Bekemans turned her lights on one-quarter of a mile before he passed her even though he had his bright headlights on and had slowed down to forty-five miles per hour. ¶23 Bekemans argues that no rational jury could have found that her lights were not on at the moment of impact. Bekemans bases her argument on her own assertions and a witness’s testimony that her lights were on just after the crash. Even if Bekemans’ lights were on at the moment of impact, the jury could have found that she did not turn her lights on early enough to warn Davis of the impending danger. Davis did not engage his brakes before colliding with the bus. Drivers whom Davis had passed mere miles before he collided with Bekemans testified that Davis did not seem to be impaired and that he had passed them safely, in the left lane, albeit at a high rate of speed. A jury could have thus reasonably concluded that Bekemans’ conduct had created a substantial risk of death or serious bodily injury. ¶24 Issue Two: Whether Bekemans was denied her right to be personally present at all critical stages of the trial. 9 ¶25 Both the United States Constitution and the Montana Constitution guarantee a criminal defendant the right to be personally present at all critical stages of trial. Charlie, ¶ 40. A critical stage is “‘any step of the proceeding where there is potential for substantial prejudice to the defendant.’” Charlie, ¶ 40 (quoting State v. Matt, 2008 MT 444, ¶ 17, 347 Mont. 530, 199 P.3d 244 (overruled on other grounds)). A defendant who voluntarily fails to appear waives her right to be personally present. State v. McCarthy, 2004 MT 312, ¶ 32, 324 Mont. 1, 101 P.3d 288. An absence is voluntary if the defendant knew of the hearing and failed to appear due to circumstances that were within her control. See State v. Clark, 2005 MT 169, ¶ 16, 327 Mont. 474, 115 P.3d 208. ¶26 Bekemans argues that she was denied her right to be personally present at all critical stages of trial because she was not at the November 9, 2010, show-cause hearing. Bekemans had actual notice of the November 9th hearing, however. The District Court mailed a notice of the scheduled hearing to Bekemans the Friday before the Tuesday hearing. Bekemans also spoke with Anderson on the telephone Monday morning. Anderson made sure that Bekemans knew about the hearing. Additionally, Bekemans did not attend the hearing due to circumstances that were within her control. At the rescheduled hearing on November 23, 2010, Bekemans told the District Court judge that she had failed to appear because she did not have enough notice to attend and could not get time off of work. While attending the court proceeding may have been inconvenient, such an excuse is insufficient to make her absence involuntary. Bekemans could have asked Anderson to request a continuance, but she did not do so. 10 ¶27 Bekemans was not denied her right to be personally present at the November 9, 2010, hearing by anyone but herself. Bekemans voluntarily failed to appear at the November 9, 2010, hearing and thus waived her right to be personally present. Moreover, she was not prejudiced by her absence. The hearing was continued to a later date and the matter thoroughly examined at that time, with Bekemans present and participating. ¶28 Issue Three: Whether Bekemans was denied effective assistance of counsel. ¶29 Bekemans also argues that she was denied her right to effective assistance of counsel because Anderson breached his duty of loyalty to her. We evaluate 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). Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. To prevail on a claim of ineffective assistance of counsel, the defendant must prove both Strickland prongs. Bomar v. State, 2012 MT 163, ¶ 8, 365 Mont. 474, 285 P.3d 396. If the defendant makes an insufficient showing on one prong, then there is no need to address the other prong. Bomar, ¶ 8 (citing Whitlow, ¶ 11). ¶30 The first Strickland prong requires the defendant to show “‘that counsel’s representation fell below an objective standard of reasonableness.’” Whitlow, ¶ 14 (quoting Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064). The second Strickland prong requires the defendant to show that counsel’s deficient performance prejudiced the defense. Bomar, ¶ 8. To prove prejudice, “‘the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the 11 outcome.’” Kills on Top v. State, 273 Mont. 32, 49, 901 P.2d 1368, 1379 (1995) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). In limited situations where counsel is burdened by an egregious actual conflict of interest, however, prejudice may be presumed. State v. Jones, 278 Mont. 121, 134, 923 P.2d 560, 568 (1996) (citing Frazer v. U.S., 18 F.3d 778 (9th Cir. 1994)). ¶31 In State v. Jones we held that an egregious actual conflict of interest exists, justifying a presumption of prejudice, when counsel totally abandons his duties of loyalty and confidentiality to the defendant and essentially joins the prosecution’s efforts in obtaining a conviction. In Jones, at a hearing two days before trial regarding counsel’s motion to withdraw, counsel disclosed that Jones had admitted to him in confidence that he had committed the alleged crime. Jones’ counsel told the court in the presence of the prosecution that the case was “open and shut,” and he further explained in detail why he believed that Jones was so clearly guilty. The district court in Jones denied counsel’s motion to withdraw, and Jones was represented by the same attorney at trial. We held that the district court had abused its discretion by denying the motion to withdraw in light of counsel’s clear conflict of interest and abandonment of his duty of loyalty to Jones. We vacated the conviction and sentence and remanded the case to the district court for a new trial with new counsel. ¶32 Bekemans argues that, like Jones’s counsel, Anderson totally abandoned his duty of loyalty by expressing to the District Court judge his belief that Bekemans was guilty and by telling the judge that she “just doesn’t give a rip.” Bekemans claims that Anderson expressed his belief that she was guilty by telling the judge that he thought Bekemans should accept the 12 State’s plea offer, which he described as “an absolute bonus.” The State interprets these comments as merely Anderson’s opinion that the offered plea agreement was fair given the facts alleged in the charging documents. ¶33 Even if we accept Bekemans’ interpretation of the comments, Anderson did not effectively join the prosecution’s efforts in obtaining a conviction. His conduct was far from a complete and total abandonment of his duty of loyalty to Bekemans. Anderson did not disclose any confidential information and did not explain in detail why Bekemans was guilty. Anderson explained his communication breakdown with Bekemans, which was necessary for his motion to be granted. ¶34 Anderson’s explanation was not the same as counsel’s complete and total abandonment of the duty of loyalty and confidentiality in Jones. Moreover, the prejudice that the defendant presumptively suffered in Jones was not that the judge heard counsel’s remarks, but that the same attorney who abandoned him continued to serve as counsel throughout his trial. We accordingly remanded the case for a new trial with different counsel, but we did not require that the new trial be in front of a different judge. Bekemans could not have suffered the same prejudice that Jones suffered. Unlike in Jones, Anderson’s motion to withdraw was granted. Bekemans was assigned new counsel who represented her at trial over five months later. Jones is thus inapposite, and Bekemans must prove actual prejudice. ¶35 Bekemans contends that she was prejudiced because the comments were made to the judge who presided over her trial and sentenced her. Bekemans points to comments that the 13 judge made while sentencing her to prove that the judge was influenced by counsel’s remarks. While sentencing Bekemans, the judge observed that he thought it was Bekemans’ intent “that she will control the process entirely, and we will all proceed based upon her determinations and her decisions.” The judge further remarked that Bekemans was “in complete denial about her responsibility for anything. . . .” ¶36 The comments that the judge made at sentencing are not proof that the hearings were tainted. Bekemans concludes that the judge was necessarily influenced by Anderson because he expressed his thoughts about Bekemans after Anderson had expressed similar thoughts. Two people can have the same impression of an individual without one having influenced the other, however. The judge’s comments at sentencing were a reflection of his own observations throughout the course of Bekemans’ prosecution. The judge specifically remarked that his comments were “based upon everything that [he] has seen of this Defendant . . . .” The fact that the judge’s observations were similar in sentiment to those conveyed by Anderson is not proof that Anderson influenced the judge or that the judge’s impartiality was compromised. ¶37 The record reveals that the District Court judge was not influenced by Anderson’s comments. The judge dismissed several charges during trial and also sustained a number of Bekemans’ objections. The facts of this case do not warrant a presumption of prejudice, and Bekemans has failed to prove that she did, in fact, suffer actual prejudice. Bekemans has thus failed to satisfy the second Strickland prong. 14 ¶38 Issue Four: Whether the District Court violated Bekemans’ constitutional rights by basing its sentence in part on her refusal to acknowledge guilt. ¶39 The District Court considered many factors while fashioning Bekemans’ sentence, including her lack of remorse. Bekemans contends that the District Court impermissibly inferred her lack of remorse solely from her refusal to admit guilt. While it is true that a district court cannot impose a harsher sentence based on a defendant’s refusal to admit guilt, State v. Cesnik, 2005 MT 257, ¶ 25, 329 Mont. 63, 122 P.3d 456, affirmative evidence of a defendant’s lack of remorse may justify a sentence enhancement, State v. Garcia, 2011 MT 130, ¶ 13, 360 Mont. 537, 254 P.3d 589; State v. Rennaker, 2007 MT 10, ¶ 51, 335 Mont. 274, 150 P.3d 960. If lack of remorse is a factor in the sentencing, then in its pronouncement of the sentence the court must tie its finding of lack of remorse to actions or statements made by the defendant. State v. Duncan, 2008 MT 148, ¶ 54, 343 Mont. 220, 183 P.3d 111 (citing Rennaker, ¶ 51). ¶40 In State v. Imlay, we held that a defendant cannot receive a harsher sentence for refusing to admit that he committed the crime for which he was convicted or for invoking his privilege against self-incrimination. 249 Mont. 82, 91, 813 P.2d 979, 985 (1991). In Imlay, the defendant was convicted of felony sexual assault. He was sentenced to a five-year prison sentence, but execution of the sentence was suspended. As one of the conditions of his suspended sentence, the defendant was required to complete an outpatient sexual therapy program. 15 ¶41 Imlay tried to complete the program recommended by his probation officer, but he was rejected as a patient by the counselor after six appointments because he refused to admit that he had committed a sexual offense. He tried to find other programs that would satisfy the requirement, but he was told that no outpatient program in the state would accept him if he continued to deny that he was guilty of sexual misconduct. The District Court found that Imlay had violated the condition requiring him to complete a sexual therapy program and revoked his suspended sentence. We held that revocation of Imlay’s suspended sentence violated his right against self-incrimination because he was subjected to a penalty that he would not have otherwise been subjected to if he had admitted guilt. Imlay, 249 Mont. at 90, 813 P.2d at 985. ¶42 In State v. Shreves, we held that “a sentencing court may not draw a negative inference of lack of remorse from the defendant’s silence at sentencing where he has maintained, throughout the proceedings, that he did not commit the offense of which he stands convicted—i.e. that he is actually innocent.” 2002 MT 333, ¶ 22, 313 Mont. 252, 60 P.3d 991. The defendant in Shreves testified at trial and asserted his innocence, but he chose not to testify at the sentencing hearing after being convicted. The judge based the sentence in large part on Shreves’ silence at the sentencing hearing and failure to explain why the crime had been committed. ¶43 We held that the judge had improperly penalized Shreves for exercising his right to remain silent and remanded for resentencing. In so holding, however, we also made clear that lack of remorse is a proper sentencing factor when evidenced by admissible statements 16 made by the defendant at any stage of the proceedings, the manner of the commission of the offense as demonstrated by the evidence at trial, or by other competent evidence properly admitted at the sentencing hearing. Shreves, ¶ 21. ¶44 In State v. Cesnik, the defendant did not receive a harsher sentence because he invoked his right to remain silent, but because he affirmatively maintained his innocence even after being convicted. Cesnik was charged with assault with a weapon after an altercation at a shooting club. At trial, Cesnik did not deny that he had picked up a shotgun, loaded it, and then motioned for an individual to come outside shortly after having an argument with that individual. He did deny, however, that he had done so to threaten the individual. In other words, Cesnik denied that he had the requisite mental state to be convicted of assault with a weapon. A jury nevertheless convicted him after a two-day trial. ¶45 When the probation officer who prepared the presentence report asked Cesnik how the court should proceed with his sentence, Cesnik told the probation officer that his charges should be dropped. Cesnik elected not to testify at the sentencing hearing. Cesnik was given a harsher sentence in large part because he refused to accept responsibility for his acts despite being convicted of the offense. Consistent with our previous holdings, we held that “a sentencing court may not punish a defendant for failing to accept responsibility for the crime when that defendant has expressly maintained his innocence and has a right to appeal his conviction.” Cesnik, ¶ 25. ¶46 Despite Bekemans’ contention, the District Court did not impose a greater sentence based on her refusal to admit guilt. Bekemans’ remorse or lack of remorse was discussed at 17 length during the sentencing hearing. The probation officer first testified that he did not think that Bekemans had shown any remorse. Bekemans then testified that she had grieved Davis’s death and “felt remorseful all along.” Additionally, Bekemans’ lack of remorse was a main theme in the prosecution’s closing argument and the first thing addressed by the defense in its closing argument. Defense counsel argued specifically that people express remorse in different ways, and that it was his opinion that Bekemans had “expressed extreme sorrow,” and was remorseful. Based on the evidence presented at trial, the evidence presented at the sentencing hearing, and Bekemans’ conduct throughout the course of the proceedings, however, the judge reached a different conclusion. While pronouncing the court’s sentence, the judge remarked that “[i]n the event that the Defendant has grieved or expressed sorrow in this case, literally only she and her counsel are the ones who can ascertain it. It is not palpable; it is not apparent, and it is not detectable by anyone else.” This conclusion was based on competent evidence and was not improper. ¶47 Issue Five: Whether the District Court had authority to restrict Bekemans’ eligibility for parole. ¶48 Lastly, Bekemans argues, and the State concedes, that the District Court exceeded its authority when it required her to complete the Cognitive Principles and Restructuring program before she can be released from the DOC’s custody. This requirement effectively serves as a parole restriction. ¶49 When a defendant is sentenced to one year or more of actual incarceration, we review a sentence for legality only. State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490, 87 P.3d 1017. 18 A sentence that commits the defendant to the custody of the DOC is not the same as a sentence of incarceration at a state prison. See § 46-18-201(3)(a), MCA. A defendant who is sentenced to incarceration at a state prison must serve her sentence in the prison facility. When a defendant is sentenced to the custody of the DOC, however, the DOC determines the appropriate location for the defendant, which may be someplace other than a state prison. A sentencing judge may only impose a parole restriction when the defendant is sentenced to a term of imprisonment in a state prison exceeding one year. Section 46-18-202(2), MCA. Thus, a judge who commits a defendant to the custody of the DOC cannot also impose a parole restriction. A judge can make recommendations when the defendant is committed to the DOC, but the DOC must determine whether to implement those recommendations. ¶50 Bekemans was sentenced to the custody of the DOC for a term of ten years with five years suspended. She was not sentenced to incarceration in a state prison. The District Court could not legally impose a parole restriction because it did not sentence Bekemans to incarceration in a state prison. We remand to the District Court to strike the requirement that Bekemans complete the Cognitive Principles and Restructuring program before she can be released from the DOC’s custody. The court may restate the stricken provision as a recommendation, if it so chooses. Whether Bekemans is required to complete the program will ultimately be determined by the DOC. ¶51 Affirmed in part, reversed in part, and remanded to the District Court for an order to strike the condition of the sentence as specified in paragraph 50 herein. 19 /S/ Mike McGrath We concur: /S/ Brian Morris /S/ Michael E Wheat /S/ Patricia O. Cotter /S/ Jim Rice | January 22, 2013 |
cfe849d6-ed7f-41e5-8253-10f5b0d0e5e3 | State v. Catherine J. Acord | 2013 MT 8N | DA 12-0233 | Montana | Montana Supreme Court | DA 12-0233 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 8N STATE OF MONTANA, Plaintiff and Appellee, v. CATHERINE JOSEPHINE ACORD, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-2011-191 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Jennifer A. Giuttari, Montana Legal Justice, PLLC, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schultz, Assistant Attorney General, Helena, Montana Fred Van Valkenburg, Missoula County Attorney, Andrew Paul, Deputy County Attorney, Missoula, Montana Submitted on Briefs: November 21, 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 Catherine Josephine Acord (Acord) appeals from her conviction of felony Criminal Possession of Dangerous Drugs in the Fourth Judicial District Court, Missoula County. Acord argues that she was illegally ordered to pay an $800 public defender fee as part of her sentence. We affirm. ¶3 Acord was charged with Criminal Possession of Dangerous Drugs on May 16, 2011. She pled no contest pursuant to a plea agreement on December 6, 2011. The plea agreement was filed with the court, which recommended an eighteen-month deferred sentence and imposition of $1,080 in fines and fees. One of the assessed fines and fees was an $800 public defender fee. ¶4 A presentence investigation report was completed for the court. Among other things, the presentence report noted that Acord lived rent free with her father, received $200 a month in food stamps, and planned to apply for Social Security Disability. The report also indicated that Acord was currently unemployed and had significant debts for medical bills, student loans, and outstanding court fines and fees. ¶5 At the sentencing hearing on February 7, 2012, Acord’s attorney asked the court to waive the public defender fee due to her inability to pay. The court discussed Acord’s 3 financial status and income potential with her attorney and the prosecuting attorney. The judge agreed to waive a $100 fine recommended by the plea agreement, but refused to waive the public defender fee. The judge explained, “[T]hat will reduce her exposure to $930. . . . [T]hat’s about $50 a month if she gets on it. So that’s not completely out of reach, I don’t think, even for somebody that’s disabled.” The judge encouraged Acord to do the best that she could to pay the fine. He told her that he would not revoke her sentence, however, if she was unable to make the payments. ¶6 Acord argues on appeal that the District Court’s inquiry into her ability to pay the public defender fee was insufficient. Acord also argues that the court’s imposition of that fee was illegal because the court failed to issue an affirmative finding that she is or will be able to pay those costs. We review criminal sentences of one year of incarceration or more for legality only. State v. Moore, 2012 MT 95, ¶ 10, 365 Mont. 13, 277 P.3d 1212. We review de novo whether a district court adhered to the applicable sentencing provisions. Moore, ¶ 10. ¶7 A sentencing court may order a defendant who pleads guilty to a felony prior to trial to pay $800 for the costs of assigned counsel. Section 46-8-113(1)(a)(ii), MCA. The court may only sentence a defendant to pay the public defender fee, however, if the defendant is or will be able to pay those costs. Section 46-8-113(4), MCA. Accordingly, a sentence that imposes a public defender fee is illegal if the court does not make an affirmative finding that the defendant is able to pay the fee. State v. Starr, 2007 MT 238, ¶ 10, 339 Mont. 208, 169 P.3d 697. 4 ¶8 Our review of the record convinces us that the District Court complied with the requirements set forth in § 46-8-113, MCA. Upon Acord’s request, the court engaged in a discussion during the sentencing hearing as to whether she could pay the public defender fee. The court considered the statements made at sentencing and the information in the presentence report, including Acord’s income, living situation, debts, and Social Security Disability application. The District Court made an affirmative finding that Acord could pay the fee when it determined that $50 a month was “not completely out of reach, I don’t think, even for somebody that’s disabled.” Moreover, Acord agreed to imposition of the public defender fee by signing the plea agreement. Acord’s sentence was not illegal. ¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2006, which provides for memorandum opinions. The issues are clearly controlled by settled Montana law. We find no reason in fact or law to disturb the District Court’s order. ¶10 Affirmed. /S/ Mike McGrath We Concur: /S/ Patricia O. Cotter /S/ Brian Morris /S/ Michael E Wheat /S/ Jim Rice | January 22, 2013 |
8cb25d6c-27d8-47bb-a752-1eb7f99d43ed | STATE v RADI | N/A | 14937 | Montana | Montana Supreme Court | N o . 14937 I N T H E SUPREPIIE C O U R T O F THE STATE O F M O N T A N A 1979 T H E STATE O F M O N T A N A , P l a i n t i f f and Respondent, -vs- GARY EUGENE RADI, Defendant and Appellant. Appeal from: D i s t r i c t Court o f t h e S i x t h J u d i c i a l D i s t r i c t , Honorable W. W. Lessley, Judge p r e s i d i n g . Counsel o f Record: For Appellant: McKinley Anderson, Bozeman, Montana For Respondent: Honorable Mike Greely, Attorney General, Helena, Montana Submitted on B r i e f s : October 1 4 , 1979 Decided: D E C 2 8 1 m M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e Court. This i s an appeal r e s u l t i n g from a resentencing of a p p e l l a n t t o a sentence of 50 years. Appellant w a s convicted i n t h e D i s t r i c t Court of t h e S i x t h J u d i c i a l D i s t r i c t , i n and f o r t h e County of Sweet Grass, of t h e c r i m e of burglary. The jury returned a ver- d i c t a t t h e same time which a c q u i t t e d a p p e l l a n t of t h e charge of t h e f t . Appellant w a s sentenced a s a p e r s i s t e n t offender t o a t e r m of 50 years. Appeal w a s taken t o t h i s Court. This Court, i n S t a t e v. Radi (1978), Mont. , 578 P. 2d 1169, 35 St.Rep. 489, affirmed t h e i s s u e r a i s e d on appeal i n favor of t h e S t a t e , b u t held t h a t s i n c e t h e sentence pro- nounced w a s done without a presentence i n v e s t i g a t i o n , r e - turned t h e case t o t h e D i s t r i c t Court f o r t h e purpose of resentencing a p p e l l a n t a f t e r a presentence r e p o r t had been f i l e d . Two i s s u e s a r e r a i s e d on t h e p r e s e n t appeal: 1. W a s t h e presentence r e p o r t prepared by t h e Board of Pardons and Paroles p r e j u d i c i a l t o a p p e l l a n t i n t h i s case? 2. Is t h e r e an inconsistency between t h e v e r d i c t returned by t h e jury of g u i l t y of Count I, t h e count of burglary, and of n o t g u i l t y of Count 11, thef t ? The f i r s t i s s u e i s d i r e c t e d t o whether t h e presentence r e p o r t prepared by t h e Board of Pardons and Paroles w a s p r e j u d i c i a l t o a p p e l l a n t . Section 46-18-112, MCA, provides f o r a sentencing r e p o r t a s follows: "Whenever an i n v e s t i g a t i o n i s required, t h e pro- b a t i o n o f f i c e r s h a l l promptly i n q u i r e i n t o t h e c h a r a c t e r i s t i c s , circumstances, needs, and po- t e n t i a l i t i e s of t h e defendant; h i s criminal record and s o c i a l h i s t o r y ; t h e circumstances of t h e offense; t h e time t h e defendant has been i n detention; and t h e harm t o t h e victim, h i s i m - mediate family, and t h e community. A l l l o c a l and state mental and c o r r e c t i o n a l i n s t i t u t i o n s , c o u r t s , and p o l i c e agencies s h a l l f u r n i s h the probation o f f i c e r , on request, t h e defendant's criminal record and o t h e r r e l e v a n t information. The i n v e s t i g a t i o n s h a l l include a physical and mental examination of t h e defendant when it i s d e s i r a b l e i n t h e opinion of t h e court." Before proceeding t o analyze each of t h e provisions i n t h e r e p o r t of t h e presentence i n v e s t i g a t i o n t h a t i s a l l e g e d t o be i n e r r o r , w e w i l l address some general comments re- garding such r e p o r t s i n t h e sentencing process. This Court has held t h a t a presentence i n v e s t i g a t i o n r e p o r t " i s a v i t a l t o o l of t h e d i s t r i c t judge i n a r r i v i n g a t what it considers a proper sentence." S t a t e v. Radi, supra, 578 P.2d a t 1182, 35 St.Rep. a t 504. The primary function of t h e presentence i n v e s t i g a t i o n i s t o assist t h e judge i n making h i s determination a s t o t h e d i s p o s i t i o n a f t e r con- v i c t i o n . People v. Edwards (1976)r 18 Cal.3d 796, 135 Cal.Rptr. 4 1 1 , 557 P.2d 995. The probation r e p o r t i s gener- a l l y a proper source of information upon which j u d i c i a l d i s c r e t i o n can be exercised when a defendant i s brought before t h e c o u r t f o r sentencing. People v. Chi KO Wong (1976) 18 Cal.3d 698, 135 Cal.Rptr. 392, 557 P.2d 976. The sentencing judge cannot be denied an opportunity t o o b t a i n information by imposing strict requirements o r r e s t r i c t i n g t h e proceedings t o t h e r u l e s of evidence a p p l i c a b l e a t a t r i a l . Thus, hearsay and o t h e r matters a r e acceptable i n a presentence r e p o r t . Williams v. New York (1949), 337 U.S. 241, 247, 69 S . C t . 1079, 93 L.Ed. 1337. Montana has long allowed t h e use of r e p o r t s of pre- sentence i n v e s t i g a t i o n s f o r sentencing purposes. See S t a t e v. Karathanos (1972), 158 Mont. 461, 493 P.2d 326; S t a t e v. Harris (1972), 159 Mont. 425, 498 P.2d 1222. It i s a general r u l e throughout t h i s country t h a t when matters contained i n a r e p o r t a r e contested by t h e defen- d a n t , t h e defendant has, i n e f f e c t , an a f f i r m a t i v e duty t o p r e s e n t evidence showing t h e inaccuracies contained i n t h e r e p o r t . Crowder v. S t a t e (Okla. 1974), 518 P.2d 890; People v. Carter (1974), 186 Colo. 391, 527 P.2d 875. A r e c e n t Supreme Court c a s e from t h e S t a t e of Alaska, Nukapigak v. S t a t e (Alaska 1978), 576 P.2d 982, 983, held t h a t f a i l u r e on t h e p a r t of t h e defendant t o challenge t h e accuracies of statements o r t o o f f e r contrary evidence a t t h e t i m e of sentencing i s f a t a l . "That f a c t alone i s s u f f i c i e n t t o support our d e c i s i o n t o a f f i r m h i s sentences." Nukapigak, 576 P.2d a t 983. Nukapigak r e l i e d upon a C a l i f o r n i a decision, People v. Chi KO Wong, supra, and found t h a t it i s a defendant's o b l i g a t i o n t o comply with "procedures t o e s t a b l i s h t h e claimed u n r e l i a b i l i t y of m a t e r i a l s properly submitted f o r t h e sentencing purposes; a mere claim of i n v a l i d i t y i s i n s u f f i c i e n t . " Nukapigak, 576 P.2d a t 984. A number of c o u r t s have held t h a t , i f a defendant does n o t p r e s e n t evidence o r witnesses t o c o n t r a d i c t o r otherwise r e b u t materials i n a probation r e p o r t , he is foreclosed from r a i s i n g such i s s u e s on appeal. See Crowder, supra; Carter, supra. This s t a t e t o a c e r t a i n e x t e n t adopted t h e general r u l e i n I n re P e t i t i o n of J e r a l d M. Amor (1964), 143 Mont. 479, 389 P.2d 180, where t h e defendant, on a p e t i t i o n f o r a w r i t , a l l e g e d t h a t he w a s n o t given t h e opportunity t o r e f u t e evidence contained i n t h e presentence i n v e s t i g a t i o n r e p o r t . This Court declined t o hear t h a t argument reasoning t h a t s i n c e t h e defendant was represented by competent counsel a t sentencing, t h e defendant had an opportunity t o r e f u t e o r c o n t r a d i c t t h e information i n t h e r e p o r t b u t chose n o t t o do SO. This case i s much l i k e Amor. Here, a p p e l l a n t had t h e opportunity t o r e f u t e o r c o n t r a d i c t t h e information t h a t w a s contained i n t h e r e p o r t . Both a p p e l l a n t and h i s counsel w e r e presented with a copy of t h e r e p o r t p r i o r t o t h e hear- ing. Appellant chose t o o f f e r no witnesses t o r e b u t o r c o n t r a d i c t any information i n t h e r e p o r t . I n f a c t , appel- l a n t n e i t h e r t e s t i f i e d nor o f f e r e d witnesses on h i s behalf. While counsel f o r a p p e l l a n t d i d make mention t o t h e c o u r t of c e r t a i n p o i n t s i n t h e r e p o r t t h a t he thought were inaccurate o r i n c o n s i s t e n t , t h e c o u r t i n d i c a t e d t h a t those m a t t e r s would be taken i n t o consideration i n reaching its decision. Appellant d i d n o t m e e t h i s a f f i r m a t i v e duty of presenting evidence o r testimony t o c o n t r a d i c t o r r e f u t e t h e m a t t e r s a l l e g e d i n t h e r e p o r t a s objectionable. Appellant asserts t h a t t h e r e p o r t lacked any informa- t i o n as t o " c h a r a c t e r i s t i c s , circumstances, needs and poten- t i a l i t i e s " of a p p e l l a n t . W e do n o t agree. Taken a s a whole, t h e r e p o r t i s f u l l of information regarding appel- l a n t ' s c h a r a c t e r i s t i c s and p o t e n t i a l . Information of t h a t n a t u r e i s n o t only contained i n a p p e l l a n t ' s criminal h i s - t o r y , b u t a l s o contained i n information regarding h i s phy- sical condition and d e s c r i p t i o n ; h i s family and s o c i a l background; h i s educational, vocational, and m a r i t a l h i s - t o r i e s ; and summarized i n t h e conclusion of t h e r e p o r t . Appellant next a l l e g e s t h a t t h e r e p o r t t o a l a r g e e x t e n t shows b i a s and prejudice on behalf of the o f f i c e r presenting t h e r e p o r t . W e f i n d no m e r i t t o t h i s contention. The r e p o r t i s a f a c t u a l summary of a p p e l l a n t ' s criminal, physical, family, s o c i a l and educational background. There i s nothing on its f a c e t h a t would s u b s t a n t i a t e an a l l e g a t i o n t h a t t h e o f f i c e r who presented it was biased o r prejudiced. Appellant n e x t contends t h a t it was improper f o r t h e probation o f f i c e r t o include information about a p p e l l a n t ' s juvenile record, c i t i n g s e c t i o n 41-3-205, MCA, t o support t h a t contention. However, s e c t i o n 41-3-205, MCA, does n o t apply t o t h e juvenile record of those youths under t h e delinquency provisions of t h e juvenile l a w , commonly known as t h e Youth Court Act. That s e c t i o n i s contained i n t h e chapter of juvenile law concerned only with dependent and n e g l e c t s i t u a t i o n s . The provisions of Chapter 3, T i t l e 4 1 , do n o t p e r t a i n t o proceedings f o r delinquents under t h e Youth Court Act. The Youth Court A c t does, however, contain a provision regarding t h e c o n f i d e n t i a l i t y of t h e r e p o r t s . Section 41-5- 604, MCA. I t i s t h e general r u l e t o allow juvenile records a s a p a r t of presentence i n v e s t i g a t i o n r e p o r t a t a sentencing hearing. See 47 Am.Jur.2d Juvenile Courts S56 a t 1029. The leading case i n t h i s f i e l d i s Hendrickson v. Myers (1958), 393 Pa. 224, 1 4 4 A.2d 367, which held t h a t depriving t h e c o u r t s of t h e i r r i g h t t o be informed of and t o consider t h e e n t i r e h i s t o r y and background of a person s u b j e c t t o sen- tence may r e s u l t i n sentences t h a t are u n j u s t and u n f a i r t o both s o c i e t y and t h e defendant. While w e a r e unable t o f i n d any i n t e r p r e t a t i o n of a s t a t u t e s i m i l a r t o Montana's, t h e r e a r e c a s e s t h a t have i n t e r p r e t e d s t a t u t e s regarding t h e use of juvenile records t h a t have a s i m i l a r purpose t o t h e Montana s t a t u t e . Wash- ington has a s t a t u t e t h a t provides t h a t an order of t h e c o u r t adjudicating a c h i l d delinquent s h a l l i n no case be deemed a conviction of a crime. Section 13.04-240, R.C.W. See S t a t e v. Dainard (1975), 85 Wash.2d 624, 537 P.2d 760, a c a s e holding t h a t t h i s s t a t u t e w a s broad enough i n i t s i n t e n t t o permit consideration of juvenile records i n sen- tencing hearings. For c o u r t s t h a t have allowed t h e use of juvenile records i n presentence i n v e s t i g a t i o n r e p o r t s see Young v. S t a t e (Okla. 1976), 553 P.2d 192; People v. McFarlin (1973), 389 Mich. 557, 208 N.W.2d 504; S t a t e v. F i e r r o (1966), 101 Ariz. 118, 416 P. 2d 551. The gravamen of t h e d e c i s i o n s allowing t h e sentencing judge t o use t h e f u l l and complete r e p o r t s of an i n d i v i - d u a l ' s background i n making t h e determination of sentence was set f o r t h by t h e United S t a t e s Supreme Court: ". . . highly relevant--if n o t e s s e n t i a l - - t o h i s s e l e c t i o n of an appropriate sentence i s t h e possession of t h e f u l l e s t information pos- s i b l e concerning t h e defendant's l i f e and char- a c t e r i s t i c s . And modern concepts i n d i v i d u a l i z i n g punishment have made it a l l t h e more necessary t h a t t h e sentencing judge n o t be denied t h e op- p o r t u n i t y t o o b t a i n p e r t i n e n t information by a requirement of r i g i d adherence of r e s t r i c t i v e r u l e s of evidence properly a p p l i c a b l e t o t h e t r i a l . . . [probation] r e p o r t s have been given a high value by conscientious judges who want t o sentence persons on t h e b e s t a v a i l a b l e informa- t i o n r a t h e r than on guesswork and inadequate information . . ." Williams v. New York, supra, 337 U.S. a t 247. The same r a t i o n a l e can be applied t o t h i s case. W e n o t e t h a t t h e purpose of t h e Montana s t a t u t e regard- i n g juvenile records i s t o prevent p u b l i c dissemination of a juvenile record once t h a t i n d i v i d u a l a t t a i n s an age of majority. A s presentence r e p o r t s a r e required by l a w t o be s e a l e d as well, s e c t i o n 46-18-113(3), MCA, t h e p u b l i c d i s - semination of m a t e r i a l i s avoided. A t t h e same t i m e t h e sentencing judge is afforded the opportunity to have a complete picture of the individual who is before him for sentencing. There would seem to be no other purpose in maintaining the sealed records of the youth court over a period of at least ten years if they were not to be used in considering the sentencing of an individual later as an adult. See Young v. State, supra, where the Oklahoma court used that rationale in allowing the admission of the juve- nile records. In this case, appellant was 34 years of age at the time of sentencing. The report indicates an extensive criminal record, subsequent to appellant's juvenile record. The juvenile record was compiled long before the Youth Court Act was passed in 1974. Considering the report as a whole, it is doubtful that the information in the juvenile records contained in the report played any significant role in the court's sentence. Appellant makes several other contentions concerning factual inconsistencies. One, that the report had an al- leged escape from Pine Hills at the time when appellant was incarcerated in the state prison; two, that the report concerned appellant's military record when he contended that he had no such record; and three, that the report laid some significance to information regarding the fact that he was acquitted of Count I1 of the information with which he was charged at trial, These matters were brought to the atten- tion of the trial judge, and we can presume that the trial judge was capable of giving appropriate weight to uncon- firmed and inconsistent matters contained in the presentence report. See State v . McManus (19731, 12 Ore-APP- 84, 504 P.2d 1046. Appellant next alleges that the report is void of information regarding harm to the victims and immediate family or the community. However, the charge itself in this case, which is set forth in the official version of the crime section of the report, does contain that information. Also, the sentencing and trial judge in this case was well aware of that information. See State v. James (1977), 223 Kan. 107, 574 P.2d 181. We note in summary that the entire report is consistent with the purposes and rationale for requiring a presentence investigation. The report did not make any recommendation one way or the other regarding the sentencing, although appellant, for some reason, contends it did. The summary of the report provides no reason to return this matter to the District Court for resentencing. The report was properly used by the sentencing judge and provided him with a fair objective review of appellant's history and meets all of the rationale applied by courts for the use of such reports. Appellant made no attempt to present witnesses to contradict any of the provisions contained in the report or to provide the court with additional information as to his character or history. The report was, we find, properly applied in this case. Its use provides no basis to remand for a further resentencing hearing. The second issue raised by appellant concerns the inconsistency of the verdicts on the two counts of the information charging appellant with burglary and theft. He urges that, since he was acquitted on the charge of theft, the conviction of burglary is inconsistent and therefore must be reversed. This argument i s a l l b u t i d e n t i c a l t o t h e argument t h a t was r a i s e d i n t h e f i r s t appeal. See S t a t e v. Radi, supra, 578 P.2d a t 1176, 35 St.Rep. a t 496, where t h i s Court r u l e d on t h e contention a s follows: "Defendant next contends t h a t t h e t h e f t charge should have been dismissed because it arose from t h e same t r a n s a c t i o n as t h e burglary and t h e de- fendant could n o t be charged with two offenses. However, d i f f e r e n t elements must be proven f o r t h e charge of t h e f t than f o r a charge of burglary and we cannot see e r r o r t o charge defendant with both offenses. W e note a l s o t h a t t h e jury was i n s t r u c t e d t o f i n d defendant n o t g u i l t y of t h e t h e f t i f they found him g u i l t y of burglary. Since it d i d so, w e see no prejudice t o t h e defendant." While t h e argument here i s n o t i d e n t i c a l t o t h e argu- ment r a i s e d on t h e p r i o r appeal, t h e c e n t r a l i s s u e was determined i n t h a t opinion, and we f i n d no m e r i t t o t h i s i s s u e . A s i m i l a r s i t u a t i o n r e c e n t l y w a s addressed by t h i s Court i n S t a t e v. Holliday (19791, Mont. - , 598 P. 2d 1132, 1135, 36 St.Rep. 1535, 1539, where t h i s Court s t a t e d : ". . . defendant i s presenting i n essence t h e same i s s u e w e have previously decided. The d i f f e r e n c e i n t h e two arguments i s s u p e r f i c i a l , n o t substantive. It i s well e s t a b l i s h e d , t h a t where a d e c i s i o n has been reached by t h i s Court on a p a r t i c u l a r i s s u e between t h e same p a r t i e s i n t h e s a m e case such d e c i s i o n i s bind- i n g on t h e p a r t i e s and c o u r t s , and cannot be r e l i t i g a t e d i n a subsequent appeal, s u b j e c t t o c e r t a i n exceptions n o t p e r t i n e n t here. [Cita- t i o n s omitted.] The defendant i s bound by our previous determination t h a t defendant i s n o t e n t i t l e d t o a d i s m i s s a l of a l l charges." Here, as i n Holliday, a p p e l l a n t is bound by t h e previ- ous r u l i n g and i s n o t e n t i t l e d t o reassert h i s p o s i t i o n on t h i s appeal. The judgment of t h e D i s t r i c t Court i s affirmed. W e concur: C i e f J u s t i c e P , , , < /? --- -. ' . - I J u s t i c e s , - 8 M r . Chief J u s t i c e Frank I. Haswell s p e c i a l l y concurring: I concur i n t h e r e s u l t of t h e case. O n t h e f i r s t i s s u e I concur on t h e grounds t h a t t h e defendant cannot a t t a c k t h e contents of t h e presentence r e p o r t because he d i d not introduce any r e b u t t i n g evidence a t t h e t i m e of sentencing. I do not agree with a l l t h e discussion of t h a t i s s u e however. I agree with t h e second i s s u e on t h e grounds s t a t e d i n t h e majority opinion. ................................. Chief J u s t i c e M r . J u s t i c e Daniel J. Shea w i l l f i l e an opinion l a t e r . | December 28, 1979 |
e30d596f-6035-4879-bb84-80448258dc12 | Thompson v. J.C. Billion, Inc. | 2013 MT 20 | DA 12-0244 | Montana | Montana Supreme Court | DA 12-0244 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 20 ROBERT THOMPSON, Plaintiff and Appellant, v. J.C. BILLION, INC., and MONTANA DEPARTMENT OF LABOR AND INDUSTRY, Defendants and Appellees. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADV 11-728 Honorable Dorothy McCarter, Presiding Judge COUNSEL OF RECORD: For Appellant: Geoffrey C. Angel; Angel Law Firm; Bozeman, Montana For Appellees: Lyman H. Bennett, III; Attorney at Law; Virginia City, Montana For Amicus Curiae: Bruce Spencer; Smith Law Firm, P.C.; Helena, Montana; (Automobile Dealers Association) Submitted on Briefs: October 10, 2012 Decided: January 29, 2013 Filed: __________________________________________ Clerk January 29 2013 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Robert Thompson (Thompson) appeals from the Order entered by the First Judicial District Court affirming the Department of Labor & Industry’s (Department) denial of his claim for overtime compensation against J.C. Billion, Inc. (Billion). We affirm and address these issues: ¶2 1. Did the District Court err by concluding that Billion did not waive its argument that Thompson was exempt from overtime pay as a “salesman” under 29 U.S.C. § 213(b)(10)? ¶3 2. Did the District Court err by concluding that Thompson was not entitled to overtime pay under the Fair Labor Standards Act and the Montana Wage Protection Act? FACTUAL AND PROCEDURAL BACKGROUND ¶4 From March 1, 2009, until July 31, 2010, Thompson worked as the manager of Billion’s “Pit Stop.” The Pit Stop was the automotive services and repair facility within Billion’s automotive dealership operation. During his tenure as manager of the Pit Stop, Thompson worked 819.21 hours in excess of the standard 40-hour work week, but did not receive overtime pay under his employment contract. ¶5 Thompson’s duties as manager of the Pit Stop required that he greet customers; inspect vehicles, tires, and alignment; write up work tickets; “up sell” products; show customers to the waiting room; review a “report card” on the vehicle with the customer 3 and provide an estimate for additional work that may need to be done; check the car and deliver it to the waiting customer; and collect payment from the customer. Thompson also oversaw the quality of work performed by the “lube techs” who worked on customer vehicles. Although titled a “manager,” Thompson did not have the independent authority to hire, discipline or promote workers. ¶6 Thompson was paid a base salary of $800 per month plus commission. If his combined salary and commission did not exceed $2,400.00 per month, he would receive a guaranteed salary of $2,400.00. Thompson also received an annual bonus and $1 for every “report card” issued. His bonus for 2009 was $2,000.00. ¶7 Thompson resigned his employment on July 31, 2010. He filed a claim for overtime pay with the Department several months later, asserting that Billion owed him $17,014.99 in overtime wages. Billion responded that Thompson was not entitled to overtime because he was (1) a “managerial” or executive employee and (2) a “salesperson” of automobiles services, two positions that are exempt under overtime compensation laws. Thompson countered that he was not a manager because he did not direct the work of the other employees, and was not a “salesperson” because, in his view, the majority of his workday was spent performing “lube, oil, and filter tasks” rather than selling products or services. After review of the information submitted by the parties, the Department’s Compliance Specialist ruled in favor of Billion. Thompson requested a hearing. 4 ¶8 A hearing was held on May 3, 2011, with both parties represented by counsel. Thompson and three Billion employees testified. Billion elicited testimony that “70 percent of Thompson’s job was selling,” and Thompson agreed that “most of [his] time was at the counter and selling.” The hearing officer found that “Thompson’s primary duty was to sell services to Billion’s Pit Stop customers” and that it was “clear Thompson was a salesman and service advisor for J.C. Billion.” The hearing officer concluded that because Thompson was a salesman for an automotive dealership, he was not entitled to overtime pay under federal or state law.1 ¶9 Thompson petitioned the District Court for judicial review. Thompson argued that the Department procedurally erred by allowing Billion to assert the “salesman” exemption because Billion did not timely raise the issue. The District Court held that Billion had not waived this defense. Thompson also argued the Department should have granted him relief by applying 29 C.F.R. § 779.372(c)(1). The District Court concluded that this regulation impermissibly conflicted with 29 U.S.C. § 213(b)(10)(A), the federal statute it purported to interpret, reasoning: [T]he regulation clearly provides for a more narrow definition of salesman than that found in the statute. Therefore, this Court finds that the regulation is not controlling with regard to Thompson’s claim, and the hearing examiner correctly applied the statutory language in determining that Thompson is exempt from the overtime pay requirements of both the FLSA and Montana wage and hour statutes. ¶10 Thompson appeals. 1 The hearing officer also found that Thompson was not exempt from overtime as a manager or executive employee because his “primary duties” were sales and not management of the Pit Stop. Billion did not cross appeal this determination. 5 STANDARD OF REVIEW ¶11 Whether an administrative regulation impermissibly conflicts with a statute is a question of law to be decided by the court. Chevron v. Nat. Resources Def. Council, 467 U.S. 837, 842-43 n. 9, 104 S. Ct. 2778, 2781 n. 9; Bona v. Gonzales, 425 F.3d 663, 668 (9th Cir. 2005). We review a district court’s conclusions of law de novo to determine if they are correct. Pierce v. Underwood, 487 U.S. 552, 558, 108 S. Ct. 2541, 2546 (1988); Talon Plumbing & Heating v. Dept. of Lab. & Indus., 2008 MT 376, ¶ 19, 346 Mont. 499, 198 P.3d 213. DISCUSSION ¶12 1. Did the District Court err by concluding that Billion did not waive its argument that Thompson was exempt from overtime pay as a “salesman” under 29 U.S.C. § 213(b)(10)? ¶13 Thompson briefly argues the District Court erred by permitting Billion to claim that Thompson was exempt from overtime pay as a “salesman.” According to Thompson, Billion’s failure to raise the exemption immediately prior to or during the administrative hearing “surprised” and “prejudice[d]” Thompson, and the defense should have been held to be waived. ¶14 In the context of judicial proceedings, an affirmative defense must be pleaded in the answer to the claim or it is waived. Fed. R. Civ. P. 8(c); Marias Healthcare Serv. v. Turenne, 2001 MT 127, ¶ 9, 305 Mont. 419, 28 P.3d 491. The purpose of requiring affirmative defenses to be pleaded is to give the opposing party notice of the defense and 6 a chance to argue why imposition of the defense would be inappropriate. Blonder- Tongue Lab. v. U. of Ill. Found., 402 U.S. 313, 350, 91 S. Ct. 1434, 1453 (1971). Title 29 U.S.C. § 213(b) enumerates certain employment positions that are exempt from overtime-pay laws. The Ninth Circuit has held that such exemptions are “affirmative defense[s] that must be pleaded and proved by the defendant.” Magana v. Com. of the N. Mariana Islands, 107 F.3d 1436, 1446 (9th Cir. 1997). However, as the District Court noted, this is a function of the federal rules of civil procedure. Generally, the rules of civil procedure do not apply with equal force to administrative proceedings: The strict technical rules governing judicial procedure generally do not apply to administrative proceedings which are simpler, less technical, and less formal than court proceedings, but the elementary fundamental principles of judicial inquiry should be observed in administrative proceedings. . . . Under this general rule, for example, the validity of pleadings in administrative proceedings should not be tested by technical niceties of pleading and practice required in court trials. 73 C.J.S. Public Administrative Law and Practice § 142 (2004); accord U.S. v. Rasmussen, 222 F. Supp. 430, 438 (D. Mont. 1963) (Jameson, J.) (“Administrative procedures need not conform to all procedural niceties that surround the judicial process.”). ¶15 The administrative process for review of wage claims is governed by rules adopted by the Department pursuant to statutory authority. Section 39-3-202, MCA; Admin. R. M. 24.16.7501, et seq. Pursuant thereto, an employer is required to file a “written response” to a wage claim, but the particular contents of that response is not addressed by the rule. Admin. R. M. 24.16.7527(2). A party who receives an adverse ruling from a 7 compliance specialist may file a simple request for a formal hearing, which is governed by the statutes governing contested case proceedings. Admin. R. M. 24.16.7537; Section 2-4-601, et seq. Thompson has not pointed to any violation of these provisions by Billion. ¶16 The record indicates that Thompson filed his wage claim with the Department on October 25, 2010. In its “written response” to Thompson’s claim, Billion asserted that the salesman exemption applied. In reply, Thompson sent a letter refuting his classification as a “salesman,” stating he spent the majority of his workday performing “lube, oil, and filter tasks” along with the other Pit Stop laborers. This prompted the Department’s compliance specialist to write a letter to Billion asking for clarification regarding Thompson’s day-to-day duties. Billion responded, contesting Thompson’s characterization of his duties and reaffirming its position that Thompson was a “‘salesperson’ selling automobile service [sic] to our customers.” This prompted another response from Thompson that “J.C. Billion cannot meet its burden to prove Thompson is an exempt ‘salesperson’” because § 779.372(c)(1) defined a “salesperson” only as an employee selling vehicles. ¶17 This correspondence demonstrates that Billion raised the “salesman” defense early in the proceedings and clearly put Thompson on notice of its position that it would rely on the “salesman” exemption, in addition to other defenses. Prior to the hearing, Thompson objected that Billion had not raised any affirmative defenses, but this 8 objection was properly denied. Thompson was not surprised or prejudiced. The District Court did not err by denying Thompson’s waiver argument. ¶18 2. Did the District Court err by concluding that Thompson was not entitled to overtime pay under the Fair Labor Standards Act and the Montana Wage Protection Act? ¶19 Federal and Montana law entitles an employee, unless exempted, to receive overtime pay for hours worked in excess of 40 in a workweek at a rate not less one-and- one-half times his regular rate of pay. 29 U.S.C. § 207(a)(1) (2006); § 39-3-405, MCA (2009). Federal and Montana law exempt from the overtime pay requirement a “salesperson” engaged in “selling or servicing automobiles” if employed at an automotive dealership. 29 U.S.C. § 213(b)(10)(A); § 39-3-406(2)(d). Specifically, 29 U.S.C. § 213(b)(10)(A) provides that overtime pay requirements do not apply to: any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers[.]2 This exemption from overtime pay as defined under Montana law, § 39-3-406(2)(d), is substantially the same, with the italicized words below being the only differences: a salesperson, parts person, or mechanic paid on a commission or contract basis and primarily engaged in selling or servicing automobiles, trucks, mobile homes, recreational vehicles, or farm implements if the salesperson, parts person, or mechanic is employed by a nonmanufacturing 2 Thompson worked at the “Pit Stop” but, as noted above, this facility was not separate from Billion’s dealership operation. The District Court noted that “[n]either party raises an issue as to J.C. Billion’s status as a nonmanufacturing vehicle dealership, nor of the Pit Stop’s status as a part of Billion’s overall operation and not a separate business or legal entity.” 9 establishment primarily engaged in the business of selling the vehicles or implements to ultimate purchasers[.]3 ¶20 Four years after Congress passed 29 U.S.C. § 213(b)(10), the Secretary of the United States Department of Labor (Secretary) issued 29 C.F.R. § 779.372. 35 Fed. Reg. 5395, 5396 (April 9, 1970). Section 779.372(c)(1) defined “salesman” to include only those employees who sold vehicles: As used in section 13(b)(10), a salesman is an employee who is employed for the purpose of and is primarily engaged in making sales or obtaining orders or contracts for sale of the vehicles or farm implements which the establishment is primarily engaged in selling. (Emphasis added.)4 The Secretary has subsequently explained that this narrowing was premised “on its reading of 13(b)(10)(A) as limiting the exemption to salesman who sell vehicles and partsmen and mechanics who service vehicles.” 76 Fed. Reg. 18838 (April 5, 2011). Thus, regarding employees of vehicle dealerships, Regulation § 779.372 3 Thompson argues that the Montana statutory exemption should be “more narrowly construed” than the federal exemption, but offers no viable distinction between the two. Given the nearly identical terms used by the statutes, we apply the same analysis under both provisions. 4 In conjunction with Regulation 779.372(c)(1), the Secretary also promulgated corresponding Regulation § 779.372(c)(4), which provided: Employees variously described as service manager, service writer, service advisor, or service salesman who are not themselves primarily engaged in the work of a salesman, partsman, or mechanic as described above are not exempt under section 13(b)(10). This is true despite the fact that such an employee’s principal function may be diagnosing the mechanical condition of vehicles brought in for repair, writing up work orders for repairs authorized by the customer, assigning the work to various employees and directing and checking on the work of mechanics. 35 Fed. Reg. 5396 (April 9, 1970). 10 exempts salesmen of vehicles, and partsmen and mechanics who service vehicles, from the overtime pay requirement, but not salesmen of vehicle services. ¶21 Acknowledging that FLSA overtime pay exemptions are to be narrowly construed against the employer, Kemp v. State Bd. of Personnel Appeals, 1999 MT 255, 292 Mont. 319, 989 P.2d 317, the District Court also reasoned that “regulations are not controlling if they conflict with the plain wording of the statute.” The court rejected application of Regulation § 779.372(c)(1) on a plain reading comparison of the regulation and the statute, and by reliance on the U.S. Circuit Court decisions in Brennan v. Deel Motors, Inc., 475 F.2d 1095 (5th Cir. 1973) and Walton v. Greenbriar Ford, Inc., 370 F.3d 446 (4th Cir. 2004). Those courts concluded that the regulation conflicted with the statute. The Walton Court reasoned as follows: [T]he Secretary’s interpretation of [the term “salesman”] is unreasonable, as it is an impermissibly restrictive construction of the statute. FLSA itself exempts any salesman “primarily engaged in selling or servicing automobiles” from the overtime requirements. 29 U.S.C. § 213(b)(10)(A) (emphasis added). However, the regulation conflicts with FLSA’s statutory mandate in that it restricts the definition of “salesman” to those employees “primarily engaged in making sales or obtaining orders or contracts for sales of the vehicles.” 29 C.F.R. § 779.372(c)(1) (emphasis added). Because that restrictive regulatory definition of “salesman” unreasonably implements the congressional mandate, we reject the Secretary’s interpretation in 29 C.F.R. § 779.372(c)(1). ¶22 Thompson argues the District Court erred by following Walton instead of the regulation. He urges us to reject Walton in light of the Supreme Court’s directive to defer to agency definitions, as stated in Chevron v. Nat. Resources Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984) and Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 11 127 S. Ct. 2339 (2007). Chevron was a seminal case in which the Supreme Court outlined a two-step framework for judicial review of an agency’s interpretation of a federal statute. Under Chevron step one, a court must determine whether the statute speaks directly to the precise question at issue; if it does, the court must “give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S. Ct. at 2781. However, if the statute is “is silent or ambiguous” as to the question at issue, the court proceeds to Chevron step two where it defers to a reasonable construction of the statute by the agency charged with its implementation. Chevron, 467 U.S. at 843, 104 S. Ct. at 2781-82. Chevron step one requires a reviewing court to “employ[] traditional tools of statutory construction” to ascertain whether Congress answered the question at issue. Chevron, 467 U.S. at 843 n. 9, 104 S. Ct. at 2781 n. 9.5 ¶23 A plain, grammatical reading of 29 U.S.C. § 213(b)(10)(A) makes clear that the term “salesman” encompasses a broader category of employees than those only engaged in selling vehicles. The statute exempts “any salesmen, partsmen, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements[.]” 29 U.S.C. § 213(b)(10). The use of the disjunctive “or” between the words “selling or servicing” means that the exemption applies to any “salesman, partsmen, or mechanic” who are 5 We have also long adhered to “ordinary rules of grammar” when construing a statute according to its plain meaning. Jay v. Sch. Dist. No. 1 of Cascade Co., 24 Mont. 219, 224-25, 61 P. 250, 252 (1900); see also Missoula High Sch. Legal Def. Assn. v. Superintendent of Pub. Instr., 196 Mont. 106, 110, 637 P.2d 1188, 1191 (1981). Generally, we turn to other modes of statutory construction, such as legislative history, only when a plain reading of the statute leaves the question presented unanswered. See Van der hule v. Mukasey, 2009 MT 20, ¶ 14, 349 Mont. 88, 217 P.3d 1019 (concluding that because the plain language of the statute answered the question raised in certified question, “we need not go on to employ other methods of statutory interpretation.”). 12 primarily engaged in either of these duties. The use of the disjunctive “or” among “automobiles, trucks, or farm implements” applies the exemption to employees selling or servicing any of these kinds of vehicles.6 Therefore, under a plain reading, the statute clearly exempts “any salesman . . . primarily engaged in servicing . . . automobiles.” ¶24 Thompson’s reliance on Chevron and Long Island Care is unavailing because those cases involved regulations that defined statutory terms in a way that did not conflict with the controlling statute. In other words, they are Chevron “step two” cases. In Chevron, the statutory term at issue was “stationary source” from the Clean Air Act. Chevron, 467 U.S. at 840, 104 S. Ct. at 2780. The Supreme Court upheld the EPA’s definition as a “permissible construction of the statute” because it did not conflict with the language of the statute and did not frustrate the objectives of Congress. Chevron, 467 U.S. at 866, 104 S. Ct. at 2793. The statutory terms at issue in Long Island Care were “domestic service employment” and “companion services” of the Fair Labor Standards Act (FLSA). Long Island Care, 551 U.S. at 161-62, 127 S. Ct. at 2344. The FLSA exempted employees engaged in providing in-home companion care for elderly and disabled people from minimum wage and maximum hour requirements. Long Island Care, 551 U.S. at 161-62, 127 S. Ct. at 2344. The U.S. Department of Labor issued a regulation defining “domestic service employment” to include third-party workers— those employed by agencies in the businesses of providing companion services to numerous clients. Long Island Care, 551 U.S. at 163, 127 S. Ct. at 2345. The Supreme 6 Under the Montana statute, the exemption is additionally applied to employees who sell or service “mobile homes” and “recreational vehicles.” Section 39-3-406(2)(d), MCA. 13 Court upheld this regulatory definition because it did not contradict the statutory language of the FLSA. Long Island Care, 551 U.S. at 167, 127 S. Ct. at 2347. However, in this case, unlike Chevron and Long Island Care, Regulation § 779.372(c)(1) conflicts with the plain wording of 29 U.S.C. 213(b)(10)(A) by defining employees who are exempted from overtime pay as “salesman” more narrowly than the statute does. ¶25 Billion and Thompson also argue about the effect of the Secretary’s inconsistent enforcement of § 779.372(c)(1) over the past 40 years.7 However, it is not necessary to address this concern. Because we conclude that § 213(b)(10)(A) resolves the dispute, the regulation carries no weight. Under Chevron step one, if a plain reading of the statute answers the question, it is not necessary to further analyze the effect of the regulation. Chevron, 467 U.S. at 842-43, 104 S. Ct. at 2781 (“If the intent of Congress is clear, that is the end of the matter[.]”); Village of Barrington v. Surface Transp. Bd., 636 F.3d 650, 659 (D.C. Cir. 2011) (“Because at Chevron step one we alone are tasked with determining Congress’s unambiguous intent, we [analyze the statute] without showing the agency any special deference.”). 7 After promulgating the narrower definition of “salesman” in 1970, the Secretary issued a policy letter in 1978 purporting to change its position by including certain “salesman” who sell automotive services. See Dept. of Lab. Opinion WH-467, signed by Wage-Hour Administrator Xavier M. Vela, July 28, 1978, 1978 DOLWH LEXIS 22 **1-2 (“This position represents a change from the position set forth in [§ 779.372] . . . .”). In 1987, the Secretary amended the Department’s Field Operations Handbook to direct agency workers to “no longer deny the [overtime] exemption for such employees.” In 2011, the agency reverted back to the position articulated in § 779.372(c)(1): “Upon further consideration of the [salesman of services] issue, the Department has decided not to adopt the proposed change to § 779.372(c)(4) to specifically include service managers, service writers, service advisors, or service salesmen as qualified for the exemption. As commentators point out, the statute does not include such positions . . . .” 76 Fed. Reg. 18838 (April 5, 2011). 14 ¶26 Affirmed. /S/ Jim Rice We concur: /S/ Mike McGrath /S/ Patricia O. Cotter /S/ Beth Baker /S/ Brian Morris | January 29, 2013 |
aad1dd8b-9037-420c-af7f-f0e262c0356d | Olsen v. Johnston | 2013 MT 25 | DA 12-0266 | Montana | Montana Supreme Court | DA 12-0266 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 25 JUDY D. OLSEN, Plaintiff and Appellee, v. KRISTY K. JOHNSTON and DAVE JOHNSTON, Defendants and Appellants. APPEAL FROM: District Court of the Fourteenth Judicial District, In and For the County of Meagher, Cause No. DV 09-16 Honorable Randal I. Spaulding, Presiding Judge COUNSEL OF RECORD: For Appellants: Robert J. Quinn, Quinn Law Office, Bozeman, Montana For Appellee: John R. Christensen, Ben T. Sather, Christensen Fulton & Filz, PLLC, Billings, Montana Submitted on Briefs: November 7, 2012 Decided: February 5, 2013 Filed: __________________________________________ Clerk February 5 2013 2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Appellants Kristy K. Johnston (Johnston) and Dave Johnston (Dave) appeal from an order of the Fourteenth Judicial District Court, Meagher County, that granted summary judgment to Appellee Judy D. Olsen (Olsen). The District Court determined that Olsen and Johnston had contracted for Olsen to purchase Johnston’s interest in real property that they jointly owned as tenants in common. The court awarded specific performance to Olsen under the contract. We affirm. ¶2 We address on appeal only whether the District Court properly concluded that Olsen and Johnston had formed an enforceable contract. PROCEDURAL AND FACTUAL BACKGROUND ¶3 Olsen and Johnston are sisters. Olsen, Johnston, and their mother, Joyce Johnston (Joyce), owned as tenants in common 78 acres of real property on Eagle Creek in Meagher County (the property). Joyce left her one-third interest in the property to Johnston when she died in 2008. ¶4 Johnston sent a letter to Olsen on July 17, 2009, in which she offered either to buy Olsen’s interest in the property, or to sell her own interest to Olsen. In relevant part, the letter read: Judy, As tenants in common with irreconcilable differences, I feel a termination of joint ownership of the cabin property is unavoidable. I propose that you sell me your 1/3 share of the 78 acre Eagle Creek property for $150,000.00. If you choose not to sell, you may purchase my 2/3 share for 3 $300,000.00. . . . Please respond to Bruce Townsend by August 15, 2009 or I will be forced to seek partitioning of the property. Johnston sent copies of the letter to Bruce Townsend (Townsend), and to her attorney, Shane Reely (Reely). ¶5 Olsen did not respond to Townsend as Johnston had requested. Olsen instead sent the following response letter directly to Johnston on July 24, 2009: Kristy, In your letter to me of July 17, 2009 regarding the ownership of the 78 acre cabin property on Eagle Creek, you offered to sell your 2/3 interest to me for $300,000. I accept your offer to sell and will purchase your interest for $300,000. You may consider this letter as my confirmation of acceptance of your offer to sell. . . . Johnston sent a letter to Olsen on July 28, 2009, in which she acknowledged that she had received Olsen’s response. Johnston attempted to reject Olsen’s acceptance and revoke her own offer to sell. Johnston informed Olsen that she already had agreed to sell her interest in the property to their brother, Dave. Johnston told Olsen that she had made the same offer to sell her interest in the property to Dave, and that he had accepted her offer by telephone before she had received Olsen’s letter. ¶6 Olsen enlisted the assistance of counsel after she received Johnston’s second letter. Olsen’s counsel, John Christensen (Christensen), sent a letter to Johnston and to Reely on August 17, 2009, in which he asserted that Olsen and Johnston had created a binding 4 contract. Christensen made it clear that Olsen was prepared to seek judicial enforcement of the contract, if necessary. ¶7 After Christensen’s letter, the parties and their counsel seemed to be working towards closing the sale. Reely informed Christensen on September 21, 2009, however, that Johnston had hired Dave’s attorney to handle the matter and that Johnston was refusing to honor the contract. Olsen filed her complaint later that day. ¶8 Olsen filed a summary judgment motion on July 15, 2010. The court granted Olsen’s motion on March 19, 2012. The court determined that the letters exchanged between Olsen and Johnston had created an enforceable contract that satisfies the statute of frauds. The court awarded Olsen specific performance of the contract. Johnston appeals. STANDARD OF REVIEW ¶9 We review de novo a district court’s grant of summary judgment. Kaufman Brothers v. Home Value Stores, Inc., 2012 MT 121, ¶ 6, 365 Mont. 196, 279 P.3d 157. The party moving for summary judgment must establish that no genuine issue exists as to any material fact and entitlement to judgment as a matter of law. M. R. Civ. P. 56(c). The burden then shifts to the non-moving party to present substantial evidence that raises a genuine issue of material fact. Bruner v. Yellowstone Co., 272 Mont. 261, 264, 900 P.2d 901, 903 (1995). DISCUSSION 5 ¶10 Johnston argues that her offer required Olsen to reply to Townsend. Johnston contends that Olsen rejected the terms of her offer when she replied directly to Johnston. Johnston argues that Olsen instead presented a counteroffer when Olsen replied directly to Johnston. Johnston denies having accepted Olsen’s counteroffer. Thus she contends that the parties formed no enforceable contract. ¶11 To form a legally enforceable contract, there must be (1) identifiable parties capable of contracting; (2) their consent; (3) a lawful object; and (4) a sufficient cause or consideration. Section 28-2-102, MCA. The parties’ consent must be free, mutual, and communicated by each to the other. Section 28-2-301, MCA. Consent is not determined by the subjective, undisclosed intent of the parties. Miller v. Walter, 165 Mont. 221, 226, 527 P.2d 240, 243 (1974). We determine consent by the parties’ outward, objective manifestations. Bitterroot Int’l Sys. v. W. Star Trucks, Inc., 2007 MT 48, ¶ 33, 336 Mont. 145, 153 P.3d 627; Miller, 165 Mont. at 226, 527 P.2d at 243. Parties have consented if, based on their words and conduct, a reasonable person would conclude that they intended to be bound by the contract. Bitterroot Int’l Sys., ¶ 33. ¶12 Parties usually give mutual consent in the form of an offer and an acceptance. Bitterroot Int’l Sys., ¶ 33. “‘An offer is a promise; it is a statement made by the offeror of what he will give in return for some promise or act of the offeree.’” City of Bozeman v. Taylen, 2007 MT 256, ¶ 19, 339 Mont. 274, 170 P.3d 939 (quoting Sunburst Oil & Gas Co. v. Neville, 79 Mont. 550, 563, 257 P. 1016, 1019 (1927)). 6 ¶13 Acceptance communicated to the offeror completes mutual consent. An offeree generally can communicate her acceptance to the offeror in any reasonable and usual manner. Section 28-2-512(2), MCA. As master of the offer, however, the offeror may limit the time, place, or manner in which an offeree can accept. Section 28-2-501(2), MCA; see also, Miller, 165 Mont. at 227, 527 P.2d at 244; Steinbrenner v. Minot Auto Co., 56 Mont. 27, 180 P. 729 (1919). ¶14 If the offer so limits the mode of acceptance, the offeree must comply with those terms as a condition precedent to acceptance. Section 28-2-501(2), MCA. Noncompliance with such a condition constitutes a rejection of the offer. AAA Constr. of Missoula, LLC v. Choice Land Corp., 2011 MT 262, ¶ 23, 362 Mont. 264, 264 P.3d 709. An offeree’s non- complying response should be characterized as a counteroffer. AAA Constr. of Missoula, LLC, ¶ 23. An offer also may suggest a time, place, or manner of acceptance that would be satisfactory to the offeror. See Restatement (Second) of Contracts § 60 (1981). Other reasonable modes of acceptance are not precluded if the offer merely suggests a time, place, or manner of acceptance. Restatement (Second) of Contracts § 60. ¶15 In other words, an offeror that prescribes an exclusive mode of acceptance does not consent to be bound by the contract unless the offeree communicates acceptance in that particular manner. Section 28-2-501(2), MCA. An offeror who merely suggests one satisfactory manner of acceptance, however, consents to be bound by the offer as long as the offeree communicates acceptance in any reasonable manner. Restatement (Second) of Contracts § 60. 7 ¶16 We consider only the offeror’s objective manifestations of consent as expressed by words and conduct. Bitterroot Int’l Sys., ¶ 33. An offer must exclude clearly and definitively all other modes of acceptance to create a condition precedent to acceptance. Restatement (Second) of Contracts § 60 illus. 1-5; Samuel Williston, Williston on Contracts vol. 2, § 6:12, 130 (Richard A. Lord ed., 4th ed., West 2007); see also, David J. Tierney, Jr., Inc. v. T. Welington Carpets, Inc., 8 Mass. App. Ct. 237, 240-41, 392 N.E.2d 1066, 1069 (1979); Overman v. Brown, 220 Neb. 788, 791, 372 N.W.2d 102, 105 (1985); Panhandle E. Pipe Line Co. v. Smith, 637 P.2d 1020, 1022 (Wyo. 1981). ¶17 The District Court correctly determined that Johnston’s offer did not limit Olsen’s potential modes of acceptance. First, and most importantly, Johnston’s offer did not use words of limitation when she requested that Olsen reply to Townsend. Johnston could have used language like “You must reply to Bruce Townsend to accept this offer,” or “You can accept this offer, if at all, by responding to Bruce Townsend.” Such language would have made clear that Olsen could accept the offer only by replying to Townsend. The District Court also noted that the offer did not include Townsend’s address or contact information. According to the District Court, the offer’s failure to include Townsend’s contact information coupled with Johnston’s failure to use words of limitation likely would lead a reasonable person to believe that any reasonable manner of acceptance would be satisfactory. ¶18 Johnston’s conduct also did not make clear that the offer had prescribed an exclusive mode of acceptance. Johnston personally sent the letter that contained her offer to Olsen. 8 Johnston did not have Townsend send the letter on her behalf. Johnston failed to convey objectively an unwillingness to communicate directly with Olsen. ¶19 Johnston did not make clear through her words and associated conduct that a reply to Townsend represented the exclusive permissible mode of acceptance. Johnston consequently did not create a condition precedent to Olsen’s acceptance. The parties’ mutual consent was completed therefore when Olsen accepted Johnston’s offer in a reasonable manner. The offer and acceptance satisfied the three other essential elements of a contract. The parties had capacity to contract, § 28-2-201, MCA; the agreement had a lawful object— the sale of the property, § 28-2-601 to -602, MCA; and the agreement called for the exchange of sufficient consideration, § 28-2-801, MCA. ¶20 Moreover, the parties’ exchanged letters satisfied the statute of frauds. A contract for the sale of real property must be memorialized by a written note or memorandum subscribed by the party to be charged. Section 28-2-903, MCA. The note or memorandum does not have to be in any particular form and may consist of several writings. Johnson v. Ogle, 120 Mont. 176, 181-82, 181 P.2d 789, 791 (1947); Hughes v. Melby, 135 Mont. 415, 421, 340 P.2d 511, 515 (1958). The note or memorandum need not contain the entire contract. Kluver v. PPL Mont., LLC., 2012 MT 321, ¶ 38, 368 Mont. 101, ___P.3d___; Dineen v. Sullivan, 123 Mont. 195, 199, 213 P.2d 241, 243 (1949). The note or memorandum must include all of the material terms of the contract, but those terms may be stated generally. Kluver, ¶ 38; Dineen, 123 Mont. at 199, 213 P.2d at 243; Hughes, 135 Mont. at 421, 340 P.2d 511. 9 ¶21 The parties’ agreement establishes the material terms of the contract. Dineen, 123 Mont. at 202, 213 P.2d at 244-45. The material terms of a contract for the sale of real property will include the parties, the subject matter, a reasonably certain description of the property affected, the purchase price or the criteria for determining the purchase price, and some indication of mutual assent. Williston, Williston on Contracts at vol. 2, § 29:8, 616- 618. Subsidiary matters, collateral matters, or matters that go to the performance of the contract, do not constitute material terms. Kluver, ¶ 38; Steen v. Rustad, 132 Mont. 96, 106, 313 P.2d 1014, 1020 (1957); Keaster v. Bozik, 191 Mont. 293, 302, 623 P.2d 1376, 1381 (1981). ¶22 The parties’ exchanged letters identified Johnston as the seller of certain real property and Olsen as the buyer. Johnston’s offer identified the property as the 78 acre Eagle Creek property that she and Olsen owned as tenants in common. Johnston agreed to transfer her two-thirds interest in the property to Olsen. Olsen agreed in return to pay $300,000 to Johnston. Johnston signed the offer letter. The exchanged letters thus included all of the essential material terms of the contract and satisfied the statute of frauds. Section 28-2-102, MCA. All other terms represent collateral matters that relate to the parties’ performance of the agreed upon material terms. The District Court properly concluded that the parties’ exchange of letters created an enforceable contract. ¶23 Affirmed. /S/ Brian Morris 10 We Concur: /S/ Mike McGrath /S/ Michael E Wheat /S/ Patricia Cotter /S/ Beth Baker | February 5, 2013 |
6d079084-f34c-4c23-bd3c-0badd1c40d5b | Steichen v. Talcott Props., LLC | 2013 MT 2 | DA 11-0778 | Montana | Montana Supreme Court | DA 11-0778 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 2 CRAIG STEICHEN, Plaintiff and Appellant, v. TALCOTT PROPERTIES, LLC; BRESNAN COMMUNICATIONS, LLC, Defendants and Appellees. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. BDV-08-457 Honorable Julie Macek, Presiding Judge COUNSEL OF RECORD: For Appellant: Lawrence A. Anderson; Attorney at Law, P.C., Great Falls, Montana For Appellees: Kevin C. Meek, Jordan Y. Crosby; Ugrin, Alexander, Zadick & Higgins, P.C., Great Falls, Montana (for Talcott Properties) Submitted on Briefs: September 4, 2012 Decided: January 8, 2013 Filed: __________________________________________ Clerk January 8 2013 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Craig Steichen appeals from the District Court’s December 27, 2011 order granting summary judgment to Talcott Properties. We reverse. ¶2 We consolidate the issues for review stated by Steichen and we consider the following issue to be dispositive: whether Talcott as a property owner had a duty of care to Steichen. PROCEDURAL AND FACTUAL BACKGROUND ¶3 Talcott owned a building in Great Falls and leased space in the building to Bresnan Communications. Steichen worked as an independent contractor for Bresnan, providing office cleaning services three nights a week. He had no contractual relationship with Talcott. The incident that gave rise to this action occurred on July 17, 2005, when Steichen slipped in water on a restroom floor during his cleaning duties in Talcott’s building, and sustained a personal injury. ¶4 Under the Talcott-Bresnan lease, Talcott was required to “maintain the building structurally, including the roof and the water, gas, sewage, electrical, heating and cooling systems therein, together with the interior and exterior surfaces of the building.” Bresnan was responsible for “routine painting, cleaning and care of the interior of the leased premises” including the interior lights. According to the District Court order, there was a chronic problem with water that leaked from the plumbing onto the restroom floor where Steichen fell. Bresnan periodically called Talcott to report the leak, and Taclott would “send somebody over” to address the problem. Despite Talcott’s responses on these 3 occasions, the plumbing in the men’s room continued to leak water onto the floor. Talcott’s practice was to address maintenance of the building when Bresnan notified it of a problem. Talcott did not have an inspection schedule or a written maintenance policy for the building. ¶5 Steichen also alleged that there was a chronic problem with the lighting in the building, including the lighting in the men’s room. Pursuant to the lease, Bresnan assumed responsibility for maintaining the lighting. Plaintiff alleges that when he fell and sustained injury the lighting in the men’s room was dim and there was a puddle of water on the floor. ¶6 Steichen sued Bresnan and Talcott. He settled with Bresnan and the District Court granted summary judgment to Talcott. Steichen appeals. STANDARD OF REVIEW ¶7 This Court reviews a district court’s rulings on summary judgment de novo, using the same criteria as the district court under M. R. Civ. P. 56. Krajacich v. Great Falls Clinic, 2012 MT 82, ¶ 8, 364 Mont. 455, 276 P.3d 922. Summary judgment may be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c); Town & Country Foods v. City of Bozeman, 2009 MT 72, ¶ 12, 349 Mont. 453, 203 P.3d 1283. Material facts involve the elements of the cause of action or the elements of defenses to an extent that requires resolution by a trier of fact. Corporate Air v. Edwards Jet Center, 2008 MT 283, ¶ 24, 345 Mont. 336, 190 P.3d 1111. The party moving for summary judgment bears the initial burden of establishing the absence of genuine issues of material fact and entitlement to 4 judgment as a matter of law. If so, the burden shifts to the opposing party to establish that genuine issues of material fact exist. Corporate Air, ¶ 25. The district court’s determination as to whether a party is entitled to judgment on the facts is a conclusion of law that this Court reviews to determine whether it is correct. Hughes v. Lynch, 2007 MT 177, ¶ 8, 338 Mont. 214, 164 P.3d 913. DISCUSSION ¶8 Issue: whether Talcott as a property owner had a duty of care to Steichen. ¶9 The District Court concluded that Talcott did not owe a legal duty to prevent injury to Steichen, and granted summary judgment to Talcott. The District Court noted the principles of premises liability applied in Montana, citing the leading case of Richardson v. Corvallis Public School District, 286 Mont. 309, 950 P.2d 748 (1997). Richardson adopted the rule that a property owner has a duty to use ordinary care in maintaining the premises in a reasonably safe condition and to warn others of hidden or lurking dangers. “Whether a premises is reasonably safe depends to a large extent on what use the property is put to, its setting, location, and other physical characteristics, the type of person who would foreseeably visit, use or occupy the premises, and the specific type of hazard or unsafe condition alleged.” Richardson, 286 Mont. at 321, 950 P.2d at 755-756. ¶10 The District Court determined that the clear statement of premises liability in Richardson applied to this case. Accordingly, Talcott had a duty to exercise ordinary care in maintaining the building in a reasonably safe condition. Steichen’s argument that 5 Talcott should have conducted periodic inspections of the condition of the building was only one factor in determining whether there was a breach of the duty of care. ¶11 Nonetheless, the District Court applied the rules from construction industry cases such as Cunnington v. Gaub, 2007 MT 12, 335 Mont. 296, 153 P.3d 1; Fabich v. PPL, Montana, 2007 MT 258, 339 Mont. 289, 170 P.3d 943; and Beckman v. Butte-Silver Bow, 2000 MT 112, 299 Mont. 389, 1 P.3d 348, and determined that Talcott owed no duty of care to Steichen because Steichen was an independent contractor working for Bresnan. The crucial factors were that Steichen was an independent contractor working for Bresnan; that Talcott did not retain any control over Steichen; that Steichen did not perform any inherently dangerous work; and that Talcott did not contractually assume responsibility for implementing safety precautions. ¶12 Finally, the District Court determined that even if Talcott were subject to the premises liability duty of care explained in Richardson, Talcott was still not liable to Steichen. The District Court noted that the danger—water on the restroom floor—was open and obvious; that Steichen’s job was to clean up the water; and that Talcott had responded to each of Bresnan’s repair requests. Based upon these facts, the District Court concluded that “no reasonable jury” could conclude that Talcott violated the requirement that it exercise ordinary care to maintain the building in a reasonably safe condition. ¶13 The District Court correctly determined that Talcott had a duty to Steichen to use ordinary care in maintaining the building in a reasonably safe condition, as explained in Richardson. The District Court erred, however, in applying the construction industry 6 liability standards to this case, and in determining that Talcott owed no duty to Steichen because Steichen was an independent contractor. This is not a construction site case and there was no reason to make any duty decision based upon Steichen’s status as an independent contractor with Bresnan. Independent contractor status is relevant in construction industry cases, but not in ordinary premises liability cases. ¶14 In construction projects there are often layers of involvement with the project owner, the general contractor, subcontractors, independent contractors and employees of each of them. One of the rules of law that is applied to construction projects is that a prime or general contractor is not liable for injuries to employees of an independent contractor working on the job, West v. Morrison-Knudsen, 451 F.2d 493, 495 (9th Cir. 1971) (applying Montana law), unless the general contractor exerts control over the employee’s work, Umbs v. Sherrodd, Inc., 246 Mont. 373, 376, 805 P.2d 519, 520 (1991). There are three exceptions to this general rule of no liability: where there is a nondelegable duty based upon contract; where the activity is inherently dangerous; or where the general contractor negligently exercises retained control over a subcontractor’s work. Cunnington, ¶ 13. ¶15 While the District Court sought to apply the rules and exceptions regarding general contractor liability, it is clear that they do not apply here.1 There was no 1 Steichen suggests that Talcott had a duty to provide him with a safe workplace. However, the duty to provide a safe workplace applies to employers, § 50-71-201, MCA, and Talcott and Steichen were not in an employer-employee relationship. Sections 39- 71-117 and -118, MCA, defining employer and employee for purposes of workplace safety responsibilities. Cain v. Stevenson, 218 Mont. 101, 706 P.2d 128 (1985) 7 construction project, Talcott was not in any sense a general contractor, and Steichen’s status as an independent contractor with Bresnan is not relevant as a matter of law. Such status distinctions—invitee, licensee, trespasser—were formerly applied to the injured party in premises liability cases to determine whether the property owner had a duty. These distinctions have been abandoned in favor of emphasis upon the exercise of ordinary care by the owner. Richardson, 286 Mont. at 317, 950 P.2d at 753; Limberhand v. Big Ditch Co., 218 Mont. 132, 706 P.2d 491 (1985). ¶16 In Richardson, relying on Restatement (Second) of Torts § 343A(1) (1965), we reiterated our holding in Limberhand that the status of the injured party does not affect a property owner’s general duty of care, which depends on “the exercise of ordinary care in the circumstances by the landowner.” Richardson, 286 Mont. at 317, 950 P.2d at 753 (quoting Limberhand, 218 Mont. at 140, 706 P.2d at 496). We also overruled a series of prior cases to the extent that they absolved a property owner of liability “because a dangerous condition upon the premises is open and obvious[.]” Richardson, 286 Mont. at 322, 950 P.2d at 756. “Rather,” we concluded, “the possessor of the premises may only be absolved from liability for injuries resulting from open and obvious dangers if he should not have anticipated harm to occur.” That, in turn, “depends on ‘the degree of ordinary care which reasonable persons would use under the same or similar circumstances.’” Richardson, 286 Mont. at 321, 950 P.2d at 756 (emphasis in original). (workplace safety duties can extend to general contractors in favor of employees of independent contractors in certain situations in construction industry cases). 8 ¶17 As applied to this case, Richardson instructs that Talcott may not be found liable to Steichen for a “condition on the premises whose danger is known or obvious to [him], unless [Talcott] should anticipate the harm despite such knowledge or obviousness.” Richardson, 286 Mont. at 321, 950 P.2d at 755-756 (emphasis added). Despite Steichen’s knowledge of the leaking urinal and frequent presence of water on the floor, whether Talcott nonetheless should have anticipated harm is a jury question, since it depends on the degree of ordinary care that reasonable persons would use under the same or similar circumstances. Richardson, 286 Mont. at 321, 950 P.2d at 755-756. ¶18 Therefore, in this case it is not material to an analysis of duty or liability whether Steichen was an independent contractor, or a Bresnan employee, or a Bresnan customer, or a person delivering mail or packages to Bresnan. Talcott’s duty to any of these persons is to use ordinary care to maintain the premises in a reasonably safe condition and to warn of hidden or lurking dangers. Richardson, 286 Mont. at 318, 950 P.2d at 754. The District Court’s conclusion of law that Talcott owed no duty of care to Steichen was incorrect. ¶19 The District Court further erred in granting summary judgment to Talcott based upon the determination that “no reasonable jury” could find that Talcott had breached the duty of ordinary care under the facts of the case. The question of whether Talcott breached its duty to use ordinary care in maintaining the building in a reasonably safe condition is an issue of fact properly left for a jury to determine. Welton v. Lucas, 283 Mont. 202, 208, 940 P.2d 112, 115-116 (1997). There was evidence that Talcott specifically assumed maintenance responsibilities under the lease with Bresnan, and that 9 Talcott understood that it had those responsibilities, for example, sending a plumber to work on the water leak when Bresnan called. The fact that Steichen and others may have known that water could be on the floor may be evidence for the jury to consider, but it was not determinative of whether Talcott reasonably maintained the premises. Welton, 283 Mont. at 209, 940 P.2d at 116. ¶20 In Welton we determined that the defendant property owner was not entitled to summary judgment on a store employee’s premises liability claim. Despite the employee’s knowledge of a pipe on the floor on which she tripped and fell, given its existence “in a dimly lit traffic area where it is known that workers will be carrying and shelving products, there is a question of fact as to whether the possessor of the land should anticipate harm despite the obviousness of the pipe or despite Welton’s knowledge of the pipe.” Welton, 283 Mont. at 209, 940 P.2d at 116. We cited Welton in Richardson in determining that the principles of Restatement § 343A(1) would best serve “the interests of both the possessors of premises and those persons foreseeably on the premises[.]” Richardson, 286 Mont. at 320, 950 P.2d at 755. ¶21 This is not a workplace safety case but a premises liability case. Thus, despite Steichen’s status as an independent contractor for Talcott’s lessee, he may seek damages under a premises liability theory for a known danger, but must prove that Talcott “should anticipate the harm despite such knowledge or obviousness.” Richardson, 286 Mont. at 321, 950 P.2d at 756 (citation omitted). Whether Talcott had or should have conducted regular maintenance inspections are matters for the jury. Whether Talcott breached its duty is a question of fact to be determined by a jury. 10 ¶22 The District Court therefore erred in granting summary judgment to Talcott. The District Court is reversed and this case is remanded for further proceedings. /S/ Mike McGrath We concur: /S/ Michael E Wheat /S/ Patricia O. Cotter /S/ Beth Baker Justice Jim Rice, dissenting. ¶23 I believe the Court extends our premises liability precedent to a point that is ill-conceived. When this Court abandoned the “trichotomy” of traditional entrant categories of invitee, licensee, and trespasser in favor of a single, uniform standard, it was not done, in my view, with the purpose of imposing on landowners a universal duty of care to every entrant, regardless of the facts or circumstances. Because I believe the Court’s decision in this case is so founded, and is contrary to the sound public policy of not imposing duties for hazards inherent in the work an independent contractor was hired to do, I dissent. ¶24 To prove negligence in a premises liability case, a plaintiff must establish: (1) duty, (2) breach of duty, (3) causation, and (4) damages. Richardson v. Corvallis Pub. Sch. Dist. No. 1, 286 Mont. 309, 313, 950 P.2d 748, 751 (1997). The “existence of a legal duty is a question of law to be determined by the court.” Fisher v. Swift Transp. Co., 2008 MT 105, ¶ 16, 342 Mont. 335, 181 P.3d 601. Usually, when determining 11 whether a duty exists, we “consider whether the imposition of that duty comports with public policy, and whether the defendant could have foreseen that his conduct could have resulted in injury to the plaintiff.” Fisher, ¶ 17. However, in the context of premises liability we have eschewed this task, and, instead imposed the very broad rule that a premises owner “‘has a duty to use ordinary care in maintaining his premises in a reasonably safe condition and to warn of any hidden or lurking dangers.’” Richardson, 286 Mont. at 313, 950 P.2d at 751 (quoting Brown v. Demaree, 282 Mont 479, 482, 901 P.2d 567, 569 (1995) (collecting Montana cases)). This rule imposes upon a landowner a duty of care to everyone, regardless of the facts. Although the Court acknowledges an exception to this rule for construction cases, it permits no exception here, holding that “it is not material to an analysis of duty or liability whether Streichen was an independent contractor, or a Bresnan employee, or a Bresnan customer, or a person delivering mail or packages to Bresnan.” Opinion ¶ 16. I believe this one-size-fits-all duty of care to everyone is an overbroad statement of the law of duty and a product of haste to simplify premises liability law. ¶25 Courts and commentators have noted that courts have been reluctant to abolish the trichotomy precisely because of the possibility it could detrimentally oversimplify premises liability law: [The recent shift back toward specific entrant rules] may reflect a more fundamental dissatisfaction with certain developments in accident law that accelerated during the 1960s—the reduction of whole systems of legal principles to a single perhaps simplistic, standard of reasonable care, the sometimes blind subordination of other legitimate social objectives to the goals of accident prevention and compensation, and the commensurate shifting of the decisional balance of power to the jury from the judge. 12 W.P. Keeton, Prosser & Keeton on the Law of Torts 433-32 (West, 5th ed., 1984); see also Carter v. Kinney, 896 S.W.2d 926, 930 (Mo. 1995) (en banc) (quoting the above passage and reasoning that abandoning all questions of duty based on the situation of entrant for the “amorphous ‘reasonable care under the circumstances’ standard seems—to put it kindly—improvident.”). While this one-size-fits-all rule of duty is admittedly simple, it is illogically broad. ¶26 There are situations where the specific hazard and the relationship between the landowner and the entrant warrant a finding of no duty as a matter of law. One practical exception recognized by courts is when the entrant is injured by hazards attendant with the very job for which the landowner asked the entrant to enter the premises: Landowner liability does not extend to employees of an independent contractor whose injuries result from the very risks which are inherent in the work which they are hired to perform. Where an individual’s injury arises out of the performance of work for which an independent contractor is employed and while that activity is being conducted by and under the control of the independent contractor, the duty to protect the independent contractor’s employees is that of the contractor and not the owner or occupier. 2 Premises Liability: Independent Contractors and Their Employees § 39:7 (West 3d ed., 2002); Jones v. Chevron, 718 P.2d 890, 894 (Wyo. 1986) (“An owner is not obligated to protect the employees of an independent contractor from hazards which are incidental to, or part of, the very work the contractor was hired to perform.”); Baum v. Rowland, 281 A.D. 964, 120 N.Y.S.2d 620 (1953) (“Plaintiff, having undertaken to repair the plaster on the ceiling, assumed the risk that it might fall, so that there was no duty owed to him, as would have been the case toward other types of invitees upon the premises.”); Cassano v. 13 Aschoff, 543 A.2d 973, 976 (N.J. Super. 1988) (noting that New Jersey continues to adhere to rule that “landowner liability does not extend to employees of an independent contractor whose injury results from the very risks which are inherent to the work they were hired to perform.”). In Cassano, the plaintiff worked for an independent contractor engaged in the tree-removal business. Cassano, 543 A.2d at 974. While removing trees from the property, he was struck by a falling tree limb and injured. He sued the landowner under a general premises liability theory that the landowner owed “a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers[.]” Cassano, 543 A.2d at 975. The court acknowledged this was the general rule, but held it did not extend to the specific circumstances of the case because landowners do not owe a duty to protect independent contractors from dangers inherent in the job they were hired to perform. Cassano, 543 A.2d at 975. Such is the case here. ¶27 Bresnan hired Steichen as an “independent contractor” to clean its office. Opinion, ¶ 3. As part of his duties, Steichen emptied garbage, cleaned tables, vacuumed, buffed floors, and cleaned the men’s and women’s bathrooms. Part of his cleaning of the bathroom required him to mop and wax the floors. Steichen had extensive experience with the plumbing leaks in the bathroom. As the District Court noted, Steichen asserted that “the urinal was always dripping,” that the toilet was “constantly leaking,” and that he “could almost assume it would flood every day.” It was his job to routinely mop up the water from the bathroom floor, and there is no allegation that the leaking that allegedly caused his fall was out of the ordinary. 14 ¶28 As noted above, duty is supposed to be a matter of law for the court to decide, taking into consideration public policy and foreseeability. Fisher, ¶ 17. This task requires courts to determine whether it is proper to impose a duty upon landowners in consideration of the circumstances, including the parties’ relationships. Under that inquiry, I would answer no. It is illogical and poor policy to require a landowner to protect independent contractors from hazards inherent in the very job the contractor was hired to perform. ¶29 I would affirm the District Court. /S/ Jim Rice | January 8, 2013 |
f49aa0ad-37a5-4a02-b746-e7b65d72af6a | MOEN v DECKER COAL CO | N/A | 14732 | Montana | Montana Supreme Court | No. 14732 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 VIOLETTE MOEN I Claimant and Respondent, DECKER COAL COMPANY, Employer, and EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Defendant and Appellant. Appeal from: Workers1 Compensation Court Honorable William E. Hunt, Judge presiding. Counsel of Record: For Appellant: Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Montana Randy Bishop argued, Billings, Montana For Respondent: Hoyt and Lewis, Great Falls, Montana John Hoyt argued, Great Falls, Montana -- Submitted: September 21, 1979 Decided : D E C 1 4 1 9 1 9 - Filed: DEC f < : : " ; Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. Employers Mutual Liability Insurance Company of Wis- consin, the insurance carrier for the employer, Decker Coal Company, appeals from a judgment of the Workers' Compensation Court entered on behalf of Violette Moen, the claimant for benefits due pursuant to the Montana Workers' Compensation Act. Mike Moen, decedent and husband of the claimant, was employed as an oiler by Decker Coal Company at Decker, Montana. On Saturday, November 1, 1975, the decedent was working overtime steam cleaning various pieces of heavy equipment. This was a task which was not part of his usual job. Superintendent, Delmar Bradway had the decedent steam cleaning a row of equipment during the morning. After noon, the only remaining employees left at the site were Bradway and the decedent. Bradway testified that he and the decedent operated the steam cleaner in the afternoon on the same equipment which had been cleaned that morning in order to clean the batteries. Although a union agreement with the Decker Coal Company contains provisions prohibiting supervisory personnel from doing the tasks of the rank and file members, Bradway testified that he operated the steam cleaner while the decedent drove an old Ford F600 truck on which the steam cleaner was mounted. When they finished the job, the decedent was assigned the task of draining the cleaner and storing the hoses. The work day terminated about 3:30 p.m. Bradway also testified that the decedent drove away in his pickup truck and did not report any injury or ill effects from working that day. The decedent visited briefly with James McCarthy, the owner of the grocery store and post office in Decker, Montana, sometime between 3:50 p.m. and 4:50 p.m. the same day but did not indicate -2- to McCarthy any ailments. About twenty minutes later the decedent again came to McCarthyls premises and asked McCarthy to drive him to Sheridan, Wyoming, some 35 miles away. McCarthy testified that the decedent looked pale and promised to take him as soon as he finished repairing a pump in his basement. The decedent did not wait but apparently drove himself to Memorial Hospital in Sheridan where he was admitted at approximately 6:00 p.m. Upon admission the decedent related a history to the attending physician, Dr. William Williams, of having an abrupt onset of left anterior chest pain with pain radiating into the left arm at approximately 2:00 p.m., the same day. The decedent further indicated that the pain went to its peak intensity within ten to fifteen minutes and then continued until he presented himself at the hospital. An electrocardiogram was performed and findings were consistent with an acute anterior myocardial infarction. The decedent was put on a monitor and treated with medication until approximately 2:57 a.m., November 2, 1975 when his heart changed rhythm (arrhythmia) and after several electric shock treatments and medication, the decedent died at 3:35 a.m. on November 2, 1975. The cause of death was stated as an anterior myocardial infarction with cardiac arrest. No autopsy was performed. The decedent was 63 years of age. A claim for compensation was filed by the decedent's widow on September 27, 1976. The claim was denied by the appellant on the grounds that Moen's death was not causally related to his employment. A petition seeking a hearing before the Workers' Compensation Court was filed on August 31, 1977 and amended January 25, 1978. Pretrial conferences were held on ~eptember 1, 1977, April 6, 1978 and July 13, 1978. After several post- ponements, the matter was heard on August 2, 1978. ~ollowing the -3- hearing, briefs were filed by both parties. On January 29, 1979, the decision of the court was rendered with findings of fact and conclusions of law finding that Moen's death was causally related to his employment and holding appellant liable to claimant for benefits. The two issues presented on this appeal are whether the decedent suffered a compensable "injury" as defined by section 39-71-119, MCA, and if so whether such injury arose "out of and in the course of his employment" within the scope of section 39-71-407, MCA? We find that the first issue is dispositive of the case and reverse based upon the following reasoning. Section 39-71-119, MCA, states in pertinent part: "Injury - or injured defined. 'Injury' or 'injured' means : "(1) a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm . . ." There are two elements in the statute which must be met: " (1) there must be a tangible happening of a traumatic nature, and "(2) this must be shown to be the cause of physical harm." (To the worker.) Dumont v. Wickens Bros. Const. Co. (1979), Mont . , 598 P.2d 1099, 1108, 36 St.Rep. 1471, 1482; Hurlbut v . Vollstedt Kerr Co. (1975), 167 Mont. 303, 538 P.2d 344. In explaining the first element of the injury formula, this Court has stated: "A tangible happening must be a perceptible happening, Webster's Third New International Dictionary. Some action or incident, or chain of actions or incidents, must be shown which may be perceived as a contributing cause of the resulting injury. This Court has found neuroses compensable, but a tangible, real happening must be a cause of the condition." Stamatis v. Betchel Power Corp. (1979), Mont. - , 601 P.2d 403, 406, 36 St.Rep. 1866, 1870; Erhart v. Great Western Sugar Company (1976), 169 Mont. 375, 381, 456 P.2d 1055, 1058. Regarding the causal element, the death must still be proven to be the result of a tangible happening of a traumatic nature. The claimant bears the burden of proving by a pre- ponderance of the evidence that a tangible happening of a traumatic nature proximately caused physical harm, McAndrews v . Schwartz (1974), 164 Mont. 402, 412, 523 P.2d 1379, 1384, and must show more than the mere possibility that the happening caused the harm. Erhart, 169 Mont. at 380, 546 P.2d at 1058; Stordahl v . Rush Implement Co. (1966), 148 Mont. 13, 20, 417 P.2d 95. If the evidence indicates a worker suffered a heart attack while - at work, rather than - - as a result of - work, no injury occurred under the statute. Ness v. Diamond Asphalt Company (1964), 143 Mont. 560, 564-65, 393 P.2d 43, 45-46. Applying this bifurcated test to the record in the present case demonstrates that the statutory requirements are not satisfied. Here there is no tangible happening of a traumatic nature. The only evidence going to the satisfaction of this requirement is a notation on the records of the hospital medical room indicating that the decedent's peak intensity of pain occurred at approximately 2:00 p.m. on Saturday, November 1, 1975. Alone this evidence is insufficient. The remaining evidence which respondent asserts as supportive of a valid claim goes to the collateral matter of aggravation of the decedent's condition and are not solid links forming a chain of events required by this Court in Erhart, supra. The testimony of Dr. Fletcher that the continued activity of the decedent lessened his chance of survival as well as the lack of proximity to a hospital are factors which may have aggravated the underlying myocardial infarction but they do not complete the chain of events. Claimant argues that several New Jersey cases are on point with the current case and that the courts there found the existence of a compensable injury. However, what claimant fails -5- to recognize is "[tlhe displacement of the unusual-exertion requirement in New Jersey by an essentially causal test . . ." Larson's Workmen's Compensation Law S38.64(b) at 7-185. Claimant's argument disregards Montana's independent requirement that a strain must result from "a tangible happening of a traumatic nature" in order to be compensable. "Not only must claimant show an unusual strain, but that the strain must result from a tangible happening of a traumatic nature. [Citations omitted.] In Love v. Ralph's Food Store, 163 ----- Mont. 234, 516 P.2d 598, we stated that Jones [v. Bair's Cafe (1968), 152 Mont. 13, 445 P.2d 9 2 3 ; r and Robins [L Ogle (1971), 157 Mont. 328, 485 P.2d 692,] made this rule clear. See, also, the earlier cases: Lupien v. Montana Record Publishing Co., 143 Mont. 415, - 0 P.2d 455; James v . - V.K.V. Lumber Co., [I45 Mont. 466, 401 P.2d 2821, supra; Miller - v . - Sundance Recreation, Inc., 151 Mont. 223, 441 P.2d 194." Dumont v. Wickens Bros. Const. Co. (197 -~ -. - Mont . , 598 P.2d 1099, 1108, 36 St.Rep. 1471, 1483 citing Erhart, 546 P.3d at 1058. As we stated in Dumont and we reaffirm as applicable here: "Claimant must still prove that her husband's death was the result of a 'tangible happening of a traumatic nature,' which she totally failed to do." Dumont, supra. Moreover, these factors completely fail to satisfy the causation element of the formula. The record is devoid of any evidence that the heart attack occurred as a result of work within the meaning of Ness, supra. Since this Court finds no injury within the purview of section 39-71-119, MCA, we hold that the decedent did not sustain a compensable injury. Reversed. We Concur: Chief Justice Mr. Justice John C. Sheehy dissenting: The majority does not meet head on the basic fact situation established by the claimant on which the Workers' Compensation Court found in favor of the claimant. The facts as found by the Workers' Compensation Court include these: "That the testimony reveals that the decedent reported for work about 8:00 a.m. Saturday, November 1, and was assigned the task of steam cleaning engines and transmissions of certain heavy equipment operated by the employer. His regular duties for which he was employed were those of an oiler. The decedent was described as a good oiler and worker. That the job of steam cleaning was different from the job of an oiler. "That the task of steam cleaning was described as an unpleasant, dirty job which required one to drag around the steam hoses from one part of a machine or one machine to another. The steam cleaner wore rain gear and goggles for protection from getting wet and dirty. That the job was described as not being more difficult than the job of oiler. "That Delmar Bradway, Maintenance Superintendent, testified that the decedent worked at steam cleaning until about noon on November 1 then had lunch. He stated also that two mechanics who also were working overtime on November 1 were excused at noon because they wanted to go home. Apparently in the afternoon the only employees left at the site were Bradway and the decedent. "Bradway further testified that in the afternoon he and the decedent operated the steam cleaner to get steam off the batteries on the equipment. He said that he operated the steam cleaner while the deceased drove an old Ford F600 truck on which the steam cleaner was mounted. They finished the job and the decedent was assigned to the task to drain the steam cleaner and hang up the hoses. The work day, according to the record, terminated about 3:30 p.m. "That Bradway testified that the decedent signed himself off the job at 3:30 p . m . and drove away in his pickup truck and did not report any injury or ill effects from working on the job. He later saw the decedent standing by his pickup with the hood raised and again the decedent did not indicate that there were any ill effects from the job. "That James McCarthy, an employer of Peter Kiewit and Sons who also owns the grocery store and post office in Decker, Montana saw the decedent sometime between 3:50 p.m. and 4:50 p.m. on November 1, 1975 in the yard at his store. The decedent and McCarthy visited as they did on many occasions in the past. According to McCarthy the decedent did not indicate that he wanted to see a doctor nor that he was feeling bad. McCarthy then excused himself and went to work on a pump in the cellar of his building. A short time later the decedent came to the door, knocked, and McCarthy came up from the cellar. The decedent asked McCarthy, a long time friend, to take him to town, which he had never done before; and McCarthy said that he would be with him in ten minutes, as soon as he was through with the task of fixing the pump in his basement. Twenty minutes later McCarthy saw the decedent. He looked pale and wasn't his usual self. "That the decedent apparently drove himself to Memorial Hospital of Sheridan County, Wyoming a distance of approximately 35 miles, where he was admitted at approximately 6:00 p.m. on November 1, 1975. Upon admission the decedent gave a history to the attending physician, Dr. William Williams, of having an abrupt onset of left anterior chest pain with pain radiating into the left arm at approximately 2:00 p.m. November 1, 1975. The deceased further indicated that the pain went to its peak intensity within 10 to 15 minutes and then continued until he presented himself at the hospital. An electrocardiogram was performed and findings were consistent with an acute anterior myocardial infarction. "That the decedent was put on a monitor and treated with medication until approximately 2:57 a.m. November 2, 1975 when his heart changed rhythm and, after several electric shock treatments and medication, the decedent died.. . . "Dr. Donald G. Fletcher, a physician and surgeon who practices in Conrad, Montana, testified on behalf of the claimant during which testimony the following facts were established: "a. An anterior myocardial infarction is the most severe type of myocardial infarction because the left anterior coronary arteries supply blood to roughly half the heart. "b. That the decedent suffered the actual attack at the time the pain reached its peak intensity which is approximately 2:00 p.m. according to the history given to Dr. Williams on November 1, 1975. The hospital records regarding this history have been stipulated into evidence. "c. After suffering a myocardial infarction at approximately 2:00 p.m. November 1, 1975, the decedent's continued employment activities, which, according to Delmar Bradway, consisted of driving a 1963 or 1964 F600 Ford truck, without power steering, and with a four speed manual transmission with clutch, from one scraper to another for approximately one and one half hours, and thereafter driving himself in an automobile to a hospital, a distance of approximately 35 miles, aggravated the existing, underlying myocardial infarction. The said aggravation consisted of exertion caused by the above activities which placed an unusual demand on the decedent's heart thereby causing further muscle damage to the heart, making the heart more susceptible to arrhythmia or anoxic fibrillation. The employment activities of the decedent after 2:00 p.m. November 1, 1975, and exertion caused by those activities reduced the decedent's chances of living. "d. That prompt first aid and medical attention as soon after the onset of attack as possible is the most important time for treatment of this kind of injury. Such treatment consists of immediate hospitalization, the administration of oxygen, medication, monitoring, and placing the patient in complete physical and emotional rest. "That based on the testimony of Drs. Fletcher and Williams the activities engaged in by the decedent after the onset of the symptoms of a myocardial infarction probably were a contributing factor in causing the onset of the arrhythmia that led to his death. "That although the strain of the activities engaged in by the claimant at the time of the onset of symptoms of the myocardial infarction may not have been unusual, the activities and the results of such activities and the resulting myocardial infarction were unusual." The foregoing findings of the Workers' Compensation Court demonstrate that the claimant, Violette Moen came to this Court backed by the Workers' Compensation Court in her claim that the continued work exertions required of her husband after the onset of his infarction, the strain to which he was put thereafter, and the driving of the automobile necessary to seek medical attention, were tangible happenings of a traumatic nature from an unexpected cause or unusual strain that resulted in internal physical harm. As a result therefrom he suffered death. Her case fits absolutely within the definition of an injury as set out in section 39-71-407, MCA. The majority opinion contains no effort to explain away or set aside the findings of fact of the Workers' Compensation Court as we have set,them forth above. In fact they could not be set aside, because findings of the Workers' Compensation Court enjoy the protection of Rule 52, Mont.R.Civ.P., and must stand unless clearly erroneous. When substantial evidence supports the findings of Workers' Compensation Court, the appellate court cannot overturn them. Dumont v. Wickens Bros. Const. Co. (1979), Mont. , 598 P.2d 1099, 1106, 36 St.Rep. 1471, 1480. We followed that rule recently in Stamatis v. Bechtel Power Co. (1979), Mont . , 601 P.2d 403, 36 St.Rep. 1866. I would affirm the Workers' Compensation Court in this case. F. Justice J , 7 1. n Justice | December 14, 1979 |
7c3f2aa4-7ad6-4c27-91a9-11e2339df0fb | STATE v McKENZIE | N/A | 13011 | Montana | Montana Supreme Court | N o . 13011 I N THE S U P R E M E COURT O F THE STATE O F MONTANA 1979 THE STATE OF MONTANA, P l a i n t i f f and Respondent, V S . DUNCAN PEDER McmNZIE, J R . , Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , Honorable R. J. Nelson, Judge presiding. Counsel of Record: For Appellant: Barney Reagan, Cut Bank, Montana Charles L. Jacobson argued, Conrad, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Chris Tweeten argued, A s s i s t a n t Attorney General, Helena, Montana Douglas Anderson, County Attorney, Conrad, Montana Submitted: October 29, 1979 Decided : OEC - 3 1979 Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. This is an appeal from an order of the District Court, the Honorable H. William Coder sitting without a jury, fixing compensation for the services of Barney Reagan, Esq., and Charles L . Jacobson, Esq., court-appointed attorneys for Duncan Peder McKenzie, Jr. Messrs, Reagan and Jacobson were appointed in this case as defense counsel for Duncan Peder McKenzie, Jr., an indigent. Following a jury trial, defendant was convicted of deliberate homicide and aggravated kidnapping and sentenced to death. The judgment and sentence were affirmed by this Court. On certiorari to the United States Supreme Court, the judgment of the Montana Supreme Court was vacated and the cause remanded to us for further consideration in light of Patterson v . New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L Ed 2d 281. Compensation for counsel's services following this remand is the subject of this appeal. Following remand we set the matter for briefing and reargu- ment limited to one issue, viz. the effect of the United States Supreme Court's ruling in Patterson. Our order dated November 25, 1977, stated in pertinent part: "The court . . . does not desire repetition of briefing and oral argument on the issues hereto- fore presented and unrelated to the remand by the United States Supreme Court." Notwithstanding this order, Messrs. Reagan and Jacobson submitted voluminous briefs covering many issues unrelated to Patterson. Although advised by the Chief Justice at the commence- ment of the hearing that the Court was interested in argument on the Patterson issue, defense counsel covered other issues as well in argument. On March 13, 1978, defense counsel filed claims totalling $2,103.10 for their services and expenses up to this point, This Court issued the second McKenzie opinion thereafter. State v . McKenzie (1978), Mont. , 581 P.2d 1205, 35 St. Rep. 759. Messrs. Reagan and Jacobsen prepared and filed a pe- tition for rehearing which we subsequently denied. In ~ u l y , 1978, defense counsel filed a claim totalling $1,496.43 for services and expenses in connection with the petition for rehearing. On December 31, 1977, counsel had submitted claims for their services and the expenses incurred incident to having this Court reconsider the case in light of Patterson. These claims totalled $8,145.82. The District Court approved payment in the amount of $3,000 ($1,500 to each counsel) on February 27, 1978. These claims were resubmitted by counsel on February 27, 1978, and they reflected the fact that $3,000 had been authorized by the Court. On October 17, 1978, counsel submitted claims totalling $299.50. These claims were for legal services performed and ex- penses incurred pursuant to preparation and submission of a peti- tion for stay of execution of judgment. On or about January 22, 1979, Mr. Reagan filed with the District Court a claim for reimbursement of fees and expenses in- curred incident to application for stay of execution to the Mon- tana Supreme Court and the attendant preparation and hearing be- fore the Sentence Review Board. These claims totalled $1,275.48. Subsequent to the hearing before the Sentence Review Board, Mr. Reagan on February 23, 1979, filed with the District Court his claim for reimbursement of fees and expenses incurred in seeking review, by appeal, of the Review Board's decision to the Montana Supreme Court. This claim amounted to $620.63. On February 2, 1979, this Court issued an order which dir- ected the district judge to hold an evidentiary hearing concern- ing these claims. The order further directed that the district judge issue findings of fact, conclusions of law and an order pur- suant to this hearing. - 3 - The hearing was held on February 27, 1979, and at that time counsel submitted an additional claim for fees and expenses in connection with their appearance for setting execution date and evidentiary hearing on payment of fees and expenses. These claims amounted to $244.97. The total of all of these claims minus the $3,000 already approved amounted to $11,185.93. The district j-adge in his order disapproved $10,711.96 and approved the remaining $47'3.97. The approved claims were for services and expenses incurred pursuant to resetting date of execution and the preparation of the petition for stay of execution of judgment ($264.00) and for an appearance for setting execution date ($209.97). The disapproved claims were as follows: (1) $5,145.82, which represented the fees and expenses incurred in rearguing the case in light of Patterson. (The orig- inal claim was for $8,145.82, of which $3,000 was approved pre- viously. ) (2) $2,103.10, which represented additional fees and ex- penses incurred rearguing the case in light of Patterson. This claim arose out of the hearing before this Court on March 13, 1978. (3) $1,496.43, which represented the fees and expenses in- curred for preparation and petitions for rehearing before this Court. (4) $35.50, which represented fees and expenses incurred resetting date of execution and preparation of the petition for stay of execution of judgment. ($264.00 of this claim was approved.) (5) $1,275.48 for fees and expenses incurred incident to application for stay of execution to the Montana Supreme Court and the attendant preparation and hearing before the Sentence Review Board. (6) $620.63 for fees and expenses incurred in seeking review of the Sentence Review Board's decision to this Court. (7) $35.00 for fees and expenses incurred for appear- ance for setting execution date and evidentiary hearing on pay- ment of fees and expenses ($209.97 of this claim was approved). The District Court wrote an opinion on this matter and made the following observation: "Needless to say, the Hearing shed little light on the substantive nature of the claims and didn't at all ameliorate the Court's concern regarding the validity of the claims." The District Court also stated: " . . . I am not persuaded that it required $8,000.00 worth of judicial time and research to create Patterson, and on the basis of what has been supplied to me regarding counsel's efforts, I cannot conscien- tionaly reimburse them $8,145.82 for reading, brief- ing it and arguing its application to McKenzie." The District Court expressed the opinion that the $3,000 paid to counsel for the reconsideration of ~ c ~ e n z i e was adequate. The District Court was also concerned that notice had not been given prior to the performing of the additional services. It was noted in the opinion that most of the claims related to actions taken by defense counsel which were beyond the scope of the orders issued by this Court, i.e. beyond the scope of the Patterson issue. The District Court felt that many of the additional services which defense counsel performed were not constitutionally required. That fact, plus the fact that counsel had not given the ~istrict Court notice that these services were going to be performed, promp- ted the District Court to hold that the State should not pay for these services. The only issue presented on this appeal is whether the District Court erred in denying court-appointed counsel certain fees and reimbursement for expenses in this cause. The pertinent statute involved in this issue is section 46-8-201 (1) , MCA: "Remuneration of appointed counsel. Whenever in a criminal proceeding an attorney represents or defends any person by order of the court on the ground that the person is financially unable to employ counsel, the attorney shall be paid for his services such sum as a district court or justice of the state supreme court certifies to be a reasonable compensation therefor and shall be reimbursed for reasonable costs incurred in the criminal proceeding." The language of this statute clearly indicates that the appro- priate court has a discretionary duty to determine "reasonable compensation." The District Court's opinion states: "By any criteria, the $3,000 paid to counsel for the 'reconsiderationt of McKenzie which was mandated by the United States Supreme Court was, I submit, more than adequate under the circumstances." The facts of this case do not warrant the application of constitutional principles concerning a state's duty to appoint counsel in certain situations. In the instant case counsel has already presented the defense. The question is: How much should the state pay for these services? The approach that this Court will use in deciding questions of this type was set forth in State v . Allies (1979), Mont . I 597 P.2d 64, 36 St.Rep. 820. In Allies court-appointed attorneys were limited to $2,000 for their efforts and expenses involved in an appeal of a homicide conviction. The attorneys appealed this monetary limit alleging that it was unreasonable and an abuse of discretion. This Court found that the District Court was perform- ing a discretionary function and it would not be overturned ab- sent a showing of an abuse of discretion, " . . . in striking a balance between the age-old responsibility of providing gratuitous service to indigent defendants and the increasing burdens placed on the bar by expanded indigent rights, much discretion must be left in the trial judge." 597 P.2d at 66, 36 St.Rep. at 822. This Court went on to hold that the $2,000 limit was not an abuse of discretion. In the present case defense counsel was awarded $3,000 for an appeal that was limited by court order to one issue; i.e. Patterson. This Court stated in an order to counsel dated Novem- ber 25, 1977: "The Court . . . does not desire repetition of briefing and oral argument on the issues hereto- fore presented and unrelated to the remand by the United States Supreme Court." It was not an abuse of discretion for the District Court to limit payments for a one issue appeal to $3,000. Similarly, it was not an abuse of discretion for the ~istrict Court to limit the additional expenses to an amount less than that asked for by counsel. As was emphasized above, this is a matter which must be left to the District Court judge. We do not, under these facts, find an abuse of discretion. Affirmed. .............................. Chief Justice Hon. W . W . Lessle Judge, sitting in J on the Court. | December 3, 1979 |
c661c8f9-313a-4b6a-8f56-b66670d5bb65 | STATE EX REL POPHAM v HAMILTON CI | N/A | 14903 | Montana | Montana Supreme Court | No. 1 4 9 0 3 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 7 9 STATE O F MONTANA, ex rel., JACK E . POPHAM, R e l a t o r , HAMILTON C I T Y COUNCIL, and HAMILTON BOARD OF ADJUSTMENT, R e s p o n d e n t s . A p p e a l f r o m : D i s t r i c t C o u r t of t h e Fourth J u d i c i a l D i s t r i c t , H o n o r a b l e Jack L . G r e e n , Judge presiding. C o u n s e l of R e c o r d : For R e l a t o r : Jeffrey H. L a n g t o n argued, H a m i l t o n , M o n t a n a For R e s p o n d e n t s : K o c h and M c K e n n a , H a m i l t o n , M o n t a n a D. W. M c K e n n a argued, H a m i l t o n , M o n t a n a S u b m i t t e d : D e c e m b e r 11, 1 9 7 9 D e c i d e d : 3EC 2 1 1979 F i l e d : : , / C l e r k M r . Chief Justice Frank I . Haswell delivered the Opinion of the Court. Relator, Jack E. Popham, petitioned for a writ of man- damus in the District Court. The presiding judge issued an alternative writ of mandamus ordering respondents to comply with the demands of the petition or show cause why they should not do so. At the show cause hearing the respondents, Hamilton City Council (City) moved the court to dismiss. The court granted the motion to dismiss. Relator appeals from the order of dis- missal. In 1974 the City adopted Hamilton City Ordinance No. 411 (Ordinance). This Ordinance established certain zoning districts, regulations and restrictions, and created the respon- dent Hamilton Board of Adjustment. The relator is a property holder and a resident of the City. On December 18, 1978, the owners of certain property loca- ted within the boundary of the City opened a child care center under the name of "Sunshine Child Care Center." At this time the block where the child care center was located was zoned "C-l", "Central Business District." On December 18, 1978, relator petitioned the respondents to enforce the ordinance by directing the city attorney to enjoin the violation which was allegedly caused by the child care center being located in a C-1 area. At this time respondents summarily approved the child care center. On February 19, 1979, the City rezoned the block where the child care center was located from "C-1" to "RS" "Single Family Residential District." On March 19, 1979, the City was again tendered a petition demanding that they deal with the child care center in conformance with applicable state law and the Ordinance. The City summarily dismissed the petition. As a result of the foregoing, the relator petitioned the District Court for a writ of mandamus. The petition prayed that the District Court issue an alternative writ of mandamus directing the City to rescind its approval of the child care center, require the owners of the center to submit a variance permit or conditional use permit application, meet and vote on the recommendation at a regular, public meeting of the City Council, or to show cause why respondent should not comply with said writ. At the show cause hearing the City moved that the petition be dismissed on the grounds that the City was under no clear legal duty. The City alleged that the application of the Ordinance re- quired an exercise of discretion and that the writ was therefore improperly before the District Court. The District Court granted this motion because the Ordinance was " . . . loosely enough drawn that it gives the Council some discretion . . ." The only issue we find necessary to discuss is whether the remedy of mandamus is proper in this case. The issuance of a writ of mandamus is controlled by stat- ute. Section 27-26-102, MCA, sets out the circumstances under which this writ may issue. This statute provides: "(1)It may be issued by the supreme court or the district court or any judge of the district court to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully pre- cluded by such inferior tribunal, corporation, board, or person. " (2) The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law." In the instant case the City approved the child care center in a C-1 area. After the area was rezoned as "RS" (Single Family Residential District) the use was automatically permitted under a nonconforming use provision of the Ordinance. This provision states, in part: "A lawful use of land on the effective date of these regulations or its amendment which is made no longer permissible by the terms of these regulations or its amendment may be contin- ued if it remains otherwise lawful . . ." Therefore, if the child care center was properly approved under a "C-1" designation, then the center would be a lawful use under the "RS" designation. (We make no decision at this time whether the initial approval of the day care center by the City was proper under the Ordinance.) In Montana, a writ of mandate will not lie to correct or undo an action already taken. Melton v . Oleson (1974), 165 Mont. 424, 432, 530 P.2d 466, 470. This Court has had occasion to make the following observation concerning this writ: "It is axiomatic that an action already done may not be undone by mandamus. It lies only to compel the performance of an act, section 93- 9102, R . C . M . 1947, not to correct errors. 'The writ of mandamus is used to stimulate action pursuant to some legal duty and not to cause the respondent to undo action already taken, or to correct or revise such action, however erroneous, it may have been.'" (Citations omitted.) State ex rel. Thompson v . Babcock (1966), 147 Mont. 46 at 50, 409 P.2d 808 at 810. In the instant case the City has acted. They summarily approved the day care center as a permissible use. Whether this was an erroneous decision or whether it was accomplished through an erroneous procedure are past and completed acts not reviewable by a writ of mandate. As a result, this case was improperly brought on a writ of mandate. The District Court was correct in granting the City's motion to dismiss. Af firmed. Chief Justice Mr. Justice Daniel J. Shea concurs: I agree with the majority opinion that a writ of mandate was not the proper method by which to challenge the legality of the action taken by the City of Hamilton. I believe, however, that pursuant to section 76-2-327, MCA, the plaintiff here has a remedy by which to challenge the action taken by the City of Hamilton. The remedy is by writ of review or certiorari, and I believe it may still be available to the plaintiff. ........................... Justice | December 21, 1979 |
3de4b2cd-1b50-478e-8772-9b91b5f33d4c | HOFFMAN v BYRNE | N/A | 14770 | Montana | Montana Supreme Court | No. 14770 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 DONALD J. HOFFMAN and DONNA M. HOFFMAN, Plaintiffs and Appellants, VS . PATRICK A . BYRNE and ROBERTA R. BYRNE, Defendants and Respondents. ORIGINAL PROCEEDING : Counsel of Record: For Appellants: Keller, Reynolds, Drake, Sternhagen & Johnson, Helena, Montana Hood and Sherwood, Missoula, Montana Mike Sherwood argued, Missoula, Montana Morales, Volinkaty and Harr, Missoula, Montana 1 . - /* , [ / - a ..-- .. / For Respondents: Milodragovich, Dale & Dye, Missoula, Montana Harold Dye argued, Missoula, Montana Submitted: November 6, 1979 ~ecided: D E G 3 1 1979 Cje;[l Q 7 *A- Filed: , /~'7$j Mr. Justice John C. Sheehy delivered the Opinion of the Court. Appeal is by plaintiffs Donald J. Hoffman and Donna Hoffman from a grant of summary judgment against them by the District Court, Fourth Judicial District, Missoula County. They had brought action in that court against defendants Patrick A. Byrne and RobertaR. Byrne for a declaratory judg- ment that plaintiffs were not in default with respect to a contract to purchase real estate from the defendants. The District Court decided against the Hoffmans as purchasers, granted summary judgment to the Byrnes, and later ordered by writ of restitution that the Hoffmans surrender the real property to the Byrnes. The appeal followed. In separating the facts of the case, it is easier to separate the incidents by dates as follows: October -- 23, 1974: Patrick A. Byrne and RobertaR. Byrne, as sellers entered into a contract for deed with Donald J. Hoffman and Donna M. Hoffman, as buyers, for certain real property located in Missoula County. The contract provided for an escrow to which payments were to be made this being the Southside National Bank of Missoula at the time that is pertinent here. The contract also provided that the escrow holder was to deduct from each monthly payment made by the Hoffmans a sum sufficient to pay a mortgage remaining due on the property on the interest of the sellers, Byrnes. December -- 6, 1977: On this date the Byrnes sent a letter by certified mail to the Hoffman~ alleging a default in that judgment had been taken against them by Budget Finance in Flathead County for $4,223.81 and the Sheriff of Missoula County had filed and served a notice of levy of execution on the interest of the Hoffmans in the real property being purchased. This contract for deed required a 30-day written notice, the time apparently to run from the receipt of the written notice by the buyers. The provision of the contract on which the sellers relied as a default provides: -2- "The buyer agrees to keep all of the property covered hereby free from any lien, mortgage or encumbrance which may be or become superior to the lien of the Sellers' title, without the prior written permission of the sellers.. . ." December - 21, - - 1977: Donald Hoffman signed the certified mail receipt, acknowledging receipt of the letter of December January - 11, -- 1978: The sellers Byrnes closed the escrow account of the Southside National Bank, and obtained the escrow papers which have been deposited therein. One of these was a quitclaim deed to the subject property from the buyers to the sellers which the'sellers filed and recorded on that date. January -- 12, 1978: Donald Hoffman filed a petition for bankruptcy. January -- 20, 1978: The buyers filed a petition for declaratory judgment against the sellers. In general, the allegations are that Donna Hoffman never received a notice of default in respect to the property; that in any event no default existed. The prayer was that the court declare that the defendants were not entitled to default by reason of the notice dated December 6, 1977 and to restrain the sellers from otherwise selling or transferring or encumbering the subject property. January - 24, -- 1978: Hugh Kidder, on behalf of Donna Hoffman, tendered to Southside National Bank, and then to Gary Chumrau, counsel for the bank, such sums as might then be due upon the contract. March -- 24, 1978: Judgment in the declaratory judgment action by the buyers was entered against the sellers on sellers' default. June 26, 1978: The default judgment against the sellers --- was set aside by stipulation. The sellers filed their answer to the petition for declaratory judgment on that date. The answer alleged essentially: The sellers admit they sent the notice of default on December 6, 1977, but deny any knowledge of whether or not it was received by Donald Hoffman. The sellers admit that they have demanded and received the escrow papers from Southside National Bank of Missoula. Jul 31, 1978: The bankruptcy petition by Donald J. 2-- Hoffman was dismissed. August 16, 1978: On this date a second letter addressed -- to the Hoffman~ was sent by the attorneys for the Byrnes setting out several alleged defaults and demanding cure of the same within 30 days. September -- 27, 1978: The sellers, through their attorneys, sent out a request for admissions to each of the buyers, asking in essence that they admit that they had received a second notice of default, that they had not made payments in connection with the same, except for a letter dated September 19, 1978 from Richard Volinkaty, one of the attorneys for the husband, in which letter Volinkaty agreed on behalf of Hoffman to pay the amounts now due on the contract, provided that the sellers also pay the sum of $10,000 for damages. December -- 13, 1978: Sellers moved for summary judgment against buyers. December -- 13, 1978: Affidavit of John Peterson, Vice President of Southside National Bank of Missoula was filed in which he indicated that "since January 13, 1978" no offer of payments have been made to him in connection with the escrow. Also filed on this date was the affidavit of one of the sellers, Patrick Byrne, stating that since January 13, 1978, no tender of payment has been made. December -- 21, 1978: The deposition of Patrick Byrne was taken. He testified that he still had the escrow papers, that he has never authorized Southside National Bank, since January 11, 1978 to accept payments, and that he has continued to make the mortgage payments and tax reserve payments in connection with the property concerned. During that period of time the property has continued to be occupied by the buyers. January -- 3, 1979: Donna Hoffman filed her responses to the request for admissions, admitting receiving the second notice of August 16, 1978. February -- 22, 1979: The Court granted sellers' motion for summary judgment against the defendants. February -- 26, 1979: The sellers made a motion for writ of restitution. March -- 1, 1979: The court denied the motion for a stay order. April -- 12, 1979: The court granted a writ of restitution but stayed the effect of the order pending appeal. Subsequently this Court stayed any further action of the court below until this appeal has been decided. The issues as framed by the parties are these: 1. Whether the District Court erred in granting summary judgment because material questions of fact exist. 2. Whether the District Court erred in granting summary judgment by construing the declaratory judgment as a request for relief from forfeiture. 3 . Whether the District Court erred in granting a writ of restitution. The first notice of default was defective. The clause in the contract of purchase relied upon by the sellers makes the filing of a lien a cause for default only if it affects the sellers' title. The lien of a judgment creditor against the buyer in this case would affect only the interest of the buyer in the property, and not the sellers' title. Therefore the original default notice was without basis. However, based on the notice of default of December 6, 1977, and within 30 days of the receipt of that written notice -5- by Donald Hoffman (Donna, the wife, did not receive the notice), the sellers on January 11, 1979, closed out the escrow, and recorded the quitclaim deed against the buyers which had been filed as a part of the escrow papers. The pleadings in the declaratory judgment action relate only to the situation as it existed on January 20, 1978, the date of the filing of the petition for declaratory judgment. The court without any further pleadings, but based only upon requests for admissions on matters that occurred after the case was at issue, granted summary judgment in favor of the sellers. Thus the court went outside the pleadings, because as far as the pleadings are concerned, the court should have declared and determined that the original notice of default was defective, that the defendants were not in default and perhaps have given such additional relief as might be necessary to restore the parties to their status quo. At the time of the hearing on the writ of restitution, on April 12, 1979, the buyers did in fact through their attorneys tender a cashier's check,the sum of $7,408, which they had calculated to be the amount that would make the sellers whole on that date. Nevertheless, the court refused to accept this tender and went ahead and issued the writ of restitution. The proper result in this case is to set aside the findings and conclusions and summary judgment and we return the matter to the District Court for further proceedings ordering: (1) that the court require the parties to determine the amounts necessary to bring the contract current; (2) that the buyers and sellers restore escrow arrangements and documents; ( 3 ) that the buyers be given a reasonable time to cure any defaults properly a ground for forfeiture of the contract; and, -6- ( 4 ) thereupon if the defaults are cured, restore the contract for deed as in full force and effect; otherwise declare a forfeiture. (5) As we see no present merit in buyers' claim for tort damages, we reserve our opinion on that point, and leave it to the District Court for any further decision. We realize we have not pointed to a single authority in this Opinion. It is enough to say the situation is novel. This cause is remanded for further proceedings in accordance with this Opinion. - -\, i- -aLL 6 ' -- + b b ' - - ----- ----- Justice '7 We Concur: Chief Justice Justices | December 31, 1979 |
104abcc5-decf-4380-9674-0851ef6fd7d6 | BAILEY v BAILEY | N/A | 14766 | Montana | Montana Supreme Court | No. 14766 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 ROSALIND BAILEY, Plaintiff and Respondent, VS . LEE R. BAILEY, Respondent and Appellant. Appeal from: District Court of the Eighth Judicial District, Honorable H. William Coder, Judge presiding. Counsel of Record: For Appellant: Hartelius and Associates, Great Falls, Montana Michael S. Smartt argued, Great Falls, Montana For Respondent: Camerson Ferguson argued, Great Falls, Montana Submitted: November 8, 1979 Decided: - 3 1979 9- - - I =, a 9 ~ Filed: " Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. This appeal is from a final decree of dissolution of marriage entered in Cascade County District Court. The husband assigns error to those parts of the trial court's findings, con- clusions and decree which pertain to marital property, child custody and support, and attorney fees. We turn first to the division of the marital estate. The property to be divided consisted of the family home, the parties' respective savings accounts, the husband's retirement fund and other property. In dividing the marital estate, the District Court is required to consider: " . . . the duration of the marriage and prior marriage of either party; antenuptial agreement of the parties; the age, health, station, occu- pation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provi- sions; whether the apportionment is in lieu of or in addition to maintenance; and the opportun- ity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit, . . ." Section 40-4-202, MCA. It is apparent from the court's decision that it carefully consid- ered the above criteria. The following finding is fully supported by the evidence: "[Respondent], in view of her employment as a nurses aide and lack of opportunity for advancement, the amount of her average monthly living expenses, her age and her position in life, has limited opportun- ity for future acquisition of capital assets and greater income. She has a need of suitable housing. [Appellant], on the other hand, has a much greater income and a greater opportunity for future acquis- ition of capital assets and greater income. [Appel- lant] also has substantial accrued retirement bene- fits, which he can obtain upon leaving the civil service. [Respondent] therefore should be entitled to have the house to enable her to continue in a standard of living she has enjoyed during the parties' marriage. [Appellant], with his greater income, can purchase new suitable housing." (Bracketed identifi- cation paraphrased.) In addition to the house, respondent received the household furnishings and her savings account. Appellant received the rest of the property. In terms of the total value of the es- tate, respondent received about 2/3 and appellant 1/3. We have no argument with appellant's assertion that in some cases a 50-50 split of the property is desirable, Eschen- burg v . Eschenburg (1976), 171 Mont. 247, 251, 557 P.2d 1014. However, a division which favors one party over the other may be acceptable if there is a reason for it. See e . g . LaPlant v . LaPlant (1976), 170 Mont. 155, 158, 551 P.2d 1014. As we have said in numerous opinions, the trial court's division of the marital estate will not be disturbed absent a showing that it abused its discretion. Grenfell v. Grenfell (1979), Mont . , 596 P.2d 205, 36 St.Rep. 1100, 1103; Porter v . Porter (1970), 155 Mont. 451, 473 P.2d 538, 541. Here, the emphasis placed on the parties' needs and their relative financial situations indi- cates a careful exercise of the court's discretion. Appellant argues that an in-chambers interview of the children concerning their desires on custody was conducted improper- ly. We have found no support for his contention that reversible error occurred because the court reporter failed to include the children's namcsin the record of the interview. Likewise, there is no basis for his contention that the parties' oldest son, who had reached majority, should not have been present. There was no request for his exclusion and no objection to his inclusion. The issue cannot be raised for the first time on appeal. In the Matter of T.Y.K. (1979), Mont . , 598 P.2d 593, 36 St.Rep. 1460, 1464. Appellant further contends the trial judge did not inquire whether the children had been "coached" before the interview by someone sympathetic to the wife. The record reveals that upon being asked, one of the children said any conversation which took place was among themselves. Apparently satisfied that undue influence had not been exerted over the children, the judge did not pursue the matter further. The credibility of the declarant and the effect of his statement was for the judge to determine. See Voyta v . Clonts (1958), 134 Mont. 156, 328 P.2d 655. Finally, there is no substance to appellant's argument that the court erred in asking the youngest child leading ques- tions. Leading questions may be asked if necessary to develop testimony, Rule 611(c), Mont.R.Evid., and whether or not they will be allowed is a matter for the trial court's discretion. See Commission Comment to Rule 611(c) One of the well known exceptions to the general provision against leading questions is when the witness is a child. Advisory Committee's Note to Federal Rule 611(c), (1972), 56 F.R.D. 183, 275. Here, where counsel noted at oral argument that the youngest child was rather withdrawn, the asking of leading questions is not an abuse of discretion. The award of custody and child support is a matter for the trial court's discretion. Brown v. Brown (1978), Mont . , 587 P.2d 361, 35 St.Rep. 1733- In this case, the only child whose custody is now in controversy said it would be "O.K." if he lived with his mother. There is no abuse of discretion. We finally turn to the trial court's award to the wife of attorney fees of $350. "Traditionally, a showing of necessity has been a condition precedent to the exercise of the court's discretion to award attorney fees. Whitman v . Whitman (1974), 164 Mont. 124, 519 P-2d 966, But the lower court's discretion in the matter will not be disturbed if substantial evidence is found in the record to support the award." Kaasa v. Kaasa (1979), Mont. , 591 P.2d 1110, 36 St.Rep. 425, 430. Here, the trial court was well aware of the parties' financial situations. It did not abuse its discretion in making an award of reasonable attorney fees, based on necessity. Houtchens v . Houtchens (1979), Mont . , 592 P.2d 158, 36 St.Rep. 501, 505- An award of $350 in attorney fees in a contested marital dissolution involving property division, child custody and support is manifestly a nominal fee. As such, there is no requirement that the amount of the fee be supported by evidence. Solie v. Solie (1977), 172 Mont. 132, 561 P.2d 443. Affirmed. Chief Justice We concur: / - 2 G d - - Ju tices 3 | December 3, 1979 |
ae730b19-096b-4f71-b74c-febfa5769c01 | RICKETT v DOZE | N/A | 14882 | Montana | Montana Supreme Court | No. 14882 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 EDWARD R . RICKETT and LORRAINE A. RICKETT, husband and wife, Plaintiffs and Respondents, VS. KENNETH M . DOZE et al., Defendants and Appellants. Appeal from: District Court of the Thirteenth Judicial District, Honorable C. B. Sande, Judge presiding. Counsel of Record: For Appellants: Beiswanger and Jarussi, Billings, Montana Gary L. Beiswanger argued, Billings, Montana For Respondents: Joseph P. Hennessey argued, Billings, Montana Submitted: November 6, 1979 Decided : Filed: 3Fp 7 M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e Court. Respondents i n i t i a t e d t h i s a c t i o n i n D i s t r i c t Court, t h e Thirteenth J u d i c i a l D i s t r i c t , S t i l l w a t e r County, t h e Honorable C. B. Sande presiding. Respondents brought t h e a c t i o n t o enforce a c o n t r a c t entered i n t o with a p p e l l a n t s . ~ p p e l l a n t s appeal t h e judgment of t h e D i s t r i c t Court entered i n June 1979 awarding respondents $25,000.00 on t h e c o n t r a c t , $4,452.60 i n i n t e r e s t , and $5,330.23 i n a t t o r n e y f e e s . O n March 26, 1973, a p p e l l a n t s Kenneth and Virginia Doze, a s sellers, and respondent Edward R i c k e t t , a s buyer, entered i n t o a c o n t r a c t f o r deed. The deed covered some 344 a c r e s of r e a l property located i n S t i l l w a t e r County, Montana. The purchase p r i c e of t h e property was $330,000. The con- t r a c t provided f o r a down payment of $75,000. O f t h i s amount, $25,000 w a s paid on t h e execution on t h e c o n t r a c t with t h e remaining $50,000 together with i n t e r e s t a t 6 percent t o be paid on o r before March 15, 1974. The f i r s t annual i n s t a l l m e n t under t h e c o n t r a c t was a l s o due on March 15, 1974. The 1973 c o n t r a c t c a l l e d f o r t h e Dozes t o execute a warranty deed conveying t h e property t o R i c k e t t i n f e e simple f r e e of a l l l i e n s and encumbrances. The c o n t r a c t a l s o provided t h a t R i c k e t t would be e n t i t l e d t o a p a r t i a l deed r e l e a s e of t e n o r more a c r e s of t h e land when ~ i c k e t t had paid t h e Dozes enough on t h e t o t a l purchase p r i c e t o e s t a b l i s h a r e l a t i o n s h i p of $1000 paid f o r each a c r e t o be released. R i c k e t t took possession of t h e property under t h e t e r m s of t h e c o n t r a c t . H e d i d n o t , however, make any of t h e f u r t h e r payments c a l l e d f o r i n t h e c o n t r a c t . O n March 22, 1974, t h e Dozes s e n t R i c k e t t a n o t i c e of d e f a u l t . R i c k e t t f a i l e d t o c u r e t h e d e f a u l t w i t h i n t h e thirty-day p e r i o d provided i n t h e c o n t r a c t . Consequently, t h e Dozes e x e r c i s e d t h e i r a c c e l e r a t i o n o p t i o n and d e c l a r e d t h e e n t i r e outstanding balance of t h e c o n t r a c t w i t h accrued i n t e r e s t immediately due. I n a letter d a t e d A p r i l 25, 1974, and served on R i c k e t t i n May 1974, t h e Dozes n o t i f i e d R i c k e t t of t h e d e f a u l t and termination. The n o t i c e provided t h a t i f t h e e n t i r e amount owing was n o t paid w i t h i n 60 days, t h e Dozes would c o n s i d e r t h e c o n t r a c t terminated and r e t a k e possession of t h e property. R i c k e t t d i d n o t pay t h e amount owing. On A p r i l 19, 1974, R i c k e t t s e n t t h e Dozes a letter demanding t h e p a r t i a l r e l e a s e c a l l e d f o r i n t h e c o n t r a c t . The Dozes d i d n o t respond. On June 26, 1974, R i c k e t t s e n t t h e Dozes a n o t i c e of d e f a u l t f o r f a i l u r e t o comply w i t h t h e deed r e l e a s e p r o v i s i o n s of t h e c o n t r a c t . The Dozes con- tinued t o i g n o r e R i c k e t t ' s r e q u e s t f o r t h e deed r e l e a s e . The Dozes contend they d i d n o t execute t h e r e l e a s e because of R i c k e t t ' s d e f a u l t . R i c k e t t contends t h e r e l e a s e s w e r e n o t executed because of a mortgage on t h e p r o p e r t y prevent- i n g t h e Dozes from passing c l e a r t i t l e t o t h e property. The F i r s t C i t i z e n s Bank of B i l l i n g s d i d hold a $60,000 mortgage on t h e property. A f t e r t h i s p e r i o d of r e c i p r o c a l n o t i c e s and demands, t h e p a r t i e s e n t e r e d i n t o n e g o t i a t i o n s t o r e s o l v e t h e i r d i f f e r e n c e s . On August 1, 1974, R i c k e t t and h i s wife, respondent Lorraine R i c k e t t , and t h e Dozes executed a new c o n t r a c t f o r t h e s a m e property. Under t h e new c o n t r a c t , t h e Dozes agreed t o pay t h e R i c k e t t s 25 p e r c e n t of any f u t u r e s a l e s of t h e p r o p e r t y n o t t o exceed $25,000. I n r e t u r n R i c k e t t agreed t o (1) waive any r i g h t s he had i n t h e former c o n t r a c t f o r deed, (2) d e l i v e r immediate possession of t h e p r o p e r t y t o t h e Dozes, (3) pay $530.50 f o r p a s t due i n v o i c e s f o r insurance premiums, h o r s e s and s a d d l e s , ( 4 ) pay $500 i n damages, and (5) w a r r a n t t h a t a l l l i e n s on t h e p r o p e r t y c r e a t e d by R i c k e t t would be removed w i t h i n t h i r t y days of t h e agreement. The Dozes had s o l d a l l t h e land involved by January 1978. They r e f u s e d , however, t o pay t h e R i c k e t t s t h e $25,000 as provided i n t h e agreement of August 1, 1974. The R i c k e t t s i n i t i a t e d t h i s a c t i o n t o e n f o r c e t h e 1974 c o n t r a c t . A nonjury t r i a l was h e l d on May 22, 1979. From a judgment i n favor of t h e R i c k e t t s , t h e Dozes appeal. The s o l e i s s u e on appeal i s whether t h e 1974 c o n t r a c t w a s supported by c o n s i d e r a t i o n . This c a s e i n v o l v e s t h e a p p l i c a t i o n of one of two b a s i c r u l e s of c o n t r a c t law. I t i s hornbook law t h a t a promise t o perform a n e x i s t i n g l e g a l o b l i g a t i o n does n o t c o n s t i t u t e c o n s i d e r a t i o n f o r a c o n t r a c t . 17 Am.Jur.2d C o n t r a c t s 8119, a t 465; Heckman and S h e l l v. Wilson (1971), 158 Mont. 47, 59, 487 P.2d 1 1 4 1 , 1147. I t i s e q u a l l y w e l l - e s t a b l i s h e d t h a t t h e relinquishment of a l e g a l o r c o n t r a c t r i g h t i s s u f f i c i e n t c o n s i d e r a t i o n t o support a c o n t r a c t . 17 Am.Jur.2d C o n t r a c t s 9109, a t 455; Sunburst O i l and Gas Company v. N e v i l l e (1927), 79 Mont. 550, 564, 257 P. 1016, 1020. To r e s o l v e t h e problem i n t h e c a s e a t b a r , w e must determine which of t h e above r u l e s apply. I f t h e 1974 c o n t r a c t merely r e q u i r e d R i c k e t t t o perform h i s o b l i g a t i o n s under t h e 1973 c o n t r a c t , t h e second c o n t r a c t i s void f o r l a c k of c o n s i d e r a t i o n . I f , however, R i c k e t t r e l i n q u i s h e d some c o n t r a c t u a l r i g h t s when he and h i s w i f e e n t e r e d i n t o t h e second c o n t r a c t , t h e waiver c o n s t i t u t e d c o n s i d e r a t i o n f o r t h e 1974 agreement. The 1974 c o n t r a c t would thus be enforceable. Looking t o t h e f a c t s , R i c k e t t i n i t i a l l y v i o l a t e d t h e terms of t h e 1973 c o n t r a c t by f a i l i n g t o pay t h e balance of t h e down payment o r t h e f i r s t annual payment when due on March 15, 1974. The Dozes took appropriate s t e p s under t h e d e f a u l t provisions of t h e f i r s t c o n t r a c t t o terminate R i c k e t t ' s r i g h t s under t h e c o n t r a c t . R i c k e t t received f i n a l n o t i c e of t h e d e f a u l t i n May 1974. H i s r i g h t s under t h e c o n t r a c t terminated 6 0 days l a t e r . Meanwhile, on A p r i l 19, 1974, R i c k e t t requested t h e Dozes t o execute a p a r t i a l deed a s required by t h e 1973 c o n t r a c t . The Dozes, f o r whatever reason, f a i l e d t o execute t h e deed r e l e a s e . This p u t t h e Dozes i n d e f a u l t under t h e t e r m s of t h e f i r s t c o n t r a c t . Thus, on August 1, 1974, when t h e p a r t i e s executed t h e second c o n t r a c t , both had defaulted on t h e f i r s t . I n para- graph 6 of t h e 1974 c o n t r a c t , t h e R i c k e t t s and t h e Dozes agree t h a t : ". . . t h e p a r t i e s h e r e t o and each of them do hereby mutually r e l e a s e and discharge t h e o t h e r p a r t y , t h e i r h e i r s , executors, a d m i n i s t r a t o r s , and assigns, from any and a l l l i a b i l i t y and damages whatsoever, i n any way, r e l a t e d t o s a i d c o n t r a c t f o r deed dated March 15, 1973 . . ." Under t h i s c l a u s e of t h e second c o n t r a c t , t h e Dozes agreed n o t t o hold R i c k e t t l i a b l e f o r h i s breach of t h e 1973 con- t r a c t . The c l a u s e a l s o p r o h i b i t s R i c k e t t from suing t h e Dozes f o r damages f o r n o t r e l e a s i n g a p o r t i o n of t h e con- t r a c t property. Both p a r t i e s relinquished l e g a l r i g h t s i n executing t h e 1974 c o n t r a c t . Under t h e second r u l e set o u t above, both p a r t i e s gave consideration f o r t h e second con- t r a c t . The D i s t r i c t Court, t h e r e f o r e , acted properly i n enforcing t h e c o n t r a c t . Affirmed. W e concur: a ' , ~ d P c ~ , ~ CQief J u s t i c e / P -\ C ' f ~ i p - 4; > L ~ A - ~ Jbstices / Mr. Justice Daniel J. Shea concurring: I would affirm the judgment--there was a valid con- sideration for the second contract. What bothers me, however, is the fact that defendants asserted in District Court and before this Court that the second contract was not supported by a valid consideration. Defendants' counsel was involved in the drafting, or at least in advising his clients con- cerning the execution of both the first and the second contract. Did the defendants and their counsel believe even before the second contract was signed that it was not supported by a valid consideration and thus that plaintiffs in fact could not enforce the contract against the defendants? Or, did the defendants and their counsel, when faced with plaintiffs' attempted enforcement of the second contract, suddenly arrive at the no consideration defense in a last ditch attempt to avoid enforcement? We have a situation here where I assume counsel advised his clients to sign the second contract. The assumption would be, of course, that the defendants believed they were signing a legally enforceable contract. But when the plain- tiffs sought enforcement against the defendants, an attempt behind is made to hiddthe defense of no consideration. This is a rather strange set of circumstances to be asserting that defense. | December 5, 1979 |
dd9d5f07-ef48-4ab5-adfe-187a0f49a340 | State v. E.M.R. | 2013 MT 3 | DA 11-0627 | Montana | Montana Supreme Court | DA 11-0627 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 3 STATE OF MONTANA, Plaintiff and Appellee, v. E.M.R., Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DJ 2011-15 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellant: Nancy G. Schwartz; NG Schwartz Law, PLLC; Billings, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant Attorney General; Helena, Montana Leo Gallagher, Lewis and Clark County Attorney; Katie Jerstad, Melissa Broch, Deputy County Attorneys; Helena, Montana Submitted on Briefs: November 14, 2012 Decided: January 8, 2013 Filed: __________________________________________ Clerk January 8 2013 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 After a four-day trial in August 2011, a Lewis and Clark County jury found that E.M.R., a youth under the age of eighteen, had committed five misdemeanor offenses of “dog at large,” in violation of County Ordinance # 4-2006-13, and one felony offense of aggravated animal cruelty, in violation of § 45-8-217(2), MCA. E.M.R. appeals from the dispositional order entered by the First Judicial District Youth Court. We affirm in part, reverse in part and remand for further proceedings. ¶2 We address the following issues on appeal: ¶3 1. Did the Youth Court abuse its discretion when it instructed a deadlocked jury on the legislative purpose of the Youth Court Act by reading the jury § 41-5-102, MCA? ¶4 2. Did the Youth Court err by denying E.M.R.’s motion to dismiss the five “dog at large” offenses based on an erroneous statutory reference in the amended charging documents? PROCEDURAL AND FACTUAL BACKGROUND ¶5 E.M.R. grew up in the Scratchgravel Hills near Helena, Montana, with her mother and father. E.M.R.’s mother was a hoarder who, in addition to collecting large amounts of “junk,” collected animals, including numerous goats, dogs, horses, and cats. In November 2010, when E.M.R. was seventeen years old, her mother died. Although E.M.R. was living in Carter, Montana, at the time, her father told Sue Cecrle, an animal control officer for Lewis and Clark County, that the animals belonged to E.M.R. and that she was responsible for them. E.M.R. asked her father, who was in his mid-seventies, to 3 feed and water the animals when she was out of town and her father testified that he did so “twice a day every day.” ¶6 Despite that arrangement, neighbors grew concerned about the welfare of E.M.R.’s animals and they reported those concerns to law enforcement. Cecrle responded by visiting the property and speaking with E.M.R.’s father about either taking better care of the animals or finding them new homes. E.M.R. and her father agreed to surrender seven dogs and four goats and to work on finding suitable homes for many of the remaining animals. ¶7 Neighbors continued to voice their concerns to animal control that E.M.R.’s father physically was not able to feed and water the remaining animals, especially when the weather turned cold and icy. In December of 2010, Cecrle returned to the property with a veterinarian to evaluate the condition of the horses. Cecrle and the veterinarian informed E.M.R. that she needed to keep water and hay in front of the horses at all times, de-worm them and trim their hooves within the week. E.M.R. failed to trim the horses’ hooves; instead, she decided to give away many of the animals. In late December, Cecrle verified that the only animals E.M.R. still possessed were four horses and various dogs. ¶8 In February 2011, Cecrle again visited the property in response to reports that E.M.R. had acquired additional animals. She viewed at least five new horses before E.M.R. asked Cecrle to leave unless she had a warrant. That next month, Cecrle responded to complaints that E.M.R.’s newly-acquired puppies were running freely around the neighborhood. Cecrle impounded four puppies and took them to the humane 4 society and E.M.R. claimed them the next day. One week later, another one of E.M.R.’s puppies escaped, was hit by a car, and suffered a broken leg. ¶9 In response to continued complaints about escaped dogs and malnourished horses, Cecrle obtained and executed a search warrant on the property in mid-March. She and other officers found several recently-born puppies and numerous dogs, some of which were caged or chained without access to food or water. They also found several dogs that had died—four dogs were found decomposing in a pile of sawdust and another dog, whose existence apparently was unknown to E.M.R. or her father, was found suffocated by a chain that was deeply embedded into the dog’s neck. Cecrle also examined the ten horses found on the property. She later testified that they “weren’t in bad condition” but were “a little on the lean side” and their hooves had not been trimmed. Cecrle also testified that the horses did not have any access to food or water on the day the warrant was executed. ¶10 Based on the foregoing, a Lewis and Clark County Sheriff’s deputy issued a citation to E.M.R. for cruelty to animals in violation of § 45-8-211(b) and (d), MCA, and referred her to the Youth Court for further proceedings. One month later, the Lewis and Clark County Attorney filed a petition charging E.M.R. with being a delinquent youth for having committed two counts of animal cruelty, a misdemeanor, in violation of § 45-8- 211(1)(b) and (d), MCA, respectively, as wells as two counts of aggravated animal 5 cruelty, a felony, in violation of § 45-8-217(2), MCA.1 In June 2011, the county attorney filed an amended petition further charging E.M.R. with having committed five offenses of “dog at large,” a misdemeanor, “in violation of Montana Code Ann. § 4-2006-13.” In the supplemental affidavit filed simultaneously, the county attorney noted that E.M.R. was being charged with “five counts of dog at large, a misdemeanor, in violation of Lewis and Clark County Ordinance § 4-2006-13.” (Emphasis added.) The State later filed a second amended petition, which also erroneously stated that E.M.R. was being charged with violating § 4-2006-13, MCA. ¶11 The Youth Court held a jury trial in August 2011. At the close of the State’s case, E.M.R.’s attorney requested that the counts of “dog at large” in violation of § 4-2006-13, MCA, be dismissed because that “statute does not exist.” The State explained that the citation to the Montana Code Annotated was a typographical error and that the petition should have cited to the county ordinance. The court denied the motion because “the number [was] correct” and because E.M.R.’s attorney could not make “any real serious contention here that you didn’t have notice of what [E.M.R.] was charged with factually and that you haven’t been able to defend based on what [E.M.R.] was charged with.” ¶12 During deliberations, the jury became deadlocked on the animal cruelty charges, reporting to the court that one juror was “unwilling to consider views contrary to his own” and therefore the jury was hung. The jury foreman informed the court that 1 E.M.R. turned eighteen approximately one month before trial, but was tried in Youth Court since the alleged offense was committed “prior to [E.M.R.] having become 18 years of age.” Section 41-5-203(1), MCA. 6 “progress cannot be made under the present circumstances” and asked if the juror could be substituted with an alternate. The court conferred with counsel for E.M.R. and the State and decided to read the jury an instruction consistent with Allen v. U.S., 164 U.S. 492, 17 S. Ct. 154 (1896). The parties agreed to that instruction and it is not at issue on appeal. ¶13 The State also suggested that “maybe some of the problems within the jury stem from a lack of understanding about youth court” and asked the court to read the “Proposed State’s Instruction No. 22.” That instruction quoted the legislative purpose of the Youth Court Act as codified in § 41-5-102, MCA. E.M.R.’s attorney objected to the instruction because “the jury is the trier of fact” and an instruction on the “purpose of the Youth Court Act . . . doesn’t assist them in deciding the issues of fact.” Even though the Youth Court previously had refused to give the proposed instruction, the court agreed to do so after the jury appeared to be deadlocked. ¶14 After receiving the additional instructions, the jury continued to deliberate for several hours. Ultimately, the jury returned a verdict finding that E.M.R. had committed the offense of dog at large on Counts I-V on the verdict form and the offense of aggravated animal cruelty on Count IX. The jury found that E.M.R. had not committed one count of animal cruelty and was unable to reach a verdict on the remaining two animal cruelty charges. ¶15 E.M.R. appeals the Youth Court’s denial of her motion to dismiss as well as the court’s decision to instruct the jury on the legislative purpose of the Youth Court Act. 7 STANDARD OF REVIEW ¶16 District courts have “broad discretion” when instructing the jury in a criminal case and we review jury instructions “for an abuse of discretion.” State v. Hocter, 2011 MT 251, ¶ 14, 362 Mont. 215, 262 P.3d 1089. A court abused its discretion if it “acted arbitrarily or exceeded the bounds of reason resulting in substantial injustice.” State v. Dewitz, 2009 MT 202, ¶ 66, 351 Mont. 182, 212 P.3d 1040 (citing State v. Cybulski, 2009 MT 70, ¶ 34, 349 Mont. 429, 204 P.3d 7). To constitute reversible error, jury instructions “must prejudicially affect the defendant’s substantial rights.” State v. Christiansen, 2010 MT 197, ¶ 7, 357 Mont. 379, 239 P.3d 949. We apply the same principles to proceedings held in youth court. See In re T.J.B., 2010 MT 116, ¶ 16, 356 Mont. 342, 233 P.3d 341. ¶17 The denial of a motion to dismiss a petition in Youth Court is a question of law, which we review de novo “to determine whether the court correctly interpreted the law.” In re G.T.M., 2009 MT 443, ¶ 9, 354 Mont. 197, 222 P.3d 626 (citing In re R.L.H., 2005 MT 177, ¶ 15, 327 Mont. 520, 116 P.3d 791). DISCUSSION ¶18 1. Did the Youth Court abuse its discretion when it instructed a deadlocked jury on the legislative purpose of the Youth Court Act by reading the jury § 41-5-102, MCA? ¶19 After the jury indicated that it was deadlocked, the court instructed the jury to consider the legislative policies of the Youth Court Act by reading to it § 45-5-102, MCA. Instruction No. 22 provided: 8 Declaration of purpose. The Montana Youth Court Act must be interpreted and construed to effectuate the following express legislative purposes: (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 a youth coming within the provisions of the Montana Youth Court Act; (2) to prevent and reduce youth delinquency through a system that does not seek retribution but that provides: (a) immediate, consistent, enforceable, and avoidable consequences of youths’ actions; (b) a program of supervision, care, rehabilitation, detention, competency development, and community protection for youth before they become adult offenders; (c) in appropriate cases, restitution as ordered by the youth court; and (d) that, whenever removal from the home is necessary, the youth is entitled to maintain ethnic, cultural, or religious heritage whenever appropriate; (3) to achieve the purposes of subsections (1) and (2) in a family environment whenever 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; (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. ¶20 E.M.R. asserts that “the reading of Instruction 22 to the purportedly deadlocked jury was error and the error was not harmless.” According to E.M.R., the court erred by encouraging the jury to consider factors unrelated to its factfinding mission. She contends that “[n]ot only did this instruction tell the jury it should give weight to a possible punishment when reaching a verdict, this instruction made it sound like E.M.R. would lose the chance to benefit from numerous services if the jury did not find in favor 9 of the State.” The timing of the instruction exacerbated the prejudicial effect, E.M.R. claims, because the instruction was given after the jury had indicated that it was deadlocked. ¶21 Although the State “recognizes that this Court has previously held that instructing the jury on sentencing possibilities is prejudicial error,” it contends that the Youth Court did not abuse its discretion when it instructed the jury on the purposes of the Youth Court Act because it “did not inform the jury about specific sentencing possibilities . . . .” We agree with E.M.R. that instructing the jury on the legislative policy of the Youth Court Act impermissibly injected irrelevant considerations into the finding of facts and prejudicially affected E.M.R.’s substantial rights. ¶22 The right to trial by jury in Montana “is secured to all and shall remain inviolate.” Mont. Const. art. II, § 26. This fundamental right is guaranteed to Montana youths pursuant to the Youth Court Act, § 41-5-1502, MCA, and pursuant to Article II, Section 15 of the Montana Constitution. ¶23 We have declared that “one accused of a crime is entitled to have guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial . . . .” State v. Williams, 184 Mont. 111, 113, 601 P.2d 1194, 1196 (1979) (quoting Taylor v. Kentucky, 436 U.S. 478, 484-85, 98 S. Ct. 1930, 1934-35 (1978)). In making that determination, the jury’s “sole function is to decide the 10 defendant’s guilt or innocence”; the defendant’s potential punishment “is not [the jury’s] concern.” State v. Zuidema, 157 Mont. 367, 373-74, 485 P.2d 952, 955 (1971). ¶24 This principle—that a jury is not to consider the consequences of its verdict when it has no sentencing function—is a reflection of the different responsibilities of judge and jury: The jury’s function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged. The judge, by contrast, imposes sentence on the defendant after the jury has arrived at a guilty verdict. Information regarding the consequences of a verdict is therefore irrelevant to the jury’s task. Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion. Shannon v. U.S., 512 U.S. 573, 579, 114 S. Ct. 2419, 2424 (1994) (emphasis added). Similarly, we have held that “[i]n a non-capital case, the jury’s verdict should not be influenced in any way by sentencing considerations”; therefore, “it is impermissible for a jury to give weight to the possible punishment when reaching a verdict.” State v. Stewart, 2000 MT 379, ¶ 44, 303 Mont. 507, 16 P.3d 391 (emphasis added) (citing State v. Brodniak, 221 Mont. 212, 227, 718 P.2d 322, 332 (1986)). ¶25 The court’s instruction advised the jury that the Youth Court Act did not seek retribution, but instead provided “a program of supervision, care, rehabilitation, detention, competency development, and community protection . . .” for youths who violated Montana law. Section 41-5-102, MCA. The instruction had no bearing on the jury’s factfinding responsibility to determine whether E.M.R. had violated several discrete criminal statutes. Instead, it improperly informed the jury how E.M.R. would be 11 treated by the State if found to have committed the offenses and, as E.M.R. points out, intimated that E.M.R. would not receive potentially-beneficial state services if the jury found she had not committed the offenses. The instruction therefore invited the jurors “to ponder matters that [were] not within their province, distract[ed] them from their factfinding responsibilities, and create[d] a strong possibility of confusion.” Shannon, 512 U.S. at 579, 114 S. Ct. at 2424. Although the State argues that the Youth Court did not commit error because it did not provide specific instructions as to how E.M.R. would be treated if she were found guilty, this argument misses the point. Information regarding the consequences of a verdict is irrelevant to the jury’s factfinding task. Shannon, 512 U.S. at 579, 114 S. Ct. at 2424. ¶26 To constitute reversible error, jury instructions regarding the consequences of a verdict “must prejudicially affect the defendant’s substantial rights.” Christiansen, ¶ 7. E.M.R. had a fundamental constitutional right to a fair trial by jury as guaranteed by Article II, Section 26 of the Montana Constitution. Just prior to receiving the instruction on the purpose of the Youth Court Act, the jury was unable to reach a verdict regarding the animal cruelty charges. After receiving the erroneous instruction, the jury convicted E.M.R. of one count of aggravated animal cruelty, a felony, in violation of § 45-8-217(2), MCA. Given these circumstances, we cannot say that E.M.R.’s substantial rights were not prejudiced. Particularly given its timing, the erroneous instruction introduced the positive impact a guilty verdict could have on E.M.R., distracting the deadlocked jurors from weighing only the elements of the criminal charges. The Youth Court’s instruction 12 on the legislative purpose of the Youth Court Act was prejudicial error and requires reversal of the aggravated animal cruelty adjudication, Count IX of the second amended petition. Since the jury already had reached its verdict on the misdemeanor counts before the challenged instruction was given, the adjudications for those offenses will not be disturbed. ¶27 2. Did the Youth Court err by denying E.M.R.’s motion to dismiss the five “dog at large” offenses based on an erroneous statutory reference in the amended charging documents? ¶28 E.M.R. contends that “the youth court erred in failing to dismiss Counts I-V of the Second Amended Petition,” which erroneously charged E.M.R. with violating § 4-2006- 13, MCA, instead of charging her with violating Lewis and Clark County Ordinance § 4-2006-13. E.M.R. alleges that the State could have amended the petition pursuant to § 46-11-205(3), MCA, and that its failure to do so failed to satisfy the requirements of a petition filed under the Youth Court Act mandated by § 41-5-1402, MCA. ¶29 The State responds by asserting that the Youth Court “correctly denied E.M.R.’s motion to dismiss the dog at large charges because she was adequately apprised of the charges against her and was not surprised by them” and notes that “the affidavit in support of the Amended Petition contained the correct citation.” We agree with the State that the Youth Court’s refusal to dismiss the dog at large charges was correct. ¶30 E.M.R. was charged by petition, which, like an information in a criminal case, consists of “a written accusation of criminal conduct prepared by a prosecutor in the 13 name of the State.” State v. Wilson, 2007 MT 327, ¶ 25, 340 Mont. 191, 172 P.3d 1264. An information “must reasonably apprise the accused of the charges against him, so that he may have the opportunity to prepare and present his defense.” Wilson, ¶ 25. E.M.R. correctly notes that the petitions charged her with violating a statute in the Montana Code Annotated that did not exist. In criminal cases, “[w]e read the information, and the affidavit in support thereof, as a whole to determine the sufficiency of the charging documents.” Wilson, ¶ 25 (emphasis added). We apply the same standard here. In the affidavit filed in support of the State’s first amended petition, the State correctly cited to Lewis and Clark County Ordinance § 4-2006-13. ¶31 Even though the State erroneously charged E.M.R. pursuant to a nonexistent statute in the Montana Code Annotated, E.M.R. does not show any surprise or prejudice to her defense. “Even if there [is] error in the charging documents, there is no ground for reversal unless [the defendant] demonstrates that she was prejudiced.” State v. Bahr, 2009 MT 378, ¶ 11, 353 Mont. 294, 224 P.3d 610 (citing § 46-20-701, MCA). We apply the “common understanding rule” to determine whether “the charging language of a document allows a person to understand the charges against him.” Bahr, ¶ 8 (quoting Wilson, ¶ 25). The affidavit filed in support of the amended petition cited to the correct statute. A petition “that contains an erroneous name of the offense or an erroneous statutory reference is not necessarily invalid as long as the charging language passes the ‘common understanding’ rule.” Bahr, ¶ 9 (citing State v. Brogan, 261 Mont. 79, 86, 862 P.2d 19, 23 (1993)). Read together, the petition and affidavit were sufficient to apprise 14 E.M.R. of the charges against her and to prevent any surprise. See Bahr, ¶ 11. The Youth Court correctly declined to dismiss the “dog at large” charges. ¶32 For the foregoing reasons, we affirm in part, reverse in part and remand for a new trial on Count IX of the second amended petition. /S/ Beth Baker We concur: /S/ Mike McGrath /S/ Jim Rice /S/ Patricia O. Cotter /S/ Brian Morris | January 8, 2013 |
5686f49f-0e84-4e8d-8080-157c35e6ff19 | KNIGHT CO v MANARAS | N/A | 14671 | Montana | Montana Supreme Court | No. 14671 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 KNIGHT AND COMPANY, a partnership, Plaintiff and Respondent, THOMAS MANARAS and KAY MANARAS, Defendants and Appellants. Appeal from: District Court of the Twelfth Judicial District, Honorable B. W. Thomas, Judge presiding. Counsel of Record: For Appellants: Marra, Wenz, Iwen and Johnson, Great Falls, Montana Joseph Marra argued, Great Falls, Montana For Respondent : Morrison, Ettien and Barron, Havre, Montana Robert D. Morrison argued, Havre, Montana Submitted: September 17, 1979 Decided : 0 1 9 : " & -< z - t r l j Filed : Mr. Justice John C. Sheehy delivered the Opinion of the Court. Thomas and Kay Manaras, husband and wife appeal from a judgment of the Hill County District Court entered on behalf of Knight and Company (hereafter referred to as Knight), in the amount of $75,000, as the reasonable value of architectural services rendered to the Manarases. The Manarases own an interest in the Fair Hotel and some adjacent property in Havre, Montana. They consulted Knight, an architectural firm, in 1969 concerning plans for remodeling or replacing the hotel. In 1970, Knight and the Manarases orally agreed to the preparation of drawings to accompany a feasibility study for a new hotel. Knight prepared schematic sketches which were shown as exhibits in the feasibility study put together by Brelsford, McKee and Associates. After a two year hiatus during which the project remained dormant, the project was revived in the spring of 1973, and a second, updated feasibility study was prepared complete with sketches drawn by Knight. Several meetings ensued. Manaras received an itemized, preliminary cost estimate for the proposed construction by a letter from Knight dated October 18, 1973. Included in this itemized figure was an architectural fee of $123,259. Knight proceeded with drafting the plans for the proposed hotel to the extent that contract bids were obtainable. Thomas and Kay Manaras notified Knight by letter dated August 2, 1974 to discontinue work on the project. Knight responded by a letter dated August 21, 1974 and advised Manaras that ". . . we have proceeded on your behalf in this matter and even if you should wish to abandon your efforts, we are entitled to be paid for our services." -2- There exists a conflict in the evidence as to the understandings of the parties. Kenneth Knight, a partner in Knight, and Robert Taylor, also a partner and branch manager of the Knight office in Havre, contend there existed an express oral agreement entered into around November 1970, in which Knight was to prepare the feasibility sketches for the first feasibility study and for which Knight would be paid $1,000 if the project did not go forward. If the project did go forward, Knight was to be engaged as the architect for the project at a normal fee with the $1,000 indebtedness becoming merged into the architectural fee. Knight and Taylor contend that the same agreement was made concerning the sketches for the second feasibility study. The Manarases deny any such verbal agreement and contend that they were told by Knight and Taylor several times that Knight was an expert at obtaining financing and would find financing for the project and that the payment of the architectural fees was contingent upon Knight finding financing for the project . The trial court concluded that an oral agreement was entered into between the parties by which Knight was to furnish architectural services to the ~anarases but no express agreement was reached as to the amount of compensation for the services. The trial court found an implied agreement at law to pay the reasonable value of the services performed in the amount of $75,000 and entered judgment accordingly. The sole issue presented on this appeal is whether there exists substantial evidence on the record to support the finding of the trial court that there was an implied agreement at law between the parties whereby the appellants were to pay $75,000 as the reasonable value of the services rendered by the - 3- respondent to the appellants. We find that the record does sustain such a finding and affirm. The standard of review in a nonjury civil case is simply to determine if there is substantial evidence on the record to support the findings and conclusions of the trial court. Hornung v. Estate of Lagerquist (1970), 155 Mont. 412, 420, 473 P.2d 541, 546; Cameron v. Cameron (1978), Mont . When reviewing evidence, this Court must do so in the light most favorable to the party which prevailed in the District Court. Cameron, 587 P.2d 945; Arrowhead, Inc. v. Safeway Stores, Inc. (1978), Mont . , 587 P.2d 411, 413, 35 St-Rep. 1830, 1832. ". . .'Substantial evidence' is evidence such 'as will convince reasonable men and on which such men may not reasonably differ as to whether it establishes the [prevailing party's] case, and, if all reasonable men must conclude that the evidence does not establish such case, then it is not substantial evidence.' (Citing cases.) The evidence may be inherently weak and still be deemed 'substantial' and substantial evidence may conflict with other evidence presented.. . . I ' Cameron, 587 P.2d 944. As in Cameron, most of the evidence presented at trial consisted of the testimony of witnesses and as a result, the credibility of such witnesses is important on appeal. In the present case there was a conflict in testimony between the Knight partners and the Manarases as to the terms of compensation for the sketches drafted for the feasibility studies. IIowever, as we stated in Cameron, and we reaffirm here: "'The credibility and weight given the witnesses, however, is not for this Court to determine. This is a primary function of a trial judge sitting without a jury;. . .'" Cameron, 587 P.2d 945. In the same manner the understandings of the parties as to the manner of financing the hotel project is in conflict. Here the District Court decided that the evidence was insufficient to establish that respondent had any "responsibility" to obtain financing for the project. We will not interfere with this factual determination. ". . . We will not substitute our judgment for that of the trier of the fact, but rather will only consider whether substantial credible evidence supports the findings and conclusions. Those findings will not be overturned by this Court unless there is a clear preponderance of evidence against them. We will view the evidence in a light most favorable to the prevailing party, recognizing that substantial evidence may be weak or conflicting with other evidence, yet still support the findings. Finally, where the credibility of witnesses is of prime importance, as it is here, the determination of the weight given to the testimony is the primary function of the trial judge sitting without a jury and not that of this Court." Cameron, 587 P.2d 945. Applying the foregoing standard of review, we hold that the findings and conclusions of the District Court are sufficiently supported by the evidence. The judgment of the District Court is affirmed. We Concur: Chief Justice Justice J ................................. Justices M r . J u s t i c e John Conway Harrison dissenting: I must r e s p e c t f u l l y d i s s e n t t o t h e majority opinion. H e r e , f o r t h e t r i a l c o u r t t o f i n d an agreement was achieved between t h e p a r t i e s , it w a s required t o f i n d t h a t t h e r e w a s a meeting of t h e minds of t h e p a r t i e s with regard t o every t e r m necessary t o accept a v a l i d enforceable contract. The evidence shows, and the c o u r t ' s own findings of f a c t and conclusions of l a w show, t h a t t h e t r i a l c o u r t s p e c i f i c a l l y found t o t h e contrary. I n Finding of Fact No. 5 the c o u r t found i n p a r t : ". . . There was no meeting of t h e minds r e l a t i v e t o t h e compensation t o p l a i n t i f f f o r t h i s service." I n Finding of Fact No. 1 0 t h e c o u r t found i n p a r t : ". . . There w a s never any meeting of t h e minds of t h e p a r t i e s as t o a d e f i n i t e completion d a t e , o r as t o t h e amount of p l a i n t i f f ' s compensation o r how o r when t h e com- pensation would be paid." Finding of F a c t No. 1 1 s t a t e s i n p a r t : ". . . p l a i n t i f f never d i d send defendant a statement of s e r v i c e s rendered o r demand payment u n t i l a f t e r defendants n o t i f i e d p l a i n t i f f t o cease work on t h e project." The c o u r t then concluded i n i t s Conclusion of Law No. 2: "An o r a l agreement w a s entered i n t o between t h e p a r t i e s . . . b u t no express agreement o r c o n t r a c t was reached i n s o f a r as p l a i n t i f f ' s compensation was concerned." It then concluded i n i t s Conclusion of Law No. 3 : "The l a w w i l l imply an agreement t o pay t h e reasonable worth of s e r v i c e s . . . where t h e r e i s no agreement with reference t o compensation . . ." Under t h e f a c t s presented t o t h e c o u r t and i t s findings of f a c t and conclusions of l a w , it i s i n c r e d i b l e t o m e t h a t , f o u r y e a r s a f t e r p l a i n t i f f entered i n t o t h i s so-called o r a l agreement, it would then send t o defendants a b i l l f o r t h e sum of $75,000. Accepting t h a t t h e standard of review of a nonjury c i v i l c a s e i s t o determine whether t h e r e was s u b s t a n t i a l evidence i n t h e record t o support t h e f i n d i n g s and conclu- s i o n s a s set f o r t h by t h e majority i n t h i s case, t h e excep- t i o n t o t h i s r u l e is t h a t w e w i l l n o t r e v e r s e unless t h e r e i s a c l e a r preponderance a g a i n s t t h e f i n d i n g s of f a c t and conclusions of law. See Hayden v. Snowden (1978), Mont. , 576 P.2d 1115, 35 St.Rep. 367. Viewing t h e e n t i r e record, I f i n d t h a t t h e evidence c l e a r l y preponderates a g a i n s t t h e findings and conclusions made by t h e D i s t r i c t Court. The c o u r t , by i t s very own f i n d i n g s previously r e f e r r e d t o , found t h a t t h e r e had been no meeting of t h e minds r e l a t i v e t o t h e compensation (see Finding of Fact No. 5 ) , t h a t t h e r e had been no meeting of t h e minds concerning a completion d a t e o r an amount of compensation (see Finding of F a c t No. l o ) , and t h a t t h e r e had been no statement ever s e n t t o defendants f o r s e r v i c e s (see Finding of Fact No. 11). I n a d d i t i o n , I f i n d t h a t t h e evidence i s so overwhelming t h a t i f p l a i n t i f f Knight and Company had any c o n t r a c t a t a l l , it w a s a contingent f e e arrangement and Knight's testi- mony t o t h e contrary, i.e., t h a t t h e company never entered i n t o contingent agreements w a s overwhelmingly impeached by d i s i n t e r e s t e d p a r t i e s and h i s own employees. Finding no " s u b s t a n t i a l c r e d i b l e evidence" t o support t h e conclusion of t h e t r i a l c o u r t t h a t t h e r e was an implied agreement t o pay "a reasonable worth of s e r v i c e s , " I would r e v e r s e t h e judgment and r e t u r n t h e m a t t e r f o r reconsidera- t i o n by t h e t r i a l court. M r . J u s t i c e Gene B. Daly dissenting: I concur with J u s t i c e Harrison and would add t h a t t h e only testimony o f f e r e d i n favor of t h e majority p o s i t i o n was i n c r e d i b l e and n o t worthy of b e l i e f and t h e r e f o r e should n o t have been accepted. ! - Mr. Justice Daniel J. Shea concurring: I would affirm the judgment, simply because I do not believe that this Court can say as a matter of law that the testimony of the architect seeking to recover his fee, was so inherently improbable it should have been rejected by the trial court. The evidence was for him to judge, and apparently, he did so. This is not to say however, that I do not have some real problems with this case and the law which apparently permits a trial judge to avoid the crucial issue such as appeared in this case--namely, whether the architect was worthy of belief. If nothing else, this case is a prime example of the tremendous power of a trial judge. As I view the record, and had I been the trial judge, I do not believe I would have given much weight to the testimony of the architect. Perhaps I would have even concluded that he was totally unworthy of belief. But, at least by the implications of its decision, the trial court has concluded that he was worthy of belief. Unfortunately, the trial court did not address in its findings or in an opinion, its assessment of the architect's testimony. This case perhaps illustrates the inherent weakness of findings of fact as a vehicle of decision, insofar as they shed any light on how or why the trial court reached its decision. Normally, the findings reflect the thinking of counsel for the prevailing party, rather than the thinking of the trial judge. The findings are too often a method of evading what I believe to be a fundamental function of a trial judge when conducting bench trials--that of assessing and weighing testimony and evidence, and then setting forth for the record what that assessment is. Here, the crucial issue of just how the trial court considered, or even whether it considered the obvious conflicting and impeached -9- testimony of the architect, is not made known to the parties or to this Court. Thus, as a reviewing court, we must remain c o m t with the general findings and conclusions which never went to the heart of the issue as to whether the architect was a credible witness. The entry of porous and vacuous findings of fact, does not, furthermore, provide any solace to a nonvictorious litigant who must undertake an appeal never knowing just how the trial court regarded the testimony of a crucial witness, such as the architect in this case. Therein lies much of the fault of the almost exclusive reliance by the trial courts on the entry of findings and con- clusions as permitted by Rule 52(a), M0nt.R.Civ.P. The trial courts should be reminded that Rule 52(a) also permits findings and conclusions to be set forth in the form of a memorandum opinion, something which undoubtedly would, in the long run, be much more satisfactory to the litigants and to a reviewing court. I would venture to say that the public would also be much more satisfied with the judgments of the trial courts if they explained the reasons for their decisions. | November 30, 1979 |
e6397566-0aa8-48c7-b21f-b356c16f1153 | PHENNICIE v PHENNICIE | N/A | 14791 | Montana | Montana Supreme Court | No. 14791 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 JAMES F. PHENNICIE, Plaintiff and Appellant, WINIFRED M. PHENNICIE, Defendant and Respondent. Appeal from: District Court of the Eighth Judicial District, Honorable H. William Coder, Judge presiding. Counsel of Record: For Appellant: Church, Harris, Johnson & Williams, Great Falls, Montana Donald LaBar argued, Great Falls, Montana For Respondent : Conner, Baiz & Olson, Great Falls, Montana Thomas Boland argued, Great Falls, Montana - Submitted: November 6, 1979 m=-7 4 $ T n Filed: Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. Plaintiff James I ? . Phennicie brought this action in the District Court of Cascade County four years after his divorce from the defendant Winifred M . Phennicie to enforce the divorce decree and property settlement agreement. The wife petitioned for an order to show cause why she should not be entitled to a modification of the divorce decree and the property settlement agreement. The District Court issued the order to show cause and a hearing was held. The District Court granted judgment in favor of the wife. From this judgment, the husband appeals. The parties to this action were divorced on October 17, 1974. The decree of divorce incorporated a property settlement agreement made between the parties. This agreement specifically provided that it was not to be merged with the decree, but was to be forever binding on the parties. The trial court judge in- corporated the agreement into the decree but reserved for the trial court the authority to alter or amend those provisions of that agreement respecting custody and support of the children. For purposes of this appeal the pertinent provisions of that agreement are as follows: (a) The wife was to have custody of the three minor children of the marriage. (b) The husband was to deposit to a bank account the proceeds of his military retirement check,which at the time of the divorce was about $850 per month. This money was to be used for child support, medical expenses of the children, and certain expenses relating to the home owned by the parties. (c) The wife was to account to the husband for expenditure of all sums paid from the account and return all remaining funds to the husband once a year. (d) The wife, as the custodial parent, was to be granted exclusive use of the family home until six months after the minor child, James I ? . Phennicie, Jr. graduated from high school. At that time the house was to be sold and each party was to receive one-half of the equity. James F. Phennicie, Jr. completed high school in June, 1978. The house was not sold within six months of that date and has not been sold as of the time of hearing. The accounting made to the husband by the wife consisted of tax statements, house payment statements, and the amount paid for certain insurance premiums. The husband testified that there should have been $14,969 remaining in the account after payment of the authorized expenditures. The wife testified that she spent all of the money from the account every year for the care and support of the child- ren and the home. On November 13, 1978, the husband filed a motion for an order to show cause in District Court to enforce the divorce decree and for breach of the property settlement agreement. The husband asked for the appointment of a receiver who would be auth- orized to sell the residence pursuant to the property settlement agreement. The husband also asked for an amount of money alleged to be owed him under the property settlement agreement. On December 18, 1978, the wife petitioned for an order to show cause why she should not be granted the full amount of the husband's military retirement check, together with the exclusive use and occupancy of the parties' residence until their minor daughter reached the age of majority, and for her attorney fees in connection with the action. The motions for orders to show cause were granted, and - both were heard on January 3, 1979. On February 9, 1979, the District Court entered its findings of fact, conclusions of law and decree. The District Court granted judgment in favor of the wife and modified the divorce decree and property settlement agreement accordingly. The husband appeals from this judgment. The husband has raised three issues on appeal: 1 . Whether he has been denied due process? 2 . Whether there was substantial credible evidence to support the judgment of the District Court? 3 . Whether the District Court reserved to itself the authority and the power to alter the original property settle- ment agreement between the parties? The wife has raised one issue on appeal: 1. Whether an action for the appointment of a receiver is appropriate when other remedies are available to the husband? Wife's petition for an order to show cause, a subpoena duces tecum and an affidavit, all dated December 18, 1978, were served on the husband on December 30. His attorney was not pro- vided a copy of this document until January 3, 1979, the day of the hearing. The husband contends that the lack of service upon the attorney denied the husband adequate notice and constitutes a denial of due process. Rule 5(b), M.R.Civ.P. provides in part that "Whenever . . . service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney . . ." The documents should have been served upon husband's attorney pursuant to Rule 5(b). Whether this is re- versible error requires an examination of the facts and the Mon- tana Rules of Civil Procedure. On November 13, 1978, the husband who is the plaintiff in this action, filed a motion for an order to show cause. The District Court issued an order to the wife which ordered her to show cause why the family home should not be sold and an account- ing made of the funds which the wife disposed of under the property settlement agreement. It was after being served with this doc- ument that the wife petitioned for a modification of the divorce decree and property settlement agreement. As both of these motions were set for January 3, 1979, it is difficult to under- stand the husband's argument that he was not given notice. While it is true that the two motions did not pertain to identical issues, it is equally true that both motions did pertain to the same divorce decree and property settlement agreement. Husband's contention that he did not have adequate time to prepare financial statements in order to meet the wife's show cause hearing is ten- uous. He was served four days before the hearing. He could have notified his attorney at once and asked for a continuance. The record does not disclose that any attempt was made to continue the action. During the hearing the husband was allowed to testify fully as to his financial affairs. On appeal the husband has not dir- ected this Court to any additional evidence which was not produced before the trial court and which is of a material nature. With- out some evidence of this kind it is difficult to understand how the husband was prejudiced by the lack of service on his attorney. Rule 61, M.R.Civ.P. says, in part: "No error . . . or defect . . . in anything done or omitted . . . by any of the parties is ground for . . . disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice . . ." Given the facts of this case the failure to make service upon husband's attorney is not inconsistent with substantial justice. We hold that the District Court judgment may not be reversed for this reason. The husband next alleges that several of the findings of fact were not supported by substantial credible evidence. Sev- eral of these allegations are without merit and need not be dis- cussed. The general rule as to the approach this Court will take in these matters was stated in Cameron v. Cameron (1978), Mont . , 587 P.2d 939, 945, 35 St.Rep. 1723 at 1729: "We will not substitute our judgment for that of the trier of fact, but rather will only consider whether substantial credible evidence supports the findings and conclusions. Those findings will not be overturned by this Court unless there is a clear preponderance of evidence against them. We will view the evidence in a light most favorable to the prevailing party, recognizing that substan- tial evidence may be weak or conflicting with other evidence, yet still support the findings." The property settlement agreement provided that the wife was to provide an accounting to the husband for expenditures of all sums paid from the account. The trial judge found that the wife had made an accounting. The wife testified that she made what she thought was a sufficient accounting. She also testified that she was never asked by the husband to provide a fuller ac- counting. The husband testified that the accounting that he re- ceived was not sufficient and that he had informed the wife of this. Applying the Cameron test, we affirm the finding. There is not a clear preponderance of evidence against this finding. It is true that the evidence is conflicting, however, taken in the light most favorable to the wife the evidence is sufficient to support the finding. The trial judge made several findings which are pertin- ent to section 40-4-204, MCA (which deals with the granting of child support). As this was a hearing, in part, to modify such an order, the husband claims that it is error to make such find- ings. At worst these findings are irrelevant, They do not con- stitute error. Under section 40-4-208(2)(b), MCA, a child support pro- vision may be modified only when there is "a showing of changed circumstances so substantial and continuing as to make the terms unconscionable . . ." The trial judge made such a finding in this case. The fact that this finding was partially based on factors enumerated in a different statute does not constitute error so long as he made the requisite finding of changed cir- cumstances so substantial and continuing as to make the terms unconscionable. In another finding of fact the trial judge found that there had been a substantial improvement in the husband's fin- ancial condition and prospects. This finding is supported by testimony concerning the amount of money that the husband had in savings and checking accounts. The husband testified that he was expecting future losses in his new real estate business and that he needed his equity from the home in order to meet his anticipated expenses. There is substantial credible evidence to support the finding that the husband's financial condition had substantially improved. This in turn supports the finding that there had been a substantial change in financial conditions zLnd that it would be unconscionable not to modify certain child sup- port provisions. The trial judge found that the wife required the use of the family home in order to raise the youngest of the minor children. The wife testified that she could not afford to sell the home and move into another home which would be adequate for the raising of the minor child. The husband presented evidence which was to the contrary. Once again we must apply the test set out in Cameron, supra. Even though the evidence is conflicting, we must affirm the finding of the trial judge based on substan- tial credible evidence. We may not substitute our judgment for that of the trial judge. The trial judge awarded $500 to the wife for attorney fees. The wife testified that she could not pay for these fees out of her own funds. However, we can find no evidence which supports the $500 award. In Houtchens v. Houtchens (1979), Mont . I 592 P.2d 158, 36 St-Rep. 501, this Court considered a similar set of facts. This Court said: "We find the court was adequately apprised of the relative financial means cf the parties, and suf- ficient evidence supported the court's finding of wife's necessity for the award of reasonable attor- ney fees. However, we do not find the method used to substantiate the amount of the attorney fees sufficient to uphold the award. 'An award of fees, like any other award, must be based on competent evidence.' First Security Bk. of Bozeman v . Tholkes (1976), 169 Mont. 422, 429, 547 P.2d 1328, 1331 (quoting Crncevich v . Georgetown Recreation Corp. (1975), 168 Mont, 113, 120, 541 P.2d 56, 59). The only evidence supporting the $1,000 fee was the wife's acknowledgement in testimony that a $1,000 fee was reasonable under the circumstances. This evidence standing alone, is insufficient to verify the reasonableness of the attorney fees awarded. The cause is therefore remanded for determination of reasonable attorney fees consistent with the authority cited." 8 4 2 P.2d at 162, 36 St.Rep. at 505. -1 Because there is insufficient evidence in the instant case which would substantiate the $500 amount, the award may not be upheld. The husband contends that the District Court had no power or authority to alter the property settlement agreement. Section 40-4-201, MCA, allows separation agreements to be incorporated into a decree of dissolution. This statute provides that such agree- ments may expressly preclude or limit modification of terms ex- cept for terms concerning support, custody, or visitation of child- ren. The property settlement agreement in the instant case provides that the agreement was to be incorporated into the final decree, but "that this agreement shall not be merged with said decree of divorce but shall survive and be forever binding on the parties." In the divorce decree the District Judge incorporated the property settlement agreement except that the "provisions respecting custody and support of the children being subject to further order. " The property settlement agreement contains several sec- tions. Section 2 is denominated Child Support and Alimony. Section 3 is denominated Real Property. In Section 2 the wife waived alimony in exchange for the bank account which was to be funded by the husband's military retirement check. According to this section the money in the account is to be used, in part, for child support, certain medical expenses incurred on behalf of the children, and expenses pertaining to the family home includ- ing the house payments, taxes, insurance, home repair, electric- ity, gas, telephone, and water. Section 3 provides, in essence, that the family home was to be sold not later than six months after the minor son graduated from high school. The husband contends that the terms concerning the sale of the family home constitute a property issue and that these terms may not be modified. The wife contends that these terms consti- tute a child support issue, and, as a result they may be modified. We note that a large portion of the child support section of the agreement deals with the paying for and maintenance of the family home. Why the home was to be sold after the second child grad- uated from high school, rather than after the youngest graduated, is not clear. What is clear is that the home was an integral part of the child support provisions so long as the second child was still a high school student. The husband has not supplied us with any reason why the availability of the home to the wife and third child should become any less important as a term of child support once the second child has graduated from high school. Consequently, we find that the terms concerning the home, in this case, were part of the child support provisions and as such may be modified by further order. There was no error in allowing the wife and minor child to remain in the home until the youngest minor child graduates from high school. Having decided the case in this manner it is unnecessary to consider whether the husband's petition to appoint a receiver was proper. The District Court is affirmed except as to the amount of attorney fees. Following Houtchens, supra, the cause is re- manded to the District Court for a hearing to determine a reason- able amount to be awarded the wife for her attorney fees. Chief Justice | December 31, 1979 |
e9dad0bc-cd41-4f32-86ff-d511f0532870 | STATE v ALLIES | N/A | 14305 | Montana | Montana Supreme Court | No. 14305 I N THE SUPREME C O W O F THE STA!l?E O F b%NllNA 19 7 9 STATE O F blmTZw4, Plaintiff and Respondent, -vs- GUY JOHN ALLIES, Defendant and Appellant. Appeal froan: D i s t r i c t Court of the Thirteenth Judicial D i s t r i c t , Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: Richter and Lerner, Billings, Plbntana Frank Richter argued and Alan J. LRmer argued, Billings, Plbntana For Respondent: Hon. Mike Greely, Attorney General, Helena, Plbntana Mike bkCarter argued, Assistant Attorney General, and Chris Tweeten argued, Assistant Attorney General, Helena, mntana Harold F. H a n s e r argued, County Attorney, Billings, Mntana Filed : Suhnitted: April 30, 1979 Clerk M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. Defendant, Guy John A l l i e s , w a s charged with four counts of d e l i b e r a t e homicide and t r i e d by a jury i n t h e ~ h i r t e e n t h J u d i c i a l D i s t r i c t Court f o r Yellowstone County. A v e r d i c t of g u i l t y on four counts of t h e l e s s e r included offenses of mitigated d e l i b e r a t e homicide was returned, and judgment of conviction w a s entered. Defendant appeals. The crimes underlying the case c a m e t o t h e a t t e n t i o n of t h e B i l l i n g s p o l i c e when, s h o r t l y before noon on November 11, 1976, t h e department received a c a l l on i t s 911 emer- gency l i n e . Over the phone, t h e p o l i c e dispatcher heard screaming, a gunshot, and t h e sound of someone moving around. The c a l l was traced and l e d p o l i c e o f f i c e r s t o a B i l l i n g s residence where they found t h e bodies of Tom T i l - lotson; h i s wife, T e r r i ; M r s . T i l l o t s o n ' s s i x year o l d daughter, Sherri; and, t h e couple's two year o l d son, Montana. Each had been s h o t once i n t h e head with a small c a l i b e r weapon. M r s . T i l l o t s o n , who was found clutching t h e phone, had a l s o been s h o t i n the jaw. L t . Charles Hensley of the B i l l i n g s p o l i c e force i m - mediately took charge of t h e i n v e s t i g a t i o n and continued t o a c t i n t h a t capacity u n t i l the defendant was a r r e s t e d . Assisting him, and figuring prominently i n t h e case, were d e t e c t i v e s Gordon H i r i s c h i , George B e l l and Jack Trimarco. I n i t i a l l y , t h e i n v e s t i g a t i v e team had l i t t l e f a c t u a l infor- mation. The a d u l t victims w e r e involved i n area drug t r a f - ficking and l a r g e q u a n t i t i e s of drugs, primarily marijuana and cocaine, were found a t the scene of t h e crime. I n addition, a l i g h t blue van had been parked i n the neighbor- hood a t t h e time t h e crimes were committed, and an uniden- tified man had been seen walking down the alley in back of the Tillotson house. here was uncontradicted testimony that Lt. Hensley said there would be no drug-related arrests from any infor- mation received in connection with the homicide investiga- tion. County Attorney Harold Hanser stated that no blanket immunity was given, and several officers said the leniency was limited to drug dealings with the victims. During the investigation it was learned that the Til- lotsons dealt in drugs with someone named John who drove a blue van. Defendant's name was first mentioned to police on November 17. He was identified by Tom Tillotson's business partner as a person whose connection with the Tillotsons was drug related. On November 22, defendant voluntarily went to the Billings police station because he heard Lt. Hensley wanted to talk to him about the homicides. He was accompanied by Kathy Terry, a woman with whom he lived. Officer Hirischi met with defendant Allies and testified that, on this date, he did not view defendant as a suspect in the investigation. The conversation concerned defendant's relationship with the Tillotsons. He was not given his Miranda rights but was told that he would not be arrested on drug charges which could be brought as a result of his cooperation in the homicide investigation. According to Officer Hirischi, the immunity covered only transactions with the Tillotsons. On November 23, defendant voluntarily returned to the police station, again accompanied by Kathy Terry. They were interviewed by Officers Hirischi and Bell. Defendant was asked about his activities on November 10 and 11 and about a gun he owned. The officers noted that Allies had trouble answering questions, could not keep names or dates straight and was possibly on drugs. Arrangements were made for Allies to take a polygraph examination. he polygraph test took place on November 30 and was conducted by police Lt. Jere Wamsley. The results were not admitted in evidence, but Wamsley's report was available to the investigators. The test lasted approximately three hours, and defendant's participation was voluntary. Defen- dant said he had been drinking prior to the test and was on some type of medication. Nevertheless, his reactions during the first part of the examination were normal. When con- fronted with a diagram of the Tillotson house, defendant became "squirrely," and by the end of the interview he was "talking to the walls" and "completely out of it." Between 10:OO and 10:30 a.m. on December 9, Officers Bell and Trimarco confronted defendant near his house and asked him to accompany them to the police station. Defen- dant said he had not eaten breakfast but would be down once he had. He voluntarily presented himself at the station around 11:OO a.m. and was taken to a 12' x 12' room on the fourth floor. Here he was isolated and questioned for approximately four hours by Officers Bell and Trimarco. He had not had anything to eat but was under the influence of a large quantity of drugs--namely, methamphetamine, triavil and morphine. Before the session began, Bell read defendant his Miranda rights off a card and defendant signed a waiver printed on the back of the card. Officer Trimarco testified that defendant understood his rights and did not, at this or any other time during the session, ask for an attorney. The officers attempted to employ a "Mutt and Jeff," or a "mean cop--nice cop" method of interrogation during the f i r s t p a r t of t h e session. One of t h e o f f i c e r s t e s t i f i e d t h a t he g o t a " l i t t l e emotional" during t h e interview. A l l i e s described t h e o f f i c e r s a s generally rough, harsh and obnoxious. Both o f f i c e r s eventually t o l d defendant t h a t i f he needed p s y c h i a t r i c help, it w a s a v a i l a b l e . H e was a l s o t o l d something was wrong with t h e November 30 polygraph test and t h a t t h e o f f i c e r s knew he w a s t h e murderer. H e was accused of t h e crimes on several occasions, and t h e ques- tioning concentrated on how he could l i v e with himself a f t e r committing such b r u t a l a c t s . I n employing t h i s " g u i l t assumption" method of interrogation, both o f f i c e r s f r e e l y concede they l i e d t o defendant about what they knew of h i s connection t o t h e homicides. They t o l d him he had been p o s i t i v e l y i d e n t i f i e d and placed a t t h e scene of t h e crime. A t f i r s t defendant's s t o r y was c o n s i s t e n t with what he had e a r l i e r t o l d Detective Hirischi. H e s a i d he was working on h i s van a t a rented garage when t h e murders occurred and had returned home about 1:00 o r 2:00 p.m. on November 11. After about twenty minutes, Trimarco advised defendant t h a t they d i d n o t believe h i s story, t h a t he was a suspect i n t h e homicides, t h a t they knew he was t h e k i l l e r , and t h a t he had p o s i t i v e l y been placed a t t h e scene of t h e crime. Defendant then changed h i s story. H e s t a t e d t h a t he had "blacked out" a s he was changing o i l and "came to" a t a grocery s t o r e near t h e T i l l o t s o n house. H e s a i d he could n o t remember where he w a s a t the t i m e t h e crimes w e r e com- mitted, During t h e questioning, defendant w a s shown a p o r t r a i t of the T i l l o t s o n children as w e l l a s a p i c t u r e of M r s . T i l l o t s o n a s she was found on November 11. ~ e f e n d a n t became upset and very depressed a t t h e idea he could have committed such an a c t . H e began t o sob and threatened t o commit suicide. H e t o l d t h e o f f i c e r s of h i s heavy drug use; t h a t he belived t h e "Space Brothers" had landed i n Wyoming and were e x e r t i n g an e v i l influence over him; t h a t he be- l i e v e d i n w i t c h c r a f t ; and, t h a t h i s ex-wife was a witch who had placed an e v i l c u r s e on him. Defendant says he was s u f f e r i n g from drug withdrawal and a t about 3:00 p.m. asked f o r food t o r e l i e v e h i s discom- f o r t . The o f f i c e r s do n o t r e c a l l such a request. A l l i e s s a i d he thought he needed p s y c h i a t r i c help, and t h e o f f i c e r s expressed t h e opinion t h a t h i s problem w a s medical o r mental r a t h e r than criminal. ~ o s p i t a l i z a t i o n a t Warm Springs w a s mentioned. During t h e i n t e r r o g a t i o n , t h e o f f i c e r s t o l d defendant they were n o t "too concerned with" drugs; r a t h e r , they were seeking information o r evidence p e r t i n e n t t o t h e T i l l o t s o n homicides. They s a i d they would l i k e t o search h i s house and van f o r homicide evidence, and defendant executed t h e following consent t o search: "I, Guy John A l l i e s , GIVE Det. B e l l and Trimarco WHO HAVE IDENTIFIED THEMSELVES A S POLICE OFFICER(S) F O R T H E CITY O F BILLINGS, Y E L L O W S T O N E COUNTY, DO H E R E B Y CONSENT TO HAVE THEM SEARCH MY HOME OR PROPERTY L O C A T E D AT 628 No. 1 4 1965 GMC Van Blue AND I HAVE A L S O BEENDVISEDTHATIDO NOT HAVE TO GIVE THESE OFFICERS PERMISSION TO S E A R C H MY HOME AND PROP- ERTY. I AM GIVING THIS C O N S E N T W I T H O U T ANY THREATS OR PRESSURES O F ANY TYPE U S E D AGAINST ME. "SIGNED: S/ Guy John A l l i e s "WITNESS: S/ G. B e l l ADDRESS B i l l i n g s P o l i c e Dept. "WITNESS: S/ John Trimarco ADDRESS B.P.D." B e l l and Trimarco l e f t defendant's presence about 3:45 p.m. and w e r e engaged i n searching t h e house and van from about 4:00 t o 7:30 p.m. Meanwhile, defendant was l e f t i n t h e f o u r t h f l o o r room. Because of h i s s u i c i d e t h r e a t s , he was "watched" by Officers Ward and Millard. Allies testi- fied that during this time he asked Ward when he would be allowed to see an attorney and that he was told to wait until Bell and Trimarco returned. Ward denies that this occurred. During the afternoon, both Lt. Hensley and Harold Hanser, the Yellowstone County Attorney, had been posted on the progress of the interrogation. At approximately 4:15 p.m., Hanser contacted Dr. Bryce Hughett, a psychiatrist employed by the State. Hanser informed him there was a suspect in the Tillotson homicides who could not remember where he had been when the crimes were committed. He also said the suspect had indicated a desire to see a psychia- trist and asked Hughett to come down. On arriving at the station, Hughett was further briefed on the situation by Hanser and Lt. Hensley. Hughett, who felt he was acting as a fact finder or assistant to the investigator and as a doctor, talked with defendant from approximately 5:00 to 6:00 p.m. Hensley was present for the first 20 or 30 minutes of the interview. Allies was not given his Miranda rights at this time; nor was he informed there was no doctor-patient privilege cloaking the conver- sation. Hughett stated that Allies was "calm--spoke quietly and willingly. He knew Lt. Hensley was an investigative officer and didn't object to him remaining." The major topics of discussion were defendant's past, particularly his drug abuse problem, and the Tillotson homicides. ~uring the interview Hughett suggested that sodium amytal, a hypnotic drug, might allow Allies to remember where he had been during his November 11 blackout. By the time the interview concluded, Bell and Trimarco had returned from searching defendant's house and van. They had found drugs at his house and a number of - 2 2 caliber cartridges in the van. Bell, Trimarco and Hensley testified that on the evening of December 9, they did not have enough to hold defendant in connection with the homicides. Instead, he was charged with the possession of dangerous drugs and placed in the Yellowstone County jail. Hensley read Allies his ~iranda rights upon arresting him and left instructions with the jailer to allow defendant to contact him at any time. Hensley stated the drug arrest was "part of" or a "tool" in the homicide investigation. On Friday, December 10, Allies was taken to justice court for a preliminary hearing on the drug charge. He was informed of the charge against him, and his rights were slowly read to him by Justice of the Peace Pedro Hernandez. Defendant testified that he fully understood his rights at this time, and it is undisputed that he asked to see an attorney. He was informed that an attorney can be appointed only in District Court and was told that one would be ap- pointed for him upon his appearance in that court. This is the last time the drug charge was mentioned. It was dropped after defendant was charged with the Tillotson homicides. Later the same day, defendant was taken to ~anser's office for an interview. He was not given his rights and had not yet seen an attorney. Hanser discussed the "truth serum" (sodium amytal) interview with him and told defendant he could rest and relax at the hospital. ~efendant agreed to try the serum. On Saturday, December 11, defendant was taken from the jail and placed in the Intensive Psychiatric Care Room of t h e p s y c h i a t r i c ward a t Deaconess Hospital. D r . Hughett t a l k e d with defendant a t various t i m e s during the day. ~ l l i e s t e s t i f i e d t h a t around 4:00 p.m. he asked Hughett when he would see an a t t o r n e y and t h a t Hughett t o l d him t o w a i t u n t i l Hanser a r r i v e d . Hughett denied t h a t A l l i e s made such an inquiry. Later t h a t evening, a f t e r hearing s t r a n g e n o i s e s from defendant's room, a guard entered and found defendant crouched on t h e bed, sobbing and saying, "The Devil wants m e t o h u r t you." The guard c o n t r o l l e d t h e s i t u a t i o n by having A l l i e s pray. Very soon a f t e r t h e above i n c i d e n t , D r . Hughett, Lt. Hensley and Harold Hanser a r r i v e d . The serum was i n j e c t e d , t h e l i g h t s w e r e dimmed, and t h e i n t e r r o g a t i o n began. Without being advised of h i s r i g h t s , defendant was asked questions by Hughett and Hensley and made s e v e r a l incrimi- n a t i n g statements. H e placed himself a t t h e scene of t h e crime b u t s a i d another person committed t h e murders. While under t h e drug, he w a s t o l d h i s s t o r y was i n c o n s i s t e n t . The next day A l l i e s w a s awakened around 10:OO a.m. H e says he was sleepy and groggy. Expert testimony i n d i c a t e d t h a t t h e r e s i d u a l e f f e c t s of t h e "serum" would be l i k e a mild hangover. D r . Hughett spoke with defendant f o r 4 5 minutes about t h e serum experience and t h e T i l l o t s o n murders. A l l i e s s t i l l denied being t h e murderer and claimed another man d i d it. Hughett t o l d him t h e "serum" s t o r y w a s incon- s i s t e n t and contradictory; t h a t nobody would b e l i e v e him; t h a t t o c l e a r himself, he would have t o h e l p l o c a t e t h e o t h e r man and prove h i s existence; and t h a t he himself could be t h e o t h e r man. About 15 minutes a f t e r t h e above conversation, Lt. Hensley read defendant h i s r i g h t s and obtained a purported waiver. Allies then confessed to committing the homicides. He also said he had buried the murder weapon and described its location. Later the same day, he directed the police to the weapon, a .22 caliber derringer. After the pistol was unearthed, a thumbprint found thereon was positively iden- tified as defendant's. FBI ballistics tests confirmed that the pistol was the murder weapon. Allies was charged with four counts of deliberate homicide on December 13 and was appointed an attorney with whom he consulted on the afternoon of that date. On Decem- ber 23, defense counsel entered into a stipulation dis- missing the drug charge. Defendant moved to suppress the confession and the evidence to which it led. After five days of testimony the trial court found and concluded that the confession was given voluntarily and therefore it, along with its fruits, was admissible. The case proceeded to jury trial in Yellowstone County with the Honorable Nat Allen presiding. The jury returned verdicts of guilty on four counts of mitigated deliberate homicide. Defendant was sentenced to the maximum punishment possible: 40 years in the state prison on each count to run consecutively without possibility of parole. From the denial of his various motions and the judgment of conviction, defendant appeals and raises the following issues: 1. SUPPRESSION. Whether the District Court properly denied defendant's motion to suppress the confession and its fruits. 2. PHOTOGRAPHIC EVIDENCE. Whether the ~istrict Court erred in admitting certain photographic evidence. 3. SENTENCE PROCEDURE. Whether defendant's sentence w a s properly imposed. 4 . SPEEDY TRIAL. Whether defendant w a s denied h i s r i g h t t o a speedy trial. 5. M E N T A L DISEASE/DEFECT. Whether t h e s t a t u t o r y scheme r e l a t i n g t o mental d i s e a s e or d e f e c t i s unconstitu- t i o n a l . 6. VENUE. Whether t h e D i s t r i c t Court e r r e d i n n o t g r a n t i n g defendant's motion f o r a change of venue. 7. BALLISTICS EXPERT. Whether t h e D i s t r i c t Court e r r e d i n r e f u s i n g t o appoint a b a l l i s t i c s e x p e r t f o r defen- dant. 8. HUGHETT'S TESTIMONY. Whether t h e D i s t r i c t Court e r r e d i n allowing D r . Hughett t o t e s t i f y regarding defen- d a n t ' s mental capacity. 9. TRIAL JUDGE PREJUDICE. Whether t h e t r i a l judge conducted himself s o a s t o convey p r e j u d i c e t o t h e jury. 10. CUMULATIVE ERROR. Whether t h e r e i s cumulative e r r o r r e q u i r i n g r e v e r s a l . SUPPRESSION I n s p i t e of t h e f a c t t h a t they are o u t of c o u r t s t a t e - ments seemingly s u b j e c t t o exclusion as hearsay, confessions are generally admissible a g a i n s t criminal defendants. McCormick, Evidence, 2d. Ed., 9145 a t 311. A s recognized i n Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, in-custody i n t e r r o g a t i o n s and confessions r e s u l t i n g therefrom a r e not, i n and of themselves, barred; they "remain a proper element i n law enforcement," 384 U.S. a t 478, 86 S.Ct. a t 1630, 16 L.Ed.2d a t 726, and "may p l a y an important role i n some convictions.' 384 U.S. a t 481, 86 S.Ct. a t 1631, 16 L.Ed.2d a t 727. However, t h e procurement of a confession must comport w i t h t h e guarantee t h a t a n i n d i v i d u a l w i l l n o t be compelled t o i n c r i m i n a t e himself (U.S. Const., Amend. V; 1972 Mont. Const., A r t . 11, 525), and t h a t he may n o t be convicted of a c r i m e without due process of law (U.S. Const., Amend. XIV; 1972 Mont. Const., A r t . 11, 517). W e noted above t h a t confessions are g e n e r a l l y admis- s i b l e . However, " [ t l h e t r u e t e s t of a d m i s s i b i l i t y i s t h a t t h e confession i s made f r e e l y , v o l u n t a r i l y and without compulsion of any s o r t . " Wilson v. United S t a t e s (1896), 162 U.S. 613, 623, 16 S.Ct. 895, 899, 40 L.ed. 1090, 1096. E ' r q q See a l s o v. United S t a t e s (1897), 168 U.S. 532, 18 S.Ct. 183, 42 L.ed. 568; S t a t e v. Lenon (1977), Mont. 570 P.2d 901, 34 St.Rep. 1153; S t a t e v. Lucero (1968), 151 Mont. 531, 445 P.2d 731. H i s t o r i c a l l y , involun- t a r y confessions w e r e excluded because they w e r e f e l t t o be untrustworthy. 3 Wigmore on Evidence, Chadbourn Revision, 5822. While t h i s r a t i o n a l e may r e t a i n some v i t a l i t y , it i s no longer t h e s o l e reason f o r t h e exclusion of involuntary confessions. Spano v. New York (1959), 360 U.S. 315, 320, 79 S.Ct. 1202, 1205-06, 3 L.Ed.2d 1265, 1270. The u s e of a n involuntary confession, whether it be t r u e o r f a l s e , v i t i - a t e s a c r i m i n a l c o n v i c t i o n on t h e b a s i s t h a t it v i o l a t e s t h e guarantee a g a i n s t s e l f - i n c r i m i n a t i o n , Bram v. United S t a t e s (1897), 168 U.S. 532, 542, 18 S.Ct. 183, 42 L.ed. 568, Malloy v. Hogan (1964), 378 U.S. 1, 84 S.Ct. 1489, 1 2 L.Ed.2d 653, as w e l l a s t h e r i g h t t o due process of l a w , Blackburn v. Alabama (1960), 361 U.S. 199, 205, 80 S.Ct. 274, 279, 4 L.Ed.2d 242, 247. A s s t a t e d by t h e United S t a t e s Supreme Court: "The Fourteenth Amendment f o r b i d s fundamental u n f a i r n e s s i n t h e use of evidence, whether t r u e o r f a l s e . " Blackburn v. Alabama, 361 U.S. a t 206, 80 S.Ct. a t 280, 4 L.Ed.2d a t 248. ". . . I n a l i n e of d e c i s i o n s beginning i n 1936 w i t h Brown v. M i s s i s s i p p i (1936), 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, and i n c l u d i n g c a s e s t o o numerous t o bear c i t a t i o n , [ t h e Court] has e s t a b l i s h e d t h e p r i n c i p l e t h a t t h e Fourteenth Amendment i s grievously breached when an in- voluntary confession i s obtained by a s t a t e o f f i c e r and introduced i n t o evidence i n a crim- i n a l prosecution which culminates i n a convic- t i o n . " Blackburn v. Alabama, 361 U.S. a t 205, 80 S.Ct. a t 279, 4 L.Ed.2d a t 247. The p o l i c y underlying t h e c o n s t i t u t i o n a l d o c t r i n e has been l u c i d l y s t a t e d a s follows: "The abhorrence of s o c i e t y t o t h e use of i n - voluntary confessions does n o t t u r n a l o n e on t h e i r inherefit untrustworthiness. I t a l s o t u r n s on t h e deep-rooted f e e l i n g t h a t t h e p o l i c e must obey t h e law while enforcing t h e l a w ; t h a t i n t h e end l i f e and l i b e r t y can be a s much endangered from i l l e g a l methods used t o c o n v i c t t h o s e thought t o be c r i m i n a l s as from t h e a c t u a l c r i m i n a l s themselves." Spano v. New York, 360 U.S. a t 320-321, 79 S.Ct. a t 1205-1206, 3 L.Ed.2d a t 1270. ". . . convictions following t h e admission i n t o evidence of confessions which a r e involuntary, i.e., t h e product of coercion, e i t h e r p h y s i c a l o r psychological, cannot stand. This i s s o n o t because such confessions a r e u n l i k e l y t o be t r u e b u t because t h e methods used t o e x t r a c t them offend a n underlying p r i n c i p l e i n t h e en- forcement of o u r c r i m i n a l law: t h a t o u r s i s a n a c c u s a t o r i a l and n o t a n i n q u i s i t o r i a l system-- a system i n which t h e S t a t e must e s t a b l i s h g u i l t by evidence independently and f r e e l y se- cured and may n o t by coercion prove i t s charges a g a i n s t an accused o u t of h i s own mouth." Rogers v. Richmond, 365 U.S. a t 540-41, 81 S.Ct. a t 739, 5 L.Ed.2d a t 766. I n reviewing suppression proceedings, w e a r e governed by t h e following w e l l s e t t l e d p r i n c i p l e s : "When a motion t o suppress i s presented t o a t r i a l c o u r t , i t s a n a l y s i s of t h e evidence pre- s e n t e d a t t h e p r e t r i a l hearing must focus on whether impermissible procedures w e r e followed by law enforcement a u t h o r i t i e s . The burden of proof of v o l u n t a r i n e s s is upon t h e S t a t e , and it i s r e q u i r e d t o prove v o l u n t a r i n e s s by a pre- ponderance of t h e evidence b u t n o t beyond a reasonable doubt. [ C i t a t i o n s omitted. 1 " S t a t e This general statement is not supported by substantial credible evidence. At the outset, we note that defendant was advised of his ~iranda rights before he confessed. We recognize this to be only a factor in determining if, in the "totality of the circumstances," the confession was voluntary; it is not, in and of itself, dispositive of the question. Miranda v. ~rizona, 384 U.S. at 469-70, 86 S.Ct. at 1625, 16 L.Ed.2d at 721. Proceeding from this proposition is a corollary that advising a suspect of his constitutional rights is not license to coerce a confession from him; neither does it legitimize any coercion which precedes a waiver of those rights. More than mere lip service must be given to Miranda and the principles it embodies. State v. Grimestad, supra. The pressures used on defendant to induce the confes- sion were psychological rather than physical. This type of coercion nonetheless renders a confession involuntary. Blackburn v. Alabama, 361 U.S. at 206, 80 S.Ct. at 279, 4 L.Ed.2d at 247; see also Townsend v. Sain (1963), 372 U.S. 293, 307, 83 S.Ct, 745, 754, 9 L.Ed.2d 770, 782. Whether or not defendant was "in custody" during the December 9 interrogation by Officers Bell and Trimarco is not pertinent to a determination of whether his ultimate confession was voluntary and thus admissible. The circum- stances of that session are, however, relevant as coercive factors which figure in determining if, in the totality of circumstances, the confession is voluntary. Many of the factors have been judicially condemned as coercive in na- ture. See generally, Miranda, 384 U.S. at 445-58, 86 S.Ct. at 1612-19, 16 L.Ed.2d at 707-14. These factors include keeping the suspect incommunicado in a small room; isolating t h e suspect i n a h o s t i l e p o l i c e environment; t h e mean cop-- n i c e cop i n t e r r o g a t i o n technique; and, t h e g u i l t assumption technique of i n t e r r o g a t i o n . The f a c t o r s do not, of them- s e l v e s , render t h e confession involuntary; they must merely be considered i n t h e t o t a l i t y of circumstances. The e f f e c t of most of t h e above v a r i a b l e s and i n t e r r o g a t i o n techniques on t h e f i n a l c a l c u l u s i s diminished by t h e time l a g between t h e i n i t i a l questioning on December 9 and t h e confession. Also e n t e r i n g i n t o our a n a l y s i s i s t h e f a c t t h a t , f o r t h e most p a r t , t h e above-described circumstances and methods were n o t repeated a f t e r December 9. The sodium amytal interview w a s t h e c o n t r o l l i n g device used i n obtaining t h e confession. A s w e w i l l d i s c u s s below, t h i s session occurred i n d i r e c t contravention of defendant's r i g h t t o counsel and i s inadmissible a t t r i a l . I t i s an important f a c t o r i n t h e " t o t a l i t y of circumstances" which must be considered. See generally, Townsend v. Sain, supra; S t a t e v. Hudson (Mo. 1926), 289 S.W. 920. Two v a r i a b l e s weigh heavily i n our consideration. The f i r s t , l y i n g t o defendant about how much i s known about h i s involvement i n t h e c r i m e s , i s p a r t i c u l a r l y r e p u l s i v e t o and t o t a l l y incompatible with t h e concepts of due process em- bedded i n t h e f e d e r a l and s t a t e c o n s t i t u t i o n s . The e f f e c t i s p a r t i c u l a r l y coercive and i n t h i s case i s n o t lessened by t h e time l a g between t h e i n i t i a l i n t e r r o g a t i o n and t h e confession. The l i e , although n o t repeated, was reinforced by D r . Hughett, t h e " i n v e s t i g a t o r - p s y c h i a t r i s t " who con- versed with defendant approximately f i f t e e n minutes before he confessed. H e t o l d defendant t h a t h i s s t o r y was in- c o n s i s t e n t , t h a t nobody would believe him, t h a t he would have t o produce t h e r e a l k i l l e r t o c l e a r himself, and t h a t he could i n f a c t be t h e k i l l e r . The second f a c t o r t o which w e give weight i s t h e " s u b t l e " psychological pressure which was exerted on A l l i e s from t h e time he f i r s t talked with B e l l and Trimarco u n t i l t h e t i m e he confessed. The pressure of which we speak l i e s i n leading defendant t o believe h i s problem w a s "medical o r p s y c h i a t r i c r a t h e r than criminal." I t began on December 9 when B e l l and Trimarco gave defendant t h e i r opinion about h i s s i t u a t i o n and t o l d him he could g e t help, possibly a t W a r m Springs. The pressure w a s k e p t up, and t h e i d e a t h a t h i s problem was psychological was reinforced l a t e r on t h e 9 t h i n t h e i n i t i a l c o n t a c t with D r . Hughett. The next morning t h e county a t t o r n e y again mentioned sodium amytal and t o l d defendant he could go t o t h e h o s p i t a l and r e s t . Again, emphasis w a s placed on t h e medical r a t h e r than t h e criminal a s p e c t s of h i s problems. H e w a s taken t o t h e h o s p i t a l on t h e morning of t h e l l t h and placed i n t h e i n t e n s i v e c a r e room of t h e p s y c h i a t r i c ward. H e underwent a b a t t e r y of medical tests and talked with D r . Hughett f o r about an hour and a h a l f about h i s medical h i s t o r y . O n t h e n i g h t of t h e l l t h , Hughett administered sodium amytal t o defendant i n t h e presence of L t . Hensley and t h e county attorney. The next morning, Hughett again spoke with defen- dant, r e l a t i n g t o him t h e s p e c i f i c s noted above. Scarcely f i f t e e n minutes l a t e r , A l l i e s confessed t o Lt. Hensley, who, during t h e confession, kept up t h e psychological pressure by t e l l i n g A l l i e s he knew he needed help. The p i v o t a l i s s u e presented here i s whether t h e r e s u l t s of t h e sodium amytal (popularly known as t r u t h serum) t e s t are admissible where t h e r e c i p i e n t was without b e n e f i t o r advice of counsel and had n o t received a ~ i r a n d a warning immediately preceding the administration of t h e serum. W e f i n d they a r e not. The overwhelming weight of a u t h o r i t y i n t h i s country still regards t r u t h serum tests a s inadmissible inasmuch as they have n o t a t t a i n e d t h e s c i e n t i f i c acceptance a s r e l i a b l e and accurate means of a s c e r t a i n i n g t r u t h o r deception. See S t a t e v. Linn (1969), 93 Idaho 430, 462 P.2d 729, 732. Again w e note t h a t defendant w a s read h i s r i g h t s before confessing and a t o t h e r t i m e s during t h e period i n i s s u e . The a c t of advising a person of h i s r i g h t s i s n o t a l i c e n s e t o coerce a confession; nor does it v i t i a t e any coercion o r pressures which precede t h e confession. W e f i n d t h a t , i n considering t h e t o t a l i t y of t h e circumstances, t h e S t a t e d i d n o t , by a preponderance of t h e evidence, show t h a t defendant v o l u n t a r i l y and knowingly waived h i s c o n s t i t u t i o n a l r i g h t a g a i n s t self-incrimination o r t h a t he v o l u n t a r i l y confessed. Even a f t e r giving deference t o t h e t r i a l c o u r t ' s determina- t i o n , w e a r e constrained by t h e f a c t s of t h i s case t o hold t h a t a f i n d i n g contrary t o o u r s i s n o t supported by sub- s t a n t i a l c r e d i b l e evidence. The t r i a l c o u r t e r r e d i n n o t granting t h e motion t o suppress t h e confession. To summarize, defendant's confession was inadmissible on t h e b a s i s t h a t it was n o t voluntary. I n a d d i t i o n , t h e confession a l s o grows o u t of a d e n i a l of defendant's r i g h t t o counsel. Defendant contends t h a t under t h e " f r u i t of t h e poi- sonous t r e e " concept of Wong Sun v. United S t a t e s (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 4 4 1 , t h e evidence obtained a s a r e s u l t of h i s confession should be suppressed, W e agree. Evidence gained as a r e s u l t of a c o n s t i t u t i o n a l v i o l a - t i o n cannot be used t o uncover o t h e r physical evidence. Orozco v. Texas (1969), 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311, discussed i n Nedrud and Oberto, The Supreme - Court -- and t h e Criminal Law, Vol. l B I S1.3-13; Wong Sun v. United S t a t e s , supra; Gladden v. Holland ( 9 t h C i r . 1966), 366 F.2d 580; Wakeman v. S t a t e (Fla.App. 1970), 237 So.2d 61; Dover v. S t a t e ( M i s s . 1969), 227 So.2d 296; S t a t e v. Lekas (1968), 201 Kan. 579, 442 P.2d 11; People v. O'Leary / 62.3- (1967), 45 I11.2d H , 257 N.E.2d 112; People v. Ditson (1962), 20 Cal.Rptr. 165, 369 P.2d 714, p e t . cert. dismissed (1963), 372 U.S. 933, 83 S.Ct. 885, 9 L.Ed.2d 769; McCormick, Evidence, 2d Ed., S157 a t 344. See Michigan v. Tucker 433 (1974), 417 U.S. 43f% 94 S.Ct. 2357, 4 1 L.Ed.2d 182; Har- r i s o n v. United S t a t e s (1968), 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047; United S t a t e s v. Massey (M.D. F l a . 1977), A s s t a r e d by t h e United S t a t e s Supreme Court: "The essence of a p r o v i s i o n forbidding t h e acqui- s i t i o n of evidence i n a c e r t a i n way i s n o t merely t h a t evidence s o acquired may n o t be used b e f o r e t h e c o u r t , b u t t h a t it may n o t be used a t a l l . " S i l v e r t h o r n e Lumber Co. v. United S t a t e s (1920), 251 U.S. 385, 392, 40 S.Ct. 182, 183, M b L.ed. 319, 321. L'J The f r u i t of t h e poisonous tree d o c t r i n e i s m o s t o f t e n re- f e r r e d t o i n conjunction w i t h searches and s e i z u r e s . Most c o u r t s considering t h e r u l e a s it r e l a t e s t o inadmissible confessions have analyzed it along t h e same l i n e a s t h e g e n e r a l r u l e ; i.e., i f t h e p h y s i c a l evidence i s a f r u i t of t h e c o n s t i t u t i o n a l v i o l a t i o n , it must be excluded. See S t a t e v. Lekas, supra; see g e n e r a l l y , McCormick, Evidence, 2d Ed., S157 a t 344. I n People v. Ditson, supra, t h e C a l i - f o r n i a Supreme Court undertook an e x t e n s i v e d i s c u s s i o n of t h e r u l e and concluded: "It appears to us to follow that if it offends 'the community's sense of fair play and decencyr to convict a defendant by evidence extorted from him in the form of an involuntary confes- sion, that sense of fair play and decency is no less offended when a defendant is convicted by real evidence which the police have dis- covered essentially virtue of having extorted such a confession. If the oneamounts to a - - denial of a fair trial and due process of law, so must the other. If the one is the inadmis- sible product of 'police procedure which vio- lates the basic notions of our accusatorial mode of prosecuting crime' (Watts v. Indiana (1949)r supra, 338 U.S. 49, 55, 69 S.Ct. 1327, 93 L.Ed. 1801), so must the other be. It does not appear that we can draw a constitutionally valid dis- tinction between the two." Ditson, 20 Cal.Rptr. at 178, 369 P.2d at 727. We abide in the result reached by the above-cited authorities and hold the fruits of the confession inadmis- sible. The fruits in this case include the .22 derringer identified as the murder weapon, the bullets and pouch found with the weapon, a copy of the firearm registration defen- dant filled out when he bought the gun, photographs of the gun, the fingerprint found thereon, and the testimony matching the ballistics of the gun to the ballistics of the weapon with which the crimes were committed. There are three general exceptions to exclusion of the fruit of the poisonous tree. (1) If the evidence is attenu- ated from the constitutional violation so as to remove its primary taint, it will be admissible. Wong - Sun, 371 U.S. at 488, 83 S.Ct. at 417, 9 L.Ed.2d at 455. (2) If the evidence is obtained from a source independent of the defendant's confession, it will be admissible. Silverthorne Lumber Co. v. United States, 251 U.S. at 392, 40 S.Ct. at 183, 64 L.Ed. at 321. (3) If it is inevitable that the evidence would have been discovered apart from the defendant's confession, it is admissible. Government of Virgin Islands v. Gereau (3rd Cir. 1974), 502 F.2d 914, 927-28. None of these excep- tions apply to the instant facts. The description of t h e p i s t o l ' s l o c a t i o n i n t h e confes- sion and t h e temporal proximity of the confession t o t h e discovery of t h e gun precludes any a s s e r t i o n t h a t obtaining t h e f r u i t is attenuated from the c o n s t i t u t i o n a l v i o l a t i o n . The f a c t t h a t A l l i e s himself d i r e c t e d t h e p o l i c e t o the p i s t o l disposes of any argument t o the e f f e c t t h a t it w a s a c t u a l l y obtained from an independent source. Kathy Terry, t h e only person who had knowledge of the concealment ( a s opposed t o t h e discovery) of the p i s t o l t e s t i f i e d : "Q. Right now, can you r e c a l l t h a t you a c t u a l l y saw t h e derringer on t h e day you went t o bury t h e guns? A. I did. They w e r e both i n the same box. "Q. Did you see i n t o t h e box? A. When he was g e t t i n g it ready, they were both i n t h e same box. And I walked i n t o the kitchen. And when I returned t h e box had already been closed and taped. And t h a t i s t h e l a s t t i m e I saw them. W e buried them a f t e r t h a t . " She went on t o describe how the box had been hidden beneath a rock. On December 1 2 , before A l l i e s confessed, she l e d p o l i c e o f f i c e r s t o t h e location where t h e box w a s concealed. The only gun found t h e r e i n w a s a 9 mrn p i s t o l . Kathy T e r r y ' s evidence up t o t h a t p o i n t i s admissible; however, the murder weapon was unearthed a t defendant's d i r e c t i o n nearly half a m i l e away. A s discussed above, t h e discovery of t h e der- r i n g e r is a f r u i t of t h e excluded confession and inadmis- s i b l e . I n applying t h e t h i r d exception, t h e i n e v i t a b l e d i s - covery r u l e , c o u r t s must n o t l o s e s i g h t of t h e protections guaranteed by t h e Constitution. To avoid deciding cases on a judge's speculation a s t o what t h e p o l i c e "might," ''could" o r "should" have done, it must appear t h a t t h e evidence would have been obtained even i n t h e absence of information received i n v i o l a t i o n of a defendant's r i g h t s . I t must appear t h a t , a s c e r t a i n l y a s n i g h t follows day, t h e evidence would have been discovered without reference t o t h e v i o l a - t i o n of t h e defendant's r i g h t s . The evidence i n t h i s case could n o t conceivably support such a finding. Due t o t h e i l l e g a l i t y of t h e method used i n obtaining defendant's confession, w e have no choice b u t t o r e v e r s e and remand t h e case t o t h e D i s t r i c t Court f o r a new t r i a l . I n deciding t h i s case, w e have n o t c r e a t e d new law; w e have merely applied e x i s t i n g l e g a l and c o n s t i t u t i o n a l p r i n c i p l e s . The opinion of t h i s Court i s n o t entered l i g h t l y . The crimes f o r which defendant w a s convicted were s e n s e l e s s and b r u t a l and, as i n B r e w e r v. Williams (1977), 430 U.S. 387, ". . . c a l l [ e d l f o r s w i f t and e n e r g e t i c a c t i o n by t h e p o l i c e t o apprehend t h e p e r p e t r a t o r and g a t h e r evidence with which he could be convicted. N o mission of law enforcement o f f i c i a l s i s more important. Yet, ' [dl i s i n t e r e s t e d z e a l f o r t h e p u b l i c good does n o t a s s u r e e i t h e r wisdom o r r i g h t i n t h e methods it pursues.' Haley v. Ohio [1948], 332 U.S. 596, 605, 68 S.Ct. 302, 306, 92 L.Ed. 224 (Frankfurter, J., concurring i n judgment). . . The pressures on state executive and j u d i c i a l o f f i c e r s charged with t h e adminis- t r a t i o n of t h e criminal law are g r e a t , e s p e c i a l l y when t h e c r i m e i s murder . . . But it is pre- c i s e l y t h e p r e d i c t a b i l i t y of those pressures t h a t makes imperative a r e s o l u t e l o y a l t y t o t h e guarantees t h a t t h e Constitution extends t o us a l l . " I n view of our holding t h a t t h i s case must be returned t o t h e D i s t r i c t Court f o r r e t r i a l , w e d i r e c t our a t t e n t i o n t o defendant's second i s s u e and f i n d it meritorious: PHOTOGRAPHIC EVIDENCE Defendant contends t h a t t h e photographs of t h e victims introduced a t t r i a l w e r e gruesome, inflammatory and unduly p r e j u d i c i a l and t h a t , on t h i s ground alone, he i s e n t i t l e d t o a new t r i a l . W e agree. II I . . .[photographs] a r e admissible f o r t h e pur- pose of explaining and applying t h e evidence and a s s i s t i n g t h e c o u r t and jury i n understanding t h e case. ' "Photographs t h a t are c a l c u l a t e d t o arouse t h e sympathies of t h e jury a r e properly excluded, p a r t i c u l a r l y i f they a r e n o t s u b s t a n t i a l l y necessary o r i n s t r u c t i v e t o show material f a c t s o r condition." S t a t e v. B i s c h e r t (1957), 131 Mont. 152, 159, 308 P.2d 969, 973. See a l s o Rule 403, Mont.R.Evid. The p i c t u r e s admitted here are extremely gruesome and q u i t e capable of inflaming t h e minds of t h e jury and engen- d e r i n g prejudice. They w e r e admitted f o r use by t h e S t a t e ' s p a t h o l o g i s t i n i d e n t i f y i n g t h e victims, demonstrating t h e p o s i t i o n of t h e bodies, and e s t a b l i s h i n g t h e cause of death. Because t h i s could have been and w a s e s t a b l i s h e d without t h e use of t h e photographs, t h e i r probative value i s low. The t r i a l c o u r t e r r e d i n allowing t h e i r introduction. W e have reviewed a l l o t h e r i s s u e s r a i s e d and f i n d them without m e r i t . A s p a r t of our d i s p o s i t i o n of t h i s c a s e , we note it i s n o t a c i v i l a c t i o n brought under Chapter 21, T i t l e 53, Montana Code Annotated, seeking t o have an i n d i v i d u a l com- mitted t o a mental i n s t i t u t i o n . Rather, it i s a criminal prosecution f o r c a p i t a l offenses i n which concern with t h e defendant's mental s t a t e was l i m i t e d t o determining h i s f i t n e s s t o stand t r i a l and h i s l e g a l a b i l i t y t o commit a c r i m e . These i s s u e s figured prominently i n t h e case and, i f t h i s w e r e a proceeding f o r c i v i l commitment, t h e r e would be s u b s t a n t i a l c r e d i b l e evidence upon which t o base a finding t h a t defendant i s a dangerous i n d i v i d u a l who cannot s a f e l y e x i s t i n our law abiding society. This being a criminal appeal i n which defendant's danger t o s o c i e t y was n o t reached under Chapter 21, T i t l e 53, w e do n o t r u l e on t h a t i s s u e . A s an a p p e l l a t e c o u r t , w e do n o t undertake t o r e s o l v e t h e q u e s t i o n . I n i s s u i n g our d e c i s i o n we recognize a b a s i c duty n o t t o unnecessarily endanger t h e s a f e t y of t h e people of t h i s s t a t e . I n case t h e S t a t e decides f u r t h e r prosecution of t h e case i s n o t p o s s i b l e , w e f i n d t h a t t h e evidence presented i n t h i s c a s e p o i n t s t o defendant's danger t o s o c i e t y and f e e l t h a t an "emergency s i t u a t i o n " would e x i s t under s e c t i o n 53- 21-129, MCA. Cf. Smallwood v. Warden, Maryland P e n i t e n t i a r y ( 4 t h C i r . 1966), 367 F.2d 945. The s t a t u t e provides: " (1) When an emergency s i t u a t i o n e x i s t s , a peace o f f i c e r may t a k e any person who appears t o be s e r i o u s l y mentally ill and a s a r e s u l t of seri- ous mental i l l n e s s t o be a danger t o o t h e r s o r t o himself i n t o custody o n l y f o r s u f f i c i e n t t i m e t o c o n t a c t a p r o f e s s i o n a l person f o r emergency evaluation. I f p o s s i b l e , a p r o f e s s i o n a l person should be c a l l e d p r i o r t o t a k i n g t h e person i n t o custody . " ( 2 ) I f t h e p r o f e s s i o n a l person a g r e e s t h a t t h e person detained appears t o be s e r i o u s l y mentally ill and t h a t an emergency s i t u a t i o n e x i s t s , then t h e person may be detained and t r e a t e d u n t i l t h e n e x t r e g u l a r business day. A t t h a t t i m e , t h e p r o f e s s i o n a l person s h a l l release t h e d e t a i n e d person o r f i l e h i s f i n d i n g s with t h e county a t - torney who, i f he determines probable cause t o e x i s t , s h a l l f i l e t h e p e t i t i o n provided f o r i n 53-21-121 through 53-21-126 i n t h e county of t h e respondent's residence. I n e i t h e r c a s e , t h e pro- f e s s i o n a l person s h a l l f i l e a r e p o r t w i t h t h e c o u r t explaining h i s a c t i o n s . " I n t h i s i n s t a n c e , A l l i e s i s c u r r e n t l y i n custody. Therefore, i n t h e e v e n t t h e S t a t e d e c l i n e s t o prosecute on remand, w e o r d e r t h a t h i s detainment be continued f o r a t i m e period s u f f i c i e n t f o r an emergency e v a l u a t i o n under t h e above-quoted s t a t u t e . From t h i s p o i n t , t h e s t a t u t e s a r e c l e a r on t h e procedure t o be followed. Sections 53-21-121 e t seq., MCA; Comment, 38 M0nt.L.R. 307 (1977). The D i s t r i c t Court i s reversed, and t h e case is remanded f o r a new t r i a l . Defendant i s t o be detained pursuant t o t h e l a s t p a r t of t h i s opinion. W e concur: Chief J u s t i c e t r i c t Judge, siciyf i n p l a c e of M r . J u s t i c e ohn C. Sheehy Mr. Chief Justice Haswell, concurring in part and dissenting in part: I concur in the reversal of defendant's conviction for the reasons stated in the majority opinion. I dissent from grant- ing a new trial. The essence of our criminal law is that a man may not be convicted of committing a crime unless it is proved beyond a reasonable doubt that he did so. In re Winship (1970), 397 U . S . 358, 90 S.Ct. 1068, 25 L Ed 2d 368; State v. McWilliams (1936), 102 Mont. 313, 57 P.2d 788. Upon reviewing the sufficiency of the evidence to sustain a conviction, we do not pass on the credi- bility of the witnesses or the weight to be given their testimony as such matters are the sole province of the jury. State v, De- George (1977), 173 Mont. 35, 566 P.2d 59, 60, 34 St.Rep. 541, 543; State v . Bouldin (1969), 153 Mont. 276, 284, 456 P.2d 830, 834-835. Rather, we view the evidence in the light most favorable to the state and affirm the verdict of the jury if there is substantial credible evidence to support it. Glasser v . United Stctes (1942), 315 U . S . 60, 80, 62 S.Ct. 457, 469, 86 L Ed 680, 704; State v. Pascgo (1977), 173 Mont. 121, 566 P.2d 802, 805, 34 St-Rep. 657, 660. If a case is reversed solely for insufficiency of the evi- dence and then remanded for retrial, the defendant is unconstitu- tionally subjected to double jeopardy. U . S . Const., Amend. XIV; Burks v . United States (1978), 437 U.S. 1, 98 Sect. 2141, 57 L Ed 2d 1; 1972 Mont. Const., Art. 11, 525. In this case, the conviction is reversed because a portion of the evidence used at trial was obtained in violation of the defendant's constitutional rights. The United States Supreme Court has not yet answered the question of whether a defendant is sub- jected to double jeopardy upon retrial when the reviewing court has decided the "legally competent evidence adduced at the first trial was insufficient to prove guilt." Greene v. Massey (1978), 437 U.S. 19, 26, 98 S.Ct. 2151, 2155, 57 L Ed 2d 15, 22, n. 9. The Montana Supreme Court however, has decided the question and held that a new trial cannot be granted when admis- sible evidence from the first trial will not support a conviction. State v. Johnson (1978), Mont. , 580 P.2d 1387, 1390, 35 St.Rep. 952, 956; State v . (1968), 151 Mont. 558, 568, 445 P.2d 565, 570. This is a sound rule and one from which the Court should not deviate. By ruling otherwise, the prosecution is af- forded another opportunity to supply evidence which it failed to muster at the first proceeding. This is precisely what the double jeopardy clause forbids. Barks v . United States, supra, 437 U . S . at 11, 98 S.Ct. at 2147, 57 L Ed 2d at 9; see generally Note, 10 Tex. Tech. L.R. 184 (1978). The legally admissible evidence at defendant's trial shoved the following: That defendant owned and sometimes carried a small caliber pistol; that his girlfriend did not see the gun on the day the homicides were committed; that defendant was not at home at the time they were committed; that defendant may have buried the pistol; and that -22 caliber bullets were found in his van. In addition, defendant knew the homicide victims and had been at their home hours before their deaths. A man, not positively iden- tified, had been seen walking down an alley near the scene of the crimes at about the time the murders were committed. Finally a van, similar to, but said positively not to be defendant's by the only person who saw it, was seen near the victims' home and was driven away shortly after the homicides were perpetrated. This is not sufficient to support a conviction and a new trial cannot be granted. State v. Johnson, P l o n t . , 580 P.2d at 1390, 35 St-Rep. at 956. I agree with the majority that the psychiatric testimony shows defendant to be a very disturbed individual and that his release would present a danger to society as well as to him- self. I would therefore order him detained under Chapter 21, Title 53, MCA and direct proceedings to be commenced under that chapter to procure defendant's c o r n m i t : n . . e n t to a mental institu- tion. ................................. Chief Justice Mr. Justice Daniel J. Shea will file a separate opinion later. SEPARATE CONCURRING OPINION AND DISSENT ' ----------------- MR. JUSTICE DANIEL J. SHEA ----------------- STATE OF MONTANA, Plaintiff and Respondent, 'JAN1 01333 VS . l'f ykomnd ,$ -' 'ltn*!f GUY JOHN ALLIES, GLC-,, OF C 7 : . -, -.c CCUHT -n \ - 5TATT C ,-- : v ? = . " ; : " * A Defendant and Appellant. January 10, 1980 ---------------- Mr. Justice Daniel J. Shea concurring in part and dissenting in part. I concur in the majority opinion that defendant's conviction must be reversed. I agree, on the other hand, with the dissent of Chief Justice Haswell that principles of double jeopardy, as applied to the factual circumstances of this case, require that the case be dismissed rather than simply granting a new trial. Although I agree with the main opinion that unconstitutional methods were used to extract the confession from defendant, I would not focus, as the main opinion has, on the administering of sodium amytal (truth serum) as being the pivotal or crucial issue. The main opinion has failed to focus on two crucial issues surrounding the circumstances of defendant's confession. The first is the effect of the arrest of the defendant on the drug charges and the legal consequences which flow from using this arrest as the "tool" by which to launch a more intensive homicide interrogation. The second is the effect of the denial of defendant's constitutional right to counsel after he was arrested, appeared before the justice court on the drug charges, and requested that an attorney be appointed for him. Legal consequences surely flow from the continued interrogation of the defendant after he was in custody and had requested an attorney. In addition to the above, since the majority has chosen to grant a new trial to defendant, there are other issues raised by the defendant which should have been discussed and decided by the majority, and the issue of speedy trial, in particular, should have been discussed and decided. Insofar as the double jeopardy issue is concerned (new trial versus dismissal), Chief Justice Haswell has cited two cases decided by this Court which hold that if the admissible evidence will not support a conviction, a new trial cannot be -29- granted. State v. Johnson (1978), Mon t . , 580 P.2d 1387, 1390, 35 St.Rep. 952, 956; State v. an& (1968), 151 Mont. 558, 568, 445 P.2d 565, 570. If the majority thought that these cases should be overruled, then the majority should have overruled them. It adds nothing to the law of this State to simply pass over these cases as though they did not exist. Casting the illegally admitted evidence aside, it is our duty to determine if there still exists in the case, admissible evidence which would permit the prosecution to submit the case to the jury for its decision. I agree with Chief Justice Haswell that there was insufficient evidence, thus, under double jeopardy principles, the case must be dismissed. "OTHER ISSUES RAISED BY THE DEFENDANT The defendant raised several other issues in addition to those directly relating to the confession. Briefly stated, those issues are: (I) that defendant was denied a speedy trial; (2) that photographic evidence of the victims' bodies unduly inflamed the passions of the jury; (3) that Dr. Hughett should not have been permitted to testify to defendant's mental con- dition; (4) that a ballistics expert should have been appointed for the defendant as he had requested; (5) that a change of venue should have been granted; (6) that trial judge prejudice necessitates the granting of a new trial; (7) that, if nothing else, the cumulative error doctrine requires the granting of a new trial; and, (8) that the mental disease or defect statutes are unconstitutional. Before briefly discussing these issues, I emphasize that the position taken by both Chief Justice Haswell and myself-- that is, that double jeopardy principles require a dismissal-- would not require the Court to discuss any of the remaining issues for the case would be over. But that situation is drastically changed where, as the majority has done here, a new trial has -30- As to the remaining issues raised by the defendant, the majority opinion passes them off with this cavalier statement: "We have reviewed all other issues raised and find them without merit." If any statement is likely to get us in trouble with the Federal Courts at a later time, one such as this surely will. The issues, and particularly the speedy trial issue, cannot be disposed of that easily. The issues of change of venue and cumulative error are clearly moot. The issue of trial judge prejudice can also be determined as moot unless the majority should want to address the issue because the same trial judge who presided over the first trial may also preside over the second trial. Perhaps the majority should consider whether the facts of the trial record demonstrate that he should not sit again upon the retrial. The issue of constitutionality of the mental disease or defect states can be treated as being moot, although this Court may again be faced with this same issue if defendant is convicted again and those statutes are again involved at the trial of the case. Because a new trial has been ordered, the majority opinion should have addressed the question of whether or not Dr. Hughett should have been permitted to testify to defendant's mental condition. The statement of this issue in the opinion leaves the reader in a muddle as to what the issue actually is. Impliedly, one can argue that this Court ruled against the defendant, but if one does not know precisely what the issue is, how can the trial courts and lawyers ever know what has been decided. It is also possible that ballistics may be an issue again at the retrial. Since defendant was denied the right to have a ballistics expert appointed to aid in his defense, perhaps -32- been granted. I will not address the merits of these issues, but simply point out some defects in the majority opinion. Other than the main suppression issue, the only issue discussed by the majority, and that very briefly, is the issue of claimed error in admitting photographs of the bodies. The majority has ruled that the pictures are unduly gruesome or inflammatory and should not be admitted at the second trial. It also appears that the majority, even if it held against the defendant on all other issues, ruled that the admission of the pictures in and of itself required the grant of a new trial. With this I do not agree. There is no doubt that the prosecution could have gotten along quite well without the pictures--they certainly were not needed. On the other hand, I have never thought that the prosecution must always present a sanitized version of the facts to the jury. Here, the defendant was charged with deliberate homicide and the jury convicted him of mitigated deliberate homicide. This, if nothing else, is an indication that the jury was not unduly swayed by the pictures. But what really bothers me on the issue of photographs is the fact that there is utterly no consistency in this Court with regard to pictures. Here, the court ruled that a new trial was deserved on the issue of the photographs alone. I note, however, that the pictures admitted into evidence here cannot hold a candle to the gruesomeness of the pictures admitted in the case of State v. McKenzie (1978) , Mont . I 581 1219 P.2d 1205, at 121% 35 St.Rep. 759, at 774, and yet the Court there, without even indicating what the pictures depicted, held them not prejudicial. I only emphasize this to point out that there seems to be no rhyme or reason to this Court's position on photographic evidence of homicide victims. -31- the majority opinion should have more properly disposed of this issue in the opinion. Again, the majority opinion did not state the precise issue alleged in relation to the ballistics problem, and therefore the opinion provides no guidance to trial judges or lawyers. But most important of all in terms of the ultimate effect on the defendant, is the speedy trial issue. This issue is not moot and the majority has an obligation to discuss it on the merits. The crimes took place on November 11, 1976, homicide charges were filed on December 12, 1976, and trial took place on January 16, 1978, more than thirteen months later. Defendant concedes that time taken in his attempts to secure a writ of supervisory control should not run against the State, but even on this basis, the time lapse between charges and trial is 10 months and 17 days. In ~itzpatrick 382 v. Crist (1974), 165 Mont. 3-83l 528 P.2d 1322, this Court held a 7 month delay sufficient to shift the burden to the State to explain the delay and show an absence of prejudice. And although we have held that there is no precise lapse of time sufficient to give rise to presumptive prejudice (State v. Cassidy (1978), - Mon t . , 578 P.2d 735, 35 St.Rep. 612, 615) , undoubtedly the delay of over 10 months here (con- ceding defendant's acknowledgment that the delay taken in the attempts to secure a writ of supervisory control from this Court should not be counted against the State) is sufficient to trigger an inquiry and shift the burden to the State to prove an absence of prejudice. This duty to examine the facts and circumstances sur- rounding the time lapse between charges and trial must be decided on the merits. The reason is obvious: If this Court should conclude that defendant had been denied a speedy trial, the result would not be a new trial, it would be a dismissal. -33- Since a resolution of the speedy trial issue in defendant's favor would put an end to the prosecution, the majority cannot get away with simply making the bald conclusion (without stating and analyzing the facts in compliance with Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101) that the issue has no merit. If this Court fails to do so, we will be ordered to do so by a Federal Court, and with total justification. With regard to this speedy trial issue, I emphasize that I take no position. I simply point out that this issue must be discussed and decided by the majority, one way or the other. Having pointed out these problems with the majority opinion on the "remaining issues", I turn now to my concurring opinion wherein I discuss the effect of the arrest on the drug charges in order to facilitate the homicide interrogations, and the effect of the failure to provide counsel to defendant after his arrest and after he requested the appointment of an attorney at his appearance before the justice of the peace. The pretrial legal proceedings centered primarily around defendant's motion to suppress the confession and its fruits based on claims of constitutional rights. The hearing was long and involved, taking a total of five days. At the conclusion of the hearing the trial court took the matter under advisement. It did this on July 11, 1977. On July 25, 1977, the trial court, without an attempt to analyze the issues and evidence presented in relation to those issues, and without even entering findings of fact and conclusions of law, entered the following all encompassing order denying the defendant's motion to suppress; "The Court finds the statements made by Defendant, including all confessions ex- culpatory and inculpatory, were made voluntarily by the Defendant, without any doubt by the Court." -34- The main opinion has also quoted this bald-conclusory statement. Suffice to say that we are provided no insight whatsoever into the trial court's analysis of the issues and application of the law to the facts presented at the motion to suppress. Nothing can be more frustrating to lawyers when a judge makes such a ruling; and nothing is more meaningless to an appellate court when we are called upon to review the decisions and actions of the trial courts. How can we tell whether the trial court conscientiously attempted to make a good faith decision based upon the evidence and the law when no underlying basis is provided to us by which we can make that determination? Under these circumstances, the presumption of regularity of a trial court's decision should evaporate the instant such a bald conclusion is made disposing of all the issues raised. Why are not the litigants and the public entitled to know the basis upon which the trial court set forth the issues, analyzed the evidence, and applied the law to the facts as the trial court perceived the facts to be? Is this too much to ask? Although the main opinion has concentrated on the methods used in obtaining the confession as being coercive, and constitutionally repugnant, thereby rendering the confession involuntary, I note that the opinion has not sufficiently considered two additional grounds which independently, are serious enough to invalidate the confession. The confession here was tainted by the initial illegal investigatory arrest on ostensibly/drug charges, which taint continued, unabated throughout the four day period that defendant was subjected to the interrogation techniques so soundly condemned by the main opinion. Moreover, during this same period of time, and after he had requested the appointment of counsel at the -35- justice court appearance on Friday morning, he was denied counsel until after the confession was extracted on Sunday morning and he appeared in District Court to answer to the homicide charges. The legal consequences which flow from this illegal investigatory arrest and the denial of counsel are such that the arrest and denial of counsel served as the launching pad from which the State took a four day holiday with defendant's constitutional rights. THE LEGAL CONSEQUENCES FLOWING FROM AN ILLEGAL ARREST: It is abundantly clear that had the defendant not been arrested and held in custody, the agents of the State would not have been able to subject him to the interrogation tech- niques used on him over a four day period until the confession was finally extracted on Sunday morning. It was therefore essential for the State agents to have defendant in their custody. Indeed, even before defendant was formally arrested on the drug charges, he had been held in a 12' by 12' room where he had been interrogated for four hours by the police, and the police guarded this room while two of the interrogating officers went to search defendant's home and van. The police knew, however, that they could not continue to hold the defendant under such circumstances without getting into deep legal trouble. Accordingly, they had to fashion a basis upon which they could arrest him, and thus "legally" have defendant in their custody. Hence the arrest on drug charges. One of the main contentions of defense counsel is that the arrest, ostensibly on drug charges, was an illegal in- vestigatory arrest, used only as a means by which interrogation of defendant on the homicide charges could be intensified. Essential to this contention is the nature of the consent which defendant gave to the police to search his home and van. - 3 6 - He claims that the police expressly or impliedly told him that if they discovered drugs while in the process of searching for evidence linking him to the homicides, that they would not arrest or charge him based upon such discovery of drugs. Another legal consequence which follows from an illegal investigatory arrest, is the effect of this arrest on the right to counsel. If the drug arrest and charges could be sustained, defendant was obviously entitled to counsel on the drug charges. On the other hand, if it was an illegal investigatory arrest, aimed at assuring continuity of an in-custody interrogation in relation to the homicides, the confession cannot be admitted if it is at all tainted by this arrest. Moreover, if the arrest was actually one to facilitate the homicide interrogation, defendant, upon that arrest, was entitled to have counsel appointed for him to represent him in relation to the homicides. In answering the defendant's arguments, the State argues first that the arrest on the drug charges was legal and therefore that a prosecution on the drug charges could legally follow. In essence, the State argues that defendant's consent given to the police to search his home and van was a general blanket consent and that agents of the State did not tell defendant that he would not be arrested or prosecuted for drug possession if drugs were found in his home or in his van. Based on this assumption of legality, the State then argues that although counsel was not provided to defendant on the drug charges, and even thouqh he had requested counsel at his justice court appearance, his rights were not prejudiced by the denial of counsel because its agents did not interrogate defendant on the drug charges after his arrest and appearance in justice court. The State then proceeds to the third prong of its contention that the arrest on the drug charges was legal. The State argues that because defendant was not in custody onhomicide charges, but only on the drug charges, its agents therefore had a right to interrogate defendant concerning the homicides. For this theory of interrogation, the State relies on the unrelated offense doctrine set forth in United States v. Dowells (9th Cir. 1969), 415 F.2d 801, but the facts of the Dowells case have absolutely no application to the facts of this case. The State comes up with another argument in the event that this Court should hold that the drug arrest was an illegal investagatory arrest. It argues that probable cause did in fact exist to arrest on the homicides, and that even if the police did not recognize they had probable cause and did not rely on the homicide offense as the basis for making the arrest, the arrest can nonetheless be sustained. For this theory, the State relies on United States v. Saunders (5th Cir. 1973), 476 F.2d 5: "When an officer makes an arrest which is properly supported by probable cause to arrest for a certain offense, neither his subjective reliance on the offense for which no probable cause exists nor his verbal announcement of the wr offense vitiates the arrest." 476 F.2d at k i yg Translated, this is a conversion of a rule too often used by appellate courts when the trial court has entered a judgment which, for some reason, can be sustained, but for which the trial court has assigned the wrong reasons in entering the judgment. Applied here, the rule means that as long as the police had probable cause to arrest on some offense, even though they were unaware of the existence of such probable cause, the arrest will be sustained. Assuming the propriety and viability of such a rule in this State, it assumes that there was probable cause to -38- make the arrest for the homicides. In addition, if one assumessuch probable cause to arrest for the homicides, defendant's right to counsel on those charges attached immediately, and it was the State's duty, if defendant could not obtain his own counsel, to obtain counsel for him. Thus when he was arraigned on Friday morning on the drug charges, it was the State's duty to provide counsel to defendant on the homicide charges. The State cannot obtain the benefit of an alternative theory of arrest to avoid a conclusion that it was illegal and by the same process avoid the duties which attach as a result of receiving the benefits of this alternative theory of arrest. By persisting in its questioning of defendant after his right to counsel had attached by his assertion of such right, the State proceeded for the following three days at its own risk, knowing full well that it was depriving the defendant of his constitutional right to counsel. But neither of the alternative theories of the State can be factually sustained. The arrest cannot be validated on the theory that objective probable cause existed to arrest on the homicides even though the police subjectively relied on probable cause to arrest on the basis of illegal drug possession. The simple reason is that probable cause did not exist to arrest on the homicides. Assuming a valid arrest on the drug possession charge, the unrelated offense doctrine, as relied on by the State, cannot, under the facts of this case, free the State to interrogate defendant in relation to the homicides. And last, but not least, the evidence does not justify a conclusion that the initial arrest for drug possession was valid. Concerning the assertion of probable cause to arrest for the homicides: All the police knew was that defendant once owned a small caliber pistol; that he knew the victims -39- and had been at the scene of the crimes within eighteen hours of its commission; and, that he had altered his alibi. These factors would arouse suspicion, but they do not con- stitute probable cause to make an arrest based on the con- clusion that defendant had committed the homicides. Probable cause is determined by whether or not the officers had such information to warrant a man of reasonable caution in the belief that defendant had committed the crimes. State v. Hill (1976), 170 Mont. 71, 74, 550 P.2d 390, 392: section 46- 6-401, MCA. See also Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. A good faith belief, absent the factual foundation, does not fulfill this require- ment. Assuming moreover, that probable cause did exist to arrest defendant on the homicides, the State then had an obligation to provide counsel to defendant to represent him on the homicide charges, and had no right to hold defendant incommunicado for three more days while subjecting him to the procedures which eventually extracted the confession. Briefly stated, the State cannot have the best of two worlds. In seeking to validate its continual and persistent interrogation of defendant after his arrest and appearance before the justice of the peace and his request for an attorney, the State must cross two hurdles. First, it must establish that defendant's consent to the search of his home and van permitted them not only to seize drugs, but also to arrest and charge him for possession of drugs. Second, assuming the right to arrest and charge him with drug possession, it must establish that the unrelated offense doctrine applies in order to validate the interrogation of defendant on the homicide offenses while he was in custody on the drug charges. The State fails on both counts. -40- The evidence does not support a conclusion that defendant gave his consent to search for drugs knowing that if any were found that he would be arrested and charged with drug possession. Rather, it supports a conclusion that defendant thought he would not be arrested for drug possession in the event drugs were discovered while the police were engaged in a search for evidence connecting defendant to the homicides. As stated by the county attorney during the hearing of this appeal, the police and his office were under tremendous pressure from the public and the press to solve the homicide case as soon as possible and bring the perpetrator to justice. While investigating the case the police had generally let it be known that no drug-related arrests or prosecutions would come about in relation to information anyone gave to them in connection with the homicide investigation. The record does not disclose whether defendant was aware of this general drug charge leniency extended to the public in the hopes of acquiring information relating to the homicides. But two factors relate directly to the defendant's situation. On November 22, Detective Hirischi told defendant that he would not be arrested on drug charges stemming from his dealings with the Tillotsons which could be brought as a result of his cooperation in the homicide investigation. On December 9, the day defendant signed the consent form to search his home and van, officer Trimarco told him that they were "not inter- ested in" or "too concerned" with drugs, but rather, were after the instrumentalities of fruits of the homicides. Defendant then consented to the search of his home and van and signed a form containing the following language: "I have been advised that I do not have to give these officers permission to search my home and property. I am giving this consent without any threats or pressures of any type used against me." An important factor here is that when defendant signed the consent to search he was in fact already in the custody of the police although he had not been formally arrested. Officers had just previously interrogated him for four hours in a 12 foot by 12 foot room, and he was left there guarded by two other officers while the interrogating officers went to search his home and van for evidence connecting him to the homicides. Defendant testified that while under guard he asked the guarding officers when he would be permitted to see an attorney and that one officer told him to wait until officers Bell and Trimarco returned from the search of defendant's home and van. The officer denies that defendant made this request. Defendant was held totally incommunicado except for a brief visit by his girl friend which lasted for a period of five or ten minutes. If the consent was not coercive or obtained by trickery, at the very least the scope of the consent was limited to the fruits or instrumentalities used in the homicides. Though the drugs could properly be seized as contraband, the arrest and criminal charges based upon that seizure, was outside the scope of the permission granted, and therefore was illegal. LaFave, Search - and Seizure, Vol. 2, 58.l(c) at 627, et seq. It is repugnant to our system of justice, federal and state, to allow the police to express or imply that a suspect will not be arrested on drug charges if evidence of drug use or possession is uncovered in a consent search for the fruits or instrumentalities of a homicide, and then, after the consent is obtained and drugs uncovered during the search, to arrest and charge defendant with criminal possession of drugs. A holding to the contrary would mean that the consent would mean precisely what the police intended it to mean--which is most often a convenient after the fact determination made in order to give some credibility to or justify the previous action of the police. The facts of this case do not permit a conclusion that defendant gave a blanket consent with full knowledge that if drugs were discovered a drug prosecution against'him would result. Defendant had just been interrogated for four hours in relation to the homicides, and he obviously was well aware that the police, in asking his consent to search, were looking for evidence connecting him to the homicides. A blanket consent is not given where the defendant is told by the police as part of the process of obtaining that consent, that they are "not interested in" or not "too concerned" with drugs, but rather, are looking for evidence connecting him to the homicides. Here, if not expressly stated, it was at least implied that he would not be arrested and charged with drug possession if drugs were found in the process of the search. Where items are seized which go beyond the scope of the consent given by a defendant, a successful arrest and prosecution based on those items seized cannot pass constitutional muster. United States v . Marchand (2nd Cir. 1977), 554 F.2d 983, cert. den. (1978), 434 U.S. 1015, 98 S.Ct. 732, '2 L.Ed.2d 760: Sheff v. State (Fla. 1976), 329 So.2d 270; Commonwealth v . Weiss (Mass. 1976), 348 N.E.2d 787; LaFave, Search and Seizure, Vol. 3, S11.4(e), at 646, et seq. Under the circumstances here it matters little whether the contraband (drugs) was in plain view and thus seizable under the plain view doctrine (Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564) based upon an initial consent to search (United States. v . Dichiarinte (7th Cir. 1971), 445 F.2d 126), for defendant was expressly or impliedly promised that a drug charge would not ensue from their discovery of drugs in his home or in his van. To dignify the arrest for drug possession as "legal" under the circumstances here would be an insult to our judicial system and the values it embodies. -43- Although there is no basis to conclude that the State legally arrested the defendant on drug charges, a deter- mination that it was a valid arrest must first be made before the State's theory of questioning defendant under the unrelated offense doctrine can come into play. In disposing of this theory, I will assume therefore that the defendant was validly arrested on the drug charges. The question then presented is whether the State had the right to interrogate defendant on the homicide charges without providing counsel to him. Only by assuming that this doctrine can properly be applied to this case does the State have any chance of defeating defendant's claim that his right to counsel on the homicide case attached at the moment of his arrest. The case upon which the State relies is United States v. Dowells (9th Cir. 1969), 415 F.2d 801. But Dowells provides no support for the State's position. There the defendant was arraigned on a robbery charge. He requested an attorney, one was appointed for him, and he did in fact talk to his attorney. Later, while In jail awaiting trial, government agents approached defendant to question him about a totally unrelated robbery. They gave defendant his full Miranda warnings and then defendant read and signed a waiver of his right to counsel. He then confessed to committing the unrelated robbery. There is no indication whatsoever in this case that the arrest on the first robbery charge was merely a tool to secure a custodial interrogation on the unrelated robbery charge. Furthermore, defendant had been appointed an attorney with regard to the first charge and was fully aware that he could consult with one concerning the unrelated robbery. Instead, he waived his rights to counsel and then confessed to the second robbery. These facts do not come close to the facts of the present case. -44- a l s o obtained a consent t o search from t h e person who owned t h e home only a f t e r assuring him t h a t they were "not i n t e r e s t e d " i n drugs. B y t h e time defendant signed t h i s consent t h e homicide i n v e s t i g a t i o n was i n t e n s e l y and exclusively focused on him a s being the p e r p e t r a t o r of t h e homicides. A t t h i s p o i n t , however, a l l p o l i c e o f f i c e r s who t e s t i f i e d on t h i s matter, agreed t h a t they d i d not have probable cause t o a r r e s t defendant on t h e homicides. Thus t h e need arose t o put him i n t o custody on another charge s o t h a t defendant could be i n t e r r o g a t e d i n i s o l a t i o n , without danger of i n t e r r u p t i o n o r i n t e r f e r e n c e . The f a c t t h a t b a i l on t h e drug charges was set a t $30,000 i s i n d i c a t i v e that t h e p o l i c e had o t h e r o b j e c t i v e s i n mind and d i d not want hlm t o immediately post b a i l . F i n a l l y , s h o r t l y a f t e r t h e homicide charges were f i l e d , t h e prosecution dismissed t h e drug charges by e n t e r i n g i n t o a s t i p u l a t i o n with defense counsel, even though defense counsel d i d not request t h i s dismissal. The a c t i o n of S t a t e agents a f t e r defendant's appearance i n j u s t i c e c o u r t , adds a d d i t i o n a l support f o r t h i s conclusion. Although defendant had requested an a t t o r n e y i n j u s t i c e c o u r t no one t o l d him when he might make h i s appearance i n D i s t r i c t Court t o obtain a lawyer. I f t h e county a t t o r n e y , moreover, was t r u l y i n t e r e s t e d i n p r o t e c t i n g defendant's r i g h t s t o counsel, nothing prevented him from f i l i n g charges i n D i s t r i c t Court on Friday, and thus securing defendant's r i g h t t o counsel. I t was not a d i f f i c u l t matter t o prepare t h e necessary papers i n D i s t r i c t Court permitting t h e drug charges t o be f i l e d d i r e c t l y t h e r e . I n s t e a d , however, a f t e r h i s j u s t i c e c o u r t appearance, defendant was held i n complete i s o l a t i o n i n a h o s t i l e police-dominated atmosphere u n t i l t h e p o l i c e f i n a l l y e x t r a c t e d h i s confession on Sunday morning. -46- Here, the police knew and fully acknowledged that the arrest on drugs was made only to facilitate the homicide interrogation. Indeed, they admitted that the drug arrest was merely a "tool" to aid in the homicide investigation. And there can be no question that defendant must have known that agents of the State were not looking for evidence of drug possession but rather, were looking for evidence connecting him to te homicides. Before his arrest he had been intensely questioned on several occasions concerning the homicides, and indeed, was still in police custody as part of the homicide interrogation when he executed the consent to search and when he was arrested on the drug charges. To recognize and apply the unrelated offense doctrine to the facts of this case would be to flatly deny to defendant his constitutional right to counsel. Under these circumstances, the State cannot contend in good conscience that defendant's request for an attorney at the justice court appearance did not constitute a request for an attorney in relation to the homicides. Furthermore, since the State knew that the arrest and defendant's custody facilitated an immediate and unremitting interrogation process lasting for three more days, the State is in no position to contend that defendant's arrest did not trigger his right to counsel in the homicide case. The police officer who made the drug arrest admitted during cross-examination that it was done as a "tool" or as "part of" the homicide investigation. Defendant, moreover, was not the only person who could have been charged with drug possession in relation to the drugs found in the home. But no other person was charged. Defendant's girl friend lived with him and no doubt had equal access to the drugs. And, after defendant signed the consent to search, the police -45- Indeed, shortly after his justice court appearance he was taken to meet with the Yellowstone County Attorney and the only item on the agenda was the homicides. The county attorney suggested that defendant submit himself to a sodium amytal treatment. The sole objct of the State after obtaining defendant's custody through the drug charges, was to isolate and interrogate him so that they could obtain his confession. That the State chose to do so in flagrant dis- regard of the defendant's constitutional rights is a burden which the State alone must bear, for it was not required to choose this course of action. Although the main opinion has focused primarily on the interrogation techniques which rendered the confession admissible, it has, at least in passing, concluded that defendant's conviction must also be reversed because he was denied his right to counsel. But the opinion does not develop this aspect of the case and I am not at all certain just where the majority concludes that defendant's right to counsel first attached. Just as we cannot ignore the con- sequences which flow from the illegal arrest, we cannot ignore the consequences which flow from the State depriving the defendant of his right to counsel. Defendant requested an attorney in justice court when he appeared there on Friday morning, ostensibly in response to the drug charges, and after being advised of his rights, including his right to counsel, he requested that a lawyer be appointed for him. At no time did defendant ever expressly or impliedly waive an attorney until just before his formal confession on Sunday morning. Defendant's custody provided the necessary condition upon which the State commenced its four day holiday with defendant's constitutional rights, including his right to counsel. -47- At the hearing of this case on appeal, the Yellowstone County Attorney, in response to questions from the bench, explained the peculiar circumstances existing in Yellowstone County with regard to appointment of counsel on felony charges. If felony charges are filed against a defendant in justice court, the charges filed there serve merely as a holding device to give the State time to file the charges directly in District Court. The State rarely, if ever, allows the defendant to effectively assert his right in justice court to a preliminary hearing. In addition, however, although a defendant is advised of his right to counsel by the justice of the peace, he is also told that the justice of peace cannot appoint counsel for him, rather, that the defendant must wait until the county attorney takes the case to District Court before counsel can be appointed for him. In the present case, because defendant appeared in justice court on Friday morning, the county attorney explained that he did not have time to file charges that day in District Court, and therefore the following Monday would have been the earliest time he could have done so. The county attorney would not admit any constitutional defects, or statutory noncompliance in this customary practice in Yellowstone County. Presumably, he would have us believe that it is a mere coincidence that this practice in Yellowstone County fit in beautifully with the time frame which was needed to extract a confession from the defendant before he was taken to District Court for the appointment of counsel on the follow- ing Monday. It is a total abdication of responsibility for the State to contend here that under the circumstances of the case, it did not deny counsel to defendant. Custody on the ostensible drug charge provided the essential control over defendant from which agents of the State could work on him to extract a confession. One of the cardinal principles of Miranda v. Arizona is that once a defendant in custody asks for an attorney, that request must be "scrupulously honored." Miranda, 384 U.S. at 479, 85 S.Ct. at 1630, 16 L.Ed.2d at q 6 726; Michigan v . Moseley (1975), 423 U.S. 96, 103, 48 S.Ct. 321, 326, 46 L.Ed.2d 313, 321. The Miranda Court stated: "If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some state- ments on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned." Miranda, supra, 384 U.S. at 444-445, 86 S.Ct. at 1612, 16 L.Ed.2d at 707. And the Court further stated as to in-custody interrogation: "Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent." Miranda, supra, 384 U.S. at 474, 86 S.Ct. at 1628, 16 L.Ed.2d at 723. In this case, the facts pertinent to this issue speak for themselves--defendant's request for an attorney was completely ignored. There was not even an attempt to comply with the mandate of Miranda. Rather than being "scrupulously honored" defendant's request for an attorney was unscrupulously ignored. 5 / 5 -.5? n Powell v. Alabama (1932), 287 U.S. 45, 57, 53 S.Ct. 559, 77 L.Ed. 158, the United States Supreme Court, in reversing convictions because of a denial of counsel, first declared that early access to an attorney is indispensible to a criminal defendant if he is to have the effective assistance of counsel to which he is entitled under the Sixth and Fourteenth Amendments of the United States Constitution. In Escobedo v. Illinois (1964), 378 U.S. 478, 488, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977, 984, the Court zeroed in on the stages at which the right to counsel must be honored. In declaring that most injustices and constitutional abuses occur during a defendant's initial contacts with the criminal justice system, the Court held that when an investigation turns from investigatory to accusatory, a defendant who invokes his right to counsel, must have that right respected. This Court recognized this basic right in State v. Lucero (1968), 151 Mont. 531, 537, 445 P.2d 731, at 734, where, in relying on Escobedo, we stated: "The constitutional right to counsel and the constitutional right against self-incrimination attach prior to any court proceeding at such time as the police investigation shifts from a general investigation of an unsolved crime to a focus on a particular suspect. (Citing Escobedo v. Illinois.)" Furthermore, there can be no doubt that the United States Constitution mandates that the right to counsel attaches without question after the defendant has been charged : "Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth amendments means at least that a person is entitled to the help of a lawyer at or after the time judicial proceedings have been initiated against him 'whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" Brewer v. Williams (1977), 430 U.S. at 398, 97 S.Ct. at 1239, 51 L.Ed.2d at 436. Even before his formal arrest on the drug charges, the homicide investigation had clearly focused upon him and had become accusatory. Defendant testified that he requested an attorney while the search of his home and van was conducted, but the officers deny this. Be that as it may, the State cannot and does not deny that defendant requested an attorney the following morning when he appeared before the justice of the peace. The arrest on drug charges served as the necessary "tool" by which full custodial control could be asserted over the defendant to facilitate the interrogation techniques found so offensive in the main opinion. After defendant's arrest, the total focus was on him as the perpetrator of the homicides. The only problem was that the State had no evidence upon which to base a prosecution without a confession and its fruits. There can be no doubt therefore, that when defendant appeared before the justice court and requested an attorney, he triggered the Escobedo request for an attorney. By persisting in the interrogation of defendant after his right to counsel attached, and had not been waived, the agents of the State proceeded at their own risk, with their only hope being that the judiciary would close its eyes to its violations of the defendant's constitutional rights. IMPACT OF THE ILLEGAL ARREST, DENIAL OF RIGHT TO COUNSEL, AND ILLEGAL INTERROGATION TECHNIQUES: We are thus back to square one. For the confession to be admissible it must not have been extracted by illegal means, for if it has been so extracted, it is not voluntary. That, in part, is the holding of the main opinion. The methods used to extract the confession are, of course, in and of themselves, sufficient to prevent the admissibility of a confession. But added to the methods used is the failure of the State to provide counsel to defendant and the exploitation of the illegal arrest from which the taint was never removed. The legal consequences which flow from the denial of counsel and the illegal arrest, cannot be ignored for they add significantly to the reasons why the confession and its fruits are not admissible at the trial. -51- The only theory by which the State can successfully avoid the issue of failure to provide counsel to defendant is not by a contention that it had no duty to provide him counsel once he asserted that right at his appearance before the justice of the peace, but that the defendant waived his right to counsel once it had been asserted. The State, however, must prove that this right was voluntarily and knowingly relinquished. Brewer v. Williams (1977), 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424, 439; Johnson v. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct. 1010, 1023, % % . E d . 1461, 1466. Not only is this the State's burden to prove, but the burden to prove defendant waived his right to counsel, is indeed a heavy one. Miranda, supra, 384 U.S. / 636 at 475, 86 S.Ct. at4-028, 16 L.Ed.2d at 724. No waiver was proved in this case. There are absolutely no facts by which it can be determined that defendant expressly waived his right to counsel once it had been first asserted. And unless the continuing interrogation itself can be construed as an implied waiver of counsel, there are absolutely no facts by which an implied waiver could result. Not only would an implied waiver strip Miranda of its vitality, even where there is such a contention the State must prove upon such assertion, that defendant knew that the right existed and just what the right entailed. North Carolina v. Butler (1979), U.S. I 99 S.Ct. 1755, 60 L.Ed.2d 286. It can hardly be asserted that defendant knew what the right entailed when he was told in justice court, after asserting his right to counsel, that he could not have counsel until his case reached District Court (whenever that time might be). The State admits that defendant asserted his right to counsel in justice court, and just as clearly, the State should admit that he did not thereafter waive his right to counsel. -52- Outside of the events themselves, there were no gestures or words which could be taken to manifest a voluntary and knowing waiver. More than mere participation is necessary. To rule otherwise would strip the principles underlying Miranda and Escobeda of their vitality and legitimize methods of interrogation which are abhorrent to our system of justice. It would sanction the continuing interrogation of a defendant after the right to counsel had been invoked, and the subject's participation in the interrogation would in itself constitute the factual foundation for a waiver of counsel. This is precisely what Miranda forbids . Clearly therefore, the session with the county attorney in relation to the sodium amytal treatment, the sodium amytal interrogation by Dr. Hughett in the presence of the police officers, and the later interrogation by Dr. Hughett on Sunday morning, were all tainted by a flagrant violation of the defendant's constitutional right to counsel. We arrive then at the situation immediately preceding the confession. Just before defendant confessed, and after he had been subjected to four days of interrogation in isolation, in a hostile police-dominated atmosphere, the police decided to employ the coup de gr$ce by. then formally reading the Miranda warnings to him and obtaining a waiver of his rights. Presumably, they believe that this sanitized and legitimized all that had gone before. But a waiver obtained under such circumstances cannot wipe out the unremovable stain of the immediate unconstitutional past. The waiver must be looked at in the context of the entire proceedings which preceded it. A court cannot condemn the interrogation techniques used in this case, only to hold that the confession was nonetheless admissible because just before defendant confessed he was given his Miranda warnings -53- and waived his rights. Such a holding would make a mockery of the investigation and interrogation process and constitutes a license for state agents to do anything they pleased in prepping the defendant for the ultimate confession. FRUIT OF THE POISONOUS TREE: Without regard to a consideration of an illegal invest- igatory arrest or to a denial of the right to counsel, the majority has concluded that the confession, because of the interrogation techniques used, was involuntary, and thus inadmissible. Clearly, had there not been an illegal arrest or denial of counsel, the confession would still be rendered inadmissible, and I concur with the majority opinion in this regard. The fruit of the poisonous tree doctrine set forth in Wong Sun v. United States (1963), 371 U.S. 471, at 491, 83 S.Ct. 407, at 419, 9 L.Ed.2d 441, at 457, compels this result. But even if the interrogation techniques did not induce an involuntary confession, the confession and its fruits would nonetheless have to be excluded because of the taint of the illegal investigatory arrest and denial of defendant's right to counsel. We are, of course, required to look at the totality of circumstances in considering the admissibility of a confession. A confession, even if voluntary, does not ipso facto assure its use as evidence at trial. Thus, assuming that the evidence established a voluntary confession, the State would still have to establish first, that the illegal investigatory arrest did not contribute to the ultimate confession induced. Second, and assuming that the State crossed the first barrier, the State would have to establish that the denial of counsel did not contribute to the ultimate confession induced. Without successfully crossing these evidentiary barriers, the confession and its fruits cannot be used against the defendant at trial. We look first at the illegal investigatory arrest. On the other hand, we look at the State's token compliance with Miranda just before he confessed on late Sunday morning. The State would have us ignore the failures to comply with Miranda or Escobedo during the in-custody proceedings, and simply concentrate on the Miranda warnings and waiver obtained immediately before the confession. But we cannot isolate the Miranda warnings and thus legitimize what went on before. In Brown v. Illinois (1975), 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416, the United States Supreme Court stated that compliance at some point in the procedure with the Miranda warnings does not ipso facto remove the taint of an illegal investigatory arrest. Although it is an important factor, compliance with Miranda after the arrest, is only one of several factors to be considered. In Brown, the Court emphasized that the Fifth Amendment and the Fourth Amendment serve different purposes in relation to law enforcement. The Fifth Amendment serves to correct abuses, and therefore, a showing that a confession is voluntary will suffice to allow its admission into evidence. On the other hand, the Fourth Amendment seeks to prevent abuses and it requires that a confession, even though it is shown to be voluntary, must also be sufficiently removed from the illegal arrest so as to remove the taint of the arrest. If it is so removed the confession is admissible; if it is not, the confession is not admissible. Brown, 422 U.S. at 602, 95 S.Ct. at 2261, 45 L.Ed.2d 426. In the context of an illegal investigatory arrest the Court discussed the importance of the Miranda warnings in relation to the other circumstances which occur after the arrest: "The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, see Johnson v. - Louisiana, 406 U.S. 356 (19721, and, particularly the purpose - and flagrancy of the official mis- -- conduct are all relevant." See Wong Sun v. -- United States, 471 U.S. at 491." Brown v. Illinois, 422 U.S. at 603-604, 95 S.Ct. 2261- 2262, 45 L.Ed.2d at 427. (Emphasis added.) But just as a compliance with Miranda at some point in the proceedings does not assure the admissibility of a confession, nor does a constitutional violation ipso facto compel the exclusion of a confession and its fruits. If the State can prove that the confession obtained is sufficiently removed .from the initial constitutional violation (here, the illegal investigatory arrest) so that it is not tainted by this violation, the confession is admissible. Wong -- Sun, supra, 371 U.S. at 488, 83 S.Ct. at 417, 9 L.Ed.2d at 455. Thus the State's burden in this case is to prove that the confession on late Sunday morning, is by circumstances inter- vening between the confession and the initial investigatory arrest, sufficiently removed from the constitutional violation so that it is no longer tainted. That burden is insurmountable. The confession is inextricably connected to the illegal investigatory arrest, for it is the arrest which secured the necessary condition of custody and isolation by which the agents of the State could commence its four day holiday with defendant's constitutional rights. Rather than the four day time lag being a period of conscientious observance of defendant's constitutional rights, it was a period of unscrupulous violation of defendant's constitutional rights. He was not only denied his right to counsel, the interrogation techniques found so offensive in the main opinion, were the essential tools by which the confession was induced. There was no intervening circumstance which did not relate back to and was not the product of the illegal investigatory arrest. -56- Indeed, it is this kind of police misconduct which was expressly condemned in Brown (422 U.S. at 605, 95 S.Ct. at 2262, 42 L.Ed.2d at 428). Here, the confession was not merely tainted by the illegal investigatory arrest, it was totally and irrevocably poisoned by those events intervening between the arrest and the confession. For the foregoing reasons I would reverse the con- viction, order the confession and its fruits suppressed, and, because absent this evidence there is insufficient evidence upon which the prosecution could survive a motion for directed verdict based on insufficiency of the evidence, I would order the case dismissed. To sustain the conviction in this case it would not only require this Court to bury its head in the sand, it would require us to bury our entire judicial body so that not even the soles of our feet would appear above the mud within which the defendant's constitutional rights were buried by the State. Jus | December 31, 1979 |
3787e791-0b5c-428e-a716-98165f951b47 | MATHEWS v GLACIER GENERAL ASSURANC | N/A | 14708 | Montana | Montana Supreme Court | No. 14708 IN THE SUPREME C O U K L ' O F THE STATE O F MONTANA 1979 EMILY K . IwTTms, Plaintiff and Respondent, -VS- GLACIER GJiNWlL ASSURANCE CQMPANY, Defendant and Appellant. Appeal from: D i s t r i c t Court of the Second Judicial D i s t r i c t , Honorable James D. Freebourn, Judge presiding. Counsel of Record: For Appellant: Henningsen, Purcell and Genzberger, Butte, Mntana Mzk A. Vurcorvich argued and James Purcell appeared, Butte, mntana For Respondent : Corette, Smith, Dean, Pohlman & Allen, Butte, mntana Kendrick Srnith argued, Butte, Mntana Maurice A. Maffei argued, Butte, Wntana Suhitted: June 7, 1979 m i d & : f\i 6 \ 1 2 1979 - -- q",' " - Filed: - Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Defendant, Glacier General Assurance Company, appeals from an order of the Silver Bow County District Court granting plaintiff's motions for judgment on the pleadings, and alternatively, summary judgment, and thereby awarding her $53,224 based on a fire insurance policy covering the plaintiff's premises. The primary question with which we are concerned is whether the plaintiff as the moving party in summary judgment carried the initial burden of proof to show that a question of material fact did not exist in relation to the defendant's pleading of an affirmative defense that plaintiff had materially altered the premises thereby materially affecting the insurance risk. There is, however, the additional question of whether the District Court properly granted judgment on the pleadings. Because the District Court went beyond the pleadings in granting the motion for judgment on the pleadings, we conclude that his action cannot be sustained; rather, the District Court should have treated the motion as one solely for summary judgment. Moreover, because the District Court imposed the initial burden on defendant to provide proof of the affirmative defense alleged in its answer, in a situation in which it was the plaintiff who was the moving party for summary judgment, we conclude that the summary judgment order must also be reversed. In the briefs filed before this Court, neither party has addressed the underlying pleadings and procedural problems which are necessarily involved in a determination of this case. The defendant has confined the issue to whether a material fact question exists regarding as the -2- affirmative defense of material alteration. The question of which party has the initial burden of proving the existence or absence of a material question of fact in relation to an affirmative defense, was not discussed. Plaintiff, on the other hand, contends that she should prevail not only on the issue of summary judgment but on the court order granting judgment on the pleadings. Plaintiff did not, however, discuss the fundamental question of whether the plaintiff, as moving party for summary judgment, had the initial burden of proving that no material question of fact existed in relation to defendant's affirmative defense of material alteration. Moreover, plaintiff provided no rationale why judgment on the pleadings, in the context of this case, can be harmonized with the applicable rules of civil procedure. A brief summary of the events leading up to the filing of this lawsuit, and a rather detailed summary of the pleadings is necessary for an understanding of the procedural state of this case at the time the District Court granted plaintiff's motions for judgment on the pleadings and summary judgment. The defendant issued a standard fire insurance policy to the plaintiff on April 21, 1977, and later in 1977, during the term of the policy, a fire or fires occurred which severely damaged the premises. The defendant offered to settle the fire loss claim for $18,316, plaintiff refused the offer, and plaintiff then filed suit seeking to recover $67,000, the face amount of the policy, alleging that the amount of the loss actually exceeded the face amount of the policy. In her complaint, plaintiff alleged that she owned the premises involved which were severely damaged by fire -3- on October 3, 1977, and that a fire insurance policy issued by the defendant for the premises involved, was then in effect. She further alleged that the total loss exceeded the limits of the policy, that she had sent and defendant had received a timely sworn statement of proof of loss, and that defendant paid nothing on the loss, and that $67,000 was then due and payable. She also prayed for interest on the $67,000 from the date of the fire loss. Defendant filed the customary motion to dismiss which was denied, and then filed its answer, which, to say the least, was not a model of clarity. Defendant admitted that a fire loss occurred during the term of the policy but denied that it occurred on October 3, 1977, and further admitted that defendant had paid nothing to plaintiff as a result of the fire loss. Defendant further alleged that it had offered to pay plaintiff the sum of $27,592 less depreciation of $9,336 and $100 deductible, but that plaintiff had refused such offer. Defendant further admitted receipt of a timely proof of loss statement sent by plaintiff, but denied that $67,000 was due and payable to plaintiff. The answer also denied any allegation not specifically admitted. In a portion of its answer denominated as an affirmative defense, defendant alleged that plaintiff or her agents, servants or employees, before the occurrence of the fire, had caused the premises to be materially altered so as to decrease the value of the property and to materially affect the insurance risk assumed by defendant, and that plaintiff had failed to report such alterations to the defendant before the fire, as was required under the terms of the policy. We cannot determine from this alleged affirmative defense whether defendant was seeking -4- to avoid payment altogether as a result of the alleged material alteration, or whether it was seeking merely to reduce the amount owed to plaintiff under the policy. In essence, we cannot determine if the answer was intended to indicate that the changes in the structure had subjected the insurance company to pay a potentially higher loss, which would indicate an increase in risk, or whether the answer was intended to show that the changes in the structure had increased the chances that a fire would occur, an increase in the hazard. Neither party addressed itself to these distinctions in either the District Court or before this Court. In its prayer for judgment, defendant simply asked that judgment be entered in favor of plaintiff for the amount of $18,316, which was the compromise offer originally offered to plaintiff. Defendant also demanded a jury trial. No additional pleadings exist in this case. Within a week after filing its answer, defendant wrote a letter to plaintiff asking for an appraisal of the amount of the fire loss, there being a provision in the policy providing for such appraisal. Plaintiff did not respond by letter, but instead filed papers in District Court agreeing to this appraisal but also asserting that because the defendant had demanded the appraisal, such appraisal was final and binding on defendant, and no appeal was permitted. Plaintiff also alleged that all proceedings in District Court were suspended by virtue of defendant's demand for an appraisal. Defendant filed papers in District Court asserting that any such appraisal determination could be appealed and also alleging that proceedings in District Court were not suspended because other issues remained for determination. We cannot determine from this whether defendant meant that factual issues still remained for decision, or that legal issues -5- still remained for decision. In any event, each of the parties proceeded to select its own appraiser as permitted by the terms of the policy, an appraisal was made, and each appraiser arrived at an identical loss, in the amount of $53,844. Upon receiving the results of the appraisal, plaintiff made her next move in District Court. She moved for judgment on the pleadings, and alternatively, for summary judgment. The basis for her motion for judgment on the pleadings is somewhat foggy, but it seems that plaintiff's essential contention was that defendant, by demanding an appraisal, had waived its right to go forward with any issues raised by the pleadings. Plaintiff also asserted that depreciation of the value of the premises in arriving at the amount of the loss was not permitted by the terms of the policy itself, nor was it permitted by applicable statutory and case law. Plaintiff's motion for summary judgment was based on her contention that defendant's answer, combined with defendant's demand for an appraisal of the fire loss under the terms of the insurance policy, had eliminated or waived any factual controversy which might exist as to a material alteration of the premises. Specifically, plaintiff alleged that defendant was not entitled to assert the affirmative defense of material alteration for the following reasons: because defendant had alleged an offer to settle for $18,316.21 in its answer; that defendant had prayed in its answer for entry of judgment in favor of plaintiff for $18,316.21; that defendant had returned a substantial portion of the premium on the fire policy after the fire loss; that defendant had selected an appraiser-arbitrator to act with the appraiser- arbitrator selected by plaintiff; and last, by the ultimate determination of the appraiser-arbitrator assessing the actual fire loss at $53,844. Plaintiff presented no evidence by which it could be concluded that a material alteration -6- had not in fact taken place as was alleged in defendant's affirmative defense. Defendant filed no documents in opposition to the motions, but responded only with a brief which confined itself to the issue of summary judgment and the issue of depreciation; that is, whether defendant was bound by the appraisers' estimate of the amount of the fire loss. Defendant ignored the issue of whether plaintiff was entitled to judgment on the pleadings. In its brief, defendant set forth the nature of the alleged material alterations asserted in its affirmative defense, which, defendant contended, raised a material question of fact that would defeat plaintiff's motion for summary judgment: "During the term of said policy, the property sustained damage as the result of fire on three ( 3 ) separate occasions--August 18th, 1977, September 8th, 1977, and October 4 t h , 1977. "Prior to the initial fire of August 18, 1977, the insured premises were materially altered by the Plaintiff or her agents, servants or employees. These alterations substantially decreased the value of the insured premises, and depreciated the property to a point where the established policy limits were not reflective of the value of the property. "The alterations consisted of, but are not limited to, the removing of the second floor of the building in question and tearing down an adjacent building. These alterations were commenced and completed without ever being reported to the Defendant and materially affected the insured's risk in the property." The brief, however, is not at all clear as to whether defendant was seeking to avoid payment altogether because of its allegation of material alteration, or whether it was merely seeking to pay the loss on the basis of the value of the property after it had been materially altered by the plaintiff before the occurrence of the fire loss in question. Nor are the District Court briefs clear on the issue of depreciation in relationship to material alteration. The parties agree that the appraisers did not consider the factor of depreciation in determining the amount of the fire loss. Plaintiff contends that the insurance policy, statutes and case law, do not allow depreciation to be considered. Though not expressly admitting it, this argument is based on the assumption that plaintiff had not materially altered the premises before the fire loss. On the other hand, the defendant does not approach the factor of depreciation with an assumption that the premises had not been materially altered before the fire. Rather, defendant contends, it seems, that there was a material alteration before the fire loss, and if the insurance coverage was not voided by such fire loss, at least the decreased value of the premises caused by the material alteration, must be a factor in arriving at the amount of the fire loss. It thus appears that the parties at the District Court level, and before this Court are discussing depreciation in an entirely different context. In a document entitled Findings of Fact, Conclusions of Law and Judgment, the District Court granted plaintiff's motion for judgment on the pleadings and its motion for summary judgment. It is difficult to determine the precise basis for the District Court's rulings. It appears that the order granting judgment on the pleadings was based on a determination that defendant had waived any right to claim an increase in the risk caused by a material alteration of the premises. It appears that the trial court also did not distinguish between an increase in the risk as opposed to an increase in the hazard. This can partly be attributed to the defendant's ambiguous answer and the failure of the defendant to precisely set forth its con- tentions in its brief filed with the trial court. The finding of waiver was predicated upon defendant's requesting in its answer that judgment be entered in the amount of -8- defendant's compromise offer ($18,316), and by defendant's letter to plaintiff demanding an appraisal under the terms of the insurance policy. The order granting summary judgment was based on a determination that although plaintiff was the moving party, defendant had the initial burden to show by affidavits or other evidence, that a material question of fact existed in relation to its affirmative defense of material alteration. Because defendant did not do so, the court granted summary judgment to plaintiff. It was error to impose this initial burden on defendant, the nonmoving party, was in error. First, however, we discuss the judgment on the pleadings granted in this case. Initially, we note that procedurally the court could not grant judgment on the pleadings because in doing so it considered matters beyond the pleadings to reach its decision. Rule 12(c), M0nt.R.Civ.P. provides in part: "[I]£, on a motion for judgment on the pleadings, 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 . . ." See also Marsh v. Kitchen (1973), 480 F.2d 1270, 1272; Reddix v. Lucky (1957), 148 F.Supp. 108, 110; Chapman v. Pollock (1957), 148 F.Supp. 769, 771. The complaint and answer were the only pleadings which the District Court could consider in this case. Rule 7(a), Mont.R.Civ.P., closes the pleadings upon the filing of an answer if no counterclaim or crossclaim is included in the answer and if a reply to an answer is not specifi- cally ordered by the court. See also, Vol. 2A Moore's Federal Practice S7.02. In the instant case, there was no counterclaim no crossclaim, and the court did not order plaintiff to -9- reply to the answer. Judgment on the pleadings was based not only on the complaint and answer, but also on defendant's letter to plaintiff demanding an appraisal under the terms of the insurance policy, and on plaintiff's response to such demand. In the briefs filed before this Court, defendant did not mention the issue of judgment on the pleadings, and plaintiff, although seeking affirmance of such judgment, offered no sound explanation of how judgment on the pleadings can be justified. To sustain plaintiff's position we would clearly have to ignore Rule 12 (c) and Rule 7(a), supra, and this we are not inclined to do. Because the District Court should have treated plaintiff's motion solely as one for summary judgment, we next discuss the alternative order granting summary judgment. Neither party in the briefs filed with this Court, has discussed what we consider the main issue to be concerning the order granting summary judgment--whether plaintiff as the moving party must initially demonstrate the absence of a material question of fact raised in defendant's affirmative defense of material alteration, or whether defendant must initially demonstrate the presence of a material question of fact raised by its affirmative defense of material alteration. At the hearing of this case on appeal, however, while responding to specific questions from the bench, counsel for plaintiff unequivocally stated that it was the duty of the defendant in this case to initially come forward with evidence that a genuine issue of material fact existed with relation to its alleged affirmative defense of material alteration, even though plaintiff was the moving party. But, we conclude that the plaintiff as the moving party has the initial burden and it failed to carry that burden. It was, therefore, error for the District Court to impose the initial burden upon the defendant and error to grant summary judgment to plaintiff. -10- In its order granting summary judgment, the District Court stated: The Court finds particularly that "(a) Defendant has not by affidavit or in any other manner supported its contention that a genuine issue of material fact exists. " (13) Defendant did not by affidavit or otherwise produce any affidavit or evidence in support of its assertion in its Affirmative Defense that the premises had been materially altered or that there had been a decrease in the value of the property and that no reports were made by Plaintiff. Particularly, there was no showing of any increase in hazard.. . ." We note, however, that the matters considered by the District Court in granting summary judgment, are devoid of any evidence initially presented by the plaintiff to justify a conclusion that a material question of fact did not exist in the affirmative defense of material alteration. Absent this showing, the defendant had no duty to come forward with counterproof. The pleadings framed the issues here. Though inartful and imprecise, defendant did assert the affirmative defense of material alteration. Plaintiff recognized this from the very beginning and at no time contended that material alteration, as a matter of law, was not a permissible defense to plaintiff's complaint. But, as we previously mentioned, it is not clear whether the allegation of material alteration was intended to avoid payment altogether, or whether it was intended simply to reduce the amount which defendant should pay plaintiff for the fire loss. None- theless, there is no question that material alteration had been pleaded as an affirmative defense. If plaintiff had evidence which would establish the absence of any material fact in the allegation of material alteration, it was incumbent to so demonstrate by her documents filed in support of her motion for summary judgment. Plaintiff cannot, as was done here, foist that initial burden upon the defendant, for it would run contrary to the very purpose of Rule 56 which imposes the burden upon the moving party to show that it is entitled to summary judgment. -11- Summary judgment has as one of its primary goals that of cutting off nonmeritorious litigation, not of frustrating potentially meritorious litigation or defenses. In seeing to it that the rule accomplishes its proper goal, trial judges and lawyers must be reminded that: "A summary judgment is neither a method of avoiding the necessity of proving one's case nor a clever procedural gambit whereby a claimant can shift to his adversary his burden of proof on one or more issues." United States v . Dibble (9th Cir., 1970), 429 F.2d 598, 601. Before summary judgment can be granted, the record before the trial court must "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. " Rule 56 (c) , M0nt.R.Civ.P. Regardless of which party has the burden, if the record is barren of a basis upon which it can be determined that a material fact question does not exist in relation to a pleaded affirmative defense, there simply is no basis for the granting of summary judgment. Such is the situation existing in this case. We have consistently held that the burden of proof is on the moving party to show that he is entitled to summary judgment. For example, see Audit Services, Inc. v. Haugen (19791, Mont . - , 591 P.2d 1105, 36 St.Rep. 451; Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613; Kober & Kyriss v. Billings Deaconess Hospital (1966), 148 Mont. 117, 122, 417 P.2d 476, 478. Moreover, this has always been the rule under the federal court decisions interpreting Federal Rule 56(c). The rule is set forth in 10 Wright and Miller, Fed. Pract. and Proc. 52727, at 524-530: "It is well settled that the party moving for summary judgment has the burden of demonstrating that the Rule 56(c) test--'no genuine issue as to any material fact1--is satisfied and that he is entitled to judgment as a matter of law. The movant is held to a strinqent standard. Before summary judgment will be granted it must be clear what the - --- -- truth is and anv doubt as to the existence of a genuine issue of material fact will be resolved against the movant. . ." (Emphasis added. ) To the same effect, see also 6 Moore's Federal Practice, That burden is not shifted to the nonmoving defendant simply because he has pleaded an affirmative defense in his answerwhich he would be required to prove if the case went to trial. In 6 Moore's Federal Practice, 556.15(3), at 56- 480-481, the rule is stated as follows: ". . . the burden to show that there is no genuine issue of material fact rests on the party moving for summary judgment, whether he or his opponent would at trial have the burden or proof on the issue concerned; and rests on him'whether he is by it required to show the existence or nonexistence of facts." (Emphasis added.) The footnoted cases to this textual statement are replete with factual situations requiring the plaintiff as moving party to initially demonstrate the nonexistence of a material question of fact asserted in defendant's affirmative defense. We illustrate the application of this rule by two cases cited in the footnotes. The first case illustrates the burden of the plaintiff as moving party to initially overcome an affirmative defense pleaded by defendant; the second case illustrates the burden of the defendant as moving party to initially overcome allegations contained in plaintiff's complaint. I n Plank v. S c h i f t e r (E.D. Pa. 1949), 85 F.Supp. 397, 13 F.R.Serv. 56c.41, case 2 , p l a i n t i f f sued defendant f o r s p e c i f i c performance on a c o n t r a c t and defendant pleaded t h e a f f i r m a t i v e defense of p a r o l r e s c i s s i o n of t h e c o n t r a c t . P l a i n t i f f moved f o r summary judgment, and i n r e l a t i o n t o t h e r e l a t i v e burdens of t h e p a r t i e s , t h e c o u r t s t a t e d : "Upon t h e t r i a l of t h i s case, t h e defendant, of course, w i l l have t h e burden of e s t a b l i s h i n g h i s defense of a par01 r e s c i s s i o n . But upon a motion f o r summary judgment, t h e p l a i n t i f f , a s t h e moving p a r t y , has t h e burden of showing t h e absence of a genuine i s s u e . . . With r e s p e c t t o t h e existence of t h e f a c t s grounding a p a r o l r e s c i s s i o n , it cannot be s a i d t h a t t h e p l a i n t i f f has m e t h i s burden." 85 F.Supp. a t 398. C i r . I n Dyer v. MacDougall (2ncK 1952) , 2 0 1 F. 2d 265, 18 Fed.R.Serv. 56c.41, case 2 , t h e p l a i n t i f f sued defendant f o r s l a n d e r and defendant moved f o r summary judgment on t h e ground t h a t he d i d not make t h e u t t e r a n c e a l l e g e d by p l a i n t i f f . Defendant properly supported h i s motion with proof t h a t he d i d n o t make t h e u t t e r a n c e involved, and p l a i n t i f f was unable t o overcome t h i s proof. The Court, through J u s t i c e Hand, s t a t e d : "The defendants had t h e burden of proving t h a t t h e r e was no such i s s u e ; on t h e o t h e r hand, a t a t r i a l t h e p l a i n t i f f would have t h e burden of proving t h e u t t e r a n c e s ; and t h e r e f o r e , i f t h e defendants on t h e motion succeeded i n proving t h a t t h e p l a i n t i f f would not have enough evidence t o go t o t h e jury on t h e i s s u e , t h e judgment was r i g h t . " I n Sheridan v. Garrison (C.A. 5th 1969), 4 1 5 F.2d 699, t h i s Court s t a t e d : " I t i s almost axiomatic t h a t on motion f o r summary judgment t h e moving p a r t y has t h e burden of proving t h a t no genuine i s s u e of f a c t e x i s t s . . . even though h i s opponent m a y have -- t h e burden of proving t h e f a c t s a t t r i a l . " ( ~ m p h a s i s a d d e d . ) 415 F. 2d This rule, as we have shown, is applicable to an affirmative defense. Indeed, imposing the burden on plaintiff to initially demonstrate the absence of a material question of fact in defendant's affirmative defense, is nothing more than a logical application of Rule 56 (c) . It is clear in this case that because plaintiff did not initially demonstrate with appropriate proof, an absence of material fact with regard to the affirmative defense of material alteration, the defendant was not compelled to produce counterproof to avoid a grant of summary judgment. As the record stood before the District Court, there was no basis to grant summary judgment. That the burden is on the moving party, is also supported by Rule 56(e), M0nt.R.Civ.P. This rule is patterned after the federal amendment adopted in 1963, and provides as follows: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to-in an affidavit shall-be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answersto interrogatories, or further affidavits. When - - a motion for summary judgment --- is made and supported - as provided in this rule, an adverse party may --- not rest upon the mere xleqation or denials ----- - on -- his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Rule 56 (e) , M0nt.R.Civ.P. (Emphasis added.) The emphasized language clearly sets forth the requirement that the moving party first support his contentions with an appropriate evidentiary basis before the opposing party must do more than simply rest upon the allegations contained in his pleadings. It is only when the moving party has properly supported its motion that the burden is shifted to the opposing party to provide counterproof rather than being permitted to rest solely on the allegation contained in its pleadings. The reason for adopting Rule 56(e) is to prevent a party opposing a motion for summary judgment from simply relying on its complaint or answer which is loaded with factual detail. 10 Wright & Miller, - Federal Practice - & Procedure, 52739, at 710-714. The authors warn, however, that this rule was not designed to shift the burden of proof from the movant to the party opposing the motion, where the moving party has not first laid in the record a factual basis to do so. They state: "The 1963 amendment [Rule 56 (e) ] implicitly recognizes that there are situations in which no defense will be required; in some situations this is true even though a motion for summary judgment has been supported by affidavits or other evidentiary material. Rule 56(e) states that a defense is required only if the motion for summary judgment is 'supported as provided in this rule' and that even if the opposing party fails to submit counterevidence, summary judgment shall be entered only 'if appropriate.' Furthermore, the Advisory Committee states in its Note: 'Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied --- even if no opposing evidentiary matter - is presented.'" 10 Wright & Miller, at 716. In analyzing an opinion of the United States Supreme Court, Adickes v. S. H. Kress & Company (1970), 90 S.Ct. 1598, 398 U.S. 144, 26 L.Ed.2d 142, Wright and Miller relate its importance to Rule 56 (e) : ". . . the opinion highlights the principle, upheld in many decisions since the 1963 amendment became effective, that no defense is required by Rule 56 (e) if the movant fails to meet his burden of showing the absence of any genuine issue of material fact." 10 Wright and Miller, at 717-719. Also, Wright and Miller rely on the analysis of Rule 56(e) by Kaplan, Amendments of -- the Federal Rules of - Civil Procedure, 1961-1963 (11) (1964), 77 ~arvard Law ~eview 801, where Kaplan states at page 827: "A party opposing summary judgment need not come forward in any way if the moving party has not supported his motion to the point of showing that the issue is sham. The [I963 amendment] [to Rule 56 (e) 1 introduces no change here. " 10 Wright & Miller, at 718-719. It is clear therefore, that if the moving party has not by his own evidence properly supported his motion for summary judgment, which means in effect that he has not presented a case valid on its face to permit entry of a summary judgment ruling, the opposing party has no duty to present his own counterproof in opposition to the motion. He can, if he elects, stand on his pleading. Here, the defendant was entitled to stand solely on the affirmative defense of material alteration pleaded in its answer because plaintiff presented no evidence in her motion for summary judgment that she had not materially altered the premises. This being so, defendant was not required to present proof in opposition to plaintiff's motion. Though we determine here that defendant was technically correct in relying solely on its answer because plaintiff did not meet her initial burden, this is not to say that we recommend this procedure. Obviously, defendant could have prevented an appeal, at least on the summary judgment question, if it had taken the time to place affidavits or other evidence in the record demonstrating that a genuine fact issue of material alteration remained for resolution. In addition to determining that judgment on the pleadings and summary judgment granted in this case were clearly in error, we suggest that a proper consideration and application of pleading rules would have gone a long -17- way in putting the case in its proper context before it reached this Court. We have in mind alternative pleadings permitted by Rule 8(e) (2), Mont.R.Civ.P., and amendment of pleadings permitted by Rule 15, M0nt.R.Civ.P. The basic rule governing all pleadings is Rule 8(f), Mont.R.Civ.P., which provides that "[all1 pleadings shall be so construed as to do substantial justice." The courts must breathe life and spirit into this rule by properly considering its application to the other rules of civil procedure. Here, the parties and the trial court should have considered Rule 8(e) (2) and Rule 15. Without explanation, it seems that the trial court held that defendant had waived its affirmative defense of material alteration. As we previously mentioned, defendant's answer contained allegations which were indeed ambiguous. Furthermore, the legal theories were possibly inconsistent. Defendant prayed that judgment be entered for plaintiff in the amount of $18,316. The legal theory upon which defendant wanted to achieve this result was never made clear by the pleadings. But this approach was apparently based on defendant's contention that the alleged material alteration of the premises by the plaintiff caused the property to lose value, and therefore that any payment by the insurance company should be based on that reduced value. On the other hand, defendant alleged material alteration increasing the risk as an affirmative defense, although it is not clear whether defendant desired to avoid any payment on the policy as a result of the material alteration, or whether defendant merely wanted to pay according to the reduced value of the premises caused by the alleged material alteration. It thus appears that defendant plead alternative defenses even though they were not so expressly denominated. The rules of civil procedure expressly permit alternative pleadings, both in a complaint, and in an answer. Rule 8(e) (21, Mont.R.Civ.P., provides: "A party may set forth two or more statements of a claim or defense alternatively or hypo- thetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both. All statements shall be made subject to the obligations set forth in Rule 11. " As the rule states, multiple defenses are valid, and if any of them is sustained, plaintiff's cause of action must fail. Little v. Texaco, Inc. (10th Cir. 1972), 456 F.2d 219 (interpreting Federal rule 8 (e) (2) ) ; Abbey v. State (N.D. 1972), 202 N.W.2d 844 (interpreting Rule 8(e) (2) of the ~ o r t h Dakota rules of civil procedure which is worded the same as the Federal rule); and Jessen v. Aetna Life Ins. Co. (7th Cir. 1954), 209 F.2d 453, 468 (interpreting Federal Rule We note moreover, that plaintiff at no time moved under Rule 12(f), Mont.R.Civ.P., to strike the defense of material alteration as being an invalid defense. The reason perhaps is that such motion would have had no merit. Jessen v. Aetna Life Ins. Co., supra. It seems clear therefore, that plaintiff was implicitly recognizing that a defense of material alteration, if proven, was valid. It is the policy of the law to avoid games of pleading skill and to submit cases on the merits, and to avoid judgments based solely upon the pleadings unless the parties agree on the facts and desire a decision on the law alone. 2A Moore's Federal Practice 88.02, at 8-18; Giannone v. United States Steel Corporation (3rd Cir. 1956), 238 F.2d 544. Because discovery is available to all parties to expose the underlying facts of the parties' contentions, the contention that imprecise or alternative pleadings result in surprise, is no longer valid. Here the record is devoid of any indication that either party -19- had undertaken discovery before plaintiff filed and obtained the summary judgment ruling as well as the ill-founded judgment on the pleadings. Here the defendant's depreciation defense is not entirely consistent with its defense based on increased risk. By the depreciation argument defendant would acknowledge the duty to pay something to plaintiff, but would pay only the amount represented by the decreased value of the premises caused by plaintiff's alleged material alteration of the premises. By this argument defendant alleges that it owes $18,316 to the plaintiff. On the other hand, its defense of material alteration in relation to a claim of increasing the risk, is apparently an attempt to avoid entirely a duty to pay for the fire loss. We cannot, however, treat the defendant's pleading as a waiver as the trial court did, for to do so would negate the right of a defendant to plead alternative or inconsistent defenses under Rule 8(e)(2). See Giannone v. United States Steel Corporation, supra, 238 F.2d at 544. We believe also that a proper consideration and application of the liberal amendment of pleadings permitted by Rule 15, Mont.R.Civ.P., would have helped considerably in putting the pleadings in their proper form before the trial court ruled upon the plaintiff's motions. If the District Court believed that the defendant's answer was so vague that it should not be allowed to stand without amendment, it was within the prerogative of the court under Rule 15 to order defendant to amend its answer to more clearly state its position. Moreover, the defendant's brief filed in opposition to plaintiff's motion for summary judgment clearly set forth the factual basis for -20- its contention that plaintiff had materially altered the premises, and this being so, it was surely within the spirit of Rule 15 that the Court (assuming, of course, that plaintiff had properly carried her initial burden) to give the defendant an opportunity to place affidavits or other evidence in the record setting forth the factual basis for its allegation of material alteration. In Rossiter v. Vogel (Cal.App.2d 1943), 134 F.2d 908, 7 M R - ~ e r v . 56c.312, case 1, the defendant failed to allege an affirmative defense in his answer, but in opposing the plaintiff's motion for summary judgment, filed affidavits containing facts that would support an affirmative defense. Rather than granting summary judgment, the court in the interests of justice, under Rule 15, permitted defendant to amend his answer setting forth his affirmative defense. In the case at hand, the factual assertions as to the nature of the alleged material alterations were precisely set forth in the defendant's brief. Although we realize that factual recitations contained in a brief do not rise to the dignity of factual recitations contained in an affidavit, nonetheless, the trial court was put on notice that defendant was serious in its contention that a material alteration of the premises had in fact occurred before the fire in question. If nothing else, the statements in defendant's brief run counter to the trial court's determination that nothing "in any other manner" was presented to the court which would give any support whatsoever for a material question of fact to exist in relation to the affirmative defense of material alteration. With the trial court and plaintiff being put on notice of the material alteration contentions set forth in defendant's brief, the trial court could have notified defendant that -21- such f a c t u a l a s s e r t i o n s i n a b r i e f do n o t comply with Rule 56, b u t t h a t defendant would be given a chance t o comply with Rule 5 6 ( e ) by f i l i n g a f f i d a v i t s o r o t h e r e v i d e n t i a r y m a t e r i a l before t h e t r i a l c o u r t would r u l e on t h e motion f o r summary judgment. This procedure would have been w i t h i n t h e s p i r i t of Rule 8 ( f ) , s u p r a , t o construe pleadings t o a r r i v e a t " s u b s t a n t i a l j u s t i c e . " Although w e would s o construe Rule 15 i n order t o do " s u b s t a n t i a l j u s t i c e " under Rule 8 ( f ) , w e stress t h a t our d i s c u s s i o n of Rule 15, i n t h e c o n t e x t of t h i s case i s academic, f o r , a s w e have already determined, p l a i n t i f f f a i l e d i n h e r i n i t i a l burden as moving p a r t y , t o show t h a t she was e n t i t l e d t o summary judgment. This being s o , defendant was e n t i t l e d t o s t a n d on its a f f i r m a t i v e defense pleaded i n its answer. For t h e foregoing reasons, t h e o r d e r of t h e District Court g r a n t i n g judgment on t h e pleadings and summary judgment i s reversed. This case is remanded t o t h e D i s t r i c t Court f o r f u r t h e r proceedings c o n s i s t e n t with t h i s Opinion. W e Concur: /,' Chief J u s t i c e r- ................................ J u s t i c e s Mr. Justice John C. Sheehy dissenting: When this cause is returned for further proceedings, the District Court will have no alternative but to render judgment again in favor of the plaintiff in the amount of the appraisers' award. There are no further factual issues to determine, and the case presents only legal questions, which the lower court correctly decided, and to which we should agree. Whether we regard the judgment as one based on a motion for judgment on the pleadings, or as a summary judgment, the result is the same. With respect to the pleadings, the plaintiffs complaint alleges the issuance of an insurance policy by the defendant, a fire within the term of the policy, and a loss, the amount of which remains unpaid after proof of loss has been filed with the defendant. The defendant has filed an answer, admitting the issuance of the policy, that it was in effect, and that a loss occurred during the term of the policy. It denies any loss in excess of $18,316.21 for which it asks the Court in its prayer to enter judgment. As a first affirmative defense, the defendant alleges that there were fires on three separate occasions, and goes on to contend, "that the plaintiff . . . caused the premises insured . . . to be materially altered so as to decrease the value of said property; that plaintiff did not report said alterations to defendant; that said alterations materially affected the insurance risk of the defendant." Later, when a motion for summary judgment was pending, the insurance company, in its brief, stated that the alterations consisted of but are not limited to removal of the second story on the main building and removal of an adjacent building. They do not allege or contend that the alterations increased the insurer's risk in the property. -23- The policy provision upon which Glacier relies in its first affirmative defense is this: "Unless otherwise provided in writing hereto, this company shall not be liable for loss occurring: " (a) While the hazard is increased by any means within the control or knowledge of the insured . . ." No matter how one slices it, a material alteration which serves to "decrease the value of said property" cannot be converted into an increase of the hazard insured against. The cases are unanimous that the increase of hazard clause refers to physical conditions. West v. Green (1969), 284 Ala. 517, 226 So.2d 302; Grace v. Westchester Fire Ins. Co. (1964), 7 Ohio App.2d 156, 219 N.E.2d 227. "Increase of hazard" is synonomous with "increase of risk of loss." Brooks Upholstering Co. v. Aetna Insurance Co. (1967), 276 Minn. 257, 149 N.W.2d 502. "Since the term 'increase of hazard' denotes a change in the circumstances existing at the inception of the policy, it is evident that a provision in an insurance policy against increase of risk or hazard relates to a new use which would increase the risk or hazard insured against, and not to a continuation of a former or customary use, - or - to - a change -- in risk without increase of hazard. It contemplates an alteration in the situation or circumstances affecting the risk which would materially and substantially enhance the hazard, as viewed by - - a person of - ordinary intelligence, -- care and diligence. Thus, not all changes in the purposes for which premises are occupied or used will be such hazard-increasing activities as will void insurance coverage . . ." 43 Am.Jur.2d 879, 880, Insurance, S927. It is Glacier's theory that the alterations in the property, which decreased its value "materially affected the risk." Perhaps so; but what is prohibited under the policy clause is enhancement or increase in the risk against fire. Glacier's theory is so ethereal as to have no weight. If we determine therefore, that the affirmative defense presents nothing for the District Court or this Court to determine, and is legally ineffective, what remains for us or the District Court to decide? We must turn then to the effect of the uncontrovertible fact that Glacier sought and received the consent of the insured to an appraisal under the terms of the policy and that an appraisal of the loss under the terms of the policy has been made and rendered. The fact that Glacier has requested and gone ahead with the arbitration is an admission of liability under the policy. Carr v. American Insurance Company (U.S.D.C. Tenn. 19571, 152 F.Supp. 700. This was an act affirming the validity of the policy, which act negated Glacier's contention that the policy was void. The policy provision for appraisal or arbitration is this, in pertinent terms: "In case the insured and this company shall fail to agree as to actual cash value or the amount of the loss, then, on the written demand of either, each shall select a competent and disinterested appraiser . . . The appraiser shall then appraise the loss, stating separately actual cash value and loss to each item, and, failing to agree, shall submit their difference only to the umpire an award in writing so itemized of any two when filed with this company shall determine the amount of actual cash value and loss . . ." The appraisers undertook the appraisal, item by item. They found a total cost to reconstruct the building of $80,000. Nevertheless, they agreed to reduce the loss on the building as far as the actual cash value and loss to each item was concerned to $48,524. They found a further loss to the equipment in the bar in the sum of $5,320. Since the appraisers made their award, including the cost of reproduction less depreciation, the award is not subject to judicial review where the policy states that the award when filed "'shall determine the amount of actual cash value and loss. ' " Schreiber v. Pacific Coast F. Ins. Co. (1950), 195 Md. 639, 75 Atl.2d 108, 111, 20 A.L.R.2d 951, 956. The report of the appraisers indicated that they had "found the actual cash value and loss to each item" in their report. Their award therefore is in accordance with the terms of the policy and may not now be attacked by Glacier, especially when Glacier requested the appraisal. The case therefore, is clear, at least to me: there was a policy of insurance in effect at the time of the fire; there was a material alteration of the premises while the policy was in effect which reduced the value of the property insured but did not enhance the fire risk; there was a resort by Glacier to appraisers under the terms of the policy, and the appraisers have returned the amount of their award in accordance with the terms of the policy. The insured is entitled to a judgment in the amount of the appraiser's award plus interest from the date of the fire. Therefore, the insured was entitled to judgment on the pleadings or to a summary judgment, whether further affidavits were filed or not. I would so hold. Justice - G - ~ | November 28, 1979 |
4de1678d-8b18-4e58-8aa8-35f21608b1c5 | In re 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 Beth Baker 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 |
69fb8f9e-dfb9-4b09-ac7f-5fecf3713d2f | STATE v DAUGHERTY | N/A | 14284 | Montana | Montana Supreme Court | No. 14284 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 THE STATE OF MONTANA, Plaintiff and Respondent, VS. JOHN EDWARD DAUGHERTY, Defendant and Appellant. Appeal from: District Court of the Second Judicid District, Honorable Arnold Olsen, Judge presiding. Counsel of Record: For Appellant: Patrick D. McGee argued, Butte, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Sheri K. Sprigg argued, Assistant Attorney General, Helena, Montana John G. Winston, County Attorney, Butte, Montana Michael E. Wheat argued, Deputy County Attorney, Butte, Montana Submitted: November 5, 1979 Decided : DEC 1 0 1979 Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. Defendant appeals from his conviction of forgery follow- ing a bench trial in the District Court of Silver Bow County. In March, 1977, a federal tax return check was stolen from the mailbox of Hubert J. Worring in Butte, Montana. This check was allegedly endorsed and cashed at Ossello's by defendant John Edward Daugherty and Donna LaTray on March 28, 1977. They allegedly received a television set, a CB radio and some cash in the exchange. After determining that the endorsement was forged, the federal government stopped payment on the check. Ossello's filed a complaint with the federal government about having to bear the loss on the forged check. Lee Scott, a special agent of the Secret Service, was assigned to investigate the matter in August, 1977. Scott secured a description of the people who cashed the forged check and went to local law enforcement agencies to find someone Y J ~ O matched the description. Defendant, who was in the Silver Bow County jail on an unrelated drug charge, was listed as a possible suspect. Scott went to the jail to question defendant. He advised defendant of his Miranda rights and secured a signed waiver of those rights. Scott secured a written statement and handwriting exemplars from defendant. Application for leave to file an information against de- fendant was filed and the case received a number indicating it was to be tried in Department I1 of the District Court which is presided over by Judge Freebourn. The county attorney filed a notice for substitution of another judge. No judge was specifi- cally called in by Judge Freebourn. Judge Olsen took the case. On November 10, 1977, defendant was arraigned before Judge Olsen on the forgery charge. He refused to enter a plea and Judge Olsen entered a not guilty plea on his behalf. Defen- dant objected at this time to being tried in a state court, argu- ing that the federal courts had exclusive jurisdiction over this matter since a federal tax return check was involved. Having waived his right to a jury trial, defendant was tried on March 13, 1978, before Judge Olsen, Department No. I, Silver Bow County. Defendant again objected to the jurisdiction of this Court and the power of Judge Olsen to hear the case, con- tending the matter was within the exclusive jurisdiction of the federal courts and that Judge Olsen had been improperly substi- tuted for Judge Freebourn. Defendant was convicted of the crime of forgery and sen- tenced to ten years in the Montana State Prison. He appeals from this judgment and sentence. Defendant specifically raises two issues for review on appeal : 1 . Did the procedure used herein for the substitution of a District Court judge constitute reversible error? 2. Did the District Court lack subject matter jurisdic- tion because the crime involved a federal tax refund check? Defendant contends that Judge Olsen did not have the power to hear the case and convict defendant because the rule on dis- qualification and substitution of judges was not followed. We agree. Pursuant to 1972 Mont. Const., Art. VII, S2, this Court in December 1976, adopted a rule for disqualification and substi- tution of judges. The rule states, in pertinent part: "Any judge or justice of the peace must not sit or act in any action or proceeding: "4. In a district court, when a motion for a substitution of a judge had been filed. In a civil case, each adverse party is entitled to two substi- tutions of a judge. In a criminal case, the state and each defendant is entitled to one substitution of a judge. "A motion for substitution of a judge shall be made by filing a written motion for substitution reading as follows: 'The undersigned hereby moves for sub- stitution of another judge for Judge in this cause.' The clerk of court shall immediately - give notice thereof to all parties and to the judge named in the motion. Upon filing this said notice the judge named in the motion shall have no further power to act in the cause other than to call in another judge, which he shall do forthwith, and to set the calendar. "When a case is filed in a multi-iudqe district, it shall be the duty of the clerk of court to stamp the name of the iudse to which the case is assiqned on the face of the summons, order to show cause, or informa- tion and all copies thereof. "Whenever a judge is assigned a case for ten consec- utive days and the attorneys of record on both sides have knowledge of the assignment for that period of time, and if during this time no motion for substitu- tion of a judge is filed against him, all rights to move for substitution of a judge shall be deemed waived by all parties, unless the presiding judge dis- qualified himself thereafter in which case the right to move for substitution of a new judge is reinstated and the ten day period starts running anew. "Whenever a new party enters a case, the ten day period begins anew as to that party. During that time all other parties may file any motions for substitution of a judge allowed by this rule and not previously filed by them. "Whenever an acceptance of jurisdiction is filed by a new judge it shall be the duty of the clerk of court, forthwith, to mail a copy thereof by certified mail with return receipt requested, to all attorneys of record. Service thereof may also be made by delivery of a copy personally, or by getting a written receipt from the attorneys therefor. Proof of service, how- ever made, shall be stapled to the acceptance of juris- diction so served, in said file." (Emphasis supplied.) 34 St.Rep. 26, 27. This Court found a similar situation in Wheeler v . Moe (1973), 163 Mont. 154, 515 P.2d 679. One of the issues in that case concerned the power of a judge assignd to a case without formal notice after the disqualification of another judge in the same district. This Court found the actions of the second judge void. We stated: "After the affidavit was filed, Judge Green was without jurisdiction to act further in the matter except in those limited instances outlined in the statute. The record does not disclose that another judge, including Judge Brownlee, was called in as provided for in the statute. No notice was given to the parties or their attorneys that another judge had been called in or that the action had been trans- ferred to another judge. Judge Green was without authority to act, and Judge Brownlee, presiding in Judge Green's stead and not having been called to assume jurisdiction, was also without authority to act in the matter." Wheeler v . Moe, supra, 515 P.2d at 682. Research has revealed no published local court rule of the Second Judicial District regarding transfer of cause between the two departments upon disqualification of either one or the other of the judges. Our decision therefore is of necessity based on this Court's rule for disqualification and substitution as enum- erated above. A review of the record reveals that the District Court failed at nearly every step to follow that rule. There is no evidence in the record which indicates that Judge Freebourn specifically called in Judge Olsen to handle the case nor is there any evidence that Judge Olsen filed an acceptance of jurisdiction. Further, there was a failure to deliver a copy of such acceptance of jurisdiction to the attorneys of record or to receive a written receipt from the attorneys therefor. Coupled with the failure to follow the proper disqualifi- cation procedure, there is the lack of published local rules deal- ing with court practice in the Second Judicial District. At page 109 of the transcript, Judge Olsen states: " . . . it has been the rule, custom, and practice in this jurisdiction that when . . . a motion for substitution [of one judge is] submitted, the other judge in this district assumes jurisdiction." The failure to pub- lish this variation on the Supreme Court rule constituted inade- quate notice to the defendant that some procedure other than the Supreme Court rule was going to be used. In effect then the de- fendant was operating with one set of rules and the court with another. Such confusion cannot be tolerated and could easily have been prevented by the publishing of the local rules. We strongly recommend that the judges of the Second Judicial District formu- late and publish local court rules, and make copies of such rules available to all members of the bar who practice before their courts. Such local rules must be consistent with already formu- lated rules of this Court. The judgment is reversed and defendant is granted a new trial. This cause is remanded to the District Court and presiding Judge Freebourn with instructions to call in another judge in con- formity with this Court's Rule on substitution of judges at 34 St.Rep. 26. The defendant's contentions as to the second issue are without merit. Forgery is prohibited by both federal and state laws and therefore the defendant may be tried in either a state or federal court. See section 45-6-325(1)(a), MCA; State v. Stevens (1921), 60 Mont. 390, 199 P . 256; Ex Parte Groom (1930), 87 Mont. 377, 287 P . 638. Reversed and remanded. Chief Justice J tices w | December 10, 1979 |
cc87f47e-1db7-4715-a495-1f07c0805754 | BILLINGS ASSOCIATED v STATE BOARD | N/A | 14725 | Montana | Montana Supreme Court | No. 14725 IN THE SUPREME COURT OF THE STATE OF MONTANA BILLINGS ASSOCIATED PLUMBING, HEATING AND COOLING CONTRACTORS, et al., Plaintiffs and Appellants, STATE BOARD OF PLUMBERS, Defendant and Respondent. Appeal from: District Court of the Thirteenth Judicial District, Honorable C. B . Sande, Judge presiding. Counsel of Record: For Appellants: Calvin A. Calton argued, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Denny Moreen argued, Assistant Attorney General, Helena, Montana Submitted: September 17, 1979 Decided: NOV 1 4 1979 Filed : , . . , 5.29- . . i L = !-4 Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. Plaintiff appeals from a judgment on the pleadings in favor of defendant in the District Court of Yellowstone County. Plaintiff is an informal association of plumbing con- tractors in the Billings, Montana, area. It filed an action for declaratory judgment seeking to have state statutes establish- ing a statewide permit system for plumbers declared unconstitu- tional. The Billings Association claimed the state inspection and permit system was substantially a duplication of an existing local system in the Billings area; that it subjected Billings plumbers to two fees; and that the dual regulatory system denied Billings plumbers equal protection of the law and due process. The District Court restrained the State Board from collecting in- spection and permit fees during the pendency of the action. During the course of the action the 1977 Legislature enacted a statute providing that no state permit was required in an area where a city code was in effect covering plumbing install- ations and providing inspection procedures. Section 50-60-506(3), MCA . The State Board counterclaimed seeking a mandatory injunc- tion to compel Billings plumbers to obtain permits and pay fees for plumbing installations prior to the effective date of the 1977 Act. The District Court granted the State Board judgment on the the pleadings. The Billings Association appeals, Plaintiff assigns the following issues for review in this appeal : (1) Is the dual regulatory system for plumbers as it existed prior to the 1977 legislation an unconstitutional denial of equal protection and due process? (2) Is there a material issue of fact precluding judg- ment on the pleadings? (3) Is injunctive relief a proper remedy? By way of background to the present controversy, the City of Billings had enacted and placed in operation, as part of its municipal building code, inspection procedures covering plumb- ing installations pursuant to the authority contained in section 50-60-301 et seq., MCA. The 1975 Legislature enacted an amend- ment to the existing state law providing a statewide inspection and permit system for plumbing installations to be administered by the State Board of Plumbers. Section 1, Ch. 466, Laws of Montana 1975, codified in section 50-60-505, MCA. This amendment became effective on July 1, 1975. Under this legislation, per- mit fees were to be paid by plumbing contractors and placed in a revenue fund earmarked to cover costs of administration, inspec- tion and enforcement of the State Plumbing Code. The state system substantially duplicated the existing Billings system. The effect was tb subject Billings plumbers to two permits and two fees, one payable to the city and the other payable to the state. This situation was remedied by the 1977 Montana Legislature's enactment of a statute providing that no state permit was required in an area where a municipal code covering plumbing installations and providing inspection procedures was in effect as heretofore indicated. The present action, insofar as it seeks collection of state fees, is limited to plumbing installations in the Billings area between July 1, 1975, and July 1, 1977. The first issue in this appeal is the constitutionality of the state statutes providing for state inspections of plumb- ing installations and state fees therefor. The Billings Association contends that the state statutes create double regulation of Billings plumbers which is an invalid exercise of police power, denies them equal protection of the law, and violates due process require- ments. The State Board of Plumbers argues the converse. The state regulatory system is aimed at the protection of the health and welfare of the people of this state. Section 50-60-501, MCA. It constitutes an exercise of the state's police power. Billings Properties, Inc. v. Yellowstone County (1964), 144 Mont. 25, 394 P.2d 182, It is not contended nor argued that either the Billings regulatory system or the state regulatory system standing alone is constitutionally defective. It is the coexistence of the two regulatory systems that is the focus of the constitutional attack. Dual regulation of an activity by a municipality and the state is not prohibited as long as the municipal regulation does not conflict with the state regulation. 62 CJS Municipal Corpor- ations, Sec, 143, pp. 286-293. "Where there is room for concurrent jurisdiction, there is no objection to the state and a munici- pality legislating upon the same subject, so long as the municipal ordinance does not conflict with the state law." State v. Cook (1929), 84 Mont. 478, 485, 276 P. 958, 961. Here the state permitted local regulation. Section 50-60-201 et seq., MCA. This manifested a legislative intent that plumbing jurisdiction and regulation be concurrent between the city and state. There is no contention that the two regulatory systems are conflicting or irreconcilable. Moreover, if the two systems did conflict, the local system, not the state system, must yield. City of Bozeman v . Merrill (1927), 81 Mont. 19, 261 P . 876. The right to carry on a lawful business is a property right; due process requires that it not be unreasonably or un- necessarily restricted, U . S . Const., Amend. XIV, 81; 1972 Mont. Const. Art. 11, S17. The state regulatory system of plumbers is a valid exercise of police power over a lawful business. See State v . Abstracters Board of Examiners (1935), 99 Mont. 564, 45 P.2d 668, and Freeman v . Board of Adjustment (1934), 97 Mont. 342, 34 P.2d 534. Equal protection of the laws requires that all persons be treated alike under like circumstances. U . S. Const., Amend. XIV, 81; 1972 Mont. Const., Art. 11, S4; Montana and ~ i t l e ~ss'n v . First American Title (1975), 167 Mont. 471, 539 P.2d 711. Classification of persons is allowed as long as it has a permis- sible purpose and the classifying statute has a reasonable rela- tionship to that purpose. McGowan v. Maryland (1961), 366 U.S. 420, 81 S.Ct. 1101, 6 L Ed 2d 393; Lindsley v . Natural Carbonic Gas Co. (1911), 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369, see also United States v . Reiser (D.C. Mont. 1975), 394 F.Supp. 1060, 1063, rev'd on other grounds (9th Cir. 1976), 532 F.2d 673. Here concurrent regulation by the city and state was per- missible. All plumbers subject to both the Billings ordinance and the state statute were treated alike. To the extent that dual regulatory system established a classification between Billings area plumbers and those in the rest of the state, the classifica- tion was reasonable and bore a rational relationship to the pur- pose of protecting public health. Any system of dual regulation by different governmental entities necessarily subjects some persons to different treatment than others but this is not the test of equal protection. Accordingly, we hold that the state legislation establish- ing a dual regulatory system was constitutional. The Billings Association next contends that an issue of fact exists which precludes entry of a judgment on the pleadings. The Association alleged the Board could not have conducted inspec- tions of every plumbing installation during the period from July 1, 1975 to suiy 1, 1977. Assuming the inability of the Board to inspect every in- stallation, judgment on the pleadings was nonetheless properly entered. The act provides: " ~ l l plumbing and drainage systems may be inspected by the department of administration or its authorized representative to insure compliance with the require- ments of the state plumbing code." Section 50-60-510, MCA. (Emphasis added.) Inspection was not intended to be mandatory as evidenced by use of the word "may" rather than "shall" or "must". Enforcement was intended to be selective and the Board's alleged inability to inspect does not preclude judgment on the pleadings. Turning to the last issue, we hold that injunctive relief is improper in this case. The injury complained of was noncom- pliance with a state permit requirement from 1975-1977. Injunc- tive relief cannot remedy a past wrong. Dutton v . Rocky Mountain Phosphate, Inc. (1969), 152 Mont. 352, 362, 450 P.2d 672, 677; Bouma v. Bynum Irrigation District (1961), 139 Mont. 360, 364, 364 P.2d 47, 49; 42 Am Jur 2d Injunctions S 4 , pp. 730-731. We do not find a continuing nuisance which would, if it existed, be subject to remedy by injunction. A continuing nuis- ance contemplates some sort of future harm unless the offending act is enjoined. Here all the harm occurred from 1975-1977. Where the entire injury is in the past, an injunction cannot issue. The injunctive relief is vacated. The remainder of the judgment on the pleadings is affirmed. Chief Justice We concur: | November 14, 1979 |
d6af56ba-78c1-43a3-a598-8266cac45766 | BOARD OF TRUSTEES v STATE EX REL | N/A | 14653 | Montana | Montana Supreme Court | No. 14653 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 BOARD OF TRUSTEES OF BILLINGS SCHOOL DISTRICT NO. 2 of Yellowstone County, Montana, Petitioner, STATE OF MONTANA ex re1 BOARD OF PERSONNEL APPEALS AND BILLINGS EDUCATION ASSOCIATION, a Montana non-profit corporation, Respondent. Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert H. Wilson, Judge presiding. Counsel of Record: For Petitioner: Longan & Holmstrom, Billings, Montana James Capser argued, Billings, Montana For Respondent : Hooks and Budewitz, Townsend, Montana Patrick F. Hooks argued, Townsend, Montana Hilley and Loring, Great Falls, Montana Emilie Loring argued, Great Falls, Montana Jerry Painter, Helena, Montana Filed: DEC 2.i ~ ~ : J * I Submitted: September 21, 1979 Decided : DEC 1979 Mr. Chief justice Frank I. Haswell delivered the Opinion of the Court. The Board of Trustees of Billings School District No. 2 appeals from the order of the Yellowstone County District Court denying the School District's petition to modify the order of the Board of Personnel Appeals. The BPA's order determined that District No. 2 had committed an unfair labor practice by coerc- ing its teachers to surrender their right to strike. The BPA's order stated in part that the District shall not issue individual contracts which include terms of employment not yet adopted in a master agreement. The District staunchly defends its right to issue individual contracts to teachers after contraat negotiations have reached an impasse, and it fears that the BPA order, if upheld, will interfere with its ability to keep its schools operating when no agreement on a master contract can be reached. Our decision does not concern the District's right to issue individual contracts prior to adoption of a master agree- ment. We are concerned here with the issuance of individual teach- er contracts during the pendency of a lawful strike and hold only that under the facts of this case the District's use of individual contracts to terminate the strike was an unfair labor practice under section 59-1605 (1) (a), R.C.M. 1947. During the first ten months of 1975, appellant District and respondent Billings Educational Association attempted to nego- tiate a new contract for District teachers. Negotiations were unsuccessful and District schools opened in the fall of 1975 with the teachers working without a contract. On October 2, 1975, the teachers went on strike. Three days later, the District's final offer was rejected and BPA mediators withdrew. With negotiations having ceased, the District mailed a letter with an attached con- tract to each of its teachers. Each letter stated that the teacher would be replaced unless his or her contract was signed and returned by October 14, 1975, and he or she returned to work by ~ctober 15, 1975. On October 10, 1975, BEA filed a complaint with the BPA in which it alleged the District had violated section 59-1605(1) (a)(e), R.C.M. 1947, of the Collective Bargaining Act by its refusal to bargain. In addition BEA's brief contended that the District had coerced teachers by mailing them letters contain- ing a threat of discharge. After conducting a hearing on the charges, a BPA hearing examiner concluded that the District had violated section 59-1605(1)(e) by refusing to bargain, but that the complaint failed to give the District fair notice of the charge of coercion, and thus he could not consider that charge. The BPA adopted the examiner's finding that the District had refused to bargain, and in addition, concluded that the Dis- trict had attempted to coerce its teachers into signing contracts and returning to work, thereby interfering with their right to engage in concerted activities including the right to strike. The District petitioned the Yellowstone County District Court to modify the BPA's order insofar as it ordered the District to cease using individual contracts providing for wages, hours, fringe benefits, or other conditions of employment. The District Court denied the petition and this appeal followed. The sole issue is whether the District Court committed reversible error in affirming BPA's decision that the mailing of individual contracts was an unfair labor practice under the facts of this case. The District contends that BEA's complaint failed to give notice of the charge of coercion; that the evidence presented at the hearing before the BPA's trial examiner does not support the conclusion that the District coerced its teachers; and that sec- tion 75-6102, R . C . M . 1947, authorizes the District to issue individual teacher contracts containing terms of employment not already adopted in a master agreement. The first issue presented by defendant is whether BEAts complaint complied with the requirements of notice for admin- istrative hearings. Section 82-4209(1), R . C . M . 1947, of the Montana Administrative Procedure Act provides that a party to a contested case shall be given an opportunity for a hearing after reasonable notice. Reasonable notice includes "a short and plain statement of the matters asserted. " Section 82-4209 (2) (d) , R.C.M. 1947. The District maintains that it did not receive reasonable notice of the charge of coercion because the complaint did not state that the District had "coerced" its teachers, and did not allege facts which would support such a charge. The importance of pleadings in administrative proceedings lies in the notice they impart to affected parties of the issues to be litigated at the hearing. Western Bank of Billings v . Mont. 34 St-Rep. 1197; St. Banking (1977), Mont . , 570 P.2d 1115/ Davis, Adminis- trative Law Text, (3rd ed. 1972), S8.02, pp. 196-197; Greco v. State Police Merit Board (Ill. C . A . 1969), 105 Ill.App.2d 186, 245 N.E.2d 99, 101. Thus the pleadings are liberally construed to determine whether the charged parties were given fair notice. 73 C.J.S. S120, p . 439; Greco, supra; Glenn v . Board of County Comtrs, Sheridan County (Wyo. 1968), 440 P.2d 1, 4 . Fair notice is given if a charged party having read the pleadings should have been aware of the issues which it had to defend, N.L.R.B. v. Johnson (6th Cir. 1963), 322 F.2d 216, 220. See also, Glenn, supra; Dee1 Motors, Inc. v. Department of Commerce la. C.A. 1971), 252 We hold that the District received fair notice that the charge of coercion would be litigated. The complaint charged coercion when it stated that the District had violated section 59-1605 (1) (a) (e) , R.C.M. 1947. Section 59-1605 (1) (a), prohibits coercion of employees in the exercise of certain rights protect- ed by the Collective Bargaining Act. Among those rights is the right to strike. The complaint also alleged facts to support the charge of coercion as it stated the District was "attempting to force the teachers to give up legally protected rights." In the same context, the complaint stated that public employees have the right to strike. The word "coercion" is not a talisman without which the complaint fails. The allegations stated in the complaint were sufficient to inform the District that the issue of coercion would be litigated. If the District still had doubts about whether coercion was an issue, upon request it could have obtained a more definite statement of the charges. See section 82-4209(2)(d), R . C . M . 1947. The District contends that the BPA's finding that it coer- cively used individual contracts is clearly erroneous in view of the evidence presented by the entire record. Due to the similarity in the provisions of the National Labor Relations Act and Montana's Collective Bargaining Act concerning this issue, it is appropriate to consider federal cases in interpreting the prohibition against coercion contained in section 59-1605 (1) (a) , R.C.M. 1947. See Local 2390 of Amer. Fed., Etc. v . City of Billings (1976), 171 Mont. 20, 555 P.2d 507. Federal cases have established the right of an employer to inform striking employees of his intent to permanently replace nonreturning workers after a specified date. N.L.R.B. v . Robinson (6th Cir. 1958), 251 F.2d 639; N.L.R.B. v. Bradley Washfountain Co. (7th Cir. 1951), 192 F.2d 144, 152-154. The District contends that the individual contracts and attached letters simply informed its striking teachers of what the District had a legal right to do, namely to replace teachers who refused to return to work after October 15, 1975. The facts of this case do not support the ~istrict's contention. An employer's right to communicate his intent to replace striking workers is not absolute. If the employer's communication is an attempt to interfere with his employees right to engage in concerted act!.vities, then he has committed an unfair labor practice. National Labor Rel. Bd. v . Beaver Meadow Creamery (3rd Cir. 1954), 215 F.2d 247; Cusano v . National Labor Relations Board (3rd Cir. 1951), 190 F.2d 898; See also 1 J . L . R . B . v . D'Armigene Inc. (2nd Cir. 1965), 353 F.2d 406; N.L.R.B. v . Power Equipment Company (6th Cir. 1963), 313 F.2d 438. The chairman of District No, 2's Board of Trustees testi- fied at the hearing before the trial examiner that the District's letter to its teachers included a deadline because "it was time to bring the strike to a halt if we could." The District's fail- ure to hire replacement teachers alfter the ddline passed suggests that the District's primary motivation was to halt the strike rather than to keep its schools open. See Dayton Food Fair Stores, Inc. v . N . L . R . B . (6th Cir. 1968), 399 F.2d 153. The BPA's finding that the District coerced its teachers to surrender their right to strike is amply supported by the record. We note in passing that in resolving this issue, we are dealing with a lawful strike. Union activities that become vio- lent and threaten the public safety are not protected by the constitutional right to free speech or provisions for collective bargaining. 51A C.J.S. 8289, p . 67; Clark v . State (Okla. C.C.A. 1962), 370 P.2d 46; Smith v. Grady (5th Cir. 1969), 411 F.2d 181; Stevens v . Horne (Fla. C . A . 1976), 325 So.2d 459. See also, Great Northern Ry. Co. v . Local G.F.L. of I.A. of M . (D.Mont. 1922), 283 F. 557. The District's final contention is that State ex rel. BEA v . District Court (1974) , 166 Mont. 1, 531 P.2d 685, and section 75-6102, R.C.M. 2.944, authorize the issuance of individual \ teacher contracts even though a master contract has not been adopted. In State ex rel. BEA, this Court held that nothing in the Professional Negotiations Act for Teachers (formerly section 75-6115 through 75-6128, R . C . M . 1947) required District No. 2 to adopt a master agreement with BEA before issuing individual teacher contracts. I? 1975, the legislature repealed the Pro- fessional Negotiations Act and placed teachers under the Collec- tive Bargaining Act. State ex rel. BEA did not concern a charge of coercion or interpret the teachers' rights under the Collec- t i v ~ Bargaining Act to participate in strikes. It is not rele- vant to the present dispute. Section 75-6102, R . C . M . 1947, requires teachers to be employed by contract. The District contends that the legislature's failure to repeal section 75-6102, R . C . M . 1947, after placing teachers under the Collective Bargaining Act demonstrates the legislature's intent to authorize the issuance of individual con- tracts after negotiations on a master contract have reached an impasse. This argument also misses the point. Whether the District can issue individual contracts after an impasse in negotiations has occurred is not the issue here. This decision concerns only the District's use of individual contracts as leverage to end its teachers' participation in a lawful strike. Affirmed. We concur: n Chief Justice Hon. Frank E. B l a i r , D i s t r i c t Judge, s i t t i n g i n place of M r . J u s t i c e John C. Sheehy. M r . J u s t i c e Daniel J. Shea d i s s e n t s and w i l l f i l e a w r i t t e n d i s s e n t later. | December 24, 1979 |
871ad009-a288-4971-a2be-05dc4c1efe63 | STATE v BLAKNEY | N/A | 14534 | Montana | Montana Supreme Court | No. 14534 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 STATE OF MONTANA, Plaintiff and Respondent, LARRY BLAKNEY, Defendant and Appellant. Appeal from: District Court of the Fourth Judicial District, Honorable Jack L. Green, Judge presiding. Counsel of Record: For Appellant: Smith, Connor & Van Valkenburg, Missoula, Montana John P. Connor argued, Missoula, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Mary B. Troland argued, Assistant Attorney General, Helena, Montana Robert L. Deschamps 111, County Attorney, argued, Missoula, Montana Submitted: September 13, 1979 Decided : I- i k 1979 M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. ~ e f e n d a n t - a p p e l l a n t w a s a r r e s t e d on t h e charge of d e l i b e r a t e homicide on June 1 4 , 1977, a f t e r police had obtained a confession, t h e product of several interroga- t i o n s . Appellant t h e r e a f t e r moved t o suppress the confes- sion because it w a s involuntary. The D i s t r i c t Court, how- ever, found t h e confession voluntary, denied t h e motion, and set t r i a l i n t h e matter. Appellant w a s convicted of t h e charge and sentenced t o f o r t y years i n t h e Montana state prison. From t h i s conviction he appeals. A t approximately 9:00 p.m. on Saturday, June 11, 1977, p o l i c e found t h e body of Ann Thibodeau i n t h e Clark Fork River near t h e downtown area of Missoula, Montana. M s . Thibodeau had apparently been strangled and thrown i n t o t h e r i v e r , her death r e s u l t i n g from s t r a n g u l a t i o n aggravated by t h e ingestion of water i n t o the lungs. On i n v e s t i g a t i o n p o l i c e learned t h a t M s . Thibodeau spent t h e evening of June 10, 1977, with a p p e l l a n t and several o t h e r young people. During t h e evening, they drove around Missoula i n appel- l a n t ' s c a r , stopping a t various t i m e s t o pick up some hidden beer, t o "park," and t o check on some p a r t i e s . A s t h e n i g h t progressed, appellant took h i s passengers home, dropping off t h e l a s t one except Ann Thibodeau s h o r t l y before midnight. A t t r i a l , a s w e l l as when f i r s t i n t e r - viewed by t h e police, a p p e l l a n t t e s t i f i e d he then took M s . Thibodeau home. I n a confession made t o Missoula p o l i c e , however, appellant s t a t e d he and M s . Thibodeau parked by a bridge near the Clark Fork River a f t e r dropping o f f t h e l a s t of t h e i r companions. Appellant s a i d he became angry with M s . Thibodeau f o r being u n f a i t h f u l t o h i s brother, whom she had been dating, and suddenly strangled her. Thinking she was dead, he dragged her from h i s car and s l i d her off t h e bridge i n t o the r i v e r . Officers questioned appellant concerning M s . Thibodeau's death on four occasions: Saturday, June 11, a t 1 1 : O O p.m. f o r approximately one and one-half hours; Sunday, June 1 2 , a t 9:30 a.m. f o r approximately two and one-half hours; Monday, June 13, a t 10:OO p.m. f o r approximately two hours; and Tuesday, June 1 4 , a t 1 2 : l O a.m. f o r approximately one and one-half hours. I n addition t o these i n t e r r o g a t i o n s , a p p e l l a n t consented t o a search of h i s car and a polygraph examination. Officers conducted t h e c a r search a f t e r t h e f i r s t i n t e r r o g a t i o n a t approximately 1:00 a.m. on Sunday, June 1 2 . The search revealed a p p e l l a n t ' s c a r had been r e c e n t l y cleaned. The polygraph examination w a s conducted on Monday, June 13, between the second and t h i r d questioning sessions. The examination indicated some untruthfulness i n a p p e l l a n t ' s p r i o r statements. Appellant confessed during t h e t h i r d interview. The fourth interview consisted of a taping of e s s e n t i a l l y t h e s a m e confession. P r i o r t o each interview, a p p e l l a n t w a s advised of h i s r i g h t s and signed waivers respecting h i s r i g h t s . During t h e interviews, p i c t u r e s of t h e nude body of t h e victim w e r e exposed on t h e t a b l e of t h e i n t e r r o g a t i o n room. The i n t e r - views w e r e conducted with only a p p e l l a n t and the interview- ing o f f i c e r s present i n t h e room. Members of a p p e l l a n t ' s family w e r e present i n t h e h a l l o u t s i d e t h e interview room* Appellant w a s n o t confined between interviews. Appellant was 1 8 years of age a t t h e t i m e of t h e i n t e r - views. A t t h e suppression hearing, two expert witnesses t e s t i f i e d appellant had a learning d i s a b i l i t y and probably could not understand his rights as presented on the waiver forms used by the police. There was additional testimony that appellant had an IQ of 94, had completed the eighth grade, had passed most of the high school equivalency exam, had taken vo-tech classes in Butte, and had worked in his father's business. Discrepancies exist as to whether appellant made a request for counsel. It is agreed that appellant brought up the subject of counsel during at least one of the question- ing sessions. The testimony conflicts, however, as to when appellant mentioned an attorney, what appellant said about wanting an attorney, and the conduct of the interviewers and appellant after the mentioning of counsel. Appellant states he requested counsel and one was not provided. One of the officers questioning appellant recalled that appellant asked him if he thought he should talk with a lawyer and the officer responded that it was up to appellant. Both questioning officers agree that appellant voluntarily resumed the interview after the mentioning of counsel. No counsel was provided for the appellant during the interroga- tion process. On Wednesday, June 15, 1977, appellant called police officers and family members to the Missoula County jail where he was being held and repudiated the statements he had made on the 13th and 14th, stating he saw someone else murder Ms. Thibodeau. At the suppression hearing and trial, appellant withdrew this repudiation and returned to his original story of dropping off the victim at her home about midnight. Appellant raises three issues on appeal: 1. Did t h e D i s t r i c t Court err i n f a i l i n g t o g r a n t t h e motion t o suppress a p p e l l a n t ' s confession? 2. Does s e c t i o n 46-13-301(4), MCA, r e q u i r i n g a defen- d a n t on a motion t o suppress t o prove t h a t a confession was involuntary, c o n s t i t u t e a d e n i a l of due process i n v i o l a t i o n of t h e United S t a t e s and Montana Constitutions? 3. Did t h e S t a t e p r e s e n t s u f f i c i e n t evidence during t h e t r i a l t o support a g u i l t y v e r d i c t on t h e charge of d e l i b e r a t e homicide? To r e s o l v e t h e f i r s t i s s u e presented here, w e must decide i f t h e D i s t r i c t Court e r r e d i n f i n d i n g a p p e l l a n t ' s confession voluntary and i f a p p e l l a n t w a s u n c o n s t i t u t i o n a l l y denied h i s r i g h t t o counsel. To determine t h e f i r s t a s p e c t of t h i s i s s u e , t h e voluntariness of t h e confession, w e must consider t h e " t o t a l i t y of circumstances" surrounding t h e confession with no s i n g l e f a c t being d i s p o s i t i v e of t h e i s s u e . S t a t e v. Grimestad (1979), M o n t . , 598 P. 2d 198, 202, 36 St.Rep. 1245, 1251; S t a t e v. Lenon (1977), Mont. , 570 P.2d 901, 906, 34 St.Rep. 1153, 1157. When, a s here, a youthful defendant questions t h e v o l u n t a r i n e s s of a confession, t h e circumstances t h e Court must consider include : ". . . 1) age of t h e accused; 2) education of t h e accused; 3) knowledge of t h e accused as t o both t h e substance of t h e charge, i f any has been f i l e d , and t h e nature of h i s r i g h t s t o c o n s u l t with an a t t o r n e y and remain s i l e n t ; 4 ) whether t h e accused i s held incommunicado o r allowed t o c o n s u l t with r e l a t i v e s , f r i e n d s o r an a t t o r n e y ; 5) whether t h e accused w a s i n t e r - rogated before o r a f t e r formal charges had been f i l e d ; 6 ) methods used i n i n t e r r o g a t i o n ; 7) l e n g t h of i n t e r r o g a t i o n s ; 8) whether v e l non t h e accused refused t o v o l u n t a r i l y give statements on p r i o r occasions; and 9) whether t h e accused has repudiated an e x t r a j u d i c i a l statement a t a l a t e r d a t e . . ." West v. United S t a t e s ( 5 t h C i r . 1968), 399 F.2d 467, 469, cert. denied, 393 U.S. 1102. W e should a l s o consider t h e mental capacity of t h e defendant, Smallwood v. WardehMaryland P e n i t e n t i a r y ( 4 t h C i r . 1966), 367 F.2d 945, cert. denied, 386 U.S. 1022; t h e v i s i b i l i t y of nude p i c t u r e s of a murder victim during t h e defendant's i n t e r r o g a t i o n , People v. Roberts (1966), 3 Mich.App. 605, 143 N.W.2d 182, 185; t h e use of polygraph examinations, Keiper v. Cupp ( 9 t h C i r . 1975), 509 F.2d 238, 241; a defendant's previous experience with t h e criminal j u s t i c e system, United S t a t e s v. Glasgow ( 9 t h C i r . 1971), 451 F.2d 557, 558; and, a defendant's experience i n t h e a d u l t world, United S t a t e s v. H i l l i k e r ( 9 t h C i r . 1970), 436 F.2d 101, 102-03, c e r t . denied, 4 0 1 U.S. 958 and West v. United S t a t e s , supra. These a r e a l l f a c t o r s c o u r t s have taken i n t o account i n deciding i f a young person v o l u n t a r i l y confessed. One a d d i t i o n a l r u l e a i d s us i n deciding t h i s case. W e s t a t e d i n Grimestad: ". . . The i s s u e of v o l u n t a r i n e s s of a confes- s i o n is l a r g e l y a f a c t u a l determination, ad- dressed t o t h e d i s c r e t i o n of t h e t r i a l c o u r t . . . The t r i a l c o u r t ' s judgment as t o volun- t a r i n e s s of a confession w i l l n o t be reversed on appeal u n l e s s it i s c l e a r l y a g a i n s t t h e weight of t h e evidence." 598 P.2d a t 202, quoted from S t a t e v. Lenon, 570 P.2d a t 906. The t r i a l c o u r t here reviewed t h e evidence and d e t e r - mined a p p e l l a n t v o l u n t a r i l y confessed. I n considering almost every one of t h e f a c t o r s l i s t e d above a s r e l e v a n t i n determining t h e v o l u n t a r i n e s s of a p p e l l a n t ' s confession, evidence e x i s t s supporting t h e holding of t h e D i s t r i c t Court. Appellant w a s 18, l e g a l l y an a d u l t . H e had passed most of h i s high school equivalency examination and attended vo- t e c h school. Appellant's IQ i s 94, within t h e normal a d u l t range. The t r i a l judge found t h a t a p p e l l a n t demonstrated an understanding of t h e English language during h i s courtroom testimony. Appellant had worked i n h i s f a t h e r ' s business. Appellant had p r i o r experience with t h e criminal j u s t i c e system, having previously been advised of h i s r i g h t s i n connection with juvenile matters. The four i n t e r r o g a t i o n sessions l a s t e d only about two hours each and w e r e spread o u t over s e v e r a l days. Between sessions, a p p e l l a n t went home, f r e e t o consult with family members and move about as he pleased. The D i s t r i c t Court found t h a t t h e polygraph procedure d i d n o t intimidate appellant. Appellant s t a t e d a t t h e suppression hearing t h a t he d i d n o t pay much a t t e n t i o n t o t h e p i c t u r e s of t h e victim l e f t exposed on a t a b l e during t h e questioning. Appellant repudiated h i s confession, placing blame f o r t h e murder on someone else, but l a t e r returned t o h i s o r i g i n a l s t o r y of dropping off t h e victim a t her home. Although some evidence t o t h e contrary e x i s t s , t h e above f a c t s show t h e decision of t h e D i s t r i c t Court does n o t c l e a r l y contravene t h e weight of t h e evidence. W e must, therefore, affirm t h e D i s t r i c t Court's r u l i n g on t h e volun- t a r i n e s s of a p p e l l a n t ' s confession. Speaking t o t h e second aspect of t h i s i s s u e , whether a p p e l l a n t w a s unconstitutionally denied h i s r i g h t t o counsel during t h e i n t e r r o g a t i o n process, t h e D i s t r i c t Court con- cluded: "That the defendant never made an e f f e c t i v e as- s e r t i o n of counsel and i n any event t h e r e a f t e r knowingly and i n t e l l i g e n t l y waived t h e presence of counsel by spontaneously s t a t i n g he d i d n o t want a lawyer and resuming t a l k i n g t o t h e police.'' This conclusion raises two questions f o r consideration on appeal: (1) Did a p p e l l a n t e f f e c t i v e l y a s s e r t h i s r i g h t t o an attorney? and, (2) if so, did appellant thereafter waive his right to counsel? In Miranda, the Court stated: "Prior to any questioning, the person must be warned that he has a right to remain silent, that statements he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effec- tuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at - any stage of the process that he wishes to con- sult with an attorney before speaking there can be no questioning." (Emphasis added.) Miranda v. Arizona (1966), 384 U.S. 436, 444-45, 16 L.Ed.2d 694, 86 S.Ct. 1602. Although the witnesses at the suppression hearing gave conflicting testimony concerning the language used by appel- lant in allegedly asserting his right to counsel, the trial court found that appellant "brought up the subject of an attorney" twice, on the second occasion stating, "maybe I should have an attorney." This language brings appellant's assertion within the "indicates in any manner" language set out in Miranda as the requirement for an effective assertion of the right to counsel. Thus, the District Court errone- ously concluded that appellant did not effectively assert his right to counsel. We must decide, therefore, if the District Court also erred in concluding that appellant waived his right to counsel after an effective assertion of the right. Although the United States Supreme Court has not yet ruled on the issue, see Brewer v. Williams (1977), 430 U.S. 387, 405-06, 97 S.Ct. 1232, 51 L.Ed.2d 427, several of the circuit courts have held a defendant can validly waive the right to counsel after making a request for counsel. United States v. Rodri- guez-Gastelum (9th Cir. 1978), 569 F.2d 482, cert. denied, 436 U.S. 919; United S t a t e s v. Hodge ( 5 t h C i r . 1973), 487 F.2d 945. W e hold t h a t t h i s view c o r r e c t l y i n t e r p r e t s t h e s i t u a t i o n i n Montana and adopt t h i s r u l e . I n so doing, w e recognize t h a t a waiver of t h e r i g h t t o counsel cannot be presumed and t h a t t h e S t a t e bears a heavy burden t o show waiver. North Carolina v. Butler (1979) , - U.S. , 99 S.Ct. 1755, 60 L.Ed.2d 286, 292. Given t h i s standard and t h e District C o u r t ' s f i n d i n g s of f a c t , t h e District Court d i d n o t err i n holding a p p e l l a n t waived h i s r i g h t t o counsel. The D i s t r i c t Court found t h a t t h e f i r s t a s s e r t i o n of t h e r i g h t w a s made on Sunday morning. A f t e r being advised by t h e p o l i c e t h a t he could have counsel i f he wished, a p p e l l a n t continued answering questions. Thus, a p p e l l a n t v o l u n t a r i l y abandoned h i s r i g h t t o counsel a t t h i s p o i n t and u n i l a t e r a l l y resumed t h e i n t e r v i e w without prompting by t h e interviewing o f f i c e r s . The Sunday i n t e r - view terminated around noon with no i n c r i m i n a t i n g statements being made by a p p e l l a n t . The n e x t i n t e r r o g a t i o n s e s s i o n d i d n o t begin u n t i l Monday evening. Between t h e i n t e r v i e w s more than 30 hours elapsed, including a f u l l business day i n which a p p e l l a n t was n o t detained and was f r e e t o c o n s u l t with family members o r an a t t o r n e y i f he wished. P r i o r t o t h e Monday i n t e r r o g a - t i o n , a p p e l l a n t again received h i s Miranda warnings and signed a waiver. During t h e questioning s e s s i o n , a p p e l l a n t again a s s e r t e d h i s r i g h t t o counsel. With t h i s , t h e o f f i - cers stopped questioning a p p e l l a n t and began t o l e a v e t h e room. Appellant resumed t a l k i n g t o t h e p o l i c e and they reminded him he had j u s t s a i d he wanted an a t t o r n e y . Appel- l a n t then s t a t e d he d i d n o t want a lawyer and t h e i n t e r r o - g a t i o n continued. These facts--particularly the more than 30-hour time span between the first assertion of the right to counsel and any inculpatory statement, the rereading of his Miranda warnings and the signing of a waiver before any incriminating statement, and the express statement by appellant that he did not want a lawyer--represent a waiver of the right to counsel on the part of appellant. The law on the second issue raised by appellant is clear. Recent Montana and United States Supreme Court decisions invalidate section 46-13-301(4), MCA. Lego v. Twomey (1972), 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618; State v. Smith (1974), 164 Mont. 334, 338, 523 P.2d 1395, 1397. The State must prove the voluntariness of a confes- sion at a suppression hearing by a preponderance of the evidence. If the trial court applied section 46-13-301(4) and required appellant to prove the confession involuntary, it erred. Error by the trial court cannot be presumed but must be shown by the record. State v . Straight (1959), 136 Mont. 255, 264-65, 347 P.2d 482. Reviewing the record of the sup- pression hearing, the trial judge heard arguments by the prosecuting attorney that, while at the trial the State must prove voluntariness, the burden to show the police violated appellant's rights rested on appellant at the suppression hearing. Responding to this argument, the judge stated, "Well, it appears to me that what you say is true. Mr. Volinkaty [appellant's attorney], at the trial, if they wish to introduce this at trial, the burden is on the State to prove voluntariness; however, this is a motion to suppress and I think that, since it is your motion, you should pro- ceed at this time." This record presents the possibility of two errors by the District Court. First, the trial judge could have erred in requiring the appellant to go forward with the evidence. The federal courts have considered this question on several occasions. Speaking to this issue in a case involving the suppression of wiretap evidence, the Fifth Circuit Court stated: "(b) Burdens of proof in suppression hearings. It is well establishedthat the burdens of production and persuasion generally rest upon the movant in a suppression hearing. [Cita- tions omitted.] Concededly, in some well- defined situations the ultimate burden of persuasion may shift to the government upon an initial showing of certain facts by the defendant. For example, if a defendant pro- duces evidence that he was arrested or sub- jected to a search without a warrant, the burden shifts to the government to justify the warrantless arrest or search. [Citation omitted.] Or if a defendant shows that a con- fession was obtained while he was under cus- todial interrogation, the government then has the burden of proving that the defendant volun- tarily waived his privilege against self-incri- mination . . . -- even in those situations, the - defendant must first discharge - his initial bur- den of producing some evidence on specific -- factual allegations sufficient to --- make a prima facie showing of illegality." United States v. DeLa ~ u e n t e ( 5 t h Cir. 1977), 548 F.2d 528, 533-534, cert. denied, 431 U.S. 932 and 434 U.S. 954. In United States v. Crocker (10th Cir. 1975), 510 F.2d 1129, the trial court denied appellant's motion to suppress a confession. On appeal, the appellant contended the trial court at the suppression hearing improperly required her to assume the burden of proof and of going forward with the evidence. The Circuit Court responded to this argument, saying: "It is fundamental on a motion to suppress there must be 'a foundation in fact for the legal re- sult.' Rogers v . Richmond, 365 U.S. 534, 546, 81 S.Ct. 735, 742, 5 L.Ed.2d 760 (1961). Logic dictates that a pre-trial Motion to Suppress f i l e d by an accused does i n f a c t c a s t t h e bur- den upon t h e movant t o p r e s e n t f a c t s necessary t o s u s t a i n h i s p o s i t i o n . [ C i t a t i o n omitted.]" Crocker, 570 F.2d a t 1135. The c o u r t goes on t o s t a t e : "While t h e defendant must f i r s t p r e s e n t evidence i n support of h i s motion t o suppress which sa- t i s f i e s h i s burden of challenging t h e l e g a l i t y of t h e confession, w e have recognized t h a t t h e Government must -- then c a r r y t h e countervailing burden of proving a waiver of t h e c o n s t i t u t i o n a l p r i v i l e g e a g a i n s t self-incrimination." 510 F.2d a t 1135. See a l s o United S t a t e s v. P o l i z z i ( 9 t h C i r . 1974), 500 F.2d 856, 910, c e r t . denied, 419 U.S. 1 1 2 0 . These cases i n d i c a t e a t r i a l judge can properly r e q u i r e a p a r t y moving f o r t h e suppression of evidence t o i n i t i a t e suppression hearing proceedings. The r a t i o n a l e f o r such a procedure is t h e requirement t h a t t h e movant e s t a b l i s h a prima f a c i e case t h a t a c o n s t i t u t i o n a l infringement has oc- curred. Once t h i s has been accomplished, t h e u l t i m a t e burden of proving t h e p r o p r i e t y of t h e s t a t e ' s a c t i o n s h i f t s t o t h e s t a t e . Thus t h e D i s t r i c t Court here d i d n o t err i n r e q u i r i n g a p p e l l a n t t o p r e s e n t h i s evidence f i r s t a t t h e suppression hearing. Although allowable, w e do n o t recommend t h i s procedure a s standard p r a c t i c e a t suppression hearings. The D i s t r i c t Courts should employ t h i s procedure only when necessary t o e s t a b l i s h a prima f a c i e case of infringement by t h e S t a t e . I f a prima f a c i e c a s e is presented by t h e p a r t y requesting t h e suppression of evidence t o t h e t r i a l c o u r t ' s s a t i s f a c - t i o n through prehearing documentation, t h e S t a t e should be required t o i n i t i a t e t h e suppression hearing proceedings. This procedure w i l l c l e a r l y place t h e burden of proof on t h e S t a t e a s required by Lego and Smith. The second possible error presented here is whether there was an improper burden of proof put on appellant at the suppression hearing. The above excerpt from the hearing transcript clearly shows the trial judge applied the incor- rect standard at the suppression hearing. After hearing the State's argument that appellant was required to prove the confession involuntary, the judge stated he thought that what the prosecuting attorney said was true and required appellant to proceed. As noted above, we find that this required appellant to assume the obligation of going forward with the evidence. It also shifted the burden of proof to appellant. However, we find here that even though the trial court's ruling did shift the burden, the ruling can be sustained as harmless error. The error here is federal constitutional error. Lego v. Twomey, supra; Jackson v . Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. While not all errors of constitutional magnitude call for reversal, ". . . before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705. In determining the existence of harmless constitutional error, the appellate court considering the question has the task of applying the harmless beyond a reasonable doubt test. Chapman, 386 U.S. at 24; see also Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 ~ . ~ d . 2 d 284; Schneble v. Florida (1972), 405 U.S. 427, 92 S.Ct, 1056, 31 L.Ed.2d 340. Applying this standard to the instant case, we find the error was harmless beyond a reasonable doubt. We are aided in our decision by the rationale expressed in Rogers v. United States (5th Cir. 1964), 330 F.2d 535, cert. denied, 379 U.S. 916. Rogers is another case holding no error exists in requiring a defendant to initiate suppression hearing proceedings. 330 F.2d at 542. In so holding, the court stated: ". . . The burden of producing evidence is never crucial unless certain necessary facts in a case are not aired. Here all the salient facts were --- aired. Few were even in dispute. The defendant, therefore, was not prejudiced by the order in which the evidence iia~-~resented. And the dis- trict judge allowed defendant's counsel to ex- amine all of the witnesses as hostile. There is no prejudicial error in the record." 330 F.2d at 543. (Emphasis added.) As in Rogers, the trial judge heard all the salient facts at the suppression hearing. The trial court heard testimony from eleven witnesses including appellant, appel- lant's father, the officers who interviewed appellant, the polygraph examiner, a clinical psychologist, and a learning disabilities specialist. The trial judge allowed appellant's attorney to examine witnesses as adverse in appellant's initial presentation. At the conclusion of the appellant's initial presentation, the State introduced evidence of voluntariness through its own witnesses. When the State rested, the trial court gave appellant the opportunity to present rebuttal testimony. Throughout the proceedings, both sides conducted extensive direct, cross, redirect, and recross examination of the witnesses. In addition to the witness testimony, the trial judge had the benefit of briefs from appellant and the State on the voluntariness question. After considering all this testimony and the briefs of counsel, the trial judge found the confession voluntary. Given the extensive nature of the proceedings and the full right of appellant to present his case on this issue, we are convinced beyond a reasonable doubt the trial judge would have reached the same result regardless of the improper placing of the burden of proof on appellant. Any error thus constitutes harmless error and does not warrant returning the case to the trial court. Appellant's arguments concerning the third issue lack merit. Regarding the sufficiency of evidence to support a guilty verdict, this Court has said: "On appeal we examine the evidence to determine whether the verdict is supported by substantial evidence. In doing so, we view the evidence in the light most favorable to the state." State v. Merseal (1975), 167 Mont. 412, 415, 538 P.2d 1366, 1368. Beyond the confession, the State presented evidence that placed appellant with the victim about three blocks from the scene of the murder near the probable time of the murder. Appellant could not explain his whereabouts at the time the murder probably occurred. Appellant had told his brother, "I think they're going to get me for the murder" before the police even questioned him about the homicide. And, appellant had borrowed his brother's shoes the morning after the murder because his own were wet, even though every witness who was with appellant and the victim on the night of the murder agreed that appellant had not walked near any water. This evidence, when viewed in the light most favor- able to the State, as we must do when the State prevails at the trial level, sufficiently supports appellant's convic- tion on the charge of deliberate homicide. For the foregoing reasons, we affirm the judgment of the District Court. We concur: Z&$ Chief Justi Justices Mr. Justice John C. Sheehy dissents: This is the kind of case that is guarantied to add gray hairs to an already graying judge's head. The record discloses a strong possibility that defendant Larry Lynn Blakney is guilty of deliberate homicide in the murder of Ann Thibodeau. But the record also discloses a strong possibility that the confession uttered by Larry Lynn Blakney was involuntary, was obtained with indicia of coercion, and the District Court put the burden of proof with respect to voluntariness upon the wrong party at the suppression hearing. Reversal means further expense to the county and a possible loss of a conviction. Affirmance means that Blakney's constitutional rights must be explained away, and places our approval on the procedure that led to the confession. Therefore, I come down on the side of reversal. The circumstances surrounding the confession need some further elaboration. The body of Ann Thibodeau was found at approximately 9:00 p.m. on Saturday, June 11, 1977 in the Clark Fork River, near downtown Missoula. Blakney, at the officer's request, went to the Missoula police station at 10:30 p.m. that evening. He was interrogated beginning at approximately 11:30 p.m. for one and one-half hours. Following the interrogation, which was recorded, Blakney was taken to his home by interrogating officers, where his car was searched pursuant to his consent. They also were shown the interior of Blakney's home. They broke off contact with him at 2:00 a.m. on the morning of June 12, 1977. Arrangements were made at that time for Blakney to come into the police station that morning at approximately 9:45 a.m. for a second interview. This second interview on June 12, 1977, lasted approximately two to two and one-half hours. Again the interrogation was conducted in the police interrogation room in the presence of two police officers. At this interrogation arrangements were made for Blakney to take a polygraph examination on the following day at a time to be agreed upon. Although the testimony of the officers is inconsistent about the matter, it is conceded by the two officers and it was found by the trial court that some type of request for an attorney was made by Blakney during the interrogation of June 12. On Monday, June 13, 1977, Blakney went to the police interrogation room to undergo the polygraph examination. It was conducted by a Cascade County deputy. The examination commenced at approximately 9:15 p.m. and was conducted in the presence of four police officers, including the polygraph examiner. Since Blakney's father had gone on vacation the previous day, his uncle came to the police station with him. When the polygraph examination began, the uncle was seated at an open door outside the interrogation room and was able to hear the first few questions of the polygraph examination. The examiner shook his head in the negative, said something to another police officer, who then suggested to the uncle that he remove himself, or go upstairs to get a soft drink or something. The uncle did this, and when he attempted to return to the interrogation room, found the door to the basement, through which he had come, locked. He waited there until the polygraph interrogation was completed at which time an officer came out to the uncle to tell him that the boy "was confessing." During the polygraph examination, the young defendant was seated facing the wall, and on the table near -18- him were spread out parts of the police file, but particularly a dozen or so pictures of the nude body of Ann Thibodeau. When the polygraph examiner had finished his examination, he removed the chart from the machine, and placed the defendant behind him, showed to the defendant, the polygraph chart recording of a "known lie". The examiner then went on to state by showing other "highs" in the chart, that Blakney was lying. Blakney testified that the polygraph examiner said "well, I've got some daughters of my own, I wouldn't want the same thing to happen to them as what happened to Ann." Blakney also testified that the examiner told him that the examiner would take the polygraph test and flash it up on a big screen in front of the jury and would show the jury the places where the examiner maintained that Blakney lied. The testimony of the polygraph examiner in this regard is as follows: "Q. After Larry came over and you reviewed the results, did you make any statements to Larry at that time? A. Yes, I did. I told him I thought it would probably be best if he leveled with the authorities and told them what happened. "Q. Are you married? A. Yes. "Q. Do you have any children? A. Yes. "Q. And are they boys or girls? A. I have two boys, one 19 and one 16. " Q . No girls? A. No. "Q. Did you make a statement to Larry at that time that you had a couple of daughters and you didn't want this happening to them? A. Okay. To clarify what I am talking about -- and talking about marriage -- on my first marriage, I have two sons by my first marriage. On my second marriage, I have two daughters, stepdaughters, and that's true. "Q. Did you make a statement to that effect, that you knew he was lying and that you didn't want this to happen to your daughters? A. I'm not going to say that I made that statement. I honestly don't remember. "Q. Can you honestly say that you did not make the statement? A. No. I wouldn't honestly say that. "Q. Did you make any other statements to him? A. Yes, I did. Before we first started the exam, when we went over the advisement of rights, and also the waiver of rights on the bottom, made it very plain to Larry, and asked him if he knew that this was being done voluntarily on his part, and that the polygraph results cannot be used against him in the State of Montana. "Q. Did you make a statement to Larry after the test was concluded of something to the effect that you were going to put the results of the test on a screen and have it shown to a jury and he would be found guilty of deliberate homicide? A. No. "Q. Did you make any statement that was similar to that? A. To the best of my knowledge, no. "Q. Did you make any other statement, other than possibly one about the daughters, concerning either the use of the results or Larry's involvement in the crime? A. Yes, I probably did, because in most cases, I'll tell them that, if it is stipulated that the results can be used, but only if his attorney and the prosecuting attorneys will stipulate it, that the results can be used." Immediately following this, the two officers who originally interrogated Blakney came back into the room. Blakney testified that they told him they knew that he did it and that he ought to tell everything. At this point, Blakney testified that he again requested an attorney. The officers testified that he made such a request but that then he went on talking and so nothing further was done about it. Blakney testified that he assumed that because they continued interrogating him that he was not going to get an attorney at that time. At this point, according to the testimony of the officers, Blakney, who was concerned about what a confession would mean to members of his family, was assured that it was a good thing for him to do and that the family would understand. With that, Blakney confessed to the murder. Later he gave a further confession that was taped or recorded. The evidence concerning the actual confession reveals a very emotional scene. It is this evidence and testimony that leads me to conclude that Blakney probably committed the murder. But the testimony in evidence leading up to the confession also forces me to conclude that his constitutional rights against self-incrimination and his right to counsel were overridden. Of course, if the first oral confession was uncon- stitutionally brought about, then the second confession is likewise inadmissible. In any event, in considering the voluntariness of a confession, its truth or falsity is not to be considered. State v. White (1965), 146 Mont. 226, 405 P.2d 761; cert-den. 384 U.S. 1023, 86 S.Ct. 1955, 16 L.Ed.2d 1026. Where a confession is given in the absence of counsel, the underlying test of admissibility of confession is whether it is given voluntarily, and with the defendant's free will. State v. Lucero (1968), 151 Mont. 531, 445 P.2d 731; State v. Noble (1963), 142 Mont. 284, 394 P.2d 504. The majority opinion tacitly concedes that the evidence respecting voluntariness is close, and that there is evidence which would support either side of the issue. It is further clear from the record, that the District Court assumed that it was bound by the provisions of section 43-13-302(4), MCA, that the "burden of proving that a confession or admission was involuntary shall be on the defendant." This is the first -21- case where the Montana Supreme Court directly invalidates that portion of section 46-13-301(4), MCA. This Court had, however, in State v . Smith (1974), 164 Mont. 334, 338, 523 P.2d 1395, stated that the rule in Montana was that the state must prove the voluntariness of a confession by a preponderance of the evidence. This rule was also enunciated in State v. LaFreniere (19731, 163 Mont. 21, 27, 515 P.2d 76. The majority opinion concludes that the District Court did in fact apply an incorrect standard by placing the burden of proof upon Blakney to prove the involuntariness of his confession. Having so concluded, the majority goes further and determines that the mistake of the District Court constituted harmless error beyond a reasonable doubt. On that point, I must dissociate myself from the majority. I cannot agree with the majority that the evidence of voluntariness was harmless beyond a reasonable doubt. I am not mentally agile enough to make that syllogistic leap. In my opinion, when the District Court concluded that Blakney did not carry his burden of proof, a burden he did not have under a correct version of the law, the District Court committed error beyond a reasonable doubt. To clarify my position, I find no particular significance or error in the fact that Blakney was required to put his evidence on first at the suppression hearing. The correct procedure at suppression hearings calls for the defendant to put his case on first, at least to establish a prima facie case of involuntariness, because otherwise his motion would be defeated if no evidence were given on either side. Once the prima facie case has been established the burden of persuasion shifts to the State to prove the voluntary character of the confession. -22- I also want to make clear that I have stated the rule in Montana that voluntariness must be proved by the State by a preponderance of the evidence, only because the rule is stare decisis.1: - disagree with the holding of this Court in State v. LaFreniere, supra, which refused to adopt the standard of proof respecting voluntariness as beyond a reasonable doubt. Our court was following a decision in Lego v. Twomey (1972), 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618, 626, 627. There, the United States Supreme Court decided that proof beyond a reasonable doubt of the voluntariness of a confession was not constitutionally required. When the logic of the nine men in Washington in reaching a decision does not hold water, and we are not bound by the decision, we should not follow it blindly. The United States Supreme Court reached the preponderance rule in such cases upon the reasoning that "the purpose that a voluntariness hearing is designed to serve has nothing whatever to do with improving the reliability of jury verdicts . . ." 404 U.S. at 486. That reasoning is demonstrably wrong; it is precisely to assure the reliability of the jury verdict that suppression hearings are permitted. In fact, before the jury is permitted to hear a confession, the trial court is first required to determine that the confession is in fact voluntary. Jackson v . Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. In Montana, by statute, the issue of the admissibility of the confession is not to be submitted to the jury. Section 46-13-301(5), MCA. When one considers that every element of the crime must be proved beyond a reasonable doubt (section 26-1-403(2), MCA) the catastrophic effect of permitting a jury to hear a confession of the defendant, -23- the admissibility of which is determined on a basis less than beyond a reasonable doubt, cannot be debated. California has moved away from the United States Supreme Court in this regard, and has held that the privilege against self-incrimination is so fundamental, and so highly regarded judicially, that the reasonable doubt standard presents the greatest chance of excluding involuntary confessions. People v. Jimenez (1978), 147 Cal.Rptr. 172, 580 P.2d 672. Persuasive to the California court was the fact that once a confession is determined by the trial court to be voluntary and therefore admissible, the jury does not redetermine the voluntariness issue, and the appellate court is bound to accept the trial court's resolution of conflicting evidence, unless it is so improbable as to be entirely unworthy of belief. Jimenez, supra, 580 P.2d at 678. The same situation exists in Montana. Under our code section above cited, the jury does not determine the issue of admissibility. On appeal this Court has held invariably that the District Court's decision as to admissibility is practically inviolate. State v. Smith (1974), 164 Mont. 334, 523 P.2d 1395; State v . Chappell (1967), 149 Mont. 114, 423 P.2d 47; State v. White (1965), 146 Mont. 226, 405 P.2d 761. Again, it offends my syllogistic power to find consistency in a rule which requires proof of elements of a crime beyond a reasonable doubt but which allows a confession, against the defendant's constitutional right of no self-incrimination, to be proved by a lesser standard. Finally, it is my conclusion that Blakney was denied his Miranda rights with respect to counsel. The majority opinion finds that he effectively asserted his right but that he waived the same. It is true that the United States Supreme Court has held that the State bears a "heavy burden" to show waiver of right to counsel. North Carolina v . Butler (1979), U.S. , 99 S.Ct. 1755, 60 L.Ed.2d 286, 292. I am - -24- frank t o s t a t e t h a t I d o n ' t know what a "heavy burden" i s but I think it should be nothing l e s s than beyond a reasonable doubt. Here again t h a t standard has not been m e t i n t h i s case. I would reverse and remand, a t l e a s t f o r a proper hearing a s t o the voluntariness of t h e confession. \ . ;-- k . -> ,A ___-____--_-------------- / J u s t i c e "7--- 4 ' Mr. Justice Daniel J. Shea dissenting: I would reverse the conviction. I cannot in good conscience abide by the bald conclusion of the trial court after a hearing on a motion to suppress, that the confession was voluntary and that defendant was not denied his right to counsel. I agree with the factual recitation and conclusions reached by Justice Sheehy in his dissent, although I am not convinced at this time that we should adopt the California standard that the State must prove beyond a reasonable doubt that a confession is voluntary before it can be introduced against him at trial. People v. Jiminez (1978), 147 Cal.Rptr. 172, 580 P.2d 672. I am not convinced, on the other hand, that the present preponderance of the evidence should be the proper standard. Rather, I believe that the State should be required to prove by clear and convincing evidence that the defendant's confession was voluntary. The standard of beyond a reasonable doubt is too stern, and the standard of preponderance of the evidence is too elusive or vaporous. It is too flexible a standard by which to judge something so fundamental as a constitutional right. Justice Sheehy does not agree, furthermore, that it was harmless error beyond a reasonable doubt to require the defendant to prove the involuntariness of the confession. Nor do I . Should a defendant challenge the voluntariness of his confession^ it is his duty to raise the issue by an appropriate motion to suppress with specific contentions; but once those allegations are made it is the duty of the State to proceed first with its case to prove that the confession was voluntary. Only if the State establishes a prima facie case of voluntariness by the standard of clear and convincing evidence should the defendant be required to come forward with -26- his own evidence disputing the State's claim. That was not done here, and regardless of the standard used, it is clear that the trial court in effect placed the burden on the defendant to prove that the confession was involuntary and to prove that he was denied his right to counsel. The record demonstrates that the trial court was under the mis- taken assumption it was the defendant's duty to prove involuntariness of the confession and nonwaiver of counsel rather than the duty of the State to prove a voluntary confession and waiver of counsel. In setting forth the wide latitude to be given a trial court in assessing and weighing the evidence, the majority refers to Grimestad where we simply repeated the time worn rule which applies to virtually all factual determinations by a trial court. The majority then proceeds to apply Grimestad to this case by stating: "The trial court here reviewed the evidence and determined appellant voluntarily confessed. In considering almost every one of the factors listed above as relevant in determining the voluntariness of appellant's confession, evidence exists supporting the holding of the District Court. '' I do not dispute that evidence exists supporting the holding of the trial court, but if a standard other than the virtually meaningless one of preponderance of the evidence (in the context of this case) were applied, the trial court would have been required to find that the State did not prove the confession voluntary and a waiver of counsel by clear and convincing evidence. The majority then proceeds to discuss the evidence as to each of the factors. The essential problem is, however, that another trial judge, if he was so inclined (let us say if he had philosophical leanings different. than those of -27- the trial judge concerning the right to counsel and obtaining confessions), could have taken the opposite position, and concluded, with adequate support in the record, that the State did not prove that the confession was voluntary and that the State did not prove that defendant waived his right to counsel. This decision of the trial court would have looked just as good in print, although not nearly as well accepted by the public. Viewed in the abstract, this deference given to trial court decisions on the facts is nice-sounding; it gives the distinct impression that the appellate court is not meddling in the factual determinations of the trial court. I would also like to believe that we could, with full assurance, give this kind of deference to the trial court and its fact-finding functions. We refer to this rule constantly when we uphold a decision of the trial court as to its factual determinations. Aside from the improper standard applied in this case (it should be at least by clear and convincing evidence), the problem in this case is in applying this rule of deference to a situation where there is no indication that the trial court listened carefully to the evidence, carefully evaluated the evidence, and then came to the proper conclusions by a careful application of the law to the facts as it perceived them to be. We are giving only lip service to one's constitutional rights if we do not require this of trial courts in reviewing their rulings on factual questions relating to alleged constitutional violations. How do we know, for example, that in this case after the motion to suppress was taken under advisement, if the trial court took five minutes in considering the case before reaching its decision, or whether it took fifteen hours in considering -28- the case before it reached its decision? This is not necessarily to say that a five minute consideration would automatically be inadequate or that a fifteen hour con- sideration would be adequate. But, it can be safely stated that, regardless of the decision, if one knew the trial court considered the case for fifteen hours before reaching its decision, it would at least indicate that it had carefully considered the case. It goes without saying that when this Court reviews decisions of a trial court, it is helpful that we know how the trial court perceived the facts if it is making a factual determination, and how it applied the law to the facts. It is most important when the issue involves a claimed violation of a fundamental right such as is involved here. Unfortunately, it is more often the case than not, that this Court does not receive any meaningful insight as to how and why a trial court reached a decision. The general rule seemingly applied by the trial courts is that the less it says about the facts, and how it applied the law to the facts, the better its chance will be that its decision will be upheld on appeal. That situation exists in this case, but it is much more serious. Here, the only findings of fact and conclusions of law involved, are those prepared by the County Attorney after the trial court had reached its decision, and which were then given to the trial court to sign. We perhaps get some insight as to what the prosecutor perceived the facts to be and the appropriate conclusions to draw from those facts, but it adds absolutely nothing to the legitimacy of the trial court's decision. Had it not been for the after-the-decision suggestion of a law school intern then working for the Missoula County Attorney, there would not have been any findings and con- clusions entered in this case. This important revelation was first unearthed during the oral arguments before this Court. The prosecutor explained the circumstances. -2 9- This Court was questioning the prosecutor as to whether the trial court had entered a memorandum in support of its decision or had entered findings of fact and conclusions of law. In reply, the prosecutor revealed that after the trial court had taken the suppression motion under advisement, it later notified the County Attorney's office that it had entered an order denying the defendant's motion to suppress, or was about to enter such an order. It was then that the law student suggested to the prosecutor that it would be a good idea if the prosecutor presented the trial court with findings and conclusions in support of its order. The prosecutor agreed that this was a wise suggestion and, accordingly, prepared findings and conclusions and presented them to the trial court for signature. The trial court adopted verbatim the findings and conclusions; indeed, the order in which the findings and conclusions appear is exactly the same document presented by the prosecutor. Thus, the only findings and conclusions before this Court for review are those prepared by and tailored by the prosecutor. The trial court had not requested proposed findings and conclusions from either side. Presumably, therefore, if the trial court did so at all, it was going to prepare and enter its own. At least the defendant would naturally believe this being that the trial court requested no findings or conclusions from either side. Counsel for defendant at the hearing on the motion to suppress is not the same counsel as argued this appeal, and I imagine it will come as quite a revelation to him as to the background leading up to the tailored findings and conclusions signed by the trial court. The majority, of course, has carried the day, but I would not give one ounce of weight to findings and conclusions -30- prepared, presented, and signed in this manner. To conclude, as the majority has, that all this deference should be given to the decision of the trial court in listening to, weighing and evaluation of the evidence, is an exhaltation of form over substance in the highest degree. Defendant did not have his fair day in court on the motion to suppress because of the trial court's erroneous ruling placing the burden on the defendant. This error was compounded by the strange decision-making process used. in this case. Where the findings were tailored by the prosecutor after the decision was made, and with no opportunity for the defendant to participate, how can anyone in good conscience believe that the trial court fairly received and evaluated the evidence and applied the law in a fair and even-handed manner? Assuming that the revelations of the prosecutor did not come to light during oral arguments, and that this Court believed that the findings and conclusions were those of the trial court alone, if we had a standard of review of questions of this nature requiring the State to prove by clear and convincing evidence rather than by the preponderance of the evidence, the evidence would have required this Court to reverse the District Court. By not adopting a more stringent standard, we are only encouraging trial courts to be as vague as possible in reaching their decisions on questions involving fundamental constitutional rights. | December 13, 1979 |
e4b3c11b-9740-4a94-9e28-c8022265d41b | Northwest Truck v. Mcallister | 2013 MT 144N | DA 12-0672 | Montana | Montana Supreme Court | DA 12-0672 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 144N NORTHWEST TRUCK REPAIR, INC., Plaintiff and Appellee, v. BRUCE MCALLISTER dba GREAT NORTHERN FUEL SERVICE and ALLYN WILLIAMS, Defendants and Appellants. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-12-481(D) Honorable David M. Ortley, Presiding Judge COUNSEL OF RECORD: For Appellant: Mark W. Buckwalter, Buckwalter Law Firm, PLLC, Kalispell, Montana For Appellee: James C. Bartlett, Attorney at Law, Kalispell, Montana Submitted on Briefs: April 30, 2013 Decided: May 28, 2013 Filed: __________________________________________ Clerk May 28 2013 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 This appeal arises over truck repairs performed by Northwest Truck Repair, Inc. (“Northwest”) on a 1985 Kenworth T600A truck owned by Allyn Williams. Bruce McAllister d/b/a/ Great Northern Fuel Service (“McAllister”) made arrangements with Williams to lease the truck to haul rock. The truck broke down shortly after McAllister picked it up from Williams, so McAllister took the truck to Northwest for an inspection and diagnosis. Northwest recommended that the entire engine be replaced. McAllister asserts that he did not authorize such repair and that he assumed Williams would make the decision. Northwest, on the other hand, asserts that McAllister agreed to the engine replacement and even agreed to pay for it. In any case, Northwest ultimately made the repairs to the truck, totaling a little over $30,000, but neither Williams nor McAllister paid for them. ¶3 Northwest filed a complaint against Williams and McAllister in the Eleventh Judicial District Court, Flathead County, on April 30, 2012. McAllister was served with a Summons, Complaint, and Temporary Restraining Order and Order to Show Cause on May 15, 2012. Williams was served on May 16. The parties were ordered to appear before the District Court on May 24 and show cause why the truck should not be held by Northwest to protect its statutory possessory lien for services rendered. Williams appeared at the hearing and entered into a Stipulation with Northwest, which the District Court approved. Williams 3 agreed to sign and deposit the title to the truck with the District Court. Williams further agreed to list Northwest as an additional insured on the truck and to sign a promissory note for $4,000.00 payable to Northwest within 30 days. Northwest agreed that the truck would be released to Williams so that he could use it in his rock business. Lastly, the Stipulation recited that [t]his agreement does not resolve the ultimate issue of the lien of the Plaintiff or the defenses of Defendant Allyn Williams. No party has waived any claim or recourse. All parties retain all legal remedies and defenses available in law and equity. Defendant Allyn Williams acknowledges that the Court may yet order him to return the truck to the Plaintiff and the possessory lien reinstated. ¶4 McAllister did not appear at the May 24 hearing. On June 8, 2012, the Clerk of the District Court entered McAllister’s default, and on June 26, the District Court granted Northwest’s motion for default judgment against McAllister in the sum of $30,065.52, plus attorney’s fees in the sum of $800.00 and costs of $335.35. A writ of execution was filed July 12. ¶5 On August 7, 2012, McAllister filed a motion to set aside the judgment on grounds of mistake, inadvertence, surprise, or excusable neglect, M. R. Civ. P. 60(b)(1), or “any other reason that justifies relief,” M. R. Civ. P. 60(b)(6). The parties fully briefed the motion. McAllister filed an affidavit, in which he explained that he had been “confused as to the validity of the law suit and it’s [sic] applicability to me, because I did not own the Truck in question, I did not authorize repairs on the Truck and did not have the legal authority to do so, and I did not have the Truck in my possession.” McAllister stated that he had discovered the default judgment against him on July 27, 2012, when he obtained a credit report. The 4 District Court did not enter a ruling within 60 days, and the motion was therefore “deemed denied.” M. R. Civ. P. 60(c)(1). McAllister now appeals. ¶6 It is the policy of the law that every litigated case should be tried on the merits and, thus, judgments by default are not favored. Essex Ins. Co. v. Moose’s Saloon, Inc., 2007 MT 202, ¶ 17, 338 Mont. 423, 166 P.3d 451. Accordingly, when the trial court has denied a motion to set aside a default judgment, only a slight abuse of discretion need be shown to warrant reversal. Green v. Gerber, 2013 MT 35, ¶ 13, 369 Mont. 20, ___ P.3d ___; Grizzly Sec. Armored Express, Inc. v. Armored Group, LLC, 2009 MT 396, ¶ 12, 353 Mont. 399, 220 P.3d 661. Here, McAllister did not simply ignore the filing of Northwest’s complaint. He believed, rather, that the lawsuit did not apply to him. He did not understand that there was a threat of any action other than the seizure of the truck and the sale of it to pay for the repairs, which did not involve him. McAllister did not have an ownership interest in the truck; he had only a lease on the truck for a short period of time. Per the Stipulation, the truck was returned to Williams. Hence, if the default judgment stands, McAllister will suffer extreme prejudice, as he will have to pay $30,065.22 for repairs to a truck in which he has no legal interest, plus attorney’s fees and costs. Northwest, on the other hand, will not suffer the same sort of extreme prejudice if the default judgment is set aside and a trial is had on the merits. “We resolve any doubt regarding whether the [party’s] neglect was excusable in favor of trial on the merits.” Grizzly Sec., ¶ 17. Doing so here, and in the absence of any contrary findings by the District Court, we conclude that McAllister has shown slight abuse of discretion in the court’s failure to grant him relief under Rule 60(b)(1). 5 ¶7 We have determined to decide this case under Section I, Paragraph 3(d)(iii) of our Internal Operating Rules, pursuant to which this Court may enter a noncitable memorandum opinion reversing the judgment of the trial court where it is manifest on the face of the briefs and the record that the issue on appeal is one of judicial discretion and there clearly was an abuse of discretion. Having reviewed the briefs and the record, we conclude that McAllister has demonstrated a slight abuse of discretion in the District Court’s denial of his motion to set aside the default judgment. ¶8 Reversed and remanded for further proceedings. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS | May 28, 2013 |
b19fab3b-83d6-4690-95c4-9597ca488e8c | MARRIAGE OF HERRING v HERRING | N/A | 14710 | Montana | Montana Supreme Court | No. 14710 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN RE THE MARRIAGE OF BETTE ANN HERRING, Petitioner and Appellant, JOSEPH HERRING, An Incompetent Person, Respondent and Respondent. Appeal from: District Court of the Eighth Judicial District, Honorable H. William Coder, Judge presiding. Counsel of Record: For Appellant: Randono, Lewis and Donovan, Great Falls, Montana For Respondent: Richard Ganulin, Great Falls, Montana Submitted on briefs: October 4, 1979 Decided : NOV 2 1 1'79 5 , <<".1; Filed: , . \ , : . i .?.,,!k, & s . ' - ' d \ M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e Court. This i s an appeal from an order of t h e Cascade County D i s t r i c t Court dismissing a p p e l l a n t ' s p e t i t i o n f o r an equi- t a b l e apportionment of a m a r i t a l estate. Appellant wife and respondent husband w e r e married on August 16, 1956, i n Golden, Colorado- Appellant is 51 y e a r s o l d and respondent i s 80 years old. O n August 11, 1977, a p p e l l a n t f i l e d a p e t i t i o n with t h e D i s t r i c t Court t o have t h e marriage dissolved. O n March 23, 1978, t h e p e t i t i o n was granted, and t h e marriage of t h e p a r t i e s was dissolved by decree of d i s s o l u t i o n . I n granting t h e d i s s o l u t i o n , t h e c o u r t reserved t h e r i g h t t o equitably apportion t h e assets of t h e m a r i t a l e s t a t e . The c o u r t i n s t r u c t e d both p a r t i e s t h a t they w e r e t o attempt t o reach a property agreement between themselves and t h a t , i f no agreement could be reached, e i t h e r p a r t y could f i l e a p e t i t i o n t o equitably apportion t h e m a r i t a l estate. The only s i g n i f i c a n t a s s e t s of t h e p a r t i e s w e r e some diamond r i n g s , acquired by t h e p a r t i e s during t h e marriage and worth approximately $3000 t o $4000 a t t h e t i m e of purchase, and a p a r c e l of r e a l property and home located a t 307 F i f t h Avenue South i n Great F a l l s , Montana, which respondent had purchased 16 years p r i o r t o t h e marriage. The p a r t i e s being unable t o reach a property s e t t l e - ment, a p p e l l a n t p e t i t i o n e d t h e D i s t r i c t Court on October 16, 1978, f o r an e q u i t a b l e apportionment of t h e m a r i t a l estate. I n t h e p e t i t i o n a p p e l l a n t a l l e g e d t h a t she w a s e n t i t l e d t o one-half of t h e i n t e r e s t i n t h e Great F a l l s property on t h e b a s i s of a n o r a l agreement she had made with respondent. Appellant estimated her e q u i t y i n t h e property a s $6500. A hearing w a s held concerning the p e t i t i o n on October 23, 1978, Appellant was n o t p r e s e n t a t t h e hearing, having moved her residence t o t h e S t a t e of Colorado. Two a t t o r n e y s t e s t i f i e d on a p p e l l a n t ' s behalf t h a t respondent had attempted t o arrange a s a l e of t h e Great F a l l s property i n s a t i s f a c - t i o n of t h e a l l e g e d o r a l agreement. The sale, however, was never completed. Respondent t e s t i f i e d t h a t t h e property w a s purchased s i x t e e n years p r i o r t o t h e marriage and t h a t a p p e l l a n t had made no s u b s t a n t i a l c o n t r i b u t i o n t o t h e pur- chase o r maintenance of t h e property. From t h e evidence adduced a t t h e hearing, t h e District Court found t h a t a p p e l l a n t had n o t contributed t o t h e pur- chase o r maintenance of t h e property and t h a t , a s a matter of law, it would be i n e q u i t a b l e t o award a p p e l l a n t an i n t e r e s t i n t h e property. The c o u r t a l s o concluded t h a t t h e o r a l agreement was unenforceable because an i n t e r e s t con- veyed i n r e a l property must be i n writing. Accordingly, t h e D i s t r i c t Court ordered t h a t t h e p e t i t i o n be dismissed. From t h a t o r d e r , a p p e l l a n t appeals. Appellant r a i s e s s e v e r a l i s s u e s on appeal. Within t h e context of her b r i e f , however, w e note two i s s u e s which w e t h i n k a r e d i s p o s i t i v e . F i r s t , a p p e l l a n t contends t h a t it w a s e r r o r f o r t h e c o u r t n o t t o a s c e r t a i n t h e n e t worth of t h e p a r t i e s a t t h e time of t h e i r divorce. W e have held i n a number of cases t h a t , before t h e r e may be a proper d i s t r i b u t i o n of m a r i t a l property, t h e is- t r i c t Court must f i r s t determine t h e n e t worth of t h e par- ties a t t h e t i m e of t h e i r divorce. G r e n f e l l v. G r e n f e l l (1979) r Mont. , 596 P.2d 205, 207, 36 St.Rep. 1100, 1103; Brown v. Brown (1978), Mont . , 587 P.2d 361, 365, 35 St.Rep. 1733, 1738; Vivian v. Vivian (1978), Mont. , 583 P.2d 1072, 1074, 35 St.Rep. 1359, 1361. H e r e , t h e D i s t r i c t Court made no such finding. While t h e c o u r t d i d i n d i c a t e t h a t t h e only s i g n i f i c a n t assets w e r e t h e diamond r i n g s and t h e l o t and home, t h e r e was no attempt t o p l a c e a present, f a i r market value upon t h e s e i t e m s o r t o determine t h e n e t worth of t h e p a r t i e s a t t h e t i m e of t h e i r divorce. One witness t e s t i f i e d t h a t t h e diamond r i n g s w e r e worth about $3000 t o $4000 when they w e r e purchased s e v e r a l y e a r s ago. Another witness t e s t i f i e d t h a t t h e f a i r market value of t h e home w a s $13,000. Nowhere i n t h e record o r t h e order f o r dismissal, however, i s t h e r e any i n d i c a t i o n t h a t t h e t r i a l c o u r t made a determination of n e t worth. f o r Appellant a l s o a l l e g e s it w a s e r r o r / t h e c o u r t n o t t o permit f u l l inquiry i n t o a p p e l l a n t ' s c o n t r i b u t i o n t o t h e marriage. While it appears from t h e record t h a t t h e c o u r t d i d admit evidence of a p p e l l a n t ' s c o n t r i b u t i o n i n some i n s t a n c e s , it a l s o appears t h a t t h e c o u r t w a s under t h e impression a t c e r t a i n t i m e s i n t h e hearing t h a t t h e i s s u e of c o n t r i b u t i o n was most properly heard a t t h e t i m e of t h e e n t r y of t h e decree, n o t a t t h e hearing. Where counsel f o r respondent attempted t o go i n t o t h e c o n t r i b u t i o n of t h e p a r t i e s , t h e following colloquy occurred: "THE COURT: With a l l due regard t o your r i g h t t o examine, I would j u s t a s soon n o t r e t r y t h e divorce case, a l l r i g h t ? "MR. GANULIN: A l l r i g h t . I ' m j u s t t r y i n g t o g e t her c o n t r i b u t i o n of t h e m a r i t a l a s s e t s , i f you're considering d i s t r i b u t i n g them, then her c o n t r i b u t i o n would be one of t h e f a c t o r s . "THE COURT: That should have been heard a t t h e t i m e t h i s decree was entered, s h o u l d n ' t it, Counselor? "MR. GANULIN: Excuse me? "THE COURT: That should have been p a r t and par- cel of t h i s decree, s h o u l d n ' t i t ? "MR. GANULIN: Perhaps. "THE COURT: N o perhaps about it. The c o u r t has g o t t o make an equitable d i s t r i b u t i o n of prop- e r t y a t t h e t i m e it e n t e r s t h e decree. " Contribution is, of course, a r e l e v a n t f a c t o r t o be considered i n dividing t h e a s s e t s of t h e m a r i t a l estate, e s p e c i a l l y with r e s p e c t t o property acquired p r i o r t o t h e marriage. Section 40-4-202, MCA, provides i n p e r t i n e n t p a r t : ". . . I n disposing of property acquired p r i o r t o t h e marriage . . . t h e c o u r t s h a l l consider those contributions of t h e o t h e r spouse t o t h e marriage, including: " ( a ) t h e nonmonetary contribution of a home- maker; " (b) t h e e x t e n t t o which such contributions have f a c i l i t a t e d t h e maintenance of t h i s property; and " (c) whether o r n o t t h e property d i s p o s i t i o n serves a s an a l t e r n a t i v e t o maintenance arrangements. " W e f i n d it was e r r o r f o r t h e D i s t r i c t Court t o f a i l t o determine t h e n e t worth of t h e p a r t i e s and permit f u l l inquiry regarding a p p e l l a n t ' s contribution t o the marriage. Accordingly, w e reverse t h e order of t h e c o u r t and remand t h i s case f o r a f u l l and proper hearing upon t h e e q u i t a b l e apportionment of t h e m a r i t a l estate. W e concur: | November 21, 1979 |
78948a91-0ccf-4c4a-8af1-a1226d730248 | STATE v COLEMAN | N/A | 14448 | Montana | Montana Supreme Court | No. 14448 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 STATE OF MONTANA, Plaintiff and Respondent, -vs- DEWEY EUGENE COLEMAN, Defendant and Appellant. Appeal from: District Court of the Sixteenth Judicial District, Honorable A . B. Martin, Judge presiding. Counsel of Record: For Appellant: Moses Law Firm, Billings, Montana Charles F. Moses argued, Billings, Montana For Respondent : Hon. Mike Greely, Attorney General, argued, Helena, Montana Mike McCarter, Assistant Attorney General, argued, Helena, Montana John S. Forsythe, County Attorney, Forsyth, Montana Filed: DEC 4 9 1 m Submitted: October 29, 1979 Decided : DEC 1 9 1979 Mr. Justice John C. Sheehy delivered the Opinion of the Court. On June 20, 1979, we handed down our opinion on the second appeal of Dewey Eugene Coleman (1979), Mont . I P.2d , 36 St. Rep. 1134. Following the opinion, we received the decision of the United States Supreme Court in Sandstrom v. Montana (1979), U . S . , 99 S.Ct. 2450, 61 L.Ed.2d 39. Counsel for Coleman filed with us a petition for rehearing on the second appeal, alleging, among other things, that the holding in Sandstrom required a reversal and a new trial in Coleman's case. On the basis of Sandstrom, we granted the petition for rehearing, and further permitted argument on eight other grounds urged by Coleman for rehearing. The issues raised by both sides were briefed and argument was had on rehearing before us on October 29, 1979. We now uphold the judgment of conviction against Dewey Eugene Coleman, and the sentence of death imposed on him. We will discuss our reasons under the issues as they were briefed and argued before us. 1. The effect -- of the Sandstrom decision. In Sandstrom, the United States Supreme Court found the trial court's instruction "[tlhe law presumes that a person intends the ordinary consequences of his voluntary acts" un- constitutional. - U.S. at , 99 S.Ct. at 2453, 61 L.Ed.2d The Supreme Court held that such an instruction may have been viewed by the jury as an "irrebutable direction by the court to find intent once convinced of the facts triggering the presumption. Alternatively, the jury may have interpreted the instruction as a direction to find intent upon proof of the defendant's voluntary actions, . . . unless - the defendant proved the contrary by some quantum of proof. . ." Sandstrom, U.S. at , 99 S.Ct. at 2456, 61 L.Ed.2d at 47. The instruction to which Coleman objects on the basis Sandstrom is the trial court's instruction no. 22 as follows: "If you find that the defendant Dewey Eugene Coleman committed a homicide and no circumstances of mitigation, excuse or justification appear, then you may infer that the homicide was committed knowingly or purposely." The objections by Coleman to instruction no. 22 may be summarized as follows: (1) the instruction was in the nature of a Sandstrom instruction; (2) this Court has held that Coleman instruction is similar to the Sandstrom instruction (State v. Sandstrom (1978), Mont . /PC , 580 P.2d 404-, 35 - St.Rep. 744); (3) under instruction no. 22 the State was not required to prove every element of the alleged crime beyond a reasonable doubt; (4) a statutory presumption is unconstitutional unless it can be shown that the presumed fact is more likely than not to flow from the proved fact upon which it depends; (5) instruction no. 22 conflicts with the defendant's presumption of innocence because where intent is an element of the crime it cannot be taken from the jury through reliance on a presumption; (6) therefore, the State was not required to prove its case against defendant beyond a reasonable doubt. We first note that the instruction in Coleman differs from the instruction given on Sandstrom in that the Coleman instruction is not mandatory in its terms. The permissive nature of the language "you may infer" cannot be escaped. The question then becomes whether the permitted inference, when read with the other instructions in the case, allowed the State to convict Coleman without proving every element of the offenses charged beyond a reasonable doubt. Moreover, the Sandstrom instruction related to a presumption as a matter of law. The Coleman instruction refers to an inference of fact, a deduction that logically could be inferred by the jury under proof of the circumstances stated. The possible inference, by its terms is not in itself unreasonable. The United States Supreme Court said in Sandstrom that determining whether the State has been relieved of its burden of proof, "requires careful attention to the words actually spoken to the jury . . . for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable jury could have interpreted the instruction." Sandstrom, U.S. at , 99 S.Ct. at 2454, 61 L.Ed.2d at 45. A review of the instructions given by the trial court shows that instruction no. 22 did not stand alone on the burden of the State to prove the elements of the offenses charged. At the outset, the Court informed the jury, "[tlhe State is required to prove, beyond a reasonable doubt, all material facts alleged in the information filed in this case." Further instructions of the court hammered home to the jury the importance of the presumption of innocence. In court's instruction no. 3, the jury was told that the defendant came into court protected by the presumption of innocence as to any crime, and particularly the crimes charged against him; that he was presumed to be innocent until his guilt is established to a moral certainty beyond a reasonable doubt; that the presumption of innocence attended him at every step and through- out the entire case and that he was entitled to the benefit of that presumption upon every question of fact; and that the jury should determine his guilt or innocence by a careful con- sideration of all the evidence introduced in the case during the trial. In instruction no. 4, the trial court told the jury that the burden of proof rested upon the State throughout the trial to establish the guilt of Coleman beyond a reasonable doubt and that his conviction would not be warranted unless the burden was sustained. In instruction no. 5, the jury was told the defendant in a criminal action is presumed to be innocent until the contrary is proven, and in case of reasonable doubt whether his guilt is satisfactorily shown, he was entitled to an acquittal; that the effect of this presumption was to place upon the State the burden of proving the defendant guilty beyond a reasonable doubt. Although Coleman was convicted of three separate crimes, the disputed instruction relates only to the charge of deliberate homicide. We find that the trial court fully informed the jury in the foregoing instructions about the burden of proof resting upon the State as to each material element of the crimes charged and the abiding effect of the presumption of innocence throughout the course of the trial. We look now to determine the effect under the instructions of the language in the disputed instruction that the jury might "infer that the homicide was committed knowingly or purposely". An inference is a form of evidence defined as "indirect evidence". Section 26-1-102(4), MCA. To a layman, perhaps, indirect evidence is better known as "circumstantial evidence". In trial court's instruction no. 8, the jury was instructed that there were two classes of evidence upon either or both of which if adequately convincing, the jury ' might law£ ully find the accused guilty of crime. One was direct evidence, and the other was circumstantial evidence. A part of the court's instruction no. 8 with respect to circumstantial evidence told the jury: "All other evidence admitted in the trial is circumstantial, and insofar as it shows any acts, declarations, conditions, or other circumstances tending to prove a crime in question, it may be considered by you in arriving at a verdict. Either will support a verdict of guilty if it carries the convincing quality required by law, as stated in these instructions. However, you are instructed that you are not permitted on circumstantial evidence alone to find the defendant guilty of any crime charged against him unless the proved circumstances not only are consistent with the hypothesis that the defendant is guilty of the crime but are inconsistent with any other rational conclusion. " When we give careful attention to the words spoken to the the jury, adunited States Supreme Court said in Sandstrom, the foregoing instruction with respect to the effect of circumstantial evidence must be weighed with the disputed instruction that the jury "may infer" material elements of the crime. On balance, it is clear to us that the permissive language in the disputed instruction must under any fair reading give way to the positive declaration in instruction no. 8 that cir- cumstantial evidence must carry the convincing quality required by law as stated in the instructions, and that any such inference standing alone would be insufficient unless it was inconsistent with any other hypothesis than guilt. On appeal, we view the instructions as a whole. State v. Farnes (1976), 171 Mont. 368, 558 P.2d 472. It is impossible to deliver the whole of the law in any one instruction, and for that reason, all instructions are considered as a whole and if they fairly tender the case to the jury, the fact that one instruction standing alone is not as full or accurate as it might be is not reversible error. State v. Caryl (1975), 168 Mont. 414, 543 P.2d 389. The purpose to commit a crime, or knowledge that one is committing a crime, are subjective matters that most often can be proven only through circumstantial or indirect evidence. The holding in Sandstrom is not to be construed to mean that whenever a trial court instructs the jury that it may resort to inference to determine subjective matters such as knowledge or purpose, that thereby the State has been relieved of its burden of proof. The United States Supreme Court did not intend such limitation, and we do not find any such intention in the language of Sandstrom, or its related cases. The jury was not allowed to rest solely upon the permitted inference in the Coleman case, but under the instructions had to require such an inference to meet the standard as beyond a reasonable doubt. The true test under Sandstrom, in determining the effect of an instruction such as the one disputed here is whether that instruction has the effect of allocating to the defendant some part of the burden of proof that properly rests on the State throughout the trial. See Holloway v. McElroy (D. Ga. 1979), 474 F.Supp. 1363, 1368. We do not find that to have occurred here. On that basis we distinguish the Coleman instruction from those cases involving a burden-shifting presumption as in Mullaney v. Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508; and conclusive presumptions like those involved in Sandstrom, supra; Morissette v. United States (1952), 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288; and United States v. United States Gypsum Co. (1978), 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854. Instead the inference is purely permissive, in the sense described in County Court of Ulster Cty. v. Allen (1979), - U.S. , 99 S.Ct. 2213, 60 L.Ed.2d 777. Coleman further contends that because we stated in our first Sandstrom opinion (State v. Sandstrom (1978), Mont. , 580 P.2d 106,at 109, 35 St.Rep. 744, at 748) that the instruction in Coleman was similar to the Sandstrom instruction that thereby the United States Supreme Court in overruling Sandstrom has in effect determined that the Coleman instruction was likewise unconstitutional. We do not accept that contention as having any validity. Comparing each instruction, -7- we see this manifest difference: the Sandstrom instruction is by its terms mandatory but the Coleman instruction is permissive. We can see no other construction as to the effect of the language used in instruction no. 22 in this Coleman case. 2. - The effect of -- the instruction on - - "knowingly." Here Coleman attacks the definition of the term "knowingly", as given by the Court in instructing on that element regarding the crimes charged. In trial court's instruction no. 26, the jury was told: "'Knowingly'. A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his conduct or that the circumstance exists. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence. Equivalent terms such as 'knowing' or 'with knowledge' have the same meaning." The objections to this instruction on rehearing are: (1) it violates the rule against reasonable doubt because it requires only a "high probability of its existence;" (2) it is in effect an exclusive presumption in that the element is established if the jury finds a high probability of its existence; and (3) "high probability" does not have that quality which would enable a jury to convict. Under United States v. United States Gypsum Co., supra, where a defendant's state of mind or intent was an element of an antitrust offense, a reliance by a jury on a legal presumption of wrongful intent from proof or effect on prices necessitated reversal. Applying the rationale of United States Gypsum Co., defendant contends that Montana's statutory definition of "knowingly" is established if a jury finds "a high probability of its existence". This, Coleman contends, does not equate with proof beyond a reasonable doubt as an essential element of the crime charged. In the original Coleman opinion from this Court, (19781, - Mont . , 579 P.2d 732, 35 St.Rep. 560, we considered this argument. There we rejected the contention. Consideration by us of the renewed issue on rehearing is proper, since it was not addressed in our second Coleman opinion of June 20, 1979, supra, and the Sandstrom decision intervened between our said decision and the rehearing. The statute on which the instruction is based, section 45-2-101(27), MCA, defines "knowingly" as follows: "'Knowingly'--a person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his 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 he is aware that it is highly probable that such result will be caused by his conduct. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence. Equivalent terms such as 'knowing' or 'with knowledge' have the same meaning." The statute considers two elements of knowledge as far as this case is concerned, (1) knowledge as to the conduct itself and, (2) knowledge as to the result of that conduct. It is only the result of the conduct that hangs on the proof of his awareness that "it is highly probable that such result [would] be caused by his conduct." The evil countermanded in Sandstrom and again in United States Gypsum Co., - is instructing the jury in such a manner that the function of fact-finding is invaded by the court. It is when the instructions take away from or intrude upon the duty of the jury to find intent that the instruction becomes con- stitutionally impermissible for "'A conclusive presumption [of intent], which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense.'" 483 U.S. at 446, 98 S.Ct. at 2878; Morissette, 342 U.S. at 275, ' 7 2 When the holdings in Sandstrom and United States Gypsum - Co. are understood in that context, one may examine the instruction on "knowingly" complained of here, and determine that the fact-finding duty of the jury is not invaded by the Court. The District Court is not usurping a jury function when it instructs "a person acts knowingly with respect to the result of conduct [constituting a crime] when he is aware that it is highly probable that such result [would] . . . be caused by his conduct." The jury is not called upon to determine "high probability" in place of "reasonable doubt"; rather it is called on to determine the existence of defendant's awareness, beyond a reasonable doubt, that a high probability is that the result of his conduct makes his conduct criminal. The District Court here did not, by using this instruction, make it mandatory upon the jury to find defendant's awareness, nor conclusively presume his awareness. That finding was left exclusively to the jury. In short, the instruction did not establish a presumption which testimony could not overthrow. On that basis, therefore, we find no merit on the second ground of attack. Montana has the right and authority to define crimes and their elements. See Patterson v . New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281. It is consistent with modern concepts of intent to define knowledge as an awareness of probable consequences. The United States Supreme Court said in United States v. United States Gypsum Co., supra, 438 U.S. at 444-45, 98 S.Ct. at 2877, with respect to intent under antitrust laws: ". . . we conclude that action undertaken with knowledge of its probable consequences and having the requisite anticompetitive effects can be a sufficient predicate for a finding of criminal liability under the antitrust laws. "Several considerations fortify this conclusion. The element of intent in the criminal law has traditionally been viewed as a bifurcated concept embracing either the specific requirement of purpose or the more general one of knowledge or awareness. " ' [I] t is now generally accepted that a person who acts (or omits to act) intends a result of his act (or omission) under two quite different circumstances: (1) when he consciously desires that result, whatever the likelihood of that result happening from his conduct; and (2) when he knew that the result is practically certain to fall from his conduct, whatever his desire may be as to that result.' (Citing authority.) "Generally this limited distinction between knowledge and purpose has not been considered important since 'there is good reason for imposing liability whether the defendant desired or merely knew of the practical certainty of the result.' (Citing authority.) In either circumstance, the defendants are consciously behaving in a way the law prohibits, and such conduct is a fitting object of criminal punishment. (Citing authority. ) " Distinction Between Post Facto and - Retroactive Restrictions. Nothing in the briefs or on the rehearing has been brought to our attention requiring us to expand our discussion of these issues in our opinion promulgated June 20, 1979, except for the citation by Coleman of State v. Collins (La. 1979), 370 So.2d 533, and Miller v . State (Tenn. 1979), 584 S.W.2d 758. In State v. Collins, the Louisiana Court decided, on retroactive grounds, without specific reference to -- ex post facto effect, that the application of the death penalty was barred by a Louisiana statute similar to that of Montana, that no section of the revised statutes is retroactive unless expressly so stated. The defendant there committed the offense of first degree murder at a time when the first degree murder statute provided that whoever committed the offense must be punished by death. Following the United States Court decision in Roberts v. Louisiana (1976), 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974, Louisiana enacted new statutes effective 21 days after the offense here was committed, "redefining the crime of first degree murder and enacting a permissive, and presumably con- stitutional, death penalty. . ." 370 So.2d at 534. It appears therefore that Louisiana not only redefined the punishment for murder, but redefined the crime. In Montana, the legislature took only the procedural step of redefining the punishment. On that basis, as our earlier discussion respecting ex post -- facto and retroactive provisions disclose, State v . Collins is distinguishable from the case at bar. Similarly, there is a distinguishing factor in Miller v. State, supra. The Tennessee constitution has a provision which states: "That laws made for the punishment of acts committed previous to the existence of such laws, and by them only declared criminal, are contrary to the principles of a free government; wherefore no Ex post facto law shall be made." 584 S.W.2d -- at 761. It is obvious that the Tennessee court, under that State con- stitutional provision, could only decide that laws providing for punishment but enacted after the crime could not be retro- actively applied. It should be noted that the Tennessee court in Miller agreed with our determination of the effect of Calder v. Bull (1798)', 3 U.S. (3 Dall.) 386, 1 L.Ed. 648, as to retroactivity and the four broad classifications of --- ex post facto laws set out in State v . Rowe (1935), 116 N.J.L. 48, 181 A. 706. See 584 S.W.2d at 761. We note in passing that in Smith v. Com. (Va. 1978), 248 S.E.2d 135, where Virginia's 1975 death penalty statute was presumptively valid in spite of the United States Supreme Court decisions attacking the constitutionality of similar death penalty statutes and a 1977 Virginia law amending the death penalty statute was applied to uphold a previous death penalty; the Virginia Court found that the 1977 changes were ameliorative. Xt found so because the 1977 law provided an alternative penalty -12- provision instead of the mandatory penalty provision of the 1975 law. This was the same situation as occurred in Montana. Relying on Dobbert v. Florida (1977), 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344, the Virginia Supreme Court found no -- ex post facto violations since the defendant had "'fair warning' of the consequences of murder." 248 S.E.2d at 147. The Virginia court found that the changes were ameliorative, and merely procedural. Since we find no compelling reason to reverse our opinion respecting the application of the 1977 Montana death statute, we hold to what we said on that subject in the opinion promulgated on June 20, 1979. 4. The New Montana Capital Punishment Statutes are -- Unconstitutional. The force of Coleman's argument here is that section 46-18-305, MCA, formerly section 95-2206.10, R.C.M. 1947, provides that the sentencing court, in a death penalty case, can only consider those "mitigating circumstances sufficiently substantial to call for leniency." Coleman contends that such language limits the court's discretion only to circumstances "sufficiently substantial" and is not within the holding in Lockett v. Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, that the sentencing body must not be precluded from considering any aspect of the defendant's record or character as a mitigating factor. To state the converse of Coleman's position on this issue is to refute the argument. A sentencing court should not rely on "mitigating circumstances sufficiently substantial to call for leniency.' The only limit placed upon the court's discretion under section 46-18-305, MCA, is that the mitigating factor must be substantial; that is, it must have some substance or weight. We cannot regard the statutory language requiring a suf- ficiently - substantial mitigating factor as a limiting encroachment upon the discretion of the judge when he passes sentence in capital cases. 5. Whether Coleman's Death Sentence - is Disproportionate His Crime, What is the Scope of this Court's Review, and - --- -- - Coleman's Request - - for a Further Review of - Comparative Cases. We lump the foregoing issues raised on the petition for rehearing together because they can be more easily answered as one subject. First we refer again to the developments that occurred after the decision in Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, wherein it was held that a statutory system which allows the sentencing authority un- bridled discretion in the process of imposing the death penalty violated the Eighth and Fourteenth Amendments. It was the Furman decision that brought about eventually the recodification of Montana's law so as to replace the mandatory death penalty with sentencing provisions which gave the sentencing judge alternatives to follow in pronouncing sentence. Under Jurek v. Texas (1976), 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929; Proffitt v. Florida (1976), 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; and Gregg v. Georgia (1976), 428 U.S. 153, is 96 S.Ct. 2909, 49 L.Ed.2d 859, it/clear that Furman does not require that all sentencing discretion of the trial court be eliminated if the statutory system provides adequate standards to guide the exercise of the discretion in sentencing in capital cases. Montana's response was the adoption of sections 46-18- 301-310, MCA, inclusive. Those sections guide the discretion of the District Court both as to aggravating circumstances and mitigating circumstances in passing sentence. The District Court may impose its sentence of death if it finds one or more of the aggravating circumstances described and also finds there are no mitigating circumstances sufficiently substantial to call for -14- leniency. Findings of fact are required of the ~istrict Court and automatic review by the Supreme Court in all death sentences is also provided. The duties of our Supreme Court with respect to death sentences is set forth in section 46-18-310, MCA. Under that statute, this Court shall determine: "The supreme court shall consider the punishment as well as any errors enumerated by way of appeal. With regard to the sentence, the court shall determine: "(1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; " (2) whether the evidence supports the judge's finding of the existence or nonexistence of the aggravating or mitigating circumstances enumerated in 46-18-303 and 46-18-304; and "(3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The court shall include in its decision a reference to those similar cases it took into consideration." Coleman makes two arguments respecting our review, (1) that we have not reviewed the "entire record" under section 46-18-308, MCA, because we have not reviewed, Coleman contends, the issues raised on his first appeal and (2) that we have not reviewed all the appropriate "similar cases" under section 46-18-310 (3) , MCA. Needless to say, when the matter came to this Court for automatic review after the death sentence was reimposed, there came with it not only the record of the resentencing, but the entire record of the trial. We also had before us the briefs and records that related to the first opinion. It should be understood, therefore, that in connection with the second opinion propulgated June 20, 1979, supra, that we have in fact reviewed the entire record. Further we see no reason to change our position with respect to the similar cases that we looked at in order to determine whether or not the death sentence in Coleman's case was disproportionate. We take our duty to be, in connection with whether a death sentence is disproportionate, that we should review the circumstances of the crime of which the defendant is accused, and in the light of those circumstances, the judgment and the sentence thereupon imposed; and, examine cases involving similar crimes, all for a single purpose, to make certain that as far as the defendant in this case, Coleman, is concerned, there has been no discriminatory action on the part of the sentencing judge, no abuse of discretion by the sentencing judge, and that the sentencing judge has considered and applied fairly and without discrimination the applicable law. We find this to be true in this case. It should be understood that in the final analysis, the imposition of sentence is not one that this Court must undertake. That matter is still reserved under our statutes to the District Courts. There is a discretion vested in the District Court in capital cases as to whether the death penalty should be imposed. Once that discretion has been exercised, and if we find that it has been exercised fairly, indiscriminately and in accordance with the applicable statutes, then it must be upheld. The search for disproportionateness involves elements that consider the gravity of the crime, the brutality with which it may have been committed and the factors, if any, which lead to a call for leniency. We look for the even- handed application of death sentences without regard to sex, color, creed, or race, or any other discriminating consideration. When we find that this has occurred, as we find here, our course under the law is to uphold the decision of the District Court. 6. Hanging - as Cruel -- and Unusual Punishment. Coleman's contention here is that hanging, even if carried out exactly, so that death results from a broken neck, is cruel -16- and unusual punishment. The State responds that there is no evidence in this case that shows that death from hanging, when properly carried out, is anything other than swift and immediate, or that hanging results in any more suffering than that associated with electrocution or other modes of execution. Hanging is the only kind of execution provided by Montana statutes. The legislature has not seen fit to change it, although several attempts in recent years have been made to eliminate capital punishment altogether. In that limited sense, the legislature has made a choice to continue the present provisions. We have no power to change these settled provisions of the law, nor can we say that hanging is constitutionally cruel and unusual. 7. Disposition. This opinion in addition to our opinion handed down June 20, 1979, constitutes our decision in this case. Let remitittur be issued from this Court to the District and Court for the purpose of resetting the execution date,/complying with our opinion and order promulgated June 20, 1979. We Concur: - - - - - - - - - - - - - - - - - - - - - - - - - - - - Justices Mr. Justice Daniel J. Shea concurring in part and dissenting in part: I concur in the conclusion reached by this Court that the so-called Sandstrom-type instruction given in this case was not error. As the Court reasons, the instruction is sub- stantially different than that which was given in the Sandstrom case. On the other hand, I do not believe that it was a model instruction which should be given as a matter of course in criminal trials. One of the reasons this Court granted defendant's petition for rehearing was to consider the impact of the decision of the United States Supreme Court in Sandstrom v. Montana (19791, U.S. , 99 S.Ct. 2450, 61 L.Ed.2d 39. We have, moreover, since hearing this case on the petition for a rehearing, con- cluded that defendant Sandstrom is entitled to a new trial based on the opinion of the United States Supreme Court that we cannot do otherwise unless we find that beyond a reasonable doubt, the error is harmless. Using that standard, we could not determine that the error in giving the instruction was harmless. State v. Sandstrom (1978), Mont . , 580 1 t,b P.2d 34-4, 35 St.Rep. 744. We therefore ordered a new trial. Although the instruction given in defendant Coleman's case was not a Sandstrom-type instruction, I believe that the court has omitted the strongest fact as to why the instruction, even assuming it was a carbon-copy of that given in Sandstrom, was harmless error. The simple fact is that defendant Coleman that testified./ he was not present during the homicide; he had nothing to do with it; and, indeed, that he did not know that Nank planned to kill Miss Harstad. In essence, the defense was alibi. In Sandstrom, on the other hand, the defendant admitted the killing, but his defense was that he did not intend to kill. There is a world of difference in these two defenses and so is there a world of difference as to the potential impact of a Sandstrom-type instruction. In the Coleman case, Nank testified in lurid detail con- cerning his and defendant Coleman's plan to kidnap, rape, and kill Miss Harstad. The jury was thus given two clear choices: To believe Coleman's alibi defense and thus conclude that Nank alone planned to and killed Miss Harstad; or, on the other hand, to believe Nank's testimony which implicated Coleman in a deli- berate design to kidnap, rape, and kill Miss Harstad. Nank's testimony, combined with the corroborating evidence implicating Coleman in the crimes involved, is sufficient beyond a reasonable doubt, to permit a jury conclusion that Coleman was guilty of the crimes for which he was convicted. Under these circumstances, once the jury chose to believe Nank (which, of course, also implies a determination that Coleman was lying), no presumption or no inference was needed to help the prosecution's case along. For this reason, I have no trouble in concluding that even if the instruction was a carbon-copy of that instruction forbidden by the Sandstrom case, the error, beyond a reasonable doubt, was harmless. The majority has imbellished to an extent upon its original opinion concerning the other issues decided in the original case, and I emphasize that I do not agree with these statements and conclusions. In the last paragraph of its opinion here, the Court has stated that its Opinion dated June 20, 1979, together with the Opinion issued today, shall constitute the opinion in this case. I dissented to that majority opinion and I state here that such dissent shall also constitute my views on the questions surrounding the imposition of the death penalty in this case. Nank's bargain with the State saved his own life; but this very same -19- bargain sealed Coleman's date with the executioner. No court should sanction such disparate results arising from the commission of the same crimes. The tragedy of the senseless killing perpetrated by Nank and Coleman is only compounded by the senseless killing of Coleman which this Court has today sanctioned. n ,ix&Ld~/-& Just | December 19, 1979 |
7d18ec56-6172-4138-a5e8-43339640811a | 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 40 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 41 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 42 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 43 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. 44 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). 45 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 |
b53b0dee-a6e8-4402-9907-e0c855f3109f | 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: 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 |
fa6e1c2b-a787-4313-b92e-662c295f91de | MEDHUS WILLIAMS REDDIG v DUTTE | N/A | 14693 | Montana | Montana Supreme Court | No. 14693 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 MELROY L. MEDHUS, JR., BEN WILLIAMS, BILLY G. REDDIG and LYNNE A. REDDIG, Plaintiffs and Appellants, KENNETH A. DUTTER, MARY E. DUTTER, THOMAS J. DEUTSCH, and JANET M. DEUTSCH, Defendants and Respondents. Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Sykes, Judge presiding. Counsel of Record: For Appellants: Hash, Jellison, O'Brien and Bartlett, Kalispell, Montana For Respondents: Moore, Lympus and Doran, Kalispell, Montana Warden, Walterskirchen and Christiansen, Kalispell, Montana Submitted on briefs: August 15, 1979 Decided: YOV 2 1 1 9 7 9 M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. Appellants i n i t i a t e d t h i s a c t i o n i n D i s t r i c t Court, t h e Eleventh J u d i c i a l D i s t r i c t , the Honorable Robert C. Sykes presiding, asking t h e c o u r t t o enjoin respondents from obstructing appellants' use of a road t h a t crossed respon- dents' property. Appellants sought t o o b t a i n a decree grant- ing them an easement along t h e road. Appellants a l s o sought damages f o r interference with t h e use of t h e road, and appel- l a n t Medhus sought damages f o r t r e s p a s s t o h i s property. Respondents f i l e d a counterclaim a g a i n s t appellant Medhus f o r timber t r e s p a s s and sought an order requiring Medhus t o move a fence erected along t h e boundary of t h e i r property and the Medhus property. The District Court found t h a t appellants had an ease- ment f o r roadway purposes across a portion of respondents' property, but found no easement across another s e c t i o n of t h e property. The c o u r t ordered appellants be allowed t o remove some personal property from the portion of t h e roadway across which no easement was found. However, t h e c o u r t entered no findings, conclusions o r judgment concerning appellants' t r e s p a s s c l a i m . The c o u r t f u r t h e r found appellant Medhus had not com- mitted timber t r e s p a s s but had erected a fence on respondents' property. The c o u r t ordered t h e fence moved t o t h e c o r r e c t boundary l i n e . The D i s t r i c t Court awarded c o s t s of t h e s u i t t o respondents, including t h e c o s t of a boundary survey done a t t h e request of respondents. Appellants appeal t h i s judg- ment. Respondents Thomas Deutsch and J a n e t Deutsch a r e t h e l e g a l owners, and respondents Kenneth Dutter and Mary Dutter are t h e e q u i t a b l e owners, being purchasers under c o n t r a c t f o r deed, of c e r t a i n r e a l property located i n Flathead County. The disputed road passes a c r o s s t h e i r property. The Deutsches acquired t h e property i n 1964 from A. P. and Martha T. Marcoux. The Marcouxes conveyed t h e property t o t h e Deutsches by a warranty deed. The deed contained lan- guage r e f e r r i n g t o an easement f o r road purposes a c r o s s t h e premises. The n o t i c e of purchasers' i n t e r e s t giving n o t i c e of t h e c o n t r a c t under which t h e Dutters hold t h e i r e q u i t a b l e i n t e r e s t t o t h e property contains s i m i l a r language. This property w i l l be r e f e r r e d t o a s t h e "Dutter property." Appellant Melroy Medhus owns r e a l property t h a t lies east of t h e Dutter property and above it on a mountainside. This property w i l l be r e f e r r e d t o as t h e "Medhus property." Appellants B i l l y G. Reddig and Lynne A. Reddig are buying a p o r t i o n of t h e Medhus property under c o n t r a c t f o r deed. Appellant Ben Williams is t h e owner of t h r e e p a r c e l s of r e a l property which a r e east of both t h e Dutter and Medhus prop- er ties. F o o t h i l l s Road, a public highway, passes c l o s e t o t h e western boundary of t h e Dutter property. Near t h e southern boundary of t h e Dutter property a d i r t and gravel road l e a v e s F o o t h i l l s Road and goes up t h e mountainside a c r o s s t h e Dutter property. This roadway leaves t h e Dutter prop- e r t y and e n t e r s t h e Medhus property and forms a "Y" on t h e Medhus property. The D i s t r i c t Court found, apparently f o r t h e sake of completeness, t h a t a l l of t h e a p p e l l a n t s had an easement along t h a t roadway from t h e F o o t h i l l s Road t o t h e boundary of the Dutter property. A n easement over t h i s s e c t i o n of road w a s n o t asked f o r i n a p p e l l a n t s ' complaint. The northern brand of t h e "Y" continues a c r o s s t h e Medhus property and r e e n t e r s the Dutter property f o r 300 f e e t whereupon it r e e n t e r s t h e Medhus property and continues e a s t e r l y and up t h e mountainside onto t h e Williams property. The D i s t r i c t Court found t h a t none of t h e a p p e l l a n t s had an easement across t h i s 300 f o o t road on t h e Dutter property. The following diagram approximates t h e p o s i t i o n of t h e property of the p a r t i e s and road i n dispute (marked "disputed road" on t h e diagram): - - -- - -- - - - - - - \ \ \ i MEDHUS Property granted easement. The use of t h e 300 f o o t road marked "disputed road" on t h e diagram i s t h e c e n t e r of controversy i n t h i s case. Appellants do n o t c o n t e s t t h e portion of t h e judgment order- i n g them t o move t h e i r fence, and respondents do n o t chal- lenge t h e f i n d i n g of an easement of t h e o t h e r s e c t i o n of t h e road. The Trablik property marked on t h e diagram i s n o t i n - volved i n t h e c u r r e n t dispute. The road was b u i l t i n 1933 by t h e Koenig b r o t h e r s , loggers working east of t h e Dutter and Medhus p r o p e r t i e s . Before constructing and using t h e road, t h e loggers g o t permission from Clarence Haines, then t h e owner of t h e Dutter property. The D i s t r i c t Court found t h a t s i n c e t h e 19301s, t h e disputed road has seldom been used. The c o u r t found t h a t neighbors used t h e road f o r c u t t i n g firewood o r Christmas trees and members of t h e general p u b l i c used t h e road t o go up M i l l Creek t o hunt, hike and gather huckle- b e r r i e s . The bridge over M i l l Creek leading t o t h e road washed o u t f o r a period of time and was replaced i n t h e 1970's. Dutter bulldozed t h e road s h u t i n 1978, leading t o t h e i n s t i g a t i o n of t h i s s u i t . This appeal raises t h e following i s s u e s f o r our con- s i d e r a t i o n : 1. Did t h e D i s t r i c t Court err i n f i n d i n g t h a t appel- l a n t s d i d n o t e s t a b l i s h a p r e s c r i p t i v e easement a c r o s s t h e disputed road? 2. Did t h e D i s t r i c t Court err i n f i n d i n g t h a t appel- l a n t s d i d n o t e s t a b l i s h an easement of record across t h e disputed road? 3. Did t h e ~ i s t r i c t Court err i n n o t e n t e r i n g find- i n g s , conclusions and a judgment on a p p e l l a n t s 1 t r e s p a s s claim? 4. Did t h e D i s t r i c t Court err i n awarding c o s t s t o t h e respondents? To e s t a b l i s h t h e existence of a p r e s c r i p t i v e easement, t h e p a r t y claiming t h e easement must show open, notorious, exclusive, adverse, continuous and uninterrupted use of t h e easement claimed f o r t h e s t a t u t o r y period. G a r r e t t v. Jackson (1979), - Mont. - 1 - P.2d - , 36 St.Rep. 1769, 1771; Hayden v. Snowden (1978), Mont. - , 576 P.2d 1115, 1117, 35 St.Rep. 367, 369; Taylor v. Petranek (1977), Mont. , 568 P.2d 120, 1 2 2 , 34 St.Rep. 905, 909; Harland v. Anderson (1976), 169 Mont. 447, 451, 548 P.2d 613, 615. The controversy i n t h i s case t u r n s on whether a p p e l l a n t s showed t h e use of t h e disputed road by them and t h e i r predecessors i n i n t e r e s t was adverse r a t h e r than permissive. I f a p p e l l a n t s f a i l e d t o show adverse use, they have n o t e s t a b l i s h e d a l l t h e elements necessary t o p e r f e c t an easement by p r e s c r i p t i o n and t h e D i s t r i c t Court r u l i n g on t h i s i s s u e must be upheld. I n Taylor, w e s a i d : "Although a use permissive i n i t s inception may r i p e n i n t o a p r e s c r i p t i v e r i g h t , it cannot do s o u n l e s s t h e r e i s a l a t e r d i s t i n c t and p o s i t i v e a s s e r t i o n of a r i g h t h o s t i l e t o t h e owner, which must be brought t o t h e a t t e n t i o n of t h e owner, and t h e use continued f o r t h e f u l l p r e s c r i p t i v e period. ( C i t a t i o n s omitted.)" 568 P.2d a t 123. I n Wilson v. Chestnut (1974), 164 Mont. 484, 491, 525 P.2d 2 4 , 27, we approvingly quoted 2 Thompson on Real Prop- e r t y (1961 Replacement), Easements, 8345, a s follows: I1 I . . . I f t h e user began by t h e permission of t h e owner, it w i l l n o t r i p e n i n t o an adverse o r h o s t i l e r i g h t u n t i l n o t i c e of such adverse u s e r i s brought home t o t h e owner and t h e user continued t h e r e a f t e r f o r t h e s t a t u t o r y period.'" See a l s o White v. Kamps (1946), 119 Mont. 102, 171 P.2d 343. Here, the testimony shows the use of the disputed road was originally permissive. Clarence Haines gave the Koenig brothers permission to build and use the road. Since the use of the road was permissive at its inception, to find a prescriptive easement here we must find in the record a distinct and positive assertion of a right to use the dis- puted road hostile to the owners by those claiming the easement. The record must also show the right was brought to the attention of the owners and continued use of the easement for the full statutory period. Looking to the record, we find occasional use of the road by hunters, hikers and neighbors cutting Christmas trees and gathering firewood. We have previously held this type of use insufficient to raise a presumption of adverse use. Taylor v . Petranek, supra, 568 P.2d at 123; Harland v. Anderson, supra, 169 Mont. at 451-452. Being insufficient to initially establish adverse use, this type of use does not represent the distinct and positive assertion of a hostile right brought home to the owner of the purportedly servient tenement necessary to transform originally permis- sive use into adverse use. Under these facts, the use of the road began permissively and continued to be permissive until Dutter blocked the road in 1978. Appellants, there- fore, did not establish the existence of a prescriptive easement across the Dutter property. The second issue raised by this appeal concerns the language in the deeds used to convey the Dutter property- The language in the deeds reads, "Subject, however to an easement for road purposes now existing over and across the herein described premises." The majority r u l e i s t h a t an easement cannot be c r e a t e d i n favor of a s t r a n g e r t o t h e deed. Wilson v. Chestnut, supra, 164 Mont. a t 492; s e e a l s o Annot., 88 ALR2d 1199, 1201-1202 (1963). I n t h e proper case, however, w e w i l l d e p a r t from t h a t r u l e t o give e f f e c t t o t h e g r a n t o r ' s i n t e n t . S t a t e of Montana, By and Through t h e Montana S t a t e F i s h and G a m e Commission v. Cronin (1978), Mont. , 587 P.2d 395, 399, 35 St.Rep. 1798, 1802; Wilson, 164 Mont. a t 492. The question thus becomes one of determining t h e i n t e n t of t h e g r a n t o r s i n including t h e above language i n t h e deeds. Before t h e c r e a t i o n of an easement i n a s t r a n g e r t o a conveyance w i l l be recognized, t h e i n t e n t of t h e g r a n t o r t o c r e a t e t h e easement must be c l e a r l y shown. Cushman v. Davis (1978), 145 Cal.Rep. 791, 793, 80 Cal.App.3d 731. I f it appears it i s a s l i k e l y t h e purpose of t h e c l a u s e i n t h e deed was t o p r o t e c t t h e g r a n t o r ' s warranty of t i t l e as t o r e s e r v e an easement, w e w i l l n o t d e p a r t from t h e majority r u l e and f i n d an easement. Wilson, 164 Mont. a t 492. To determine t h e i n t e n t of t h e grantor i n s i t u a t i o n s s i m i l a r t o t h e case a t bar, c o u r t s have considered t h e express language of t h e deed, Wilson, 164 Mont. a t 492; testimony by g r a n t o r s s t a t i n g t h e i r i n t e n t , Willard v. F i r s t Church of C h r i s t , S c i e n t i s t , P a c i f i c a (1972), 102 Cal.Rep. 739, 498 P.2d 987, 989; t h e f a c t t h a t t h e g r a n t o r received less value f o r t h e property conveyed because of t h e e x i s t e n c e of an easement, Mott v. Stanlake (1975), 65 Mich.App. 440, 234 N.W.2d 667, 668, and Willard, 498 P.2d a t 989-990; and, t h e s u f f i c i e n c y of t h e d e s c r i p t i o n of t h e l o c a t i o n of t h e easement and whether o r n o t t h e r e s e r v a t i o n names a dominant tenement, S t a t e of Montana, By and Through t h e S t a t e F i s h and G a m e Commission v. Cronin, supra, 587 P.2d a t 399. Considering these factors here, we find the language contained in the deed almost identical to the language in ~ilson, where we held no easement had been reserved. Further, respondent Deutsch stated he knew the deed contained the lan- guage and had discussed it with appellant Bill Reddig, but that he did not know the implications of the language. Deutsch said he did know there was a road up to the home on the Dutter property that nobody other than the owners should be using. This testimony indicates that in executing the documents that passed equitable title to the property, Deutsch did not intend to create an easement. There is no testimony on the record showing any of the grantors of the Dutter property received less than full value for the land because of the existence of an easement. Finally, although the language of the deed does locate the easement, it fails to name a dominant tenement. Considering these factors together, here, as in Wilson, it is as likely the grantors intended to pro- tect their warranty of title as to reserve an easement. Thus, the deeds do not establish an easement of record. The third issue raised by this appeal involves the failure of the District Court to enter findings, conclusions or a judgment concerning Count IV of appellants' complaint. This count alleges Dutter trespassed on the Medhus property while bulldozing the disputed road shut and damaged the property by removing gravel to build the Kelly bump that blocked the road. Appellants elicited testimony at the hearing on this case supporting the claim. The trial judge did not, however, enter findings, conclusions or judgment concerning the matter* The District Court should have made findings concerning this issue and entered a judgment accordingly. Claver v, Rosen- q u i s t (1972), 160 Mont. 4 , 13, 499 P.2d 1235, 1240. W e there- f o r e r e t u r n t h e matter t o t h e D i s t r i c t Court with i n s t r u c t i o n s t o e n t e r findings, conclusions and a judgment on t h i s i s s u e . I n doing so, t h e c o u r t should hold whatever further proceed- i n g s , i f any, it deems necessary. The f i n a l i s s u e r a i s e d here d e a l s with t h e award of c o s t s t o respondents. Sections 25-10-101 and 25-10-102, MCA, c o n t r o l t h e d i s p o s i t i o n of t h i s question. Those sec- t i o n s r e q u i r e t h e awarding of c o s t s t o t h e p l a i n t i f f s o r t h e defendants i n cases of t h i s nature upon a judgment i n t h e i r favor. I n t h i s case, t h e judgment granted a p p e l l a n t s an ease- ment over a portion of respondents' property, b u t denied a p p e l l a n t s any r i g h t t o use t h e s e c t i o n of road over which t h e a p p e l l a n t s prayed f o r an easement i n t h e i r complaint. O n remand, t h e D i s t r i c t Court may f i n d i n favor of a p p e l l a n t s o r respondents on a p p e l l a n t s ' t r e s p a s s claim. The judgment s t a t e d respondents should take nothing by t h e i r counter- claim b u t a l s o ordered Medhus t o move h i s fence. Respon- d e n t s had requested t h e fence be moved a s p a r t of t h e i r counterclaim. The judgment thus found i n favor of both p a r t i e s t o t h e l a w s u i t on d i f f e r e n t i s s u e s involved i n t h e case. W e have previously held t h a t a p l a i n t i f f need n o t recover on a l l claims presented by a complaint t o be e n t i t l e d t o c o s t s under s e c t i o n 25-10-101, MCA. Jones v. Great Northern Railroad Company (1923), 68 Mont. 231, 242-245, 217 P. 673, 677-678. W e have a l s o allowed a defendant t o recover c o s t s when only p a r t i a l l y successful on a counterclaim b u t t o t a l l y s u c c e s s f u l i n d e f e a t i n g t h e p l a i n t i f f ' s claim. Spencer v. Mungus (1903), 28 Mont. 357, 359-360, 72 P. 663, 664. W e have never squarely faced, however, t h e i s s u e of awarding c o s t s i n a case where t h e p l a i n t i f f p a r t i a l l y succeeds on t h e complaint and t h e defendant p r e v a i l s a s t o a p a r t of t h e counterclaim. I n t h e only case presenting t h e question, t h e Court decided i n favor of t h e defendant without discussion. Aronow v. H i l l (1930), 87 Mont. 153, 163, 286 P. 140, 1 4 4 . Montana adopted i t s c o s t s t a t u t e from C a l i f o r n i a . That state still has a s i m i l a r s t a t u t o r y s e t u p f o r awarding c o s t s . Section 1032, Cal. Code Civ. Proc. I n i n t e r p r e t i n g t h e i r c o s t s t a t u t e s , t h e C a l i f o r n i a c o u r t s have come t o t h e s a m e r e s u l t reached i n Aronow by determining which p a r t y prevailed on t h e main i s s u e i n controversy i n a case. Whiting v. Squeglia (1924), 70 Cal.App. 108, 232 P. 986, 990. I n Whiting t h e p l a i n t i f f s f i l e d a complaint and t h e defendant counterclaimed. The t r i a l c o u r t entered a judg- ment granting t h e p l a i n t i f f s p a r t of t h e r e l i e f they re- quested and t h e defendant p a r t of h i s c l a i m with c o s t s t o t h e defendant. Whiting, 232 P. a t 987. On appeal, t h e award of c o s t s w a s upheld under t h e c o s t s s t a t u t e based on t h e r a t i o n a l e t h a t t h e defendant had prevailed on t h e main i s s u e i n controversy and, t h e r e f o r e , judgment had been entered i n h i s favor. Whitinq, 232 P. a t 990. Given t h e use of t h e main i s s u e i n controversy r u l e i n C a l i f o r n i a i n i n t e r p r e t i n g c o s t s t a t u t e s s i m i l a r t o those i n Montana, w e now adopt t h e r u l e i n Montana f o r i n t e r p r e t i n g s e c t i o n s 25-10-101 and 25-10-102, MCA. I f a p l a i n t i f f f i l e s a complaint i n an a c t i o n covered by s e c t i o n 25-10-101, MCA, and succeeds only p a r t i a l l y , t h e p l a i n t i f f i s e n t i t l e d t o c o s t s . I f an a c t i o n i s f i l e d , t h e defendant counterclaims and succeeds i n having t h e p l a i n t i f f ' s claim t o t a l l y denied b u t only recovers a p o r t i o n of t h e r e l i e f demanded i n t h e counterclaim, t h e defendant should r e c e i v e c o s t s . I f , however, a p a r t y i n i t i a t e s a l a w s u i t , t h e defendant counter- claims, and t h e judgment awards both p a r t i e s p a r t of t h e r e l i e f they seek, t h e p a r t y p r e v a i l i n g on t h e main i s s u e i n controversy i n t h e case must be allowed c o s t s . Applying t h i s r u l e t o t h e c a s e a t b a r , w e f i n d t h e D i s t r i c t Court c o r r e c t l y awarded c o s t s t o respondents. The main i s s u e i n controversy h e r e was t h e e x i s t e n c e o f an easement a c r o s s t h e d i s p u t e d road. The c l o s i n g of t h e road p r e c i p i t a t e d t h e l a w s u i t and most of t h e testimony a t t h e t r i a l concerned t h e e x i s t e n c e of an easement over t h e road. Respondents p r e v a i l e d on t h a t i s s u e . The c o s t s t a t u t e s t h e r e f o r e e n t i t l e d them t o t h e i r c o s t s of s u i t , i n c l u d i n g t h e c o s t of t h e survey necessary t o determine boundary between t h e Medhus and D u t t e r p r o p e r t i e s . The judgment i s affirmed i n p a r t b u t remanded t o t h e D i s t r i c t Court w i t h i n s t r u c t i o n s t o e n t e r a judgment on a p p e l l a n t s ' t r e s p a s s claim. W e concur: Cbref J u s t i c e i$&Z&+ J u s t i c e s | November 21, 1979 |
a53d300e-de9d-4be3-bc6f-3da8b09dbf99 | CECH v STATE | N/A | 14216 | Montana | Montana Supreme Court | No. 14216 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 RICHARD CECH, as Administrator of the Estate of Kelly Cech, Deceased, and ARLENE CECH, Deceased, and as Guardian of the Estate of Bruce Cech and Kerry Cech, Minor Children, Plaintiffs and Respondents, THE STATE OF MONTANA, Defendant and Appellant. Appeal from: District Court of the Sixth Judicial District, Honorable Jack D. Shanstrom, Judge presiding. Counsel of Record: For Appellant: Corette, Smith and Dean, Butte, Montana Dolphy 0 . Pohlman argued, Butte, Montana For Respondents: Berger, Anderson, Sinclair & Murphy, Billings, Montana Richard Anderson argued, Billings, Montana Submitted: September 14, 1979 Decided: BEC 1 2 1974 M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e Court. P l a i n t i f f Richard Cech, a s personal r e p r e s e n t a t i v e of t h e e s t a t e s of h i s wife, Arlene Cech, and h i s c h i l d , Kelly Cech, and as guardian of t h e e s t a t e s of h i s c h i l d r e n Bruce and Kerry Cech, sued t h e S t a t e of Montana under provisions of t h e Montana T o r t C l a i m s A c t f o r damages r e s u l t i n g from an automobile accident on I n t e r s t a t e 90, approximately eleven m i l e s e a s t of Whitehall, Montana. The jury t r i a l began November 1 4 , 1977, i n t h e District Court of t h e S i x t h Judi- cial D i s t r i c t , Park County. The jury returned four s e p a r a t e v e r d i c t s f o r p l a i n t i f f as follows: For t h e estate of Arlene Cech $15,000 (deceased) For t h e estate of Kelly Cech $35,000 (deceased) For t h e guardian of Bruce Cech $25,000 (minor c h i l d ) For t h e guardian of Kerry Cech $25,000 (minor c h i l d ) From t h e e n t r y of judgment on t h e v e r d i c t s , t h e S t a t e ap- peals. The o r i g i n a l opinion i n t h i s case w a s issued August 1, 1979. A p e t i t i o n f o r rehearing w a s f i l e d August 1 4 , 1979, and t h i s Court ordered a rehearing on August 22, 1979. The case w a s set on t h e September calendar, r e b r i e f e d and reargued t o t h e Court. The S t a t e raises t h e following i s s u e s f o r our review: 1. Whether t h e D i s t r i c t Court e r r e d by denying t h e S t a t e ' s motions f o r d i r e c t e d v e r d i c t made a t t h e c l o s e of p l a i n t i f f ' s case-in-chief and a t t h e c l o s e of a l l t h e evi- dence? 2. Whether t h e D i s t r i c t Court e r r e d i n admitting evidence of subsequent remedial measures? 3 . Whether t h e r e i s s u b s t a n t i a l evidence t o support t h e jury v e r d i c t i n favor of p l a i n t i f f ? The single-vehicle accident s u b j e c t of t h i s a c t i o n occurred on t h e afternoon of November 29, 1974, on I n t e r - state 901 on a portion of t h a t road known a s Cottonwood H i l l . Richard Cech w a s driving the family c a r , a 1967 Rambler, w e s t on t h e freeway. H i s passengers were h i s wife, Arlene, and t h r e e of t h e i r seven children. The weather on t h e day of the accident was described by Cech a s "sunshiny," " ~ 0 0 1 , " " c l e a r and f a i r l y nice." H e t e s t i f i e d t h a t t h e road was " f a i r l y dry" and " i n good shape" from Livingston, t h e town from which they were t r a v e l i n g , t o Bozeman. From Bozeman westward t h e conditions were d i f f e r e n t ; t h e l e f t l a n e was snow-packed, b u t t h e r i g h t lane, i n which he w a s driving, w a s "dry" according t o Cech. H e t e s t i f i e d t h a t near t h e h i l l on which t h e accident occurred both lanes had s t a r t e d t o c l e a r up and t h e r e was less snow on the road. Cech f u r t h e r t e s t i f i e d t h a t he was d r i v i n g around 55 m i l e s per hour and had maintained t h a t speed almost a l l t h e way. H i s c a r d i d n o t have snow tires. H e s t a t e d t h a t he d i d n o t recall seeing t h e roadside sign warning of ice on the next t h r e e m i l e s of highway, within which space t h e accident occurred. The automobile, a t an estimated speed of 55 t o 60 m i l e s per hour, passed from a dry s e c t i o n of the highway onto an i c y s e c t i o n on a shaded curve. The automobile went i n t o a skid, and Cech l o s t control. Cech s t a t e d t h a t he d i d n o t brake while on t h e highway o r once t h e c a r l e f t t h e pavement. However, once the c a r was on t h e " f i e l d o r pasture" a s he described it ( t h e S t a t e c a l l s it the "recovery a r e a " ) , he t e s t i f i e d t h a t he must have been braking because " t h e c a r w a s coming t o a slower motion." The car d i d n o t s t o p within t h i s recovery area b u t went over t h e edge i n t o a ravine. Cech's wife w a s k i l l e d i n t h e accident. One son, Kelly, died i n a Great F a l l s h o s p i t a l about a week l a t e r . Cech and t h e o t h e r two boys sustained r e l a t i v e l y minor i n j u r i e s from which they recovered. A t t h e t i m e of t h e accident, g u a r d r a i l s protected t h i s p a r t i c u l a r curve except f o r a portion of t h e curve approxi- mately 600 f e e t i n length. Through t h i s gap of g u a r d r a i l , t h e Cech automobile t r a v e l e d i n t o t h e recovery area. Evi- dence showed t h a t t h e automobile skidded 84 f e e t 2 inches on t h e o i l m a t of t h e highway, 378 f e e t 1 inch on t h e recovery area, and then over t h e edge of t h e recovery area i n t o t h e r a v i n e where presumably t h e i n j u r i e s occurred. This s e c t i o n of t h e i n t e r s t a t e w a s designed during t h e mid-1960's by t h e S t a t e Highway Department. The construc- t i o n c o n t r a c t w a s l e t i n 1968, and t h e four-lane i n t e r s t a t e w a s opened t o t h e t r a v e l i n g p u b l i c i n t h e f a l l of 1970. The S t a t e contended throughout t h e t r i a l t h a t t h e design of t h e highway and g u a r d r a i l s , o r l a c k of g u a r d r a i l s , was proper. I t contended t h e r e w a s a "recovery area" a t t h e p l a c e of t h e gap i n t h e g u a r d r a i l ; t h a t t h i s recovery area was s a f e r than a g u a r d r a i l ; and, t h a t t h e presence of a g u a r d r a i l where t h e gap e x i s t e d would n o t have prevented t h e accident. P l a i n t i f f ' s contention was, and h i s evidence tended t o prove, t h a t a f t e r t h i s p o r t i o n of t h e i n t e r s t a t e had been completed, t h e S t a t e noticed t h a t t h i s p a r t i c u l a r s e c t i o n of t h e roadway was dangerous when i c y ; t h a t i c e always accumu- l a t e d during t h e winter months; t h a t t h e l a c k of g u a r d r a i l permitted v e h i c l e s t o s t r a y o u t upon t h e grassy slope desig- nated a s the "recovery area;" and t h a t vehicles going o u t upon the recovery area would be unable t o stop on the slope and would go i n t o the deep ravine. Further, p l a i n t i f f contended t h a t while a guardrail would not have prevented t h e accident, it would have prevented the i n j u r i e s received. The S t a t e a l s o contended t h a t a s an economic choice i n t h e o r i g i n a l design of the highway, and l a t e r i n maintaining it, the c o s t of guardrails a s compared t o the cost of pro- viding a recovery area was a factor i n its decision. A look a t the testimony w i l l demonstrate the kind of evidence t h a t was adduced by the S t a t e i n support of i t s theory. David S. Johnson was called by the State. H e i s a professional engineer f o r the Department of Highways. A t the time of t r i a l he was supervisor of engineering spe- c i a l i t i e s f o r the Department. Johnson t e s t i f i e d : "Q. N o w with regard t o the second page of Defen- d a n t ' s Exhibit I, would you look a t t h a t page of t h e document and t e l l m e i f you i n your review of the design of t h i s highway, and possibily [ s i c ] others, f o r the S t a t e of Montana, would follow the information provided on t h a t document? A. Yes, we would use t h i s . "Q. Generally what does t h a t information r e l a t e to? A. It r e l a t e s t o the providing of c l e a r recovery areas wherever you can on a highway. "Q. Does it make a d i s t i n c t i o n i n t h a t document with regard t o the median a s opposed t o the shoulder of the road recovery areas? A. Well, I don't see a reference t o median i n here, j u s t of fhand. "Q. So it would be s a f e to say t h a t t h a t ap- p l i e s t o recovery areas along the shoulders of i n t e r s t a t e highways? A. Yes, I think so. "Q. A s a designer, and based upon your educa- t i o n and your experience i n t h a t f i e l d , i s there a preference t h a t you follow with regard t o shoulder of the road areas, a preference t h a t you take of recovery area over guardrail? A. W e l l , i t ' s always b e t t e r --- t o have a c l e a r space where a vehicle can recover as opposed t o having a g u a r a r a i l , which i s something t h a t a vehicle - can run i n t o . "Q. D o you consider, as a designer, t h a t guard- r a i l i s a hazard? A. Oh, d e f i n i t e l y . "Q. I n your design of i n t e r s t a t e highways would you p r e f e r t o have a recovery area b u i l t o r a g u a r d r a i l b u i l t ? A. W e l l , as a designer, and a s a d r i v e r , I would r a t h e r have t h e recovery area. "Q. A l l r i g h t . O n t h i s area of Cottonwood H i l l i s t h e r e i n t h e design of t h e i n t e r s t a t e highway a design of recovery area? A. Y e s , t h e r e i s . " (Emphasis added.) Ronald J. Hensen, a consulting engineer from Boulder, Colorado, a l s o t e s t i f i e d f o r the S t a t e : "Q. D o you have a term t h a t you use i n describ- i n g such an area on t h e shoulder of t h e road? A. Where they have been dressed down, such a s i n t h i s p a r t i c u l a r area, they are r e f e r r e d t o as a secondary recovery area. "Q. ---- t h e use of g secondary recovery -- area an Is accepted p r a c t i c e i n protecting a vehicle a s - - it leaves t h e travelerway? A. - yes, -- it is. "Q. And i s t h a t method, t h e use of a recovery area, a primary o r secondary s a f e t y f e a t u r e with reqard t o protection on t h e shoulders? A. weli, - -- i t ' s t h e primary o b j e c t i v e -- i n road- way design t o provide a recovery area wherever possible, such t h a t a vehicle which inadvertently leaves t h e road has an opportunity t o g e t i t s e l f back under c o n t r o l without impacting e i t h e r an- o t h e r vehicle o r a fixed object. "Q. Is g u a r d r a i l used f o r t h e protection a t t h e shoulders of t h e road when a vehicle leaves t h e traveled way? A. Guardrail --- i s used i n design a s a secondary s o l u t i o n where t h e physical space - - - cannot be provided. That is, where t h e topogra- phy i s such t h a t t o provide a d d i t i o n a l space o u t t h e r e would be p r o h i b i t i v e i n t e r m s of t o t a l c o s t . "Q. NOW, a r e you suggesting t h a t t h e r e are eco- nomic considerations f o r t h e use of recovery a r e a s , as opposed t o guardrail? A. W e l l , t h e r e a r e economic considerations i n t h e design of roadways. And t h e b a s i c economics of t h i s , t h e r e has t o be some t r a d e o f f between how many m i l e s of roadway can be improved versus how s a f e they can be made. The ultimate end of it i s on one end you merely provide space f o r a vehicle t o move, and on t h e opposite end you make it crash proof such t h a t no matter what a d r i v e r would do he would be protected from himself." (Emphasis added. ) The foregoing evidence demonstrates t h e posture of t h e State--that recovery a r e a s were s a f e r than g u a r d r a i l s , more economical, and within t h e standards. I n c o n t r a s t t o t h a t evidence, p l a i n t i f f produced an i n t e r o f f i c e memorandum dated December 10, 1974, i n which t h e manager of t h e t r a f f i c u n i t of t h e Department of Highways reported t o t h e Administrator of t h e Department i n p a r t a s follows: ". . . W e have made an accident a n a l y s i s run from t h e H.I.S. System and according t o t h e in- formation obtained, t h e r e have been f i v e acci- d e n t s ( p l u s t h e s e two) which have happened i n t h i s a r e a i n t h e t i m e period of January 1, 1972 t o November 11, 1974. The e x a c t l o c a t i o n of t h e s e accidents i s i n t h e westbound l a n e , milepost 259.9. "This a r e a has a shaded s p o t which g e t s very s l i p p e r y a t t i m e s i n t h e winter. When v e h i c l e s l o s e c o n t r o l and go i n t o t h e d i t c h they a r e i n t r o u b l e because they can s l i d e behind t h e shoul- d e r g u a r d r a i l and i n t o a hole which i s a t l e a s t 100 f e e t deep. This s i t u a t i o n could very e a s i l y be f i x e d by adding about 600 f e e t of g u a r d r a i l which would connect t o t h e g u a r d r a i l on both ends. There i s now a s a f e t y p r o j e c t which i s under construction i n t h i s a r e a and g u a r d r a i l i s b i d a t $2.75 a f o o t . Therefore, w e f e e l t h a t t h i s g u a r d r a i l should be added t o t h e p r o j e c t . " The evidence a l s o showed t h a t eventually t h e 600 f e e t of g u a r d r a i l was i n s t a l l e d by t h e Department, a f t e r t h e Cech accident, a t a c o s t t o t h e state of approximately $145, disregarding t h e f e d e r a l contribution. The S t a t e challenges t h e l e g a l p r o p r i e t y of t h e ver- d i c t s . I t d i r e c t s t h e C o u r t ' s a t t e n t i o n t o evidence sup- p o r t i n g i t s defenses t h a t t h e design and construction of t h a t p o r t i o n of t h e i n t e r s t a t e w e r e proper and i n accordance with accepted standards, conforming t o t h e s t a t e of t h e a r t a t t h e t i m e . A t t h e t i m e of t r i a l , a f t e r submission of p l a i n t i f f ' s pretrial memorandum and his counsel's statements of clari- fication made during trial, the only issue was whether the State was negligent in not placing guardrails at the edge of the interstate where the accident occurred after the initial construction and before the accident involving the Cech family. Plaintiff's counsel stated, "[tlhis case is limited strictly to the subject of guardrails. And we aren't con- tending there is any engineering defect other than that." During cross-examination, plaintiff's counsel made it clear that he was not alleging or contending that the State failed to warn of icy road conditions or that plaintiff's visi- bility was in any way interfered with or obstructed at the time of the accident. At the close of plaintiff's case, the State made a motion for a directed verdict which reads in part: "MR. POHLMAN: Comes now the Defendant, and pur- suant to Rule 50 of the Montana Rules of Civil Procedure, moves for a directed verdict in favor of the Defendant, upon the grounds and for the reasons that Plaintiff has not by a preponderance of the evidence proved a prime [sic] facie case, in that the Defendant negligently designed the highway in question in its initial design. And further, that the Defendant negligently failed to provide adequate guardrails at the scene in accordance with its initial design of guardrails. And further, that the Plaintiff has not proved a prime [sic] facie case that the Defendant negli- gently constructed the highway in question in accordance or not in accordance with the design as to the highway, including guardrail and other factors or elements of design and construction. Further, that we want to note to the Court that in Plaintiff's Pre-Trial memorandum Plaintiff has abandoned and withdrawn all initial conten- tions that the Defendant negligently failed to give warning of hazards, and that Defendant negligently maintained the highway, and in the terms of the Plaintiff's Pre-Trial memorandum, as maintenance pertaining to the usual proce- dures of sanding, etcetera. The Motion is based upon the record and the testimonial evidence and the exhibits in the Plaintiff's case in chief. Further, that there has been no testi- mony or other evidence presented by Plaintiff whatsoever showing or proving that there was negligence i n t h e design of t h e highway on be- h a l f of t h e S t a t e of Montana. That t h e r e was no evidence whatsoever by e x p e r t testimony o r otherwise t h a t t h e r e was a duty o r standard of care f o r t h e design of t h e highway a s t o align- ment, slope, grade, g u a r d r a i l placement, recovery a r e a , signing o r any o t h e r concepts of design. And f u r t h e r , t h a t t h e r e was no evidence presented by P l a i n t i f f t h a t t h e r e w a s any such breach of t h e s a i d duty o r standard of c a r e by t h e Defen- dant. "Further, t h a t t h e r e has been no testimony o r o t h e r evidence presented by P l a i n t i f f proving t h e Defendant w a s negligent i n f a i l i n g t o pro- vide g u a r d r a i l s subsequent t o t h e o r i g i n a l de- s i g n and construction b u t p r i o r t o t h e Cech a c c i d e n t of 11-29-74. And f u r t h e r , t h a t t h e r e has been no evidence of a duty o r a standard of c a r e f o r t h e provision and e r e c t i o n of g u a r d r a i l subsequent t o t h e i n i t i a l design and construc- t i o n , b u t p r i o r t o t h e Cech accident of 11-29- 74, and no evidence presented of a breach of any such duty by t h e Defendant. And f u r t h e r , t h a t t h e r e has been no evidence of a standard of care o r duty on behalf of t h e Defendant with regard t o accident frequency r a t i o a n a l y s i s f o r t h i s highway i n question. And f u r t h e r , t h a t t h e r e has been no evidence showing any breach of duty o r standard of care f o r t h e compilation and re- p o r t i n g of a c c i d e n t s and accident d a t a f o r t h i s i n t e r s t a t e 90 highway." W e note t h a t t h e f i r s t s p e c i f i c a t i o n of e r r o r i s d i r e c t e d a t t h e c o u r t ' s f a i l u r e t o d i r e c t a v e r d i c t on t h e question of t h e S t a t e ' s negligence t o place a g u a r d r a i l a t t h e scene of t h e accident a t t h e t i m e t h e freeway w a s f i r s t designed and b u i l t . The motion d i d n o t go t o t h e question of whether t h e S t a t e was negligent i n f a i l i n g t o p u t a g u a r d r a i l t h e r e a f t e r t h e r e had been a c c i d e n t s i n t h e area. With t h e uncon- t r o v e r t e d e x p e r t testimony before it a t t h e t i m e , t h e c o u r t might w e l l have d i r e c t e d a v e r d i c t on t h i s very narrow i s s u e . However, t h e c o u r t was n o t requested t o d i r e c t a v e r d i c t f o r f a i l i n g t o p u t a g u a r d r a i l i n a f t e r t h e i n i t i a l construction and design, s o it w a s n o t i n a p o s i t i o n t o d i r e c t o r r e f u s e t o d i r e c t a v e r d i c t on t h i s point. There- f o r e , w e f i n d no e r r o r . The second issue concerns the admission of evidence of subsequent remedial measures taken by the State after the accident. The investigating officer of the Cech accident requested an emergency study of the area which went to the Spot Safety Unit of the Department of Highways. Approxi- mately a month after the accident, after an investigation, a recommendation was made which resulted in the placement of a guardrail across the entrance of the recovery area. This construction was done subsequent to the Cech accident and was completed in 1975. Over the State's objection, the court allowed evidence of this "subsequent request for an emergency study" to be admitted into evidence. The objection was based on Rule "When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evi- dence of subsequent measures when offered for another purpose, such as proving ownership, con- trol, or feasibility of precautionary measures, if controverted, or impeachment." Plaintiff argues that the admission of other incidents is both relevant and material under the case law of Montana, citing Leonard v . City of Butte (1901), 25 Mont. 410, 65 P. 425, and Robinson v . F. W. Woolworth Co. (1927), 80 Mont. In view of the foregoing testimony, we find no error in the trial court's ruling allowing the offered testimony. In Raybell v. State (1972), 6 Wash.App. 795, 496 P.2d 559, the Washington court found the duty applying to a municipality to maintain adequate protective barriers where such barriers are shown to be practical and feasible. The court commented that the feasibility of such a guardrail was shown by the fact that the State later installed one in the very location of the accident. The interdepartmental memorandum quoted above stated that the dangerous situation "could very easily be fixed" by adding about 600 feet of guardrail. This is further proof of feasibility. Under Rule 407, Mont.R.Evid., the subsequent installa- tion was also admissible for impeachment. The State con- tended that the so-called recovery area was preferable to guardrail and its experts contended that the absence of a guardrail conformed in every way with acceptable standards so as to refute negligence. They also indicated that eco- nomically the recovery areas were preferable to guardrails. In Lawlor v. County of Flathead (1978), Mont. , 582 P.2d 751, 35 St.Rep. 884, we found that repair of a chuck- hole by the county two days after an accident occurred was admissible to establish feasibility of repair, and to im- peach the testimony given by a county road foreman. The point on which this decision turns should be governed by the appellate rule that the question of admissibility of evidence must in every case be left largely to the sound discretion of the trial court, subject to review only in case of manifest abuse. Gunderson v. Brewster (1970), 154 Mont. 405, 466 P.2d 589. Affirmed. We concur: &Afi@?Lh4Qf Chief Justice \3dkq y Justices | December 12, 1979 |
acdce735-e07e-4d04-8ed2-d8b380e25569 | MARRIAGE OF SCHWARTZ | N/A | 14622 | Montana | Montana Supreme Court | No. 14622 IN THE SUPREIE: COURT OF THE STATE OF MONTANA 1979 IN RE THE MARRIAGE OF DORIS F. SCHWARTZ, Petitioner and Respondent, CLYDE L. SCHWARTZ, Respondent and Appellant. Appeal from: District Court of the Third Judicial District, Honorable Robert J. Boyd, Judge presiding. Counsel of Record: For Appellant: J. Allen Bradshaw, Philipsburg, Montana For Respondent: Radonich and Brolin, Anaconda, Montana -<r... Filed: i:;, -- - Submitted on briefs: September 12, 1979 h! 7 ! , : Decided : I; IJ Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. This is an appeal from a decree distributing marital property following a divorce in the Granite County District Court. Clyde and Doris Schwartz were married on August 2, 1966 in Waukegan, Illinois. In 1973 they moved to Montana and bought property south of Philipsburg on which the family home is located. On September 29, 1977, the wife filed a petition for dissolution of marriage, custody of two minor children, and a division of the marital property- The husband is disabled and is receiving social security benefits. The only contested issue in the District Court was the disposition of the family home and household furnishings. They were awarded to the wife until the children are emancipated or reach majority. Thereafter the house is to be disposed of in a manner which will ensure that each party receives one-half of the equity. From the District Court's decree, the husband appeals. The husband has raised four issues on appeal: 1. Did the District Court abuse its discretion in its award of the marital property? 2 . Error in failing to establish the net worth of the marital property of the parties; 3 . Sufficiency of the evidence to support the decree; 4 . Error in admitting evidence of bank deposits and transfers. Under Montana law a District Court has far-reaching dis- cretion in resolving property divisions following divorce and its judgment will not be altered unless a clear abuse of discre- tion is shown. Zell v . Zell (1977), Mont , , 570 P.2d 33, 34 St.Rep. 1070. In the instant case there has been no showing that the disposition of the family home and furnishings was an abuse of discretion. 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. The findings of a trial judge will not be disturbed on appeal where they are based on substantial though conflicting evidence, unless there is a clear preponderance of evidence against such findings. Cameron v . Cameron (1978), Mont. 587 P.2d 939, 35 St.Rep. 1723. Here the findings of the trial judge are based on substantial evidence and the evidence does not preponderate against them, Finally, the husband claims error in admitting in evi- dence exhibits pertaining to bank deposits and checks. This evidence has nothing to do with the property in dispute. Error may not be predicated upon a ruling which admits or excludes evidence unless it affects a substantial right of the objecting party. Rule 103 (a) , Mont. R . Evid. Here the evidence is extran- eous to the matter in controversy and error cannot be predicated thereon. Affirmed. , /-. We copcur: /* r' Chief Justice | November 8, 1979 |
a486a03f-9b12-47d6-8c19-9c1a7718d2fe | STATE v SECURITY STATE BANK | N/A | 14521 | Montana | Montana Supreme Court | No. 14521 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 STATE OF MONTANA, SONNY OMHOLT, AUDITOR FOR THE STATE OF MONTANA, and the PUBLIC EMPLOYEES' RETIREMENT BOARD OF THE STATE OF MONTANA, Plaintiffs and Respondents, VS. SECURITY STATE BANK, Defendant and Appellant. Appeal from: District Court of the First Judicial District, Honorable Peter G. Meloy, Judge presiding. Counsel of Record: For Appellant: Smith and Harper, Helena, Montana Loren J. O'Toole, Plentywood, Montana For Respondents: Hon. Mike Greely, Attorney General, Helena, Montana Submitted on briefs: November 28, 1979 - , = - Decided: ; k c ' Filed: <F:' - Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. Appeal is by the defendant Security State Bank from an order of the District Court denying defendant's motion for change of venue. The State of Montana, through its State Auditor, Sonny Omholt, brought a civil action in the District Court of the First Judicial District of the State of Montana in and for the County of Lewis and Clark, against Security State Bank of Plentywood, Montana. The State seeks to recover $5,482.26 on behalf of the Public Employees' Retirement Board for retirement benefits paid out to "John E. Rucker" over a six year period. The benefits were paid in a series of 72 state warrants issued after Rucker's death. The appellant Bank presented the warrants for payment, and they were paid. The State's action is based on its claim that the warrants were wrongfully presented by the Bank. The Bank filed its motion for change of venue in astimely manner upon two grounds (1) that the defendant Bank resided in the County of Sheridan at the commencement of this action and continues to reside in said county and, (2) that the interests of justice and the convenience of witnesses would be best served by a change of venue to the County of Sheridan. The order o f the District Court denied the change of venue upon the first ground, and denied the motion on the second ground because it was prematurely brought, but without prejudice to a further motion based on the second ground. The Bank appeals the order of the District Court, and the issue before us is whether the venue of this action properly should have been transferred to the Fifteenth Judicial District Court for the County of Sheridan, based on the residency of the Bank. It is not disputed that the residence of the defendant Bank, though a corporation, is in Plentywood, located in Sheridan County. The general rule that a cause against a defendant should be tried in the county in which he resides is embodied in section 25-2-108, MCA [formerly section 93-2904, R.C.M. 19471 which provides : "In all other cases, the action shall be tried in the county in which the defendants or any of them may reside at the commencement of the action 11 . . . There is a special statute, however, which applies to suits by the State Auditor such as this one, which provides for trial in the District Court of Lewis and Clark County. That section is section 17-4-103(1), MCA [formerly section 79-101 (12) , R.C.M. 19471 , which states: " (1) In his discretion it is the duty of the state auditor to examine the collection of moneys due the state and institute suits in its name for official delinquencies in relation to the assess ment, collection, and payment of the revenue and against persons who by any means have become possessed of public money or property and failed to pay over or deliver the same and against debtors of the state, of which suits the courts of -- the county in whichthe --- seat of government may be locatedhave jurisdiction, without regard -- to the residence of -- the defendants." (Emphasis added.) While the language of section 17-4-103(1), MCA, does not necessarily grant exclusive jurisdiction of such cases to the Lewis and Clark County District Court, there can be no doubt that under that statutory provision courts in that county are a proper venue for actions commenced by the State Auditor pursuant to section 17-4-103(1), MCA. If we assume that the District Court in the Fifteenth Judicial District in and for Sheridan County would also be a proper tribunal in which the State Auditor could commence an action against this defendant, under section 25-2-108, MCA, it is nevertheless the rule that if the county in which the action is brought and the one to which it is sought to have the action transferred are both proper counties, the action must stay where the complaint was filed. Shields v. Shields (1943), 115 Mont. 146, 153, 139 P.2d 528, 529. This Court in Rapp v. Graham (1965), 145 Mont. 371, 373-4, 401 P.2d 579, 581, said that statutory provisions creating exceptions to the general rule recognizing a defendant's privilege to be sued in his own county will not be given a strained or doubtful contruction. Applying that rule here, the only possible construction of section 17-4- 103(1), MCA, is that it empowers the State Auditor to commence such suits in the District Court for Lewis and Clark County. The State here having chosen a venue in which the action is properly laid to commence its suit, the courts are powerless based upon the residence of the parties, to transfer the cause to another venue although the other venue itself may also have been proper for the commencement of the action. The power of the District Court to change the place of trial, based on residence exists only when the county designated in the complaint is not the proper county. Section 25-2- 201, (I), MCA [formerly section 93-2906 (1) , R.C.M. 19471. The Bank cites the decisions in State v . Campbell (1906), 3 Cal.App. 602, 86 P. 840; and People v . Pinches (1931), 214 Cal. Rptr. 177, 4 P.2d 771, 772, as supporting the Bank's position that similar statutes empowering the State Auditor to commence suits in courts at the seat of government in California do not grant exclusive jurisdiction to such courts but that the actions may be transferred to the place of defendant's residence. On the other hand, the State points to the Idaho decision in State v . Jones (19211, 34 Idaho 83, 199 P. 645, which comes to an opposite conclusion. However, we do not need to pick and choose between the -4- possibly conflicting decisions of those jurisdictions. Our statutes and decisions under them are clear enough. In this case, the State Auditor has commenced his action in a proper county under the statute and such cause cannot now be transferred to another county on the basis of the residency of the defendant. As to the second ground urged by the Bank for change of venue, that the interests of justice and the convenience of witnesses would be best served by a change of venue to the County of Sheridan, the District Court properly denied the change based on these grounds, but left the matter open for future decision if the Bank should choose to renew its motion at a proper time. Section 25-2-201 (3), MCA [formerly section 93-2906 ( 3 ) , R.C.M. 19471 provides that the court must change the place of trial when the convenience of witnesses and the ends of justice would be promoted by the change. In Maio v. Greene (1943), 114 Mont. 481, 488, 137 P.2d 670, 672, we held that the matter of the convenience of witnesses cannot be invoked until after the answer has been filed in the cause, since the trial court cannot consider the materiality of the witnesses in question or determine the issues until then. In McNeill v. McNeill (1949), 122 Mont. 413, 417, 205 P.2d 510, 512, we held that until the defendant has answered, any action of the District Court in determining a motion for change of venue upon these grounds is premature. That policy has been preserved in our rules of Civil Procedure. Rule 12(b)(iii), M0nt.R.Civ.P. provides that any request for a change in the place of trial based on the convenience of witnesses and the ends of justice must be presented by motion within twenty days after the answer to the complaint, or to the cross-claim where a cross-claim is filed or a reply to an answer where a reply is authorized. The -5- District Court by its order, kept the door open for the Bank to renew its motion for change of venue if at the proper time it appears that the ends of justice and the convenience of witnesses would be promoted. Since we find no error in the order of the District Court denying the motion for change of venue, the appeal is dismissed. Justice We Concur: ' Chief Justice | December 5, 1979 |
7aec4681-6615-4e87-9404-dfba14e6aa51 | State v. Wagner | 2013 MT 47 | DA 11-0238 | Montana | Montana Supreme Court | DA 11-0238 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 47 STATE OF MONTANA, Plaintiff and Appellee, v. CHRISTOPHER WAGNER, Defendant and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 07-97C Honorable Mike Salvagni, 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; C. Mark Fowler, Assistant Attorney General; Helena, Montana Submitted on Briefs: November 28, 2012 Decided: February 26, 2013 Filed: __________________________________________ Clerk February 27 2013 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Christopher Wagner (Wagner) appeals from the judgment of the Eighteenth Judicial District Court, Gallatin County, entered after a jury convicted him of attempted deliberate homicide, as well as from the District Court’s denial of his motion to dismiss. We affirm. ¶2 Wagner raises the following three issues on review: ¶3 Issue One: Was Wagner denied his constitutional right to due process because a motions hearing failed to record and therefore no transcript is available for effective appellate review? ¶4 Issue Two: Did the District Court err by denying Wagner’s motion to dismiss for negligent destruction of exculpatory evidence? ¶5 Issue Three: Did the District Court err by improperly limiting Wagner’s cross- examination of a State’s witness? FACTUAL AND PROCEDURAL BACKGROUND ¶6 This case arises from a gun fight between Wagner and Michael Peters (Peters) that occurred on January 17, 2007 in Bozeman, Montana. The case proceeded to trial in 2008, and a jury convicted Wagner of attempted deliberate homicide with a weapon. On appeal, this Court reversed and remanded for a new trial upon finding that prosecutorial comments regarding Wagner’s post-Miranda silence constituted plain error. See State v. Wagner, 2009 MT 256, 352 Mont. 1, 215 P.3d 20. Because we recounted in detail the factual history of this matter in Wagner, we provide here only those details pertinent to Wagner’s present appeal. 3 ¶7 After we remanded the case for a new trial, the District Court held several pre-trial hearings and ruled on various motions. Of particular relevance here is Wagner’s December 24, 2009 motion to dismiss due to negligent destruction of exculpatory evidence. Wagner argued that police failed to properly preserve the crime scene by allowing Peters’ father, Dr. Peters, to enter and move Peters’ vehicle prior to it being processed. As a result, Wagner claimed a violation of his due process rights. ¶8 The District Court held a hearing on the motion on March 24, 2010. The court denied the motion, and issued a decision and order on March 31, 2010. Based on testimony and evidence presented at the hearing, the court made several factual findings pertaining to the crime scene following the shooting. The court found that Peters was quickly transported to the hospital by ambulance while law enforcement worked to secure the scene and establish perimeters. During that time, Dr. Peters made two separate trips to Peters’ vehicle. On the first trip, Dr. Peters saw and collected a .32 caliber automatic gun from the floor of the vehicle, which he brought to a police officer on the scene. Dr. Peters thought he may have touched the door and steering wheel during this trip. Dr. Peters made a second trip to the vehicle in search of Peters’ cell phone. He rummaged through the vehicle for a few minutes, found the phone, and gave it to one of the officers. Because the vehicle was in the middle of the road, Dr. Peters moved it to the side of the road, locked it and brought the keys to an officer. Dr. Peters was trying to “get things under control and help out,” and was not thinking about the overriding concept of a crime scene. Due to the injuries sustained in the shooting and the fact that Wagner’s location was unknown after the incident, the District 4 Court found that “preserving property was a lower priority [for law enforcement] than life safety and security issues.” ¶9 Wagner alleged that Dr. Peters destroyed exculpatory evidence during these two trips to Peters’ truck. In the court’s order denying Wagner’s motion, the court found that Wagner went “to substantial lengths to set forth numerous pieces of evidence that were not gathered by law enforcement as a result of [Dr.] Peters moving [Peters’] truck and removing items.” However, the court determined that Wagner failed to show that any of the allegedly destroyed evidence was material to his defense or apparently exculpatory. ¶10 Also relevant is the pretrial motions hearing (the Hearing) the District Court held on February 25, 2010. The court heard arguments on several motions, including Wagner’s motion to exclude prior testimony. When Wagner requested transcripts from the Hearing at the beginning of this appeal he was notified that due to technical problems that occurred during the Hearing, no transcript of the proceeding existed. On October 28, 2011, Wagner filed a motion with this Court to remand and begin case anew. He argued that the unavailability of a transcript of the Hearing constituted a violation of his due process rights. The State objected, asserting that the unavailable transcript would not prevent effective appellate review of Wagner’s appeal. We denied Wagner’s motion, concluding “the unavailable transcript would be of limited value in connection with this appeal and that the absence of the hearing transcript does not appear to rise to the level of a due process violation.” 5 ¶11 Wagner’s second jury trial began on December 6, 2010, and concluded three days later with a jury verdict convicting Wagner of attempted deliberate homicide. During the course of the trial, the State moved to preclude the introduction of other crimes evidence of its witness, Tim Polly (Polly), pursuant to M. R. Evid. 609. Polly was an inmate at the Gallatin County Detention Facility with Wagner who, prior to Wagner’s second trial, notified law enforcement of statements Wagner made to Polly at the jail. Specifically, Polly informed that Wagner stated that once he beat the charges against him, he was going to kill Peters and Melody Lark, Wagner’s ex-girlfriend. Polly has a lengthy criminal history that, among many other charges, includes making false reports to law enforcement. At the time of trial, Polly also had a pending felony charge against him for domestic violence. Wagner objected to the State’s motion to preclude this evidence and argued that he should be allowed to inquire about Polly’s full criminal record. ¶12 Relying on State v. Martin, 279 Mont. 185, 926 P.2d 1380 (1996), State v. Gollehon, 262 Mont. 1, 864 P.2d 249 (1993), and M. R. Evid. 608 and 609, the court granted the State’s motion. Despite Wagner’s contention that prohibiting cross-examination on Polly’s criminal charges would violate Wagner’s confrontation rights, the court determined Wagner could “ask [Polly] if he’s given false information [to law enforcement] and ask him the circumstances of that . . . but [] cannot ask him if he was charged with a crime or whether he was convicted of a crime.” ¶13 Additional facts will be included where necessary. STANDARD OF REVIEW 6 ¶14 The denial of a motion to dismiss in a criminal case presents a question of law that we review de novo. State v. Giddings, 2009 MT 61, ¶ 42, 349 Mont. 347, 208 P.3d 363. Generally, we review a district court’s evidentiary rulings for an abuse of discretion. State v. Stock, 2011 MT 131, ¶ 17, 361 Mont. 1, 256 P.3d 899. 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. Stock, ¶ 17. DISCUSSION ¶15 Issue One: Was Wagner denied his constitutional right to due process because a motions hearing failed to record and therefore no transcript is available for effective appellate review? ¶16 Wagner argues that pursuant to the United States Supreme Court decision in Britt v. North Carolina, 404 U.S. 226, 92 S. Ct. 431 (1971), the unavailability of the Hearing transcript resulted in a violation of his due process rights. He maintains that while several errors may have occurred at the Hearing—including a potential violation of attorney-client privilege when Wagner’s former trial counsel testified—appellate counsel does not know exactly what they are because there is no transcript. Wagner also argues that any alternatives to recreate the record from the Hearing would be insufficient. Wagner therefore claims he is denied effective appellate review and this Court should reverse his conviction and remand for a new trial. In the alternative, Wagner asks this Court to remand to see if reconstruction of the Hearing is possible. 7 ¶17 The State counters that this Court already disposed of Wagner’s argument when we denied Wagner’s motion to remand and begin the case anew. Pursuant to the law of the case doctrine, the State argues this Court should not reconsider this issue. We agree. ¶18 Under the law of the case doctrine, a prior Montana Supreme Court decision resolving an issue between the same parties is binding and may not be relitigated. In re Estate of Snyder, 2009 MT 291, ¶ 6, 352 Mont. 264, 217 P.3d 1027; Murphy Homes, Inc. v. Muller, 2007 MT 140, ¶ 56, 337 Mont. 411, 162 P.3d 106; Muri v. Frank, 2003 MT 316, ¶ 11, 318 Mont. 269, 80 P.3d 77. This doctrine “‘expresses the practice of courts generally to refuse to reopen what has been decided.’” Murphy Homes, ¶ 56 (quoting Fiscus v. Beartooth Elec. Coop., 180 Mont. 434, 436, 591 P.2d 196, 197 (1979)). Like res judicata, the law of the case doctrine is based on policies of judicial economy and finality of judgments. Muri, ¶ 11. ¶19 In his reply brief, Wagner argues that our order denying his motion to remand did not include a “resounding ‘principle or rule of law necessary’ to [our] decision.” Relying on Plains Grains L.P. v. Bd. of Co. Comm’rs, 2010 MT 155, 357 Mont. 61, 238 P.3d 332, Wagner thus contends that we have not yet established any law of the case as to the issue of whether the unavailability of the Hearing transcript violated his due process rights. ¶20 This case is distinguishable from Plains Grains. There, we granted limited supervisory control to determine whether a district court’s denial of Plains Grains’ motion for summary judgment was a final resolution on the merits. Plains Grains, ¶¶ 15-16. In our order, we directed the district court to resolve any remaining claims and to issue a final judgment from which Plains Grains could appeal. Plains Grains, ¶ 16. We also outlined the 8 procedure for requesting a stay or injunction pending appeal in the event Plains Grains elected to do so. Plains Grains, ¶ 16. After the district court issued a final order, Plains Grains appealed without requesting a stay or injunction. Plains Grains, ¶ 17. ¶21 On appeal, we pointed out that our prior order did not render a decision on the issue of whether Plains Grains had to seek a stay or injunction pending appeal—we only gave advisory instructions. Plains Grains, ¶¶ 37, 40. Specifically, we stated that the order did not include “‘a principle or rule of law necessary to the decision’” affirmatively directing Plains Grains to seek a stay or injunction. Plains Grains, ¶ 38 (quoting Carlson v. N. Pac. Ry., 86 Mont. 78, 81, 281 P. 913, 914 (1929)). Therefore, even though Plains Grains did not seek a stay or injunction, the order “present[ed] no ‘law of the case’ roadblock to Plains Grains’ pursuit of its appeal.” Plains Grains, ¶ 40. ¶22 In the present case, Wagner attempts to argue the exact same issue he raised in his motion to remand and begin the case anew. Unlike Plains Grains, here we have already explicitly articulated our decision pertaining to Wagner’s constitutional argument. Our order established as the law of the case that Wagner’s due process rights were not violated by the unavailability of the Hearing transcript. This decision is binding and Wagner cannot now attempt to relitigate it. ¶23 Issue Two: Did the District Court err by denying Wagner’s motion to dismiss for negligent destruction of exculpatory evidence? ¶24 Wagner asserts that his due process rights were violated due to the State’s negligence in preserving exculpatory evidence. He argues that by allowing Dr. Peters to enter and move 9 Peters’ vehicle prior to it being processed, thereby introducing and removing physical evidence, the State negligently allowed exculpatory evidence to be destroyed. Specifically, Wagner states that Dr. Peters tampered with the vehicle, its contents, and location by removing Peters’ .32 caliber handgun from the vehicle and leaving his own gun on the seat, rummaging through the vehicle searching for Peters’ cell phone and removing it, and driving the vehicle and locking its doors. Wagner claims that Dr. Peters’ actions destroyed evidence of “blood splatter,” “footprints, gunshot residue, open windows or doors, [the] exact location of Peters’ gun, contents of Peters’ cell phone, fingerprints, etc.” ¶25 The State responds that the police had no duty to gather this evidence, and, therefore, their failure to do so did not violate Wagner’s due process rights. The State further asserts that none of the allegedly missing evidence was material. Instead, it maintains the evidence was only potentially exculpatory. Therefore, the State argues that the District Court properly denied Wagner’s motion to dismiss. We agree. ¶26 A criminal defendant has a constitutional right to obtain exculpatory evidence, and the State must not interfere with that right. State v. Saxton, 2003 MT 105, ¶ 32, 315 Mont. 315, 68 P.3d 721. However, this is only a personal right; police officers are not required to take initiative or even assist the defendant with procuring exculpatory evidence. Saxton, ¶ 32. Despite not having an affirmative duty to gather exculpatory evidence on behalf of defendants, police officers “‘may not frustrate or hamper an accused’s right to obtain exculpatory evidence.’” Saxton, ¶ 32 (quoting State v. Belgarde, 1998 MT 152, ¶ 16, 289 Mont. 287, 962 P.2d 571). 10 ¶27 To amount to a denial of due process, evidence that is negligently destroyed must be “‘material and of substantial use, vital to the defense, and exculpatory.’” Giddings, ¶ 52 (quoting Sate v. Weaver, 1998 MT 167, ¶ 54, 290 Mont. 58, 964 P.2d 713). To establish materiality, evidence “‘must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’” Saxton, ¶ 32 (quoting California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534 (1984)). Evidence is exculpatory if it “‘would have tended to clear the accused of guilt.’” Giddings, ¶ 52 (quoting State v. Heth, 230 Mont. 268, 272, 750 P.2d 103, 105 (1988)). Where destroyed or lost evidence is only potentially exculpatory, the defendant must show bad faith by the State in order to establish a due process violation. Giddings, ¶ 48. ¶28 Here, Wagner maintains he is not arguing that law enforcement failed to gather evidence at the crime scene, which he acknowledges would not violate his due process rights. Instead, Wagner asserts law enforcement had a duty not to frustrate his right to obtain exculpatory evidence and that this right was hampered and evidence destroyed because the crime scene was not properly preserved. Wagner advances State v. Swanson, 222 Mont. 357, 722 P.2d 1155 (1986), in support of his position. ¶29 In Swanson, a defendant arrested for driving under the influence of alcohol (DUI) requested an independent blood test. Swanson, 222 Mont. at 359, 722 P.2d at 1156. After the blood test was administered, law enforcement inadvertently left the blood sample sitting on a countertop unrefrigerated, destroying its evidentiary value. Swanson, 222 Mont. at 359- 11 60, 722 P.2d at 1156-57. This Court dismissed the charge against Swanson, determining that “[o]nce the sample was taken from Swanson, the police had a duty to see to its safekeeping.” Swanson, 222 Mont. at 362, 722 P.2d at 1158. We stated that while the police have no duty “to assist in procuring any evidence on behalf of a defendant which is deemed necessary to his defense . . . in no event can [they] hamper or interfere with efforts on the part of an accused to obtain a sampling of his blood . . . .” Swanson, 222 Mont. at 361, 722 P.2d at 1157. ¶30 This case is distinguishable from Swanson. There, law enforcement had already procured evidence and then negligently destroyed it. Here, on the other hand, police officers never obtained any evidence from in or around Peters’ vehicle to begin with. ¶31 This Court has emphasized the distinction between the State’s duty to gather evidence and its duty to preserve exculpatory evidence. In State v. Sadowski, 247 Mont. 63, 805 P.2d 537 (1991) (overruled in part on other grounds), a defendant convicted of deliberate homicide argued that his due process rights were violated when the State negligently failed to gather exculpatory evidence. Specifically, Sadowski asserted that police officers failed to take into evidence items from the crime scene that could have been weapons used by the victim that would have supported the defendant’s justifiable use of force defense and provided fingerprint evidence. Sadowski, 247 Mont. at 78, 805 P.2d at 546. We rejected Sadowski’s attempt at characterizing a failure of police to gather evidence as a negligent suppression of evidence, and noted the distinction between the two. Emphasizing that “‘Swanson . . . does not stand for the proposition that police officers have to assist in the 12 gathering of such [exculpatory] evidence,’” and that “‘officers do not have an affirmative duty to search out favorable evidence for the defendant,’” we concluded Sadowski’s due process rights were not violated. Sadowski, 247 Mont. at 79, 805 P.2d at 547 (quoting Heth, 230 Mont. at 271-272, 750 P.2d at 104-105). See also State v. Cooksey, 2012 MT 226, 366 Mont. 346, 286 P.3d 1174 (holding that a district court correctly applied the law when it found that § 45-3-112, MCA,1 did not impose any new and independent duty for law enforcement to investigate cases involving justifiable use of force. Instead, we determined the statute reflects long-established obligations regarding the prosecution’s duty to provideto the defense any exculpatory evidence in the government’s possession. Cooksey, ¶ 34 (emphasis added)). ¶32 We agree with the District Court that, like Sadowski, Wagner “attempts to blur the distinction between the ‘gathering’ of evidence and ‘preserving’ evidence.” Wagner does not contend that the police obtained evidence of such things as footprints, fingerprints and gunshot residue and then negligently destroyed, lost or withheld them from Wagner. Rather, he insists that evidence seemingly available to the police was not gathered prior to Dr. Peters entering and moving the truck. Because the police officers had no duty to gather allegedly exculpatory evidence for Wagner, their failure to do so did not violate Wagner’s due process rights. Also, while Wagner argues that it was the police officers’ improper preservation of the entire crime scene that resulted in lost evidence that might have otherwise been 1 Section 45-3-112, MCA, was enacted in 2009 and provides: “When an investigation is conducted by a peace officer of an incident that appears to have or is alleged to have involved justifiable use of force, the investigation must be conducted so as to disclose all evidence, including testimony concerning the alleged offense and that might 13 obtainable, he has not advanced any facts or authority supporting a determination that the police were negligent as they responded to the situation and secured the house and its perimeter to ensure safety. ¶33 Furthermore, even if we were to assume, arguendo, that Wagner’s claim is properly characterized as a failure of police to preserve evidence rather than a failure to gather evidence, Wagner has failed to show that any of the evidence was, in fact, exculpatory. Rather, the missing evidence was only potentially exculpatory. Wagner admits as much in his opening brief, stating that the evidence associated with the vehicle and surrounding area “might possess some exculpatory value,” that he is unable to use “potentially exculpatory evidence,” and that the evidence “could have/would have shown” that Peters was untruthful. Although Wagner maintains in his reply brief that he does not concede the evidence was only potentially exculpatory, he has never shown how any of it would have tended to clear him of guilt. There is no indication from the appellate briefs or the District Court record that, had the police gathered pieces of evidence from in and around Peters’ truck prior to Dr. Peters entering and moving it—evidence that may or may not have even existed—any of it would have cleared Wagner of the charge against him. As the District Court determined, Wagner “simply speculates that potentially exculpatory evidence existed,” and claims, “without any factual basis, that the exculpatory nature of this evidence was apparent to law enforcement.” support the apparent or alleged justifiable use of force.” 14 ¶34 Accordingly, we hold that the District Court did not err in denying Wagner’s motion to dismiss. ¶35 Issue Three: Did the District Court err by improperly limiting Wagner’s cross- examination of a State’s witness? ¶36 On appeal, Wagner does not challenge the court’s ruling pertaining to questioning on Polly’s criminal convictions. Rather, Wagner argues the court erred by denying him the opportunity to challenge Polly’s credibility by inquiring into the prior and pending criminal charges against him. Wagner asserts that the District Court “applied the wrong law to the issue,” and incorrectly analyzed the issue under Rule 609 instead of under the constitutional right to confront witnesses. ¶37 Both the federal and Montana constitutions provide defendants with the right to confront witnesses against them. U.S. Const. amend. VI; Mont. Const. art. II, § 24. The ability to cross-examine a witness represents the “cornerstone” of a defendant’s confrontation rights. State v. Norquay, 2011 MT 34, ¶ 20, 359 Mont. 257, 248 P.3d 817. However, we have clearly stated that the Confrontation Clause “‘guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’” State v. Skinner, 2007 MT 175, ¶ 31, 338 Mont. 197, 163 P.3d 399 (quoting State v. Jenkins, 2001 MT 79, ¶ 19, 305 Mont. 95, 23 P.3d 201) (emphasis in original). Trial judges “retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on [] cross-examination . . . .” State v. Wilson, 2007 MT 327, ¶ 45, 340 Mont. 191, 172 P.3d 1264. 15 ¶38 Here, the District Court gave Wagner the opportunity to cross-examine Polly, and Wagner did in fact cross-examine the witness during the trial. Therefore, the issue is not constitutional in nature but evidentiary. See Skinner, ¶ 31 (holding that because the defendant was given an opportunity to and in fact did cross-examine a witness, “the issue is not constitutional in nature but evidentiary, which we review for an abuse of discretion”). ¶39 We conclude the District Court did not abuse its discretion in limiting cross- examination about Polly’s previous and pending criminal charges against him. M. R. Evid. 608(b) provides that a court has the discretion whether to admit specific instances of conduct to show a witness’s credibility. The extent of cross-examination on whether a witness has been accused of another or prior crime is within the trial court’s discretion. State v. Short, 217 Mont. 62, 67, 702 P.2d 979, 982 (1985). Cross-examination for these purposes is restricted “because of the limited probative value in relation to credibility.” Short, 217 Mont. at 67, 702 P.2d at 982. The District Court allowed Wagner to attack Polly’s credibility by cross-examining him on his past conduct relating to incidents of providing false statements to law enforcement. At the same time, the court’s ruling ensured that the cross-examination did not turn into an unnecessary inquiry of issues relating to Polly’s criminal history. CONCLUSION ¶40 For the reasons stated above, we affirm the District Court’s judgment. ¶41 Affirmed. 16 /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BETH BAKER /S/ BRIAN MORRIS | February 27, 2013 |
3fc05790-3721-4e58-899d-f3c1c03cc748 | JOHNSTON v PACK TRAIL INN INC | N/A | 13698 | Montana | Montana Supreme Court | No. 13698 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 THOMAS J. JOHNSTON, Claimant and Respondent, -vs- PACK TRAIL INN, INC., Employer, and NATIONAL AUTOMOBILE AND CASUALTY INSURANCE COMPANY, Defendant and Appellant. Appeal from: Workers' Compensation Court Honorable William Hunt, Judge presiding. Counsel of Record: For Appellant: Andrew J. Utick, Helena, Montana For Respondent: Moulton, Bellingham, Longo and Mather, Billings, Montana Submitted on briefs: February 25, 197f Decided: m t 2 q 1914 u b Filed: Z T 2 5 9 m Mr. Daniel J. Shea delivered the Opinion of the Court. The National Automobile and Casualty Insurance Company, insurer for the employer, appeals from a judgment of the Workers' Compensation Court which in turn affirmed an award of benefits by the Workers' Compensation Division to the claimant, Thomas A. Johnston. For purposes of identification of parties we refer to the insurance company as the employer. Stripped to the essentials, the employer contends that the claimant neither sustained a new injury nor aggravated a preexlsting injury, and is therefore not entitled to benefits. Alternatively, the employer argues that it was entitled to a trial de novo before the Workers' Compensation Court because of an alleged stipulation between counsel for the employer and counsel for the claimant. The facts giving rise to the claim for compensation are as follows. On January 29, 1973, claimant sustained a broken leg when he accidentally shot himself with a handgun. Later, on July 29, 1973, while still on crutches as a result of surgery to repair the gunshot damage, claimant was working as a bartender when patrons were engaged in some horseplay inside the bar. He was knocked to the floor during the scuffle, and as a result allegedly sustained the injuries which resulted in his claim for compensation. Claimant underwent surgery to repair the same leg bone that had been broken as a result of the accidental shooting. Before the hearing started medical reports were filed with the Workers' Compensation Division which indicated that the second surgery was performed to unite claimant's leg bone which had not properly healed after the first surgery. No medical testimony was elicited at the hearing, and the claimant and his wife were the only witnesses to testify, the claimant testified to the fracas in the bar which resulted in his fall, and also testified that he broke the same leg that had been previously broken. He testified however, that it was broken -2- i n a d i f f e r e n t p l a c e . The medical r e p o r t s d i d n o t s u p p o r t h i s t e s t i m o n y t h a t h i s l e g bone was broken i n a d i f f e r e n t p l a c e . The employer c o n t e n d s t h a t c l a i m a n t d i d n o t s u s t a i n a new i n j u r y , and t h a t t h e f a l l d i d n o t a g g r a v a t e a p r e e x i s t i n g i n j u r y , and t h e r e f o r e t h a t he is n o t e n t i t l e d t o compensation. The r e c o r d b e f o r e u s c l e a r l y d e m o n s t r a t e s t h a t t h e employer d i d n o t p r e s e r v e h i s r i g h t t o contend b e f o r e u s t h a t t h e e v i d e n c e is i n s u f f i c i e n t a s a m a t t e r of law t o j u s t i f y t h e award o f b e n e f i t s t o c l a i m a n t . Nor can w e a g r e e t o t h e employer's c o n t e n t i o n t h a t t h e c l a i m a n t had s t i p u l a t e d t o t h e r e c e i p t of a d d i t i o n a l e v i d e n c e b e f o r e t h e Workers' Compensation Court. By s t i p u l a t i o n o f t h e p a r t i e s , t h i s c a s e was t r a n s f e r r e d from t h e District Court t o t h e Workers1 Compensation Court a f t e r t h e e f f e c t i v e d a t e of l e g i s l a t i o n c r e a t i n g t h e Workers' Compensation Court and e l i m i n a t i n g t h e D i s t r i c t Court from its role i n a p p e a l s from t h e Workers' Compensation D i v i s i o n . The a p p e a l had been pending i n D i s t r i c t Court, i n a dormant state, f o r a l m o s t t w o y e a r s . B e f o r e d e c i d i n g any of t h e i s s u e s on a p p e a l , however, t h e Workers' Compensation Court a s s i g n e d a h e a r i n g s o f f i c e r t o conduct a p r e t r i a l h e a r i n g i n B i l l i n g s . During t h e h e a r i n g , t h e employer contended t h a t t h e scope of review b e f o r e t h e Workers' Compensation Court would be t r i a l d e novo, and t h e r e f o r e t h a t t h e employer had t h e r i g h t to p r e s e n t e v i d e n c e n o t p r e v i o u s l y s u b m i t t e d t o t h e Workers' Compensation D i v i s i o n . The c l a i m a n t , on t h e o t h e r hand, a s s e r t e d t h a t review s h o u l d be c o n f i n e d s o l e l y t o t h e r e c o r d p r e v i o u s l y made b e f o r e t h e Workers1 Compensation D i v i s i o n . a The r e c o r d c l e a r l y r e f l e c t s t h a t c l a i m a n t f i r s t wanted/determination of t h e scope o f review, and t h a t a d d i t i o n a l e v i d e n c e o f f e r e d by t h e employer would be c o n d i t i o n e d upon t h a t r u l i n g . .Obviously, i f t h e c o u r t r u l e d t h a t t r i a l or review was on t h e r e c o r d o n l y , claimant would resist the employer's attempt to supplement the evidentiary record. The minutes of the hearings officer reflect that the employer persisted also in its contention that the evidence presented before the Workers' Compensation Division was insufficient as a matter of law to justify an award to the claimant. Thereafter, on November 30, 1976, a hearing was held in Helena, attended only by counsel for the employer and the Workers' Compensation judge. Claimant did have notice however, and raised no objections to the hearing. The employer's counsel was clearly aware that a ruling would be made sometime after the hearing, but the record is silent as to any indication that the employer wanted a ruling on the sufficiency of the evidence presented by the claimant at the hearing before the Workers' Compensation Division. The only issue discussed was whether the Workers' Compensation Court would permit the employer to present additional evidence. After an extended discussion between the court and the employer's counsel, the court indicated that it was going to sign an order dismissing the appeal and affirming the award of compensation benefits. We note in this regard, that the insurer had already paid the claimant's medical benefits. Accordingly, on December 7, 1976, the court entered its order dismissing the appeal and affirming the award of compensation to the claimant. In the order of dismissal the Workers' Compensation Court specifically noted that "at the hearing [between the court and employer's counsel] the only issue before the Court to be decided was whether there should be a trial de novo." After noting that it had reviewed the file and the documents therein, the court concluded "that the trial de novo would serve no useful purpose, . . ." As we previously noted, our own review of the file indicates that trial de novo was the only issue presented to the Workers' Compensation Court. At the December 7 hearing, the employer -4- at no time requested the court to review the sufficiency of the evidence to sustain claimant's award. For this reason, it is clear to us that the sufficiency of the evidence is not properly before this Court on appeal. As to the issue of trial de novo, the employer does not contend that the Workers' Compensation Court was compelled as a matter of law to permit the employer to open its evidentiary record. Rather, the sole contention is that claimant's counsel had stipulated ioatrial de novo. As we have already indicated, however, the employer has sorely misconstrued the record made before the hearings officer at the pretrial conference. There is no such stipulation. We note, moreover, that the employer was not denied an opportunity before the Workers' Compensation ~ivision to have either the claimant or his presurgical and postsurgical x-rays examined by the employer's own medical experts, and to either submit testimony or medical reports based upon such examination. Having failed to do so, we do not see how the employer is now in a position to complain. The decision of the Workers' Compensation Court is affirmed. We Concur: ....................... Chief Justice !a,lL*.- c ),LJ ..................... - J Justices 3 -5- Mr. Chief Justice Frank I. Haswell, deeming himself disqualified, did not participate in this case. | October 25, 1979 |
3d6423ca-1fbc-4965-96b3-96105c98833e | STATE v NELSON | N/A | 14848 | Montana | Montana Supreme Court | No. 14848 I N T H E SUPREME C O U R T O F THE STATE O F M O N T A N A 1979 THE STATE O F M O N T A N A , P l a i n t i f f and Respondent, V S . MARK T H O M A S NELSON, Defendant and Appellant. Appeal from: D i s t r i c t Court o f t h e Eleventh J u d i c i a l D i s t r i c t , Honorable Robert Sykes, Judge p r e s i d i n g . Counsel of Record: For Appellant: F i s h e r and Erickson, Whitefish, Montana Leif B. Erickson argued, Whitefish, Montana H. L. Garnaas, Missoula, Montana Hash, J e l l i s o n , O'Brien and B a r t l e t t , K a l i s p e l l , Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Mary B. Troland argued, A s s i s t a n t Attorney General, Helena, Montana Ted Lympus, County Attorney, K a l i s p e l l , Montana Submitted: November 8, 1979 Decided: b T C 1 4 7979 F i l e d : ccc 4 IW. M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court. ~ e f e n d a n t was charged by information f i l e d i n t h e ~ i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t of the S t a t e of Montana, i n and f o r t h e County of Flathead, with t h e offense of aggravated a s s a u l t . During h i s arraignment, defendant pleaded g u i l t y t o t h e charge. The plea was accepted a t a l a t e r hearing held t o determine the f a c t s which w e r e t h e b a s i s of t h e g u i l t y plea. Subsequently, t h e D i s t r i c t Court r u l e d t h a t t h e mandatory minimum two-year sentence provision of s e c t i o n 45-5-202(2), MCA, applied, and t h e c r i t e r i a f o r t h e exceptions t o t h e mandatory two-year sentence found i n s e c t i o n 46-18-222, MCA, had n o t been m e t . A sentence of twenty years i n t h e s t a t e prison, with a l l b u t t h r e e years suspended, w a s imposed. Defendant then f i l e d an appeal from t h e finding t h a t the mandatory minimum two-year sentence applied i n h i s case. Thereafter, defendant f i l e d a motion with t h e D i s t r i c t Court requesting leave t o with- draw h i s plea of g u i l t y t o t h e offense of aggravated a s s a u l t and e n t e r a plea of n o t g u i l t y . This motion was denied and sentence imposed. Defendant appeals from t h e judgment. O n September 17, 1978, t h e d a t e of t h e a s s a u l t , defen- d a n t began drinking e a r l y i n the day. H e w a s depressed due t o a f i g h t with h i s g i r l f r i e n d and during t h e day, he con- sumed approximately one p i n t of 100-proof vodka and some p r e s c r i p t i o n sleeping p i l l s while only e a t i n g a hamburger. A s a r e s u l t of t h i s combination of alcohol, drugs and lack of food, defendant became intoxicated. Sometime during t h e morning defendant was informed t h a t a 9mm automatic p i s t o l he had loaned t o a f r i e n d had been returned t o t h e f r i e n d ' s house. H e went t o h i s f r i e n d ' s house t o recover t h e p i s t o l and i t s accessories, which included a 14-shot c l i p and a shoulder h o l s t e r . For ease i n carrying t h e p i s t o l , he p u t t h e shoulder h o l s t e r on and placed t h e p i s t o l i n it. Later t h a t morning he loaded t h e c l i p and went o u t t o take t a r g e t p r a c t i c e . During t h i s p r a c t i c e he f i r e d t h r e e o r four s h o t s and then placed t h e weapon i n t h e h o l s t e r . Apparently, t h e p i s t o l w a s s t i l l i n a cocked p o s i t i o n when it w a s returned t o t h e h o l s t e r . After t h e t a r g e t p r a c t i c e defendant drove t o h i s trailer home located on LaSalle Road across from a C i r c l e K s t o r e t o take a nap. He s l e p t u n t i l l a t e afternoon and upon waking, decided t o call h i s g i r l f r i e n d . Having no phone i n h i s t r a i l e r , he walked across t h e street t o t h e C i r c l e K s t o r e t o make t h e c a l l . H e w a s s t i l l carrying t h e p i s t o l i n t h e shoulder h o l s t e r . By t h e t i m e defendant l e f t t h e C i r c l e K s t o r e , it had become dark. A s he w a s recrossing LaSalle Road t o r e t u r n t o h i s trailer, a pickup truck approached t r a v e l i n g south. A t t h i s p o i n t t h e r e a r e two d i f f e r i n g versions of t h e f a c t s t h a t occurred. The f i r s t version i s t h a t of t h e d r i v e r of t h e pickup truck, Harold Keller. Keller t e s t i f i e d t h a t he w a s driving h i s pickup south on LaSalle Road near t h e C i r c l e K when a man, later i d e n t i f i e d as defendant, wandered across t h e street i n f r o n t of h i s truck. Keller stopped h i s truck t o allow t h e man t o c r o s s i n f r o n t of him. K e l l e r maintains defendant w a s swearing and waving h i s arms and pounded on t h e hood of t h e vehicle. K e l l e r proceeded t o d r i v e away when defendant s t a r t e d y e l l i n g and swearing. K e l l e r stopped h i s truck and looked through the back window a t defendant who w a s j u s t behind t h e truck. K e l l e r t e s t i f i e d t h a t defen- d a n t reached i n t o h i s pocket, pulled o u t a gun and f i r e d . A s t h e gun f i r e d , defendant f e l l over backwards and t h e gun s l i d o f f t h e road. Keller then sped o f f and c a l l e d t h e police. Keller t e s t i f i e d t h a t he thought defendant was e i t h e r drunk o r o u t of h i s mind. A t t h e t i m e of t h e shooting, defendant w a s about t e n f e e t away from where Keller was s i t t i n g i n h i s truck. However, t h e s l u g d i d n o t s t r i k e t h e pickup nor d i d it i n j u r e anyone, nor w a s it found. Defendant's version of t h e f a c t s only d i f f e r s on a few key p o i n t s . He t e s t i f i e d t h a t K e l l e r y e l l e d and swore a t him a s he went by and t h a t he f i r s t thought t h e r e w e r e two people i n t h e truck. When t h e pickup stopped he thought he was i n danger. H e t e s t i f i e d t h a t he pulled o u t t h e p i s t o l t o show t h e people i n t h e truck t h a t he had something with which t o p r o t e c t himself. I n t h e a c t of p u l l i n g it o u t , he dropped t h e gun and being i n a cocked p o s i t i o n , it f i r e d on h i t t i n g t h e ground. H e t e s t i f i e d he had n o t intended t o shoot t h e gun a t a l l when p u l l i n g it o u t and t h e discharge w a s a c c i d e n t a l . O n November 27, 1978, defendant was charged i n ~ i s t r i c t Court with t h e offense of aggravated a s s a u l t i n v i o l a t i o n of s e c t i o n 94-5-202(1)(c), R.C.M. 1947 (now s e c t i o n 45-5- 202 (1) ( c ) , MCA) , by f i r i n g a p i s t o l a t Harold Keller. The defendant w a s arraigned on January 22, 1979. A t t h a t t i m e he s t a t e d he wished t o plead g u i l t y . The t r i a l judge, on f i n d i n g t h a t a f a c t u a l b a s i s was necessary p r i o r t o accep- t i n g defendant's p l e a , questioned him a s t o t h e events culminating i n t h e aggravated a s s a u l t charge. ~ e f e n d a n t r e p l i e d t h a t h i s memory of events w a s unclear because of h i s l e v e l of i n t o x i c a t i o n a t t h e t i m e of t h e c r i m e . H e d i d s t a t e , however, t h a t he had been carrying a gun on t h e n i g h t i n question and t h a t t h e weapon had been discharged. The t r i a l judge a t t h a t point declined f i n a l acceptance of defendant's g u i l t y plea u n t i l a more adequate f a c t u a l b a s i s could be established. O n February 16, 1979, t h e arraignment was continued. A t t h a t t i m e Harold Keller t e s t i f i e d a s t o h i s version of t h e incident. Defendant declined t o cross-examine Keller and d i d n o t present evi- dence. The t r i a l judge accepted defendant's g u i l t y plea, finding t h a t t h e r e w a s s u f f i c i e n t f a c t u a l b a s i s f o r such action. The judge a l s o made reference t o t h e f a c t t h a t t h e g u i l t y plea w a s entered i n accordance with a plea bargain arrangement whereby t h e S t a t e agreed t o drop c e r t a i n charges i n j u s t i c e c o u r t i n r e t u r n f o r t h e e n t r y of t h e plea t o t h e aggravated a s s a u l t charge. O n May 29, 1979, a hearing was held f o r evidence i n aggravation and mitigation of sentence. During t h i s hearing defendant, f o r t h e f i r s t t i m e , revealed h i s version of t h e incident. I n addition t o t h e testimony of defendant, of defendant's character witnesses, and of t h e victim, the t r i a l judge a l s o had before him, a t t h e sentencing hearing, a presentence r e p o r t and an evaluation r e p o r t from t h e s t a t e p r i s o n where defendant had been given a 45-day evaluation. Based on t h i s evidence, t h e t r i a l judge sentenced defendant t o twenty years i n t h e state prison, a l l b u t t h r e e sus- pended. I n doing so, t h e judge s p e c i f i c a l l y found t h a t defendant w a s s u b j e c t t o t h e mandatory minimum sentence of t h e aggravated a s s a u l t s t a t u t e . O n J u l y 11, 1979, a hearing w a s held on defendant's motion t o withdraw h i s p l e a of g u i l t y and e n t e r a p l e a of n o t g u i l t y . The motion w a s based on t h e a l l e g a t i o n t h a t t h e p l e a was i n v a l i d because defendant had n o t admitted t h e f a c t s of t h e crime as a s s e r t e d by t h e victim. The t r i a l judge denied t h e motion r u l i n g t h e r e was an adequate f a c t u a l b a s i s f o r acceptance of t h e p l e a based on defendant's and t h e v i c t i m ' s testimony a t t h e arraignment. Defendant ap- p e a l s both h i s sentence and t h e d e n i a l of h i s motion t o withdraw h i s p l e a of g u i l t y . Two i s s u e s a r e presented t o t h i s Court f o r review: 1. Did t h e D i s t r i c t Court err i n accepting t h e g u i l t y p l e a entered by defendant? Did t h e D i s t r i c t Court err i n determining t h a t t h e mandatory two-year sentence provision f o r aggravated a s s a u l t under s e c t i o n 45-5-202(2), MCA, applied under t h e f a c t s of t h i s case? The f i r s t i s s u e t o be resolved i s whether t h e District Court e r r e d i n denying defendant's motion t o withdraw h i s g u i l t y plea. General p r i n c i p l e s governing t h e withdrawal of a g u i l t y p l e a are w e l l s e t t l e d . A r t i c l e 11, Sections 24 and 26, 1972 Montana Constitution, p r o t e c t t h e r i g h t of a criminal defendant t o a t r i a l by jury. Section 46-12-204, MCA, states i n p e r t i n e n t p a r t : " (1) The defendant s h a l l e n t e r a p l e a of g u i l t y o r n o t g u i l t y t o t h e indictment, information o r complaint. I f t h e defendant r e f u s e s t o plead t o t h e indictment, information, o r com- p l a i n t , a p l e a of n o t g u i l t y must be entered. " ( 2 ) The c o u r t may r e f u s e t o a c c e p t a p l e a of g u i l t y and s h a l l n o t accept t h e p l e a of g u i l t y without f i r s t determining t h a t t h e p l e a is voluntary with an understanding of t h e charge." Further, section 46-16-105(2), MCA, provides: "At any time before or after judgment the court may, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." There is no precise rule which can be relied upon in any given case to withdraw a guilty plea. State v. Lewis (1978) Mont. , 582 P.2d 346, 352, 35 St.Rep. 1089, 1096. Each case must be examined on its own record. State v. Griffin (1975), 167 Mont. 11, 21, 535 P.2d 498, 503. We must rely on the discretion of the trial court. ". . . That discretion is subject to review only upon the showing of an abuse of discretion." State v. Lewis, supra, "'A plea of guilty will be deemed involuntary where it appears that the defendant was labor- ing under such a strong inducement, fundamental mistake, or serious mental condition that the possibility exists he may have plead guilty to a crime of which he is innocent.' . . . "If, however, there is any doubt that a plea is not voluntary, the doubt should be resolved in the defendant's favor. On application to change a plea, all doubts should be resolved in favor of a trial on the merits." State v. Huttinger (1979) Mont. , 595 P.2d 363, 367, 36 St-Rep. 945. (Citations omitted.) In Huttinger this Court held that there are three important considerations involved in a criminal defendant's attempt to withdraw a previously entered plea of guilty: ". . . (1) the adequacy of the interrogation by the District Court of the defendant at the entry of the guilty plea as to the defendant's understanding of the consequences of his plea, (2) the promptness with which the defendant attempts to withdraw the prior plea, and (3) the fact that the defendant's plea was appar- ently the result of a plea bargain in which the guilty plea was given in exchange for dis- missal of another charge. . ." 595 P.2d at 366. Here, w e a r e only concerned with t h e f i r s t f a c t o r a s defendant's motion t o withdraw h i s p l e a w a s timely and t h e c o u r t refused t o accept t h e plea bargain agreement when presented t o t h e court. While t h e i n t e r r o g a t i o n here w a s more complete than i n Huttinger, defendant d i d n o t admit t h a t he had comrni t t e d aggravated a s s a u l t , nor d i d he declare t h e f a c t s upon which h i s p l e a of g u i l t y w a s based. Here, the i n t e r r o g a t i o n by t h e judge concerning t h e incident went as follows: "THE COURT: You a r e aware of t h e nature of t h i s charge a g a i n s t you and t h a t it could be up t o 20 years a t hard labor i n the S t a t e Prison? "THE DEFENDANT: Y e s , sir. "THE COURT: A r e you s a t i s f i e d with t h e s e r v i c e s rendered by your attorney, M r . B a r t l e t t ? "THE DEF,ENnANT: Y e s j . sir. "THE COURT: M r . B a r t l e t t , a r e you s a t i s f i e d t h a t t h e Defendant i s entering t h i s plea volun- t a r i l y ? "MR. BARTLETT: Y e s , sir. "THE COURT: Now, even though you have t h e r i g h t t o remain s i l e n t , as I s t a t e d , I won't accept a p l e a of g u i l t unless t h e r e i s a f a c t u a l b a s i s j u s t i f y i n g such plea, so I ' m going t o ask you, d i d you, on September 17, 1978, discharge a Smith & Wessons Model 59 p i s t o l a t a Harold Keller? "THE DEFENDANT: I w a s highly intoxicated a t t h e t i m e , your Honor, and I ' m n o t sure--I d o n ' t re- c a l l t h e a c t u a l events t h a t happened. "THE COURT: Did you have a p i s t o l with you? "THE DEFENDANT: Y e s , sir. "THE COURT: And was it discharged? "THE DEFENDANT: Yes, sir. "THE COURT: Now, p r i o r t o t h i s t i m e , I assume t h a t your attorney knew of--had access t o t h e County Attorney's f i l e a s t o t h e p o l i c e i n v e s t i - gation? "THE DEFENDANT: Y e s , sir. "THE COURT: What had you been drinking at the time? "THE DEFENDANT: Vodka and orange juice. "THE COURT: And how long? "THE DEFENDANT: About 12, 14 hours. "THE COURT: Now, who else was there, do you recall? "THE DEFENDANT: No, just myself. "THE COURT: Do you know where the gun was dis- charged from? "THE DEFENDANT: Yes, sir. "THE COURT: And where was it? "THE DEFENDANT: On LaSalle Road. "THE COURT: And why was it discharged, do you know? "THE DEFENDANT: No, sir. "THE COURT: Who is Allen Baker? "THE DEFENDANT: I have no idea, sir. "THE COURT: Harold Keller? "THE DEFENDANT: I don't know him either. "THE COURT: You have never met him before? THE DEFENDANT : No. "THE COURT: But this was the person involved with the discharge of the gun? "THE DEFENDANT: Yes, sir. "THE COURT: Well, under these circumstances, at the time of the hearing, I think that Mr. Keller should be here in order that the circumstances be more fully known to the Court. . ." The court at this time properly refused to accept defendant's guilty plea. It did, however, accept it without further interrogation of defendant after hearing the testi- mony of the victim on March 8, 1979. While this case involves an aggravated assault, it has the same problems and defects that were pointed out in State v. Azure (1977), - Mont. , 573 P.2d 179, 34 St.Rep. 1569, and reiterated in Huttinger. Here, defendant was not made aware of the differing elements of assault as set forth in sections 45-5-201 and 45-5-202, MCA. The District Court had before it evidence indicating the defendant was under the influence of a com- bination of drugs and alcohol and was possibly suffering from mental distress or instability. These mitigating circumstances may have prevented the defendant from being able to commit an aggravated assault as defined by statute. " ' * * * Real notice and understanding by a defen- dant of the true nature of the charge against him is the first and most universally recognized requirement of due process * * * understanding of the nature of the charge is indispensable to a valid plea of guilty * * * ' " State v. Azure, supra, 573 P.2d at 183. The transcripts indicate defendant actually remembered the facts surrounding the alleged assault. From statements made by his original counsel, it appears defendant testified contrary to these facts because of his mistaken interpreta- tion of counsel's advice that he was to advise the court he was too intoxicated to remember the details surrounding the alleged assault. It appears that defendant, who was a newcomer to the criminal justice system, clearly misunder- stood not only the advice of counsel, but the ramifications of failing to tell the truth. The attorney, however, should have taken steps to protect his client from a situation of this kind, if not immediately, at least before the second hearing. Matters were further complicated, however, when defen- dant's original attorney became ill and one of his associ- ates, who was unfamiliar with the facts, assumed the case shortly before the second hearing. At the second hearing, no evidence was introduced by defense counsel t o c o n t r a d i c t t h e testimony of t h e victim, although defendant c l e a r l y had a d i f f e r e n t version of t h e incident. The judge accepted t h e p l e a without ever hearing defendant's version. This i s an unfortunate chain of circumstances which should n o t happen i n our criminal j u s t i c e system. I f t h e matter was properly understood by t h e judge i n the f i r s t i n s t a n c e , it i s conceivable t h a t t h e judge would n o t have accepted defendant's p l e a , t h e r e being r e a l questions con- cerning whether o r n o t an aggravated a s s a u l t was a c t u a l l y committed. The second i s s u e before t h i s Court i s whether t h e D i s t r i c t Court e r r e d i n determining t h a t t h e mandatory two- year sentence provision f o r aggravated a s s a u l t under s e c t i o n 45-5-202(2), MCA, must apply here. Section 45-5-202(2), MCA, s t a t e s : "A person convicted of aggravated a s s a u l t s h a l l be imprisoned i n t h e s t a t e p r i s o n f o r a t e r m of n o t less than 2 y e a r s o r more than 20 years, except a s provided i n 46-18-222." Section 46-18-222, MCA, provides i n p e r t i n e n t p a r t : "All mandatory minimum sentences prescribed by t h e laws of t h i s s t a t e . . . do n o t apply i f : " ( 2 ) t h e defendant's mental c a p a c i t y , a t t h e t i m e of t h e commission of t h e o f f e n s e f o r which he i s t o be sentenced, was s i g n i f i c a n t l y impaired, although n o t s o impaired a s t o c o n s t i t u t e a de- fense t o t h e prosecution; " ( 5 ) where applicable, no s e r i o u s bodily i n j u r y w a s i n f l i c t e d on t h e victim." Both p a r t i e s agree t h a t t h e D i s t r i c t Court e r r e d and t h a t t h e exemptions enumerated above apply. The t r a n s c r i p t s are r e p l e t e with testimony t h a t t h e defendant w a s very drunk on t h e n i g h t of t h e i n c i d e n t . This testimony, however, may be viewed d i f f e r e n t l y by reasonable men as it concerns i n t e n t . Y e t , whether defendant could o r could n o t form t h e necessary i n t e n t i s of no consequence here, as t h e exception i n subsection (5) above enumerated i s applicable. Although a loaded weapon was involved and although s e c t i o n 46-18-221(1), MCA, provides f o r a minimum sentence f o r crimes committed with a firearm, t h i s s e c t i o n i s a l s o s u b j e c t t o t h e exceptions of s e c t i o n 46-18-222. I n t h e l a s t l e g i s l a t i v e session, s e c t i o n 46-18-222(5) was amended s o t h a t t h e exception involving absence of s e r i o u s bodily i n j u r y i s i n a p p l i c a b l e i f a weapon i s used i n t h e c r i m e , even i f no s e r i o u s bodily i n j u r y i s i n f l i c t e d . Chapter 396, Section 1, Laws of Montana (1979). This amend- ment, however, d i d n o t become e f f e c t i v e u n t i l J u l y 1, 1979, and t h e r e f o r e cannot be r e t r o a c t i v e l y applied t o persons committing crimes p r i o r t o t h a t d a t e . S t a t e v. Azure, supra, 587 P.2d a t 1297. Therefore, on t h e f a c t s and t i m e frame of t h i s case, t h e D i s t r i c t Court e r r e d i n finding s e c t i o n 46-18-222(5) inapplicable. The judgment of t h e D i s t r i c t Court i s reversed, and t h e sentence imposed on t h a t judgment vacated and s e t a s i d e . The cause i s remanded t o t h e D i s t r i c t Court with i n s t r u c t i o n s t o permit defendant t o withdraw h i s previously entered p l e a of g u i l t y and e n t e r h i s p l e a of n o t g u i l t y t o t h e crime charged. We concur: ' ; t Chief Justice | December 14, 1979 |
1b957cf8-1773-44ed-9fe9-51c765edc7a8 | TOBACCO RIVER LUMBER CO INC v | N/A | 14785 | Montana | Montana Supreme Court | No. 14785 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 TOBACCO RIVER LUMBER COMPANY, INC . , a Montana corporation, Plaintiff and Appellant, VS. LOUIS A. YOPPE et al., Defendants and Respondents. Appeal from: District Court of the Nineteenth Judicial District, Honorable Robert M. Holter, Judge presiding. Counsel of Record: For Appellant: Robert S. Keller argued, Kalispell, Montana For Respondents: Fennessy, Crocker, Harman & Bostock, Libby, Montana Thomas R. Bostock argued, Libby, Montana Submitted: November 1, 1979 Decided : M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court. P l a i n t i f f Tobacco River Lumber Company, Inc., f i l e d an a c t i o n a g a i n s t defendants Yoppe a l l e g i n g i n Count I an a c t i o n f o r damages f o r a delay i n deeding real property t o p l a i n t i f f , and a l l e g i n g i n Count I1 an a c t i o n f o r damages f o r t h e c o s t of a survey with r e s p e c t t o t h e property re- f e r r e d t o i n t h e c o n t r a c t f o r deed. The matter was t r i e d before a jury i n December 1978 i n t h e D i s t r i c t Court of t h e Nineteenth J u d i c i a l D i s t r i c t of t h e S t a t e of Montana, i n and f o r t h e County of Lincoln. The jury awarded no damages f o r t h e delay i n Count I and one-half of t h e survey c o s t s i n Count 11. P l a i n t i f f t h e r e a f t e r moved f o r a new t r i a l as t o both counts, b u t t h e c o u r t denied t h e motion. P l a i n t i f f appeals from t h e f i n a l judgment and o r d e r s denying t h e motion f o r a new t r i a l . P l a i n t i f f - a p p e l l a n t , a Montana corporation primarily engaged i n t h e wood products i n d u s t r y , negotiated with defendants-respondents f o r t h e purchase of an i r r e g u l a r l y shaped tract of land of approximately 400 a c r e s s i t u a t e d near Eureka, Montana. These n e g o t i a t i o n s r e s u l t e d i n t h e execution of a c o n t r a c t f o r deed dated June 1, 1966. The purchase p r i c e w a s paid on o r about January 31, 1972. According t o t h e t e r m s of t h e c o n t r a c t f o r deed, t h e Yoppes were t o provide Tobacco River with a warranty deed conveying t i t l e t o t h e property and a p o l i c y of t i t l e insurance a t t h e t i m e of t h e l a s t payment o r within a reasonable t i m e t h e r e a f t e r , such period n o t t o exceed 60 days. The Yoppes provided Tobacco River with a warranty deed on May 1 4 , 1974, and t i t l e insurance on June 6, 1974. A t t h e t i m e of t h e f i n a l payment, t h e Yoppes requested t h e i r a t t o r n e y , Joseph F. Fennessy, Jr., of Libby, Montana, t o prepare a deed and o b t a i n t i t l e insurance. The l e g a l d e s c r i p t i o n i n t h e c o n t r a c t f o r deed w a s compiled from various t a x n o t i c e s and d i d n o t g i v e a s u f f i c i e n t l e g a l d e s c r i p t i o n . The t i t l e company, t h e r e f o r e , requested a survey. The Yoppes took s t e p s t o arrange f o r a survey i n A p r i l 1973 when M r s . Yoppe contacted a surveyor from M i s - soula who agreed t o do a boundary survey f o r her. By t h i s t i m e Tobacco River had constructed homes on t h e premises and d e s i r e d t o have an i n t e r i o r survey of t h e various t r a c t s involved. Tobacco River contacted t h e s a m e surveyor f o r an i n t e r i o r survey, with a r e q u e s t , and an agreement, t h a t t h e survey would be completed before J u l y 1, 1973, when t h e new Montana Subdivision and P l a t t i n g Act would t a k e e f f e c t . I n mid-June, however, t h e Missoula surveyor informed t h e p a r t i e s t h a t he had n o t been a b l e t o g e t t o t h e survey because of t h e p r e s s of business and would n o t be a b l e t o before J u l y 1, 1973. The p r e s i d e n t of Tobacco River then obtained t h e s e r v i c e s of a surveyor from B i l l i n g s who proceeded with d i s p a t c h t o do t h e boundary survey and t h e i n t e r i o r survey and f i n i s h e d t h e surveys i n September 1973. H e submitted a b i l l f o r t h e i n t e r i o r survey, which w a s paid by Tobacco River, and he submitted a b i l l f o r t h e e x t e r i o r survey, which w a s n o t paid by t h e Yoppes o r anyone else. Because of t h e f a i l u r e t o pay, t h e e x t e r i o r survey was n o t f i l e d by t h e surveyor, and no deed could be delivered. I n May 1974, t h e Yoppes' a t t o r n e y prepared a deed from t a x n o t i c e s , t h e Lincoln County tract book, and o t h e r papers, which provided f o r 379 a c r e s , more o r l e s s . his was pos- s i b l e a s s e c t i o n 11-614, R.C.M. 1947, had been repealed. The deed was recorded on May 1 4 , 1974. A t t h e same t i m e , t h e t i t l e company issued a policy of t i t l e insurance e f f e c - t i v e May 1 4 , 1974, using t h e l e g a l d e s c r i p t i o n prepared by t h e ~ i l l i n g s surveyor and contained i n t h e u n f i l e d survey, r e f l e c t i n g 357.77 a c r e s . The policy of t i t l e insurance w a s d e l i v e r e d t o Tobacco River on June 6, 1974. There i s no evidence t h a t t h e boundary survey was ever f i l e d . Three major a r e a s of c o n f l i c t e x i s t between t h e p a r t i e s regarding t h e d e t a i l s of t h e survey and t h e circumstances under which it was conducted. F i r s t , with r e s p e c t t o t h e area of land t o be surveyed, a p p e l l a n t i n s i s t s t h a t respon- d e n t s requested a survey of t h e e n t i r e p a r c e l of land. Respondents, however, contend t h a t they requested a survey of only a p a r t i c u l a r problem area of t h e land, t h e meander l i n e of t h e Tobacco River, and t h a t a p p e l l a n t requested a survey of t h e remainder. Second, with r e s p e c t t o t h e c i r - cumstances under which t h e survey w a s conducted, respondents i n s i s t t h a t t h e surveyor gave a p p e l l a n t an estimate regard- i n g t h e c o s t s of t h e survey before contacting respondents. Appellant a l l e g e s t h a t respondents w e r e furnished an e s t i - m a t e of t h e c o s t s a f t e r t h e surveyor had contacted t h e respondents. F i n a l l y , a p p e l l a n t a l l e g e s and respondents deny t h a t respondents had knowledge of a survey conducted by a second surveyor h i r e d by appellant. The estimate given by t h e o r i g i n a l surveyor w a s $2,000 f o r t h e boundary survey. The survey b i l l i n question t o t a l e d $4,323.63 f o r t h e e x t e r i o r survey. Counsel f o r both p a r t i e s agreed t h a t t h e claim f o r damages i n Count I would c o n s i s t s o l e l y of t h e i n t e r e s t on t h e purchase p r i c e f o r two and one-half years. The i s s u e s presented t o t h i s Court on appeal are: 1. W a s t h e v e r d i c t of t h e jury as t o Counts I and I1 supported by s u b s t a n t i a l evidence and t h e l a w of t h e case? 2. Did t h e D i s t r i c t Court err i n f a i l i n g t o g r a n t p l a i n t i f f ' s motion f o r a d i r e c t e d v e r d i c t as t o Counts I and I I ? 3. Did t h e D i s t r i c t Court err i n refusing p l a i n t i f f ' s proposed I n s t r u c t i o n No. 15 and i n giving I n s t r u c t i o n No. There are pages upon pages of charges and counter- charges made i n t h e b r i e f s which would compel a much longer opinion than i s warranted by the l a w and f a c t s involved here i f w e were t o dignify most of them with extended discussion. Aside from t h e f a c t t h a t respondents a r e responsible, under t h e c o n t r a c t , t o f u r n i s h t i t l e and insurance which could n o t be accomplished without a survey, t h e c o u r t gave t o t h e jury I n s t r u c t i o n No. 13: "You are i n s t r u c t e d t h a t the laws which e x i s t a t t h e time and place of making of a c o n t r a c t , and where it i s t o be performed, e n t e r i n t o and form p a r t of it, as i f they w e r e expressly r e f e r r e d t o o r incorporated i n i t s terms." This w a s followed by t h e controversial I n s t r u c t i o n No. 1 4 , which i s confusing b u t i s the s t a t u t e , s e c t i o n 11-614, R.C.M. 1947, and states t h e l a w i n existence a t t h e t i m e of t h e making and o r i g i n a l performance d a t e of t h i s contract. I n p a r t it simply s t a t e s : "Any person who d e s i r e s t o . . . sell o r t r a n s f e r any i r r e g u l a r l y shaped t r a c t of land, t h e acreage which cannot be determined without a survey, must cause t h e s a m e t o be surveyed, p l a t t e d , c e r t i f i e d , and f i l e d i n t h e o f f i c e of t h e county c l e r k and recorder of t h e county i n which s a i d land lies, . . . before any p a r t o r - portion of t h e same is s o l d o r transferred; . . . It i s unlawful - f o r % f u r t h e r s a l e s t o be made without f u l l compliance with t h e provisions of t h i s chapter, and t h e sur- veying and p l a t t i n g of t h e whole t r a c t . . ." (Emphasis added.) The s t a t u t e goes on and s t a t e s t h a t t h e county c l e r k and recorder s h a l l n o t record any deed which purports t o convey any i r r e g u l a r l y shaped tract unless t h e A c t has been com- p l i e d with. I n s t r u c t i o n No. 16 leaves l i t t l e doubt as t o t h e respon- s i b i l i t y of t h e p a r t i e s : "You a r e i n s t r u c t e d t h a t the c o n t r a c t provided t h a t Defendants Yoppe would f u r n i s h a policy of t i t l e insurance; i f you f i n d t h a t they could n o t g e t a policy of t i t l e insurance without a survey, then you must f i n d t h a t they a r e l i a b l e f o r t h e reasonable c o s t of such survey." The p a r t i e s agree t h a t t h e parcel of land i s i r r e g u l a r . Section 11-614, R.C.M. 1947, i n f o r c e a t t h e t i m e , does apply t o t h i s kind of a land t r a n s f e r , i.e., i r r e g u l a r and unable t o compute acreage without a survey. The c o u r t , by i t s own i n s t r u c t i o n and t h e evidence i n t h e record, should have granted a d i r e c t e d v e r d i c t on Count I as a m a t t e r of law. F a i l u r e t o do so i s r e v e r s i b l e e r r o r . The jury ver- d i c t on Count I w a s rendered contrary t o t h e evidence and t h e l a w of t h e case. Regarding Count 11, t h e r e i s j u s t no s u b s t a n t i a l credi- b l e evidence t o support a " s p l i t " of t h e f e e due t h e second surveyor i n equal p a r t s a s w a s done by t h i s jury. N o surveyor o r any o t h e r witnes3 t e s t i f i e d a s t o any division. Attorney Joe Fennessy t e s t i f i e d t h a t t h e p a r t i e s had agreed t o s p l i t t h e fee. There w a s testimony as t o estimates and a c t u a l c o s t s , b u t t h a t was a l l . Additionally, t h e c o u r t i n s t r u c t e d t h e jury on t h e law of t h e case as follows: "You a r e i n s t r u c t e d t h a t c o n t r a c t damages must be c l e a r l y a s c e r t a i n a b l e i n both t h e i r nature and o r i g i n ; damages which a r e n o t c l e a r l y as- c e r t a i n a b l e , o r which are a m a t t e r of m e r e speculation cannot be t h e b a s i s of recovery. A s applied t o t h i s case, the damages alleged by P l a i n t i f f must be c l e a r l y a s c e r t a i n a b l e , t h e o f f s e t s claimed by Defendants must a l s o be c l e a r l y ascertainable, and t h e burden is upon each p a r t y t o so prove, i n accordance with t h e s e i n s t r u c t i o n s . " This i n s t r u c t i o n a p p l i e s with equal f o r c e t o t h e argu- ment of f a i l u r e t o m i t i g a t e damages by respondents a g a i n s t t h e appellant. There was no s u b s t a n t i a l c r e d i b l e evidence on t h i s point. The value of the claimed o f f e r of a portion of t h e land was lacking. N o evidence of a formal tender t o a p p e l l a n t was ever shown. There w a s no a u t h o r i t y t o support t h e proposition t h a t under s e c t i o n 11-614, R.C.M. 1947, a portion of an i r r e g u l a r t r a c t could i n f a c t be offered o r t h a t a p p e l l a n t could be compelled t o accept less than i t s c o n t r a c t bargain o r be penalized f o r f a i l u r e t o m i t i g a t e damages . The holdings of t h i s Court on o t h e r i s s u e s do n o t warrant a discussion of I n s t r u c t i o n No. 15 and the proposed I n s t r u c t i o n No. 1 4 . W e would comment, however, t h a t while quoting a s t a t u t e verbatim may r e c i t e t h e applicable l a w , o f t e n t i m e s t h i s p r a c t i c e causes confusion. I n cases where multiple problems o r circumstances are within t h e same s t a t u t e , o r a s t a t u t e i s badly drawn, it i s f a r b e t t e r t o develop your own i n s t r u c t i o n . I n a c l o s e circumstance it could be e r r o r t o use t h e s t a t u t e , i f f o r no other reason than t h a t it has misled t h e jury. The judgment of t h e D i s t r i c t Court i s reversed with i n s t r u c t i o n s t o e n t e r judgment f o r a p p e l l a n t on Count I as a m a t t e r of law. Count I1 is remanded f o r a new t r i a l . J u s t i c e W e concur: 2 4.wccd4 Chief J ~ ~ s t i c e ( . - )bL L , )Li7 J u s t i c e s | November 21, 1979 |
037a7735-793d-45eb-b0b8-443e7aa367bc | ALLEN v FLATHEAD COUNTY | N/A | 14709 | Montana | Montana Supreme Court | No. 14709 IN THE SUPREME COURT OF THE STATE OF MONTANA DAVID G. ALLEN and ELEANOR M. ALLEN, husband and wife, Plaintiffs and Appellants, FLATHEAD COUNTY, a body corporate; and THE FLATHEAD COUNTY BOARD OF COMMISSIONERS, Defendants and Respondents. Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Sykes, Judge presiding. Counsel of Record: For Appellants: Astle and Astle, Kalispell, Montana ~illiam Astle argued, Kalispell, Montana For Respondents: Ted 0 . Lympus, County Attorney, Kalispell, Montana Jonathan B. Smith, Deputy County Attorney, argued, Kalispell, Montana Submitted: September 24, 1979 Decided: OCT 1.: 4979 Filed: g c T -- - 1 .- 4 9 ~ - M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. This i s a motion f o r declaratory judgment against respondents, Flathead County and i t s Board of County Com- missioners, t o have t h e Lower Valley Zoning D i s t r i c t and i t s zoning regulations declared i n v a l i d because of an alleged noncompliance with zoning enabling l e g i s l a t i o n under s e c t i o n 76-2-201, MCA. The p a r t i e s submitted an agreed statement of f a c t s and s t i p u l a t i o n of evidence. A county planning board w a s cre- a t e d f o r t h e purposes of planning and zoning i n Flathead County i n 1972. The j u r i s d i c t i o n a l a r e a of t h e county planning board was determined by r e s o l u t i o n of the commis- sioners and included a l l of Flathead County, except t h e corporate l i m i t s of the City of Columbia F a l l s . Within t h e j u r i s d i c t i o n a l a r e a , t h e commissioners created the Lower Valley Zoning D i s t r i c t and adopted several zoning regula- t i o n s based upon a plan of t h a t d i s t r i c t i n 1974. A t t h e t i m e of t h e adoption of t h e Lower Valley Zoning D i s t r i c t boundaries and regulations, the commissioners had not adopted a comprehensive development plan o r master plan f o r t h e e n t i r e Flathead County j u r i s d i c t i o n a l area. Appellants a r e owners of land s i t u a t e d i n t h e Lower Valley Zoning D i s t r i c t . Appellants made a request t o t h e Flathead County commissioners t o be eliminated from t h e zoning regulations of t h e d i s t r i c t . Their request, however, was denied. Appellants t h e r e a f t e r f i l e d a motion f o r de- c l a r a t o r y judgment i n D i s t r i c t Court t o have t h e Lower Valley Zoning D i s t r i c t and i t s zoning regulations declared i n v a l i d . Appellants claimed t h a t t h e r e was a f a i l u r e t o comply with procedures outlined i n zoning enabling l e g i s l a - t i o n under s e c t i o n 76-2-201, MCA. Harry Woll was granted permission t o intervene on behalf of t h e Flathead Lower Valley Committee. The D i s t r i c t Court found f o r respondents, and a p p e l l a n t s appealed. The s o l e i s s u e t o be decided i n t h i s appeal i s whether t h e D i s t r i c t Court e r r e d i n holding t h a t t h e Lower Valley Zoning D i s t r i c t and i t s zoning r e g u l a t i o n s were adopted i n s u f f i c i e n t compliance with t h e requirements of s e c t i o n 76-2- 201, MCA, and w e r e t h e r e f o r e v a l i d . Section 76-2-201, MCA, provides: "For t h e purpose of promoting t h e h e a l t h , s a f e t y , morals, and general welfare of t h e people i n c i t i e s and towns and counties whose governing bodies have adopted a comprehensive development p l a n f o r jur- i s d i c t i o n a l a r e a s pursuant t o chapter 1, t h e boards of county commissioners i n such counties are au- thorized t o adopt zoning r e g u l a t i o n s f o r a l l o r p a r t s of such j u r i s d i c t i o n a l a r e a s i n accordance with t h e provisions of t h i s p a r t . " Appellants argue t h a t t h e above s t a t u t e r e q u i r e s t h a t a comprehensive development plan o r master plan be adopted before counties are authorized t o adopt zoning r e g u l a t i o n s . Appellants maintain t h a t t h e Lower Valley D i s t r i c t Zoning Plan, upon which t h e zoning r e g u l a t i o n s of t h a t d i s t r i c t a r e based, i s n o t a comprehensive development plan a s contem- p l a t e d by t h e s t a t u t e . It i s argued t h a t t h e plan i s n o t s u f f i c i e n t because it i s based only upon a p a r t i c u l a r lo- c a l i t y . Therefore, a p p e l l a n t s contend, t h e zoning regula- t i o n s a r e invalid. Respondents maintain t h a t t h e Lower Valley D i s t r i c t Zoning Plan i s s u f f i c i e n t as a comprehensive development plan under s e c t i o n 76-2-201, MCA. Respondents contend t h a t a master plan o r comprehensive development plan, according t o t h e s t a t u t o r y d e f i n i t i o n , i s t h e plan i n i t s e n t i r e t y o r - of i t s p a r t s and t h a t t h e Lower Valley District Zoning -- Plan, as a mini or local comprehensive development plan, is sufficient as part of a greater comprehensive development plan under section 76-2-201, MCA. We find that the adoption of a comprehensive develop- ment plan is a necessary prerequisite under section 76-2- 201, MCA, for the adoption of county zoning regulations and that the Lower Valley District Zoning Plan fails to qualify as a "comprehensive development plan" as required by the statute. That the adoption of a comprehensive development plan is a prerequisite to adopting zoning regulations is self- evident from the clear and unambiguous language of section 76-2-201, MCA. Where the words of a statute are plain, unambiguous, direct and certain, it speaks for itself and there is nothing for the courts to construe. Jones v. Judge (1978) , Mont. , 577 P.2d 846, 848, 35 St.Rep. 460, 462. That the Lower Valley Zoning District Plan is insuffi- cient as a "comprehensive development plan," as contemplated by the statute, is equally clear. The plan, by the admis- sion of its own text, states that "as a comprehensive develop ment plan it will not suffice; thus, it is necessary to recognize that this plan will be subordinate to a complete comprehensive plan." Further, the plan cannot be brought within the statutory definition of a master plan or compre- hensive development plan as respondents contend. Section e r 76-l-b-l, MCA, defines a "master plan" as "a comprehensive development plan or any of its parts such as a plan of land use and zoning, of thoroughfares, of sanitation, of recre- ation, and of other related matters. " The Lower Valley Zoning District Plan is not part of a comprehensive develop- ment plan i n t h e same sense a s a plan of zoning would be t o a comprehensive development plan or a s a "chapter" would be t o a "book." Appellants a l s o contend t h a t t h e adoption of t h e Lower Valley D i s t r i c t Zoning Plan w a s i n s u f f i c i e n t f o r t h e adop- t i o n of zoning r e g u l a t i o n s under s e c t i o n 76-2-201, MCA, f o r another reason. They argue t h a t t h e plan must, b u t d i d n o t , include an e n t i r e j u r i s d i c t i o n a l area. Appellants maintain t h a t , s i n c e t h e commissioners designated t h e j u r i s d i c t i o n a l a r e a of t h e county planning board a s a l l of Flathead County except t h e C i t y of Columbia F a l l s , a comprehensive develop- ment plan under t h e s t a t u t e must include t h e e n t i r e Flathead County j u r i s d i c t i o n a l area. The Lower Valley Zoning D i s - t r i c t Plan, however, included only p a r t of t h a t a r e a . Respondents argue t h a t t h e Lower Valley D i s t r i c t Zoning Plan was s u f f i c i e n t under s e c t i o n 76-2-201, MCA. Respon- d e n t s contend t h a t t h e l e g i s l a t u r e provided f o r f l e x i b i l i t y i n planning and zoning and t h a t p a r t s of a county may be planned and o t h e r p a r t s l e f t unplanned. Respondents argue t h a t t h e adoption of a county-wide master plan is n o t a necessary p r e r e q u i s i t e f o r adopting v a l i d zoning r e g u l a t i o n s under t h e s t a t u t e . Resolving t h e s e contentions r e q u i r e s i n t e r p r e t i n g s e c t i o n 76-2-201, MCA. I n Mont. Depart. of Rev. v. Am. Smelting and Refining (1977), Mont. , 567 P.2d 901, 905-06, 34 St-Rep. 597, 602, we s t a t e d : "The function of t h e Supreme Court when constru- ing a s t a t u t e i s simply t o a s c e r t a i n and d e c l a r e what is i n substance s t a t e d t h e r e i n , and n o t t o i n s e r t what has been omitted o r omit what has been i n s e r t e d . [ C i t a t i o n s omitted. 1 The funda- mental r u l e of s t a t u t o r y construction i s t h a t t h e i n t e n t of t h e l e g i s l a t u r e c o n t r o l s . [Cita- t i o n s omitted. ] Where t h e i n t e n t of t h e l e g i s - l a t u r e can be determined from t h e p l a i n meaning of t h e words used, t h e c o u r t s may n o t go f u r t h e r and apply any o t h e r means of i n t e r p r e t a t i o n . " H e r e , s e c t i o n 76-2-201, MCA, s t a t e s t h a t a county i s authorized t o adopt zoning regulations when "governing bodies [of cities, towns and counties] have adopted a com- prehensive development plan f o r j u r i s d i c t i o n a l areas . . ." (Emphasis added.) Respondents contend t h a t t h e Lower Valley Zoning D i s t r i c t Plan i s s u f f i c i e n t although it takes i n t o consideration only p a r t of t h e j u r i s d i c t i o n a l area. The s t a t u t e does n o t s t a t e , however, t h a t a county is authorized t o adopt zoning regulations when governing bodies have adopted a comprehensive development plan f o r p a r t s of - j u r i s d i c t i o n a l areas. W e hold t h a t t h e c l e a r and unambiguous language of s e c t i o n 76-2-201, MCA, requires t h a t a county adopt a compre- hensive development plan f o r an e n t i r e j u r i s d i c t i o n a l area. Only a f t e r t h e adoption of such a plan may a county adopt zoning regulations. To i n t e r p r e t t h e s t a t u t e otherwise would go beyond t h e p l a i n meaning of the words and would reduce t h e t e r m s of t h e s t a t u t e t o nonsense. It would allow, f o r example, a comprehensive development plan t o be c a l l e d "comprehensive" when it took i n t o consideration only p a r t of something--namely, a j u r i s d i c t i o n a l area. Further, it would run contrary t o t h e p r i n c i p l e s of long-range plan- ning and zoning. W e hold t h a t t h e D i s t r i c t Court erred i n determining t h a t t h e Lower Valley District Zoning Plan and its zoning regulations were adopted i n s u f f i c i e n t compliance with s e c t i o n 76-2-201, MCA. The zoning regulations of t h e Lower Valley Zoning D i s t r i c t a r e therefore i n v a l i d . I n view of t h e p o t e n t i a l l y s e r i o u s consequences t h a t our decision might have f o r the c i t i z e n s and property owners of Flathead County, w e recommend t h a t t h e Flathead County commissioners t a k e n o t i c e of s e c t i o n 76-2-206, MCA, t h e provision f o r i n t e r i m zoning r e g u l a t i o n i n emergency cir- cumstances. That s t a t u t e provides a method by which F l a t - head County may begin developing a master p l a n t h a t w i l l comply with t h e t e r m s of t h e s t a t u t e without s u f f e r i n g any s e r i o u s detriment. Section 76-2-206, MCA, provides: " I n t e r i m zoning map o r regulation. (1) I f a county i s c o n d u c t i n g o r i n good f a i t h i n t e n d s t o conduct s t u d i e s within a reasonable t i m e o r has held o r i s holding a hearing f o r t h e pur- pose of considering a master plan o r zoning r e g u l a t i o n s o r an amendment, extension, o r ad- d i t i o n t o e i t h e r pursuant t o t h i s p a r t , t h e board of county commissioners i n o r d e r t o pro- mote t h e p u b l i c h e a l t h , s a f e t y , morals, and g e n e r a l welfare may adopt a s an emergency m e a - s u r e a temporary i n t e r i m zoning r e g u l a t i o n , t h e purpose of which s h a l l be t o c l a s s i f y and regu- l a n t uses and r e l a t e d m a t t e r s a s c o n s t i t u t e s t h e emergency. " ( 2 ) Such i n t e r i m r e s o l u t i o n s h a l l be l i m i t e d t o 1 year from t h e d a t e it becomes e f f e c t i v e . The board of county commissioners may extend such i n t e r i m r e s o l u t i o n f o r 1 year, b u t n o t more than one such extension may be made." The judgment of t h e District Court is reversed. W e concur: u a&$&&@ Chief ~ C s t i c e J u s t i c e s c | October 18, 1979 |
8d3e2253-2ba5-4d38-bec9-2baa1a679cf7 | STATE v HARVEY | N/A | 14603 | Montana | Montana Supreme Court | No. 14603 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 STATE OF MONTANA, Plaintiff and Respondent, -vs- EDWARD R. HARVEY, Defendant and Appellant. Appeal from: District Court of the Third Judicial District, Honorable Robert J. Boyd, Judge presiding. Counsel of Record: For Appellant: Knight, Dahood, Mackay and McLean, Anaconda, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Ted Mizner, County Attorney, Deer Lodge, Montana Submitted on briefs: September 13, 1979 Decided: MOV 2 1 1979 . . * Filed: - 2 , . ' '*7 Mr. Justice John C. Sheehy delivered the Opinion of the Court. Defendant Edward R. Harvey appeals from a conviction entered in the District Court, Third Judicial District, Powell County, on the charge of felony theft in violation of section 45-6-301, MCA. On February 16, 1978, an information was filed in the District Court, Powell County, charging Harvey with the November 23, 1977, felony theft of a .243 caliber Sako rifle from Theodore Nelson. On February 23, 1978, Harvey entered a plea of not guilty and the District Court appointed counsel to represent Harvey. Harvey was released on a recognizance bond at this time. On April 27, 1978, however, Harvey was incarcerated in the Montana State Penitentiary for a parole violation charge. On September 19, 1978, Harvey filed a motion to dismiss on the ground of failure to grant a speedy trial. That motion was denied two days later. Harvey then filed a writ of supervisory control with this Court on September 22, 1978. We denied the writ without prejudice on September 29, 1978. During the time Harvey was incarcerated for the parole violation charge, he became dissatisfied with the work of his court-appointed counsel. So, on October 2, 1978, one day before the trial of this cause, Harvey excused his court-appointed counsel. Harvey represented himself throughout his trial on the charge of felony theft. At the trial, there was a conflict in testimony concerning the circumstances surrounding the theft of the Sako rifle. Robert Paulus, Harvey's former son-in-law, was the State's chief witness. Paulus testified at the trial that he and Loretta Paulus (Dillion), his former wife, were house guests of the Harveys during the Thanksgiving holidays. At about ten or eleven o'clock p.m. on November 23, 1977, both couples decided to go to Elliston, Montana, to sell a used pickup truck for Wallin's Ford, where Edward Harvey was employed as a salesman. They arrived in Elliston about a half hour later and stopped at a bar there. Paulus further testified that Edward Harvey noticed a . 2 4 3 caliber Sako rifle in the back window of a pickup truck parked at the bar. Ignoring the warnings of his three passengers, Edward Harvey put on a pair of gloves, unlocked the door through the vent window and took the rifle. Edward Harvey then left with the rifle and headed towards Helmville, Montana. Harvey stopped just outside of Avon, Montana, shot five shells through the rifle and discarded the leather sling from the rifle. About fifteen minutes later, Harvey and his passengers returned to Deer Lodge. Upon arriving at the Harveys'. apartment, Harvey put the rifle in the closet in the bedroom. Harvey was the only witness for his defense. He testified that Paulus brought the rifle to the Harvey's apartment on November 23, 1977. Paulus told the Harveys that he needed money. Over Harvey's objections, Paulus talked Mrs. Harvey into buying the rifle for $135. Mrs. Harvey executed a receipt for payment in full for the rifle. She handed the receipt to Paulus for his signature and walked out of the room to get the $135. While Mrs. Harvey was out of the room, Paulus signed the name Paul Johnson on the receipt, folded it in half and gave it back to Mrs. Harvey upon her return. Mrs. Harvey stored the receipt without ever looking at the signature. On November 29, 1977, Paulus and his wife returned to their home in Roundup, Montana. On their way, they stopped at the McDonald Pass Bar in Elliston to report Harvey's theft. In January 1978, a special deputy sheriff came to the Harvey residence to inquire about the rifle. Harvey was the only one home at the time. Harvey voluntarily gave the rifle to the -3- deputy sheriff. An examination of the serial number confirmed that the rifle belonged to Theodore Nelson. Harvey was informed that the rifle was stolen and would have to be confiscated. Mrs. Harvey arrived just as the deputy sheriff was leaving. The deputy sheriff was informed that Mrs. Harvey had purchased the rifle from her son-in-law, Paulus. Mrs. Harvey then produced the receipt bearing the name Paul Johnson for the deputy sheriff. Harvey's trial on the charge of felony theft was held on October 3, 1978. A jury verdict of guilty was entered on October 4, 1978, and on October 19, 1978, Harvey was sentenced to a term of five years in the state penitentiary. Following his conviction, Harvey, acting pro se, filed a notice of appeal and appellant's initial brief. On May 10, 1979, the District Court appointed counsel to represent Harvey upon this appeal. Harvey raises the following issues upon appeal: 1. Was the evidence sufficient to support a finding that the value of the Sako rifle exceeded $150? 2. Did the District Court err in failing to instruct the jury that Harvey could have been convicted of a lesser included offense? 3. Was Harvey denied the right to adequate counsel? 4. Did the District Court abuse its discretion in requiring Harvey to testify in question-answer form? 5. Was Paulus an accomplice to the crime charged, and if so, did the State fail to corroborate his testimony? 6. Was it error to deny Harvey's motion for a continuance for the purpose of subpoenaing witnesses to impeach Paulus' testimony? 7 . Was Harvey denied his constitutional right to a speedy trial? Having examined the record and the briefs of both parties, we find for the State on all issues. The first assignment of error questions the sufficiency of the evidence to support a finding that the value of the Sako rifle exceeded $150. In effect, Harvey is challenging the sufficiency of the evidence to support the verdict. The value of the property taken must exceed $150 before a conviction for felony theft will lie. Section 45-6-301(4), MCA. Harvey's contention is without merit. The determination of disputed questions of fact and the credibility of witnesses is within the province of the jury. State v . Bouldin (1969), 153 Mont. 276, 284, 456 P.2d 830, 834. Upon appeal, we will not disturb a verdict if substantial evidence is found to support that verdict. State v. McKenzie (19781, Mont. , 581 P.2d 1205, 1226, 35 St.Rep. 759, 785. We find sufficient evidence of the value of the rifle to support the verdict rendered. At the trial, Marvin Hiatt, owner of a Deer Lodge sporting goods store, testified that the rifle had a current wholesale value of between $175 and $200 and a current retail value of between $200 and $280. Similarly, Theodore P?-lson, the owner of the rifle, testified at the trial that he had the rifle appraised at $280. Harvey made no objection to the testimony of either of these witnesses. The second assignment of error is that the District Court erred in failing to instruct the jury on misdemeanor theft. Harvey never offered such an instruction at the trial level. In State v. Radi (1975), 168 Mont. 320, 325, 542 P.2d 1206, 1209-1210, we said: ". . . Generally, this Court will refuse to rule on issues which were not presented to the district court and this rule is especially applicable to the instant case. The Montana Code of Criminal Procedure, section 95-1910(d), R.C.M. 1947, [now section 46-16-401, MCA] provides in pertinent part: -5- "'When the evidence is concluded, if either party desires special instructions to be given to the jury, such instructions shall be reduced to writing, numbered, and signed by the party, or his attorney, and delivered to the court.' "The statute is written in mandatory language and therefore should be construed as such. State v. Cook, 42 Mont. 329, 112 P. 537; State v. ~oughzty, 71 Mont. 265, 229 P. 735; State v. ~ a w ~ r , 71 Mont. 269. 229 P. 734: State v. ~ o n u e s . 1 2 6 Mont. 341, 251 - - - ~ . 2 d 254; state*~. - Maciel, 130 Mont. 569, 305 ~ 1 2 d 335." The third assignment of error is that Harvey was denied the right to adequate counsel. The record does not support the contention that Harvey's court-appointed counsel was inadequate prior to his excusal. The court-appointed counsel assisted Harvey by interviewing witnesses in preparation for trial, subpoenaing witnesses and filing in good faith two motions to dismiss. Harvey also may not complain that he himself was inadequate at trial. The Sixth and Fourteenth Amendments to the United States Constitution guarantee to an accused the right of self- representation provided the choice has been made knowingly and intelligently. Faretta v. California (1975), 422 U.S. 806, 95 The record establishes that Harvey made his choice of self- representation with his eyes wide open. Adams v. United States ex rel. McCann (1942), 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275. The District Court repeatedly warned Harvey of the disadvantages of self-representation. In fact, the District Court appointed "standby" counsel to assist Harvey should he so request. Having made his choice of self-representation knowingly and intelligently, Harvey cannot now be heard to complain. The fourth assignment of error is that the District Court abused its discretion in requiring Harvey to testify in question- answer form. The mode and order of the presentation of evidence is within the sound discretion of the District Court. Rule 611(a), Mont.R.Evid., provides in pertinent part: "(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth . . ." The District Court required Harvey to testify in question- answer form to give the State an opportunity to object and avoid the introduction of inadmissable evidence. Harvey can claim no prejudice from being barred from introducing inadmissable evidence. Once again, the District Court warned Harvey at the outset of the difficulties in representing himself. Moreover, the District Court advised Harvey that he could use "standby" counsel to ask the questions while he testified, but Harvey refused to do so. The fifth assignment of error is that the State failed to corroborate the testimony of Robert Paulus. An accused may not be convicted solely on an accomplice's testimony. Section 46-16-213, MCA. State v. Harmon (19591, 135 Mont. 227, 236, 340 P.2d 128, 132, defines accomplice as follows : "An accomplice is defined by Chief Justice Brantly as 'one who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of a crime.. . . One may become an accomplice by being present and joining in the criminal act, by aiding and abetting another in its commission, or, not being present, by advising and encouraging its commission; but knowledge and voluntary actions are essential in order to impute guilt.' State ex rel. Webb v. District Court, 1908, 37 Mont. 191, 200, 201, 95 P. 593, 597, 15 Ann. Cas. 745, jury tampering; included with citations in 3 Jones on Evidence, 5th ed., 5813 at p . 1525." There is no evidence in the record indicating Paulus knowingly, voluntarily and with common intent united with Harvey in the commission of a crime. Therefore, the State did not have to corroborate Paulus' testimony. The sixth assignment of error is that the District Court erred in failing to grant Harvey's motion for a continuance for the purpose of challenging the credibility of Paulus, the State's witness. After both sides rested, Harvey orally moved the District Court for a continuance so he could subpoena personnel from the Black Hills Pack or the Billings Vocational-Technical School to prove Paulus did not work at either of these businesses as he had testified. The denial of a motion for a continuance is within the sound discretion of the District Court, and it is not error to deny such a motion unless a clear abuse of discretion is shown. State v. Olsen (1968), 152 Mont. 1, 11, 445 P.2d 926, 932. Section 25-4-501, MCA, provides: "Motion to postpone -- trial for absence of testimony. A motionto postpone a trial on groundsof the absence of evidence shall only be made upon affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to procure it." The language of the statute is mandatory and must be construed as such. State v. Radi, supra. Harvey never filed an affidavit demonstrating materiality or due diligence. In view of Harvey's failure to comply with section 25-4-501, MCA, it cannot be said the District Court abused its discretion in denying the motion for a continuance. State v . Pascgo (19771, ~ o n t . , 566 P.2d 802, 804, 34 St.Rep. 657, 659. Also, the matters sought to be obtained by the motion for a continuance go to the credibility of a witness and not to facts which tend to prove or disprove the allegations of the information. One cannot impeach a witness on a collateral matter. Tigh v. College Park Realty Co. (1967), 149 Mont. 358, The final assignment of error is that the District Court erred in denying Harvey's motion to dismiss for failure to grant a speedy trial. The following is the table of relevant dates and events set forth in the State's brief. DATE TOTAL DAYS ELAPSED Information filed 0 Arraignment Continuance to consult with attorney requested by and granted to defendant Defendant released on own recognizance Entry of plea 7 Defendant incarcerated on parole violation charge 70 Motion by defendant to dismiss on grounds of double jeopardy filed 126 Motion to dismiss denied 147 Trial set for 9/19/78 202 Trial continued 209 Motion by defendant to dismiss for failure to grant a speedy trial filed 215 State's opposition to motion to dismiss filed 217 Motion to dismiss denied Trial reset for 10/2/78 Trial continued 228 Trial 229 Verdict 230 The right of an accused to a speedy trial is guaranteed by both the United States and Montana Constitutions. United States Constitution, Amend. VI; 1972 Mont. Const., Art. 11, 524. The Fourteenth Amendment due process clause imposes the federal standard, as a minimum, upon Montana. See Dickey v. Florida (1970), 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26; and State v. Bretz (19791, - Mont. - I - P.2d I 36 Each speedy trial case must be considered on an -- ad hoc basis. We must balance the conduct of both Harvey and the State. In balancing such conduct, we must look to four factors: the length of the delay, the reason for the delay, the defendant's assertion of the right and any prejudice to the defendant. Barker v . Wingo (19721, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116-117; State v . Bretz, supra, 36 St.Rep. at 1041. .We will examine each of these four factors individually under the facts of the instant case. Length - of delay. The length of the delay is a triggering device. There is no need to examine the other three factors until some delay which is deemed presumptively prejudicial has occurred. What length will be deemed presumptively prejudicial depends on the facts of each individual case. A longer delay will be tolerated in a complex case than would be tolerated in one involving a simple fact situation. Barker v . Wingo, supra, 407 U.S. at 530-531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; State v. Bretz, supra, 36 St.Rep. at 1041-1042. In the instant case, the passage of 229 days from the date the information was filed to the date of the trial is sufficient to shift to the State the burden of explaining the reason for the delay and showing absence of prejudice to Harvey. This was not a complex case. The State asserts that thirty days should be subtracted because of motions made by Harvey. We do not agree. The good faith motions of a defendant are not chargeable to that defendant. State v . Carden (19771, Mont . , 566 P.2d 780, 785, 34 St.Rep. 420, 427. Reason -- for the delay. Different weights must be assigned to different reasons for the delay. Barker v . Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; State v . Bretz, supra, 36 St.Rep. at 1042. The State asserts the delay in this case was institutional delay. While institutional delay weighs less heavy than intentional delay by the State, it still -10- must be considered. Delay inherent in the system is chargeable to the State. The State bears the burden of bringing a defendant to trial. State v . Puzio and Allen (1979), Mont . I P.2d , 36 St.Rep. 1004, Defendant's assertion -- of the right. The defendant's assertion of his right is entitled to strong evidentiary weight in determining a deprivation of that right. State v. Bretz, supra, 36 St.Rep. at 1043. Therefore, an accused should take some affirmative action to be entitled to a discharge for delay. The appropriate action is a motion to dismiss for denial of a speedy trial made prior to the commencement of the trial. State v. Puzio and Allen, supra, 36 St.Rep. at 1008. This was done by Harvey. Prejudice -- to the defendant. This factor must be weighed with regard to the three interests which the right to a speedy trial is intended to protect. These three factors are (1) avoiding oppressive pretrial incarceration, (2) minimizing the anxiety and concern of the accused and (3) limiting the possibility of impairing the accused's defense. State v . Bretz, supra, 36 St.Rep. at 1044. We find no evidence of oppressive pretrial incarceration. Initially, Harvey was released on a recognizance bond. On April 27, 1978, Harvey was incarcerated on a parole violation charge. The grounds for the parole revocation were possession of a weapon, the Sako rifle, and Harvey's drinking habits. Since Harvey's pretrial incarceration was due in part to an unrelated offense, we cannot attribute any prejudice from that imprisonment to the case at hand. We cannot assess the fault by any precise means. - See, State v . Bretz, supra, 36 St.Rep. at 1044; and State v . Mielke (1966), 148 Mont. 320, 420 P.2d 155. -11- Harvey next contends he suffered undue anxiety and concern while waiting to be brought to trial. Prior to his being charged with felony theft, Harvey had made a new life for himself. He was a successful salesman for Wallin's Ford in Deer Lodge, and the people of that city trusted him. However, as a result of the felony charge and his pretrial incarceration, he lost his job, his income, the public trust and his wife suffered an emotional breakdown. Harvey's contention is without merit. To a large extent, any emotional stress, economic hardship or public obloguy suffered by Harvey were due to his incarceration for an unrelated offense. Any prejudice suffered from that incarceration cannot be charged against the State. See State v. Bretz, supra; and State v. Mielke, supra. Harvey contends his pretrial incarceration impaired his ability to prepare a defense. As a result of that incarceration his wife suffered such emotional distress that Harvey could not call her as a witness. Similarly, Harvey could not call his daughter as a witness since she blamed Harvey for her divorce. Harvey has not shown any factors which would impair his ability to prepare a defense. There is no evidence that any witness died prior to the trial or that any witness suffered an impaired memory due to the delay. The distress within Harvey's family is unfortunate. However, Harvey could have subpoenaed his wife and daughter but voluntarily chose not to do so. Application. On the balance, we find no excessive delay in bringing this cause to trial. While no one factor is determinative, the presence of prejudice should be weighed heavily in the balancing of all factors. Barker v. Wingo, supra. Harvey has not demonstrated any actual prejudice which is attributable to the State. -12- Having found no substance to Harvey's assignments of error, we affirm the conviction entered by the District Court. / Justice u i ' We Concur: Chief Justice .................................. Justices | November 21, 1979 |
7f56f1c0-8c6c-4272-8346-24c516238b0a | STATE v HODGSON | N/A | 14661 | Montana | Montana Supreme Court | No. 14661 mTHESUP~COUIiToFTHF,sr~OFMXJTANA 1979 Plaintiff and Respondent, Defendant and Appellant. Appeal f m : District Court of the Thirteenth Judicial D i s t r i c t , Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appllant: John L. Adarns argued, Billings, lbntana For Respondent: Hon. Mike Greely, Attomey General, Helena, bbntana C h r i s Tweeten argued, Assistant Attorney General, Helena, mntana Harold Hanser, County Attomey, Billings, Montana James Whalen argued, Deputy County Attomey, Billings, mntana Filed: gov 2 . 14is - -- S*tted: June 1 1 , 1979 Decided : Nov z 8 1 9 7 9 Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Defendant appeals his conviction in the Yellowstone County District Court for the crime of deviate sexual conduct. He raises three issues: double jeopardy, denial of a speedy trial, and inadmissibility of his confession. The double jeopardy claim and speedy trial claim arise out of an unusual, if not unique, set of circumstances. Defendant was initially convicted on May 23, 1978 of the crime, but was prevented from taking a meaningful appeal because the court reporter lost the notes of the first trial, thus preventing the preparation of a verbatim transcript. For this reason, the trial court granted a new trial to defendant, and defendant accepted this new trial order without objection. Defendant was again convicted, and he was sentenced to twenty years in prison, the same sentence he had received after the first conviction. Defendant now contends that the second trial resulted in double jeopardy, and furthermore, that the time lapse between his arrest and the second trial, approximately ten months, denied him a speedy trial. He also claims that a confession he had given to police immediately before he was arrested, was inadmissible because it was obtained against his will. The underlying facts to defendant's prosecution and conviction for deviate sexual conduct occurred while defendant was babysitting a four-year old male child. The parents were in California on a four day trip. When the parents returned home on the evening of December 22, 1977, the child informed his mother that his buttocks hurt, and stated that "Tom stuck his peep in it. . ." Later that evening, Dr. Stephen Elliott, M.D., discovered a bruise in the boy's rectal area which in his opinion was caused by a penetrating object. The police -2- were then notified, and three officers were sent to defendant's home. They arrived at approximately 10:OO p.m. that evening, and defendant was in bed. Defendant invited the officers into his home. They informed defendant that they were investigating the sexual assault of the boy and asked if the defendant was willing to go downtown for questioning. Defendant agreed, and he changed clothes and accompanied the police to the station- house. After being advised of his rights, defendant admitted that he had sexually assalted the boy and signed a written confession to that effect. Shortly thereafter he was arrested and placed in the county jail. Before the first trial, defendant moved to suppress his confession. He testified at the hearing that he voluntarily gave his confession. He did not contend then that he had been arrested before he made his confession. He also testified that the police requested rather than demanded that he accompany them to the police station for questioning. He agreed that the police were courteous to him at all times and that he was not frightened by being in their presence. The evidence is clear, moreover, that defendant was not restrained at the police station and that he was free to leave at anytime. Defendant was placed under arrest only after he had confessed. The trial court denied the motion to suppress, and trial started and was concluded on May 23, 1978. Defendant was later given a 20 year prison sentence. While in the process of preparing for an appeal, it was discovered that the court reporter had lost his notes of the first trial, thus preventing the preparation of a verbatim record of the trial testimony. For this reason, in an effort to protect the rights of the defendant, on September 27, 1978, the District -3- Court granted a new trial to defendant. In the same order, the court set a new trial date of October 24, 1978. Defendant did not object to this order granting a new trial; nor did he object to the new trial date setting. When defendant's confession was admitted, defendant simply objected for the reason that it had been taken against his will--that is, that he had actually been under arrest at the time he gave his confession. After all the evidence was presented from both sides, defendant moved to dismiss the case based on his claim of double jeopardy, which motion was denied. Defendant was again convicted, and sentenced to 20 years in prison. Defendant now contends that his claim of double jeopardy stood as a bar to a valid second trial and conviction. He also claims that since his confession was taken against his will, it should have been excluded, and absent such confession, he was entitled to a dismissal because there was insufficient evidence to go to a jury. He did not raise the speedy trial issue before District Court, but contends before this Court that the ten month time lapse between his arrest and the second trial denied him his right to a speedy trial. At no time did defendant oppose the order of the District Court granting him a new trial because of the lost trial notes. If he felt at that time that a retrial, rather than appeal from the first conviction, was against his interest, he had available to him procedures under section 46-20-304(1), MCA, albeit not totally sufficient, to appeal without benefit of an actual verbatim transcript. But he chose not to use this procedure and instead to gamble that upon a second trial he would be acquitted. We see no valid double jeopardy claim under these circumstances. A defendant who obtains a new trial after appealing the original judgment cannot complain of double jeopardy. State v. Holliday (1979), Mont . , 598 P.2d 1132, 36 St.Rep. 1535; United States v. Starling (5th Cir. 1978), 571 F.2d 934. There is no difference when the trial court grants a new trial to the defendant. State v. Thompson (1891), 10 Mont. 549, 552, 27 P. 349. Here, the trial court ordered a new trial after it had been concluded. Other than granting a new trial, the only reasonable alternative available to the trial court, was to order an appeal through the use of a bystander's bill as permitted by section 46-20-304(1), MCA, supra. The trial court did not consider a bystander's bill as a meaningful alternative, and neither did the defendant, for he accepted instead, the benefits of an order for a new trial. Defendant never did contend that he should be permitted to reconstruct the testimony of the first trial and present his appeal based upon this reconstructed record. The order for a new trial was solely for defendant's benefit. As stated in Houp v. State of Nebraska (8th Cir. 1970), 427 F.2d 254; and Crawford v. United States (D.C. Cir. 1960), 285 F.2d 661, even after the jury has entered its verdict, the trial court has discretion to determine that the burden placed upon a defendant by a second trial must be sub- ordinated to the public's interest in a just judgment. There could be no just judgment here without permitting the defendant to have an adequate trial record upon which to conduct an appeal, and that is why the trial court granted the new trial. The trial court averted a potential injustice to defendant by not compelling him to undertake an appeal upon an incomplete and inadequate trial record. This was the just and proper action to take. The defendant's claim that he was denied a speedy trial under these circumstances, is specious, to say the least. Although ten months passed between defendant's arrest and the beginning of the second trial, the State cannot be charged with any significant time lapses. Upon defendant's request, the court ordered a psychiatric exam, and defendant did not file the results of his examination until three and a half months later on May 2, 1978. The intervening time period after the first conviction and the new trial order of September 27, 1978, was not, of course, time that can be charged to defendant. But defendant cannot attach any meaningful speedy trial significance to this period, for he had already been tried. The court and parties were primarily concerned during this period as to what action to take because of the negligence of the court reporter in losing the trial notes. On September 27, 1978, the trial court concluded that in all justice to defendaht, a new trial must be ordered. Defendant accepted the benefits of this new trial order and makes no specific complaint as to the time lapse between September 27, 1978 and the start of his second trial, on October 24, 1978, less than a month. Defendant has shown us no prejudice what- soever, and we see none. We have already discussed the evidence concerning defendant's contention that his confession was the product of an illegal arrest. Defendant himself, however, has admitted that he was not first arrested, and that the confession was not taken against his will. We find no violation of his constitutional rights under these facts. Based upon the defendant's confession and the testimony corroborating the complaint of the small boy, the State met its substantial evidence burden to sustain the conviction. We Concur: Chief Justice / . Justices i ir | November 28, 1979 |
224d48a8-b91a-4035-af18-e63bb79b3ef8 | MATTER OF GRAY | N/A | 79-018 | Montana | Montana Supreme Court | N o . 7 9 - 1 8 I N THE SUPREME COURT O F THE STATE OF MONTANA 1 9 7 9 I N THE MATTER O F THE P E T I T I O N O F JAMES E . GRAY O R I G I N A L PROCEEDING : C o u n s e l of R e c o r d : For Petitioner: Jackson and K e l l e y , H e l e n a , M o n t a n a For R e s p o n d e n t : H o n . M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a T e d L . M i z n e r , C o u n t y A t t o r n e y , D e e r L o d g e , M o n t a n a S u b m i t t e d : N o v e m b e r 7 , 1 9 7 9 t, I - : -*- F i l e d : ; t o ~ 14 .-i; Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. This proceeding is a petition for a writ of habeas corpus seeking release of petitioner James E . Gray on bail pending determination of his petition for habeas corpus in the District Court of Powell County. In 1977 petitioner was convicted of the crime of forgery following his plea of guilty in the District Court of Cascade County. He filed a petition for a writ of habeas corpus in Powell County District Court in May, 1978. That petition attacks alleged improper and incorrect items in the presentence report which was prepared for the Cascade County District Court following his plea of guilty to the forgery charge. The relief he seeks in that peti- tion is that his sentence be vacated and that he be returned to the Cascade County District Court for resentencing. No attack is made on petitioner's guilty plea or conviction of forgery. After the filing of the petition for habeas corpus in the Powell County District Court, petitioner was released on bail by Judge Robert Boyd. Petitioner remained free on bail for 15 months during which time he obtained numerous continuances of the hear- ing date on his petition and lost and regained the services of his present counsel. On September 6, 1979 when the Powell County petition finally came up for hearing, Judge John B . McClernan revoked petitioner's bail and remanded him to the State Prison where petitioner is presently incarcerated. On October 10, 1979, petitioner filed an original proceed- ing in this Court seeking a writ of habeas corpus. He contends he is entitled to release on bail pending final determination of proceedings attacking the sentence imposed on his forgeryconviction by the District Court of Cascade County. On October 12 we ordered petitioner to file a legal memo- randum supporting his petition and directed the Attorney General to file a written response to the petition with supporting legal memorandum thereafter. These have now been filed and the matter submitted to us for decision. Petitioner's claim that he is entitled to release on bail is grounded on two arguments. First, he claims that Judge Boyd's order in 1978 releasing him on bail established the "law of the case" entitling him to remain free on bail. Secondly, petitioner contends that procedural prerequisites in section 46-9-311, MCA, mandate granting the writ of habeas corpus. The "law of the case" principle was discussed by this Court in a 1976 decision: "Under the 'law of the case' principle, judges of coordinate jurisdictions sitting in the same court and in the same case may not ordinarily overrule the decisions of each other. It is simply a rule of practice that articulates the sound policy that when an issue is once judicially determined, that should be the end of the matter as far as judges and courts of coordinate juris- diction are concerned. The law of the case is not an imperative; does not go to the power of the court; and does not mean that a court does not have discretion to reconsider a ruling made by another judge in the same case." State v. Carden (1976), 170 Mont, 437, 555 P.2d 738. (Citations omitted.) Judge McClernan thus had discretion to reconsider the ruling of Judge Boyd. Petitioner had remained free for 15 months due in large part to changes in counsel and continuances result- ing therefrom. No progress was being made to resolve his peti- tion for habeas corpus in the District Court of Powell County. Where only the sentence but not the conviction is being attacked in the collateral proceeding, petitioner if successful is not en- titled to be released but only to be resentenced. In re Lewis (1916), 51 Mont. 539, 154 P. 713. In accord: Petition of Cheadle (1964), 143 Mont. 327, 389 P.2d 579; City of Billings v. Trenka (1970), 155 Mont. 27, 465 P.2d 838. Additionally, bail may be increased, reduced, substituted, revoked or the conditions of bail changed. Section 46-9-311, MCA The contention of petitioner that section 46-9-311, MCA, mandates granting his petition lacks merit. There is no pro- hibition in this statute or elsewhere preventing a court from acting on its own motion to revoke bail. The concurrent notice and revocation given by the District Court in this case was reasonable under the circumstances as petitioner had left the state and did not return until the time of hearing. The petition for writ of habeas corpus is denied. Chief Justice Justices (I Mr. Justice Daniel J. Shea dissents and will file a dissenting opinion later. DISSENT JUSTICE DANIEL J. SHEA No. S.C. 79-18 IN THE MATTER OF THE PETITION OF JAMES E. GRAY M r . J u s t i c e Daniel J. Shea d i s s e n t i n g : I would permit t h e defendant t o remain on b a i l pending a t r i a l court r u l i n g on h i s request t o have t h e sentence vacated. The majority grounds i t s decision on t h e wording of s e c t i o n 46-9-311, MCA, which permits a t r i a l c o u r t t o i n c r e a s e , reduce o r s u b s t i t u t e b a i l , o r t o revoke b a i l . Because a D i s t r i c t Court has s t a t u t o r y a u t h o r i t y t o revoke b a i l , t h e majority has concluded t h a t t h e D i s t r i c t Court must have been c o r r e c t i n s o doing. What I disagree with, however, is n o t t h e s t a t u t e , which c l e a r l y s e t s f o r t h t h e options a v a i l a b l e t o t h e t r i a l court; but r a t h e r , I o b j e c t t o t h e a r b i t r a r y d e c i s i o n of t h e t r i a l c o u r t i n revoking t h e b a i l , without any explanation whatsoever i n j u s t i f i c a t i o n of i t s a c t i o n . This Court should not give much deference t o a decision of any t r i a l c o u r t i f it has f a i l e d t o a r t i c u l a t e t h e reason f o r t h e a c t i o n taken. Too o f t e n t h i s Court must review t h e a c t i o n s of a t r i a l c o u r t i n s i t u a t i n g where t h e r e is absolutely no explanation i n t h e record f o r t h e a c t i o n taken. It is e x a l t i n g form over substance i n such cases t o r e s o r t t o t h e time-worth r u l e t h a t t h e a c t i o n of a t r i a l court i s presumed t o be c o r r e c t . What t h i s Court s t a t e d i n Ballant$ne v. Anaconda Co. (1978), Mont. , 574 P.2d 582, 35 St.Rep. 171, concerning reasons f o r d e c i s i o n s , a p p l i e s equally t o a decision by a t r i a l c o u r t revoking a defendant's b a i l . Here, we have a s i t u a t i o n where one t r i a l c o u r t granted b a i l t o a defendant and a decision from which t h e S t a t e d i d not o b j e c t ; t h a t is, once t h e decision was made,the S t a t e d i d n o t attempt t o overturn t h e decision. But then a d i f f e r e n t judge i s c a l l e d i n t o t h e case, and without any explanation whatsoever he revokes defendant's bail bond. In defending the trial court's action,the State merely cites the statute which authorizes the revocation of a bail bond. The State then presumes to provide a possible explanation for the trial judge's decision by suggesting that defendant was taking advantage of his bail status and was not truly interested in having a day of reckoning to determine the propriety of sentence. It is possible that this is so, but the State does no service to the law of this State when it seeks to provide a reason for the action of a trial judge where there is absolutely no reason stated in the record for the action taken. By approving of the action of the trial courts in situations such as this, this Court is only encouraging the trial courts to be as fuzzy as possible in arriving at their decisions, knowing that their so-called discretionary acts will be protected from the light of day by the invocation of the rule that their actions are presumed to be correct. The presumption of correct- ness should evaporate at the moment the trial court has failed to disclose for the record the reasons for its decision. Neither the parties nor this Court should be required to guess as to why the trial court revoked the petitioner's bail in this case. | November 14, 1979 |
f5fe495a-b43a-4576-be3d-48e88a284914 | NORTHERN PLAINS RESOURCE COUNCIL v | N/A | 14537 | Montana | Montana Supreme Court | No. 14537 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 NORTHERN PLAINS RESOURCE COUNCIL, Petitioner and Appellant, BOARD OF HEALTH AND ENVIRONMENTAL SCIENCES FOR THE STATE OF MONTANA, et al., Respondents and Respondents. Appeal from: District Court of the First Judicial District, Honorable Robert Holter, Judge presiding. Counsel of P.ecord: For Appellant: Graybill, Ostrem, Warner & Crotty, Great Falls, Montana James A. Patten argued, Billings, Montana For Respondents: John L. Peterson argued, Butte, Montana -S&ra Muckelston, Helena, Montana John W. Ross and -Robert Gannon, Butte, Montana W. H. Bellingham, Billings, Montana . , Submitted: September 21, 1979 Decided: D E C - 6 1979 M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court. his appeal i s from an order of t h e D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t dismissing a p e t i t i o n f o r judi- c i a l review of a decision of the Montana Board of Health and Environmental Sciences. On January 20, 1978, t h e Montana Department of Health and Environmental Sciences ( t h e Department) issued t o a consortium of northwest electric u t i l i t y companies, a permit t o construct two 700 megawatt e l e c t r i c power genera- t i n g s t a t i o n s i n C o l s t r i p , Rosebud County, Montana. Pur- suant t o t h e provisions of s e c t i o n 69-3911, R.C.M. 1947, t h e p e t i t i o n e r herein requested a hearing before the Montana Board of Health and Environmental Sciences ( t h e Board) on t h e Department's decision t o i s s u e t h e construction permit. The requested hearing w a s held on March 11, and on April 28 t h e Board affirmed t h e Department's decision t o i s s u e t h e permit . On May 30, t h e p e t i t i o n e r f i l e d a p e t i t i o n f o r j u d i c i a l review i n t h e D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t . The respondent Board r e p l i e d by a motion t o dismiss on June 20; because t h e motion w a s n o t supported by b r i e f , it was denied. Subsequently, t h e Board responded by answer on J u l y 20. On J u l y 27, t h e respondent u t i l i t i e s r e p l i e d with a motion t o dismiss o r f o r a change of venue. The Department d i d n o t respond. The b a s i s of respondents' contention of lack of s u b j e c t matter j u r i s d i c t i o n is s e c t i o n 69-3917 ( 4 ) (a) , R.C.M. 1947, which provides t h a t appeals of decisions pursuant t o t h e Clean A i r Act of Montana be f i l e d i n t h e District Court f o r t h e J u d i c i a l D i s t r i c t i n which t h e a f f e c t e d property i s located. I n the present s u i t , respondents contend t h e a f f e c t e d property i s located i n Cols t r i p , Rosebud County, Montana. Thus, respondent u t i l i t i e s a s s e r t t h e proper c o u r t i n which t o p e t i t i o n f o r j u d i c i a l review i s t h e D i s t r i c t Court f o r t h e Sixteenth J u d i c i a l D i s t r i c t i n the County of Rosebud. Further, respondent u t i l i t i e s assert t h a t s e c t i o n 69-3917 ( 4 ) (a) i s a j u r i s d i c t i o n a l provision, and, therefore, t h e D i s t r i c t Court f o r t h e F i r s t J u d i c i a l D i s t r i c t lacks s u b j e c t matter j u r i s d i c t i o n . Respondent u t i l i t i e s ' motion was supported by memoran- dum. P e t i t i o n e r responded on August 1 with a memorandum i n opposition t o t h e motion. On August 24, respondent u t i l i - ties requested a hearing on the motion t o dismiss. On September 1, without holding t h e hearing a s re- quested, t h e c o u r t granted t h e motion t o dismiss. The c o u r t held t h a t s e c t i o n 69-3917 ( 4 ) (a) was a j u r i s d i c t i o n a l provi- sion and, therefore, t h e District Court of t h e Sixteenth J u d i c i a l D i s t r i c t was t h e only D i s t r i c t Court i n t h e state t o have j u r i s d i c t i o n t o hear the s u i t . O n September 18, p e t i t i o n e r moved t h e c o u r t t o vacate i t s September 1 order and t o s e t a s i d e t h e judgment, o r , i n t h e a l t e r n a t i v e , t o hold a hearing on t h e motion t o dismiss. A hearing on p e t i t i o n e r ' s September 18 motion was noticed f o r September 28. O n September 2 1 , p e t i t i o n e r f i l e d a n o t i c e of appeal t o t h i s Court of t h e ~ i s t r i c t Court's September 1 order. O n September 28, 1978, a hearing was held on p e t i t i o n e r ' s motion t o vacate. A t t h a t hearing t h e D i s t r i c t Court a s s e r t e d t h a t because a n o t i c e of appeal t o t h e Supreme Court had been f i l e d , it no longer had t h e a u t h o r i t y t o r u l e on p e t i t i o n e r ' s September 18 motion t o vacate. P e t i t i o n e r argued t h a t under Rule 59, M.R.Civ.P., t h e c o u r t had continuing j u r i s d i c t i o n t o r u l e on p e t i t i o n e r s motion t o vacate. The c o u r t d i d n o t agree, and t h e hearing w a s concluded. Another n o t i c e of appeal w a s f i l e d by p e t i t i o n e r on October 6, 1978, "from an Order Dismissing Cause signed i n t h e above-entitled cause on September 1, 1978, and a l l o r d e r s and r u l i n g s i n support t h e r e o f , including Order Denying Motion t o Vacate, S e t Aside o r Hold Hearing." A f t e r having sought j u d i c i a l review on May 30, 1978, on respondent Board's d e c i s i o n , p e t i t i o n e r on J u l y 13, 1978, f i l e d before t h e respondent Board of Health an "Amendment t o P e t i t i o n For a Rehearing of Northern P l a i n s Resource Council's Objections t o t h e Permit t o Construct, No. 1187, dated January 20, 1978." That amendment r e c i t e d a new matter which had n o t been considered a t a l l by respondent Board before A p r i l 28, 1978--namely, t h e d e n i a l by t h e United S t a t e s Environmental P r o t e c t i o n Agency on June 12, 1978, of a preconstruction permit under r e g u l a t i o n s known a s Preven- t i o n of S i g n i f i c a n t Deterioration (40 C.F.R. 52.21 e t seq.) t o c o n s t r u c t C o l s t r i p Units 3 and 4 . That amended p e t i t i o n f o r rehearing was denied and p e t i t i o n e r f i l e d another "Peti- t i o n f o r J u d i c i a l Review" of respondent Board's d e c i s i o n of A p r i l 28, 1978, b u t t h i s time i n t h e S i x t e e n t h J u d i c i a l District of t h e S t a t e of Montana, County of Rosebud. The p e t i t i o n recites i n Paragraph 1 t h e f a c t of t h e A p r i l 28, 1978, permit o r d e r by t h e respondent Board and recites t h a t "on October 21, 1978, t h e Board of Health and Environmental Sciences denied P e t i t i o n e r ' s Amended p e t i t i o n f o r Rehearing. This appeal i s from t h a t decision, pursuant t o s t a t u t e , and taken pursuant t o t h e provisions of t h e S t a t u t e f o r J u d i c i a l Review." Then, except f o r t h e allega- t i o n s of j u r i s d i c t i o n , p e t i t i o n e r recites almost verbatim, paragraph by paragraph and word f o r word, t h e a l l e g a t i o n s of t h e b a s i s of t h e appeal, which a r e i d e n t i c a l t o those alleged i n t h e p e t i t i o n f o r j u d i c i a l review f i l e d May 30, 1978, i n t h e F i r s t J u d i c i a l D i s t r i c t . The case i n Rosebud County i s presently pending and ready f o r a determination on a number of procedural and j u r i s d i c t i o n a l matters. It is c l e a r , however, both appeals a r e i d e n t i c a l , except t h a t t h e a l l e - gation f o r j u r i s d i c t i o n i s d i f f e r e n t i n Rosebud County, where p e t i t i o n e r now a l l e g e s t h a t t h e D i s t r i c t Court of Rosebud County has j u r i s d i c t i o n because such county is t h e s i t u s of t h e affected property--namely, C o l s t r i p Units 3 and 4 e l e c t r i c generating plants. There have been four i s s u e s presented t o t h i s Court f o r review: 1. Whether t h e District Court of t h e F i r s t J u d i c i a l D i s t r i c t had j u r i s d i c t i o n t o hear and decide p e t i t i o n e r ' s appeal f i l e d under s e c t i o n 75-2-411, MCA (formerly s e c t i o n 69-3917(3) through ( 5 ) , R.C.M. 1947), from a decision of t h e Board of Health and Environmental Sciences dated April 28, 1978, affirming t h e granting of a Clean A i r Act permit t o respondent u t i l i t i e s t o c o n s t r u c t two coal-fired e l e c t r o n i c generating p l a n t s ( C o l s t r i p Units 3 and 4 ) i n Rosebud County, Montana? 2. Whether t h e t r i a l c o u r t properly dismissed t h e p e t i t i o n upon motion of respondent without first holding t h e requested preliminary hearing? 3 . Whether t h e D i s t r i c t Court properly ruled t h a t p e t i t i o n e r ' s n o t i c e of appeal t o t h e Supreme Court of Montana divested t h e D i s t r i c t Court of j u r i s d i c t i o n t o hear and decide p e t i t i o n e r ' s motion t o vacate order and s e t a s i d e judgment o r , i n t h e a l t e r n a t i v e , f o r a hearing? 4. Whether t h i s appeal i s moot by reason of p e t i - t i o n e r ' s having f i l e d a p e t i t i o n f o r j u d i c i a l review i n t h e D i s t r i c t Court of t h e Sixteenth J u d i c i a l D i s t r i c t of t h e S t a t e of Montana, i n t h e County of Rosebud, seeking a d e t e r - mination of the same i s s u e s as those sought t o be reviewed i n t h e D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t i n t h e County of Lewis and Clark from which t h e p r e s e n t appeal w a s taken? A r t i c l e V I I , Section 4 ( 2 ) , 1972 Mont. Const., provides, ". . . [ t l h e l e g i s l a t u r e m a y provide f o r d i r e c t review by t h e d i s t r i c t c o u r t of d e c i s i o n s of a d m i n i s t r a t i v e agencies." The r i g h t of j u d i c i a l review of d e c i s i o n s of administra- t i v e agencies may be denied o r r e s t r i c t e d by t h e l e g i s l a t u r e t o p a r t i c u l a r c o u r t s : "The r i g h t and power t o review a c t i o n of an ad- m i n i s t r a t i v e agency e x i s t s i n some c o u r t s even i n t h e absence of express provisions of s t a t u t e s r e l a t i n g t o a d m i n i s t r a t i v e agencies, and some such provisions have been held n o t t o deprive a c o u r t of i t s j u r i s d i c t i o n ; b u t , as a d m i n i s t r a t i v e l a w has developed, t h e m a n n e r a n d e x t e n t of judi- -- c i a 1 review of a c t i o n - of a d m i n i s t r a t i v e agencies and t h e c o u r t s having j u r i s d i c t i o n -- u s u a l l y provided & s t a t u t e s governing the p a r t i - c u l a r agency, and o f t e n by general review o r ad- m i n i s t r a t i v e procedure a c t s . . ." 2 Am.Jur.2d Administrative Law S732, p. 632. (Emphasis sup- p l i e d . ) The Montana Board of Health is granted a u t h o r i t y under s e c t i o n 75-2-211, MCA, of t h e Montana Clean A i r Act t o i s s u e preconstruction permits. After f i n a l d e c i s i o n by t h e Board of Health, j u d i c i a l appeal i s permitted by s e c t i o n 75-2- 411 (3) ( a ) , MCA, which provides: "Within 30 days a f t e r t h e a p p l i c a t i o n f o r re- hearing i s denied o r , i f t h e a p p l i c a t i o n is aranted, within 30 days a f t e r t h e d e c i s i o n on t h e rehearing, a p a r t y aggrieved thereby may -- ap- p e a l -- t o t h e d i s f r i c t c o u r t of -- t h e j u d i c i a l d i s - t r i c t -- of t h e state which -- is t h e s i t u s of property a f f e c t e d 9 t h e order." (Emphasis s u p s i e d . ) A s argued by p e t i t i o n e r , the Montana Administrative Procedures Act (MAPA) provides generally f o r j u d i c i a l re- view. Section 2-4-702, MCA. However, the provisions of subsection 2(a) of the A c t excludes any possible c o n f l i c t a s follows: ". . . Except a s otherwise provided a s t a t u t e , t h e p e t i t i o n shall be f i l e d i n t h e d i s t r i c t c o u r t f o r t h e county where t h e p e t i t i o n e r re- s i d e s o r has h i s p r i n c i p a l place of business o r where t h e agency maintains i t s p r i n c i p a l o f f i c e . . ." (Emphasis supplied.) Arguments t o t h e contrary, it would s e e m t h a t p e t i - t i o n e r has conceded section 75-2-411, MCA, t o be t h e proper s t a t u t e and the Sixteenth J u d i c i a l D i s t r i c t the proper forum upon t h e f i l i n g of t h e second appeal f o r review i n Rosebud County. Paragraph 6 of p e t i t i o n e r ' s p e t i t i o n f o r j u d i c i a l review f i l e d i n s a i d county pleads i n p a r t : "6. Pursuant t o the provisions of Section 69- 3917 [now s e c t i o n 75-2-411, M C A ] of t h e Clean A i r Act of Montana venue and j u r i s d i c t i o n f o r judi- c i a l review i s i n t h e D i s t r i c t Court f o r the county which i s t h e s i t u s of t h e a f f e c t e d property; t h a t t h e a f f e c t e d property, C o l s t r i p Units 3 and 4 , a r e t o be s i t u a t e d i n t h e town of C o l s t r i p , County of Rosebud, S t a t e of Montana." To have complied with t h e Clean A i r Act, s e c t i o n 75-2- 4 1 1 , MCA, t h e present p e t i t i o n on appeal could only have been f i l e d and determined i n Rosebud County of t h e Sixteenth J u d i c i a l D i s t r i c t . O r a l arguments and b r i e f s notwithstanding, it i s d i f - f i c u l t t o understand any l e g a l theory t h a t would support t h e f i l i n g of t h e present appeal before t h e proceedings i n t h e D i s t r i c t Court had been concluded. The complaint by p e t i - t i o n e r t h a t t i m e was very s h o r t is n o t w e l l taken i n view of t h e f a c t t h a t a s t a t e agency w a s involved and Rule 5, M.R.App.Civ.P., allows 60 days from September 1, 1978, t o f i l e a n o t i c e of appeal. I n addition, a Rule 59 motion t o alter o r amend t h e judgment timely f i l e d i n t h e D i s t r i c t Court would have suspended t h e t i m e f o r f i l i n g t h e n o t i c e of appeal as t o a l l p a r t i e s . The argument t h a t a f t e r a proper appeal i s taken t h e D i s t r i c t Court may s t i l l r e t a i n j u r i s - d i c t i o n of t h e cause and continue t o hear and r u l e on pend- i n g m a t t e r s i s n o t t h e law i n Montana. There is no need t o burden t h i s opinion with argument, b u t w e merely p o i n t o u t t h a t t h i s Court has been c o n s i s t e n t i n i t s r u l i n g s t h a t upon a proper appeal being taken, j u r i s d i c t i o n of t h e cause passes from t h e D i s t r i c t Court t o t h e Supreme Court, sub- j e c t , however, t o t h e r i g h t of t h e D i s t r i c t Court t o c o r r e c t c l e r i c a l e r r o r s . See McCormick v. McCormick (1975), 168 Mont. 136, 138, 541 P.2d 765, and t h e c a s e s c i t e d t h e r e i n . The remaining m a t t e r t o consider concerns t h e a f f e c t of t h e f i l i n g of t h e p e t i t i o n f o r j u d i c i a l review i n t h e D i s - t r i c t Court of t h e S i x t e e n t h J u d i c i a l District, seeking a review of i s s u e s i d e n t i c a l t o those sought t o be reviewed i n t h e D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t , from which t h e appeal before t h i s Court was taken. P e t i t i o n e r has made c l e a r t o t h i s Court t h a t t h e r e l i e f requested i s a r e v e r s a l of t h e D i s t r i c t Court's d e c i s i o n s o as t o permit venue t o be d i r e c t e d by t h i s Court t o t h e S i x t e e n t h J u d i c i a l District i n Rosebud County. P e t i t i o n e r does n o t contend t h a t it i s e n t i t l e d t o a review on t h e m e r i t s i n t h e F i r s t J u d i c i a l D i s t r i c t . Consequently, p e t i t i o n e r has previously received a l l t h e r e l i e f it now r e q u e s t s from t h i s Court, which h a s rendered t h e q u e s t i o n s before t h i s Court moot, and w e w i l l n o t pass on moot questions. See Adkins v. C i t y of Livingston (1948), 121 Mont. 528, 532, 194 P.2d 238. For t h e reasons enumerated, p e a l i s dismissed. / / " ~ u s t i c e W e concur: + . I 4 Honorable John M. McCarvel, D i s - t r i c t Judge, s i t t i n g i n place of M r . Chief J u s t i c e Frank I. Haswell - / , . Honorable Joseph B. Gary, D i s t r i c t ~ u d ~ e , s i t t i n g i n place of M r . J u s t i c e John C. Sheehy | December 6, 1979 |
7ce6b185-a3c8-4f3f-af66-c3b3cc6c579c | ENGLUND v ENGLUND | N/A | 14787 | Montana | Montana Supreme Court | No. 14787 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 DANNIE ENGLUND , Plaintiff and Respondent, -vs- CLINTON E. ENGLUND, Defendant and Appellant. Appeal from: District Court of the First Judicial District, Honorable LeRoy L. McKinnon, Judge presiding. Counsel of Record: For Appellant: Smith and Harper, Helena, Montana Charles A. Smith, I11 argued, Helena, Montana For Respondent: Dowling Law Firm, Helena, Montana Thomas Dowling argued, Helena, Montana Submitted: September 24, 1979 Decided: DEC 1 4 1979 Filed: R C f 4 ygg> Mr. Justice John C. Sheehy delivered the Opinion of the Court. Clinton E . Englund appeals from an order dismissing his petition to terminate property settlement payments. The order was entered by the District Court, First Judicial District, Lewis and Clark County, upon a motion to dismiss by Dannie Englund. Clinton and Dannie were formerly husband and wife. Their marriage was dissolved in May 1970 after some thirty years of marriage. The marriage dissolution decree ordered Clinton to make four lump sum payments of $2,500 each to Dannie as part of the property settlement arrangement. In returning, Dannie was to convey to Clinton any interest Dannie held in jointly owned realty acquired during the marriage. In addition, Clinton was to pay $400 per month to Dannie, indefinitely. Thereafter, Clinton sought enforcement of that portion of the marriage dissolution decree which ordered Dannie to convey her interest in jointly-owned realty acquired during the marriage. In March 1971, the District Court found Dannie in contempt of court and ordered her to execute the appropriate deeds and documents to Clinton. Dannie complied with the order. Clinton continued the $400 monthly payments until 1975 when he moved to set aside the payments. Clinton asserted the payments constituted void alimony payments because the divorce was granted to Clinton. The District Court denied Clinton's motion. Upon appeal, we found the $400 payments to be a part of the property settlement arrangement and not alimony as referred to by the District Court. Further, we affirmed the District Court judgment that Clinton was estopped from challenging the monthly payments having successfully taken affirmative action to enforce the property settlement arrangement. Englund v. Englund (1976), 169 Mont. 418, 547 P.2d 841. On February 2, 1979, Clinton filed this petition to terminate the $400 monthly payments on the sole ground Clinton had already paid more than the value of Dannie's interest in the jointly-held marital property. Dannie's motion to dismiss the petition was granted. Specifically, the District Court concluded Clinton would not be permitted to challenge the $400 monthly payments having availed himself of the benefits of the property settlement arrangement. The sole issue upon this appeal is whether the ~istrict Court erred in granting Dannie's motion to dismiss. We find there was no error. In Fiscus v . Beartooth Elec. Cooperative, Inc. (19791, Mon t . , 591 P.2d 196, 197, 36 St.Rep. 333, 3 3 5 : 3 3 6 , we said: "'The rule is well established and long adhered to in this state that where, upon an appeal, the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal;. . .' Carlson v. Northern Pac. R. Co., 86 Mont. 78, 281 P. 913, 914." --- Englund v . Englund, supra, is the "law of the case" upon this appeal. In Englund, we held, in part, that Clinton was estopped from challenging the $400 monthly payments having successfully availed himself of the benefits of the property settlement provisions of the marriage dissolution decree. The order of the District Court iq affirmed. W e Concur: Chief J u s t i c e ,A+ . , | December 14, 1979 |
13846245-e7fe-460f-b5d1-ab7e5b95d828 | STATE v LENIHAN | N/A | 14786 | Montana | Montana Supreme Court | No. 14786 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 THE STATE OF MONTANA, Plaintiff and Respondent, VS. JAMES LENIHAN, Defendant and ~ ~ ~ e l i a n t . Appeal from: District Court of the Eighth Judicial District, Honorable Joel G. Roth, Judge presiding. Counsel of Record: For Appellant: Sandra K. Watts argued, Great Falls, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Sheri K. Sprigg, argued, Assistant Attorney General, Helena, Montana Submitted: November 2, 1979 Decided :a2 I (L- ' & r -< Filed: -,$, Mr. Justice Gene B. Daly delivered the Opinion of the Court. his is an appeal from the District Court of the Eighth Judicial ~istrict, Cascade County. Defendant was charged by information on September 1, 1978, with burglary, a felony, and criminal possession of dangerous drugs, a misdemeanor. At his arraignment on September 12, 1978, defendant entered a plea of not guilty to both offenses. On January 2, 1979, defendant moved to withdraw his not guilty plea and entered a plea of guilty to the charge of burglary, a felony in violation of section 45-6-204, MCA. The county attorney's office moved to dismiss the misdemeanor possession of danger- ous drugs charge, and the court dismissed that charge. After a presentence report and testimony were presented to the court, sentence was imposed. Defendant's three-year sentence was deferred on the following conditions: (1) That defendant was to serve sixty days in the Cascade County jail with no release privileges; (2) That defendant was placed under the rules and regulations of the adult probation and parole bureau; (3) That defendant was forbidden to use or have in his possession any alcohol or drugs; (4) That defendant was ordered not to associate with any individuals on probation or parole; (5) That defendant was subject to search and seizure without warrant by any law enforcement officer who had reasonable suspicion to believe that defendant had incrimi- nating evidence; and (6) That defendant was to pay the Cascade County attor- ney's office the sum of $250 as reimbursement for his attor- ney fees with the payment schedule to be worked out by his probation officer. The defendant in this case was found to be indigent and was appointed counsel through the Cascade County public defender's office. Appointed counsel represented defendant through all stages of the case. It is from the condition requiring defendant to pay $250 as reimbursement for his attorney fees ordered in the deferred imposition of sentence that defendant appeals. Two issues have been presented to this Court for review: 1. Is the issue raised by defendant properly review- able on appeal? 2. Did the District Court err in ordering an indigent defendant to reimburse the county for attorney fees as part of a condition of deferred imposition of sentence? Defendant first argues that because Montana does not have a recoupment statute, the District Court's order to reimburse the attorney fees is invalid. He contends that section 46-18-201, MCA, does not grant authority to a dis- trict judge to impose such a condition. Defendant cites State v. Babbit (1978), - Mont. , 574 P.2d 998, 35 St.Rep. 154, and State v . Cripps (1978), Mont. , 582 P.2d 312, 35 St.Rep. 967, for the proposition that the imposition of a fine is not specified as an allowable restriction or condition upon deferred imposition of sentence or upon suspended execution of sen- tence. The argument is made that an order for reimbursement of fees and a fine are indistinguishable and that in the absence of a recoupment statute, the District Court has no authority to make such an order. Defendant goes on t o c i t e two Supreme Court cases, J a m e s v. Strange (1972), 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600, and F u l l e r v. Oregon (1974), 417 U.S. 40, 94 S.Ct. 2116, 4 0 L.Ed.2d 642, involving s t a t e recoupment s t a t u t e s , f o r t h e proposition t h a t t h e r e must be a recoup- ment s t a t u t e t o make such an order because only then can t h e c o u r t measure whether o r n o t adequate safeguards w e r e pro- vided f o r t h e protection of the defendant during t h e recoup- ment process. F i n a l l y , t h e ABA Standards a t P a r t V I , Section 6.4, and a 1976 Washington S t a t e Bar r e p o r t a r e c i t e d by defendant f o r t h e proposition t h a t t h e process of recoupment r a i s e s s e r i o u s c o n s t i t u t i o n a l questions. Therefore, without a s t a t u t e providing adequate safeguards, recoupment i s n o t recommended. The S t a t e ' s f i r s t argument challenges t h i s Court's power t o review, contending t h a t defendant d i d n o t o b j e c t t o t h e challenged condition i n the D i s t r i c t Court. The S t a t e ' s main contention i s t h a t reimbursement of attorney fees is a reasonable condition of deferred imposition of sentence under s e c t i o n 46-18-201 (1) (a) (v) , MCA. The argument i s made t h a t lack of s p e c i f i c a u t h o r i t y f o r any condition imposed does n o t bar imposition of t h a t condition under t h e above s t a t u t e as long as it i s reasonable. The S t a t e d i s t i n - guishes Babbit and argues t h a t a condition of reimbursement i s analogous t o r e s t i t u t i o n t o a c r i m e victim and d i f f e r e n t from t h e payment of a f i n e . The S t a t e cites S t a t e v. Smith (1978), 118 Ariz. 345, 576 P.2d 533, f o r t h e proposition t h a t a condition of pay- ment t o t h e government of t h e c o s t s of incarceration i s v a l i d d e s p i t e t h e lack of s p e c i f i c s t a t u t o r y a u t h o r i t y and argues t h a t the s i t u a t i o n i n t h e i n s t a n t case is similar. I t is argued t h a t a condition of payment f o r c o s t s t o soci- e t y relates d i r e c t l y t o t h e reformation of t h e offender and i s therefore valid. The S t a t e agrees, however, t h a t t h e a u t h o r i t y on t h i s matter i s divided. Before reaching t h e substantive i s s u e involved herein, it is f i r s t necessary t o discuss t h e S t a t e ' s contention t h a t defendant's f a i l u r e t o o b j e c t t o h i s sentence i n t h e t r i a l c o u r t precludes our reviewing t h i s matter. I n t h i s case, t h e Court has been placed i n an undesir- a b l e position, more so because t h i s is a criminal proceeding. Our hearing the matter has been challenged because no objec- t i o n was recorded i n t h e D i s t r i c t Court. Defense counsel r e l a t e s t h a t objections w e r e made i n chambers where t h e f i r s t discussion of these conditions w a s had, b u t no record was taken and so none i s a v a i l a b l e t o t h i s Court. There i s no need f o r these problems, and w e have commented on t h i s type of matter on previous occasions. This Court i s n o t going t o w i l l i n g l y continue t o be placed i n t h i s kind of circumstance and cannot emphasize too strongly t h a t a proper record must be had a t a l l stages of t h e proceedings with p a r t i c u l a r emphasis on criminal matters. Traditionally, i n both c i v i l and criminal matters, t h i s Court has n o t accepted f o r review i s s u e s which were n o t objected t o a t t h e t r i a l l e v e l . S t a t e v. Armstrong (1977), 172 Mont. 296, 562 P.2d 1129; State v. ~ a d i (1975), 168 Mont. 320, 542 P.2d 1206; S t a t e v. Paulson (1975)r 167 Mont. 310, 538 P.2d 339. This Court, however, has never s p e c i f i c a l l y r u l e d on t h e question presented here. That is, whether an objection a t t h e t r i a l l e v e l i s a p r e r e q u i s i t e t o the challenging of a sentencing order on appeal. This i s s u e has been r u l e d on i n o t h e r j u r i s d i c t i o n s with varying r e s u l t s . A p o l l of such j u r i s d i c t i o n s r e v e a l s t h a t Arkansas (Haynie v. S t a t e (1975), 257 Ark. 542, 518 S.W.2d 492), Idaho (Pulver v. S t a t e (1968), 92 Idaho 627, 448 P.2d 241), and Kansas (Peterson v. S t a t e (1967), 200 Kan. 18, 434 P.2d 542), have held t h a t an appel- l a t e c o u r t cannot review a sentence i f t h e r e was no objec- t i o n t o it a t t h e t r i a l level. I l l i n o i s (People v. Depratto (1976), 36 Ill.App.3d 338, 343 N.Ed.2d 628), Indiana (Klein- r i c h e r t v. S t a t e (1973), 260 Ind. 537, 297 N.E.2d 822), F l o r i d a (Kohn v. S t a t e (19741, - F l a .App. , 289 So.2d 48), Pennsylvania (Commonwealth v. Lane (1975), 236 Pa.Super. 462, 345 A.2d 233), and Oregon ( S t a t e v. Braughton (19771, 28 0r.App. 891, 561 P.2d 1040), on t h e o t h e r hand, do n o t r e q u i r e an o b j e c t i o n before t h e v a l i d i t y of a sentence can be reviewed. S t a t e v. Braughton, supra, i s s i m i l a r t o t h e i n s t a n t case. Braughton involved a p l e a agreement wherein t h e defendant was sentenced t o t e n y e a r s i n p r i s o n , which was suspended on t h e condition t h a t he make r e s t i t u t i o n t o f i v e businesses which w e r e t h e victims of crimes f o r which he had never been charged. Defendant objected t o t h i s p o r t i o n of h i s sentence on t h e grounds t h a t t h e c o u r t exceeded i t s s t a t u t o r y a u t h o r i t y i n imposing t h i s condition. Before reaching t h e m e r i t s of t h e case, t h e state r a i s e d t h e ques- t i o n of whether t h e sentencing o r d e r entered w a s s u b j e c t t o review a t a l l i n l i g h t of t h e f a c t t h a t t h e defendant made no o b j e c t i o n t o t h e order a t t h e t i m e of i t s e n t r y . The c o u r t s t a t e d : ". . . The sentencing a u t h o r i t y of a c o u r t e x i s t s s o l e l y by v i r t u e of a s t a t u t o r y g r a n t of power and t h e r e f o r e cannot be exercised i n any manner not specifically authorized . . . Where, as in this case, it is alleged that a sentencing court has exceeded its statutory authority in imposing a specific sentence, an objection below is not a prerequisite to the challenging of the sentencing order alleged to be void." Braughton, 561 P.2d at 1041, note 2 . (Citations omitted.) 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. As a practical matter, this may be a defen- dant's only hope in cases involving deferred imposition of sentence. If a defendant objects to one of the conditions, the sentencing judge could very well decide to forego the deferred sentence and send him to prison. To guard against this possibility, a defendant often times must remain silent even in the face of invalid conditions. We, therefore, accept jurisdiction in this matter. While the substantive issue involved in this case is claimed to be one of first impression, it is only a varia- tion of State v. Babbit, supra, and others. Babbit involved a defendant who was convicted of crim- inal possession of dangerous drugs and given a deferred imposition of sentence. As one of the conditions of his sentence, defendant was ordered to pay $200 to the County of Missoula to be placed into a drug enforcement fund and was in the nature of a fine. The offense Babbit was convicted of provided for imposition of a prison term upon conviction, but not for the imposition of a fine. This Court ruled that under what is now section 46-18-201(1), MCA, a fine could not be imposed as a condition of a deferred imposition of sentence where there was not a reasonable association between the fine imposed and the crime committed or where it was not found to be a reasonable or necessary condition of probation or for the protection of the public. 574 P.2d at 1001, 1002. Under the circumstances in Babbit, this Court held that a fine could not be imposed as a condition of the deferred imposition of sentence. In deciding Babbit, this Court relied heavily on an Arizona case, State v . Pitts (1976), 26 Ariz.App. 390, 548 P.2d 1202, citing the following rationale: II I . . . Imposition of a fine is the passing of a sentence and not the suspension of sentence. The fact that the court terms it a condition of probation does not render it any the less a sentence. We are not here dealins with a condi- ---- d - - tion of probation which requires the defendant -- to make restitution to the crime victim. That -- -- would be a whollv different matter.' . . . "The Arizona court further reasoned that if a fine (as here and not related to our guidelines) were to be allowed as merely a condition of pro- bation, the default in payment could result in revocation of probation and imprisonment -- for the maximum period allowed by the statute for the crime £ 0 ; which defendant was convicted. In that event the failure to pay a small fine may result in defendant's imprisonment far exceeding the period ordinarily permitted." State v. Bab- bit, 574 P.2d at 1001. (Emphasis supplied.) The State attempts to distinguish Babbit and argues that a condition requiring reimbursement of attorney fees is analogous to restitution to a crime victim and distinguish- able from the payment of a fine. Various cases are cited for the proposition that reimbursement of attorney fees is permissible under statutes similar to our section 46-18-201, MCA, if certain constitutional guidelines are met. State v. Foust (1972), 13 N.C.App. 382, 185 S.E.2d 718; State v. Smith (1978), 118 Ariz.App. 345, 576 P.2d 533; State v. Rogers Iowa r State v. Barklind (1975), 12 Wash.App. 818, 532 P.2d 633. The leading case on the above guidelines is Fuller v. Oregon (1974), 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642. The United States Supreme Court in Fuller upheld an Oregon recoupment statute which placed certain limitations on the actual recoupment process. They were as follows: (1) A requirement of repayment may be imposed only upon a convicted defendant; (2) A court may not order a convicted person to pay these expenses unless he is or will be able to pay them; the sentencing court must take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose; no requirement to pay may be imposed if it appears at the time of sentencing that there is no likelihood that a defendant's indigency will end; ( 3 ) A convicted person under an obligation to repay may at any time petition the court which sentenced him for remission of the payment of costs or of any unpaid portion thereof; and (4) No convicted person may be held in contempt for failure to repay if he shows that his default was not attri- butable to an intentional refusal to obey the order of the court or to a failure on his part to make a good faith effort to make the payment. Fuller v. Oregon, 40 L.Ed.2d at 650. There is no statute in Montana which specifically enumerates the Fuller guidelines. Further, the District Court makes no mention in its order of those guidelines. Failure to do so revives the fears espoused by this Court in Babbit : ". . . the default in payment could result in revocation of probation and imprisonment -- for the maximum period allowed by the statute for the crime which defendant was convicted. In that event the failure to pay a small fine may result in defendant's imprisonment far exceeding the period ordinarily permitted." 574 P.2d at 1001. This Court is aware of the financial burden placed on the counties and the State by the criminal justice system. We do not disagree with the proposition of reimbursement to the State. On the contrary, we applaud the trial judge for his efforts. However, we feel that recoupment provisions should be made to operate with considerations given to ability to repay, and in the event of default, the penalty should be a form of civil liability rather than possible criminal sanctions. Recoupment is not a magic word, and it may be possible and desirable to perfect a system outside that kind of legislation. The judgment of the deferred imposition of sentence is remanded to the District Court with instructions to vacate the repayment of attorney fees condition complained of and enter its order accordingly. We concur: FA^ J, %@4& Chief Justice | November 21, 1979 |
341c3c36-9423-40a9-ae0a-3939f75495c9 | MERCHANTS ASSOCIATION v CONGER | N/A | 14875 | Montana | Montana Supreme Court | No. 1 4 8 7 5 I N THE SUPREME COURT OF THE STATE OF F4ONTANA 1 9 7 9 MERCHANTS ASSOCIATION, P l a i n t i f f and R e s p o n d e n t , -vs- GENEVIEVE CONGER D e f e n d a n t and A p p e l l a n t . A p p e a l f r o m : D i s t r i c t C o u r t of the T h i r t e e n t h J u d i c i a l D i s t r i c t , H o n o r a b l e C h a r l e s L u e d k e , Judge presiding. C o u n s e l of R e c o r d : For A p p e l l a n t : D. M i c h a e l E a k i n , H a r d i n , M o n t a n a F o r R e s p o n d e n t : T e r r e n c e S w i f t , B i l l i n g s , M o n t a n a Submitted on B r i e f s : O c t o b e r 30, 1 9 7 9 D e c i d e d : DEC 2 7 1 9 7 9 F i l e d : DEC 2 7 1979 Mr. Justice John C. Sheehy delivered the Opinion of the Court. Genevieve Conger appeals from an order entered by the District Court, Thirteenth Judicial District, Big Horn County, denying Genevieve's motion to appeal to the District Court without the undertaking required by section 25-33-201(1) MCA. In February 1977, Merchants Association initiated a cause in Justice Court, Big Horn County, seeking to collect $855.77 for merchandise allegedly purchased by Genevieve from Montgomery Wards, Inc. Montgomery Wards had assigned the debt to Merchants Association, a collection agency. The trial of this cause was held in July 1978. The Justice Court entered judgment in favor of Merchants Association for the total sum of $1,067.62, including costs and interest. In August 1978, Genevieve filed with the Justice Court a notice of appeal to the District Court. Genevieve also filed an affidavit of her inability to provide the undertaking required by section 25-33-201(1) MCA. In October 1978, the Justice Court ordered all pleadings to be transmitted to the District Court. The Justice Court specifically refrained from ruling on the undertaking. On February 27, 1979, Genevieve moved the District Court for permission to proceed without the required undertaking. Genevieve's motion was denied on March 27, 1979. Genevieve next filed a notice of appeal to this Court. Genevieve also moved the District Court for permission to appeal without prepayment of costs. The District Court denied Genevieve's motion. On September 13, 1979, we granted Genevieve permission to appeal -- in forma pauperis. Pursuant to Rule 38, Mont.R.App.Civ.P., the attorney general was notified that the constitutionality of a legislative act was drawn into question upon this appeal. The attorney general decided not to intervene. Merchants Association also did not submit a brief. Genevieve raises three issues upon appeal. 1. Does section 25-33-201(1) MCA, as applied to Genevieve violate the equal protection clause of the Fourteenth Amend- ment to the United States Constitution by barring an indigent defendant access to the District Court? 2 . Does section 25-33-201(1) MCA, as applied to Genevieve violate Art. 11, S16 of the new Montana Constitution by barring an indigent defendant access to the District Court? 3 . Does section 3-10-202 MCA, violate the due process clauses of the new Montana Constitution and the Fourteenth- Amendment to the United States Constitution by denying litigants a hearing before a lawyer-judge? We will not reach the second and third issues raised by Genevieve. We hold that section 25-33-201(1) MCA, as applied to Genevieve violates her Fourteenth Amendment equal protection rights. Genevieve asserts that access to the District Court upon appeal from the Justice Court is a fundamental right and cannot be denied absent a compelling state interest. We will not apply the compelling state interest standard here. As applied to Genevieve, section 25-33-201(1) MCA, violates even the lower traditional equal protection test. The Fourteenth Amendment to the United States Constitution permits Montana a wide scope of discretion in enacting laws which affect some groups of citizens differently from others. Under the traditional equal protection standard, such enactments offend the Fourteenth Amendment only if the classification is arbitrary and rests on grounds wholly irrelevant to the achieve- ment of the State's objective. Habron v . Epstein (D. Md. 1976), -3- 412 F.Supp. 256, 262. We find such a situation here. Section 25-33-201(1) MCA, provides as follows: ". . . An appeal from a justice's or city court is not effectual for any purpose unless an undertaking be filed, with two or more sureties, in a sum equal to twice the amount of the judg- ment, including costs, when the judgment is for the payment of money. The undertaking must be conditioned, when the action is for the recovery of money, that the appellant will pay the amount of the judgment appealed from and all costs if the appeal be withdrawn or dismissed or the amount of any judgment and all costs that may be recovered against him in the action in the district court." We have searched the legislative history of section 25-33-201 MCA, without success for its objective. The legislative records concerning this statute are, to say the least, incomplete. The statute seems to originate in the Bannack statutes of Montana. Our research has, however, suggested three possible objectives of the statute. These objectives are to guard the already awarded judgment of the Justice Court, to secure any possible judgment by the District Court and to prevent frivolous appeals. All are legitimate purposes, but none are effectuated by the double undertaking required by the statute. The required undertaking is completely unrelated to any judgment actually recoverable in either the Justice Court or the District Court. Similarly, while the undertaking may prevent some frivolous appeals, it also prevents meritorious appeals by the poor and does not prevent frivolous appeals by the rich. Lindsey v. Normet (1972), 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36. Under any of the proposed objectives, the statute as applied to Genevieve must fall. It is true that under the Lindsey statute the appellant automatically forfeited the entire double bond upon losing on the merits in the appellate court; whereas, under section 25-33-201 MCA, Genevieve would forfeit only the amount of the judgment plus costs upon losing on the merits in the District Court. This distinction is not controlling. Under our statute, Genevieve must still post an undertaking that is completely unrelated to any possible judgment before she can even get her foot in the door. We note in passing that our decision today should not affect those statutes providing double or treble damages for conduct regarded by the Montana legislature as particularly reprehensible. Such statutes present different considerations than those before us now. The order of the District Court is reversed. The cause is remanded for further proceedings in accordance with this opinion. Justice We Concur: Chief Justice w Justices | December 27, 1979 |
8a8fc883-436c-45fb-86fb-b5f740fc3d6a | STATE v WILLIAMS | N/A | 14871 | Montana | Montana Supreme Court | No. 14871 I N T H E SUPREME C O U R T O F T H E STATE OF M O N T A N A 1979 T H E STATE O F MONTANA, P l a i n t i f f and Respondent, v s . DIONISIO WILLIAMS, Defendant and Appellant. Appeal from: D i s t r i c t Court o f t h e ~ h i r t e e n t h J u d i c i a l D i s t r i c t , Honorable C. B. Sande, Judge p r e s i d i n g . Counsel o f Record: For Appellant: Michael J. Whalen argued, B i l l i n g s , Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana John Maynard argued, A s s i s t a n t Attorney General, Helena, Montana Harold F. Hanser, County Attorney, B i l l i n g s , Montana Robert Waller argued, Deputy County Attorney, B i l l i n g s , Montana Submitted: December 10, 1979 Decided : - - - - .,p A,- F i l e d : - :m Clerk Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. Defendant Dionisio (Danny) Williams was found guilty of two counts of conspiracy by a jury in Yellowstone County District Court. The Honorable C . B . Sande entered judgment of conviction and sentenced Williams to five years on Count I and 10 years on Count 11, the sentences to be served consecu- tively. Williams appeals. Defendant and the State present drastically different versions of the facts. The State's theory is that Williams masterminded a burglary and a theft in Billings, Montana. The burglary occurred first. The State asserts that on November 10, 1978, Williams drove Mark Alberta and Jack Suiter to a Billings residence and directed them to break in and steal drugs. Alberta and Suiter entered the house but found no drugs. They went back to the car and Williams directed them along with another juvenile, to return to the house and steal a stereo. They returned with the stereo, a pistol and some clothes. Police recovered the stereo from defendant's stepmother's house. The gun was recovered from Denise Barker, with whom Williams had left it. The robbery of the gas station occurred on November 15, 1978. Alberta and Suiter, together with Mark Best and Williams, were at ~illiams' apartment where the State contends they planned the robbery. About 2:00 a . m . Best and Williams left the apart- ment and drove to the gas station. Best told one of the atten- dants the station would be robbed shortly and warned him not to resist. He also said if the attendants cooperated they would be rewarded with a small amount of marijuana. Best informed the other attendant of this by phone. Upon returning to the apartment, Williams gave Alberta and Suiter stockings to use as masks, a gun, rope from under the sink and his car keys. Alberta and Suiter committed the crime and returned to defendant's apartment and distributed the money. The rope they used to tie the attendants up was found by the police and the gun was found in a compartment a few feet from Williams' apartment. When Alberta was first questioned by the police, he did not implicate Williams in either crime. He later changed his story and the facts to which he testified are substantially those summarized above. Williams denies any agreement to or participation in the crimes. He asserts he was "holding" the stereo equipment found at his stepmother's house while he raised money to buy it from Alberta and Suiter. He also contends that his car was used by Alberta and Suiter but that he had no knowledge they were going to commit a robbery. He testified he went to the gas station with Best but that he did not know about the robbery nor did he have any conversation about it. Best appeared as a rebuttal witness and testified that he and Williams planned the gas station robbery together. The issues on appeal, as framed by the State, are: 1 . Did the District Court's denial of the defendant's motion for change of venue or a continuance deprive him of due process? 2 . Did the District Court err in denying defendant's challenge for cause of juror Leona Whetham? 3 . Was the testimony of defendant's accomplices adequate- ly corroborated? 4. Did the District Court err in allowing the rebuttal testimony of Mark Best? 5 . Did the District Court err in denying defendant's motion for a mistrial? 6. Did the District Court properly instruct the jury? Defendant first argues that certain articles appearing in the Billings Gazette were "inflammatory" and "invidious" parts of a campaign staged against him by local law enforcement personnel and the media. On the basis of this publicity, defendant filed a motion for a change of venue under section 46-13-203, MCA. The premise of such motion was that prejudice against defendant in the county in which he was charged was such that he could not receive a fair trial in that county. Such matters are "addressed to the sound discretion of the trial court, and unless there has been shown a clear abuse of discretion, its ruling will not be dis- turbed." See also State v . Hoffman (1933), 94 Mont. 573, 580, 23 P.2d 972; State v. Lewis (1976), 169 Mont. 290, 295, 546 P-2d 518. In conjunction with the motion for a change of place of trial, defendant alternatively sought a continuance. The thrust of his argument in this regard is that during the continuance the alleged fervor created by the publicity would have died down. This Court has stated: "Motions for continuance are addressed to the dis- cretion of the trial court and the granting of a continuance has never been a matter of right. (Cita- tion omitted.) The district court cannot be over- turned on appeal in absence of a showing of prejudice to the movant. (Citation omitted.) "Defendant's argument therefore must stand or fall on the issue of prejudice, for the district court can be said to have abused its discretion only if its ruling was prejudicial. We have not found a single case . . . in which the denial of a motion for continuance was reversed without a showing of resulting prejudice to the movant." State v. Paulson (1975), 167 Mont. 310, 315, 538 P.2d 339. The motions for a change in venue and a continuance were denied. Defendant argues he was thereby denied his right to a fair trial "by a panel of impartial 'indifferent' jurors." Irvin v . Dowd (1961), 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L Ed 2d 751, 755. We disagree. "Indicia of this denial of fair trial, resulting from prejudicial publicity, as gleaned from our law, seems to be: Arousing feelings of the com- unity, threat to personal safety of defendant, established opinion of members of the community as to the guilt of the accused, news articles beyond the objectivity of news printing and dissemination, State v. Dryman, 127 Mont. 579, 269 P.2d 796, and difficulty or failure in securing a fair, impartial jury from the community in which the news articles appeared, State v. Davis, supra, 60 Mont. 426, 199 P . 421; State v . Bess, 60 Mont. 558, 199 P. 426. "Our court looks for a chain reaction, It starts with the basic premise that the accused is entitled to a fair trial. Next it checks the publicity complained of, as to its contents and more impor- tant, as to its total effect upon the 'fair trial right.' Further, it looks at effects in the form of the discriminating marks we have discussed. Finally, it objectively considers the end result-- was a fair trial denied as a result of the publicity and its effects? If its findings are negative it refuses to find abuse of discretion on the part of the trial judge." State v . Board (1959), 135 Mont. 139, 143-144, 337 P.2d 924. Defendant's assertion that prejudice flowed from the article is unsupported by affidavit or otherwise. An affidavit must accompany a motion for a change of venue, section 46-13- 203, MCA, and for this reason alone, that motion could have been properly denied. However, our decision rests on the fact that, even if the community was aroused by the publicity or if there was an opinion regarding defendant's guilt within the community, the facts do not indicate he was denied a fair trial. Of the twelve jurors and one alternate selected, nine could not recall having heard or read anything about the case and three remembered only defendant's unusual name or that the gas station had been robbed. One juror was not asked any questions at all. There was no abuse of discretion in denying the motions. In connection with this matter, we feel compelled to issue a warning to prosecuting attorneys and law enforcement of- ficers concerning statements to the news media prior to trial. A criminal defendant is guaranteed the right to a trial by an impartial jury in a court of law. U . S . Const., Amend. VI; 1972 Mont.Const., Art. Extrajudicial statements by prosecutors and law enforcement personnel prejudicial to defendant and which are disseminated in the news media prior to trial may under some circumstances destroy the impartiality of prospective jurors. Certain extrajudicial statements that were made in this case following defendant's release on his own recognizance prior to trial appeared in the Billings Gazette on March 9, 1979: "Several Billings police officers, who said they did not know Williams was out of jail until the beating incident, expressed dismay that 13th District Judge C. B . Sande approved his release. "One Billings detective who has helped track Williams down twice in the last three months, said, 'Why are we doing this again? He'll probably only be let out again.' "A deputy county attorney said of Williams' release, 'I think it's a mistake, a big mistake.'" The making of statements like the ones in this case indi- cates a disregard for principles embodied in our system of law. In the long run, such statements are harmful to law enforcement and potentially damaging to the right of an accused to a trial before an impartial jury. In this case, the publication of the comment did not contaminate the jurors because they remembered so little about the pretrial publicity in the case. However, under other circumstances and in a different context, these or similar comments might deny an accused his right to a fair trial before an impartial jury or require the place of trial to be changed at considerable expense and delay. Defendant next argues that the presence of Leona Whetham on the jury deprived him of his right to trial by a fair and im- partial jury. Her prejudice, according to defendant, was revealed on voir dire: "Q. [By defense counsel Whalen.] Mrs. Whetham, do you and your husband subscribe to the Billings Gazette? "MRS. WHETHAM: Yes. "Q. Do you read it on a regular basis? "MRS. WHETHAM: Yes. "Q. Has anyone talked to you about the case at all before today? "MRS. WHETHAM: No. "Q. Have you mentioned it or discussed it with anyone else, your husband or any outsider? "MRS. WHETHAM: Not that I remember of, no. "Q. Do you recall having read about it in the paper? "MRS. WHETHAM: I remember that gas station was robbed, and that is all I remember. "Q. But you don't recall any specific articles in connection with this defendant, is that correct? "MRS. WHETHAM: That is right. "Q. Do you know of any reason why you could not be fair and impartial if you were selected as a trial juror in this case? "MRS. WHETHAM: No. - "Q. If, during the course of this case, you should develop a feeling that this defendant may have done things which you would not approve of, but still at the same time if you have a doubt as to whether or not he is guilty of a particular offense with which he is charged, what would you do during the course of your deliberations? "MRS. WHETHAM: Pardon me, would you . . . "Q. I say, if at the conclusion of this case that there are some things that came to your attention about this defendant's conduct which you dislike, and let's say you disliked it intensely, but yet at the same time you had a reasonable doubt in your mind during your deliberations as to whether or not he is guilty of a particular offense with which he is charged here, what would you do? "MRS. WHETHAM: Well, seeing as how it is not his personal actions and stuff, that you are charging him for, well, what would you do is the evidence that he is on trial for. if there is a doubt that he had done it, I would acquit him. "Q. If you hated him, but you had a . - reasonable - . - doubt as to whether or not he was guilty ot the offense with which he is charaed, would vou acauit him? "MRS. WHETHAM: I believe so, yes. "Q. Do you have any doubt about it? "MRS. WHETHAM: Well, I suppose if it came down to really personal feelings about him, you might have that waive how you vote, I imagine, if it was real strong. "Q. I don't want to talk unreasonably with you, but I think that the substance of the instructions upon the law would be that you have to find he is guilty of the particular offense with which he is charged, beyond a reasonable doubt, and I don't want to be unfair, but on the other hand, I don't want the defendant convicted if he [sic] should have a doubt about his guilt of the particular offense, but just did not like him, I don't know if you are following my distinction or not. "MRS. WHETHAM: Yes. "Q. With that in mind, do you feel you could be fair and im~artial. if vou were selected as a trial iuror in this cause? "MRS. WHETHAM: Well, no I don't think so then. "Q. You don't think you could? "MRS. WHETHAM, - No. "MR. WHALEN: Your Honor, I respectfully challenge the juror for cause for implied bias. "COURT: Mr. Waller? "Q. [by Deputy County Attorney Waller] Mrs. Whetham, I really don't understand why you feel you would not be able to be fair and impartial. "MRS. WHETHAM: Well, if I suppose that would, if he had done something you try to be fair, you know, but whether you get into the personal like he was saying, some things that did not really believe that he should have done, it would probably put you (inaud- ible), I imaqine. "Q. Well, you would decide whether he was guilty or innocent, based upon the evidence, wouldn't you? "MRS. WHETHAM: Try to anyway. "Q. Correct, and you would try to not let your personal feelings intrude in that, wouldn't you? "MRS. WHETHAM: (inaudible. ) " Q . If you hated him, but you had a . reasonable - - - doubt as to whether or not he was gullty ot the o f f e n s e with which he is charaed. would you ac~uit him? "MRS. WHETHAM: I believe so, yes. "Q. Do you have any doubt about it? "MRS. WHETHAM: Well, I suppose if it came down to really personal feelings about him, you might have that waive how you vote, I imagine, if it was real strong. "Q. I don't want to talk unreasonably with you, but I think that the substance of the instructions upon the law would be that you have to find he is guilty of the particular offense with which he is charged, beyond a reasonable doubt, and I don't want to be unfair, but on the other hand, I don't want the defendant convicted if he [sic] should have a doubt about his guilt of the particular offense, but just did not like him, I don't know if you are followins . & my distinction or not. "MRS. WHETHAM: Yes. "Q. With that in mind, do you feel you could be fair and impartial, if you were selected as a trial juror in this cause? "MRS. WHETHAM: Well, no I don't think so then. "Q. You don't think you could? "MRS. WHETHAM, No. - "MR. WHALEN: Your Honor, I respectfully challenge the juror for cause for implied bias. "COURT: Mr. Waller? "Q. [by Deputy County Attorney Waller] Mrs. Whetham, I 'really don't understand why you feel you would not be able to be fair and impartial. "MRS. WHETHAM: Well, if I suppose that would, if he had done something you try to be fair, you know, but whether vou aet into the ~ersonal like he was - ~ - - - - - saying, someAthings that did not really believe that he should have done, it would probably put you (inaud- . - - . ible) , I imagine. "Q. Well, you would decide whether he was guilty or innocent, based upon the evidence, wouldn't you? "MRS. WHETHAM: Try to anvwav. "Q. Correct, and you would try to not let your personal feelings intrude in that, wouldn't you? "MRS. WHETHAM: (inaudible. ) "Q. Do you feel you are going to have any problems doing that? "MRS. WHETHAM: I would try not to, but I couldn't . . . "Q. You don't have any reason to hate or dislike the defendant at this time, do you? "MRS. WHETHAM: Not at all, no. "Q. You are aware of the fact that when the time comes, you could make your decision and would have to make it based upon the evidence? "MRS. WHETHAM: Yes. "Q. Are you prepared to do that? "MRS. WHETHAM: I would try to, yes. "MR. WALLER, I resist the challenge, Your Honor. "COURT: Deny the challenge, proceed." Our standard of review has been succinctly stated: "The examination of a juror on his voir dire is no more nor less than the taking of testimony on the issues raised as to his qualifications to serve in the case before the Court, (Citations omitted.) The determination must be left largely to the sound discretion of the trial court (Citations omitted.) and, in determining the question, the trial court, as in passing upon any other question of fact estab- lished by oral testimony, has the advantage of ob- serving the witness on the stand, his demeanor and candor, or lack of candor, and a review of the court's rulings and findings should be governed by the same rules as in reviewing any other findings and judg- ment based thereon. They should not be set aside unless error is manifest, or there is shown a clear abuse of discretion . . ." State v . Russell (1925), 73 Mont. 240, 235 P. 712. There was no abuse of discretion in this case. The existence of some confusion in the record is all the more reason to rely on the trial court's decision. "True, there are cases holding that when a witness has once admitted bias his subsequent statements that he can consider the evidence impartially should be viewed with caution. But granting the need for careful scrutiny of the testimony of a witness who has first said 'no' and then said 'yes', it still remains the province of the trial court to decide where the truth lies and with that determination the appellate court will not interfere unless a clear abuse of discretion is shown." State v. Allison (1948), 122 Mont. 120, 130, 199 P.2d 279, 286. Defendant's next contention is that the evidence does not support his conviction because the testimony of his accom- plices was insufficiently corroborated. The most recent explan- ation of the law on this point is found in State v . Kemp (1979), Mont . , 597 P.2d 96, 98-99, 36 St.Rep. 1215, 1217-1218: " . . . section 46-16-213, MCA, provides: "'Testimony of person legally accountable. A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in [45-2-301, MCA], unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.' "The sufficiency of evidence necessary to corrobo- rate accomplice testimony is a question of law. State v . Standley (1978), Mont . , 586 P.2d 1075, 1078, 35 St.Rep. 1631, 1635; State v. Perry (1973), 161 Mont. 155, 161, 505 P.2d 113, 117. In defining the quantum and character of proof required to corroborate accomplice testimony, a substantial body of caselaw has evolved. "To be sufficient, corroborating evidence must show more than that a crime was in fact committed or the circumstances of its commission. State v . Keckonen (1938), 107 Mont. 253, 263, 84 P.2d 341, 345. It must raise more than a suspicion of the defendant's involvement in, or opportunity5 3 7 ' commit, the crime charged. at . Gangner (19 ) , 130 Mont. 533, 535, 305 P.2d , 2 -%% . But corroborative evidence need not be sufficient, by itself, to support a defendant's conviction or even to make out a prima facie case against him. State v . Ritz (1922), 65 Mont. 180, 186, 211 P. 298, 300; State v . Stevenson (1902), 26 Mont. 332, 334, 67 P. 1001, 1002. Corroborating evidence may be circumstantial (State v . Harmon (1959), 135 Mont. 227, 233, 340 P.2d 128, 131) and can come from the defendant or his witnesses. State v . Phillips (1953), 127 Mont. 381, 387, 264 P.2d 1009, 1012. "With these principles in mind, each case must be examined on its particular facts to determine if the evidence tends, in and of itself, to prove defendant's connection with the crime charged. "One accomplice cannot supply the independent evidence necessary to corroborate another accomplice. State v . Bolton (i322), 65 b i o n t . 74, 88, 212 P. 504, 509; 30 Am Jur 2d Evidence, Sec. 1156 . . ." The key words in the statute are that the corroborating evidence must "tend to connect" defendant with the offense. . . . [Tlhere should be some fact deposed to, independently of the evidence of the accomplice, which taken by itself leads to the inference, not only that a crime has been committed, but that the prisoner is implicated in it." State v. Keckonen, 107 Mont. at 260, citing State v. Lawson (1912), 44 Mont. 488, 120 P . 808. There is no doubt the crimes were committed. The corrobo- rating evidence clearly tends to connect defendant with the com- mission of the crimes. As to the burglary: Defendant, although he was storing it at his stepmother's, had constructive possession of the property stolen. The pistol taken in the burglary was identified by its owner as the gun given by Williams to Denise Barker. Defendant admitted leaving the gun with ~enise Barker. In addition, defendant knew the burglary victim and had been to his house and had seen the stereo. As to the theft: Williams admitted being with Best, Alberta and Suiter immediately before the robbery and for much of the preceding evening. He admitted going to the gas station with Best before the robbery and having loaned his car to Alberta and Suiter during the time they committed the crime. The police found rope similar to that used in the robbery under Williams' kitchen sink. An FBI expert testified that this "robbery rope" and the "sink rope" were very similar. The ropes were compared on the basis of color, twist, and ply. Additionally, both ropes came from an exercise device. Both had "disks" which appeared to have been chewed on by a dog and when the ropes were viewed togeth- er they made a complete exercise device. The expert testified it was "extremely remote" that the "robbery rope" and the "sink rope" came from different pieces of rope. The foregoing independent evidence tends to implicate Williams in the crimes and when coupled with the accomplice testimony, supports his convictions. See State v. Dess (1969), 154 Mont. 231, - 11 - Defendant next argues that coconspirator Mark Best's testimony should not have been allowed. He contends that Best, appearing as a rebuttal witness testified to the elements of the crime. According to defendant, this was not properly re- buttal evidence but should have been introduced during the State's case-in-chief and Best should have been included in the list of potential witnesses in the information. Section 46-15-301(1), MCA, provides: "For the purpose of notice only and to prevent surprise, the prosecution shall furnish to the defendant and file with the clerk of the court at the time of arraignment a list of the wit- nesses the prosecution intends to call. The prosecution may, any time after arraignment, add to the list the names of any additional witnesses upon a showing of good cause. The list shall include the names and addresses of the witnesses. This subsection does not apply to rebuttal witnesses." (Emphasis supplied.) Rebuttal testimony is that which tends to disprove or contradict evidence presented by the adverse party. State v. Cates (1934), 97 Mont. 173, 200, 33 P.2d 578. The question here comes down to whether Best was rebutting or giving new evidence. Defendant was his own sole witness. He testified he knew nothing of the planned robbery of the Conoco station and did not ask Best to contact his friends who worked there. On rebuttal, Best testified that Williams was aware of the robbery and had asked him to telephone the station. Best's testimony tended to disprove defendant's testimony and was proper rebuttal. Defendant next asserts a mistrial should have been de- clared upon his testimony on cross-examination that he lived with and was supported by a female who was a prostitute. He contends this is inadmissible evidence of another crime. Section 45-5- 602(1)(h), MCA, makes it illegal to live off the wages of a prostitute. He concludes the evidence is inadmissible under Rule 404(b), M.R.Evid., which provides: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conform- ity therewith. It may, however, be admissible for other purposes, such as proof of motive, oppor- tunity, intent, preparation, plan, knowledge, iden- tity, or absence of mistake or accident." The evidence was not introduced to show that defendant acted in conformity with his character in committing the crimes charged. It was elicited from his own mouth in the course of cross-examination to show the implausibility of his contention that he hoped to buy the stolen stereo for $1,000. The fact that defendant had no independent income and was living off the wages of a prostitute was relevant to his financial status. We recognize the rule that even though relevant and other- wise admissible, evidence may be excluded if its prejudicial effect substantially outweighs its probative value. Rule 403, M.R.Evid.; State v . Rollins (1967), 149 Mont. 481, 484, 428 P.2d 462. The trial judge made this determination and admitted the testimony. We find no abuse of discretion. There is nothing in the record to indicate that the jury was informed that living off the wages of a prostitute is a crime and it is difficult to imagine how such evidence could lead to conviction of conspiracy to commit burglary and theft. Defendant's final specification of error is that several jury instructions were improper. The first instruction to which he objects reads, in pertinent part: "A voluntary act includes an omission to perform a duty which the law imposes on the offender and which he is capable of performing. "The word 'act' means a thing done or that which is done. It includes any bodily movement, any form of communication, and where relevant, a failure or omission to take action." Instruction No. 3 . Defendant argues that in order to commit the crime of conspiracy, an overt act is necessary. Conversely, he argues that the elements of the crime cannot be met by proof of an omission. The jury was instructed in the words of the statute: "A person commits the offense of conspiracy when, with the purpose that an offense be committed, he agrees with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense unless an - act in furtherance of such agreement has been committed by him or by a coconspirator." Section 45-4-102(1), MCA. (Em- phasis added.) Also by statutory definition: "'Act' has its usual and ordinary meaning and includes any bodily movement, any form of communi- cation, and where relevant, a failure or omission to take action." Section 45-2-283_ (I), MCA. (Em- phasis added.) / We reject the argument that conspiracy may never be proved by demonstrating an omission to act in furtherance of the conspiracy. See e.g. Gerson v . United States (8th Cir. 1928), 25 F.2d 49, con- spiracy to fail to list assets in bankruptcy. The theory upon which this case was tried by the State was that defendant or another coconspirator had done overt acts in furtherance of the crime. As the jury was instructed that the definition of "act" included omission only "where relevant" we are unable to find any error in the instruction. Instruction No. 3 continues: "Purpose or knowledge are manifested by the cir- cumstances connected with the offense and need not be proved by the direct evidence but may be inferred from acts, conduct and circumstances appearing in evidence." (Emphasis added.) Defendant's objection is that this portion of the instruction unconstitutionally shifts the burden of proof from the state to defendant on the element of intent and thus violate the principles set forth in Sandstrom v. State of Montana (1979), U.S. I S.Ct. , 61 L Ed 2d 39. We disagree. The basis of the United States Supreme Court in its Sandstrom decision was that the jurors "were not told that they had a choice or that they might infer that conclusion; they were told only that the law presumed it." U.S. at S.Ct. at , 61 L Ed 2d at 45. - 1 - (Emphasis added.) Regarding the inference, as distinguished from the presumption of intent, the United States Supreme Court has said: "Since intent must be inferred from conduct of some sort, we think it is permissible to draw usual reasonable inferences as to intent from overt acts." Cramer v . United States (1945), 325 U . S . 1, 31, 65 S.Ct. 918, 933, 89 L.Ed. 1441, 1459. The Court's instruction No. 5 is as follows: "You are instructed that the doubt which a juror is allowed to retain in his mind and under the influence of which he should form a verdict of not guilty, must always be a reasonable one. "A reasonable doubt is not such a doubt as a man may start by questioning for the sake of a doubt, nor a doubt suggested or surmised without founda- tion in the facts or testimony. It is such a doubt as in a fair, reasonable effort to reach a conclusion upon the evidence, using the mind in the same manner as in other matters of the highest and gravest importance, prevents the jury from corn- ing to a conclusion in which their minds rest satis- fied. "If, in so using the mind and considering all the evidence produced, it leads to a conclusion which satisfies the judgment and leaves upon the mind a settled conviction of the truth of the fact, it is the duty of the jury to declare the fact by their verdict. "It is possible always to question any conclusion derived from testimony, but such questioning is not what is a reasonable doubt. A reasonable doubt exists in that state of the case which, after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge. "A doubt produced by undue sensibility in the mind of any juror, in view of the consequences of his verdict, is not a reasonable one, and a juror is not allowed to create sources or materials of doubt by resorting to trivial and fanciful suppositions and remote conjectures as to a possible state of facts differing from that established by the evidence." Instruction No. 6 provides: "The law does not require demonstration--that is, such a degree of proof as, excluding possibility of error, produces absolute certainty, because such proof is rarely possible. "Moral certainty only is required, or that degree of proof which produces conviction beyond a reason- able doubt in an unprejudiced mind." Defendant contends that Instruction No. 6 is repetition of Instruction No. 5 and unduly emphasizes the cautionary aspects of reasonable doubt. We disagree. Instruction No. 5 defines and explains reasonable doubt while Instruction No. 6 defines the degree of proof necessary to convict. Both are proper in- structions. Defendant also assigns error to Instruction No. 9: "A person commits the offense of conspiracy who, with the purpose that the offense of theft be com- mitted, agrees with others to the commission of the offense of theft, and an act in furtherance of the agreement is performed by any party to the agreement. "Each party to a conspiracy is responsible for all acts performed by his co-conspirators in furtherance of the conspiracy. "To constitute the offense of conspiracy it is not necessary that the conspirators succeed in committing the offense of theft." We reject defendant's argument that the instruction is in the abstract and does not apply to the facts and law of the case. The instruction is proper in this case. This statement of the law is entirely correct. The final objection is to Instructions No. 10 and 11, which read: "A person commits the offense of Burglary if he knowingly and unlawfully enters or remains in an occupied structure with the purpose to commit an offense therein." No. 10. "A person commits the offense of Theft when he pur- posely or knowingly obtains or exerts unauthorized control over property of the owner and has the pur- pose of depriving the owner of the property. The offense of Theft is a felony where the value of the property taken exceeds $150.00." No. 11. The crime of conspiracy contemplates an agreement to commit an act punishable by law, here burglary and theft. It is not error to instruct the jury as to the crimes underlying the charges of conspiracy. Affirmed. Chief Justice We concur: | December 27, 1979 |
210d9eac-097f-473e-8166-d9e4e77e898f | MARRIAGE OF MIKKELSON v MIKKELSON | N/A | 14720 | Montana | Montana Supreme Court | No. 14720 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN RE THE MARRIAGE OF WANDA LOUISE MIKKELSON, Petitioner and Respondent, -vs- RICHARD L . MIKKELSON , Respondent and Appellant. Appeal from: District Court of the Thirteenth Judicial District, Honorable C.B. Sande, Judge presiding. Counsel of Record: For Appellant: Gary Wilcox, Billings, Montana For Respondent : Berger, Anderson, Sinclair & Murphy, Billings, Montana Submitted on Briefs: Sept. 20, 1979 Decided : NOV 2 1 193 M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court. his i s an appeal from an o r d e r of t h e District Court of t h e ~ h i r t e e n t h J u d i c i a l D i s t r i c t , t h e Honorable C. B. Sande presiding. The o r d e r , dated February 20, 1979, granted Wanda Mikkelson's p e t i t i o n t o modify t h e custody provision of t h e o r i g i n a l decree of d i s s o l u t i o n s o a s t o v e s t l e g a l custody of t h e minor c h i l d of t h e p a r t i e s h e r e t o with Wanda Mikkelson, respondent herein, r a t h e r than with Richard Mikkelson, a p p e l l a n t herein. The p a r t i e s w e r e married on January 1 2 , 1974, and a c h i l d , Michelle Lanette, was born on May 11, 1974. I n August 1976 respondent f i l e d a p e t i t i o n f o r d i s s o l u t i o n requesting t h a t t h e marriage of t h e p a r t i e s be dissolved and t h a t she be granted custody of t h e minor c h i l d . O n June 3 , 1977, a decree of d i s s o l u t i o n w a s entered granting l e g a l custody t o a p p e l l a n t . Testimony was contradictory a s t o why custody of Michelle w a s granted t o a p p e l l a n t . Respondent s t a t e d t h a t she con- sented t o granting custody t o a p p e l l a n t i n exchange f o r h i s promise t o o b t a i n a hardship discharge from t h e Navy so t h a t t h e p a r t i e s could attempt t o r e s o l v e t h e i r problems, most of which w e r e centered around a p p e l l a n t ' s absences from home. Appellant denies t h i s and s t a t e s t h a t respondent agreed t o g i v e him custody a f t e r he threatened her with a c o u r t b a t t l e because of her adulterous conduct. I n May 1978 a p p e l l a n t was granted a hardship discharge from t h e Navy because respondent, who had physical c o n t r o l of Michelle during t h i s t i m e , was involved i n a s e r i o u s automobile accident i n A p r i l 1978. There w a s no d i s p u t e i n t h e record t h a t , s i n c e her b i r t h , Michelle has been i n t h e custody of respondent with t h e exception of t h e t i m e t h e p a r t i e s resided j o i n t l y . Upon h i s r e l e a s e from t h e Navy i n A p r i l 1978, a p p e l l a n t returned t o Montana b u t moved t o Indianapolis, Indiana, s h o r t l y t h e r e a f t e r where he worked, went t o school, and w a s r e s i d i n g a t t h e time t h e p r e s e n t c o n f l i c t arose. O n Septem- ber 16, 1978, a p p e l l a n t came t o Roundup, Montana, where re- spondent w a s l i v i n g with Michelle, o s t e n s i b l y j u s t t o v i s i t h i s daughter. Instead, a f t e r taking c o n t r o l of Michelle under t h e pretense of v i s i t i n g r e l a t i v e s i n Roundup f o r an hour o r so, a p p e l l a n t returned t o Indiana with her. A f t e r t h e above i n c i d e n t , respondent sought counsel and on September 20, 1978, f i l e d a p e t i t i o n t o modify t h e custody provision of t h e o r i g i n a l decree of d i s s o l u t i o n , sup- ported by a f f i d a v i t . O n t h e b a s i s of t h e p e t i t i o n and a f f i - d a v i t , Judge Sande i s s u e d an order dated September 20, 1978, r e q u i r i n g t h e r e t u r n of t h e c h i l d t o Montana where she was t o remain with her mother pending t h e f i l i n g of c o u n t e r a f f i - d a v i t s and subsequent hearings. Appellant refused t o r e t u r n t h e c h i l d t o Montana a f t e r being served with t h e p e t i t i o n and order on September 26, 1978. Proceedings were commenced by respondent i n Indiana t o enforce Judge Sande's order of September 20, 1978. A s a r e s u l t , a p p e l l a n t was ordered i n December 1978 t o r e t u r n Michelle t o Montana. A hearing on t h e m e r i t s was scheduled on January 1 0 , 1979. A p e t i t i o n f o r a w r i t of supervisory c o n t r o l was f i l e d with t h i s Court (Cause No. 14635), b u t t h e p e t i t i o n w a s denied without p r e j u d i c e on January 5, 1979, t o allow t h e D i s t r i c t Court t o proceed. A hearing was f i n a l l y held by t h e D i s t r i c t Court on January 23, 1979. ~ a s e d on t h e testimony presented a t t h e January 23 hearing, the c o u r t , on February 20, 1979, granted t h e r e l i e f requested by respon- d e n t and t r a n s f e r r e d l e g a l custody of Michelle t o her. It is from t h e c o u r t ' s order of February 20, 1979, t h a t t h i s appeal is taken. Two i s s u e s a r e before t h i s Court on appeal: 1. Did t h e D i s t r i c t Court have j u r i s d i c t i o n t o hear and modify t h e custody provision of t h e o r i g i n a l decree of d i s s o l u t i o n within two years of t h e g r a n t i n g thereof? 2. D o t h e D i s t r i c t C o u r t ' s f i n d i n g s of f a c t support t h e conclusions of l a w and order of t h e c o u r t modifying t h e custody provision of t h e o r i g i n a l decree of d i s s o l u t i o n ? The f a c t s involved h e r e i n do n o t p r e s e n t t h e ordinary s i t u a t i o n found i n c h i l d custody cases. Here, t h e "non- c u s t o d i a l " mother has had a c t u a l , physical custody of t h e daughter while t h e " c u s t o d i a l " f a t h e r was i n t h e Navy. Even a f t e r t h e f a t h e r received a hardship discharge from t h e Navy, o s t e n s i b l y t o c a r e f o r h i s daughter, t h e mother con- tinued t o have physical custody u n t i l t h e daughter was taken, without t h e mother's knowledge o r consent, t o Indiana by appellant. Section 40-4-219, MCA, is t h e s p e c i f i c s t a t u t o r y au- t h o r i t y f o r a c t i o n s t o modify custody awards. I t p r o h i b i t s such a c t i o n s f o r two years a f t e r e n t r y of a custody award "unless t h e c o u r t permits it t o be made on t h e b a s i s of a f f i d a v i t s t h a t t h e r e i s reason t o b e l i e v e t h e c h i l d ' s p r e s e n t environment may endanger s e r i o u s l y h i s physical, mental, moral, o r emotional health." Section 40-4-219(1), MCA . Further, s e c t i o n 40-4-220, MCA, provides: "A p a r t y seeking a temporary custody o r d e r o r modification of a custody decree s h a l l submit, together with h i s moving papers, an a f f i d a v i t s e t t i n g f o r t h f a c t s supporting t h e requested order o r modification and s h a l l give notice, together with a copy of h i s a f f i d a v i t , t o o t h e r p a r t i e s t o t h e proceeding, who may f i l e opposing a f f i d a v i t s . The c o u r t s h a l l deny t h e motion unless it f i n d s t h a t adequate cause f o r hearing t h e motion i s established by t h e a f f i d a v i t s , i n which case it s h a l l set a d a t e f o r hearing on an order t o show cause why t h e requested order o r modification should not be granted. " I n t h i s case respondent f i l e d her p e t i t i o n f o r modification of custody within t h e prohibited two-year period. She a l s o f i l e d an a f f i d a v i t attempting t o show t h a t her a c t i o n f i t within t h e exception t o t h e two-year prohibition. Appellant argues t h a t the a f f i d a v i t was i n s u f f i c i e n t t o bring respondent's motion within t h e exception because t h e c o u r t made no finding t h a t t h e c h i l d ' s present environ- ment endangers s e r i o u s l y her physical, mental, moral, o r emotional health. Further, appellant contends t h a t t h e insufficiency of t h e a f f i d a v i t s deprived t h e c o u r t of j u r i s - d i c t i o n . Finally, appellant contends t h a t t h e temporary custody order was i n v a l i d because he d i d n o t receive n o t i c e o r have a chance t o f i l e an opposing a f f i d a v i t a s required by s e c t i o n 40-4-220, MCA. W e disagree. Here, t h e D i s t r i c t Court issued an order ex p a r t e s o l e l y on t h e b a s i s of respondent's a f f i d a v i t , d i r e c t i n g appellant t o r e t u r n t h e c h i l d t o her mother pending t h e f a t h e r ' s f i l i n g of a f f i d a v i t s opposing t h e p e t i t i o n and any subsequent hearings on t h e p e t i t i o n . This order was made because t h e d i s t r i c t judge found t h e r e was "good cause ap- pearing therefor." W e must assume t h a t t h e D i s t r i c t Court w a s cognizant of t h e s t a t u t o r y requirements which had t o be m e t before it could o b t a i n j u r i s d i c t i o n . Because t h i s order was issued ex p a r t e , on t h e b a s i s of respondent's a f f i d a v i t which was s u f f i c i e n t t o bring t h e motion within t h e exception t o t h e two-year prohibition, w e hold t h a t t h e c o u r t had j u r i s d i c t i o n t o hear and modify t h e custody award. I n t h e f u t u r e , however, w e would suggest t h a t t h e f i n d i n g s be made c l e a r and d i r e c t by t h e c o u r t , ra- t h e r than r e q u i r i n g reference t o supporting a f f i d a v i t s . Montana s t a t u t e s concerning modification of custody a r e s p e c i f i c i n t h e i r requirements. "Counsel's f a i l u r e t o com- p l y s t r i c t l y with these s t a t u t o r y r e q u i s i t e s , a s i n t h e i n s t a n t case, is i n v i t a t i o n t o erroneous r u l i n g s and d e t e r - minations p r e j u d i c i a l both t o t h e i r c l i e n t s ' r i g h t s and t o t h e system of j u s t i c e of which they are guardians." Lehman v. Billman (1978), Mont. , 584 P.2d 662, 666, 35 St.Rep. 1396. While t h e D i s t r i c t Court may have acted h a s t i l y i n granting temporary custody, respondent's a f f i d a - v i t was s u f f i c i e n t on i t s f a c e t o bring t h e motion within t h e exception t o t h e two-year p r o h i b i t i o n . Further, t h e D i s t r i c t Court d i d allow a p p e l l a n t ample time t o f i l e op- posing a f f i d a v i t s before it set t h e matter f o r hearing, and a p p e l l a n t w a s served with respondent's p e t i t i o n and a f f i - d a v i t as w e l l a s t h e o r d e r within s i x days of t h e f i l i n g of t h e p e t i t i o n . The temporary order by i t s very n a t u r e d i d n o t permanently a f f e c t t h e r i g h t s of e i t h e r of t h e p a r t i e s . F i n a l l y , a p p e l l a n t argues t h a t t h e f i n d i n g s of f a c t f a i l t o s u s t a i n t h e D i s t r i c t Court's conclusions of l a w and order modifying custody. The r e l e v a n t law regarding modification of custody de- crees i s set f o r t h i n s e c t i o n 40-4-219(2), MCA. This sec- t i o n provides: " (2) The c o u r t s h a l l n o t modify a p r i o r custody decree unless it f i n d s , upon t h e b a s i s of f a c t s t h a t have a r i s e n s i n c e t h e p r i o r decree o r t h a t w e r e unknown t o t h e c o u r t a t t h e t i m e of e n t r y of t h e p r i o r decree, t h a t a change has occurred i n t h e circumstances of t h e c h i l d o r h i s cus- todian and t h a t t h e modification is necessary t o serve t h e b e s t i n t e r e s t of t h e c h i l d . I n applying t h e s e standards t h e c o u r t s h a l l r e t a i n t h e custodian appointed pursuant t o t h e p r i o r decree unless: " (a) t h e custodian agrees t o t h e modification; " (b) t h e c h i l d has been i n t e g r a t e d i n t o t h e family of t h e p e t i t i o n e r with consent of t h e custodian; o r " ( c ) t h e c h i l d ' s p r e s e n t environment endangers s e r i o u s l y h i s physical, mental, moral, o r emo- t i o n a l h e a l t h and t h e harm l i k e l y t o be caused by a change of environment is outweighed by i t s advantages t o him." Here, t h e D i s t r i c t Court s p e c i f i c a l l y found t h a t t h e c h i l d ' s p r e s e n t environment and t h e a c t i o n s of t h e f a t h e r i n removing her from t h e only environment she had ever known s i n c e b i r t h s e r i o u s l y endangered her physical, mental, moral and emotional health. Such a finding i s a p r e r e q u i s i t e t o any c o u r t order changing custody under s e c t i o n 40-4-219(2)(c), MCA. G i a n o t t i v. McCracken (1977), Mont. , 569 P.2d The D i s t r i c t Court adhered t o t h e proper s t a t u t o r y standards as required, and w e f i n d no abuse of d i s c r e t i o n . The judgment of t h e t r i a l c o u r t i s affirmed. / J u s t i c e / W e concur: 'ir,4?$, P'4 Chief J u s t i c e . | November 21, 1979 |
8a4ed899-2f4d-4d94-a3d9-f4a1acbd8ef8 | MARRIAGE OF SCHULTZ v SCHULTZ | N/A | 14691 | Montana | Montana Supreme Court | No. 14691 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN RE THE MARRIAGE OF LAURA SCHULTZ, Petitioner and Respondent, -vs- JOHNNIE SCHULTZ, Respondent and Appellant. Appeal from: District Court of the Thirteenth Judicial District, Honorable C. B. Sande, Judge presiding. Counsel of Record: For Appellant: Mouat and Martinson, Billings, Montana Craig D. Martinson argued, Billings, Montana For Respondent: Ralph Herriott argued, Billings, Montana Submitted: September 17, 1979 Decided: f4Q3\; 1 3 1 9 7 9 $ t " - . ' ' t- y-.-,- Filed : :: . , A O J , - - M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. Incidental t o a decree of marital d i s s o l u t i o n , t h e Yellowstone County D i s t r i c t Court awarded custody of t h r e e minor children t o t h e i r mother. The decree r e c i t e d t h a t both parents w e r e f i t and proper persons t o be granted custody b u t t h a t t h e b e s t i n t e r e s t s of t h e children d i c t a t e d maternal custody . Approximately a year and a half a f t e r t h e decree, t h e mother was s e r i o u s l y injured i n an automobile accident and confined t o a h o s p i t a l . The children w e r e cared f o r by a maternal aunt and grandmother. Some f i v e weeks a f t e r t h e accident, t h e mother died. Following her death, t h e f a t h e r requested custody of t h e children from t h e grandmother and aunt. The request was denied, and the f a t h e r f i l e d a motion f o r an order t o show cause why he should not be allowed immediate custody. Hours l a t e r , t h e maternal aunt and her husband f i l e d a p e t i t i o n f o r appointment a s guardians of the children. The D i s t r i c t Court, by ex p a r t e order, appointed t h e aunt and uncle temporary guardians and set a d a t e f o r hearing t h e p e t i t i o n . The f a t h e r then petitioned f o r a w r i t of habeas corpus, request- i n g immediate custody of t h e children. The guardianship and habeas corpus p e t i t i o n s w e r e consolidated by s t i p u l a t i o n and t h e matter was heard by t h e Yellowstone County ~ i s t r i c t Court, t h e Honorable C. B. Sande presiding without a jury. The hearing was termed "a f u l l hearing . . . on t h e matter of custody and a s t o whether o r n o t t h e minor children had been abused and are dependent and neglected." The D i s t r i c t Court found t h a t t h e children w e r e depen- dent and neglected and concluded t h e i r b e s t i n t e r e s t s would be served by granting custody t o t h e a u n t and uncle. The c o u r t entered an o r d e r t o t h a t e f f e c t , and t h e f a t h e r appeals. W e hold t h e D i s t r i c t Court w a s without j u r i s d i c t i o n t o a c t a s it did. Accordingly, its o r d e r i s vacated. Section 40-6-221, MCA, provides: ". . . I f e i t h e r p a r e n t be dead o r unable o r r e f u s e s t o take t h e custody o r has abandoned h i s o r her family, t h e o t h e r is e n t i t l e d t o - t h e custody, s e r v i c e s , and earnings of t h e c h i l d . " Under t h i s s e c t i o n , t h e f a t h e r automatically assumed t h e r i g h t t o custody of t h e c h i l d r e n a t t h e moment of t h e mother's death. I n Henderson v. Henderson (1977) , Mont. , 568 P.2d 177, 179, 34 St.Rep. 942, 944, t h i s Court a t t r i b u t e d g r e a t weight t o t h e p a r e n t a l r i g h t of custody and equated it with a c t u a l physical custody. W e do n o t d e p a r t from t h e r u l e i n t h i s decision. I n Henderson we s t a t e d : "If a nonparent ( a grandparent o r an a u n t o r an uncle, perhaps) wants t o acquire custody, he must commence proceedings under . . . t h e t y p i c a l J u v e n i l e Court Act." 568 P.2d a t 181, 34 St.Rep. a t 947, quoting Comment, 9 Uniform Laws Annotated, Marriage and Divorce Act, 8401, p. 504. I n Matter of Guardianship of Doney (1977), Mont . , 570 P.2d 575, 577, 34 St-Rep. 1107, 1109-1110, w e held: "A j u d i c i a l hearing and finding of dependency and neglect under [ T i t l e 4 1 , Chapter 3, MCA], o r j u d i c i a l f i n d i n g of w i l l f u l abandonment o r w i l l f u l nonsupport under s e c t i o n [40-8-111, MCA], a r e t h e exclusive means by which a n a t u r a l p a r e n t may be i n v o l u n t a r i l y deprived of custody of h i s children. I n t h e absence of such showing, t h e n a t u r a l p a r e n t i s l e g a l l y e n t i t l e d t o t h e custody of h i s minor children. Section [40-6-221, MCA] . " The reasoning i n Doney m e r i t s repeating: "Where a c h i l d has a l l e g e d l y been abused o r neglected by h i s n a t u r a l parent, t h e s t a t e has a c l e a r duty t o p r o t e c t t h e c h i l d by means of a j u d i c i a l hearing t o determine whe- t h e r t h e youth is i n f a c t abused o r neglected. There a r e , however, few invasions by t h e s t a t e i n t o t h e privacy of t h e i n d i v i d u a l t h a t a r e more extreme than t h a t of depriving a n a t u r a l p a r e n t of t h e custody of h i s c h i l d r e n . For t h i s reason, t h e l e g i s l a t u r e c a r e f u l l y enun- c i a t e d t h e procedures t h e s t a t e must follow and t h e f i n d i n g s which t h e c o u r t must make before custody of a c h i l d may l e g a l l y be taken from a n a t u r a l parent." 570 P.2d a t 577, 34 St.Rep. a t 1109. Unless t h e s t a t u t e i s followed, t h e c o u r t i s without j u r i s - d i c t i o n t o remove custody. I n Matter of Guardianship of Aschenbrenner (1979) , Mont. , 597 P.2d 1156, 1163- 1164, 36 St.Rep. 1282, 1290-1291. The procedures must be r i g o r o u s l y followed. I n re Guardianship of Evans (1978), Mont. , 587 P.2d 372, 376, 35 St.Rep. 1765, 1773. N o argument can be made t h a t t h e j u r i s d i c t i o n a l pre- r e q u i s i t e s were complied with. The county a t t o r n e y d i d n o t , a s required by s e c t i o n 41-3-401(1), MCA, f i l e t h e p e t i t i o n . The p e t i t i o n d i d n o t a l l e g e abuse, n e g l e c t o r dependency. Sections 41-3-401 (1) and 41-3-401 (9) ( a ) , MCA. The n a t u r a l f a t h e r of t h e c h i l d r e n who had l e g a l custody ( a s discussed above) w a s n o t personally served with a copy of t h e p e t i t i o n . Section 41-3-401(4), MCA. The Department of S o c i a l and Re- h a b i l i t a t i o n Services w a s n o t " c i t e d " t o t h e case. Section 41-3-401(8), MCA. The order of t h e c o u r t , entered i n t h e absence of j u r i s d i c t i o n , i s void. S t a t e v. D i s t r i c t Court (1926), 75 Mont. 147, 242 P. 959. I n view of t h e f a c t t h e D i s t r i c t Court found t h a t t h e c h i l d r e n w e r e abused and neglected, w e hereby r e q u e s t t h e Yellowstone County a t t o r n e y ' s o f f i c e t o consider an a c t i o n under t h e Dependency, Neglect, and Abuse s t a t u t e . T i t l e 4 1 , Section 3, Montana Code Annotated. U n t i l f u r t h e r order of t h e D i s t r i c t Court, t h e c h i l d r e n a r e t o remain with t h e i r a u n t and uncle. 7 We concur: Chief J u s t i c e I ' J u s t i c e s 1 J | November 13, 1979 |
a6214853-6648-4eaf-bf0d-4c83d0e21f66 | MCTAGGART v MONTANA POWER CO | N/A | 14850 | Montana | Montana Supreme Court | No. 14850 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 ROBERT E . McTAGGART , Petitioner and Respondent, VS . THE MONTANA POWER COMPANY, Respondent and Appellant. Appeal from: District Court of the First Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: Corette, Smith, Dean, Pohlman and Allen, Butte, Montana Kendrick Smith argued, Butte, Montana For Respondent: Herron and Meloy, Helena, Montana Peter M. Meloy argued, Helena, Montana Submitted: November 1, 1979 Filed: M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e Court. This i s an a c t i o n f o r t h e r e l o c a t i o n of an overhead u t i l i t y l i n e pursuant t o s e c t i o n s 69-4-401 through 69-4-404, MCA, i n t h e D i s t r i c t Court of t h e F i r s t J u d i c i a l District, i n and f o r t h e County of L e w i s and Clark, t h e Honorable N a t Allen presiding. Respondent i s t h e owner of c e r t a i n r e a l a g r i c u l t u r a l property i n Lewis and Clark County. Appellant, t h e Montana Power Company, i s t h e owner of an overhead u t i l i t y l i n e which c r o s s e s respondent's property. Respondent f i l e d a p e t i t i o n f o r t h e r e l o c a t i o n of t h e u t i l i t y l i n e pursuant t o s e c t i o n s 69-4-401 through 69-4-404, MCA, a l l e g i n g t h a t he d e s i r e d t o i n s t a l l a "center p i v o t i r r i g a t i o n system" on h i s property which would i n c r e a s e t h e p r o d u c t i v i t y of t h e land from one-half ton of a l f a l f a per a c r e t o f i v e tons per acre. Respondent o f f e r e d a f e a s i b l e a l t e r n a t i v e r o u t e f o r t h e r e l o c a t i o n of t h e l i n e giving a p p e l l a n t a right-of-way t o continue i t s operation of t h e l i n e and allowing respondent t o i n s t a l l t h e new i r r i g a t i o n system. A motion t o dismiss was f i l e d by a p p e l l a n t . B r i e f s w e r e submitted on t h e motion by both p a r t i e s , and t h e motion was overruled. The motion t o dismiss presented a l t e r n a t i v e contentions t h a t t h e a p p l i c a b l e s t a t u t e s w e r e unconstitu- t i o n a l because they allowed a taking of p r i v a t e property f o r p r i v a t e use, o r , i f t h e taking was f o r a p u b l i c use, t h e s t a t u t e s w e r e u n c o n s t i t u t i o n a l because t h e r e was no j u s t compensation. Respondent f i l e d a motion f o r summary judgment, which was granted by t h e District Court. The c o u r t found t h a t t h e r e would be a s u b s t a n t i a l improvement i n a g r i c u l t u r a l p r o d u c t i v i t y by i n s t a l l i n g t h e i r r i g a t i o n system and t h a t t h e a l t e r n a t i v e r o u t e o f f e r e d by respondent f o r t h e reloca- t i o n of t h e power l i n e was f e a s i b l e . The c o u r t f u r t h e r found t h a t s e c t i o n s 69-4-401 through 69-4-404, MCA, were c o n s t i t u t i o n a l and ordered a p p e l l a n t t o r e l o c a t e t h e u t i l i t y l i n e . The c o s t s of r e l o c a t i o n w e r e divided equally between t h e p a r t i e s . Appellant appeals from t h e summary judgment and order. The i s s u e s r a i s e d on appeal s o l e l y concern t h e c o n s t i - t u t i o n a l i t y of t h e a p p l i c a b l e s t a t u t e s . I n p a r t i c u l a r , two i s s u e s a r e r a i s e d : (1) Whether s e c t i o n s 69-4-401 through 69-4-404, MCA, i n c l u s i v e , v i o l a t e t h e Fourteenth Amendment t o t h e United S t a t e s C o n s t i t u t i o n and A r t i c l e 11, Section 29, of t h e 1972 Montana C o n s t i t u t i o n , i n t h a t they allow t h e taking of p r i v a t e property f o r t h e p r i v a t e use of another? (2) Whether t h e use sought by respondent i s a p u b l i c use, and i f so, whether s e c t i o n s 69-4-401 through 69-4-404, MCA, i n c l u s i v e , are a v i o l a t i o n of t h e Fourteenth Amendment to t h e United S t a t e s Constitution and A r t i c l e 11, Section 29, of t h e 1972 Montana Constitution, because they allow t h e taking of p r i v a t e property f o r public use without j u s t compensation? The s t a t u t e s a p p l i c a b l e i n t h i s case are s e t f o r t h i n s e c t i o n s 69-4-401 through 69-4-404 of t h e Montana Code Annotated. S p e c i f i c a l l y , they provide: "69-4-401. Definitions. A s used i n t h i s p a r t , t h e following d e f i n i t i o n s apply: (1) 'Agricul- t u r a l improvement' includes, without l i m i t a t i o n , s p r i n k l e r i r r i g a t i o n systems. ( 2 ) 'Overhead u t i l i t y l i n e ' means a f a c i l i t y f o r t h e trans- mission o r d i s t r i b u t i o n of e l e c t r i c i t y o r tele- phone messages along w i r e s o r c a b l e s suspended above t h e ground between s i n g l e o r double poles and t h e i r r e s p e c t i v e anchors. "69-4-402. P e t i t i o n f o r r e l o c a t i o n of overhead l i n e . An owner of a g r i c u l t u r a l land across which an overhead u t i l i t y l i n e has been con- s t r u c t e d may p e t i t i o n t h e d i s t r i c t c o u r t f o r an order f o r r e l o c a t i o n of the l i n e f o r t h e purpose of i n s t a l l i n g an a g r i c u l t u r a l improvement. The p e t i t i o n s h a l l set f o r t h the nature of t h e pro- posed a g r i c u l t u r a l improvement, t h e increase i n productivity of t h e land a n t i c i p a t e d t o r e s u l t from t h e improvement, and a f e a s i b l e a l t e r n a t i v e route, across o t h e r land t o be provided by the p e t i t i o n e r a t no c o s t t o the owner of t h e over- head u t i l i t y l i n e . "69-4-403. Hearing and order. The d i s t r i c t c o u r t s h a l l , upon n o t i c e t o t h e owner of t h e overhead u t i l i t y l i n e , hear evidence bearing upon t h e matters presented i n t h e p e t i t i o n . I f t h e evidence e s t a b l i s h e s a s u b s t a n t i a l improve- ment i n a g r i c u l t u r a l productivity and t h e fea- s i b i l i t y of t h e relocated route, t h e c o u r t s h a l l g r a n t o r modify and grant, a s modified, t h e p e t i t i o n and order t h e owner of t h e l i n e t o r e l o c a t e t h e l i n e . "69-4-404. Costs of relocation. The c o s t s of r e l o c a t i n g an overhead u t i l i t y l i n e as ordered under 69-4-403 s h a l l be paid 50% by t h e u t i l i t y and 50% by t h e owner of t h e land. However, i f t h e person p e t i t i o n i n g f o r t h e order f a i l s f o r any reason t o i n s t a l l t h e a g r i c u l t u r a l improve- ment within 2 years following t h e d a t e r e l o c a t i o n i s completed, he must reimburse t h e owner of t h e l i n e t h e f u l l c o s t of relocation, and t h e c o u r t has continuing j u r i s d i c t i o n over t h e p a r t i e s f o r t h e purpose of ordering such reimbursement." Our f i r s t consideration i s t h e character of t h e above- quoted s t a t u t e s . O n one hand, respondent urges t h a t the s t a t u t e s a r e an e x e r c i s e of the p o l i c e power of t h i s state over public u t i l i t i e s and t h a t property may therefore be taken without j u s t compensation. O n t h e o t h e r hand, appel- l a n t characterizes t h e s t a t u t e s as involving the r i g h t of eminent domain, which authorizes t h e s t a t e t o take p r i v a t e property f o r public use with j u s t compensation. W e f i n d t h a t t h e s t a t u t e s sound i n eminent domain. Where t h e exercise of t h e police power of the state i s d i r e c t l y connected with matters of public health, s a f e t y and welfare, we f i n d t h a t those matters a r e only i n d i r e c t l y concerned, i f a t a l l , with t h e matters r a i s e d by t h e s t a t u t e s here. More importantly, w e note t h a t t h e s t a t u t e s provide f o r a "taking'! of property without t h e consent of a u t i l i t y . They i n v o l u n t a r i l y r e q u i r e a public u t i l i t y t o move i t s power l i n e s and pay h a l f of t h e c o s t s of r e l o c a t i o n when an owner of farmland makes t h e necessary showings i n D i s t r i c t Court. That being t h e case, eminent domain, t h e r i g h t of t h e s t a t e t o take p r i v a t e property f o r p u b l i c use, and t h e p r i n c i p l e s of eminent domain are a p p l i c a b l e here. The f i r s t i s s u e concerns whether t h e taking i s f o r a p u b l i c o r p r i v a t e use. It i s fundamental t o t h e law of eminent domain t h a t p r i v a t e property may n o t be taken with- o u t an owner's consent f o r t h e p r i v a t e use of another. S p r a t t v. Helena Power Transmission Company (1908), 37 Mont. 60, 94 P. 631; s e c t i o n 70-30-101, MCA. Both t h e United S t a t e s and Montana C o n s t i t u t i o n s p r o h i b i t a taking by t h e state f o r merely p r i v a t e use. U.S. Const., Amend. XIV; 1972 Mont. Const., A r t . 11, §17. Rather, f o r t h e r i g h t of eminent domain t o l i e , t h e use must be one which i s public. The Montana l e g i s l a t u r e has by s t a t u t e declared s e v e r a l uses t o be p u b l i c i n connection with t h e r i g h t of eminent domain. Section 70-30-102, MCA. Among t h e uses enumerated a r e : ". . . t h e r i g h t of eminent domain may be exercised i n behalf of t h e following public uses: " (2) . . . a l l o t h e r public uses authorized by t h e l e g i s l a t u r e of t h i s s t a t e ; " ( 4 ) . . . c a n a l s , d i t c h e s , flumes, aqueducts, and p i p e s f o r p u b l i c t r a n s p o r t a t i o n , supply- i n g . I ! . . farming neighborhoods with water H e r e , one of the uses f o r which eminent domain i s sought i s the more e f f i c i e n t use of water i n the i r r i g a t i o n of farmland. Respondent d e s i r e s t o i n s t a l l a center p i v o t sprinkling system, recognized a s a much more e f f i c i e n t method of i r r i g a t i o n than methods such a s flooding. Appel- l a n t , while acknowledging t h e d e s i r a b i l i t y of such a system, argues t h a t such a use has never been s p e c i f i c a l l y declared t o be public by t h e l e g i s l a t u r e . Where supplying a farming neighborhood with water i s a public use, a p p e l l a n t maintains t h a t t h e means of using water once it has been supplied has n o t been recognized a s a public use. W e disagree. F i r s t , w e note s e v e r a l important provi- s i o n s which r e l a t e t o t h e use of water within t h i s s t a t e . Perhaps t h e most important of these i s a c o n s t i t u t i o n a l provision i n which t h e people have declared t h a t t h e use of a l l water within t h i s s t a t e s h a l l be deemed t o be a public use. A r t i c l e I X , Section 3 (1) , of t h e 1972 Montana Consti- t u t i o n , provides: "The use of a l l water t h a t i s now o r may here- a f t e r be appropriate f o r s a l e , r e n t , d i s t r i b u - t i o n , o r o t h e r b e n e f i c i a l use, t h e r i g h t of way over t h e lands of o t h e r s f o r a l l d i t c h e s , d r a i n s , flumes, canals, and aqueducts n e c e s s a r i l y used i n connection therewith and t h e sites f o r reser- v o i r s necessary f o r c o l l e c t i n g o r s t o r i n g water s h a l l be held t o be a public use." Next, w e note t h e position of t h e Montana l e g i s l a t u r e with r e s p e c t t o water. Section 85-2-101, MCA, of t h e 1973 Montana Water U s e A c t , provides: "Pursuant t o A r t i c l e I X of' the Montana Constitu- t i o n , the l e g i s l a t u r e declares t h a t any use of w a t e r i s a public use and t h a t t h e waters within t h e s t a t e a r e t h e property of t h e s t a t e and f o r t h e use of i t s people. . ." Section 85-2-101, MCA, a l s o enunciates t h e policy of t h i s state concerning water: " I t i s t h e p o l i c y of t h i s s t a t e . . . t o encour- age t h e w i s e use of t h e s t a t e ' s water resources by making them a v a i l a b l e f o r appropriation con- s i s t e n t with t h i s chapter and t o provide f o r t h e wise u t i l i z a t i o n , development and conservation of t h e waters of t h e s t a t e f o r t h e maximum bene- f i t s of its people with t h e l e a s t p o s s i b l e de- gradation of t h e n a t u r a l a q u a t i c ecosystems. I n p u r s u i t of t h i s p o l i c y , t h e s t a t e encourages t h e development of f a c i l i t i e s which s t o r e and conserve waters f o r b e n e f i c i a l use, f o r the maximization of t h e use of those waters i n Montana, f o r t h e s t a b i l i z a t i o n of stream flows, and f o r groundwater recharge." From t h e s e provisions, w e b e l i e v e t h a t a more e f f i c i e n t use of water i n t h e i r r i g a t i o n of farmland i s indeed a p u b l i c use f o r which t h e r i g h t of eminent domain w i l l lie. While t h i s use may n o t r e a d i l y conform t o t h e t r a d i t i o n a l concept of "public use," w e note t h a t t e r m i s e l a s t i c and keeps pace with changing conditions. 26 Arn.Jur.2d Eminent Domain S27, pp. 671-672. Although it is t r u e t h a t t h e r e may be a p r i v a t e b e n e f i t t o respondent here i n t h a t t h e produc- t i v i t y of h i s land w i l l be increased, it i s a l s o t r u e t h a t t h e r e w i l l be a b e n e f i t t o t h e public. W e f e e l compelled t o observe t h e high p r i o r i t i e s t h a t have been p u t on t h e use of w a t e r by t h e people of t h i s s t a t e . Water must be conserved and p u t t o t h e maximum b e n e f i t of a l l those who use it. The mere f a c t t h a t one may r e a l i z e p r i v a t e p r o f i t i n property sought t o be condemned does n o t prevent t h e use from being declared public. S p r a t t v. Helena Power Transmission Co. (1908), 37 Mont. 60, 77, 94 P. 631. Nor i s t h e mere number of people who a c t u a l l y make use of t h e p u b l i c use determinative of i t s character. This i s e s p e c i a l l y t r u e i n t h e case of a r e c y c l a b l e resource. A use may be public even though it may be enjoyed a t c e r t a i n t i m e s by a comparatively s m a l l number of people. Eminent Domain S32, p. 681. W e f i n d , t h e r e f o r e , t h a t a more efficient use of water in the irrigation of farmland is a public use for which the right of eminent domain will lie. We note additionally that these statutes do not violate the rule that where property has already been taken for a public use, it may not be condemned again except for a more necessary public use. Cocoanougher v. Ziegler (1941), 112 Mont. 76, 81-82, 112 P.2d 1058, 1060; section 70-30-103!(c), MCA. Here, the statutes provide that the owner of land offer a feasible alternative route upon which the utility may plot its power line. Because the property is substi- tuted, it cannot be said to have been "doubly condemned." We have previously upheld substitute condemnation as a valid exercise of the power of eminent domain. See, State ex rel. De Puy v. District Court (1963), 142 Mont. 328, 384 P.2d 501, 20 A.L.R.3d 862, 868. Our decision today in no way involves a determination of whether the transportation of electricity or the efficient use of water has the higher priority in terms of public use. The second issue in this case involves whether there is just compensation. Section 69-4-404, MCA, provides that the costs of relocation shall be divided equally between the landowner and the owner of the power line. Appellant argues that the statute does not provide for just compensation. Appellant maintains that the principle of just compensation requires that the owner of condemned property be made whole for all of the damages sustained and that there must be full compensation. Appellant contends that 50 percent compensa- tion is only half of the compensation properly due appellant. With this proposition we fully agree. Article 11, Section 29, of the 1972 Montana constitu- tion, states: " P r i v a t e p r o p e r t y s h a l l n o t be taken o r damaged f o r p u b l i c use without j u s t compensation t o t h e -- f u l l e x t e n t of t h e l o s s having been f i r s t made --- t o o r paid i n t o t h e c o u r t f o r t h e owner." (Em- p h a s i s added. ) This Court has a l s o held i n s e v e r a l c a s e s t h a t a land- owner i n a condemnation a c t i o n should be f a i r l y and f u l l y compensated, S t a t e v. Peterson (1958), 134 Mont. 52, 57, 328 P.2d 617, 620, and t h a t j u s t compensation is determined by e q u i t a b l e p r i n c i p l e s , Alexander v. S t a t e Highway Commission (1966), 147 Mont. 367, 371-72, 412 P.2d 414, 416. I n Alex- ander w e s t a t e d : " J u s t compensation i s determined by e q u i t a b l e p r i n c i p l e s . Its measure v a r i e s w i t h t h e f a c t s . Where t h e circumstances w i l l n o t permit, t h e v a l u e of property cannot be measured s o l e l y by formula o r a r t i f i c i a l r u l e . . ." Here, t h e r e i s j u s t compensation i n one sense; t h e u t i l i t y i s compensated f o r t h e easement which it a l r e a d y has. The s t a t u t e s r e q u i r e t h a t t h e landowner o f f e r land upon which t h e u t i l i t y may p l o t a n a l t e r n a t i v e r o u t e f o r i t s power l i n e . It i s nonetheless a f a c t , however, t h a t t h e u t i l i t y must a l s o bear h a l f t h e c o s t of r e l o c a t i o n . Where t h e land i s condemned and t h e u t i l i t y has paid f o r t h e easement once, w e t h i n k it u n f a i r t h a t it be required t o pay f o r t h e easement again. The r e l o c a t i o n of t h e power l i n e comes a t t h e i n s i s t e n c e o f t h e landowner, and it i s he who should properly bear t h e c o s t s of r e l o c a t i o n . W e f i n d t h e r e f o r e t h a t s e c t i o n 69-4-404, MCA, does n o t provide f o r j u s t compensation, and w e d e c l a r e it u n c o n s t i t u t i o n a l . Accordingly, w e a f f i r m i n p a r t and r e v e r s e i n p a r t t h e judgment of t h e D i s t r i c t Court and o r d e r t h a t respondent pay t h e e n t i r e c o s t of r e l o c a t i n g t h e overhead u t i l i t y l i n e . We concur: Ceief Justice | November 21, 1979 |
f778cbe8-7371-4079-83ca-45cf7a6b9498 | GLENNIE v GLENNIE RANCHES | N/A | 14651 | Montana | Montana Supreme Court | No. 14651 I N THE: SUPHEME C O U F ! ! I ' OF THE STATE OF IvKNWNA 1979 CHARGES GLJ3JNIE and PETER m I E , Plaintiffs and Appellants, -VS- THE: G L E N N I E RANCHES, Defendants a n d Respondents. Appeal froan: D i s t r i c t Court of the Fourteenth Judicial D i s t r i c t , Hon. Nat Allen, Judge presiding. Counsel of Record: For Appellants: Josephson and F'redricks, Big Timber, Wntana Richard W. Josephson argued, Big Timber, Wntana For Respondents: Kline & Niklas, Helena, mntana David Niklas argued, Helena, mntana -~ - Submitted: May3, 1979 Decided : Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Charles Glennie and Peter Glennie (herein referred to as the Glennies) appeal from an order of the Wheatland County District Court granting Glennie Ranches' motion for summary judgment. The District Court granted summary judgment on several grounds, but the ruling that the statute of limitations (section 70-19-401, MCA) had run is dispositive of this appeal. This case involves a dispute over the ownership of a large tract of land in Wheatland and Sweetgrass Counties. In 1932, 1934 and 1937, three tracts of land were conveyed to George and Peter Glennie, and used as ranch and farm property. One of the deeds conveyed land to "Glennie Bros., a copartnership, consisting of George Glennie and Peter Glennie"; a second deed conveyed land to "George Glennie and Peter Glennie doing business under the name of Glennie Brothers"; and a third deed conveyed land to "George Glennie and Peter Glennie jointly." The Glennie Brothers operated the Glennie Ranches as a partnership. There is no evidence, however, that the brothers reduced their partnership agreement to writing, nor is there any evidence as to the contributions of the respective partners. On January 27, 1939, Peter Glennie Sr. died intestate, and was survived by a widow, Agnes, and two minor sons, Peter Jr. and Charles. George Watson, who died shortly after being appointed administrator of the Peter Glennie Sr's. estate, filed an estate inventory which stated that Peter Glennie Sr. owned a one-sixth interest in the property transferred to George and Peter Glennie in 1932, 1934 and 1937 (herein referred to as the partnership property). Agnes Glennie succeeded Watson as administratrix of the estate, and was appointed legal guardian for Peter Glennie, Jr. and Charles Glennie. On June 29, 1940, Agnes Glennie petitioned the District Court for permission to sell the estate's one-sixth interest in the partnership property, and the court granted this petition. The sale was held on July 27, 1940, and George Glennie Sr. entered the highest bid. An order confirming the sale was filed on September 9, 1940; and on October 1, 1940, the administratrix deeded the estate's one-sixth interest to George Glennie, Sr. Over the years, many transactions took place concerning the property in question. On March 1, 1955, George Glennie Sr. conveyed the property to himself and his son George M. Glennie. On May 17, 1956, George Glennie Sr. and George M. Glennie instituted a quiet title action which resulted in a judgment giving them clear title to the property. On January 1, 1962, George Glennie Sr. and George M. Glennie conveyed the property to Glennie Ranches, a Montana corporation. The property in question has at all times been used for farm and ranch purposes. The Glennies, who did not claim any interest in the property between 1940 and 1973, found a handwritten note addressed to them from their deceased mother in her safety deposit box informing them that they had a one-third interest in the property held by Glennie Ranches. They had contacted an attorney in Billings, concerning the note and on March 8, 1973, they wrote a letter of inquiry to George -3- M. Glennie of Glennie Ranches requesting information about their possible interest in the property. On March 28, 1973, George M. Glennie had his attorney write to the Billings attorney informing him that Glennie Ranches claimed a fee simple absolute interest in the property. The letter stated that Peter Glennie Sr. had owned only a one-sixth interest in the property, and that as a result of the sale of that interest by the estate, the Glennies had no further claim in the property. On April 20, 1978, the Glennies instituted an action in Wheatland County District Court for partition of the property; or in the alternative, for the sale of the property and a division of the proceeds. On November 24, 1978, the District Court granted summary judgment for Glennie Ranches, based in part on the statute of limitations. The Glennies contend that a different statute of limitations is applicable to this case, namely the right of a cotenant to file an action for partition under section 70- 29-101, MCA. By this statute, there is no time limit in which a cotenant must file an action for partition. Section 70-29-101, MCA, provides that a cotenant who holds and is in possession of real property may bring an action for partition. No time limit is set for bringing the action. Rather than being a statute of limitations it merely sets forth the generally recognized rights of a cotenant - in possession to file a partition action. The action in the instant case is one for the recovery of an interest in real property, and section 70-19-401, MCA, is the applicable and controlling statute. It provides that no action for the recovery or for the possession of real property can be maintained unless it appears that the plaintiff, -4- his ancestor, predecessor, or grantor was seized or possessed of the property in question within five years before the commencement of the action. In Thibault v. Flynn (1958), 133 Mont. 461, 325 P.2d 914, we held that when possession is open, notorious and continuous, the one whose land is encroached upon has a cause of action that must be exercised within the time limit set by this statute. On October 1, 1940, Agnes Glennie as administratrix deeded the estate's one-sixth interest in the property to George Glennie, Sr.; and the estate was no longer seized or possessed of the property, and any cause of action would have arisen at that time. The Glennies instituted their action for partition of the property almost 38 years after the estate's one-sixth interest had been deeded to George Glennie, Sr. Clearly, section 70-19-401, MCA, bars their action. The Glennies contend that the statute of limitations did not begin to run until they had actual notice of Glennie Ranches exclusive claim to the property. They cite no authority for this theory. Assuming arguendo, however, that the statute of limitations did not begin to run until the Glennies had actual notice, the Glennies' action for partition of the property is nonetheless barred. The March 28, 1973 letter gave the Glennies actual notice that Glennie Ranches were claiming exclusive interest in the property. The Glennies were fully aware of the situation giving rise to this lawsuit in late March 1973. They did not commence their action until April 20, 1978, and are barred even under their own theory of actual notice. The order of the District Court granting summary judgment is affirmed. We Concur: j h i e f Justice Hon. Gordon Bennett, District Court Judge, sitting in for Mr. Justice John Conway Harrison | October 26, 1979 |
595be48e-5b73-4111-b018-2b6a81a8478b | LARRIVEE v MORIGEAU | N/A | 14586 | Montana | Montana Supreme Court | N o . 14586 m THE SUP- COUKC O F THE STATE OF rnNTANA 1979 NOEL K . LARRIVEE, Plaintiff and Respondent, -VS- DOUGLAS E. rnRIGEAU, Defendant and Appllant. Appeal from: D i s t r i c t Court of the Fourth Judicial District, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record: For Appellant: Steven Bunch, Legal Services, argued, Helena, mntana For Respondent : Smith, Connor, V a n Valkenburg and Larrivee, Missoula, Wntana Noel K. Larrivee argued, Missoula, Pllontana For Amicus Curiae: Victor F. Valgenti argued,Missoula, Mntana Evelyn M. Stevenson, Pablo, Wntana Sul=Prcitted: April 27, 1979 Decided: dCi 1 2 1979 .- ,372. I - Filed : Mr. Justice John C. Sheehy delivered the Opinion of the Court . his is an appeal by Douglas E. Morigeau arising out of a default judgment taken against him in the District Court, Fourth Judicial District, Missoula County, for the sum of $9,417.70, exclusive of interest and costs. The facts in the case indicate that Noel K. Larrivee was driving his automobile west on Montana Highway 200 toward its intersection with Montana Highway 212, in Sanders County on February 22, 1978. It further appears that Morigeau, traveling in an automobile in an easterly direction on Highway 200, attempted to turn left onto Highway 212 when his vehicle and that of Larrivee collided. Larrivee filed his action against Morigeau in the Fourth Judicial District Court, Missoula County, on March 10, 1978. A summons was served upon the defendant personally in Sanders County, on March 15, 1978. On April 20, 1978, Larrivee requested the Clerk to enter default of the defendant Morigeau because Morigeau had failed to appear or answer the complaint. On the same date, the District Court entered default judgment against Morigeau for the amounts above set forth. On May 1, 1978, Morigeau, through his counsel, filed several instruments in the District Court. One was a motion to set aside the entry of the default judgment upon the grounds of the defendant's mistake, inadvertence, and excusable neglect. The affidavit in support of the motion recites that Morigeau after service upon him, delivered his copy of the complaint to the Tribal Court of the Confederated Salish and Kootenai Tribes on March 20, 1978. Morigeau believed that the Tribal Court, or the tribal attorney, would take steps toward the handling of the complaint, a mistaken assumption. On April 13, 1978, the tribal attorney delivered the summons and complaint to Morigeau's attorney, but she was not authorized by Morigeau to act on his behalf until April 19, 1978. There were some telephone conversations between Morigeau's attorney and Larrivee. Apparently there was an oral agreement between them that Larrivee would not take default judgment against Morigeau before April 19 or 20, 1978. Excusable neglect is alleged in that Morigeau's attorney was absent from the state during this period and he did not authorize her to act on his behalf until the afternoon of April 19, 1978. It is contended that the defendant's motions were mailed to Larrivee (though not filed in the court) on April 20, 1978. The affidavit furthers recites that the place where the accident occurred is within the exterior boundaries of the Flathead Indian Reservation; that the defendant Morigeau is an enrolled member of the Confederated Salish and Kootenai Tribes of that reservation; that Morigeau, living within the exterior boundaries of the reservation, was not subject to service of state court process; and, that the subject matter of the controversy was not within the jurisdiction of the state District Court. Also on May 1, 1978, Morigeau filed his motion to change venue and dismiss the action. The motion for change of venue was made upon the ground that the accident had occurred in Sanders County where the defendant had been served. The motion to dismiss the action contended that the District Court lacked subject matter jurisdiction because the defendant was an enrolled member of the Confederated Salish and Kootenai Tribes, living within the exterior boundaries of the Flathead Indian Reservation. -3- On May 11, 1978, oral argument was heard, evidence taken, and thereupon the District Court denied the motion to set aside the default judgment. Defendant did not appeal from the order denying his motion to vacate the default judgment. Instead, on August 22, 1978, he filed a motion to vacate the default judgment and dismiss the same for lack of subject matter jurisdiction, again upon the grounds that the action was one between a non-Indian plaintiff and an Indian defendant over an accident which occurred within Indian country and was therefore subject only to the exclusive jurisdiction of the Tribal Court of the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation. The District Court refused to set aside the default judgment on October 10, 1978, saying in denying the motion: "Both parties are citizens of the State of Montana and each claim all the rights of such citizenship. The public highway was opened to public use and provides a further reason for holding that the State Courts have jurisdiction. The Federal Courts will not take the action holding that there is no diversity of citizenship, as there is not. The simple fact is that the defendant desires to be relieved of responsibilities of citizenship because of his race. The equality of our constitution, both state and federal, abhor any discrimination because of race or any showing of favortism [sic] because of race. "The defendant is a citizen of the State of Montana and subject to the jurisdiction of its courts. I' Appeal from the order of the District Court of October 11, 1978, denying the motion to dismiss for lack of subject matter jurisdiction was taken by Morigeau on November 6, 1978. Confederated Salish and Kootenai Tribes of the Flathead Reservation have filed a brief in this matter as amicus curiae, contending that the state District Court does not have subject matter jurisdiction in this case. From the recitation of the procedures followed in the District Court, as we have set forth above, it will be seen that no proper or timely appeal was taken from the order of the District Court denying the motion to set aside the default judgment on the grounds of excusable neglect, inadvertence or mistake; and no appeal was taken from the order of the District Court denying the motion for change of venue. Whether or not these motions have merit, since timely appeal was not taken from the denial of such motions, this Court is without jurisdiction to consider the issues covered by those motions on appeal. See Flathead Hay Cubing, Inc. v. Rex Moore (1978), 35 St.Rep. 1260 (Cause No. 14327, unpublished); Zell v. Zell (19771, Mont . , 565 P.2d 311, 34 St.Rep. 492; First Nat. Bank of Lewistown v. Fry (1978), Mont . , 575 P.2d 1325, 35 St-Rep. 276. In his motion to set aside the default judgment, Morigeau did not precisely rely upon the lack of subject matter jurisdiction as a ground for setting aside that default, although reference to this is made in the affidavits supporting his motion as part of his contention that he had a meritorious defense. It appears from the record that the District Court ruled on the ground that there was no mistake, inadvertence or excusable neglect in denying that motion. We do not consider therefore that the question of subject matter jurisdiction was ruled upon by the District Court when it denied the motion to set aside the default judgment. The appeal here taken is from the denial of the separate motion filed on August 22, 1978. An attack on subject matter -5- jurisdiction may be raised at anytime. Since we find in this case that the question of subject matter jurisdiction was not precisely ruled upon by the court in its order denying the first motions, the appeal taken by Morigeau from the order denying the motion of August 22, 1978 to vacate and dismiss for lack of subject matter jurisdiction is properly before us for consideration. The single issue to be decided by us in this appeal therefore is whether the District Court had subject matter jurisdiction on which to sustain the default judgment. In treading our way through the ever more complicated field of Indian relationships and responsibilities, we find and hold that the Confederated Salish and Kootenai Tribes ceded concurrent civil jurisdiction to the state District Courts of controversies arising out of the operation of motor vehicles within the exterior boundaries of the Flathead Reservation. The federal Act of August 15, 1953 (Pub.L. 83-280, 83rd Cong., 2d. Sess.), 67 Stat. 588, amended Publication 90-284, 82 Stat. 73, 78, 25 U.S.C. 1321, et seq. (1968), provided for the permissive extension of civil jurisdiction over Indians residing on Indian Reservations to the states where such reservations were located. In conformance with the federal Act of 1953, the Montana Legislature provided that the governor of Montana, upon receipt of a resolution from a tribal council or other governing body of the Confederated Salish and Kootenai Indians, expressing its desire as a people to be subject to criminal or civil jurisdiction in the State of Montana, should issue a proclamation to that effect. Ch. 81, Laws of Montana (1963). We are not disposed in this case to get into an esoteric discussion of Indian rights and responsibilities vis-a-vis state jurisdiction. It is not necessary here because under an ordinance adopted by the Confederated Salish and Kootenai Tribes, and proclaimed by the governor of this state in accordance with Ch. 81, Laws of Montana (1963), the Con- federated Salish and Kootenai Tribes consented to concurrent jurisdiction with state courts of tort claims arising from highway accidents occurring within the exterior boundaries of the Flathead Reservation. The pertinent provisions of Tribal Ordinance 40-A (Revised) adopted by the Tribal Council of the Confederated Salish and Kootenai Tribes, is as follows: "Be it enacted by the Tribal Council of the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Dixon, Montana: "That Chapter 1, 52 Jurisdiction, of the official code of ordinances be and the same is hereby amended to add subsections 1 and 2 of this ordinance following paragraph 3 to read as follows: "'Subsection 1. Subject to the conditions and limitations expressed in Subsection 2 hereof, the laws and jurisdiction of the State of --- -- Montana, including the judicial system of -- the State, are hereby extended pursuant to, and subject to the conditions in, the Act of the Montana Legislature of February 27, 1963, Laws of Montana, 1963, Vol. 1, Chap. 81, P. 170, to Indians within the Flathead Reservation -- to the extent such laws and jurisdiction relate to the --- -- subjects following: " ' (a) Compulsory School Attendance " ' (b) Public Welfare I ' ' (c) Domestic Relations (exception adoptions) "'(d) Medical Health, Insanity, Care of the Infirm, Aged and Afflicted " ' (e) Juvenile Delinquency and Youth Rehabilitation " ' (f) Adoption Proceedings (With consent of the Tribal Court) "I (g) Abandoned, Dependent, Neglected, Orphaned or Abused Children "' (h) Operation of -- Motor Vehicles upon the Public Streets, Alleys, Roads and Highways i All Criminal Laws of the State of Montana; and all Criminal Ordinances of Cities and Towns with the Flathead Indian Reservation. "'Subsection 2 . The effectiveness of Subsection 1 hereof is conditioned upon the following:' " (a) Concurrent jurisdiction remains (Where applicable with federal courts) with a Tribal Court and in the Tribal government of all matters referred to Subsection 1; and any matter initiated in either state or federal government court or the tribal court shall be completed and disposed of in that court and shall not be subject to re-examination in the courts of the other jurisdiction. "(b) No person, once convicted of a crime falling within the jurisdiction of the state or federal government or the tribes pursuant to this ordinance, shall be punished for the identical acts of the courts of the other jurisdiction, but shall be accorded the doctrine of former jeopardy as if the separate jurisdiction were one. "(c) This ordinance is subject to possible referendum of the eligible voters of the Confederated Tribes pursuant to Article 9 of the Constitution of Confederated Tribes . . . "(d) All jurisdiction of the Confederated Tribes under the Constitutional bylaws and ordinances enacted pursuant thereto under the federal government of the United States Criminal Code, to the extent not expressly transferred by Subsection 1 hereof, remains the Confederated Tribes and in the federal government respective to the same extent as if this ordinance had not been adopted. "(el If any provision of the act of the Montana Legislature of February 27, 1963 Laws of Montana 1963, Vol. 1, Chapter 81, or of this ordinance shall be held invalid, or if this ordinance be held to extend the jurisdiction more extensive than set forth herein, or any condition herein not be complied with or be held invalid or ineffect- ive, then this entire ordinance shall be held to be void and of no effect from the beginning." (Emphasis added.) The foregoing ordinance was adopted by the Tribal Council of the Confederated Salish and Kootenai Tribes on May 5, 1965. The governor of the State, the Honorable Tim Babcock, on October 8, 1965 proclaimed under the provisions of Ch. 81, Laws of Montana (1963), as follows: "Now therefore, by the power vested in me. as the aovernor of the State of Montana, I, ' Tim ~abcock, hereby proclaim that criminal and civil jurisdiction -- in the State of Montana, and its subdivisions does extend to the Confederated Salish and Kootenai Tribes as expressed in their approved Ordinance No. 40-A (revised) . . . and I further declare that 60 days from the date of October 8, 1965, such criminal and civil jurisdiction as previously described shall be in full force and effect." (Emphasis added.) The Montana legislative action authorizing the governor to proclaim jurisdiction and the adoption of Tribal Ordinance 40-A (Revised) occurred under and while Section 7 of Pub.L. 83-280 was in effect. It should be noted that this section was repealed in Pub.L. 90-284 (1968), Title IV, Section 403(b). However the repealer expressly provided that the repeal did not affect any cession made prior to the repeal. For any viewpoint of construction, Tribal Ordinance 40- A (Revised), as accepted and proclaimed by the governor of Montana, includes a broad grant of concurrent jurisdiction. The key language is that "[tlhe laws and jurisdiction in the State of Montana, including the judicial system of the State" are extended to "(h) Operation of Motor Vehicles upon the Public Streets, Alleys, Roads, and Highways". Yet Morigeau contends, as does amicus, that this language is intended to grant only criminal jurisdiction over the operation of motor vehicles and not civil jurisdiction. Nothing can be found within the tribal ordinance consenting to state jurisdiction or the governor's proclamation assuming the same that limits or excludes state civil jurisdiction over the operation of motor vehicles on state highways. Morigeau also contends, and again so does amicus, that subdivision (h) of the tribal ordinance is governed by subdivision (i) of the same ordinance, which consents to concurrent jurisdiction with the state as to all "criminal laws of the State of Montana". However, the legislative language of Tribal Ordinance 40-A (Revised), and its history does not comport with this argument. Tribal Ordinance 40-A of the Confederated Salish and Kootenai Tribes was first passed on May 15, 1964. In the original version, subdivision (i) of subsection 1 read as follows : "(i) Laws of the State of Montana and ordinances and regulations of a criminal nature applicable within incorporated cities and towns." Less than a year later on May 5, 1965, Tribal Ordinance 40-A (Revised) was passed by the Tribal Council amending subdivision (i) so that it reads as we have set it forth above in the first instance. It is obvious that the tribes, in examining Tribal Ordinance 40-A, as it was first adopted, decided that subdivision (i) was a broad grant of concurrent jurisdiction to all the laws of the State of Montana, both civil and criminal. That particular subdivision was amended so that only criminal laws of the State of Montana were included in subdivision (i). At the same time, however, the language of subdivision (h) was left untouched. In other words, the broad consent to concurrent jurisdiction by the tribes as expressed in subdivision (h) remained and still remains. -10- It is also obvious from the history of the act that the whole subject of Tribal Ordinance 40-A, is a conkraversal one on the reservation. We noted its stormy progress in State ex rel. McDonald v. District Ct. of Fourth J. D. (19721, 159 Mont. 156, 496 P.2d 78, 80, where we said: "Tribal consent to the assumption of criminal jurisdiction by the state courts of Montana over Indians committing crimes on the Flathead Indian Reservation was granted by the enactment of Tribal Ordinance 40-A, dated May 16, 1964. The governor of Montana thereafter issued the required proclamation on June 30, 1964. Almost a year later on May 5, 1965 Tribal Ordinance 40-A (Revised) was enacted. This Ordinance was similar to the odginal Ordinance 40-A except for clarifying language limiting its scope to criminal laws and repealing the original Ordinance 40-A. The governor of Montana thereafter issued another proclamation accordingly dated October 8, 1965. "Several months later on June 22, 1966, Tribal Resolution 1973 was enacted expressly rescinding Tribal Ordinances 40-A and 40-A (Revised). There is no evidence that this Tribal Resolution was ever transmitted to or received by the governor of Montana; nor was any proclamation of the governor made in connection with this Resolution. On June 30, 1966 Tribal Resolution 1997 was enacted which expressly rescinded Tribal Resolution 1973 enacted eight days previously. Again no governor's proclamation was issued concerning Tribal Resolution 1997. "On September 15, 1967 Tribal Resolution 2318 was enacted requesting the governor of Montana to extend the time limit for withdrawal from state jurisdiction for an additional year after October 7, 1967, and withdrawing its consent to such state jurisdiction. It further provided that this Tribal Resolution was null and void if the governor extended such time limit as requested. On October 8, 1967 the governor issued a third proclamation extending the time limit for the Tribe's withdrawal of their consent to state jurisdiction for an additional year from October 7, 1967. "Finally, on April 30, 1971, the Tribal Council passed a motion 'to seek retrocession on State Concurrent Jurisdiction'. The record discloses no further action in conformity with this motion." 159 Mont. at 160, 161, 496 P.2d at 80. One of the features of Ch. 81, Laws of Montana (1963), the legislative act which provided for the consent on the part of the State of Montana to extend jurisdiction to the Flathead Reservation is that statute provided that any consent by an Indian tribe could be withdrawn within two years of the date of the governor's proclamation. Such a withdrawal has not occurred. Morigeau and amicus contend flatly that Tribal Ordinance 40-A (Revised) does not extend state jurisdiction in tort actions arising from the operation of motor vehicles on the highway. They argue (1) the Tribal Court has exclusive jurisdiction when a non-Indian sues an Indian on a reservation- based claim; (2) that the tribes agreed only to limited concurrent state civil jurisdiction not including tort claims of the kind here in question; (3) tribal interpretation Tribal of/Ordinance 40-A (Revised) is against concurrent jurisdiction; and (4) construction of Tribal Ordinance 40-A (Revised) to include civil jurisdiction in tort-highway cases would constitute an infringement upon tribal sovereignty. In support of their arguments on the first contention, that the tribe has exclusive jurisdiction, Morigeau and amicus point out that this accident occurred in Indian country; that the highways exist by virtue of easements granted by the tribal authorities to the state and federal governments; that the Flathead Tribal Court is a forum for actions in tort available to non-Indians as well as to Indians, and that the Tribal court has jurisdictional scope to include tort actions such as the one here. Those points, while significant in determining that the Tribal Court has jurisdiction, do not necessarily point to exclusive juris- diction in the Tribal Court. None of the cases cited by Morigeau and amicus in support of those points hold or require that only the Tribal Court of the Flathead Indian Reservation, after the cession under Pub.L. 83-280, has -12- exclusive jurisdiction of tort actions arising out of the use of the highways on the reservation. As a matter of fact, it appears that the Council of the Confederated Salish and Kootenai Tribes voluntarily found it in their interest to consent to such jurisdiction by the adoption of Tribal Ordinance 40-A (Revised). Another consideration argued by Morigeau and amicus is that assumption of the State of civil jurisdiction in this case would constitute an infringement on the tribes of self- government. Again, this argument overlooks the point that the Confederated Salish and Kootenai Tribes granted and the State assumed civil and criminal jurisdiction to matters involving the use of the highways within the borders of the reservation. It is no more an infringement upon the tribal sovereignty to grant civil and criminal jurisdiction in highway cases than it is to grant civil and criminal jurisdiction over cases of public welfare, domestic relations, juvenile delinquency, and care of the infirmed, aged and afflicted, all of which subjects involve tribal sovereignty and for all of which the tribe granted consent to civil as well as criminal jurisdiction in Tribal Ordinance 40-A (Revised). As the tribal ordinance states, if the consent to civil and criminal jurisdiction is ineffective as to one part, it is ineffective as to all parts of the tribal ordinance. It is too late now to pick and choose which parts of Tribal Ordinance 40-A (Revised) will be binding and which parts will not be binding. There are many economic, financial and social advantages accruing to the tribes by virtue of their consent. Those advantages have accompanying responsibilities which, to make the system workable, must also be faced and accepted. What we have said in the foregoing paragraphs con- cerning the tribal claim of exclusive jurisdiction, touches and controls also the tribal claims that the tribes agreed only to limited concurrent state civil jurisdiction, not including tort claims of the kind here in question, and that construction of Tribal Ordinance 40-A (Revised) to include civil jurisdiction in tort-highway cases, constitutes an infringement upon tribal sovereignty. There remains for discussion the claim of Morigeau and amicus that tribal Tribal interpretation of/Ordinance 40-A (Revised) is against state court jurisdiction. In support of their contention, Morigeau and amicus point to our holding in Security State Bank v . Pierre (19731, 162 Mont. 298, 300, 511 P.2d 325, 327. There we said, quoting State ex rel. Iron Bear v. District Court (19731, 162 Mont. 335, 512 P.2d 1292: "Before a district court can assume juris- diction in any matter submitted to it, it must find subject matter jurisdiction by determining: (1) whether the federal treaties and statutes applicable have preempted state jurisdiction; (2) whether the exercise of state jurisdiction would interfere with reservation self-government; and (3) whether the Tribal Court is currently exercising jurisdiction or has exercised jurisdiction in such a manner as to preempt state jurisdiction." With respect to the first test stated in -- Iron Bear, the federal treaties and statutes have not in this case preempted state jurisdiction, because Pub.L. 83-280 provided particularly for the cession to and assumption by states of criminal and/or civil jurisdiction on Indian lands within the state's borders. With respect to the second -- Iron Bear test, it is true that the assumption of either criminal or civil jurisdiction by the state of matters arising within theexterior boundaries of the Flathead Indian Reservation constitutes an inter- ference with the powers of self-government conferred upon the tribes, see Fisher v. District Court (1976), 424 U.S. 382, 387, 96 S.Ct. 943, 47 L.Ed.2d 106. Again, Pub.L. 83-280 contemplated such interference when it provided for the assumption of criminal or civil jurisdiction by the states. It is with respect to the third test under -- Iron Bear whether the Tribal Court has preempted jurisdiction, that Morigeau and amicus have concentrated their attack. Amicus has supplied us, through its briefs, with various certificates showing the establishment of a judicial system on the Flathead Reservation; the existence of a Tribal Court comprised of one Chief Judge, one full time associate, and two parttime associate judges; the Tribal Court has adjudicated claims arising from automobile accidents involving non- Indians versus Indian defendants relating to accidents occurring on the reservation; the Tribal Court keeps records, and that since 1975, 460 non-Indian plaintiffs have sued Indian defendants in civil actions in the Tribal Court, involving tort and contract claims against Indian defendants; and various excerpts from the minutes of meetings of the Tribal Council relating to the progress through the legislature of House Bill 55, which became Ch. 81, Laws of Montana (1963). Yet, all of this material shows not that the Tribal Court is exercising exclusive jurisdiction, but rather is exercising concurrent jurisdiction in these matters, insofar as they are covered by Tribal Ordinance 40-A (Revised). The Tribal Ordinance itself specifically speaks of concurrent jurisdiction and it is important to note that Tribal Ordinance 40-A (Revised) includes the provision that any action commenced and completed either in the Tribal Court or in the state on a matter is covered by the ordinance becomes res judicata as to the other court. -15- The record therefore does not support the application of the third test under -- Iron Bear, preemption by the Tribal Court, because when the Tribal Court acts with respect to causes covered by Tribal Ordinance 40-A (Revised), it is acting concurrently, and not exclusively. Both Morigeau and amicus point to Kennerly v. District Court of Montana (1971), 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507, as controlling precedent for the present case. Kennerly, however, is not in point because the legislature there had not taken affirmative action as required under Pub.L. 83-280. Nor does our decision in Security State Bank v. Pierre, supra, control this case because in Security State - - Bank, the action was for the collection of a note entered into on the Flathead Reservation between an Indian member of the tribes residing on the Reservation and a nonmember bank. Such a commercial transaction is not one of the subjects over which the state assumes jurisdiction through Tribal Ordinance 40-A (Revised). One other suggestion contained in Morigeau's reply brief should be discussed. Morigeau contends that this case involves an interpretation of tribal law and that therefore, under principles of comity, this Court should abstain from a decision until the Tribal Court on the Flathead Reservation has interpreted the extent of civil jurisdiction ceded under subdivision (h) of Tribal Ordinance 40-A (Revised). Abstention, Morigeau contends, would reduce "inter- governmental friction" likening the "competing interests" both of the state and the tribes to a "Pullman-type abstention situation" (Railroad Comm'n v. Pullman Co. (1941), 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed.2d 971). Florigeau also points out that in Fisher, 424 U.S. 382, 384, the United States Supreme Court noted that the Montana District Court had first referred the jurisdictional question to the Appellate Court of the Northern Cheyenne Tribe for decision. -16- Of course, in Fisher, supra, the dispute was completely between Indian members of the Northern Cheyenne Tribe. Moreover, the Appellate Court of the Northern Cheyenne Tribe, in Fisher, specifically did not decide whether the tribal court had jurisdiction of adoption by nonmembers of a member of a tribe. (See 424 U.S. at 384, n. 6.) We are not disposed to follow the federal system of abstention in this matter. First, such abstention would in this case simply leave the parties as they were at the close of the District Court proceedings. Morigeau is entitled to a final decision by this Court as to the validity of the judgment held by Larrivee against him. Secondly, the sovereign state of Montana is entitled in the least to an equal say in the interpretation of an agreement to which its full consent was necessary. It would be strange indeed if the state should agree to be bound by such interpretation of its consent as the other party chose to give it. We therefore hold that the District Court had subject matter jurisdiction in this case through Tribal Ordinance 40-A (Revised); Ch. 81, Laws of Montana (1963), and Pub. L. 83-280, 67 Stat. 588 (1953). This ruling is limited in effect, of course, to the Flathead Indian Reservation. This holding has no reference to the reasons cited by the District Court for upholding jurisdiction. Af f irmed. We Concur: Chief Justice .............................. Justices Mr. Justice Daniel J. Shea will file his dissent at a later time . | October 12, 1979 |
4e153976-d8c6-43ed-b9a4-61ee2f8ea110 | BERTAGNOLLI v BERTAGNOLLI | N/A | 14674 | Montana | Montana Supreme Court | No. 14674 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 PATRICIA H. BERTAGNOLLI, Plaintiff and Appellant, VS. EDWARD E. BERTAGNOLLI, Defendant and Respondent. Appeal from: District Court of the Eighteenth Judicial District, Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellant: Drysdale, McLean and Screnar, Bozeman, Montana For Respondent: Berg, Morgan, Coil & Stokes, Bozeman, Montana Submitted on briefs: September 12, 1979 Decided : OEC 1 9 1979 Filed: 2 ?im Mr. Justice John Conway Harrison delivered the Opinion of the Court. Appellant, formerly Patricia H. Bertagnolli, began this action in 1974 by filing a complaint for divorce in the Eighteenth Judicial District before the Honorable W . W. Lessley. The complaint requested the court to dissolve her marriage to the respondent, Dr. Edward E. Bertagnolli, to equitably divide the property of the parties, and to award her support and maintenance payments and attorney fees. At the time the complaint was filed, Dr. and Mrs. Bertagnolli had been married for 27 years. During the marriage, Dr. Bertagnolli practiced medicine in Three Forks, Montana, and Mrs. Bertagnolli cared for the couple's home and raised the seven children born to the marriage. The couple accumulated real estate and personal property valued at $220,000 at the time of their divorce. In the years immediately prior to the divorce, Dr. Bertagnolli had a yearly net income of approximately $35,000. The record shows that at the time of the divorce pro- ceedings, Mrs. Bertagnolli had decided to move from Three Forks to Bozeman. The complaint filed by Mrs. ~ertganolli states that she felt it would be in the best interests of the couple's children to remain together in their home in Three Forks where they attended school. To facilitate this, Mrs. Bertagnolli's complaint alleges custody of the children should be granted to Dr. Bertagnolli. At the hearing on the divorce, the parties introduced exhibits setting out their living expenses based on the assumption that the trial court would award custody to Dr. Bertagnolli. The exhibits show Mrs. Bertagnolli needed approximately $550 per month to provide for herself. Dr. B e r t a g n o l l i , on t h e o t h e r hand, required almost f i v e t i m e s t h a t amount t o maintain a household f o r t h e c o u p l e ' s c h i l - dren, D r . B e r t a g n o l l i ' s Exhibit A lists over $2400 per month i n expenses necessary t o support t h e Bertagnolli c h i l d r e n s t i l l dependent on t h e i r parents. The l i s t i n - cludes expenses f o r food, c l o t h i n g , housing and c o l l e g e f o r a l a r g e family. Subsequent t o hearing t h e complaint, t h e D i s t r i c t Court found a l l of t h e property accumulated by t h e p a r t i e s during t h e i r marriage w a s i n t h e possession of D r . B e r t a g n o l l i except a 1970 Renault automobile which w a s i n t h e possession of M r s . Bertagnolli. The c o u r t a l s o found it would be i n t h e b e s t i n t e r e s t of t h e c h i l d r e n of t h e marriage t o be placed i n t h e custody of D r . Bertagnolli. Based on t h e s e f i n d i n g s , t h e c o u r t awarded custody of t h e c h i l d r e n t o D r . B e r t a g n o l l i , ordered him t o pay M r s . B e r t a g n o l l i ' s t u i t i o n and book expenses i f she attended c o l l e g e , ordered t h e doctor t o pay M r s . B e r t a g n o l l i ' s a t t o r n e y f e e s and ordered him t o pay her $650 per month f o r her support and main- tenance. Pursuant t o a timely motion by D r . B e r t a g n o l l i , t h e c o u r t amended t h e judgment reducing t h e monthly payment t o $600. Faced with t h e n e c e s s i t y of keeping t h e property of t h e marriage together f o r t h e support of t h e c o u p l e ' s l a r g e family, t h e c o u r t awarded D r . ~ e r t a g n o l l i a l l t h e property i n h i s possession. Although t h e judgment granted almost none of t h e couple's property t o M r s . B e r t a g n o l l i , she d i d n o t appeal t h e D i s t r i c t C o u r t ' s decision. M r s . Bertagnolli remarried i n 1978. After t h e remar- r i a g e , D r . B e r t a g n o l l i refused t o make any f u r t h e r monthly payments. The a p p e l l a n t , now M r s . Nelson, p e t i t i o n e d t h e District Court t o hold t h e doctor i n contempt f o r f a i l i n g t o make h i s monthly payments. A f t e r a hearing on t h e matter, Judge Lessley terminated D r . B e r t a g n o l l i ' s o b l i g a t i o n t o make f u r t h e r payments, c i t i n g s e c t i o n s 21-139 and/or 48- 330 ( 2 ) , R.C.M. 1947, now s e c t i o n 40-4-208 ( 2 ) , MCA. Those s e c t i o n s r e q u i r e t h e c o u r t t o terminate maintenance payments upon t h e remarriage of t h e p a r t y receiving maintenance absent c e r t a i n conditions n o t p r e s e n t i n t h i s case. M r s . Nelson appeals t h i s d e c i s i o n of t h e lower court. The controversy i n t h i s case c e n t e r s around t h e lan- guage i n t h e amended decree of divorce and judgment entered i n 1975 granting t h e former M r s . B e r t a g n o l l i support and maintenance payments i n l i e u of a property d i v i s i o n . I f w e determine t h e monthly payments ordered by t h i s p a r t of t h e divorce decree c o n s t i t u t e maintenance o r alimony, t h e D i s - t r i c t Court properly held t h e payments should terminate on M r s . B e r t a g n o l l i ' s remarriage. Section 40-4-208(2), MCA. I f , however, t h e payments were intended t o be a p a r t of t h e property d i v i s i o n between t h e p a r t i e s , t h e property s e t t l e - ment produced f o r M r s . Bertagnolli a vested r i g h t i n t h e payments. I n r e Marriage of R e i l l y (1978), Mont. I 577 P.2d 840, 844, 35 St.Rep. 451, 457. Under t h i s i n t e r - p r e t a t i o n of t h e o r i g i n a l decree, her remarriage would n o t a f f e c t t h i s r i g h t , and t h e D i s t r i c t Court order terminating t h e payments should be reversed. This Court has considered t h e question of whether language i n divorce decrees c o n s t i t u t e s an award of main- tenance o r a d i v i s i o n of property on s e v e r a l p r i o r occa- sions: Washington v. Washington (1973), 162 Mont. 349, 354- 357, 512 P. 2d 1300; Movius v. Movius (1974), 163 Mont. 463, 467-469, 517 P.2d 884; Taylor v. Taylor (1975), 167 ~ o n t . 164, 168-170, 537 P.2d 483; Englund v. Englund (1976), 169 Mont. 418, 421, 547 P.2d 841. Washington, Movius and Taylor a l l involved s i t u a t i o n s i n which t h e p a r t i e s t o t h e divorce had entered i n t o s e t t l e - ment agreements which w e r e incorporated by reference i n t o c o u r t divorce decrees. I n those cases, w e looked t o t h e agreements t o determine i f the alimony provisions w e r e i n t e g r a l p a r t s of t h e e n t i r e agreement between the p a r t i e s . I f the maintenance provisions were inseparable from the property settlement portions of t h e e n t i r e agreement, w e held the alimony payments constituted a p a r t of t h e property settlement contract. A s such, t h e c o u r t s d i d not possess a u t h o r i t y t o modify t h e agreement between t h e p a r t i e s . Taylor, 167 Mont. a t 168. W e cannot apply t h e a n a l y s i s employed i n these t h r e e cases t o t h e i n s t a n t case. The p a r t i e s here d i d n o t e n t e r i n t o a settlement agreement. W e cannot, therefore, d e t e r - mine i f t h e alimony payments awarded t o M r s . Bertagnolli w e r e an i n t e g r a l p a r t of t h e agreement between the p a r t i e s . I n addition, w e cannot say t h e D i s t r i c t Court erroneously exercised i t s power by modifying an agreement between t h e p a r t i e s here when no agreement existed. W e must, therefore, r e l y on t h e standard set o u t i n Englund v. Englund, supra, and cases from other jurisdic- t i o n s dealing with s i t u a t i o n s where t h e maintenance award i s d e c r e t a l r a t h e r than based on a s e t t l e d agreement. When t h e question a r i s e s under these circumstances, w e examine t h e i n t e n t of t h e D i s t r i c t Court i n issuing the decree t o deter- mine i f t h e payments c o n s t i t u t e maintenance o r p a r t of a property settlement. Englund, 169 Mont. a t 421; Viglione v. Viglione (1976), 171 Conn. 213, 368 A.2d 202, 204-205. If t h e lower c o u r t mistakenly l a b e l s maintenance what it obvi- ously i n t e n d s t o be a p a r t of t h e property settlement, w e w i l l recognize t h e award a s p a r t of t h e property s e t t l e m e n t on appeal. Englund, 169 Mont. a t 421. Applying t h i s test here, w e f i n d t h e f a c t s show t h e t r i a l c o u r t intended t h e payments t o be maintenance, n o t p a r t of a property settlement. The language used by t h e ~ i s t r i c t Court i n t h e o r i g i n a l decree s t r o n g l y i n d i c a t e s t h e c o u r t intended t h e payments t o be maintenance. The decree, a s amended, reads: " I n l i e u of a d i v i s i o n of t h e property of P l a i n t i f f and Defendant, Defendant s h a l l pay P l a i n t i f f t h e sum of SIX H U N D R E D D O L L A R S ($600.00) per month a s and f o r her support and maintenance . . . " The p l a i n meaning of t h a t language i n d i c a t e s t h e c o u r t intended t h e award t o c o n s t i t u t e maintenance i n s t e a d of a property settlement. I n making t h e award, t h e lower c o u r t considered t h e a b i l i t y of D r . B e r t a g n o l l i t o make payments and M r s . Bertag- n o l l i ' s necessary monthly expenses. I t i s c l e a r from t h e reduction of t h e amount of t h e payments from $650 t o $600 because t h e second f i g u r e w a s c l o s e r t o M r s . B e r t a g n o l l i ' s l i v i n g expenses t h a t t h e c o u r t d i d n o t t i e t h e amount of t h e payments t o t h e value of t h e property accumulated by t h e p a r t i e s during t h e marriage. This f a c t a l s o l e a d s t o t h e conclusion t h a t t h e D i s t r i c t Court intended payments t o be maintenance r a t h e r than a property d i v i s i o n . F i n a l l y , here, a s i n Viglione where t h e Connecticut Supreme Court had a t r a n s c r i p t of remarks made by t h e r e f e r e e who o r i g i n a l l y decided t h e case when c a l l e d upon t o i n t e r p r e t t h e provisions, we have t h e b e n e f i t of t h e i n t e r - p r e t a t i o n of t h e questioned clause by t h e judge t h a t i s s u e d t h e i n i t i a l decree. W e do n o t face t h e Englund s i t u a t i o n of reviewing t h e i n t e r p r e t a t i o n of t h e language by a second D i s t r i c t Court judge. The i n s t a n t f a c t s i t u a t i o n does n o t r e q u i r e us t o read t h e mind of t h e judge who entered t h e o r i g i n a l decree t o determine i t s meaning. The judge t h a t entered t h e i n i t i a l decree tells us what he intended by the language i n t h e decree i n t h e findings, conclusions, order and judgment he issued i n 1978. The judge concluded t h e language i n t h e f i r s t decree awarded M r s . Bertagnolli main- tenance, n o t property settlement payments. For t h e reasons set o u t above, w e a f f i r m the judgment of t h e D i s t r i c t Court. Q 4 - c I w L d W e concur: X A ~ # &&&a?Q Chief J u s t i c e / ; P Mr. Justice Daniel J. Shea dissenting: An analysis of what the majority has done in this case must start with the end result. This Court has determined that a woman who gave 27 years to her husband as a wife and mother of their 7 children at the dissolution of this marriage which resulted in the joint accumulation of property worth $220,000 is entitled to absolutely nothing. This cannot be justice. The central issue, according to the majority, requires only an interpretation of the following conclusion of law contained in the divorce decree entered in July 1975: "In lieu of a division of the property of ---- -- Plaintiff and Defendant, Defendant shallpay Plaintiff the sum of SIX HUNDRED DOLLARS ($600.00) per month as and for her support and maintenance . . ." (Emphasis added.) Compelled of course, only by logic and justice, the trial court and this Court concluded that the payments were to continue only until such time as the wife should remarry. This con- clusion is permitted only if the words "support and maintenance" are interpreted as traditional maintenance. If so, then upon the wife's remarriage, the result naturally flows that under either section 48-330(2), R.C.M. 1947 (now section 40-4-208(2), MCA), or its predecessor in effect at the time of the entry of the decree, section 21-139, R.C.M. 1947 (repealed in 1975), that the duty of the husband to pay such "support and maintenance" terminated upon the wife's remarriage in March 1978. Neither logic nor justice requires this result. Both the trial court and this Court ignore the implication which naturally follows from a conclusion of law awarding "support and maintenance" to the wife "in --- lieu of a division of the property" of the husband and wife. By this language the trial court plainly recognized that the wife had a property interest -8- in the assets of the marriage, but in considering the total circumstances, chose to order the property interest paid in some other form. The meaning of the phrase "in lieu of" is well defined. Black's Law Dictionary (4th Ed., at 896) defines it as meaning "instead of, as a substitute for", or "in place of." The trial court chose the words "instead of", and so did the majority here: "The plain meaning of that language indicates the court intended the award to constitute maintenance instead of - a property settlement." (Emphasis added.) Both the trial court, and this Court, it seems, without a discussion, proceeded on the assumption that the phrase "support and maintenance" means solely a conditional form of payment, subject to termination by coming within the termination 1947 of support provisions contained in section 21-139, R.'G.P~Jand.its successor, section 40-4-208(2), MCA. I do not construe this phrase so narrowly, particularly in light of the devastating consequences it has in this case. By emphasizing that it was awarding support and maintenance in lieu of a property division, the trial court, in effect, stated: The wife has a right to an equitable division of the $220,000 assets acquired by the joint efforts of the parties during the marriage. However, rather than to divide the property, I am going to keep it intact by substituting in its stead, the right of the wife to support and maintenance in exchange for her giving up her claim to an equitable division of the real and personal property. Unfortunately, the trial court chose the words "support and maintenance" rather than more accurately characterizing the true nature of her claim. Three years later these poorly chosen words became a trap for the unwary wife. - 9- Here the trial court clearly recognized the wife's property interest in the $220,000 marital estate. Despite this interest, did the trial court mean that it was awarding her $600 per month only until she remarried or became fully self-supporting? If this is the case, it awarded the wife virtually nothing. For her to realize anything out of the marital accumulations she had to refrain both from remarriage and from becoming fully self- supporting. In exchange for this conditional interest, did the wife give up, by virtue of the trial court's decree, any interest she had in the assets jointly acquired during the marriage, with a total value of $220,000? It strains credulity to consider this as a fair exchange. This result, furthermore, is not compelled by the law or the facts. When the original decree was entered, it is clear that the "support and maintenance" was not awarded to her simply because she was unable to support herself and her husband had the financial ability to do so. Rather, it was awarded to her to compensate for her interest in the property acquired during the marriage. Would there be any other reason for the trial court to condition this "support or maintenance" as being -- in lieu of - a division of property.. . . " ? The findings and conclusions originally entered by the trial court fully support the con- clusion that the wife was being compensated for a property interest. That property interest, however ill-defined, vested at the time of the entry of the findings and conclusions and the failure of the husband to appeal from the trial court's original judgment. A detailed summary of the trial court proceedings in this case is necessary to understand the stature of the case at the time it was submitted to the trial court for decision. It is a gross over-simplification, to conclude, as the majority has, that the only issue to be decided is to determine the meaning of the questioned clause in the divorce decree, but to ignore the status of the case at the time it was submitted to the trial court for a determination of the rights of the parties. -10- In September 1974, the wife filed a complaint for the dissolution of her marriage. She specifically alleged that the parties had acquired real and personal property through their joint efforts and further requested the trial court to "determine those rights [and] set over to each of the parties their respective rights in said property." She also asked for temporary support or maintenance pending the final decree. Concerning her request for alimony or maintenance, the wife alleged that she was without any means of support and that the husband "should be required to pay plaintiff monthly alimony or a lump sum in lieu thereof, as in the Court's discretion it ------ may deem equitable." (Emphasis added.) In her prayer for relief she specifically requested the trial court to "make an equitable division of the property of the parties" and to order "such sums as it deems meet and equitable for Plaintiff's support and maintenance,. . ." The issues as to property and maintenance were joined when the husband filed his answer. He denied the wife's allegation that the property was acquired by their joint efforts and he denied her allegation that she was in need of maintenance. Concerning her allegation as to the accumulation of marital property, the husband specifically alleged: ". . . this answering defendant admits that during their married life defendant has accumulated certain real and personal properties; denies each and every allegation and every part of every allegation of said paragraph not hereinbefore otherwise qualified or admitted." (Emphasis added.) It is clear, therefore, that the husband claimed all the property for himself, that is, that he alone had accumulated the property. In his prayer for relief, he requested that the wife take nothing by her complaint and that he be granted all the relief he requested. This of course would require a determination that he alone owned all the property acquired during the marriage and that the wife should be paid nothing for main- tenance. Before the actual dissolution of marriage, the wife obtained a temporary maintenance order from the trial court based upon her allegations, and the evidence submitted in support of her need. Before trial on the merits because she had no access to the records involved, she submitted detailed interrogatories to the husband concerning a listing and valuation of the property acquired during the marriage. It was established that the value of the real property and personal property acquired during the marriage was in the vicinity of $220,000. After a hearing on the merits the trial court entered its findings of fact and conclusions of law. The record of the trial is not available to this Court for it appears that either the court reporter or someone in the Clerk of Court's office lost the trial notes, leaving a transcription impossible. The divorce was granted on the basis of irreconcilable differences; both wife and husband were found to be fit and proper to have custody of the children; custody was awarded to the husband based upon the request of the wife and request of the husband. At the time of the divorce the wife was age 49 and the husband age 50. The husband had a taxable income of $50,000 per year and net income of $36,000 per year. As to the property acquired during the marriage, the trial court entered the following findings: "The - Plaintiff - and Defendant in their married lives have accumulated certain -- realand personal property, consisting of real estate and personal property and investments and securities having a total value of TWO HUNDRED TWENTY THOUSAND DOLLARS ($220,000.00), all of which are more specifically described in Exhibit 'A1 attached hereto and by this reference made a part thereof; -12- "All of the property of the parties accumulated during their marriage as aforesaid, is in the possession and control of the Defendant, with the exception of a 1970 Renault, which is in the possession of the Plaintiff;" The trial court entered five conclusions of law, but only one of them related to the property acquired by the husband and wife during the marriage, and it is the provision disputed in this appeal: "In lieu of a division of the property of -- lai in tiff and Defendant, Defendant shallpay Plaintiff the sum of SIX HUNDRED AND FIFTY DOLLARS ($650.00) per month as and for her support and maintenance commencing July 1, 1975, which sums shall be paid on the 1st of each month by the Defendant through the Clerk of the above- entitled Court;" (Emphasis added.) After the entry of judgment, the husband immediately recognized that the trial court had found that the property had been accumulated by the efforts of he and his wife, and he therefore launched an attack on this finding by moving the trial court to amend its findings and conclusions. With respect to the finding on the joint accumulation of the real and personal property the husband requested the trial court to substitute the following finding of fact. ". . . that the property and assets accumulated during the marriage is not the result of joint efforts of plaintiff and defendant, but rather, is almost solely as a result of defendant's investment program and labor as a general practitioner." By making this motion, it cannot be denied, that the husband knew full well that the wife was recognized in the decree as having an interest in the $220,000 assets accumulated during the marriage. In addition to asking the trial court to change its finding in relation to the property accumulations by the joint efforts of the husband and wife, and to substitute a finding that only the husband had contributed to and acquired this property, the husband asked the trial court to reduce the monthly payment from $650 per month to $600 per month. It is apparent that he had an ulterior motive in making this request. The husband gambled that should the court not change its finding relating to the joint acquisition of marital assets, an order reducing the amount paid would serve as a launching pad for future argument that the monthly payments were nothing more than traditional maintenance, terminable upon the wife either becoming fully self-supporting or upon her remarriage. He proved to be correct. We thus have the situation in which the trial court refused to change the finding of fact that the wife and husband had jointly acquired real and personal property valued at $220,000. On the other hand, the trial court reduced the monthly payment from $650 per month to $600 per month. The wife did not appeal from the trial court's reduction of the monthly payments, and the husband did not appeal from the trial court's finding, and its refusal to change the finding of fact that the husband and wife had jointly accumulated the marital estate valued at $220,000. This is the status of the District Court judgment as it reaches us on this appeal. There is another crucial event which occurred after entry of the original judgment, which must be considered. After both parties had foregone an appeal, the wife, in reliance upon the decree awarding her "maintenance and support" as a substitute for a "division of the property of Plaintiff [the wife] and Defendant [the husband]", conveyed all her interest in the real property to her husband, and also gave up any interest she had in the personal property acquired during the marriage. Would she have done this if she believed that either her remarriage or her becoming fully self-supporting would automatically cut off the monthly payments and terminate any claim she had to the marital -14- assets? This, in effect, is what the trial court held, and this in effect, is what this Court held. The result is that if we presume no increase in valuation of the marital estate, the husband paid close to $18,000 to the wife in the form of monthly payments from August 1975 through March 1978. Thus, from the marital assets, the husband has received property valued at $202,000 ($220,000 less $18,000) and the wife has received $18,000. The husband has received more than ten times what the wife has received. This can hardly be classified as an equitable distribution of the marital assets. I fail to see under these circumstances how either equity or the law is on the side of the husband. Stripped to its essentials, the majority opinion reasons as follows: The plain meaning of the questioned clause in the divorce decree is that only support and maintenance in the traditional sense is contemplated. But if the plain reading is not enough to justify this conclusion, then this, combined with the factors considered by the trial court in arriving at the monthly financial needs of the wife and the ability of the husband to respond to those financial needs, is indicative that no property interest, direct or indirect, was contemplated. Thus, reaching the conclusion that no property interest (direct or indirect) was contemplated, the majority concludes that, unlike a property interest, the receipt of support and maintenance is not a vested right; rather it is a charitable gift, subject to the subsequent conditions contained in section 29-131, R.C.M. 1947, and its successor, section 48-330(2), R.C.M. 1947 (now section 40-4-208(2), MCA). Upon the happening of any of these subsequent conditions contained in these statutes, the right to receive support and maintenance is terminated. Here, the wife's remarriage triggered the provision of the statute providing that remarriage terminates the obligation to pay support and maintenance. -15- If the meaning is so plain, the majority should merely have confined itself to a discussion of the clause itself in reaching the decision that the wife's support and maintenance was terminated upon her remarriage. Furthermore, as I have previously discussed, the majority totally ignored the implication that a property right of some kind was recognized by the fact that the trial court had found the wife and husband had jointly accumulated the marital assets, and that support and maintenance was awarded to the wife as a substitute ("in lieu of") for her giving up specific claims to the $220,000 marital assets. The majority ignored the crucial fact that in reliance upon the decree, the wife conveyed all her interest in the real estate to the husband and gave up any claim to specific personal property assets accumulated during the marriage. Nor can I give much weight to the factors allegedly con- sidered by the trial court in arriving at the monthly payments. The trial court chose not to apportion the marital assets between the parties--that is, it chose to keep these assets intact. In effect, it awarded them to the husband. As long as the trial court chose not to order a division of the property, which may have required a sale, it had to consider both the ability of the husband to make monthly payments and the wife's needs in arriving at what it considered a reasonable monthly payment. If this were not done, the practical effect might have been that the husband would have been compelled to sell some of the assets in order to meet the monthly payments. This, ostensibly, is what the trial court was trying to avoid. But, above all, the vital factor is that the support and maintenance was awarded as a substitute for a property division. This is not support and maintenance in the traditional sense, subject to termination upon the wife either becoming fully self-supporting or upon her remarriage. Without question, in substituting support and maintenance for an equitable property division, the trial court recognized that the wife had a claim to an equitable division of the marital assets, but for reasons known only to the trial court, it chose to award this interest in the form of support and maintenance. Under the circumstances of this case, I have no hesitation in concluding that the wife's interest in support and maintenance was a vested interest. It appears that neither party had any control over the terminology of the divorce decree. I say this because there is nothing in the record to indicate whether either party suggested the terminology contained in the questioned clause, or even suggested this approach to the trial court. The District Court file contains no proposed findings and conclusions, thus it is difficult to determine the precise theory used by either the husband or the wife. By concluding that the wife has a vested right to support and maintenance, I am not unmindful of the potential implications of this result--namely, that the wife would have a claim to $600 per month for the rest of her natural life being that the trial court set no value on that portion of the marital assets to which she was equitably entitled. This would mean that she had the potential of realizing much more from the marital estate than would be her just share. Because the language used by the trial court is so poorly chosen, it is impossible to determine the future rights of the parties without additional proceedings in the trial court. I would reverse the trial court and remand for a determination of the value of the estate to which the wife is equitably entitled, and then permit the $600 monthly payments to continue until that value is satisfied. In the alternative, I would order that the trial court equitably apportion the marital assets between the husband and wife, assuming that they are still sufficiently intact and not encumbered. -17- It i s a g r o s s i n j u s t i c e t o let t h e d e c i s i o n of t h e t r i a l c o u r t s t a n d , t h e e f f e c t of which is t o r a t i f y a d e c i s i o n t h a t t h e w i f e is e n t i t l e d t o less than one-tenth of t h e m a r i t a l e s t a t e a f t e r she has given 27 y e a r s t o h e r husband a s a w i f e and mother of t h e i r 7 c h i l d r e n . T h i s r e s u l t should be sanctioned by n e i t h e r law nor e q u i t y . | December 19, 1979 |
a9b28197-7aee-4427-99e4-7d052d49446a | U V INDUSTRIES INC v DANIELSON | N/A | 14755 | Montana | Montana Supreme Court | No. 14755 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 U . V. INDUSTRIES, INC . , A corporation, et al., Appellants, RUSSEL D. DANIELSON, ROBERT V. DANIELSON, and MYRNA BRODHEAD, Respondents. Appeal from: U. S. District Court, Billings Division, Hon. U.S. District Judge James Battin, presiding. Counsel of Record: For Appellant: Crowley, Haughey, Hanson, Tool & Dietrich, Billings, Montana Cale Crowley argued, Billings, Montana For Respondents: Raymond K. Peete argued, Billings, Montana Submitted: September 18, 1979 ~ecided: NOV 1 1979 M r . ~ u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court. This matter i s before t h i s Court on c e r t i f i c a t i o n from t h e United S t a t e s D i s t r i c t Court f o r t h e D i s t r i c t of Montana. Plaintiffs-respondents a r e grantees under a mineral deed from the owner and l e s s o r of the o i l and gas beneath t h e ~ 1 / 2 of s e c t i o n 10 i n Richland County, Montana. Defendants- applicants a r e t h e l e s s e e and its assigns under t h e "Daniel- son" o i l and gas l e a s e covering t h i s t r a c t ; some of t h e applicants a r e o r were a l s o l e s s e e s under t h e "Lewis" o i l and gas l e a s e covering an adjacent t r a c t , t h e NW1/4 of s e c t i o n 10. O n May 1 2 , 1975, respondents, t h e grantees, brought s u i t i n s t a t e D i s t r i c t Court i n Richland County, requesting damages from t h e applicants f o r t h e period be- tween February 3, 1970 and September 1 4 , 1972, f o r f a i l u r e t o d r i l l an o f f s e t w e l l t o p r o t e c t t h e i r o i l i n t e r e s t s from drainage by a producing w e l l on an adjacent t r a c t of land ( L e w i s l e a s e ) . The case was removed t o t h e United S t a t e s D i s t r i c t Court f o r t h e D i s t r i c t of Montana, which has c e r t i - f i e d s e v e r a l i s s u e s t o t h i s Court f o r declaratory judgment regarding applicable Montana law, on a p p l i c a t i o n of t h e lessees pursuant t o Rule 1 of the Rules of t h i s Court. The f a c t s i n t h i s case a r e complex, b u t the p a r t i e s a r e i n s u b s t a n t i a l agreement a s t o those f a c t s , which follow i n summary form. There are two o i l and gas l e a s e s involved i n t h i s suit--the "Danielson" l e a s e covering t h e E1/2 of S ~ C - t i o n 1 0 , and t h e "Lewis" l e a s e covering t h e adjacent NW1/4 of Section 10. On December 30, 1968, Hilda ~ a n i e l s o n , respondents' mother and predecessor i n i n t e r e s t , executed a five-year primary term, "unless delay r e n t a l s " o i l and gas l e a s e ( " ~ a ~ i e l s o n " l e a s e ) t o applicant Empire S t a t e o i l Co., which subsequently assigned it t o t h e o t h e r applicants. This lease contained a clause providing that no change in ownership of the mineral interest would be binding upon the lessee until it received written notice thereof. On July 24, 1970, Mrs. ~anielson conveyed her interest to her five children, three of whom are respondents, in a mineral deed subject to the existing lease. The deed was recorded on September 20, 1971. Meanwhile, a producing well was completed by King Resources Co. on the adjacent Lewis tract on February 3, 1970. Two of the applicants, U. V. Industries, Inc. (through its predecessor United States Smelting, Refining and Mining Company), and Wolf Corporation were at relevant times part owners of this leasehold interest in the Lewis tract. Under the dates July 1 and July 26, 1972, U . V. Industries re- ceived letters on behalf of two of the plaintiffs demanding that U. V. Industries drill an offset well in the NE1/4 and compensate them for drainage resulting from production from the well on the adjacent Lewis lease. This demand was refused. U. V. Industries first received a copy of the mineral deed from Mrs. Danielson to her five children on August 2, 1972. All delay rentals through December 1972 were paid and accepted. Prior to September 14, 1972, the spacing of wells drilled on Section 10 was governed by statewide spacing orders issued by the Board of Oil and Gas Conservation. The statewide spacing order governing well spacing in the forma- tion and depth to which the Lewis well was drilled in effect at the time the well was drilled provided that one well could be drilled and operated on each quarter section (160 acres). This order was changed by the ~oard's Order No. 16-71 of May 13, 1971, which provided that one well could be d r i l l e d and produced on 320 a c r e s a t t h i s depth. Under t h e May 13, 1971 order, t h e 320 a c r e spacing u n i t would be composed of two contiguous north-south o r east-west q u a r t e r sections designated by t h e l e a s e operator, which d i d n o t necessarily have t o be within t h e same section. O n September 1 4 , 1972, the Montana O i l and Gas Conser- vation Board held a hearing a t which respondents and appli- c a n t U. V. I n d u s t r i e s were represented. The Board issued a s p e c i f i c well spacing order superseding t h e statewide spac- ing order f o r t h e p a r t i c u l a r production f i e l d involved i n t h e present controversy (Lonetree Creek f i e l d ) . This order designated t h e N1/2 of Section 10 a s a production spacing u n i t . The designated w e l l spacing u n i t includes t h e e x i s t - ing, producing L e w i s w e l l on t h e NW1/4 and it a l s o includes t h e NE1/4 owned by t h e respondents, where they a r e a l l e g i n g applicants had a duty t o d r i l l an o f f s e t well. Subsequently, on September 15, 1972, a l l p a r t i e s entered a voluntary pooling and u n i t agreement covering t h i s f i e l d . Respondents brought the present a c t i o n seeking damages under t h e common l a w " o f f s e t d r i l l i n g r u l e . " The common l a w theory implies i n every o i l and gas l e a s e a covenant on t h e p a r t of t h e l e s s e e t o p r o t e c t t h e premises of h i s l e s s o r from drainage of an adjacent producing w e l l by d r i l l i n g an o f f s e t well. The threshold i s s u e is: (1) Whether o r n o t t h e common law j u d i c i a l remedy of a c i v i l s u i t f o r damages i n s t a t e D i s t r i c t Court under t h e o f f s e t d r i l l i n g r u l e has been abolished by enactment of t h e 1953 Montana O i l and Gas Conservation law; i.e., does t h e Board of O i l and G a s Con- servation have exclusive j u r i s d i c t i o n t o determine such controversies? I f t h i s question i s determined adversely t o a p p l i c a n t s , t h e r e a r e s e v e r a l s u b s i d i a r y i s s u e s : ( 2 ) Was t h e l e s s o r o r h e r g r a n t e e s (respondents) re- q u i r e d t o s e r v e w r i t t e n n o t i c e o r demand on t h e lessee o r i t s a s s i g n s ( a p p l i c a n t s ) t o d r i l l an o f f s e t w e l l ; i f s o , d i d t h e lessee have a reasonable t i m e t h e r e a f t e r i n which t o comply; and, when does t h e o b l i g a t i o n of t h e lessee, i f any, t o pay damages commence? ( 3 ) What i s t h e e f f e c t of t h e "no change i n ownership u n t i l w r i t t e n n o t i c e " c l a u s e i n t h e l e a s e and c e r t a i n provi- s i o n s of t h e mineral deed on t h e r i g h t s of t h e p a r t i e s ? ( 4 ) What i s t h e a p p r o p r i a t e s t a t u t e of l i m i t a t i o n s ? The a p p l i c a n t s ' c o n t e n t i o n s a r e a s follows: I s s u e - #l. Enactment of t h e 1953 O i l and Gas Conserva- t i o n A c t , s e c t i o n s 82-11-101 e t seq., MCA, has e l i m i n a t e d and abolished a c t i o n s t o prevent d r a i n a g e by producing w e l l s on a d j a c e n t land based on t h e common law o f f s e t d r i l l i n g r u l e theory. The power t o conduct p u b l i c e v i d e n t i a r y hear- i n g s , i s s u e subpoenas, e s t a b l i s h w e l l spacing u n i t s , o r d e r i n v o l u n t a r y pooling of i n t e r e s t s w i t h i n t h e same, g r a n t o r deny permission t o d r i l l w e l l s , p r e v e n t waste and p r o t e c t c o r r e l a t i v e r i g h t s i s now committed by s t a t u t e t o t h e d i s c r e - t i o n of t h e Board of O i l and Gas Conservation. S t a t e D i s - t r i c t Courts, t h e r e f o r e , no longer have j u r i s d i c t i o n t o e n t e r t a i n and decide an i s o l a t e d p a r t of t h e whole scheme of d i s c r e t i o n a r y a d m i n i s t r a t i v e determinations v e s t e d i n t h e Board by s t a t u t e . Involuntary pooling of i n t e r e s t s w i t h i n a w e l l spacing u n i t by o r d e r of t h e Board a f f o r d s t h e same kind of r e l i e f a s w a s formerly granted by t h e common law j u d i c i a l remedy of a c i v i l s u i t f o r damages i n t h e state D i s t r i c t Court under t h e o f f s e t d r i l l i n g r u l e . A t any t i m e a f t e r they acquired t h e i r i n t e r e s t and before t h e Board order of September 14, 1972, plaintiffs-respondents had the statutory right to apply to the Board of Oil and Gas Con- servation for relief but did not do so. No implied covenant can exist which would authorize a District Court to require a lessee to drill an offset well without permission of the Board, or one which would, if drilled, violate statutory purposes or restrictions or a valid order of the Board, nor award damages if the lessee failed to do so. Second, the same issues of fact regarding the extent and location of the reservoir or pool with respect to the lands, and whether or not the Lewis well does in fact drain oil from beneath the NE1/4, are involved in both a common law action based on implied covenant and any statutory proceedings before the Board. Plaintiffs-respondents cannot collaterally impeach the Board's determination of these same factual issues, which it has already decided and which are res j udicata. Furthermore, the District Court cannot invade the power to make discretionary determinations vested by statute in a state board such as where, how many, and under what circumstances wells can be drilled and the spac- ing and pooling thereof. It cannot substitute its discre- tion for a valid discretionary order made by the ~oard. Third, plaintiffs-respondents waived their right, if any, to require applicants to drill an offset well to pro- tect them from drainage by a producing well on the ~ e w i s tract by their acceptance of delay rental payments through December 1972. Issue - #2. The following arguments need only be con- sidered if the Court determines the threshold issue adversely to the applicants; that is, if the Court decides that the remedy of a civil suit for damages in the ~istrict Court is still available for a lessee's breach of the implied cove- nant to protect his lessor from drainage by drilling an offset well. First, the lessor or her grantees were required to serve written notice or demand on the lessee or his assigns (applicants) to drill an offset well. This is required under the common law drilling rule. Berthelote v. Loy Oil Co. (1933), 95 Mont. 434, 28 P. 2d 187. Since no notice or demand was made until the demand letters of July 1 and July 26, 1972, applicants could not be under any duty to drill an offset well before those dates. Furthermore, the law gives a lessee a reasonable time in which to drill an offset well following demand by his lessor, and subjects the lessee to damages for failure to do so only after a reason- able time has passed. Applicants here did not have a rea- sonable time to comply after they received notice, because a reasonable time would be longer than the two and one-half months that elapsed before the parties entered a voluntary pooling and unit agreement. Therefore, the obligation to pay damages never accrued. Issue - #3. The oil and gas lease from Hilda Danielson to Empire State Oil Company provides that "[nlo change in the ownership of the land or assignments of rentals or royalties shall be binding on the lessee until after the lessee has been furnished with a written transfer or assign- ment or a true copy thereof . . ." and the mineral deed from Hilda Danielson to the three plaintiffs-respondents provided that it was subject to any rights existing in the lessee or its assigns. The law recognizes the validity of such "no change in ownership" clauses, and because applicants re- ceived no actual or constructive notice that Hilda Danielson had conveyed her interest to plaintiffs until August 2, 1972, p l a i n t i f f s cannot a s s e r t any r i g h t s a g a i n s t t h e defen- d a n t s before t h a t d a t e under the t e r m s of t h e l e a s e . I s s u e - #4. This a c t i o n i s barred by Montana's two-year s t a t u t e of l i m i t a t i o n s f o r w a s t e o r i n j u r y t o r e a l o r per- sonal property i n s e c t i o n 93-2607, R.C.M. 1947 (subsequently amended i n 1975, and now s e c t i o n s 27-2-207 and 27-2-303, MCA) . A l l p a r t i e s are i n agreement t h a t t h e common law o f f s e t d r i l l i n g theory was t h e applicable r u l e i n Montana, a t l e a s t before enactment of t h e 1953 O i l and Gas Conservation Act. The o f f s e t d r i l l i n g r u l e was recognized i n Berthelote v. Loy O i l Co. (1934), 95 Mont. 434, 28 P.2d 187, 190, and Severson v. Barstow (1936), 103 Mont. 526, 63 P.2d 1022, 1024-25. This common law r u l e implies i n every o i l and gas l e a s e a covenant on t h e p a r t of t h e l e s s e e t o p r o t e c t t h e premises of h i s l e s s o r from drainage by an a d j a c e n t producing w e l l by d r i l l i n g an o f f s e t w e l l . Severson v. Barstow, supra. The purpose of implied covenants i n general i s t o give e f f e c t t o t h e i n t e n t i o n of t h e p a r t i e s t o t h e l e a s e . The i n t e n t i o n of t h e p a r t i e s i s t o produce o i l and gas f o r a p r o f i t , which i s recognized by t h e l e s s o r a s production r o y a l t i e s , t h e primary consideration he r e c e i v e s f o r h i s l e a s e . Severson, 63 P.2d a t 1024; Berthelote, 28 P.2d a t 190. Generally, t h e implied covenant t o p r o t e c t t h e premises from drainage by d r i l l i n g an o f f s e t w e l l i s s t r i c t l y applied, p a r t i c u l a r l y when t h e l e s s e e has an i n t e r e s t i n t h e adjacent acreage on which t h e draining w e l l i s located, because of t h e permanent l o s s of o i l t h a t r e s u l t s t o t h e l e s s o r when it i s drained from beneath h i s land. Gordon, Remedies f o r Breach of - Implied Covenants ---- i n O i l and Gas Leases - i n Montana (1967)t 28 Mont.L.Rev. 187, 192-93. The implied duty of t h e l e s s e e t o p r o t e c t t h e land from drainage i s a duty t o e x e r c i s e reasonable c a r e and d i l i g e n c e t o prevent s u b s t a n t i a l drain- age from t h e leased lands by d r i l l i n g o f f s e t wells. "Rea- sonable c a r e and d i l i g e n c e " i s defined a s t h a t which a reasonably prudent operator would do under a l l of t h e c i r - cumstances of t h e p a r t i c u l a r s i t u a t i o n t o p r o t e c t t h e i n t e r e s t s of both t h e l e s s o r and t h e l e s s e e . 2 Summers, O i l - and Gas, S399, p. 572 (1968). -- I s s u e - #1. The f i r s t question c e r t i f i e d t o t h i s Court by t h e United S t a t e s D i s t r i c t Court i s whether o r n o t t h e 1953 Montana O i l and Gas Conservation Act has abolished t h e common l a w o f f s e t d r i l l i n g r u l e and t h e j u d i c i a l remedy of a c i v i l s u i t f o r damages i n s t a t e D i s t r i c t Court. The primary purpose of the A c t i s t o prevent "waste" of o i l and gas, a s t h a t t e r m i s defined, by v e s t i n g power i n t h e Board of O i l and Gas Conservation t o r e g u l a t e t h e d r i l l i n g , producing, and spacing of w e l l s and t h e pooling and u t i l i z a t i o n of o i l and g a s i n t e r e s t s . Sections 82-11-101, -111, -121, - 1 2 4 , - 201 and -205, MCA. The Act i s l a r g e l y based upon model l e g i s l a t i o n f o r an o i l and g a s conservation s t a t u t e promul- gated by t h e I n t e r s t a t e O i l Compact Commission. Marchi, Conservation - i n Montana (1955), 17 Mont.L.Rev. 100, 102. The Montana Act, however, does n o t contain t h e provisions of t h e model law, nor any provisions whatsoever, d i r e c t l y r e l a t i n g t o t h e p r o t e c t i o n of c o r r e l a t i v e r i g h t s . "Mon- t a n a ' s Act makes no reference t o ' c o r r e l a t i v e r i g h t s . ' " P a t t i e v. O i l and Gas Conservation Commission (1965), 145 Mont. 531, 402 P.2d 596, 599. This f a c t i s important t o an understanding of t h e t h r e e cases which have been decided t o d a t e under Montana's 1953 O i l and Gas Conservation Act. Nothing i n t h e Act expressly abolishes the common law o f f s e t d r i l l i n g r u l e o r t h e j u d i c i a l remedy of a c i v i l s u i t f o r damages. Nevertheless, the Board of O i l and Gas Conser- vation has broad powers t o conduct evidentiary hearings, e s t a b l i s h well spacing u n i t s , order involuntary pooling of i n t e r e s t s within such u n i t s , g r a n t o r deny permission t o d r i l l wells, and i s s u e r u l e s , regulations and orders t o prevent waste. Applicants argue t h a t t h e l e g i s l a t i v e assem- b l y intended t o s u b s t i t u t e f o r t h e common law remedy an ad- m i n i s t r a t i v e determination of a l l the i s s u e s involved i n the present case. The s t a t u t e i s not t h a t broad. Section 82-11-144, MCA, provides t h a t any i n t e r e s t e d person who i s adversely a f f e c t e d by the Act o r by a r u l e o r order of t h e Board can obtain j u d i c i a l review. The t e r m " i n t e r e s t e d person" i s broadly defined. The A c t provides f o r r e s t r a i n i n g orders and injunc- t i o n s ( s e c t i o n 82-11-145, MCA), f o r an appeal t o t h e Montana Supreme Court ( s e c t i o n 82-11-146, MCA), and it allows t h e Board t o bring s u i t f o r v i o l a t i o n s of t h e A c t o r of i t s r u l e s o r orders ( s e c t i o n 82-11-147, MCA). Section 82-11- 1 4 2 , MCA, provides: "This chapter, a s u i t by o r a g a i n s t t h e board, a v i o l a t i o n charged o r a s s e r t e d a g a i n s t a per- son under t h i s chapter, o r a r u l e o r order issued under t h i s chapter does n o t impair, abridge, o r delay a cause of a c t i o n f o r damages o r other c i v i l remedy which a person may have o r a s s e r t a g a i n s t a person v i o l a t i n g t h i s chap- ter o r a r u l e o r order issued under i t . " (Em- - - - - - - phasis supplied.) These a r e t h e only provisions of t h e Act t h a t address judi- c i a l actions. None of them purports t o r e s t r i c t any of t h e common l a w remedies a v a i l a b l e t o p r i v a t e l i t i g a n t s , espe- c i a l l y where the common law cause of a c t i o n would n o t con- f l i c t with a v a l i d r u l e o r order of t h e Board. O n t h e o t h e r hand, the savings provision contained in section 82-11-142, MCA, applies only to a cause of action against a person "violating this chapter or a rule or order issued under it." This savings clause clearly does not address the common law remedies for implied covenants. In summary then, the 1953 Oil and Gas Conservation Act is silent in respect to common law causes of action. Section 82-11-201, MCA, allows the Board, in the interest of preventing waste, to establish well spacing units for a pool of oil or gas and to grant exceptions in appropriate cases allowing a well to be drilled outside the location generally authorized by the Board's spacing orders. Further- more, "[tlhe size and the shape of spacing units shall be such as will result in efficient and economic development of the pool as a whole, and the size shall be the area that can be efficiently drained by one well." Section 82-11-201(2), MCA . There are two ways in which the Board of Oil and Gas Conservation establishes well spacing units. The first is by a statewide spacing order pursuant to ARM 536-3.18(10)- S18040. Such an order is issued on the Board's own motion without the necessity of notice or hearing. The statewide order affects all areas of Montana as to which the Board has not issued a specific spacing order. The second way is by a specific order of the Board upon application of an interested party. A specific order, issued after notice and hearing before the Board, covers a specific area overlying a pool or reservoir of oil or gas. Prior to September 14, 1972, the spacing of wells drilled on Section 10 was governed by statewide spacing orders issued by the Board of Oil and Gas Conservation. The statewide spacing order governing well spacing in the forma- tion and depth to which the Lewis well was drilled, in effect at the time of drilling, provided that one well could be drilled and operated on each quarter section (160 acres). his order was changed by the Board's Order No. 16-71 of May 13, 1971, which provided that one well could be drilled and produced on 320 acres at this depth. Under the May 13, 1971, order, the 320 acre spacing unit would be comprised of two contiguous north-south or east-west quarter sections designated by the lease operator, which did not necessarily have to be within the same section. On September 14, 1972, the Board of Oil and Gas Conser- vation held a hearing, at which respondents and applicant U. V. Industries were represented. The Board issued a specific well spacing order superseding the statewide spac- ing order for the particular production field involved in the present controversy (Lonetree Creek field). This order designated the N1/2 of Section 10 as a production spacing unit. The designated well spacing unit includes the exist- ing, producing Lewis well on the NW1/4 and it also includes the NE1/4 owned by respondents, where they are alleging applicants had a duty to drill an offset well. In summary, then, the applicable statewide spacing order in effect before May 13, 1971, would allow two wells to be drilled on respondents' property; one on the ~ ~ 1 / 4 and one on the SE1/4. After May 13, 1971, and before the ~oard's specific well spacing order of September 14, 1972, the applicable statewide well spacing order would allow only one well to be drilled on respondents' property, which comprised 320 acres (E1/2 of Section 10) - State laws and the Board's orders and rules are incor- porated into oil and gas leases as a matter of law. Arm- strong v. High Crest Oils, Inc. (1974), 164 Mont. 187, 520 P.2d 1081, 1084. The Danielson lease itself subjects all of its express and implied covenants to these state provisions. Williams and Meyers, in their treatise Oil ---- and Gas Law (1959), state the following in regard to the effect of conservation laws, and well spacing regulations in particu- lar, on implied covenants: "The suggestion has been made that conservation laws put an end to implied covenants in oil and gas leases. In Mark Twain's phrase, reports of the death are greatly exaggerated." 5 Williams and Meyers, supra, 5865 p . 438. Well spacing regulations affect the implied covenant to protect from drainage. A lessee who fails to drill an offset well - in violation of a valid well spacing regulation does not breach his duty under the pru- dent operator standard. 5 Williams and Meyers, supra, 5866, p. 440, citing cases from other jurisdictions. This is true even though substantial drainage results. Well spacing regulations do not eliminate the offset drilling covenant, but they override the covenant when the two are - in conflict with each other. 5 Williams and Meyers, supra, 5866, p . 441, citing cases from other jurisdictions. "If the drilling of an offset well is opposition - to existing rules and regulations of the conservation commission, the implied covenant to prevent drainage is inapplicable." Sullivan, Handbook of ----- Oil and Gas Law, 593, p. 177; 5101, p. 191 (1955). Both this rule of law and also the express terms of the Danielson lease relieve the lessee of liability for damages only if he is prevented from performing his obliga- t i o n s under t h e l e a s e by such s t a t e law, r u l e o r order. Montana's s t a t u t e s and case law recognize t h e s e p r i n c i p l e s i n t h e analogous s i t u a t i o n of s t a t u t o r y u n i t i z a t i o n : "Operations conducted pursuant t o an order of t h e board providing f o r u n i t o p e r a t i o n s s h a l l c o n s t i t u t e a f u l f i l l m e n t of a l l t h e express o r implied o b l i g a t i o n s of each l e a s e o r c o n t r a c t covering lands i n t h e u n i t a r e a t o t h e e x t e n t t h a t t h e o b l i g a t i o n s cannot be performed because of t h e order of t h e board." Section 82-11- 211(2), MCA. See a l s o , Armstrong v. High Crest O i l s , Inc., supra. The r e l e v a n t question becomes: would t h e o f f s e t w e l l t h a t respondents c l a i m a p p l i c a n t s had a duty t o d r i l l t o p r o t e c t t h e i r premises from drainage under t h e o f f s e t d r i l l i n g r u l e be i n v i o l a t i o n of t h e Board's w e l l spacing requirements? "Where an operator could p r o t e c t a g a i n s t drainage by d r i l l i n g a w e l l t h a t would be p r o f i t a b l e and would not v i o l a t e conser- v a t i o n r e g u l a t i o n s , f a i l u r e t o o f f s e t i s a breach of covenant." 5 W i l l i a m s and Meyers, supra, 5866, p. 4 4 2 , c i t i n g cases from o t h e r j u r i s d i c t i o n s . (Emphasis added.) Contrary t o a p p l i c a n t s ' contentions, nothing i n t h e 1953 Act o r any r u l e , r e g u l a t i o n o r o r d e r of t h e Board prevented t h e l e s s e e from complying with i t s implied cove- nant t o d r i l l an o f f s e t w e l l . The statewide spacing o r d e r s a p p l i c a b l e t o t h e l e a s e during t h e period of uncompensated drainage d i d n o t r e s t r i c t a p p l i c a n t s ' a b i l i t y t o o f f s e t t h e Lewis w e l l . Applicants were n o t prevented from d r i l l i n g an o f f s e t w e l l on t h e NE1/4 of Section 10 u n t i l t h e s p e c i f i c w e l l spacing order of September 1 4 , 1 9 7 2 , placed t h e Lewis w e l l and t h e NE1/4 of Section 1 0 i n t h e same w e l l spacing u n i t . Therefore, s i n c e it would n o t be i n c o n f l i c t with any a p p l i c a b l e s t a t e law o r Board r u l e , r e g u l a t i o n o r o r d e r , t h e implied covenant t o d r i l l an o f f s e t well w a s i n e f f e c t between t h e p a r t i e s t o t h e l e a s e , and respondents have a c i v i l s u i t f o r damages a s t h e i r remedy f o r a p p l i c a n t s ' breach of t h e implied covenant. The 1953 O i l and Gas Conservation A c t provides f o r t h e voluntary and involuntary pooling of i n t e r e s t s within a spacing u n i t : "When two o r more s e p a r a t e l y owned tracts are em- braced within a spacing u n i t o r when t h e r e a r e s e p a r a t e l y owned i n t e r e s t s i n a l l o r a p a r t of t h e spacing u n i t , then t h e persons owning those i n t e r e s t s m a y pool t h e i r i n t e r e s t s f o r the de- velopment and operation of t h e spacing u n i t . I n t h e absence of voluntary pooling within t h e spacing u n i t , t h e board, upon t h e a p p l i c a t i o n of an i n t e r e s t e d person, may e n t e r an order pooling a l l i n t e r e s t s i n t h e spacing u n i t f o r t h e development and operation thereof. The pooling order s h a l l be made a f t e r hearing and s h a l l be upon terms and conditions t h a t a r e j u s t and reasonable and t h a t a f f o r d t o t h e owner of each t r a c t o r i n t e r e s t i n t h e spacing u n i t t h e opportunity t o recover o r r e c e i v e without un- necessary expense h i s j u s t and e q u i t a b l e share of t h e o i l o r gas produced and saved from t h e spacing u n i t . . ." Section 82-11-202(1), MCA. (Emphasis supplied.) Section 82-11-201(3), MCA, g r a n t s t h e Board a u t h o r i t y t o allow exception w e l l s i n appropriate s i t u a t i o n s : "Subject t o t h i s chapter, t h e order e s t a b l i s h i n g spacing u n i t s s h a l l d i r e c t t h a t no more than one w e l l may be d r i l l e d and produced from t h e common source of supply on any spacing u n i t and t h a t t h e w e l l s h a l l be d r i l l e d a t a l o c a t i o n autho- r i z e d by t h e o r d e r , with -- such exception a s m a y be reasonably necessary where it i s shown, upon - a p p l i c a t i o n , n o t i c e , and hearing, and t h e board f i n d s t h a t t h e spacing u n i t i s l o c a t e d on t h e edge of a pool o r f i e l d and a d j a c e n t t o a pro- ducing u n i t o r , f o r some o t h e r reason, t h e re- quirement t o d r i l l t h e w e l l a t t h e authorized l o c a t i o n on t h e spacing u n i t would be inequi- t a b l e o r unreasonable." (Emphasis supplied.) Applicants contend t h a t a t any time before September 1 4 , 1972, respondents could have, b u t f a i l e d t o , apply t o t h e Board f o r an exception well, o r i f an exception w e l l would have c o n s t i t u t e d waste and thus been unlawful, f o r an involuntary pooling order pooling t h e i r i n t e r e s t s with those of the Lewis well. They argue that the common law offset drilling rule has been superseded by the administrative remedy, on the grounds that the involuntary pooling of interests within a well spacing unit by order of the Board affords the same kind of relief as was formerly granted by the common law judicial remedy of a civil suit for damages in state District Court. The applicantst argument is faulty for several reasons. First, the Act does not compel respondents to apply to the Board for relief, as the administrative relief is purely optional with an interested person who may apply for it. Second, the administrative remedy of obtaining a permit to drill an offset well was not available to respondents because under the terms of the Danielson lease, as is gener- ally the rule in oil and gas leases, the lessee was given the sole and exclusive right to drill. Rieckoff v. Consoli- dated Gas Co. (1950), 123 Mont. 555, 217 P.2d 1076, 1081. Respondents themselves consequently had no right under the lease to apply to the Board for a permit to drill an offset well. To the contrary, the applicants had a duty to apply for such a permit if one were necessary under the implied covenant of good faith and fair dealings. Baldwin v. Hubetz (Calif. 1957), 307 P.2d 1005. A third reason why applicantst argument is unpersuasive is that the Board of Oil and Gas Conservation does not have any authority to adjudicate disputes involving private rights. Pattie v. Oil and Gas Conservation Commission, supra, 402 P.2d at 601, holds that the Board "has the au- thority and duty to consider correlative rights and private interests in making regulatory orders, but it does not - have the authority to adjudicate disputes involving these rights," and that "correlative rights disputes between adjacent landowners must be disposed of by civil action in the Dis- trict Courts" according to common law principles of oil and gas, citing Sullivan, Handbook of Oil and Gas Law, S141, p. ----- 262 (1955). (Emphasis supplied.) The present case is primarily concerned with respondents' private rights under an implied covenant of the lease as against the applicants as lessees. Correlative rights are peripherally involved here because two of the applicants, U. V. Industries, Inc., and Wolf Corporation, besides being assigns of the lessee, were also owners of interests in the adjacent Lewis lease where the draining well was located. "Correlative rights" were defined in Pattie, 402 P.2d at 599: "The term 'correlative rights' has been variously defined to mean those rights of each landowner, lessee, or operator in the common source of petroleum. The rights are limited to correspond- ing duties to the neighboring operator. The duties are not to take an undue amount of petro- leum or to do injury to the common supply. Oper- ation and production is to be carried on only in such manner or amount as not to harm the rights of the others. As it applies in this action, correlative rights would mean the interest of plaintiffs in securing a portion of the natural gas underlying their lease. Their opponent is the Commission rather than an adjacent owner, but the right to share of the common supply is still in issue." The Pattie case involved oil and gas lessees on adjoin- ing lands. Sumatra had applied to the Board and been granted permission to drill an oil well within lawful spacing limits. The well produced gas instead and was in violation of the well spacing rule for gas. Sumatra applied to the Board for an exception to spacing rule for gas wells. Plaintiffs, who were the lessees on the adjoining lands, also applied to the Board for an exception to drill an offset well to protect their correlative rights. The Board authorized Sumatra's well as an exception well, but denied plaintiffs' request for permission to drill an offset on the grounds that the Board lacked authority to consider correlative rights. Plaintiffs obtained judicial review of the Board's order in the ~istrict Court, which found that the Board had authority to adjudicate correlative rights. The Supreme Court affirmed, modifying the District Court's holding to mean only that the Board had authority to consider correlative rights in issuing its regulatory orders, but -- that the adjudication of - those rights remained -- in the courts. The issue in Pattie arose because Montana's 1953 Oil and Gas Conservation Act makes no reference to correlative rights. Reduced to simplest terms, the holding in Pattie is that notwithstanding the absence of any reference to corre- lative rights in the Act, the legislature intended that the Board consider those rights in issuing its regulatory orders, relying on what is now section 82-11-201(3), MCA. Pattie therefore cannot be cited in support of the argument that the 1953 Act has abolished the common law offset drilling rule. Furthermore, while Pattie may be narrowly construed to apply only to correlative rights, as was the specific holding in the case, it is more reasonable to interpret it broadly to apply to other private interests such as respon- dents' rights under the covenant implied by the offset drilling rule. In the latter situation, the holding would be support for respondents' position that the Board lacks authority to adjudicate disputes involving rights under the common law implied covenants. Chevron Oil Co. v. Oil and Gas Conservation C~mmi~sion (1967), 150 Mont. 351, 435 P.2d 781, adds nothing to the holding in Pattie. In Chevron the Board authorized the a p p l i c a n t s ' d r i l l i n g of an o f f s e t exception well b u t denied Chevron's request t o l i m i t production of t h e o f f s e t w e l l s o a s n o t t o v i o l a t e Chevron's c o r r e l a t i v e r i g h t s , a s Chevron was l e s s e e of t h e adjacent lands being o f f s e t by t h e excep- t i o n well. Chevron's r e q u e s t f o r an o r d e r l i m i t i n g produc- t i o n from t h e new o f f s e t exception w e l l was denied by t h e Board on t h e grounds t h a t it lacked a u t h o r i t y t o r e s t r i c t production i n t h e absence of a showing of waste. The D i s - trict Court sustained t h i s r u l i n g by t h e Board. The Supreme Court reversed, r e l y i n g on P a t t i e , and held t h a t t h e Board had such a u t h o r i t y t o p r o t e c t Chevron's c o r r e l a t i v e r i g h t s by l i m i t i n g production from t h e adjacent exception w e l l , notwithstanding t h e absence of a showing of waste. I n t h e course of its discussion, t h e Court s a i d : " J u s t a s t h e Act p r o t e c t s t h e r i g h t s of t h e owner t o capture h i s share of t h e o i l and g a s when t h e pool i s only under p a r t of h i s land, it must pro- t e c t t h e adjoining landowners from having t h e i r share of t h e o i l and g a s appropriated by t h e exeption l o c a t i o n w e l l . To hold otherwise would be t h e equivalent t o operating under t h e Rule of Capture theory b u t without t h e p r o t e c t i o n a f - forded an adjoining landowner under t h e Off-set D r i l l i n g Rule theory." 435 P.2d a t 784. Applicants argue t h a t t h i s statement supports t h e i r conten- t i o n t h a t t h e O i l and Gas Conservation Act has eliminated t h e common law remedy of a c i v i l s u i t f o r damages under t h e o f f s e t d r i l l i n g r u l e . To t h e contrary, t h i s statement by t h e Court merely draws an analogy t o make t h e p o i n t t h a t t h e A c t p r o t e c t s t h e c o r r e l a t i v e r i g h t s of - a l l p a r t i e s . I t does nothing i n t h e way of dispensing with t h e o f f s e t d r i l l i n g r u l e . The f i n a l case r e l i e d on by a p p l i c a n t s , Armstrong v. High C r e s t O i l s , Inc. (1974), 164 Mont. 187, 520 P.2d 1081, says nothing t o support t h e i r contention t h a t Nontana's O i l and Gas Conservation Act has eliminated the common law cause of action under the offset drilling rule. High Crest, the assignee of a lease executed by Armstrong's predecessor in interest, applied to the Board and was granted, over Arm- strong's protest, an order under the statutory unitization provisions of the Act unitizing a large tract which included the Armstrong lease. Armstrong filed a complaint for judi- cial review of the Board's order, as provided by the Act, and subsequently, while judicial review was pending, brought an action in another District Court to cancel the lease for breach of a one-well pooling provision in the lease. The Court held that because the same factual arguments and reasons were advanced by Armstrong in the suit for cancella- tion of the lease as were made in the action for judicial review of the Board's unitization order, the suit for can- cellation was an attempt to circumvent the statute by an improper collateral attack on the Board's order. The Board's unitization order was held to be res judicata except in the appropriate District Court on judicial review as provided by what is now section 82-11-144, MCA. Armstrong v. High Crest Oils, Inc., supra, 520 P.2d at 1086. Applicants in the matter presently certified and before this Court urge that respondents cannot maintain a common law suit under the offset drilling rule because to do so would be a collateral attack upon the Board's order of September 14, 1972, establishing the Lonetree Creek field and special well spacing rules. The argument does not wash. First, respondents are not seeking to circumvent the Act as was the case in Armstrong since there was no decision of the Board to collaterally impeach before the order of September 14, 1972, and no proceeding for judicial review pending. Second, respondents' contentions are supported, if anything, by the Board's September 14, 1972 order because the designa- tion of the N1/2 of Section 10 as a well spacing unit tends to establish the fact of drainage alleged by respondents since a well spacing unit is required to be such as will be efficiently drained by one well. Section 82-11-201(2), MCA. Third, respondents are not seeking to do anything that would challenge the validity of the Board's order; their claim relates only to damages for the period before the Board issued its order. Finally, the Court in Armstrong stated: "We agree with respondents' argument that the cancellation of the oil and gas lease may be a separate issue upon which another court may have jurisdiction." 520 P.2d at 1084. In the present situation, the suit for damages for breach of an implied covenant, like a suit for cancellation of the lease, is a separate issue. Applicants emphasize that the remedy of applying to the Board of Oil and Gas Conservation for an involuntary pooling order was at all pertinent times available to respondents. This relief was available to the respondents under section 82-11-232, MCA. Respondents argue, without citing any authority, that the administrative relief available under the involuntary pooling statute is only available in the event the Board has issued, after notice and hearing, a specific well spacing order, and that it is not available in those areas where only statewide is applicable, as was the case here before September 14, 1972. This argument ignores the fact that respondents had the right, as interested persons, to apply to the Board for a specific well spacing order under section 82-11-201(1), MCA. Although the remedy of applying to the Board for an involuntary pooling order was available to respondents as an alternate form of relief, it was not, however, their only remedy to the exclusion of the common law offset drilling rule. See the discussion in 5 Williams and Meyers, supra, S866. ~efendants allege plaintiffs waived their right to require defendants to drill an offset well by the acceptance of delay rentals through December 1972. The issue raised in defendants' brief is not one of the issues certified to this Court for a declaratory ruling as to Montana law, and it has not been briefed by plaintiffs-respondents. Therefore, it should not be considered. In summary of the first issue, the enactment of Montana's Oil and Gas Conservation Act has not, per se, eliminated the common law right of action under the offset drilling rule. An oil and gas lessee still has a duty under the implied covenant to protect his lessor's premises from drainage by drilling an offset well, if doing so would not be in viola- tion of the Act or of a valid rule or order of the Board. Issue - #2. The second issue certified to this Court is whether or not the lessor or her grantees (respondents) was required to serve written notice or demand on the lessee or its assigns (applicants) to drill an offset well; if so, did the lessee have a reasonable time thereafter in which to comply; and when does the obligation of the lessee, if any, to pay damages commence? The offset drilling rule generally requires the lessor or its grantees to serve written notice or demand upon the lessee or its assigns to drill an offset well as a precondition to the latter's duty to drill. Sullivan, Handbook ----- of Oil and Gas Law, S94, p. 180 ( 1 9 5 5 ) . The rationale for this rule is explained in ~erthelote v. Loy Oil Co., supra, 28 P.2d at 190: ". . . A usual implied covenant is one against drainage, which is not here involved. The neces- sity of drilling offset wells is not brought about by the acts of the lessee, but by those of third parties, unless the lessee owns adjoin- ing acreage. Hence, before a breach of an im- plied covenant could be claimed as substantial, the necessity of protecting the leased premises must be brought home to the lessee in some manner by reasonable notice or demand on the part of the lessor." (Emphasis supplied.) This quotation, while it illustrates the obligation to give notice, also shows why the obligation is not applicable to two of the applicants in this case. Both U. V. Industries and Wolf Corporation owned an interest in the adjoining acreage and in the Lewis well which was causing the drainage to their lessors, the respondents. Thus, the reason for requiring notice--to bring home to the lessee the necessity of protecting the leased premises--does not apply. The drainage was not brought about by acts of third parties; it was brought about by a well in which U. V. Industries and Wolf Corporation held an interest. Since neither Empire State Oil Co. nor its successor, Ashland Oil Co., ever owned any interest in the Lewis lease, the foregoing reasoning does not apply to them. Plaintiffs-respondentsr as the lessor's grantees, were required to give notice before Empire State Oil Co. or Ashland Oil Co. could be charged with a duty to protect the premises from drainage. Since no such notice was ever given, neither Empire State nor Ashland can be held liable for breach of the implied covenant to drill an offset well. U. V. Industries, Inc. (formerly United States Smelting, Refining and Mining Company), took an assignment of the Lewis lease to the NW1/4 through its predecessor on March 8, 1962. Although U. V. Industries subsequently assigned an undivided one-half of its interest in the lease on January 13, 1970, it retained the remainder of its interest through and beyond the time that the Lewis well was drilled as a producer, February 3, 1970. Thus, it was not necessary for plaintiffs-respondents to give U. V. Industries notice or demand to drill an offset well to protect them from drain- age, since U. V. Industries had knowledge of the drainage from the time the Lewis well was completed as a producer. Wolf Corporation eventually acquired the undivided one- half interest in the Lewis lease that had been assigned to others by U. V . Industries except for a reversionary working interest not important here. This was accomplished by an assignment dated August 13, 1970, some six months after the Lewis well was brought in as a producer. Wolf Corporation thus had notice of drainage to the NW1/4 from at least the time it acquired its interest in the Lewis lease, and it was not necessary for plaintiffs-respondents to demand protec- tion from Wolf Corporation. Under the reasonably prudent operator standard, the law gives a lessee a reasonable time in which to drill an offset well following either notice or demand by the lessor or its equivalent, acquisition by the lessee of an interest in the adjacent draining lands. 2 Summers Oil --- and Gas, S412, 414 (1959). Therefore, the obligation to pay damages for failure to offset the producing Lewis well on the adjacent lease dates back to a reasonable time after the lessee had notice of the need to protect the premises from drainage. What constitutes a reasonable time is a question of fact. Summers, supra, S412. Thus, in the case of U. V. Industries, the obligation to pay damages dates from a reasonable time after March 23, 1971, the date that U. V. ~ndustries acquired the entire leasehold interest in the Danielson lease to the ~ 1 / 2 of Section 10. The reason for this is that U. V. Industries held an interest in the adjacent Lewis lease and in the producing ~ e w i s well, and therefore knew about the drainage and the need to protect the Danielson premises, from the time it was drilled as a producer--February 3, 1970. On May 15, 1971, the predecessor of U. V. Industries assigned 3/8 of its interest in the Danielson lease to Wolf Corporation and 1/8 to other parties. Wolf Corporation's obligation to pay damages for breach of the implied covenant, therefore, begins a reasonable time after May 15, 1971. The reason for this is that Wolf Corporation held an interest in the adjacent Lewis well, and therefore knew about the drain- age and the need to protect the Danielson lease, since August 13, 1970. The failure of respondents to give notice to Wolf Corporation at any time and their failure to give notice to U. V. Industries before the demand letters dated July 1, 1972 and July 26, 1972, are irrelevant because both had notice of the need to protect respondents from drainage by virtue of their ownership of interests in the adjacent Lewis well which was causing the drainage. These defendants are liable for the covenants maturing while the lease is held by them as assignees. Hergistad v . Hardrock Oil Co. (1935), 101 Mont. 22, 37, 52 P. 2d 171. Issue - #3. The Oil and Gas Lease from Hilda ~anielson to Empire State Oil Company provides that "[nlo change in the ownership of the land or assignments of rentals or royalties shall be binding on the lessee until after the lessee has been furnished with a written transfer or assign- ment or a true copy thereof . . ." and the mineral deed from Hilda Danielson to the three plaintiffs-respondents provided that it was subject to any rights existing in the lessor or its assigns. What is the impact of those provisions on the rights of the parties? The short answer is that they have no effect on the rights arising under the implied covenant here in issue. Defendants argue that because they received no notice of the change of ownership of the mineral estate until they received a copy of the mineral deed from a co- grantee who is not a party to this case on August 2, 1972, plaintiffs cannot assert any rights against them before that date under the terms of the lease. A "no change in ownership without notice" clause is designed to prevent the lessee's forfeiture of the lease for failure to pay delay rentals to the proper party. Sullivan, supra, 854, p . 115. This clause is valid and is binding on the lessor's grantee. Sullivan, supra, S85. Such a clause has nothing to do with implied covenants, which run with the land and can be enforced by the lessor or its grantees against the lessee and its assigns. 3 Summers, --- Oil and Gas 8553, p. 589 (1958). Additionally, applicants' argument ignores a provision in the lease to this effect: "If the estate of either party hereto is assigned or sublet, and the privilege of assigning or sub- letting in whole or in part is expressly allowed, the expressed and implied covenants hereof shall extend to the sub-lessees or assigns, their heirs, executors, administrators and successors . . ." Plaintiffs were therefore given the right, as mineral grantees, to enforce the implied covenant to protect against drainage and to sue for damages under the terms of the lease. Thus, plaintiffs' failure to give defendants notice of the transfer of ownership before August 1972 does not prevent them from enforcing the implied covenant to protect the land from drainage. To interpret the "no change in ownership without notice" clause in the manner contended for by the applicants would be to ignore the purpose of the clause. Issue - #4. The final issue is to determine the appropri- ate statute of limitations. Defendants-applicants contend that this action is barred by Montana's two-year statute of limitations for waste or injury to real or personal property in section 93-2607, R.C.M. 1947 (subsequently amended in 1975, now sections 27-2-207 and 27-2-303, MCA). This is not a correlative rights suit for waste or injury to real or personal property. It is a suit by the grantees of an oil and gas lessor against the lessee and its assigns for breach of an implied covenant to protect from drainage by drilling an offset well. The implied covenant is as much a part of the written lease as the expressed covenants. Bertholote v. Loy Oil Co. (1933), 95 Mont. 434, 28 P.2d 187, 190, citing Brewster v . Lanyon Zinc Co. (8th Cir. 1905), 140 F. 801, 809, stated: "Whatever is implied in a contract is as effec- tual as what is expressed." The appropriate statute of limitations is therefore eight years, the limitation for actions based on a written contract. Section 27-2-202(1), MCA . We concur: Chief Justice / ' . I I \ , L C ' ) ,,u C b L " 1 Justices J | October 31, 1979 |
8b926be3-f873-4ca8-9dd9-a8dd119865be | STATE v DESS | N/A | 14616 | Montana | Montana Supreme Court | No. 14616 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 THE STATE OF MONTANA, Plaintiff and Respondent, THOMAS DESS, Defendant and Appellant. Appeal from: District Court of the Eighth Judicial District, Honorable H. William Coder, Judge presiding. Counsel of Record: For Appellant: Lang and Donovan, Great Falls, Montana Richard W. Lang argued, Great Falls, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Allen B. Chronister argued, Assistant Attorney General, Helena, Montana J. Fred Bourdeau, County Attorney, Great Falls, Montana Michael G. Barer argued, Deputy County Attorney, Great Falls, Montana Filed: Submitted: September 10, 1979 Decided : OCT -- 2 I . 1979 Mr. Justice John Conway Harrison delivered the Opinion of the Court. ~efendant appeals from a judgment of the District Court of the Eighth Judicial District, Cascade County, the Honor- able H . William Coder presiding, finding him guilty of the crimes of misdemeanor criminal trespass, felony theft, and three counts of felony criminal mischief. The criminal trespass conviction related to appellant's allegedly unlaw- fully entering and remaining in the J & L Tire Company in Great Falls. The felony charges stemmed from appellant's alleged theft and destruction of property belonging to Bison Motor Company in Great Falls and the City of Great Falls. At approximately 6:00 a.m. on January 19, 1978, two Great Falls police officers responded to a burglar alarm at the J & L Tire Company in Great Falls, Montana. On investi- gation, they discovered two individuals hiding behind the bathroom door in the tire company building. One of the individuals was appellant Thomas Dess. The police officers observed a leukemia poster lying on the floor of the shop area of the building with no money in it. The police of- ficers arrested appellant and his companion. Sometime in the early morning hours of the same day, a pickup truck was removed from the premises of Bison Motor Company, the Ford dealership in Great Falls. The truck was driven through the fence of the premises. In addition, the lightbars and antennas of two police cars on the Bison Motor Company lot were damaged. Great Falls police recovered the pickup truck later that day south of Great Falls. They found the pickup driven off the highway and stuck in some snow. The truck had been damaged as a result of being driven through the car lot fence. A t approximately 10:30 a.m. on January 19, while i n custody i n t h e Great F a l l s jail, a p p e l l a n t a l l e g e d l y made a statement t o L t . James Cook confessing t o p a r t i c i p a t i o n i n t h e t h e f t of t h e pickup and t h e damaging of t h e p o l i c e c a r s . Lou Ann Bush, a stenographer f o r t h e Great F a l l s P o l i c e Department, recorded t h e statement. On February 3, 1978, t h e Cascade County a t t o r n e y f i l e d a n information i n D i s t r i c t Court charging a p p e l l a n t w i t h burglary, t h e f t and c r i m i n a l mischief. Appellant w a s ar- raigned on February 7 and e n t e r e d p l e a s of n o t g u i l t y t o a l l charges. D i s t r i c t Judge Truman G. Bradford set t r i a l i n t h e m a t t e r f o r March 28, 1978. O n March 3, a p p e l l a n t w a s re- l e a s e d from j a i l on b a i l . The t r i a l d a t e was continued t o A p r i l 11, 1978, due t o t h e i l l n e s s of Judge Bradford. On A p r i l 11, Judge Bradford s t i l l being ill, Judge Coder ac- cepted j u r i s d i c t i o n of t h e case. H e later set a new t r i a l d a t e f o r J u l y 10, 1978. O n June 2 1 , defense counsel Cameron Ferguson f i l e d a motion f o r an o r d e r continuing t h e t r i a l d a t e because of h i s r e s i g n a t i o n a s Cascade County p u b l i c defender e f f e c t i v e June 30, 1978, and requested t h a t t h e a t t o r n e y subsequently assigned t o t h e c a s e be given a t least a month t o become f a m i l i a r w i t h t h e case. Judge Coder e n t e r e d an o r d e r r e s e t t i n g t h e t r i a l f o r September 4 , 1978. On J u l y 27, t h e county a t t o r n e y requested t h e t r i a l be reset because September 4 w a s a l e g a l holiday. Judge Coder set t h e t r i a l f o r September 25, 1978, and t r i a l was subsequently held on t h a t date. On September 19, 1978, a suppression hearing was h e l d concerning t h e statement a l l e g e d l y made by a p p e l l a n t on t h e morning of h i s a r r e s t . Appellant t e s t i f i e d t h a t he d i d n o t recall t a l k i n g w i t h ~ t . Cook, r e c e i v i n g h i s Miranda warning from Lt. Cook, or making any statement concerning his acti- vities prior to being arrested. On cross-examination, appellant exhibited a good recollection of other events that occurred on January 19, and stated a signature on a waiver of rights form looked like his signature. He consistently denied making a statement to Lt. Cook, however. The State called no witnesses at the suppression hearing. Based on appellant's testimony, Judge Coder, while expressing concern that nothing on the record supported the fact that appellant was given his Miranda warnings, found no credible evidence on the record to support appellant's position and denied his motion to suppress the statement. At trial, Ms. Bush read the statement into evidence over appellant's objection. The following issues are raised on appeal: 1 . Did the District Court err in denying appellant's motion to suppress his alleged confession and allowing the statement to be read into evidence at trial? 2 . Was appellant denied his constitutional right to a speedy trial? Addressing the issue of the suppression of the alleged confession, we find the District Court erroneously admitted appellant's statement for two reasons. First, the State failed to prove the voluntariness of appellant's confession at the suppression hearing by a preponderance of the evi- dence as required by prior case law. See State v. Grime- stead (1979), - Mont. , 598 P.2d 198, 222, 36 St.Rep. 1245, 1250-51; State v. Smith (1974), 164 Mont. 334, 338, 523 P.2d 1395, 1397. Looking to the record, there appears to be - no evidence introduced at the suppression hearing that appellant volun- tarily made the statement. The only witness at the hearing was appellant. On direct examination he testified that he had no recollection of signing a waiver of his Miranda rights or making a statement to Lt. Cook. On cross-examina- tion the State established that appellant recalled many specific events that occurred the night and morning of his arrest and that the signature on a waiver of rights form looked like his signature. The State did not, however, introduce any evidence refuting appellant's testimony that he did not made a statement to Lt. Cook or receive his Miranda warnings. While the testimony introduced by the State tends to show that appellant was capable of making a voluntary state- ment, it does not show by a preponderance of the evidence that he made a voluntary statement as required by the case law. Even though the trial court's judgment at a suppres- sion hearing will not normally be reversed on appeal, when the State fails to show that appellant was advised of his Miranda rights, that appellant made the statement attributed to him, or any evidence other than appellant had the mental capacity to make a voluntary statement, a finding the State has carried its burden to prove voluntariness by a prepon- derance of the evidence is clearly against the weight of the evidence and must be overturned on appeal. The second reason appellant's purported confession should not have been admitted is of the inadequacy of the Miranda warning allegedly given appellant. The warning allegedly given appellant included the following language: "We have no way of giving you a lawyer, but one will be appointed for you, if and when you go to court." A split of authority exists on the adequacy of a Miranda warning containing this language. Several courts have held warnings n e a r l y i d e n t i c a l t o t h e one challenged here i n v a l i d . Commonwealth v. Johnson (1979), Pa. Super. , 399 A.2d 111, 112; United S t a t e s ex rel. W i l l i a m s v. Twomey ( 7 t h C i r . 1972), 467 F.2d 1248, 1250; United S t a t e s v. Garcia ( 9 t h C i r . 1970), 431 F.2d 134. I n Williams t h e c o u r t reasoned: "We hold t h a t t h e warning given here w a s n o t an ' e f f e c t i v e and express explanation;' t o t h e con- t r a r y , it was equivocal and ambiguous. I n one b r e a t h a p p e l l a n t was informed t h a t he had t h e r i g h t t o appointed counsel during questioning. I n t h e next breath, he w a s t o l d t h a t counsel could n o t be provided u n t i l later. I n o t h e r words, t h e statement t h a t no lawyer can be provided a t t h e moment and can only be obtained i f and when t h e accused reaches c o u r t substan- t i a l l y r e s t r i c t s t h e absolute r i g h t t o counsel previously s t a t e d ; it conveys t h e c o n t r a d i c t o r y a l t e r n a t i v e message t h a t an i n d i g e n t i s f i r s t e n t i t l e d t o counsel upon an appearance i n c o u r t a t some unknown, f u t u r e t i m e . The e n t i r e warn- i n g is, t h e r e f o r e , a t b e s t , misleading and con- fusing and a t worst, c o n s t i t u t e s a s u b t l e temp- t a t i o n t o t h e unsophisticated i n d i g e n t accused t o forego t h e r i g h t t o counsel a t t h i s c r i t i c a l moment." 467 F.2d a t 1250. Other c o u r t s have upheld warnings very s i m i l a r t o t h e one given here. Wright v. S t a t e of North Carolina ( 4 t h C i r . 1973), 483 F.2d 405, 407, cert. denied, 415 U.S. 936 (1974); Massimo v. United S t a t e s (2nd C i r . 1972), 463 F.2d 1171, 1174, c e r t . denied, 409 U.S. 1117; United S t a t e s v. Lacy ( 5 t h C i r . 1971), 446 F.2d 511, 513. Those c o u r t s adopted t h e r a t i o n a l e t h a t t h e only conclusion a defendant given t h e warning would be j u s t i f i e d i n reaching w a s t h a t , ". . . s i n c e he w a s c l e a r l y e n t i t l e d t o have a lawyer p r e s e n t during t h e questioning and s i n c e no lawyer could be pro- vided, he could n o t now be questioned." Massimo, 463 F.2d The holding t h a t t h e warning was i n v a l i d i s more con- s i s t e n t with Miranda and based on a b e t t e r r a t i o n a l e than the holding to the contrary. Miranda requires interrogators to be effective and express in explaining the right to appointed counsel to a defendant. Miranda v. Arizona (1966), 384 U.S. 436, 473, 86 S.Ct. 1602, 16 L.Ed.2d 694. Williams correctly points out that the language challenged here is neither effective nor express, but rather equivocal and ambiguous, informing a defendant of the right to appointed counsel in one breath and telling him counsel cannot be provided in the next. The rationale that a defendant would only be justified in reaching one conclusion based on the warning given here adopted by the courts holding the warning adequate under Miranda is unconvincing. The language of the warning is confusing, and several conclusions as to its meaning could be envisioned by a person presented with it. We therefore find the Miranda warning given appellant defective and the District Court improperly admitted appel- lant's confession over his objection on this basis. Having determined appellant's January 19 statement inadmissible, we must reverse appellant's conviction on the felony charges stemming from appellant's alleged theft of the pickup from Bison Motor and the damaging of the pickup and the two police cars. The confession undoubtedly weighed heavily in the minds of the jurors in finding appellant guilty of those offenses. Concerning appellant's conviction for misdemeanor criminal trespass, however, we do not find reversal warranted. This Court will not reverse the District Court if an error by the District Court constitutes harmless error. State v . Rozzell (1971), 157 P l o n t . 443, 450-51, 486 P.2d 877, 881; State v . Straight (1959), 136 Mont. 255, 265, 347 P.2d 482, 488. When the error is federal constitutional error, as with the improper admission of appellant's confession, the error cannot be considered harmless unless the court finds it harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705. The United States Supreme Court has found harmless constitu- tional error when the inadmissible evidence was cumulative and other evidence overwhelmingly showed the defendant's guilt. Schneble v. Florida (1972), 405 U.S. 427, 430, 92 S.Ct. 1056, 31 L.Ed.2d 340; Harrington v. California (1969), 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284. That is the case here. The portion of the confession relating to the criminal trespass charge merely places appellant inside the J & L Tire building when the police arrived. The testimony of both policemen who investigated the break-in places appel- lant in the building. We conclude the admission of appel- lant's confession was harmless error in regards to his criminal trespass conviction. Appellant's conviction for misdemeanor criminal tres- pass must stand, therefore, unless appellant's speedy trial claim has merit. This Court employs the four-part balancing test set out in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101, to determine the validity of a speedy trial claim. State v. Bretz (1979), Mont . -1 - P.2d , 36 St-Rep. 1037, 1040-41 (Cause No. 13826, decided June 13, 1979). In making the speedy trial determination, the Court considers the length of delay, the reason for the delay, the defendant's assertion of his speedy trial rights, and prejudice to the defendant. Bretz, 36 St.Rep. at 1041. None of these four factors is regarded as either necessary in all circumstances or sufficient in and of i t s e l f t o determine t h e d e p r i v a t i o n of t h e r i g h t t o a speedy t r i a l . Rather, a l l must be considered t o g e t h e r w i t h o t h e r r e l e v a n t circumstances. The Court must engage i n a d i f f i c u l t and s e n s i t i v e balancing process. Bretz, 36 St.Rep. a t 1044-45. Under t h e l e n g t h of d e l a y prong of t h e Barker test, t h e 249 days t h a t passed between a p p e l l a n t ' s arrest and h i s t r i a l s h i f t t h e burden of explaining t h e reason f o r t h e d e l a y and t h e absence of p r e j u d i c e t o a p p e l l a n t t o t h e S t a t e . S t a t e v. Cassidy (1978), Mont. , 578 P.2d 735, 738, 35 St.Rep. 612. The reason f o r a m a j o r i t y of t h e delay--approximately s i x and one-half of t h e e i g h t months--was t h e i n a b i l i t y of t h e S t a t e t o provide a judge t o hear t h e c a s e and t h e inad- v e r t e n t scheduling of t h e t r i a l f o r Labor Day. This c o n s t i - t u t e s u n i n t e n t i o n a l d e l a y and must be weighed less h e a v i l y than i n t e n t i o n a l d e l a y i n determining t h e v a l i d i t y of a speedy t r i a l claim. Cassidy, 578 P.2d a t 738. The remain- i n g seven weeks of t h e d e l a y followed a p p e l l a n t ' s motion f o r continuance and must be a t t r i b u t e d t o a p p e l l a n t . Appellant m e t h i s burden of a s s e r t i n g t h e r i g h t t o a speedy t r i a l by t a k i n g a f f i r m a t i v e a c t i o n regarding t h e r i g h t , making a motion t o d i s m i s s f o r l a c k of a speedy t r i a l between t h e t i m e t h e m a t t e r was set f o r t r i a l and t h e t r i a l d a t e . Cassidy, 578 P.2d a t 739, c i t i n g S t a t e v. Steward (1975), 168 Mont. 385, 390, 543 P.2d 178, 182. To a s c e r t a i n t h e presence of t h e f o u r t h element of t h e Barker t e s t - - p r e j u d i c e t o t h e a p p e l l a n t because of delay--we must c o n s i d e r t h e following i n t e r e s t s of a p p e l l a n t : (1) prevention of o p p r e s s i v e p r e t r i a l i n c a r c e r a t i o n ; ( 2 ) mini- mization of a n x i e t y o r concern of t h e accused; ( 3 ) l i m i t a - tion of the possibility the defense will be impaired. Bretz, 36 St.Rep. at 1044, quoting Barker, 407 U.S. at 532. Here, appellant spent 43 days in jail before being released on bond, not an oppressive length of time. He faced a possible 40-year prison sentence. In Cassidy, we noted the defendant was charged with crimes carrying a possible 20- year prison sentence and said, ". . . [alnxiety and concern on the part of defendant, under such circumstances and considering the 'death time' involved, can be presumed." Cassidy, 578 P.2d at 740. Under Cassidy, anxiety and con- cern on the part of appellant can be presumed. As to impair- ment of defense, none existed because appellant presented no defense. Considering all these factors together, as we must to ultimately resolve this issue, we find the length of delay here barely exceeds the shortest delay previously held sufficient to trigger a speedy trial inquiry. The portions of the delay attributable to the State are institutional delays given less weight than intentional delays. Seven weeks of the delay can be imputed to appellant. Appellant only asserted his right to a speedy trial on one occasion. Appellant's proof of prejudice rests on judicial presumption rather than concrete evidence of actual harm through oppres- sive pretrial incarceration, anxiety and concern, or impair- ment of his defense. Given these facts, we do not ". . . find a showing of sufficient actual prejudice to invoke the extremely harsh remedy of dismissal of the cause." State v. Bretz, supra, 36 St.Rep. at 1045. Appellant's conviction on the charges of felony theft and felony criminal mischief is reversed. The misdemeanor criminal trespass conviction is affirmed and remanded to the District Court for sentencing on that matter. We concur: a i e f Justice , / , . . Justices Mr. Chief Justice Frank I. Haswell, concurring in part and dissenting in part: I concur in reversing appellant's convictions of felony theft and criminal mischief for the reasons stated by the majority. I dissent from the affirmance of appellant's criminal trespass conviction. The majority hold that the admission of appellant's confession was harmless error insofar as his conviction of criminal trespass is concerned. The basis of the majority ruling is threefold: (1) the confession merely places appel- lant inside the J & L Tire building; (2) this evidence is merely cumulative; and (3) other evidence overwhelmingly - shows appellant's guilt. In my view the confession goes far beyond simply placing appellant inside the J & L Tire building. In his confession appellant stated that he and Dale Gladue ". . . went by J & L Tire in between the tire place and the other building. That coin laundry. There was a big hole in the garage door and glass was broken out on two sides. We looked in. We went to Sambo's, sat there and Dale said something about going back. I told him there was an alarm system in there. We went back through and took the coins off the desk and that is about it. That is when the policeman showed up." The test of federal constitutional harmless error is "whether there is a reasonable possibility that the evidence complained of might have contributed to the convictions." Fahy v. Connecticut (1963), 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171. Or, stated another way, whether the error was harmless beyond a reasonable doubt. Chapman v. ~alifornia (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.E~. 2d 705. The elements of the crime of criminal trespass are a (1) knowing, (2) unlawful (3) entering into the premises of another. Section 45-6-203, MCA. The quoted part of the confession clearly establishes the first two elements of the crime. It is the only direct evidence of a knowing, unlawful entry. I cannot fairly say that there is no rea- sonable possibility that the inadmissible confession con- tributed to appellant's conviction or that the error was harmless beyond a reasonable doubt. I would therefore remand for a new trial free from the taint of the unlawful confession. | October 30, 1979 |
d8d9bea6-8bec-4580-b784-359b60a70a1c | COLBO SCOTT v COTY MAHAN | N/A | 14769 | Montana | Montana Supreme Court | No. 1 4 7 6 9 I N THE SUPREME COURT OF THE STATE OF MONTANA MARY H. C O L B 0 , a s G u a r d i a n and C o n s e r v a t o r of t h e E s t a t e elf WILLIAM D. SCOTT, an incapacitated and protected person, and JACK SCOTT, P l a i n t i f f s and A p p e l l a n t s , MILTON A. COTY, J R . , THOMAS H. MAHAN, a n d CALVIN A. COTY, D e f e n d a n t s and R e s p o n d e n t s . A p p e a l f r o m : D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t , H o n o r a b l e P e t e r G. M e l o y , Judge P r e s i d i n g . C o u n s e l of R e c o r d : For A p p e l l a n t : W i l l i a m R. T a y l o r , D e e r L o d g e , M o n t a n a L l o y d J. Skedd, H e l e n a , M o n t a n a For R e s p o n d e n t : L e o n a r d J. H a x b y , B u t t e , M o n t a n a R o b e r t S w a n b e r g , H e l e n a , M o n t a n a T h o m a s H. M a h a n , H e l e n a , M o n t a n a S u b m i t t e d on B r i e f s : A u g u s t 2 , 1 9 7 9 D e c i d e d : mf 2 5 1cpg F i l e d : 8Cf 2 5 !979 / I , , .' . ' / . ; , i C l e r k . ' Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Mary H. Colbo, guardian of William D. Scott, appeals from an order of the Lewis and Clark County District Court which dismissed her petition to have William D. Scott's Will declared to be his last valid Will. The District Court refused to pass on the validity of a Will of a living person. We agree. Scott allegedly executed a Will on October 19, 1965, and later one of the defendants allegedly tore it into pieces. Scott is now alleged to be senile. Plaintiff apparently recovered the pieces of the torn-up Will, put them together again, and now seeks to have this advance declaration of validity. In filing her petition, plaintiff cited absolutely no legal basis for the District Court to grant such relief, and her counsel must be aware that jurisdiction of a District Court to determine the validity of a Will is strictly statutory (sections 72-3-101(1) and 72-3-111(1), MCA) , and that a petition to probate a Will must be dismissed unless the person alleged to have executed the Will is dead (section 72-3-313(3), MCA). Moreover, as the District Court correctly observed, even the Uniform Declaratory Judgments Act (section 27-8-101, MCA, et seq.) does not expand the statutory power to probate Wills. The reasons are too numerous and too obvious to mention why the District Court was correct in dismissing plaintiff's petition. This case is a prime example of a suit which should never have been filed in the District Court and of an appeal which should never have been taken. The courts should not be cluttered with suits such as this which are so patently frivolous on their face. The order of dismissal of the District Court is affirmed. We Concur: hief Justice ( ' ( J E d - - - k - * Justices ------- | October 25, 1979 |
72e20fa9-52af-4272-9982-ae9ce7a40079 | STATE v WILLIAMS | N/A | 14463 | Montana | Montana Supreme Court | No. 14463 IN THE S U P - COURT O F ' THE STATE O F MINTANA THE STATE O F MXCANA, Plaintiff and Respondent, -VS- JOSEPH S T - WILL=, Defendant and Appellant. Appeal f m : D i s t r i c t Court of the Eighth Judicial D i s t r i c t , Honorable Joel G. mth, Judge presiding. Counsel of Record: For Appellant: Daniel Donovan, Public Defender argued, G r e a t Falls, Mntana Larry Anderson, Etblic Defender argued, Great Falls, Mntana For Respondent: Hon. Mike Greely, Attorney General, Helena, Mntana J. Fred Bourdeau, County Attorney, Great Falls, Montana Carroll Blend argued, Deputy County Attorney, Great Falls, mntana Sutmitted: June 4, 1979 Decided: NO\' 5 lm - Honorable James B . Wheelis, District Judge, sitting in place of Mr. Justice John C. Sheehy, who deems himself disqualified. Joseph Stanley Williams, the appellant, was charged with felony theft and found guilty of having purposely or know- ingly exerted unauthorized control over a pickup belonging to Bison Motors in Great Falls. Before the taking of evidence at the trial, the defendant requested that the District Court preliminarily instruct the jury with respect to the presumption of innocence. The court refused the request and advised defendant that the instruction would be given in final instructions. At the settlement of final instructions, the defendant renewed his request, but it was denied. The court refused the instruction, which included a statement of the law on both the presumption of innocence and the State's burden of proof ruling that it duplicated another instruction. The instruction proposed by the State and adopted by the trial court instructed the jury that the State must prove the defendant's guilt beyond a reasonable doubt. It did not instruct them to pre- sume the defendant innocent. The first issue presented upon appeal is whether the trial court's refusal to give the defendant's requested instruction on the presumption of innocence results in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article 11, Section 17 of the 1972 Montana Constitution. On this issue we must reverse. We think even though the jury was properly instructed as to the burden of proof beyond a reasonable doubt, when he so requests, the defendant is still en- titled to an instruction as to the presumption of innocence which exists in his favor. As Justice White noted in Coffin v. United States (1895), 156 U . S . 432, 453, 15 S.Ct. 394, 403, 39 L.Ed. 481, 491: "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement - 2 - lies at the foundation of the administration of our criminal law." Though the trial court thought it unnecessary to instruct the jury on the presumption of innocence as well as on the State's burden of proof, we think it is a constitutional safeguard to use both. Appellant relies heavily on Taylor v . Kentucky (1978), 436 U.S. 478, 98 S.Ct. 1930, 56 L Ed 2d 468, in which the United States Supreme Court reversed a criminal conviction resulting from a trial in which the judge refused to give a requested jury instruction on the presumption of innocence. The State of Ken- tucky argued that the burden of proof beyond a reasonable doubt instruction effectively duplicated the presumption of innocence instruction, but the Supreme Court in Taylor said: "While the legal scholar may understand that the presumption of innocence and the prosecution's burden of proof are logically similar, the ordinary citizen may well draw significant additional guid- ance from an instruction on the presumption of innocence. Wigmore described this effect as follows: II I . . . In a criminal case the term [presumption of innocence] does convey a special and perhaps useful hint over and above the other form of the rule about the burden of proof, in that it cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraign- ment, and to reach their conclusion solely from the legal evidence adduced. "'In other words, the rule about burden of proof re- quires the prosecution by evidence to convince the jury of the accused's guilt; while the presumption of innocence, too, requires this, but conveys for the jury a special and additional caution (which is per- haps only an implied corollary to the other) to con- sider, in the material for their belief, nothing but the evidence, i-e., no surmises based on the present situation of the accused. This caution is indeed particularly needed in criminal cases.' Wigmore 407. "This court has declared that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial. . . it long has been recognized that an instruction on the presumption [of innocence] is one way of impressing upon the jury the importance of that right." Taylor v . Kentucky, 436 U.S. at 484- 485, 98 S.Ct. at , 56 L Ed 2d at 474-475. The Taylor decision does not, however, announce an ab- solute rule that denial of a requested instruction on the pre- sumption of innocence results in reversible error. The holding was explicitly limited to its facts, and later in Kentucky v. Whorton (1979) , U.S. - 1 - S.Ct. , 60 L Ed 2d 640, the court held that failure to give a requested instruction on the presumption 0.f innocence does not in and of itself violate the Constitution. The court said: "Under Taylor, such a failure must be evaluated in light of the totality of the circumstances--includ- ing all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors--to deter- mine whether the defendant received a constitutionally fair trial." Whorton, 60 L Ed 2d at 643. Hence, the United States Supreme Court has decided that the totality of the circumstances shall dictate whether the issuance of a presumption of innocence instruction is necessary. Histor- ically, though, Montana has set higher standards on this issue, as we are allowed to do, and we decline this opportunity to lower those standards. In an 1899 case, State v . Harrison (1899), 23 Mont. 79, 57 P. 647, this Court flatly ruled without examination of the facts that failure to give a requested instruction on the pre- sumption of innocence was reversible error. In State v . Howell (1901), 26 Mont. 3, 5, 66 P. 291, 292, this Court said "The defendant in a criminal case is always entitled to have the jury take into consideration the presump- tion of innocence which the law throws about him." This Court reiterated the Harrison ruling in 1951 when it stated: "The presumption of innocence surrounds the Defendant at every step in the trial and to its benefits he is entitled in the determination of every fact by the jury . "It has the weight and effect of evidence in the Defendant's behalf." State v . Gilbert (1951), 125 Mont. 104, 109, 232 P.2d 338, 341. (Emphasis supplied.) We hold steadfast to this per se rule that an instruction on the presumption of innocence is required in every case when a timely request has been made and think it preferable to the totality of the circumstances test articulated in Kentucky v . Whorton, supra. This test allows a defendant's right to an in- struction on the presumption of innocence to ultimately stand or fall on the weight of the evidence. In determining whether to give the instruction, the trial court would, of necessity, be required to pass judgment on both the quantity and quality of the evidence presented. We think that this evaluation by the trial court would be a usurping of the jury's role as the judge of fact and a partial denial of the defendant's right to a trial by jury as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article 11, Section 26, 1972 Montana Con- stitution. It having been stipulated by counsel at oral argument that other grounds raised on appeal are not ripe for decision, we do not reach them, and reverse and remand for a new trial consistent with the conclusions in this opinion. ames B . Wheelis, District sitting in place of Mr. Jus- ohn C . Sheehy. We concur: I Chief Justice - A/ Justices | November 5, 1979 |
3e91564f-2a28-4c3f-8fda-6f53c98f7406 | STATE v KIRKLAND | N/A | 14443 | Montana | Montana Supreme Court | No. 14443 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 - STATE OF MONTANA, Plaintiff and Respondent, PRENTISS N. KIRKLAND, Defendant and Appellant. Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellant: Lee Overfelt, Billings, Montana Gary D. Overfelt argued, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Sheri Sprigg argued, Assistant Attorney General, Helena, Montana Harold Hanser, County Attorney, Billings, Montana L C . r ' N ' " ti ' - - Filed: i . Submitted: September 11, 1979 Decided : NOV 7 1 9 7 9 Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Defendant was convicted of aggravated assault following a jury trial in the District Court of Yellowstone County and sentenced to 30 years imprisonment without parole as a persis- tent felony offender. He appeals from the judgment of convic- tion, the sentence imposed, and denial of a new trial. In the months preceding February, 1978, defendant Prentiss N. Kirkland had received several threats on his life. In Decem- ber, 1976, his pickup truck was blown up by persons unknown. On February 12, 1978, he and Mary Gunsch were in the Squire Lounge in Billings, Montana when he received an anonymous phone call threatening to blow up his trailer house. Later the same evening defendant and Ms. Gunsch drove to downtown Billings where they parted company. Defendant then entered the Royal Flush Lounge in the Custer Hotel where he sought out Charles Sparboe. Defendant asked Sparboe if they could talk and Sparboe assented. There is a conflict concerning what occurred thereafter. According to defendant, he sat down opposite Sparboe and began discussing the threats he had received and the possibility of Spar- boe acting as an intermediary. At some time during the conversa- tion, defendant removed a gun from his coat and slammed it on the table to emphasize a point he was making. The gun discharged with the bullet striking Sparboe in the chest. Witness Betty Jean Baumgartner testified that both defendant and Sparboe were seated at the time of the shooting. According to the victim Sparboe, he sat down while defen- dant remained standing. Without further conversation, defendant pulled a gun and shot him in the chest. Thereafter defendant ran from the lounge and was apprehend- ed about a block from the Hotel by Billings police. On February 17, 1978,defendant was charged with attempted deliberate homicide. He retained his own counsel and plead not guilty. On April 14 defendant filed a motion to change the place of trial alleging there had been an attempt by certain parties in the community to brand him as a paid assassin. On ~pril 17 defendant moved that the weapon be produced for inspection; that the information be stricken because the attempt statute was un- constitutional in providing for a death penalty; and for a con- tinuance of the trial on the grounds of lack of time and money to interview witnesses and lack of time to examine the weapon. On April 17, the District Court denied the motion for continuance. On April 18 the District Court denied the motion to strike the information, denied the motion to change the place of trial pending jury selection, and noted that the record showed the prosecution's willingness to cooperate in the defendant's examination, inspection and testing of the weapon. On the same day the District Court granted the prosecution's motion to prevent the defense from suggesting to the jury that the death sentence was a possible punishment. On the morning of April 18, the jury was empanelled and sworn. That afternoon the trial started, The jury was admonished not to form any opinion until they heard the entire case and not to talk about the case or allow anyone else to talk about it to them. No mention was made at this time about newspaper, radio or television news releases. On April 21 during the course of trial, defense counsel moved that the jury be questioned concerning their exposure to telecasts from Billings television stations branding defendant as a hired killer. The presiding judge denied the motion stating that the voir dire examination of prospective jurors on the morn- ing of ~prill8 had covered the telecast of April 17 and that the jury had been admonished on the 18th not to read newspapers or listen to news accounts of the trial. On April 2 4 defendant moved for a mistrial based on the news releases. The motion was denied. The same day both parties rested their case. The following day the jury returned a verdict convicting defendant of the lesser included offense of aggravated assault, a felony. Following denial of defendant's motion for a new trial, the District Court found defendant to be a persistent felony offender and sentenced him to 30 years in the State Prison without the possibility of parole or prisoner furlough. Defendant appeals advancing seven specifications of error: 1 . Denial of his motion to strike the information. 2. Denial of his motion for a continuance of the trial. 3. Denial of his right to question prospective jurors on the death penalty. 4. Denial of interrogation of jurors concerning their exposure to prejudicial news releases. 5 . Errors in jury instructions. 6. Denial of a new trial. 7 . Error in the sentence imposed. Defendant contends that his motion to strike the infor- mation should have been granted because (1) the information failed to recite the code provision on deliberate homicide, and ( 2 ) the statute on attempt provides a possible death penalty in violation of constitutional prohibitions against cruel and unusual punish- ment. Here the information charged defendant with attempted deliberate homicide. It specifically cited the attempt statute but did not cite the deliberate homicide statute. The applicable statute requires the charge to state the name of the offense and to cite "in customary form the statute, rule, or other provision of law which the defendant is alleged to have violated." Section 46-11-401(~), MCA. Defendant's attack fails on two grounds. First, his motion to strike the information was untimely. The motion must be made before a plea is entered subject to an exception not applicable to this case. Section 46-13-103, MCA. Here the motion was made two months after entry of defendant's plea, Secondly, the motion was properly denied on the merits. The test to be applied is "Would a person of common understanding know what is intended to be charged?" State v . Dunn (1970), 155 Mont. 319, 327, 472 P.2d 288. Here the information stated the crime charged, attempted deliberate homicide, and cited the attempt statute, section 45-4-103, MCA. Failure to specifically cite the deliberate homicide statute could not have deprived a person of common understanding of the crime charged particularly where he was represented by able and experienced counsel, Defendant further contends that the information should have been stricken because a person convicted of attempted delib- erate homicide may be sentenced to death under sections 45-4-103(3) and 45-5-102, MCA. He contends this constitutes cruel and unusual punishment in violation of Federal and State constitutional pro- hibitions. His contention fails as he was neither convicted of attempt- ed deliberate homicide nor sentenced to death. A defendant can- not question provisions of an act which do not apply to his case. State v. Johnson (1926), 75 Mont. 240, 259, 243 P. 1073. One who is neither injured nor jeopardized by the operation of a statute cannot challenge its constitutionality. State ex rel. City of Wolf Point v. McFarland (1927), 78 Mont. 156, 162, 252 P. 805. Since the trial of this case, we have further affirmed this prin- ciple in State v . Booke (1978), Mont. , 583 P.2d 405, 35 Mont. St.Rep. 1249, and State v . Azure (1979), , 591 P,2d 1125, 36 St.Rep. 514, 521. Defendant next contends that it was reversible error to deny his motion for a continuance of his trial. The gist of his argument is that he was thus deprived of due process and the right to effective assistance of counsel because he lacked time and money to investigate the facts surrounding the alleged crime and to examine and test the alleged weapon. Defendant was incarcerated throughout the pretrial period. His motion for a continuance was made and denied on April 17, the day before trial. The gun allegedly involved in the shooting was returned to the prosecution on April 14 from the FBI labor- atory. The prosecution furnished defendant's counsel a list of its witnesses, their proposed testimony, and cooperated with de- fense counsel in making the weapon available for inspection and testing after it was received back from the FBI laboratory. The question of whether denial of a motion for continu- ance is reversible error was addressed four years ago by this Court and the following principles emerged: "Motions for continuance are addressed to the discretion of the trial court and the granting of a continuance has never been a matter of right. (Citation omitted.) The district court cannot be overturned on appeal in absence of a showing of prejudice to the movant. (Citation omitted. ) "Defendant's argument therefore must stand or fall on the issue of prejudice, for the district court can be said to have abused its discretion only if its ruling was prejudicial. We have not found a single case . . . in which the denial of a motion for continuance was reversed without a showing of resulting prejudice to the movant." State v. Paulson (1975), 167 Mont. 310, 538 P.2d 339. Defendant's claim of lack of time to investigate the facts surrounding the alleged crime has a hollow ring. Two months el- apsed between entry of defendant's plea and his motion for a con- tinuance. The prosecution furnished him a list of its witnesses and their statements. Defendant states that there is sufficient conflict and vagueness in some of the statements to warrant an independent investigation and interview. What conflict? What vagueness? What witnesses? The record is barren. Defendant also claimed lack of funds to hire an investigator until shortly before trial. Yet he was able to hire his own attorney, did not request the court to pay for an investigator from public funds, or claim indigency. Defendant also claims inability to examine and test the weapon and to secure expert testimony regarding the weapon be- cause of time constraints. Defendant clearly had time to examine and test the weapon prior to trial. He arguably did not have time to secure expert testimony regarding the weapon. But here his defense was based on accidental discharge of the gun. The ex- pert witness for the prosecution testified the weapon had "a poten- tial for accidental discharge." Where is the prejudice? For the foregoing reasons, the District Court did not abuse its discretion in denying defendant a continuance of his trial. There is nothing to indicate he was prejudiced or denied a fair trial by reason thereof. Defendant claims reversible error because he was denied the right to question prospective jurors on the death penalty. As previously discussed he has no standing to raise this issue be- cause he was not convicted of a crime involving the death penalty nor was he sentenced to death. Our prior holdings in Johnson and McFarland together with our subsequent rulings in Booke and Azure establish this principle. Defendant's principal specification of error is the refusal of the District Court to permit interrogation of members of the jury concerning their exposure to inflammatory and prejudicial news releases indicating he was a hired killer. Defendant's motion seeking interrogation of jurors was made on April 21 following 3-1/2 days of trial testimony. He supported his motion by three news releases. The first was aired over a Billings television station on April 17, the day before trial: "Prentiss Kirkland is being tried for attempted deliberate homicide. He used a . 3 8 caliber pistol to shoot Sparboe in the chest on February 12th. According to district court records, how- ever, police have received information that Kirkland was hired by an unknown person or persons to shoot and kill Sparboe." The second news release was from UP1 on April 17: "They believe that Kirkland was paid to shoot Sparboe who was wounded on February 12th. Police say Sparboe was shot in the chest at close range by a man using a . 3 8 caliber pistol. According to district court records . . . police have re- ceived information that the defendant Kirkland was hired by a person or persons unknown to shoot and kill Sparboe." The third was aired over a Billings television station on April "Police have received information that the defen- dant was hired by an unknown person or persons to shoot and kill Sparboe." The apparent source of this information was an application for a search warrant to inspect defendant's bank records appear- ing in the District Court file and reading as follows: "In attempting to determine defendant's motive for allegedly shooting Sparboe, police have received information that defendant was hired by unknown persons(s) to shoot and kill Sparboe. Investiga- tion reveals that Sparboe is a financially success- ful businessman, whose estate is estimated at well over $5 million, and several persons could profit by his death. Investigation reveals that it is com- mon hearsay among persons acquainted with both the victim and the defendant that defendant was hired to shoot and kill the victim, At the time of de- fendant's arrest, he was searched and booked into the county jail, where all his personal effects were seized and held as evidence. In his wallet were found certain bank deposit receipts, for account #427856 at First Citizen's Bank in Billings, reflect- ing deposits of over $25,000.00 in the last eight months. One deposit alone accounted for $22,000.00. There is no evidence that defendant has been employed during this period of time, or that he has any legit- imate source of income." The application for search warrant was filed on March 14. The warrant was issued. The search was made and the return filed on March 14. On April 14 defendant moved for a change of the place of trial on grounds "that there has been an attempt by certain parties in the community to brand [the defendant] as a paid assassin." (Bracketed identification paraphrased.) The motion was denied on the first day of trial "pending jury selection efforts." It was not renewed thereafter and is not specified as error in this appeal. Defendant's motion to interrogate the jurors on their exposure to these news releases was made on April 21, the fourth day of trial. It was denied on the basis that the voir dire exam- ination of prospective jurors on April 18 covered "their know- ledge of notoriety in the press" which would seem to cover the two releases of April 17 and that on the 18th "the jury was specifi- cally instructed not to read newspaper accounts nor to listen to television or radio reports of the trial." In fact the admonition of the 18th did not specifically cover the latter. However, on the 19th the court specifically stated to the jury: "I request that you do not read newspaper accounts of this trial nor listen to radio nor television reports." A similar specific admonition was given again at the end of the day on April 19, the second day of trial, again at the end of the fourth day of trial, and again at the end of the fifth day of trial. In his instructions to the jury the judge stated: "In your deliberations you will only consider the testimony of the witnesses upon the witness stand and such exhibits as have been admitted in evidence. No juror shall allow himself to be influenced by anything which he may have seen or read outside of the evidence and exhibits received by the Court during the course of this trial." We also note that at the close of the State's case-in-chief, defendant moved for a mistrial on the ground that publicity given the case had made a fair trial impossible. The focus of our inquiry into this specification of error is twofold: (1) What action is required of the trial judge when news releases prejudicial to defendant appear during the course of trial? (2) Did the prejudicial news releases taint any juror in this case? We have not previously been confronted with determining what action, if any, a trial judge must take when prejudicial news releases are brought to his attention during the course of a criminal trial. Specifically, does the trial judge have a mandatory and affirmative duty to initiate an inquiry of the jurors to ascertain whether any of them had heard or read the prejudicial news release? Some federal and state appellate courts require this. Typical of this view is the following statement by the United States Court of Appeals of the Seventh Circuit: " . . . the procedure required by this Circuit where prejudicial publicity is brought to the court's attention during a trial is that the court must ascertain if any jurors who had been exposed to such publicity had read or heard the same. Such jurors who respond affirmatively must then be examined, individually and outside the presence of the other jurors, to determine the effect of the publicity." Margoles v . U.S. (7th Cir. 1969), 407 F.2d 727, 735. In accord: U.S. v . Hankish (4th Cir. 1974), 502 F.2d 71; u.S. v . Jones (4th Cir. 1976), 542 F.2d 186; State v . Keliiholokai (1977), 58 Haw. 356, 569 P.2d 891, It is noted that those courts that have adopted this rule, with the exception of the Hawaii Court, have apparently done so in their supervisory capacity over trial courts and not because the procedure is mandated by consti- tutional due process requirements. A contrary view has been taken by the Kansas Supreme Court. That court adopted the rule that where the record on appeal fails to show that a single member of the jury was aware of the publicity and when it does not appear the publicity was massive, pervasive or disruptive of trial proceedings, no trial error appears for there is no showing that defendant was deprived of a fair trial. Its rationale appears in the following passage: "In our judgment the disposition of this point is governed by State v . Smith, 215 Kan. 34, 523 P.2d 691, and State v. Potts, 205 Kan, 42, 468 P.2d 74. In Smith we held that a motion to inquire during trial is not a proper method to determine if members of a jury are aware of prejudicial arti- cles published by a newspaper during a trial, A similar situation was before the court in Potts where we stated that an inquiry pertaining to newspaper publicity during the trial may place prejudicial matter before the jury and create a basis for a mis- trial and that the trial of a case should not be interrupted for inquiry on each article published by the news media. In Potts in refusing to reverse a criminal case on the grounds of prejudicial news- paper publicity we emphasized that no attempt was made at the hearing on the motion for a new trial to show that any member of the jury was aware that such an article had been published. The rule to be followed is that where the record on appeal fails to show that a single member of the jury was made aware of the publicity and when it does not appear the publicity was massive, pervasive or disruptive of the trial proceedings, no trial error appears for there is no showing that defendant was deprived of a fair trial. Here the record on appeal fails to show that a single member of the jury was made aware of the newspaper publicity or that the pub- licity was massive, pervasive or disruptive of the trial proceedings. In order to prove that members of the jury were aware of the newspaper article, counsel for the defendant could have requested a poll of the jury after it returned its verdict. In the alternative he could have subpoenaed the jurors on motion for a new trial to show that they had know- ledge of the article. Under the circumstances we hold that there has been no showing that the defen- dant was deprived of a fair trial because of preju- dicial newspaper publicity." State v . Stewart (1976), 219 Kan. 523, 548 P.2d 787, 793-94. In accord: Louisiana v . Hegwood (1977), La. , 345 So.2d 1179; Commonwealth v . Nolin (1977), Mass. , 364 N.E.2d 1224. We are not persuaded to adopt a rule requiring a trial judge in every case where a prejudicial news release is brought to his attention during the course of a trial to launch an immed- iate inquiry of the jurors to determine whether they are aware of the offending publicity and if so, the effect of such publicity. We prefer to leave that to the trial judge's judgment and discre- tion, subject to his later review after verdict on appropriate motion, and our review on appeal. There are several reasons for this. A mandatory, affirmative requirement of an immediate juror inquiry is an inflexible rule denying the trial judge discretion in controlling trial proceedings. Such inquiry might inject error into the trial where none existed before. An immediate, mandatory inquiry during the course of trial into every news article, radio broadcast or telecast that is poten- tially prejudicial in the fertile mind of defense counsel might well disrupt trial proceedings unnecessarily and divert the at- tention of the jurors from their principal function of determin- ing the guilt or innocence of the defendant under the evidence produced at the trial. Finally, the need for such a rule is questionable as the defendant's right after verdict to inquire in- to, develop and indicate any prejudice is preserved. On appeal, the ruling of the trial judge on juror inquiry is subject to review. We proceed to a determination of whether the prejudicial news releases in this case tainted the jury, bearing in mind the general rule enunciated by the Supreme Court of the United States: "The trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial. (Citation omitted.) Generalizations beyond that statement are not profitable, because each case must turn on its own special facts." Marshall v . U . S . (1959), 360 U . S . 310, 79 S.Ct. 1171, 3 L Ed 2d 1250. The record in this case does not indicate continuous and massive publicity pervading the entire community which had a slop- over effect on the jury as in Estes v . Texas (1965), 381 U.S. 532, 85 S.Ct. 1628, 14 L Ed 2d 543, or Sheppard v. Maxwell (1966), 384 U . S . 333, 86 S.Ct. 1507, 16 L Ed 2d 600. Nor is it a case where several of the jurors admitted having read the prejudicial news article as in Marshall v . U.S., supra. The core of this case is whether defendant was denied a fair trial by reason of three news releases, two of which were the day before the trial and the third on the first day of trial. The record before us is barren of any indication that any juror was aware of the news releases. Defense counsel was permitted to voir dire the prospective jurors on their knowledge of notoriety in press. The selected jurors indicated they had not been influ- enced by media reports and they would render a verdict based only on the evidence introduced at the trial. At the time of voir dire examination of the prospective jurors, defense counsel was aware of an attempt to brand his client as a paid assassin. A month prior to trial the prosecution had filed an affidavit to the effect that the police had received information that defendant was hired by unknown person(s) to shoot and kill Sparboe. Four days before trial, defense counsel had filed an affidavit disclosing his know- ledge of an attempt to brand his client as a paid assassin. Under such circumstances the District Court's denial of defendant's mo- tion after 3-1/2 days of trial to interrogate the jurors on their exposure to the two news releases of April 17 was not an abuse of discretion. The news release of April 18 occurred after the jury was sworn and the trial had commenced. Thus the jury was not interro- gated on their exposure to this release. This telecast contained the same information included in the two news releases prior to trial, specifically that police had received information that the defendant was hired by an unknown person or persons to shoot and kill Sparboe. We find no reason to treat this telecast any dif- ferently in our analysis than the first two news releases. Additionally we have previously pointed out the admonitions of the trial judge and his instruction to the jury. We further note that no facts were submitted on defendant's motion for a new trial indicating that any juror had been exposed to any of the three news releases. For the foregoing reasons, we hold that the trial judge did not abuse his discretion in denying the defendant's motion for interrogation of the jury on April 21. Defendant's attack on the jury instructions is without merit. He contends that the instruction on attempted deliberate homicide is unconstitutional because the death penalty could be imposed. This attack fails for the reasons previously discussed under defendant's first specification of error and will not be repeated here. Defendant argues that the District Court should have granted him a new trial because the victim Sparboe referred to an item not in evidence. During his testimony Sparboe apparently took a beeper or pocket pager from the clothes he was wearing at the trial, indi- cated it was in his shirt pocket when he was shot, and that the bullet struck off it and broke a pen in the same pocket. Defen- dant's counsel asserts he did not hear this testimony at the trial, accordingly did not object, and only learned of it the next day. On appeal, defendant contends the prosecution suppressed this ex- culpatory evidence entitling him to a new trial. This evidence was not suppressed by the prosecution. The state did not take possession of the pager nor consider it evidence. After defendant learned of its existence at trial, he did not at- tempt to have it admitted in evidence during the succeeding four days of trial. He did not request a continuance. He did not seek its admission in evidence or request the prosecution to do so. Evi- dence is not withheld or suppressed if the defendant has knowledge of the facts or circumstances, or if the facts become available to him during trial. State v . Rueckert (1977) , 221 Kan. 727, 561 P.2d 850. See also Beasley v . State (F1a.Dist.A~~. 1975), 315 So.2d 540; Roman v . Commonwealth (1977) , KY , 547 S.W.2d 128; James v. State (1977), Tex . , 546 S.W.2d 306. The final specification of error is that the sentence of 30 years in the State Prison at hard labor without eligibility for parole or participation in the prisoner furlough program constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. Here the sentence was within the statutory limits. MCA . Section 46-18-502 (1) and 46-18-202 ( 2 ) , / A sentence within statu- tory limits is presumed not to be cruel and unusual punishment. U . S . v . Kuck (10th Cir. 1978), 573 F.2d 25. We have held this to be the general rule. State v . Karathanos (1972), 158 Mont. 461, 493 P.2d 326. Defendant has the burden of proving by a pre- ponderance of the evidence that his sentence falls within an ex- Mont . ception to the general rule. In re Jones (1978), I 578 P.2d 1150, 35 St.Rep. 469. Here defendant has not done so. Thus his specification of error lacks substance. Affirmed . Chief Justice | November 7, 1979 |
c8fad102-5cda-4d61-8ef9-7c5c7ab4bb39 | STATE v OPPELT | N/A | 14289 | Montana | Montana Supreme Court | No. 14289 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 THE STATE OF MONTANA, Plaintiff and Respondent, -vs- DAVID OPPELT, Defendant and Appellant. Appeal from: District Court of the Eighth Judicial District, Honorable Joel G. Roth, Judge presiding. Counsel of Record: For Appellant: James A. Lewis, Public Defender, argued, Great Falls, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Richard Larson, Assistant Attorney General, argued, Helena, Montana J. Fred Bourdeau, County Attorney, Great Falls, Montana Submitted: September 10, 1979 Decided : Filed: ~ T J ? 1 9 7 2 . Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. Defendant, David Oppelt, appeals from revocation of a suspended sentence by the Cascade County District Court. In 1975, Oppelt was convicted of burglary upon entry of a guilty plea. He was given a 10 year sentence which was suspended on condition he abide by customary probation rules. In May 1977, a jury found Oppelt guilty of aggravated assault, aggravated burglary and attempted theft. He was sentenced to 10 years in prison but released on bail pending appeal. The conviction was affirmed by this Court on June 8, 1978. State v. Oppelt (1978), Mont . , 580 P.2d 110, 35 St.Rep. 727. On October 7, 1977, a petition for revocation of the April 1975 suspended sentence was filed. It incorporated a district parole officer's report of violations which alleged that Oppelt assaulted Donna and Harold McClure; that he messed up and partially burned Donna McClure's house; that he intimidated April McClure; and that he had been seen drinking heavily. The "summary" contained on page two of the report listed the May, 1977 convictions as additional violations. Defense counsel and the county attorney each had complete copies of the report. However, page two of the report was missing from the petition filed in the District Court. As a result, the contents of that page, specifically, the convictions for aggravated burglary, aggravated assault and attempted theft were unknown to the District Judge. Likewise, defendant was not personally aware of their inclusion in the petition. Oppelt was brought before the court on October 14 and defense counsel obtained a continuance. Defendant obtained a second continuance and on November 22, 1977, a hearing was held. In addition to a fire inspector's testimony, affidavits regarding the assault and the burning were submitted subject to a later determination of admissibility The s t a t e o f f e r e d t h e May 1977 c o n v i c t i o n s and d e f e n d a n t o b j e c t e d on t h e b a s i s t h e y were on a p p e a l . The c o u r t n e i t h e r a d m i t t e d n o r r e f u s e d t h e evidence. Counsel were asked to, and d i d f i l e b r i e f s on t h e a d m i s s i b i l i t y o f t h e a f f i d a v i t s and t h e c o n v i c t i o n s . N o d e c i s i o n was r e n d e r e d on t h e f i r s t p e t i t i o n . On February 1, 1978, a n o t h e r p e t i t i o n f o r r e v o c a t i o n of t h e suspended s e n t e n c e was f i l e d . I t i n c o r p o r a t e d a second r e p o r t of v i o l a t i o n s which c l e a r l y l i s t e d t h e May 1977 c o n v i c t i o n s a s i n f r a c t i o n s . On t h e same day, d e f e n d a n t was brought b e f o r e t h e c o u r t w i t h o u t h i s a t t o r n e y , who a p p a r e n t l y r e c e i v e d no n o t i c e of t h e h e a r i n g . The c o u r t a s c e r t a i n e d t h a t Oppelt d i d n o t know t h e f i r s t p e t i t i o n was i n p a r t based on t h e May, 1977 c o n v i c t i o n s . Defendant was informed t h e second p e t i t i o n was based on t h e s e c o n v i c t i o n s and t h a t t h e f i r s t p e t i t i o n was dismissed. H e was f u r t h e r a d v i s e d t h a t s i n c e h i s a t t o r n e y was n o t p r e s e n t , t h e h e a r i n g was continued. A h e a r i n g on t h e second p e t i t i o n was h e l d on February 1 0 , 1978. Defendant moved t o quash t h e p e t i t i o n on grounds he was d e n i e d c o u n s e l when he was brought b e f o r e t h e c o u r t on February 1 and f u r t h e r t h a t h e w a s being s u b j e c t e d t o d o u b l e jeopardy. The motion was denied. The o n l y e v i d e n c e i n t r o d u c e d by t h e s t a t e were c e r t i f i e d c o p i e s of t h e May 1977 c o n v i c t i o n s . They were a d m i t t e d o v e r d e f e n d a n t ' s o b j e c t i o n . The suspended s e n t e n c e was revoked by c o u r t o r d e r on February 1 4 , 1977, and d e f e n d a n t a p p e a l s . The f o l l o w i n g i s s u e s a r e b e f o r e t h e Court. 1. Was d e f e n d a n t s u b j e c t e d t o double jeopardy? 2. Was d e f e n d a n t d e n i e d h i s r i g h t t o c o u n s e l ? 3 . Was d e f e n d a n t d e n i e d due p r o c e s s of law? 4. Was d e f e n d a n t a f f o r d e d a h e a r i n g w i t h o u t unnecessary d e l a y ? A t t h e o u t s e t , w e n o t e t h a t a suspended s e n t e n c e may be revoked on t h e b a s i s of a f e l o n y c o n v i c t i o n , even though t h e c o n v i c t i o n is a w a i t i n g a p p e l l a t e review. Roberson v. S t a t e of C o n n e c t i c u t (2nd C i r . 1 9 7 4 ) , 501 F.2d 305, 308; United S t a t e s v. C a r r i o n ( 9 t h C i r . 1 9 7 2 ) , 457 F.2d 808; See g e n e r a l l y , Anno. 76 ALR3d 588; S t a t e v. Radi ( 1 9 7 8 ) , Mont. , 578 P.2d 1169, 1181, 35 St.Rep. 489, 503, h o l d s t h a t p e r s i s t e n t o f f e n d e r s t a t u s is n o t avoided where p r e v i o u s c o n v i c t i o n is pending on a p p e a l a t t h e t i m e of s e n t e n c i n g . Defendant c o n t e n d s t h a t r e v o c a t i o n of t h e suspended s e n t e n c e enhances h i s punishment and t h u s s u b j e c t s him t o double jeopardy. W e d i s a g r e e . Even though a d e f e n d a n t must l i v e w i t h t h e c o n d i t i o n s o f p r o b a t i o n t h r o u g h o u t t h e p e r i o d of s u s p e n s i o n and even though he must s e r v e t h e e n t i r e s e n t e n c e i f t h e s u s p e n s i o n is revoked, t h e r e is no d o u b l e jeopardy. The l e g i s l a t u r e h a s p r o v i d e d : I' (1) Whenever a p e r s o n h a s been found g u i l t y of a n o f f e n s e upon a v e r d i c t or a p l e a of g u i l t y , t h e c o u r t may: " ( b ) suspend e x e c u t i o n of s e n t e n c e up t o t h e maximum s e n t e n c e allowed f o r t h e p a r t i c u l a r o f f e n s e . The s e n t e n c i n g judge may impose on t h e d e f e n d a n t any rea- s o n a b l e r e s t r i c t i o n s d u r i n g t h e p e r i o d of suspended s e n t e n c e . Such r e a s o n a b l e r e s t r i c t i o n s may i n c l u d e : . . . (iii) c o n d i t i o n s f o r p r o b a t i o n ; " ( 2 ) I f any r e s t r i c t i o n s or c o n d i t i o n s imposed under s u b s e c t i o n ( l ) ( a ) or ( l ) ( b ) are v i o l a t e d , any e l a p s e d t i m e , e x c e p t j a i l t i m e , s h a l l n o t be a c r e d i t a g a i n s t t h e s e n t e n c e u n l e s s t h e c o u r t o r d e r s o t h e r - wise." S e c t i o n 46-18-201, MCA. Montana case l a w is c l e a r l y t o t h e same e f f e c t . "The r e v o c a t i o n of a s u s p e n s i o n o f s e n t e n c e l e a v e s t h e d e f e n d a n t s u b j e c t t o e x e c u t i o n o f t h e o r i g - i n a l s e n t e n c e , as though it had n e v e r been suspended." Mont . Matter of R a t z l a f f ( 1 9 7 7 ) , - 1 564 P. 2d 1312, 1315, 34 S t . Rep. 470, 473, c i t i n g R o b e r t s v. United S t a t e s ( 1 9 4 3 ) , 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41; see also S t a t e e x rel. Bottomly v. D i s t r i c t Court ( 1 9 2 5 ) , 73 Mont. 541, 546, 237 P.2d 525, 526. Speaking d i r e c t l y t o t h e q u e s t i o n , w e have s a i d : "The F i f t h Amendment t o t h e United S t a t e s Consti- t u t i o n p r o v i d e s t h a t no p e r s o n s h a l l ' b e s u b j e c t f o r t h e same o f f e n s e t o be twice p u t i n jeopardy of life or limb.' This prohibition is applicable to state action under the 'due process' clause of the Fourteenth Amendment to the United States Constitution. North Carolina v . Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. It protects offenders from multiple punishment for the same offense. Ex parte Lange, [85 U.S. (18 Wall) 163, 21 L.Ed 8721; United States v . Benz 282 U.S. 304, 51 S.Ct. 114, 75 L.Ed. 354. Montana's constitu- tional provision is substantially similar providing that 'No person shall be again put in jeopardy for the same offense . . .' Art. 11, Section 25, 1972 Montana Constitution. "However, revocation of a suspension of a sentence does not constitute a second punishment for the same offense. A defendant under a suspended sen- tence lives with the knowledge that 'a fixed sen- tence for a definite term hangs over him.' Roberts v. United States, supra; State ex rel. Bottomly v . District Court, supra. The defendant's subsequent conduct, not his original offense, forms the basis of revocation and reinstates the original sentence. Petitioner is not being punished twice for the same offense." State v . Ratzlaff, 564 P.2d at 1316, 34 St.Rep. at 474. See also Paul v . State (Alaska 1977), 560 P.2d 754; 22 C.J.S. Criminal Law 8239, p. 623. Defendant's reliance on Flint v . Hocker (9th Cir. 1972), 462 F.2d 590, is misplaced. There, the court held that a probationer has the right to counsel when revocation of probation could result in the execution of the original sentence. The decision did not con- demn the execution of the original sentence upon revocation. Defendant next asserts, and we will assume, that both pro- ceedings to revoke the suspended sentence were based on the May, 1977, convictions. His argument that this subjects him to double jeopardy fails because it ignores the basic nature of proceedings to revoke a suspended sentence. After conviction, the decision to suspend a sentence is a "decision to forego complete denial of liberty by incarceration in favor of a judicially-supervised period of restricted liberty in the hope that the purposes of rehabilitation of defendant and the protection of the public can be achieved by the lesser deprivation of liberty." State v . Eckley (1978), 34 0r.App. 563, 579 P.2d 291, 293. In essence, the trial court retains jurisdiction over the defendant by imposing conditions on defendant's freedom to which he agrees to abide. Marutzky v . State (0kla.Cr. 1973), 514 P.2d The revocation hearing is not a criminal trial. Petition of Meidinger (1975), 168 Mont. 7, 15, 539 P.2d 1185, 1190. " . . . It is an exercise of the court's supervision over a probationer . . . "There is no adjudication of guilt or innocence upon the court's entry of its order upon an appli- cation to revoke. The court has only made a factual determination involving the existence of a violation of the terms of the suspended sentence." Marutzky, 514 P.2d at 431. See also Petition of Meidinger, 168 Mont. at 15, 539 P.2d at 1190; State v . Ratzlaff, supra, 34 St.Rep. at 474, 564 P.2d 1316. "Because a revocation proceeding is not a criminal adjudication, does not require proof of a criminal offense, does not impose punishment for any new offense, and is an act in the performance of the duty of judicial supervision of probationary liberty . . . the Double Jeopardy Clause is [not] applicable." State v. Eckley, 579 P.2d at 293. In this case, the first petition was dismissed without any determination on the merits. Under these circumstances and in recog- nition of the essence of revocation proceedings, the prohibitions against double jeopardy do not preclude the state from filing a second petition alleging the same facts. See State v . Rios (1977), 114 Ariz. 505, 562 P.2d 385. We recognize there may be a limit on how many times the same operative facts may be used as a basis for a petition to revoke. However, we do not reach the issue of the effect of a dismissal on the merits on a second petition based on the same facts. Cf. Davenport v . State (Tex. 1978), 574 S.W.2d 73; State v . Simmerman (1978), 118 Ariz. 298, 576 P.2d 157; State v. Eckley, supra; Marutzky v . State, supra. The record belies defendanva contention that he was denied counsel. On February 1, 1978, Oppelt briefly appeared in court without his attorney. The court dismissed the first petition for revocation and informed defendant that a second petition, based on the May 1977 convictions, had been filed. The court noted that counsel was not present and continued the hearing. Defendant argues if counsel were present, he would have objected to the second petition on double jeopardy grounds, As demonstrated above there was no double jeopardy and defendant was not prejudiced by the absence of an objection on that ground. There was no denial of fundamental fairness or due process. We find no error. Petition of Doney (1974), 164 Mont. 330, 522 P.2d 92. Defendant next argues he was denied due process of law by the absence of witness confrontation and the lack of a two-step hear- ing process. We disagree. Defendant's guilt or innocence of the original crime is not at issue in revocation proceedings and he is not afforded the full range of constitutional rights available at trial. Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L Ed 2d 656; Davenport v. State, supra, 574 S.W.2d at 75. This is not to say defendant has no rights in such proceedings; in Gagnon the United States Supreme Court likened revocation of probation to revocation of parole and held a probationer was entitled to a preliminary and a final hearing. See Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L Ed 2d 484, requiring preliminary and final hearings in parole revocation. "At the preliminary hearing, a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and to present evidence in his own behalf, a conditional right to confront adverse witnesses, an independent decision- maker, and a written report of the hearing. 408 U.S. at 487. The final hearing is a less summary one be- cause the decision under consideration is the ultimate decision to revoke rather than a mere determination of probable cause, but the 'minimum requirements of due process' include very similar elements: "'(a) written notice of the claimed violations of [pro- bation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detachedH hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole.' Morrissey v . Brewer, supra at 489." Gagnon v . Scarpelli, 411 U.S. at 786, 93 S.Ct. at 1761-1762, 36 L Ed 2d at 664. The February 1 hearing was not intended to be, but became a pre- liminary hearing in that there was a "minimal inquiry" into the basis of the petition. On that date defendant was given notice of the basis of the petition and was before an impartial magistrate. As there was no issue of fact, the giving of evidence was not nec- essary and there was no need to confront witnesses. Likewise, fundamental fairness did not require a written report of this hear- ing. At the February 10 hearing, which was in effect the final hearing, defendant was afforded notice, had an opportunity to be heard, was before a neutral hearing body and was given written notice of the revocation and the reason therefor. The only witness against him, the prosecutor, was subjected to cross-examination. As the only basis for revocation was the entry of the May 1977 conviction, it was not necessary for him to present witnesses. Defendant's argument that he was denied his right to confront witnesses at the hearing on the first petition (November 22, 1977) is not germane to the order issued on the second petition. Defendant's argument that he was denied his constitutional right to a speedy trial lacks merit. A speedy trial under the Sixth Amendment to the United States Constitution and section 24, Article I1 of the Montana Constitution is guaranteed only in "criminal prose- cutions." As discussed, revocation of probation is not a criminal prosecution or proceeding. See Paul v. State, supra. In the alternative defendant notes he has a right to a hear- ing "as promptly after arrest as possible" under section 46-23-1013, MCA. See also Morrissey v. Brewer, 408 U.S. at 485, 92 S.Ct. at 2602, 33 L Ed 2d at 496. This is a determination to be made on the basis of the facts of the particular case. Here, defendant was initially brought before the court on October 14, 1977. Although the record is not clear as to the exact date of arrest, we know it occurred between October 7, the date the arrest warrant was issued, and October 14, the date of the initial hearing. There is no claim that an unreasonable time elapsed between arrest and this first hearing. Thereafter, defendant caused substantial delays and did not at any time assert his right to a hearing without unnecessary delay. We are also mindful of the dismissal of the first petition and the neces- sity of filing the second petition. Under the facts of this case there was no unnecessary delay. Defendant's argument the delay prej- udiced him by causing him to lose the premium on his appeal bond is without merit. The bond was lost as a result of his arrest, not as a result of any delay, necessary or otherwise. Affirmed. Chief Justice We concur: .............................. J st ces T 7 | October 17, 1979 |
213025c9-d987-45f8-9e9c-ecb746e3e3d0 | ROGERS v RELYEA | N/A | 14492 | Montana | Montana Supreme Court | No. 14492 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 M . E. ROGERS I Plaintiff and Respondent, -vs- GEORGE A. RELYEA and DOROTHY RELYEA, Defendants and Appellants. Appeal from: District Court of the First Judicial District, Honorable Peter G . Meloy, Judge presiding. Counsel of Record: For Appellants: Daniels and Mizner, Deer Lodge, Montana For Respondent: Gough, Shanahan, Johnson & Waterman, Helena, Montana - , - - , - :' , 6 !- . _ . .- Filed: Submitted on briefs: August 1, 1979 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from Broadwater County concerning the specific performance of an agreement and option to purchase mining claims. Defendants Relyea are the owners of patented and un- patented mining claims in Broadwater County. In 1965 defen- dants entered into an agreement permitting the Finley Com- pany to mine the property on which the claims were located and keep all proceeds from the mining operations. The agreement included an option to purchase the mining claims and provided for the establishment of escrow and a deposit of a deed in escrow by the defendants. In 1967 Finley and the defendants modified the schedule of payments in the agreement. The original agreement with its modification was as- signed by Finley to plaintiff M . E. Rogers also in 1967. The assignment specifically recited that the escrow men- tioned in the original agreement had never been established. Between 1967 and 1974, the parties modified the assigned contract four or more times because of plaintiff's failure to make timely payments. One of these modifications was a document entitled "Option Agreement" where plaintiff was granted the exclusive right to purchase the mining claims and payments were made annually beginning on January 2, 1974. The first January 2nd payment was further extended until June 15, 1974, by a modification executed by the parties on March 15, 1974. Plaintiff failed to make the June 15th payment. In May 1974 plaintiff contacted Richard Voit to secure financing for the development of the mine. Voit and plain- t i f f observed the mining property and went t o the bank where t h e escrow w a s t o have been established. They discovered, however, t h a t the escrow had not been established. Voit t o l d p l a i n t i f f t h a t he would withdraw h i s f i n a n c i a l commit- ment t o t h e mine i f t h e escrow was n o t established. Plain- t i f f then went t o defendants' residence and requested t h a t t h e deed be placed i n escrow. Defendants refused, however, claiming t h a t p l a i n t i f f had n o t complied with the terms of t h e agreement. Defendants t h e r e a f t e r assumed t h e r e l a t i o n - s h i p w a s terminated with p l a i n t i f f and arrangements were made with o t h e r p a r t i e s f o r t h e development of the property. P r i o r t o the termination of t h e agreement, p l a i n t i f f , defendants and a t h i r d p a r t y entered i n t o a c o n t r a c t i n 1974 f o r t h e c u t t i n g of stumpage on the mining property. Under t h e stumpage contract, payments by t h e t h i r d p a r t y w e r e made t o defendants and applied t o p l a i n t i f f ' s annual payment under the c o n t r a c t between defendants and p l a i n t i f f . P l a i n t i f f f i l e d a complaint on December 8, 1975, seek- i n g t o r e s t r a i n defendants from terminating t h e agreement, requiring defendants t o s p e c i f i c a l l y perform portions of the agreement, and requesting damages f o r t h e breach of t h e agreement. Upon a motion f o r p a r t i a l summary judgment, t h e D i s t r i c t Court found t h a t a v a l i d agreement e x i s t e d between t h e p a r t i e s which agreement was breached by defendants' f a i l u r e t o e s t a b l i s h an escrow agreement and c r e d i t c e r t a i n payments t o p l a i n t i f f . The c o u r t excused p l a i n t i f f from h i s performance under t h e agreement. Upon t h e t r i a l of t h e remaining issues, t h e c o u r t reformed the c o n t r a c t and ordered s p e c i f i c performance. Damages r e s u l t i n g from t h e breach were denied. From t h i s judgment, both p l a i n t i f f and defen- dants appeal. Several i s s u e s are r a i s e d on appeal: 1. id t h e D i s t r i c t Court err i n granting p l a i n t i f f s p e c i f i c performance because t h e agreement contained an option t o purchase and t h e r e f o r e lacked mutuality required f o r t h e granting of s p e c i f i c performance? 2. Was defendants' f a i l u r e t o e s t a b l i s h an escrow agreement a m a t e r i a l breach of t h e c o n t r a c t which excused p l a i n t i f f ' s f a i l u r e t o make required payments under t h e c o n t r a c t ? 3. Did t h e D i s t r i c t Court err i n f i n d i n g t h a t defen- d a n t s f a i l e d t o c r e d i t payments under t h e stumpage c o n t r a c t t o p l a i n t i f f ? 4. Was t h e stumpage c o n t r a c t n o t binding on t h e par- ties because it w a s n o t supported by consideration? 5. I n reforming t h e c o n t r a c t , d i d t h e D i s t r i c t Court err i n r e q u i r i n g p l a i n t i f f t o execute a promissory note and r e a l mortgage upon payment of o n e - f i f t h of t h e balance of t h e purchase p r i c e ? 6. Did t h e District Court err i n f a i l i n g to g r a n t p l a i n t i f f damages f o r t h e breach of t h e agreement? With regard t o t h e f i r s t i s s u e , defendants argue t h a t e q u i t y w i l l n o t decree t h e s p e c i f i c performance of an option t o purchase contained within a mining agreement because options a r e u n i l a t e r a l i n nature and lack mutual o b l i g a t i o n s . W e disagree. The r u l e i s w e l l s e t t l e d t h a t options t o purchase may be s p e c i f i c a l l y enforced i n circumstances l i k e t h e p r e s e n t case. Steen v. Rustad (1957), 132 Mont. 96, 313 P.2d 1014; McLaren Gold Mining Co. v. Morton (1950), 1 2 4 Mont. 382, 224 P.2d 975. The McLaren case i s p a r t i c u l a r l y analogous t o t h i s case. McLaren involved an a c t i o n f o r s p e c i f i c performance of an option t o purchase contained within a mining lease. The p l a i n t i f f , a s l e s s e e , assigned h i s i n t e r e s t i n t h e c o n t r a c t t o a t h i r d p a r t y who expended considerable sums i n developing and mining t h e property. I n d i r e c t i n g t h e defendant l e s s o r t o s p e c i f i c a l l y perform t h e t e r m s of t h e c o n t r a c t and option t o purchase, the Court stated: "'There i s no class of c o n t r a c t s connected with t h e mining industry more f a m i l i a r t o t h e profes- sion than t h a t of options t o purchase, working bonds, o r executory c o n t r a c t s of s a l e . Unlike o t h e r c l a s s e s of r e a l e s t a t e , t h e value of a mine cannot be determined by m e r e s u p e r f i c i a l observa- t i o n . Expensive investigations, involving mea- surements, examination of underground geological conditions, and sampling invariably precede t h e consummation of a purchase o r sale of mining property. I n order t o j u s t i f y an intending pur- chaser i n making t h e r e q u i s i t e i n v e s t i g a t i o n s and incurring t h e attendant expense, he invari- ably exacts some c o n t r a c t from t h e owner by which he secures t h e f i r s t p r i v i l e g e of purchasing t h e property i n t h e event the examination proves s a t i s f a c t o r y . I n addition t o t h i s , a l a r g e army of "promoters," r e c r u i t e d from t h e ranks of a l l professions, t r a d e s , and occupations, swarm through the mining regions, seeking exclusive p r i v i l e g e s and "options" on mining p r o p e r t i e s of a l l c l a s s e s f o r t h e purpose of marketing them i n t h e moneyed c e n t e r s of t h e world. These condi- t i o n s have given rise t o a c l a s s of c o n t r a c t s i n f i n i t e i n v a r i e t y , from a mere letter signed by t h e owner, agreeing t o accept a c e r t a i n p r i c e f o r h i s mine i f paid within a c e r t a i n t i m e , t o a formidable working bond, which contemplates e n t r y i n t o possession and extensive e x p l o i t a t i o n t o prove t h e value of t h e mine before t h e p r i v i l e g e of purchase must be exercised. The ultimate ob- j e c t of a l l of them, however, i s t o secure t h e exclusive p r i v i l e g e of purchasing a t a given p r i c e , within a s p e c i f i e d t i m e . * * * " I * * * t h e r u l e t h a t c o n t r a c t s which do not involve mutuality cannot be s p e c i f i c a l l y enforced i s modified i n favor of the holder of t h i s c l a s s o r contracts. H e i s afforded t h i s equitable remedy, where he f u l l y and f a i r l y performs, o r o f f e r s t o perform, t h e t e r m s of h i s c o n t r a c t within the time s t i p u l a t e d . "'The very purpose of an optional c o n t r a c t of t h i s nature i s t o extinguish t h i s mutuality of r i g h t and v e s t i n one of t h e p a r t i e s t h e p r i v i l e g e of determining whether t h e c o n t r a c t s h a l l be v i t a - l i z e d and enforced. An option t o buy o r s e l l land, more than any o t h e r form of c o n t r a c t , contemplates a specific performance of its terms; and it is the right to have them specifically enforced that im- parts to them their usefulness and value.'" 124 Mont. at 392-93, quoting 3 Lindley on Mines (3rd Ed.), section 859, pp. 2123-2127. We hold, therefore, that the option to purchase con- tained within the contract in the instant case may be enforced by specific performance. With respect to the second issue, defendants argue that the covenant to establish escrow was not a material part of the contract and was independent of plaintiff's covenant to make timely payments. On this basis defendants argue that their failure to establish the escrow did not excuse plain- tiff's failure to make the June 15 payment. In the alter- native, defendants contend that plaintiff waived the estab- lishment of escrow as a material part of the contract. It is argued that plaintiff knew from the modifications and the assignment that the escrow had never been established and that this became an immaterial part of the agreement. We disagree. The covenant to establish escrow was a material part of the contract and a condition precedent to plaintiff's obligation to make payments. The object of the contract entered into between the parties was the purchase, development and financing of the mining claims. The estab- lishment of the deed in escrow was an integral part in the attainment of this object. Without the escrow, it is highly probable that the parties would not have even contemplated such an agreement. As to defendants' argument that plaintiff waived the establishment of escrow as a material part of the contract, the record is clear that plaintiff did not waive this require- ment. Though the assignment acknowledged the escrow had never been established, plaintiff went to defendants' resi- dence i n May 1974 t o r e q u e s t t h e establishment of t h e es- crow. A t t h a t t i m e , p l a i n t i f f w a s c u r r e n t i n h i s payments. P l a i n t i f f d i d n o t d e f a u l t u n t i l he f a i l e d t o make t h e June 15 payment; defendants, however, d e f a u l t e d e a r l i e r when they refused t o e s t a b l i s h t h e escrow. The general r u l e i s t h a t a p a r t y committing a substan- t i a l breach of a c o n t r a c t cannot maintain an a c t i o n a g a i n s t t h e o t h e r c o n t r a c t i n g p a r t y o r h i s predecessor i n i n t e r e s t f o r a subsequent f a i l u r e t o perform i f t h e promises are dependent. 17 Am.Jur.2d Contracts, S366, p. 807. A sub- s t a n t i a l o r m a t e r i a l breach is one which touches t h e funda- mental purposes of t h e c o n t r a c t and d e f e a t s t h e o b j e c t of t h e p a r t i e s i n making t h e c o n t r a c t . Here, t h e D i s t r i c t Court found t h a t defendants committed a s u b s t a n t i a l breach of t h e agreement and ordered defendants t o s p e c i f i c a l l y perform t h e t e r m s of t h e c o n t r a c t . I m p l i c i t i n t h e c o u r t ' s o r d e r w a s t h e f a c t t h a t t h e covenants were dependent. I t i s t h e general r u l e t h a t t h e c o u r t ' s f i n d i n g s w i l l n o t be disturbed on appeal unless unsupported by s u b s t a n t i a l evi- dence. Arrowhead, Inc. v. Safeway S t o r e s , Inc. (1978), Mont. , 587 P.2d 4 1 1 , 413, 35 St.Rep. 1830, 1832. Here, we f i n d t h a t t h e r e i s s u f f i c i e n t c r e d i b l e evidence t o sup- p o r t t h e f i n d i n g s of t h e court. Defendants next argue t h a t t h e D i s t r i c t Court e r r e d i n f i n d i n g t h a t defendants f a i l e d t o c r e d i t c e r t a i n amounts received t o p l a i n t i f f ' s annual payment under t h e agreement. These amounts stemmed from a s e p a r a t e c o n t r a c t f o r t h e s a l e of stumpage on t h e mining property. Under t h i s c o n t r a c t p l a i n t i f f , defendants and a t h i r d p a r t y agreed t h a t payments under t h e stumpage c o n t r a c t would be made t o defendants and applied a g a i n s t t h e p l a i n t i f f ' s annual payment under t h e agreement between p l a i n t i f f and defendants. Defendants contend t h a t the finding i s n o t supported by s u b s t a n t i a l evidence, since t h e record does n o t r e f l e c t t h e r e c e i p t of any such money. P l a i n t i f f argues, however, t h a t defendants admitted t h e finding because they f a i l e d t o answer a request f o r admission regarding t h e matter within 30 days. The request asked defendants t o admit t h a t they f a i l e d t o c r e d i t payments from the stumpage c o n t r a c t t o p l a i n t i f f ' s annual payment. Under Rule 36, M.R.Civ.P., " t h e matter i s admitted unless, within 30 days a f t e r service of t h e request, o r within such s h o r t e r o r longer time a s t h e c o u r t may allow, t h e p a r t y t o whom t h e request i s d i r e c t e d serves upon t h e p a r t y requesting t h e admission a w r i t t e n answer o r objection . . ." H e r e , the record d i s c l o s e s t h a t defendants f a i l e d t o answer t h e request and w e r e not granted an extension by t h e court. Therefore, a s p l a i n t i f f properly contends, t h e matter w a s deemed admitted. I n so holding, however, w e f e e l it i s noteworthy t o mention t h a t t h e D i s t r i c t Court a l s o ordered an accounting t o a s c e r t a i n t h e exact amount of p l a i n t i f f ' s c r e d i t i n t h e i n s t a n t case and t h a t , i f defen- dants' a s s e r t i o n i s i n f a c t t r u e , it w i l l bear i t s e l f o u t when t h a t accounting occurs. Defendants a l s o argue t h a t t h e stumpage c o n t r a c t was n o t a binding agreement on t h e p a r t i e s because it w a s n o t supported by any consideration. This i s simply n o t true. Defendants had an injunction and a s u i t pending a g a i n s t p l a i n t i f f and t h e t h i r d p a r t y regarding t h e c u t t i n g of stumpage on the mining property. They l a t e r relinquished t h e i r claim when t h e p a r t i e s resolved t h e i r disagreement by executing t h e stumpage c o n t r a c t . This w a s s u f f i c i e n t con- s i d e r a t i o n t o c r e a t e a binding c o n t r a c t . Murray v. White (1911), 42 Mont. 423, 113 P. 754; Mustang Equipment, Inc. v. Welch (1977), 564 P.2d 895, 115 Ariz. 206. The f i f t h i s s u e r a i s e d concerns t h e e x t e n t t o which a c o u r t may reform a c o n t r a c t . P l a i n t i f f contends t h a t it was e r r o r f o r t h e D i s t r i c t Court, i n reforming t h e c o n t r a c t , t o r e q u i r e p l a i n t i f f t o execute a promissory note and a r e a l e s t a t e mortgage upon payment of o n e - f i f t h of t h e balance of t h e purchase p r i c e . I t i s argued t h a t t h i s requirement imposed g r e a t e r burdens on p l a i n t i f f than o r i g i n a l l y contem- p l a t e d by t h e p a r t i e s : it obligated p l a i n t i f f t o making a l l f u r t h e r payments a f t e r making t h e f i r s t payment; it c r e a t e d personal l i a b i l i t y on t h e p a r t of p l a i n t i f f f o r t h e unpaid balance of t h e purchase p r i c e ; and it gave defendants t h e r i g h t t o f o r e c l o s e i n t h e event of a f u t u r e d e f a u l t . Defendants a l s o contend it was e r r o r f o r t h e D i s t r i c t Court i n reforming t h e c o n t r a c t t o order an accounting, schedule a new option t o purchase d a t e , and s e t up a new payment schedule. The power of a c o u r t t o reform a c o n t r a c t was discussed i n S u l l i v a n v. Marsh (1950), 1 2 4 Mont. 415, 421-22, 225 P.2d 868, 872, where t h i s Court s t a t e d : "One may n o t employ a s u i t f o r reformation of a c o n t r a c t f o r t h e purpose of making an e n t i r e l y new agreement. Such s u i t s a r e only t o e s t a b l i s h and perpetuate an already e x i s t i n g agreement, and t o make it express t h e r e a l i n t e n t of t h e p a r t i e s as such i n t e n t e x i s t e d a t t h e t i m e of t h e making of t h e agreement. A c o u r t of equity i s n o t empowered t o supply by decree an agree- ment which w a s never made . . . I t i s t h e duty of t h e c o u r t t o enforce c o n t r a c t s which t h e par- ties themselves have made and n o t t o make new and d i f f e r e n t c o n t r a c t s f o r t h e p a r t i e s o r t o make s i g n i f i c a n t a d d i t i o n s t h e r e t o and thus give t o one o r more of t h e p a r t i e s , b e n e f i t s and ad- vantages on which t h e minds of t h e c o n t r a c t i n g p a r t i e s have never met." W e hold t h a t it was n o t e r r o r f o r t h e D i s t r i c t Court t o o r d e r an accounting, schedule a new option t o purchase d a t e and set up a new payment schedule. These adjustments w e r e necessary t o determine t h e s t a t e of a f f a i r s between t h e p a r t i e s and c a r r y o u t t h e i r agreement once t h e c o n t r a c t had been breached and t h e d a t e s f o r p l a i n t i f f ' s performance had passed. Without t h e s e adjustments, it w a s impossible f o r t h e c o u r t t o give e f f e c t t o t h e order f o r s p e c i f i c performance. The adjustment of t h e s e t e r m s was consonant with t h e powers of a c o u r t i n e q u i t y and t h e purposes of e q u i t a b l e r e l i e f . Amos v. Bennion (1969), 23 Utah2d 40, 456 P.2d 172. However, it w a s e r r o r f o r t h e D i s t r i c t Court t o r e q u i r e p l a i n t i f f t o execute a promissory note and r e a l e s t a t e mortgage upon t h e payment of o n e - f i f t h of t h e balance of t h e purchase p r i c e . Although t h e requirement was, understandably, a s i n c e r e e f f o r t by t h e c o u r t t o remedy t h e p a t t e r n of untimely payments by p l a i n t i f f , it nevertheless exceeded t h e scope of t h e agreement a s o r i g i n a l l y contemplated by t h e p a r t i e s . It a l t e r e d t h e o r i g i n a l agreement by c r e a t i n g new r i g h t s and o b l i g a t i o n s , and it was n o t necessary t o r e i n - s t a t e t h e c o n t r a c t u a l r e l a t i o n s h i p between t h e p a r t i e s . For t h e s e reasons, w e order t h a t t h e requirement be d e l e t e d . F i n a l l y p l a i n t i f f argues t h a t t h e D i s t r i c t Court e r r e d i n n o t granting damages f o r t h e breach of t h e c o n t r a c t . The t h r u s t of p l a i n t i f f ' s contention i s t h a t defendants' breach "drove o f f a p o t e n t i a l i n v e s t o r [Voit] a t t r a c t e d t o t h e mine" and prevented p l a i n t i f f from f i n a n c i a l l y developing t h e mine. Montana s t a t u t e s set f o r t h t h e measure of damages i n t h e case of breach of c o n t r a c t . Section 27-1-311, MCA, provides : "For t h e breach of an obligation a r i s i n g from c o n t r a c t , t h e measure of damages, except where otherwise expressly provided by t h i s code, is t h e amount which w i l l compensate t h e p a r t y ag- grieved f o r a l l t h e detriment proximately caused thereby o r which i n t h e ordinary course of things would be l i k e l y t o r e s u l t therefrom. N o - damages The D i s t r i c t Court held t h a t p l a i n t i f f ' s claims w e r e too speculative o r n o t supported by t h e evidence t o permit an award of damages. W e agree. W e cannot say with absolute c e r t a i n t y t h a t t h e mine would not have been developed i f Voit had not decided t o i n v e s t i n t h e venture. Another investor could have possibly expressed i n t e r e s t , o r it might have been t h a t Voit would have decided f o r some o t h e r reason n o t t o i n v e s t i n t h e mine regardless of t h e establishment of escrow. Affirmed i n p a r t and reversed i n p a r t . W e concur: - C>ief J u s t i c e * & , 1, ,Jd&d*L-,,/ J u s t i c e s 9 | October 2, 1979 |
e846383c-e38b-46e1-8ad8-8877c1e63023 | MASSARO v DUNHAM | N/A | 14582 | Montana | Montana Supreme Court | N o . 14582 I N T H E S U P R E M E COURT O F THE STATE O F MONTANA 1979 LYLE A. MASSARO, P l a i n t i f f and Respondent, VS . D O R E T T A JANE DUNHAM, Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t , Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellant: , , , I A1 F r o s t , Legal Services, Bozeman, Montana For Respondent: McCabe and Weingartner, Helena, Montana Submitted on b r i e f s : November 7, 1979 Decided: NOY 2 8 1 m Mr. Justice John C. Sheehy delivered the Opinion of the Court. Doretta J. Dunham appeals from that portion of the findings of fact, conclusions of law and judgment entered by the District Court, Eighteenth Judicial District, Gallatin County, denying her recovery of alleged child support arrearages. Doretta and Lyle A. Massaro were formerly husband and wife. Their marriage was dissolved on December 23, 1966, in Sheridan, Wyoming. Pursuant to the marriage dissolution decree and the separation agreement incorporated therein, Doretta was given custody of the parties' two minor children, Sherri and Lyle R. "Ricky" Massaro. Lyle was obligated to pay $100 per month child support and any medical, dental, drug and doctor bi-11 .i.ncurred by Doretta in caring for the children when the cost of such bills exceeded twenty-five dollars in a given month. The evidence in the record of child support payments is sketchy. Lyle was enlisted in the Armed Forces for eight months in 1967 and 1968. A $125 per month allotment was sent to Doretta during this period. In 1969, Lyle furnished $2,000 to Shelby Trailer Court Sales in Casper, Wyoming, for the purchase of a mobile home by Doretta, Lyle has also given gifts of cash and other personalty directly to the children. Doretta was a patient at the Wyoming State Mental Hospital for three months in 1974 and six months in 1975. During this period, Lyle had custody of Sherri from May 1975 to August 1975 and custody of Ricky from March 1974 to August 1974 and from January 1975 to August 1975. On November 8, 1976, the District Court, Gallatin County, entered an ex parte order granting the exclusive custody of the children to Lyle with Doretta to have reasonable visitation privileges. On January 25, 1978, Doretta filed a petition for modification of visitation rights and complaint for child support arrearages. Doretta alleged Lyle owed $9,600 back child support as of the date of her complaint. Lyle filed his response and counterclaim on March 17, 1978. Lyle generally denied all claims of Dorettafs petition, sought reaffirmation of the prior ex parte custody order and requested an order permanently restraining Doretta from harassing the Massaro family. Lyle moved for a continuance on May 30, 1978, one day prior to the original trial date. The ground of the motion was that Sherri, an essential witness, had run away from the Massaro household and could not be located. The motion was granted, and the cause was reset for trial on June 12, 1978. The District Court entered its findings of fact and conclusions of law on July 5, 1978. Specifically, the District Court concluded Doretta had failed to prove the amount of back child support claimed as owing to her by Lyle. On August 16, 1978, Doretta filed a motion to amend the findings of fact and conclusions of law or, in the alternative, for a new trial. The motion was denied. Doretta next applied to the District Court for an order permitting her to appeal in forma pauperis. The petition was denied. However, we granted Doretta leave to appeal in forma pauperis on November 22, 1978. Doretta raises three issues upon this appeal: 1. Did the District Court properly apply the rules regarding burden of proof and the burden of producing evidence? 2. Is there sufficient evidence to support the District Court's judgment concerning delinquent child support? 3 . Does the District Court judgment violate section 40-4-208, MCA, prohibiting retroactive modification of child support payments? -3- Having found an abuse of the discovery rules, we will not reach these issues. - See, Rule 2, Mont.R.App.Civ.P. On April 6, 1978, Doretta served Lyle with written interrogatories, a request to produce documents and requests for admission. Generally, Doretta sought any evidence that Lyle might use at trial to establish due payment of child support. In her requests for admission, Doretta asked Lyle to admit he owed an obligation to pay $100 per month child support pursuant to the decree of dissolution of marriage and the separation agreement incorporated therein. Doretta also requested Lyle to admit Doretta had been granted reasonable visitation privileges pursuant to the District Court's ex parte order. On April 12, 1978, Lyle requested additional time to respond to the discovery. Doretta agreed to the extension in a letter dated April 17, 1978. On May 31, 1978, Doretta's counsel by telephone requested a response to the discovery. Lyle's counsel gave assurances that a response would be forthcoming. Lyle's counsel never responded to the written interroga- tories or the request for production of documents. The reason given at trial was that counsel's secretary was on vacation and the response to discovery had been overlooked. On May 31, 1978, Lyle filed objections to the requests for admissions. The ground of the objection was that Doretta had failed to attach or serve copies of the marriage dissolution decree, separation agreement or ex parte order to the requests for admissions, and therefore, Lyle specifically denied the authenticity and truth of any provision contained therein. Yet, at trial when Doretta moved for the admission of certified copies of the requested documents, Lyle's counsel responded, "I think they're part of the record already, Your Honor, and don't need to be admitted specifically." At the trial, Doretta objected to and sought restriction of the expected proof by Lyle concerning visitation and delinquent child support. The ground of the objection was failure to respond to discovery. The motion was taken under advisement and later denied. Lyle asserts his failure to respond to discovery is not objectionable since Doretta failed to move for an order compelling discovery. We do not agree. The District Court has the inherent discretionary power to control discovery. That power is based on the District Court's authority to control trial administration. - See, State v. Mecca Twin Theater & Film Exchange, Inc. (1973), 82 Wash.2d 87, 507 P.2d 1165, 1167. In controlling discovery, the District Court must regulate traffic to insure a fair trial to all concerned, neither according one party an unfair advantage nor placing the other party at a disadvantage. State v. Boehme (1967), 71 Wash.2d 6, 430 P.2d 527, 534. We will reverse the District Court only when its judgment may materially affect the substantial rights of the appellant and allow the possibility of a miscarriage of justice. Wolfe v. Northern Pacific Railway Co. (1966), 147 Mont. 29, 41, 409 P.2d 528, 534. We find such a situation here. The purpose of discovery is to promote the ascertainment of truth and the ultimate disposition of the lawsuit in accordance therewith. Discovery fulfills this purpose by assuring the mutual knowledge of all relevant facts gathered by both parties which are essential to proper litigation. -5- ~ickman v. Taylor (1947), 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451, 460. In the instant case, Lyle's counsel gave assurances that a response to discovery would be forthcoming and then never responded. Considering Doretta's past mental condition, her counsel was correct in expecting Lyle to be the only party with accurate records of past child support payments. However, due to the failure to respond to discovery, Doretta's counsel had no opportunity to inspect and prepare for any proof of past child support payments. Thus, the District Court failed to regulate the discovery process and accorded an unfair advantage to Lyle. Lyle's answers to the requests for admission likewise do not comport with the good faith requirement inherent in the rules of discovery. Rule 36(a), Mont.R.Civ.P., does require the attachment of a copy of a document when the genuineness of that document is the matter sought to be admitted. The purpose of this requirement is to give the responding party an opportunity to compare the copy with the original to determine its validity. This purpose would not be served by giving credence to ~yle's objections. Rule 36(a), Mont.R.Civ.P., requires a denial of a request for admissions to fairly meet the substance of the requested admission. The responder must admit or deny with particularity if the truth can be ascertained by reasonable inquiry. 2 ( ~ ) Barron & Holtzoff, Federal Practice and Procedure, 5834, at 513-15. An evasive answer is to be treated as a failure to answer, an admission. Rule 37 (a) (3) , Mont. R.Civ.P. Lyle's answers should have been treated as admissions since they were evasive and did not comport with the purposes of Rule 36 and discovery in general. Thus, when Lyle refused to admit the matter set forth in Doretta's request, her counsel was put to the trouble and expense of procuring certified documents of instruments already in the possession of Lyle, the contents of which should have been well-known to him. We cannot condone such evasiveness, nor overlook the fact that opposing counsel was forced to accumulate documents for evidence which should not have been in dispute. The failure of Lyle to respond to the interrogatories prejudiced Doretta's counsel in preparing for trial. Certainly the sketchy evidence of support payments in the record, which in our opinion is insufficient to deny a money judgment in some amount to Doretta is the result of the evasiveness of Lyle's counsel in properly responding to the interrogatories. That portion of the District Court's judgment pertaining to delinquent child support is reversed. The cause is remanded for further proceedings in accordance with this opinion. This may or may not include further discovery. We Concur: /" Chief Justice 0 | November 28, 1979 |
6c1274ed-bf50-4db7-a87d-a723aae7068a | MATTER OF C M S | N/A | 14763 | Montana | Montana Supreme Court | No. 14763 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN THE MATTER OF C.M.S., A DEPENDENT AND NEGLECTED CHILD. Appeal from: District Court of the Second Judicial District, Honorable Arnold Olsen, Judge presiding. Counsel of Record: For Appellant: Leonard J. Haxby, Butte, Montana For Respondent : John G. Winston, County Attorney, Butte, Montana Michael E. Wheat, Deputy County Attorney, Butte, Montana Henningsen, Purcell and Genzberger, Butte, Montana Corette, Smith, Dean, Pohlman and Allen, Butte, Montana John R. Carr, Miles City, Montana Submitted on briefs: September 20, 1979 Decided: N d v i : 1 9 7 9 N O Y * . - 2 Filed: M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. This i s an appeal from a judgment finding C.M.S. a dependent and neglected c h i l d and giving permanent custody with the r i g h t t o consent t o adoption t o t h e Department of Social and Rehabilitation Services of t h e S t a t e of Montana. C.M.S., a minor c h i l d , was born i n Butte, S i l v e r Bow County, Montana, on J u l y 9, 1975. H e r mother, a t both t h e t i m e of conception and delivery, was confined t o t h e S t a t e Hospital a t Warm Springs, Montana, having been acquitted of t h e charge of homicide by reason of a mental d e f e c t exclud- i n g r e s p o n s i b i l i t y . The name of t h e f a t h e r i s unknown, and t h i s i s r e f l e c t e d upon t h e c h i l d ' s b i r t h c e r t i f i c a t e . Following t h e b i r t h of the c h i l d , t h e mother was re- turned t o t h e S t a t e Hospital a t Warm Springs where she has been and i s still confined. The c h i l d w a s placed under t h e p r o t e c t i v e guidance of t h e Butte-Silver Bow Office of t h e Department of Social and Rehabilitation Services. Immedi- a t e l y following her b i r t h , on J u l y 11, 1975, t h e Department placed t h e c h i l d i n a f o s t e r home, licensed by the S t a t e of Montana, t o i n s u r e t h a t t h e c h i l d should receive proper care. The c h i l d has remained i n t h i s same home f o r over 3- 1/2 years a t t h e t i m e of hearing, and a t t h i s point, over 4 years. The home provided f o r the c h i l d has four o t h e r children and i s t h e only family u n i t t h e c h i l d has ever had. During the 3-1/2 years p r i o r t o t h e hearing, the Depart- ment of Social and Rehabilitation Services (SRS) sought on t h r e e occasions t o acquire permanent custody with t h e r i g h t t o consent t o adoption. On each occasion, SRS's p e t i t i o n w a s objected t o by t h e guardian of t h e b i o l o g i c a l mother upon t h e grounds t h a t she was mentally incompetent, was confined a t t h e Warm Springs S t a t e Hospital, a d i s a b i l i t y which prevented her from caring f o r t h e c h i l d . The Honorable A. B. Martin of M i l e s C i t y , Montana, made an o r d e r following a c q u i t t a l of t h e mother on homicide charges by reason of mental d e f e c t excluding r e s p o n s i b i l i t y , t h a t James B. Hathaway be appointed a s guardian of t h e person and t h e estate of t h e mother, and counsel w a s ap- proved by t h a t c o u r t f o r t h e guardianship. O n November 23, 1976, SRS f i l e d t h i s p e t i t i o n i n t h e D i s t r i c t Court of S i l v e r Bow County f o r permanent custody of t h e c h i l d with t h e r i g h t t o consent t o her adoption. A f t e r n o t i c e was given t o a l l concerned p a r t i e s , a series of hearings were held t o determine whether SRS should be awarded t h e permanent custody with t h e r i g h t t o consent t o adoption. A t t h e s e hearings, Leonard J. Haxby appeared on behalf of t h e mother. John R. Carr w a s r e t a i n e d by t h e mother's guardian, James Hathaway of M i l e s City, t o r e p r e s e n t t h e i n t e r e s t s of t h e guardian i n t h e proceedings. James E. P u r c e l l w a s appointed by t h e c o u r t a s a t t o r n e y f o r t h e minor c h i l d . Michael E. Wheat, a s s i s t a n t deputy county a t t o r n e y , appeared f o r SRS, and Dolphy 0. Pohlman represented t h e f o s t e r parents. A t a hearing on December 21, 1978, a f t e r a l l p a r t i e s had been properly served and were p r e s e n t i n c o u r t and represented by counsel, a motion w a s made by a p p e l l a n t ' s counsel t h a t t h e c o u r t lacked proper j u r i s d i c t i o n over t h e matter. The hearing w a s continued s o t h a t a d d i t i o n a l t i m e could be taken t o determine t h e r e s t o r a t i o n capacity of a p p e l l a n t , who a t t h a t t i m e w a s making an e f f o r t t o be r e l e a s e d from t h e S t a t e Hospital and r e s t o r e d t o capacity. The c o u r t ordered t h a t t h e hearing resume on February 15, 1979. O n t h a t d a t e t h e hearing was resumed, and a p p e l l a n t again objected t o t h e j u r i s d i c t i o n of t h e court. The c o u r t overruled t h e objection and proceeded t o a f i n a l hearing. From t h e evidence adduced a t the hearing, t h e c o u r t found t h a t C.M.S. was abused, dependent and neglected and granted t h e p e t i t i o n of SRS f o r permanent custody of the c h i l d with t h e r i g h t of adoption i n t h e State. Two i s s u e s are r a i s e d by appellant: (1) Whether t h e D i s t r i c t Court lacked j u r i s d i c t i o n t o hear t h e matter because appellant d i d n o t consent t o the proceedings? (2) Whether t h e findings of t h e c o u r t t h a t C.M.S. was abused, dependent and neglected w e r e supported by s u f f i c i e n t c r e d i b l e evidence? Regarding t h e f i r s t i s s u e , a p p e l l a n t maintains t h a t consent was a j u r i s d i c t i o n a l p r e r e q u i s i t e t o t h e proceedings i n t h e i n s t a n t case. Appellant argues t h a t SRS's p e t i t i o n was, i n e f f e c t , a p e t i t i o n f o r adoption and under s e c t i o n 40-8-111, MCA, consent i s required f o r adoptions. Before t h e c o u r t could g r a n t SRS custody of t h e c h i l d with t h e r i g h t t o consent t o her adoption, a p p e l l a n t contends t h a t SRS had t o obtain e i t h e r her consent o r t h a t of her l e g a l guardian. Without such consent, t h e c o u r t lacked t h e neces- s a r y j u r i s d i c t i o n t o proceed. I n answering t h i s argument, w e note f i r s t t h a t appel- l a n t i s c o r r e c t i n a s s e r t i n g t h a t , a s a general r u l e , p a r e n t a l consent i s required f o r adoptions. Section 40-8- 111, MCA. I n t h i s case, however, t h e consent of a p p e l l a n t o r her l e g a l guardian w a s n o t necessary f o r t h e c o u r t t o o b t a i n j u r i s d i c t i o n . The p e t i t i o n f i l e d by SRS was n o t f o r an adoption b u t was f o r a d e c l a r a t i o n of dependency and neglect. Chapter 3 , T i t l e 4 1 of t h e Montana Code Annotated provides t h a t children may be declared dependent and ne- glected under c e r t a i n circumstances and t h a t a p e t i t i o n e r may ask f o r permanent l e g a l custody with t h e r i g h t t o con- s e n t t o adoption as r e l i e f . Parental consent is n e i t h e r necessary t o declare a c h i l d abused, dependent o r neglected nor t o g r a n t permanent custody of t h e c h i l d t o persons o t h e r than t h e n a t u r a l parents. A l l t h a t i s required, r a t h e r , is t h a t t h e c o u r t f i n d , upon t h e b a s i s of s u f f i c i e n t c r e d i b l e evidence, t h a t t h e c h i l d is, within t h e t e r m s of t h e s t a t u - t o r y d e f i n i t i o n s , "abused, dependent, o r neglected." Appellant's apparent confusion lies with the number of s t a t u t o r y schemes a v a i l a b l e f o r t h e termination of p a r e n t a l r i g h t s and t h e f a c t t h a t , t o some e x t e n t , these s t a t u t o r y schemes may be s a i d t o overlap. While consent i s required under some schemes, it i s n o t required under others. Pre- viously, w e have attempted t o c l a r i f y t h e r e l a t i o n s h i p s between t h e s t a t u t o r y schemes where o t h e r s have been con- fused. W e s t a t e d i n Matter of Guardianship of Aschenbrenner (1979) Mont. , 597 P.2d 1156, 1164, 36 St.Rep. "The confusion of t h e D i s t r i c t Court i s under- standable. W e a r e a b l e t o i d e n t i f y a t l e a s t f i v e s t a t u t o r y schemes governing t h e termina- t i o n of parental r i g h t s o r t h e custody of c h i l d r e n o r both. [Citations omitted. 1 "Nevertheless, while t h e r e i s some overlap i n these various procedures a s t o general s u b j e c t matter, each i s used f o r a d i s t i n c t purpose and sets f o r t h s p e c i f i c procedures which must be followed before a v a l i d judgment o r order may be issued." H e r e , SRS proceeded under t h e provisions f o r declaring a c h i l d dependent o r neglected. Parental consent i s n o t required under t h i s chapter f o r a t l e a s t two reasons. F i r s t , r e q u i r i n g consent could conceivably d e f e a t t h e policy and t h e purposes of p r o t e c t i n g abused, dependent, and neglected children: " ( 1 ) It is hereby declared t o be t h e p o l i c y of t h e s t a t e of Montana t o : " ( a ) i n s u r e t h a t a l l youth a r e afforded an adequate physical and emotional environment t o promote normal development; " ( 2 ) I t is t h e p o l i c y of t h i s s t a t e t o provide f o r t h e p r o t e c t i o n of c h i l d r e n whose h e a l t h and welfare are adversely a f f e c t e d and f u r t h e r threatened by t h e conduct of those responsible f o r t h e i r c a r e and p r o t e c t i o n . . ." Section 41-3-101, MCA. Second, it is, s t r i c t l y speaking, i l l o g i c a l t o r e q u i r e p a r e n t a l consent i n dependency and n e g l e c t proceedings. Such proceedings by t h e i r very nature a r e h o s t i l e t o t h e p a r e n t s and a g a i n s t t h e i r wishes. Even t h e adoption s t a t u t e s of t h i s s t a t e except t h e general requirement of p a r e n t a l consent where c h i l d r e n are abused, dependent and neglected. Section 40-8-111, MCA, provides i n p e r t i n e n t p a r t : " ( 1 ) A n adoption of a c h i l d may be decreed when t h e r e have been f i l e d w r i t t e n consents t o adop- t i o n executed by: " ( a ) both p a r e n t s , i f l i v i n g , o r t h e surviving p a r e n t of a c h i l d , provided t h a t consent s h a l l n o t be required from a f a t h e r o r mother: -- -- - " (iii) who has been j u d i c i a l l y deprived of t h e custody of t h e c h i l d on account of c r u e l t y o r n e g l e c t toward t h e c h i l d ; " ( i v ) who has . . . w i l l f u l l y abandoned such c h i l d ; " (v) who has caused t h e c h i l d t o be maintained by . . . t h e department of s o c i a l and r e h a b i l i - t a t i o n s e r v i c e s of t h e s t a t e of Montana f o r a period of 1 year without c o n t r i b u t i n g t o t h e support of s a i d c h i l d during s a i d period, i f a b l e ; o r " ( v i ) i f it i s proven t o t h e s a t i s f a c t i o n of t h e c o u r t t h a t s a i d f a t h e r o r mother, i f a b l e , has n o t contributed t o t h e support of s a i d c h i l d during a period of 1 year before t h e f i l i n g of a p e t i t i o n f o r adoption." (Emphasis added.) H e r e , t h e r i g h t s of t h e n a t u r a l p a r e n t s t o due process of law w e r e properly recognized. The s p e c i f i c procedures i n s e c t i o n 41-3-401, MCA, w e r e complied with. Proper n o t i c e was given t o a p p e l l a n t and her guardian. The f a t h e r of t h e c h i l d w a s n o t known, i s n o t now known, and has been never named on t h e c h i l d ' s b i r t h c e r t i f i c a t e . Appellant, who was p r e s e n t a t t h e hearing of t h e District Court, a l s o had a chance t o r e f u t e t h e a l l e g a t i o n s , b u t she chose n o t t o t a k e advantage of t h e opportunity. The only testimony presented on her behalf w a s by her home economics teacher a t t h e S t a t e Hospital regarding her a b i l i t y i n t h e classroom. W e f i n d t h a t t h e consent of a p p e l l a n t or t h a t of her l e g a l guardian was n o t necessary f o r t h e c o u r t t o o b t a i n j u r i s d i c t i o n i n t h e i n s t a n t case. Turning t o t h e second i s s u e , a p p e l l a n t argues t h a t t h e D i s t r i c t Court abused i t s d i s c r e t i o n i n f i n d i n g t h a t C.M.S. w a s abused, dependent and neglected because t h e f i n d i n g s w e r e n o t supported by s u f f i c i e n t c r e d i b l e evidence. I n addressing t h e duty of a D i s t r i c t Court t o make f i n d i n g s i n an abuse o r n e g l e c t a c t i o n , t h i s Court has recognized t h a t t h e D i s t r i c t Court's f i n d i n g s w i l l enjoy a presumption of c o r r e c t n e s s and w i l l n o t be overturned u n l e s s unsupported by c r e d i b l e evidence that would amount t o a c l e a r abuse of d i s c r e t i o n . I n t h e d e c i s i o n of I n re G . , Youths i n Need of Care (1977), Mont. , 570 P.2d 1110, 1112, 34 St.Rep. 1179, 1181-82, w e s t a t e d : "This Court i s mindful t h a t t h e primary duty of deciding t h e proper custody of t h e c h i l d i s t h e t a s k of t h e D i s t r i c t Court. A s a r e s u l t , a l l reasonable presumptions a s t o t h e correctness of t h e determination by the D i s t r i c t Court w i l l be made. [ C i t a t i o n s omitted. I Due t o t h i s presumption of correctness, t h e D i s t r i c t Court findings w i l l n o t be disturbed on appeal unless t h e r e is a mistake of law o r finding of f a c t n o t supported by c r e d i b l e evidence t h a t would amount t o a clear abuse of d i s c r e t i o n . " A t i s s u e here i s whether t h e r e was s u f f i c i e n t c r e d i b l e evidence t o support t h e finding t h a t C.M.S. was "abused, de- pendent and neglected." Those t e r m s a r e defined under sec- t i o n 41-3-102, MCA: " ( 2 ) 'Abuse' o r 'neglect' means: " (b) t h e commission o r omission of any a c t o r a c t s by any person i n t h e s t a t u s of parent, guardian, o r custodian who thereby and by rea- son of physical o r mental incapacity o r other cause refuses, o r , with s t a t e and p r i v a t e a i d and assistance, i s unable t o discharge t h e d u t i e s and r e s p o n s i b i l i t i e s f o r proper and necessary subsistence, education, medical, o r any o t h e r care necessary f o r t h e youth's phy- s i c a l , moral and emotional well being. " ( 3 ) 'Dependent youth' means a youth who i s abandoned, dependent upon t h e public f o r sup- p o r t , d e s t i t u t e , without parents o r guardian o r under t h e c a r e and supervision of a s u i t a b l e a d u l t , o r who has no proper guidance t o provide f o r h i s necessary physical, moral, and emotional w e l l being . . ." W e f i n d t h a t t h e D i s t r i c t Court d i d n o t abuse i t s d i s c r e t i o n i n finding t h a t C.M.S. w a s "abused, dependent and neglected" and t h a t t h e r e was s u f f i c i e n t c r e d i b l e evidence t o support t h e findings of t h e court. With r e s p e c t t o t h e finding of "abuse o r neglect," w e take j u d i c i a l n o t i c e of t h e order f i l e d i n t h i s case t h a t a p p e l l a n t w a s confined t o t h e S t a t e Hospital i n 1973; t h a t she has suffered from an organic b r a i n dysfunction since b i r t h ; t h a t she experiences delusions; and, t h a t her condition i s diagnosed as paranoid schizophrenia with no hope of s i g n i f i c a n t improvement in t h e foreseeable f u t u r e . The record a l s o d i s c l o s e s t h a t a p p e l l a n t w a s p r e s e n t a t t h e hearings held by t h e D i s t r i c t Court regarding SRS's p e t i t i o n , b u t made no attempt t o personally t e s t i f y a s t o her p a r e n t a l f i t n e s s . The only testimony presented on behalf of a p p e l l a n t regarding her p a r e n t a l f i t n e s s w a s t h a t of a home economics teacher from t h e S t a t e Hospital who t e s t i f i e d t h a t a p p e l l a n t had successfully completed a home economics course, one a s p e c t of which w a s c h i l d development. W e b e l i e v e t h a t , under t h e s t a t u t e , a p p e l l a n t ' s confinement is a s u f f i c i e n t a c t of omission which, by reason of physical and mental incapacity, renders a p p e l l a n t unable t o discharge t h e d u t i e s and r e s p o n s i b i l i t i e s necessary f o r t h e c h i l d ' s well-being. With r e s p e c t t o t h e D i s t r i c t C o u r t ' s f i n d i n g t h a t C.M.S. w a s a dependent youth, t h e record d i s c l o s e s t h a t a p p e l l a n t i s possessed of a $40,000 e s t a t e and t h a t she has contributed i n no s u b s t a n t i a l way t o t h e support of C.M.S. Rather, t h e support which has been given has been provided by SRS and t h e f o s t e r parents. F i n a l l y , t h e record i n d i - c a t e s t h a t a p p e l l a n t , because of her mental condition, could n o t provide proper guidance f o r C.M.S.'s necessary physical, moral and emotional well-being. Appellant i s demanding every f a c e t of s t a t u t o r y scheme be severely and s t r i c t l y s c r u t i n i z e d t o p r o t e c t t h e r i g h t s of t h e n a t u r a l parent. However, proceedings conducted under t h e "abuse s t a t u t e " demand and provide a c e r t a i n amount of e l a s t i c i t y t o t h e court. Every c a s e i s unique and must be d e a l t with on i t s own m e r i t s . Absent a c l e a r abuse of d i s c r e t i o n t h e d e c i s i o n of t h e D i s t r i c t Court is t o be upheld. There i s no such abuse of d i s c r e t i o n here. The D i s t r i c t Court i n a l l such hearings has an obliga- t i o n t o balance t h e r i g h t s of t h e mother and t h e c h i l d . And while t h e a p p e l l a n t ' s r i g h t s are of g r e a t import, it i s n o t an a b s o l u t e r i g h t . I n a r e c e n t m a t t e r from t h e D i s t r i c t of Columbia, Matter of t h e Adoption of J.S.R. (D.C. 1977), 374 A.2d 860, 863, t h e c o u r t held: "The r i g h t of a n a t u r a l p a r e n t t o r a i s e o n e ' s c h i l d i s a fundamental and e s s e n t i a l one which i s c o n s t i t u t i o n a l l y protected. [ C i t a t i o n s omitted.] However, it i s n o t an a b s o l u t e one. The s t a t e has both t h e r i g h t and t h e duty t o p r o t e c t minor c h i l d r e n through j u d i c i a l d e t e r - minations of t h e i r i n t e r e s t . To t h i s end t h e s t a t e has a s u b s t a n t i a l range of a u t h o r i t y t o p r o t e c t t h e welfare of t h e c h i l d . [ C i t a t i o n s omitted. 1 " See a l s o Matter of Guardianship of Doney (1977), M o n t . , 570 P.2d 575, 577, 34 St.Rep. 1107, 1 1 1 0 ; Matter of Guardianship of Aschenbrenner (1979), Mon t . , 597 P.2d 1156, 1160, 36 St.Rep. 1282, 1284; Boyer v. Boyer (Ohio This Court r e c e n t l y faced a s i m i l a r contention. I n t h e Matter of Inquiry i n t o J.J.S., Youth i n Need of Care (1978), Mont. , 577 P.2d 378, 381, 35 St.Rep. 394, 397, t h e Court held: " W e f i n d no abuse of d i s c r e t i o n by t h e D i s t r i c t Court i n awarding permanent custody t o SRS. I n determining t h e custody i s s u e , t h e b e s t i n t e r e s t s of t h e c h i l d i s t h e paramount concern. I n t h e Matter of Henderson (1975), 168 Mont. 329, 342 P.2d 1204, t h i s Court said: "'What is, o r what i s n o t i n t h e b e s t i n t e r e s t of t h e c h i l d depends upon t h e f a c t s and circum- s t a n c e s of each case. The r e s p o n s i b i l i t y of de- c i d i n g custody i s a d e l i c a t e one which i s lodged with t h e d i s t r i c t court. The judge hearing o r a l testimony i n such a controversy has a superior advantage i n determining t h e s a m e , and h i s deci- s i o n ought n o t t o be disturbed except upon a c l e a r showing of abuse of d i s c r e t i o n . ' [ C i t a t i o n s omitted . I " While it is t h e function of t h i s Court whenever pos- s i b l e t o p r o t e c t t h e u n i t y of t h e family under s e c t i o n 41-3- 101, MCA, t h i s is n o t a f a c t o r i n t h i s cause. Here t h e c h i l d has never had a v i a b l e parent-child r e l a t i o n s h i p with t h e mother. I n f a c t , t h e c h i l d has never seen o r been a s s o c i a t e d with her n a t u r a l mother. She knows b u t one family--her f o s t e r home. I t i s t h e only family r e l a t i o n s h i p t h e c h i l d has. Indeed, her f o s t e r p a r e n t s have w i l l i n g l y undertaken t h e o b l i g a t i o n s of r a i s i n g t h i s c h i l d , and what a p p e l l a n t n e g l e c t s t o r e a l i z e is t h a t t h e o b l i g a t i o n s t h a t a r e a t t e n d a n t with parenthood have never i n any way been assumed by a p p e l l a n t , t h e n a t u r a l mother. This Court i n a r e c e n t decision, I n re G . , supra, 570 P.2d a t 1 1 1 4 , 34 St.Rep. a t 1179, set f o r t h t h e c r i t e r i a which w i l l be considered i n dependent and n e g l e c t cases. There we noted: "Children have a r i g h t under t h e ' b e s t i n t e r e s t test' t o r e c e i v e normal physical and emotional development. By looking a t t h e t o t a l i t y of t h e circumstances, t h e c o u r t may determine what i s t h e c h i l d ' s ' b e s t i n t e r e s t . ' " Viewing a l l t h e testimony presented, one r e l e v a n t f a c t emerges: The c h i l d i s an e s s e n t i a l p a r t of a family. She has developed an emotional and physical t r u s t f o r her f o s t e r parents. The r e l a t i o n s h i p t h a t she has with her " b r o t h e r s and s i s t e r s " can only be developed i n a loving environment. This c h i l d i s undergoing a normal and physical development within a proper family home s i t u a t i o n , and it i s i n her b e s t i n t e r e s t t h a t she remains i n same. The c o u r t recognized t h a t t h e r e w e r e competing r i g h t s between t h e c h i l d and t h e mother here. The c o u r t appointed counsel t o r e p r e s e n t t h e c h i l d ' s i n t e r e s t s . After reviewing a l l of t h e f a c t s and evidence, t h e r e can be b u t one con- clusion--the b e s t i n t e r e s t s of C.M.S. can only be served by affirming t h e judgment of t h e D i s t r i c t Court. The judgment of the District Court is in accord with its findings of fact and conclusions of law and is affirmed. We concur: | November 15, 1979 |
3dbddbe1-a02e-414a-ae15-6f4ffd66f04c | STAMATIS v BECHTEL POWER CORP | N/A | 14756 | Montana | Montana Supreme Court | No. 14756 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 ODESSEY S. STAMATIS (Fatal) , JESSIE M. STAMATIS, Claimant and Appellant, BECHTEL POWER CORPORATION, Employer, and INDUSTRIAL INDEMNITY COMPANY, Defendant and Respondent. Appeal from: Workers' Compensation Court Honorable William E. Hunt, Judge presiding. Counsel of Record: For Appellant: Lewis E. Brueggemann argued, Billings, Montana For Respondent : Marra, Wenz, Iwen and Johnson, Great Falls, Montana Charles R. Johnson argued, Great Falls, Montana Submitted: September 20, 1979 Decided: OCT 2 : 7979 M r . Chief J u s t i c e Frank I. Haswell d e l i v e r e d t h e Opinion of t h e Court. Claimant a p p e a l s from a judgment of t h e Workers' Compensation Court denying Workers' Compensation b e n e f i t s f o r t h e d e a t h o f h e r husband. W e a f f i r m . C l a i m a n t ' s husband, Odessey S. S t a m a t i s , was employed a s a n e l e c t r i c i a n by B e c h t e l Power C o r p o r a t i o n a t a p l a n t n e a r C o l s t r i p , Montana, on March 3 , 1976. H e c o l l a p s e d on t h e job, was t a k e n by ambulance t o a F o r s y t h h o s p i t a l , and was pronounced dead on a r r i v a l . H i s widow f i l e d a c l a i m f o r b e n e f i t s under t h e Workers' Compensation A c t a g a i n s t I n d u s t r i a l I n s u r a n c e Company, B e c h t e l ' s P l a n I1 c a r r i e r . A h e a r i n g was h e l d b e f o r e t h e Workers' Compensation Court a t which much c o n f l i c t i n g e v i d e n c e was i n t r o d u c e d by t h e r e s p e c t i v e p a r t i e s . Roderick S w i t z e r , a f e l l o w employee o f d e c e d e n t , t e s t i f i e d t h e y s p e n t t h e morning of h i s d e a t h i n s t a l l i n g c o n d u i t s e c t i o n s weighing 1 0 t o 1 5 pounds a p i e c e and p u l l i n g s e v e r a l wires through 50 to 100 f e e t o f t h e c o n d u i t . S w i t z e r i n d i c a t e d t h i s was v e r y s t r e n u o u s work i n v o l v i n g l i f t i n g w i t h y o u r whole body on a p u l l from below y o u r k n e e s and c r a w l i n g through a s p a c e of a b o u t t h r e e f e e t between t h e f l o o r and bottom o f a g e n e r a t o r i n t h e work a r e a . S w i t z e r t e s t i f i e d he d i d n o t t a k e h i s lunch b r e a k w i t h d e c e d e n t , b u t t h a t when h e r e t u r n e d t o work t h e r e a f t e r he saw decedent c o l l a p s e a s h e picked up some m a t e r i a l s from a work bench. The o t h e r v e r s i o n o f what happened on t h e day of d e c e d e n t ' s d e a t h came from t h e testimony o f Gordon Z i e g e l d o r f , a f e l l o w employee, and Michael L a s l o v i c h , d e c e d e n t ' s foreman. Z i e g e l d o r f t e s t i f i e d t h a t he and d e c e d e n t worked t o g e t h e r t h a t day c a r r y i n g l i g h t f i x t u r e s from a warehouse i n t o t h e B e c h t e l p l a n t and c l e a n i n g them p r e p a r a t o r y t o i n s t a l l a t i o n . This activity involved walking 50 to 100 yards from the plant to the warehouse, carrying a single light fixture weighing about 20 pounds back to the plant each trip, loading the fixtures on an elevator that transported them to the 120 foot level of the plant, and cleaning them with soap and water at the 120 foot level. Ziegeldorf testified the work was not strenuous, did not involve heavy lifting, and did not involve climbing stairs. According to Ziegeldorf, decedent at no time complained that the work was tiring or causing him any physical discomfort. Decedent and Ziegeldorf took a coffee break at about 2:30 in the afternoon and as they were returning to work thereafter, decedent collapsed while walking ahead of Ziegeldorf and fell back into his arms. Foreman Laslovich recalled that decedent worked with Ziegeldorf on the day of his death stocking and cleaning light fixtures. Laslovich testified that he saw decedent collapse in Ziegeldorf's arms as the men walked back to work following the afternoon coffee break. He stated that it was customary to assign decedent nonstrenuous jobs like bringing up fixtures because of decedent's age. The foreman never recalled assigning decedent to install conduit or pull wire, but admits decedent could have performed that type of work since his job as foreman did not require him to continuously supervise the men under him. After decedent collapsed, first aid consisting of cardiopulmonary resuscitation was administered on the job site. Decedent was taken by ambulance to a hospital in Forsyth, a distance of about 35 miles. Dr. Deone Hanson pronounced decedent dead on arrival at 4 : 4 5 p.m. The Rosebud County coroner examined the body and determined the cause of death to be acute coronary thrombosis. The coroner testified his examination was not extensive enough to rule out the p o s s i b i l i t y t h a t d e c e d e n t d i e d o f myocardial i n f a r c t i o n r a t h e r t h a n c o r o n a r y thrombosis. N o a u t o p s y was performed, The body was cremated. The r e c o r d shows t h a t d e c e d e n t w a s a l a r g e man s t a n d i n g 6'2" and weighing 250 pounds. H e was 54 y e a r s o l d a t t h e t i m e o f h i s d e a t h and had no p a s t medical h i s t o r y of h e a r t d i s e a s e . H e smoked t w o p a c k s o f c i g a r e t t e s a day and had been smoking s i n c e a g e 13. In t h e month p r e c e d i n g h i s d e a t h , d e c e d e n t had worked 21 s h i f t s t o t a l l i n g 190 h o u r s f o r a n a v e r a g e of a b o u t n i n e h o u r s p e r s h i f t . The S a t u r d a y b e f o r e he d i e d , February 28, he worked a n e i g h t - h o u r o v e r t i m e s h i f t . On t h e day of h i s d e a t h , t h e t e m p e r a t u r e a t C o l s t r i p , a few miles from t h e B e c h t e l p l a n t r e c o r d e d a h i g h of +18OF and a l o w of -18OF, The t e m p e r a t u r e i n s i d e t h e p l a n t was somewhere between +40°F and +50°F. The medical t e s t i m o n y c o n f l i c t e d a t s e v e r a l p o i n t s . D r . Walter Degnan, a c a r d i o l o g i s t , t e s t i f i e d by d e p o s i t i o n t h a t d e c e d e n t d i e d o f what is m e d i c a l l y known a s sudden d e a t h . Sudden d e a t h o c c u r s when t h e p a t i e n t d i e s w i t h i n s e v e r a l h o u r s of t h e o n s e t of symptoms and is s t a t i s t i c a l l y r e l a t e d t o c o r o n a r y d i s e a s e 80 p e r c e n t o f t h e t i m e . According t o D r . Degnan sudden d e a t h f r e q u e n t l y o c c u r s w i t h o u t t r a u m a t i c c a u s e or p r e v i o u s symptoms. The d o c t o r t e s t i f i e d t h a t w h i l e u n u s u a l s t r a i n i n c r e a s e s t h e p r o b a b i l i t y of sudden d e a t h , normal e x e r t i o n w i l l n o t produce a h e a r t a t t a c k . H e d i d n o t f e e l t h a t t h e t e m p e r a t u r e t h e day of d e c e d e n t ' s d e a t h had any r e l a t i o n s h i p t o h i s d e a t h . Responding t o a h y p o t h e t i c a l q u e s t i o n based on t h e e f f e c t o f s t o c k i n g and c l e a n i n g l i g h t f i x t u r e s by a man o f d e c e d e n t ' s a g e and p h y s i c a l c o n d i t i o n , D r . Degnan t e s t i f i e d t h a t e x e r t i o n w a s n o t a c a u s a l f a c t o r i n h i s d e a t h . D r . P a t r i c k Byorth, a s p e c i a l i s t i n i n t e r n a l medicine, was also deposed. He agreed that decedent died from sudden death and that sudden death is related to a coronary incident in 80 percent of the cases. However, his opinion was that vigorous physical activity precipitated the heart problems. Responding to a hypothetical question encompassing the facts testified by witness Switzer, Dr. Byorth stated physical exercise was a probable contributing factor to decedent's death. When presented with a hypothetical question positing facts similar to the testimony of witnesses Ziegeldorf and Laslovich, Dr. Byorth testified that the physical exertion involved in decedent's activities contributed to precipitating the heart attack. The doctor further testified that working in cold weather could contribute to a heart attack. The essence of the findings of fact by the Workersv Compensation Court was that decedent had been engaged in the task of cleaning light fixtures in the few hours prior to his collapse after a coffee break at approximately 2:45 p.m. on March 3, 1976, and that his activity was not of a strenuous physical nature, nor was it unusual, nor was the outside air temperature a factor in precipitating his collapse. The gist of the court's conclusions of law was that the preponderance of competent and credible evidence failed to sustain a conclusion that decedent suffered a compensable injury as defined in the Workersv Compensation Act. Judgment was entered denying claimant any benefits thereunder or attorney fees. Two issues are presented for review in this appeal: 1 . The sufficiency of the evidence to support the findings of the Workers1 Compensation Court. 2 . Did decedent suffer a compensable injury under the Workers' Compensation Act? The test of sufficiency of the evidence is whether there is substantial evidence supporting the court's findings of fact. Head v . Larson (1979), Mont. , 592 P.2d 507, 510, 36 St.Rep. 571, 575; Strandberg v . Reber Company (1978), Mon t . , 587 P.2d 18, 20, 35 St.Rep. 1742, 1745; Jensen v . Zook Bros. Construction Co. (1978), Mon t . , 582 P.2d 1191, 1193, 35 St.Rep. 1066, 1068. This Court will not substitute its judgment for that of the Workers' Compensation Court concerning the credibility of the witnesses or the weight to be given their testimony. Dumont v . Wickens Bros. Construction Co. (1979), Mont. , 598 P.2d 1099, 1106, 36 St.Rep. 1471, 1479-1480; Steffes v . 93 Leasing Co., Inc. Mon t . (1978) I , 580 P.2d 450, 452-453, 35 St.Rep, 816, Mont . 818; Crittendon v. City of Butte (1977, , 559 P.2d 816, 817,/34 St.Rep. 3, 4 . Thus, where the findlngs are b a - o n conflicting evidence, our function of review is confined to determining whether there is substantial evidence supporting such findings. Jensen, supra, 582 P.2d at 1194. Conversely, our function is not to determine whether there is sufficient evidence to support contrary findings. Here the evidence is conflicting concerning the cause of death. Claimant's witnesses testified decedent performed strenuous physical activity on the job prior to his death and the exertion had a causal connection with his death. Respondent's witnesses testified that decedent did nothing strenuous or unusual and that his activities on the job in the hours preceding his death had no causal relationship to his collapse and subsequent death. The Workers' Compensation Court found respondents' witnesses more credible, gave greater weight to their testimony, and entered findings accordingly. Substantial evidence supporting such findings is found in the testimony of Ziegeldorf, Laslovich, and Dr. Degnan, summarized previously. The second issue for review is whether decedent suffered a compensable injury under the Workers' Compensation Act. This question has two facets: (1) Did decedent suffer an injury as defined by the Act? (2) Was such injury causally related to decedent's death? Dumont, supra, 598 P.2d at 1106-1109. The Act in pertinent part defines an injury in this language: "'Injury' or 'injured' means: "(1) a tangible happening of a traumatic nature from an unexpected cause or unusual strain re- sulting in either external or internal physical harm and such physical condition as a result therefrom . . ." Section 39-71-119(1), MCA. We have previously interpreted this language to mean that a claimant can recover if the physical harm suffered is unusual either from the standpoint of cause or effect. Love v . Ralph's Food Store (1973), 163 Mont. 234, 242, 516 ~ . 2 d 598, 602; Robins v . Ogle (1971), 157 Mont. 328, 333, 485 P.2d 692, 695; Jones v. Bair's Cafe (1968), 152 Mont. 13, 19, 445 P.2d 923, 926. However, claimant must still prove a tangible happening of a traumatic nature. Dumont v . Wickens Bros. Construction Co., supra, 598 P.2d at 1108; Erhart v . Great Western Sugar Company (1976), 169 Mont. 375, 380-381, 546 P.2d 1055, 1058; Hurlbut v . Vollstedt Kerr Company (1975), 167 Mont. 303, 306-307, 538 P.2d 344, 346. We have explained the meaning of a tangible happening of a traumatic nature in these words. "A tangible happening must be a perceptible hap- pening. [Citations omitted.] Some action or incident, or chain of actions or incidents, must be shown which may be perceived as a contribut- ing cause of the resulting injury. This court has found neurosis compensable, but a tangible, real happening must be the cause of the condition [Citations omitted.] . . . In the recent case of Love where a gradual buildup of back pain was found compensable, this Court emphasized two spec- ific incidents of strain were perceptible from the record." Erhart, supra, 169 Mont. at 381. Here, there is no tangible happening of a traumatic nature. The Workers' Compensation Court found that claimant had been engaged in cleaning light fixtures preceding his collapse and that this activity was not of a strenuous physical nature, nor unusual, nor was the outside air temperature a factor in precipitating his collapse. Taking this view of the facts, there is simply no evidence in the record of any real, perceptible or identifiable incident, action or happening of a traumatic nature within the definition of injury in the Act. Finding no injury, the required causal connection likewise fails. Accordingly, we hold there is no compensable injury as defined in the Workers' Compensation Act. Affirmed. Chief Justice Justices I | October 23, 1979 |
ed76afcb-7000-4843-a5a0-515d3862f2b5 | Lucas v. Stevenson | 2013 MT 15 | DA 12-0165 | Montana | Montana Supreme Court | DA 12-0165 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 15 TAMARA LUCAS and JAMES LUCAS, Plaintiffs and Appellants, v. MAT STEVENSON, Defendant and Appellee. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-11-1484 Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD: For Appellant Tamara Lucas: Tamara Lucas (Self-Represented), Kalispell, Montana For Appellee: Reid J. Perkins, Worden Thane P.C., Missoula, Montana Submitted on Briefs: November 28, 2012 Decided: January 29, 2013 Filed: __________________________________________ Clerk January 29 2013 2 Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Tamara Lucas1 (Tamara) appeals from an order of the Fourth Judicial District Court, Missoula County, granting summary judgment to attorney Mat Stevenson (Stevenson) on a legal malpractice claim brought by Tamara and her husband, James Lucas (James). We affirm. ISSUE ¶2 Tamara raised two issues on appeal. The first issue concerned whether the District Court should have allowed Tamara to supplement the record by introducing additional evidence in the form of CDs and photographs. We denied Tamara’s motion to supplement the record in this Court’s August 21, 2012 order. We restate the sole issue remaining on appeal as follows: ¶3 Whether the District Court erred in granting Stevenson’s summary judgment motion. FACTUAL AND PROCEDURAL BACKGROUND ¶4 This case involves various allegations of legal malpractice. On October 28, 2004, Tamara was involved in a car accident in Flathead County. She was arrested and charged with driving under the influence of alcohol. James went to see Tamara at the Kalispell Police Department booking area. According to police officers, James was under the 1 Tamara, who is not an attorney, purports to bring this appeal on behalf of herself and her husband, James Lucas. However, Tamara is a self-represented litigant. Therefore, she may only act on her own behalf and may not bring claims on behalf of any other person or represent any other person before this Court. Accordingly, we consider only Tamara’s individual claims on appeal. See Weaver v. Graybill, Ostrem, Warner & Crotty, 246 Mont. 175, 178, 803 P.2d 1089, 1091 (1990). 3 influence of alcohol or drugs and was highly confrontational. The police officers told James that he could visit his wife once she was booked and transported to the Flathead County Department of Corrections. James refused to leave and was arrested for obstructing a peace officer. James attempted to kick one of the police officers in the face while the officer searched him for weapons. He made contact with the officer’s shoulder and chest and was subsequently taken to the ground by the officers. James alleged that the police officers slammed his head on the concrete floor, causing him permanent brain damage and injuries. James was charged with the additional offenses of disturbing the peace and felony assault on a peace officer. ¶5 The Lucases hired Stevenson to defend James against the criminal charges. Stevenson later agreed to represent the Lucases in a civil action against the police officers involved in the altercation and the City of Kalispell. ¶6 On June 23, 2005, the Lucases jointly filed for Chapter 13 bankruptcy. Their bankruptcy case was subsequently converted to a Chapter 7 proceeding on March 15, 2006. Richard Samson (Samson) was appointed trustee for the bankruptcy estate. Penny Leatzow (Leatzow) represented the Lucases in their bankruptcy proceedings. The Lucases originally disclosed their civil lawsuit as an asset under Schedule B in the bankruptcy proceedings, but later amended the Schedule to remove the claim. The Lucases told Samson that they had discussed a possible civil action against the City of Kalispell with several different attorneys and law firms and believed that their claims were without merit based on those consultations. The bankruptcy action was closed on June 21, 2006. 4 ¶7 According to Stevenson, his representation of the Lucases concerning their civil claims began in the fall of 2006. On October 30, 2006, Stevenson filed a complaint on behalf of James against defendants Kalispell Police Department, the City of Kalispell, and the individual police officers that arrested James. Stevenson filed an amended complaint on January 23, 2007, that included Tamara as a plaintiff. The amended complaint included claims of assault and battery, negligence, negligence per se, negligent hiring and training, negligent supervision, and loss of consortium. Stevenson associated attorney John Velk (Velk) to assist with the litigation. ¶8 In January 2009, Stevenson and Velk first learned of the Lucases’ bankruptcy proceeding and contacted Samson to inquire whether the Lucases’ pending civil case might be an asset of the bankruptcy estate. Upon discovering that the Lucases were pursuing their personal injury claims in spite of their previous representations to the contrary, Samson moved to reopen the bankruptcy proceedings so that the previously undisclosed asset could be administered. The bankruptcy court reopened the case on February 2, 2009. ¶9 Once the civil action was determined to be an asset of the bankruptcy estate, Samson asked Stevenson and Velk to stop working on the case for Tamara and James. Samson filed an application to appoint Stevenson and Velk as attorneys for the trustee to continue to pursue the case against the Kalispell Police Department, the City of Kalispell, and the individual police officers. The bankruptcy court approved the appointment on October 26, 2009. From that date forward, Stevenson and Velk represented the trustee and the bankruptcy estate. 5 ¶10 Stevenson and Velk held a settlement conference with the City of Kalispell. The bankruptcy estate agreed to accept $98,000 as a full and final settlement. Leatzow negotiated on behalf of the Lucases to determine how much of the settlement would be paid to the Lucases. On January 23, 2010, Samson filed a Notice of Trustee’s Motion to Approve Compromise Settlement with the bankruptcy court. The Notice was sent to Leatzow and stated that any objection to the settlement must be raised within 14 days. The bankruptcy court approved the settlement without objection on February 10, 2010. On March 16, 2010, the Lucases received a check for $31,947.68, with the remaining settlement funds being paid to creditors, trustee fees, and attorney fees and costs. ¶11 On November 16, 2011, Tamara filed a complaint as a self-represented litigant in Montana’s Fourth Judicial District Court, Missoula County, alleging that Stevenson failed to press criminal charges against the police officers, never took depositions of the police officers, failed to investigate and prove James’ innocence, failed to add Tamara as a plaintiff, and mismanaged litigation funds. Tamara requested $700,000 for Stevenson’s alleged violations of the rules of professional conduct. Stevenson filed a motion to dismiss and motion for summary judgment. The District Court held a hearing on the summary judgment motion on February 14, 2012. After hearing the parties’ arguments, the District Court granted summary judgment to Stevenson on February 16, 2012. Tamara appeals from the grant of summary judgment. STANDARDS OF REVIEW ¶12 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. Estate of Willson 6 v. Addison, 2011 MT 179, ¶ 11, 361 Mont. 269, 258 P.3d 410. Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3). DISCUSSION ¶13 Did the District Court err in granting Stevenson’s motion for summary judgment? ¶14 The District Court determined that the Lucases’ civil claims were properly determined to be an asset of the bankruptcy estate. The District Court further concluded that Stevenson did not represent the Lucases at the time the claims were settled, and therefore they had no standing to bring a legal malpractice claim against him. Relying on the Notice of Trustee’s Motion to Approve Compromise Settlement and the accompanying certificate of service, the District Court rejected the Lucases’ argument that they did not receive notice of the settlement. ¶15 On appeal, Tamara reiterates her arguments that Stevenson committed legal malpractice in the following ways: he never investigated James’ incident at the police station, he scared the Lucases into pleading no contest in the criminal matter by saying they would not get a fair trial in Kalispell, he never deposed the police officers, he did not press charges against the police for assault, he did not frame the Lucases’ civil suit in terms of civil rights and police brutality, he allowed the statute of limitations to expire, he stole money meant for James’ doctor bills, and nothing was sent to Tamara to allow her to contest the settlement. Stevenson maintains that the Lucases lack standing to assert their claims because he owed them no duty at the time of the settlement agreement. 7 Stevenson further contends that the Lucases waived their right to object to the settlement agreement. Lastly, Stevenson argues that the Lucases are essentially attempting to hold him liable for the alleged malpractice of their bankruptcy attorney, Leatzow. ¶16 Since “standing is a threshold, jurisdictional requirement,” it is where we begin our analysis. Heffernan v. Missoula City Council, 2011 MT 91, ¶ 29, 360 Mont. 207, 255 P.3d 80. The question of standing addresses whether a litigant is entitled to have the court decide the merits of a particular dispute. Chipman v. Northwest Healthcare Corp., 2012 MT 242, ¶ 25, 366 Mont. 450, 288 P.3d 193; Williamson v. Mont. PSC, 2012 MT 32, ¶ 28, 364 Mont. 128, 272 P.3d 71. Under Montana law, the complaining party must clearly allege past, present, or threatened injury to a property or civil right, and the alleged injury must be one that would be alleviated by successfully maintaining the action. Williamson, ¶ 28; Heffernan, ¶ 33. This Court has adopted prudential rules under which a litigant may assert only her own rights. Williamson, ¶ 28; Heffernan, ¶ 33. ¶17 Many of the claims asserted by Tamara against Stevenson must be dismissed for lack of standing. A pro se litigant cannot represent or appear on behalf of another person or entity. Zempel v. Liberty, 2006 MT 220, ¶ 18, 333 Mont. 417, 143 P.3d 123; Weaver v. Graybill, Ostrem, Warner & Crotty, 246 Mont. 175, 178, 803 P.2d 1089, 1091 (1990). Acting as a self-represented litigant, Tamara may only represent herself and may not assert any claims on behalf of her husband, James. Stevenson represented James in relation to the criminal charges, so Tamara lacks standing to seek relief on his behalf. This conclusion precludes consideration of Tamara’s allegations that Stevenson failed to investigate James’ criminal case or mishandled that matter in any other way. 8 ¶18 Standing also prevents our consideration of Tamara’s allegations that relate to the civil action. When the Lucases filed for bankruptcy on June 23, 2005, the filing created a bankruptcy estate that included “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541. Assets of the bankruptcy estate broadly include any of the debtor’s causes of action. Cusano v. Klein, 264 F.3d 936, 945 (9th Cir. 2001). If a cause of action accrued prior to a debtor’s petition date, it is an asset of the bankruptcy estate that must be scheduled. In re Brown, 363 B.R. 591, 604 (Bankr. D. Mont. 2007); Cusano, 264 F.3d at 947. ¶19 The Lucases’ civil claims were an asset of the bankruptcy estate because the claims accrued before the Lucases filed for bankruptcy. See § 27-2-102(1)(a), MCA (“[A] claim or cause of action accrues when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action.”). In fact, the Lucases originally disclosed their civil cause of action as an asset when they filed for bankruptcy, but later decided to remove it from the bankruptcy estate on the representation that it was meritless. In fall 2006, after the bankruptcy case was initially closed, Stevenson began pursuing the Lucases’ civil claims without knowledge of their bankruptcy. ¶20 At all times during Stevenson’s representation and pursuit of the civil cause of action in question, the cause of action was actually the property of the bankruptcy estate and did not belong to the Lucases. Stevenson learned of his clients’ bankruptcy proceedings in January 2009, and was later reassigned to pursue the case on behalf of the 9 bankruptcy estate. Stevenson settled the claims while representing the bankruptcy estate. Any cause of action stemming from his pursuit and settlement of these claims belongs to his client, the bankruptcy estate. ¶21 “For [an individual plaintiff] to have standing, he, rather than the bankruptcy estate, must own the claim upon which he is suing.” Cusano, 264 F.3d at 945. At no time during the pendency of Tamara’s civil action against the City of Kalispell did Tamara actually own the claim she hired Stevenson to pursue. Accordingly, under this anomalous set of facts, we hold that Tamara does not have standing to assert her legal malpractice claims against Stevenson concerning his handling of the civil claims that belonged to the bankruptcy estate at all pertinent times. ¶22 Tamara further alleges that she did not receive notice of the settlement agreement. However, the record shows that the proposed settlement agreement was sent to her bankruptcy attorney, Leatzow, and no timely objections were made. The fact that the Lucases accepted payment of a portion of the settlement funds further undermines Tamara’s argument. Any claims that her attorney failed to inform her of the settlement agreement and did not allow her the opportunity to object, would be matters between Tamara and Leatzow, not Stevenson. ¶23 Tamara’s remaining allegations similarly fail to set forth a prima facie case of legal malpractice or establish a genuine issue of material fact that would preclude summary judgment. Tamara contends that Stevenson violated the rules of professional conduct by engaging in a conflict of interest and mismanaging client funds. We have previously recognized that violation of the Montana Rules of Professional Conduct does 10 not create a private cause of action or a presumption that a legal duty has been breached. See Carlson v. Morton, 229 Mont. 234, 237-38, 745 P.2d 1133, 1135-36 (1987). CONCLUSION ¶24 For the foregoing reasons, we affirm the District Court’s grant of summary judgment in favor of Stevenson. /S/ Patricia O. Cotter We Concur: /S/ Mike McGrath /S/ Beth Baker /S/ Michael E Wheat /S/ Brian Morris | January 29, 2013 |
a97f076c-885a-48e9-ad39-35303e572d9d | STATE v FREEMAN | N/A | 14503 | Montana | Montana Supreme Court | No. 14503 I N THE SUPHEME C O W O F THE STATE O F PKNCZWI 1979 THE S T - O F MXCWA, Plaintiff and Respondent, MICHAEL SaYIT F R E E M A N , Defendant and Appellant. Appsal frm: D i s t r i c t Court of the Thirteenth Judicial D i s t r i c t , Honorable R D b e r t H. FJilson, Judge presiding. Counsel of Record: For Appellant: John L. Adams argued, Billings, rJbntana For Respondent: Hon. Mike Greely, Attorney General, Helena, Mntana Richard Larson, Assistant Attorney General, argued, H e l e n a , Mntana Harold F.Hanser, County Attorney, Billings, Wntana S M t t e d : June 5, 1979 SEF 1 k Decided. Mr. Justice John C. Sheehy delivered the opinion of the Court. This is an appeal by defendant, Michael Scott Freeman, from a judgment of conviction of mitigated deliberate homicide entered in the District Court, Thirteenth Judicial District, Yellowstone County. Defendant was sentenced to ten years inprisonment, with three years suspended. Early in the morning of September 11, 1977, Kirk Nelson and two companions drove in an automobile to the home of Michael Scott Freeman. Nelson had a "bone to pick" with Freeman in that earlier that evening Nelson had been arguing with a man named Larry Foster who imputed to Freeman statements that Freeman had made to Foster concerning Nelson. Nelson arrived at Freeman's home at approximately 2:00 a.m. He walked up to the house alone and knocked on the door. Freeman awakened, answered the door, and Nelson entered the house. Shortly thereafter, the two men who had been waiting in Nelson's car also entered the house. Freeman testified at trial that Nelson threatened him repeatedly, but the two companions testified that no threats were made in their presence in the house. At Nelson's request, the two companions left in Nelson's car. They returned a short time later and found the house empty and Freeman's car gone. Freeman testified that Nelson ordered him to get dressed and accompany him to Raymond Best's house for a meeting with Foster. Freeman claims that Nelson repeatedly threatened to pistol-whip Freeman with the handgun he was carrying. However, at no time did Nelson take the gun out of his jacket. Freeman drove his car to Best's house with Nelson riding in the front passenger seat. He parked the car directly in front of the house and Nelson got out and started to walk toward the gate. Freeman got out of his car slowly, which enabled him to grab a gun he kept hidden under the passenger seat. As Freeman stepped out, he aimed the gun over the hood of the car and shot Nelson in the hip. Freeman fired three more shots in rapid succession as Nelson moved away. Nelson did not fire his weapon. At 2:40 a.m., Freeman walked into the Billings Police Station and told the authorities that he had just shot Nelson. He explained what had happened and was taken into custody. The police searched for Nelson but did not find him. At approximately 6:30 a.m. that morning, David Ramirez discovered Nelson's body on the front porch of the Ramirez house, which is located in the same neighborhood as the Best house. A loaded .357 caliber pistol was found on the body, and several .357 caliber shells. Also, a set of brass knuckles, a razor blade, paint scraper, and a small quantity of marijuana were found in Nelson's pockets. The subsequent autopsy established that Nelson bled to death from the bullet wound in his left hip. On September 12, 1977, Freeman was charged with the crime of deliberate homicide. A trial date of November 17, 1977 was set. However, on November 14, 1977, the Yellowstone County Attorney filed an amended information which included further charges against Freeman of conspiracy to commit homicide and aggravated burglary of Nelson's home. Larry Foster was also charged with these crimes in the amended information. Freeman gave notice of his intent to rely on self- defense on November 16, 1977. Freeman and Foster were arraigned on November 21, 1977. Both men entered pleas of not guilty. -3- On December 5, 1977, Freeman himself filed on his own behalf a "demand for speeatrial or motion to dismiss for lack of evidence" and a further "motion to withdraw court-appointed counsel." A trial date of April 4, 1978, was set for Freeman and Foster, who were to be tried jointly. Prior to trial on February 15, 1978, the District Court heard arguments on Freeman's motions and determined (1) a truth serum test Freeman had requested would be permitted, but the results would be inadmissible as evidence; (2) a special investigator for the defense would be permitted; and (3) a motion for severance of trials would be continued at Freeman's counsel's request. On March 14, 1978, Freeman moved for acquittal due to the lack of speedy trial. On April 4, 1978, at the final pretrial conference, the District Court denied defendanes motions for acquittal for lack of speedy trial and granted his motion for severance of trials. Trial of the charges against Freeman began immediately thereafter. The jury found Freeman guilty of mitigated deliberate homicide on April 11, 1978. The conspiracy charge had previously been dismissed by the court at the close of the prosecutor's case. On April 21, 1978, Freeman was sentenced to ten years in prison, with three years suspended and credit for time served. Larry Foster ultimately entered a plea of guilty to the charge of aggravated burglary of Nelson's home. The remaining charges against him were dismissed on the County Attorney's motion. Freeman timely appealed the judgment of conviction against him and the matter is now before us for decision. -4- Freeman's appeal gives us these issues to consider: (1) Was Freeman denied a speedy trial? (2) Was the jury inadequately instructed on the defense of self-defense? (3) Is there a statutory conflict between the defense of self-defense and the crime of mitigated deliberate homicide? (4) Did the prosecution's presentation of evidence concerning the alleged conspiracy so cloud the jury's mind that Freeman was denied a fair and impartial trial? A speedy trial is a federal and state constitutional right. U.S.Const. Amend. VI; 1972 Mont. Const., Art. 11, 524. When a speedy trial inquiry is triggered, we examine the issue under the balancing test suggested in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The factors in Barker'kave no talismanic qualities; courts must still engage in a difficult and sensitive balancing process" to determine whether a speedy trial has been denied. 407 U.S. at 533. We have followed the Barker test in State v. Tiedemann (1978), Mont. , 584 P.2d 1284, 35 St.Rep. 1705; and State v. Collins (1978), Mont . , 582 P.2d 1179, 35 St.Rep. 993. We held that the balancing test was required after a delay of twelve months in State v. Steward (19751, 168 Mont. 385, 543 P.2d 178; ten months in State ex rel. Sanford v . District Ct. Thirteenth J. D. (1976) , 170 Mont. 196, 551 P.2d 1005; and seven months in Fitzpatrick v . Crist (1974), 165 Mont. 382, 528 P.2d 1322. In Fitzpatrick, we held that a seven-month delay was long enough to shift to the State the burden of explaining the reason for the delay and showing the absence of prejudice. If the date of Freeman's arrest is used as a starting point, the pretrial delay totals 207 days. If the date the - 5- amended information was filed, the time elapsed to the time of trial totals 142 days. The time from Freeman's arrest until trial on the charges consumed approximately seven months. The State contends that the delay should be computed only from the time the amended information was filed. However, such computation of time would be insufficient. Freeman was arrested and placed in jail on September 11, 1977, and remained there until trial, seven months later. He was accused of a crime on the day he was arrested and his right to a speedy trial accrued as of that date. Therefore, the total delay in Freeman's case approximates the delay found in Fitzpatrick, supra, and so the balancing test of Barker must be considered here. Once the burden has shifted to the State to explain the reason for the delay, the question becomes, to whom is the delay to be attributed? For the State, the question is whether the prosecution was pursued with reasonable diligence. State v. Carden (1977), Mont . , 566 P.2d 780, 3 4 St.Rep. 420. Typically, the courts look for "dead time" in which nothing is done by the prosecution in defendant's case. On the other side of the coin, it must be determined what percentage of the delay is chargeable to the defendant and this amount of time must accordingly be deducted from the total delay. The lapse of time from September 11, 1977 to November 14, 1977, when the amended information was filed is explained by the State in this way: Freeman's confession did not reveal the involvement of Larry Foster in the alleged crime. It was not until a subsequent investigation by the police revealed that Nelson's house had been burglarized the same night the shooting had occurred and that Larry Foster was a likely suspect, that the authorities considered the possibility of a conspiracy between Foster and Freeman to commit deliberate -6- homicide. The State had a viable case against Freeman when the original charges were filed. It was not a lack of evidence or inexcusable neglect that delayed the trial. Rather, it was the possibility of a considerably more complicated crime that prompted the State to investigate further and ultimately to file the amended information. Therefore, because the State pursued the prosecution with reasonable diligence, this lapse of time cannot be charged against the State. After the amended information was filed on November 14, 1977, there were several motions presented by defendant, including a motion to withdraw court-appointed counsel that Freeman had earlier filed on December 5, 1977. These motions took up the time of the court and of the prosecution until the time of trial. The motions included a motion of intent to rely on self-defense, a motion for additional time to give notice valid by witnesses, a motion for severance, a motion to suppress the evidence, a motion for disclosure of investigative files, a motion for declaration of possible penalty, a motion for continuance and several others. True, some of these motions were filed by codefendant, Larry Foster, but they involved the same cause and required the court's consideration to rule on such time-consuming motions. Therefore, because the State pursued the prosecution with reasonable diligence and because a large part of the delay was due to the filing and consideration of numerous defense motions, prejudice to Freeman caused by the state cannot be presumed. It is true that Freeman effectively asserted his right to a speedy trial on March 14, 1978, by filing a motion for acquittal for denial of a speedy trial. There is no dispute on this point. - 7- With respect to the fourth Barker factor, whether the delay prejudiced Freeman's case, it must be admitted that Freeman was incarcerated from the time of his arrest until the time of trial. Undoubtedly he experienced anxiety and concern as evidencdby his motions on his own behalf relating to his counsel and for a speedy trial. However, there is no showing by Freeman that he lost essential witnesses or that his right to a fair trial was impaired. "The fourth factor to be considered, the prejudice to the defendant, has no support in the record. Nothing has been brought to our attention that would show the delay hampered the defendant in any way in presenting his defense. Defendant claims the delay caused him concern and anxiety, but these are inherent in any criminal case. Barker v. -- Viilgo, supra, . . . "We find therefore that defendant fails to meet the criteria necessary to show he had been denied a speedy trial by the state. State ex rel. Sanford v. District Court, supra; Barker v. Wingo, supra; State v. Steward (1975) , 168 Mont. 385, 388, 543 P.2d 178, 181." State v. Collins (1978), Mont . I 582 P.2d 1179, 1187, 35 St.Rep. 993, 1003. On balance, it therefore appears the State was diligent in pursuing the prosecution of Freeman's case. Most of the delay is attributable to him and to his codefendant. No prejudice has been shown that would lead us to conclude Freeman has been denied due process by a lack of speedy trial. With respect to whether the court adequately instructed the jury regarding Freeman's defense of self-defense, we have examined the instructions given and those offered and refused in light of those given, and find that the jury in this case was adequately instructed on that point. The court gave the following instructions: "Given Instruction No. 16: "A person is justified in the use of force or threat to use force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force. "However, a person is justified in the use of force which is intended or likely to cause death or serious bodily injury only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself or the commission of a forcible felony. "Given Instruction No. 17: "You are instructed that forcible felony means any felony which involves the use or threat of physical force or violence against any individual, and includes the crimes of kidnaping, assault, unlawful restraint and intimidation. "Given Instruction No. 18: "'Force likely to cause death or serious bodily harm' includes but is not limited to the firing of a firearm in the direction of a person, even though no purpose exists to kill or inflict serious bodily harm. "Given Instruction No. 19: "A person is not guilty of an offense by reason of conduct which he performs under the compulsion of threat or menace of the imminent infliction of death or serious bodily harm, if he reasonably believes that death or serious bodily harm will be inflicted upon him if he does not perform such conduct. "Given Instruction No. 20: "'Serious bodily injury' means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ. " In State v. Collins, supra, 582 P.2d at pp. 1184, 1185, this Court considered objections quite similar to those raised here as to instructions in a self-defense case. In Collins, as here, defendant had been charged with deliberate homicide and the jury convicted him of mitigated deliberate homicide. Defendant contended that he acted in self-defense and that therefore, his actions were justified or exonerated by the circumstances surrounding the death of the decedent. In Collins, we looked to the law on justification or exoneration, and examined the instructions in the light of the applicable statutes establishing such defenses. In doing likewise here, we find that section 45-3-102, MCA, provides : "Use of force in defense of person. A person ---- is justified in the use offorce or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force likely I to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself or another or to prevent the commission of a forcible felony." When court instructions nos. 16 through 20, as we have set forth above, are examined in light of section 45-3-102, MCA, it is apparent that the court fairly and fully instructed the jury on the law relating to justification or exoneration for criminal conduct. As we said in Collins, 582 P.2d at pp. 1184, 1185: ". . . Using the test applied in State v. Porter (1964), 143 Mont. 528, 539, 391 P.2d 704, the instructions given on justifiable force gave the defendant ample opportunity to expound to the jury in argument his theory with respect to the use of force as self- defense against an unlawful act." We will not set out in this opinion Freeman's offered instructions nos. 2, 10, and 18, refused by the court, which Freeman now contends were necessary in connection with his defense of justification or exoneration. It is enough to say that we have examined these instructions, and they would not have added substantially anything that was not already said by the court in its instructions on the same subject. Nothing appears to us, from the instructions given, to indicate that Freeman or his counsel, was prevented in final argument from presenting fully his contentions on self- defense, because the instructions given enabled him fully to state the law to the jury as set forth in the court's instructions: "We have often held that it is not error for a trial court to refuse to give a requested instruction, or by implication a portion thereof, if the instruction's legal theory was adequately covered by the instructions that were given and as long as the rights of the defendant were fully protected. . ." State v. Lagge (1964), 143 Mont. 289, 295, 388 P.2d 792, 795. Freeman also maintains that the court improperly refused his offered instruction no. 21, which would have instructed the jury that if the evidence of the case was susceptible to two constructions, one of which was consonant with guilt and the other consonant with innocent, it was the jury's duty to adopt the interpretation which was con- sonent with innocent. That instruction is generally given where the State relies on circumstantial or indirect evidence to prove its case. The instruction has no application where the evidence is direct with respect to the crime charged. The next issue we consider is Freeman's contention that there is a statutory conflict between the definition of mitigated deliberate homicide and a defense of justification or exoneration. Neither the State, nor counsel for Freeman, discussed this issue in brief or oral argument, but we presume that the conflict is the same as the defendant contended existed in State v. Collins, supra. Mitigated deliberate homicide is defined in section 45-5-103, MCA, as a homicide "which would otherwise be deliberate homicide [but] is committed under the influence of extreme mental or emotional stress for which there is a reasonable explanation or excuse. . ." That definition gave rise to a contention in Collins, supra, about which we said: "One other contention of this final issue is that the verdict of the jury is inconsistent with the evidence in that since the defendant was convicted of mitigated deliberate homicide, the jury must have found defendant was acting under extreme mental or emotional stress brought about by the apparent intended attack upon his person and his property. Defendant contends the only possible mental or emotional stress for which there is a reasonable explanation or excuse suggested by the evidence is that defendant feared for himself in the circumstances described. Therefore, defendant argues, if the jury found such stress to exist, it could only be such stress as would permit self-defense. Then defendant returns to his former argument that since the court did not instruct the jury that it should acquit the defendant when self-defense was established, the verdict is inconsistent with the evidence. "What this contention of defendant overlooks is that while under the facts of this case the jury could have found defendant was acting under mental or emotional stress brought about by the attack by Gardipee, the jury could also have found the counter-force used by the defendant was so excessive as not to be reasonable and justified. Section 94-3-102, R.C.M. 1947. The jury could have concluded that t k force used in self-defense by defendant, the shooting, was not the action of a reasonable person under the circumstances. In that situation, a verdict of mitigated deliberate homicide is justified. It is not given to us, however, to look into the minds of the jurors to ascertain how they arrived at their verdict. When, as here, we find the jury was fairly instructed, we must leave the weighing of the evidence and determination of the facts to that jury. It is not within our province to set aside the verdict here." 35 St.Rep. at 1005, 582 P.2d at 1187-1188. What we said in Collins, supra, adequately disposes of the contention that there is a statutory conflict between the defense of justification and the crime of mitigated deliberate homicide, where the jury finds in fact that mitigated deliberate homicide was committed. Freeman's final contention is that the presenting of evidence concerning the alleged conspiracy between Freeman and Larry Foster so clouded the jury's mind that Freeman was denied a fair and impartial trial. The charge of conspiracy to commit deliberate homicide was dismissed by the District Court at the close of the State's case. The District Court gave the following instruction to the jury: "Given Instruction No. 3. "You are instructed that the charge of conspiracy to commit deliberate homicide has by the court been dismissed, and is not to be considered by you. Evidence has been received in this Court pertaining to such alleged criminal conspiracy to commit deliberate homicide. You will disregard such evidence and any evidence pertaining to the charge of deliberate homicide as else- where in these instructions defined, and will draw no inferences nor make any surmises from any evidence offered other than the evidence which may pertain to the charge of deliberate homicide. You will consider only the evidence pertaining to the charge of deliberate homicide and the defense of self- defense, and will render your decision of innocence or guilt solely on such evidence." "The 'general rule' is that where the trial judge withdraws improper testimony from the jury's consideration, such an instruction is presumed to cure any error which may have been committed by its introduction." Anderson v. State (Alaska, 1968). 438 P.2d 228, 233 n. 15. The Alaska Supreme Court cites a United States Supreme Court decision, Pennsylvania CO. v. ~ o y (1880), 102 U.S. 451, 459, 26 LoEd- 1411 145. Although the high court decision involved a civil suit, the reasoning is applicable here: ". . . The charge from the court that the jury should not consider evidence which had been improperly admitted, was equivalent to striking it out of the case. The exception to its admission fell when the error was sub- sequently corrected by instructions too clear and positive to be misunderstood by the jury. The presumption should not be indulged that the jury were too ignorant to comprehend, or were too unmindful of their duty to respect, instructions as to matters peculiarly within the province of the court to determine. It should rather be, so far as this court is concerned, that the jury were influenced in their verdict only by legal evidence. Any other rule would make it necessary in every trial, where an error in the admission of proof is committed, of which error the court becomes aware before the final submission of the case to the jury, to suspend the trial, discharge the jury, and commence anew. A rule of practice leading to such results cannot meet with approval." In State v . Gander (1976), 220 Kan. 88, 551 P.2d 797, the jury considered two photographs and a line-up sheet that had not been admitted at trial. When the mistake was discovered the trial judge called the jury into the courtroom and instructed it to disregard the exhibits. The Supreme Court of Kansas said: "It is basic that an admonition to the jury normally cures any prejudice from the improper admission of evidence. (Citing cases.) This is not a case in which 'it cannot be said the jury was not prejudiced' (citing cases), and we thus hold that the instruction cured any error." The judgment of conviction is affirmed. d Justice We Concur: | September 11, 1979 |
fad5edf7-1d56-43f8-914e-5cc136b058df | BOARD OF TRUSTEES v EATON | N/A | 14697 | Montana | Montana Supreme Court | I N THE SUPREME C O U R T O F T H E STATE O F MONTANA N o . 14697 BOARD O F TRUSTEES O F GARFIELD COUNTY HIGH SCHOOL, GARFIELD COUNTY, MONTANA, *. > . Relator and Respondent, I I , 2 a v. L. T H O M A S EATON, Respondent and Appellant. O R D E R PER CURIAM: This Court having considered t h e p e t i t i o n f o r rehearing f i l e d herein by r e l a t o r and respondent, I T I S NOW ORDERED: That p o r t i o n of t h e p e t i t i o n r e l a t i n g t o s t r i k i n g t h e award of a t t o r n e y f e e s to a p p e l l a n t and amending t h e Opinion i n t h i s r e s p e c t i s granted. The f i n a l sentence of t h e Opinion reading, "Damages w i l l a l s o include an amount equal to Eaton's a t t o r n e y f e e s and costs p l u s i n t e r e s t from t h e d a t e of discharge." i s hereby ordered d e l e t e d from t h e Opinion. The p e t i t i o n f o r rehearing i s otherwise denied. D A T E D t h i s /&day of December, 1979. .8, % & , c h i e f J u s t i c e M r . J u s t i c e John C. Sheehy d i d n o t p a r t i c i p a t e i n t h i s decision. No. 14697 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 BOARD OF TRUSTEES OF GARFIELD COUNTY HIGHSCHOOL, GARFIELD COUNTY, MONTANA, Relator and Respondent, L- THOMAS EATON, Respondent and Appellant. Appeal from: District Court of the First ~udicial ~istrict, Honorable M . James Sorte, Judge presiding. Counsel of Record: For Appellant: Pedersen, Herndon, Harper and Munro, Billings, Montana For Respondent: Smith Law Firm, Helena, Montana Cannon and Gillespie, Helena, Montana - Submitted on briefs: August 1, 1979 Decided : pleq 1 e 1979 Filed: , - = Mr. Justice Gene B. Daly delivered the Opinion of the Court. his appeal is from a summary judgment in favor of respondents rendered November 21, 1978, by the First Judi- cial ~istrict Court, County of Lewis and Clark, the Honor- able M. James Sorte, presiding. The Board of Trustees of Garfield County High School (Board), respondents herein, voted to terminate the employ- ment of Thomas Eaton, appellant herein, the principal of the high school, on January 11, 1977, effective June 30, 1977. The executive director of the Montana School Board Asso- ciation informed the Board that because Eaton was not noti- fied of his dismissal in writing, the dismissal was void. At the same time the Board and Eaton were also informed that the 02 endorsement held by Eaton on his teaching certificate did not qualify him to be a county high school principal under section 75-6112, R.C.M. 1947 (now section 20-4-401, MCA) . At a special meeting of the Board called the next day, Eaton was asked to submit his teacher's certificate for inspection. Eaton did so, and it was found that he had an 02 endorsement. The Board thereupon acted to terminate Eaton as county high school principal because he did not have an 03 endorsement as required by the statute and there- fore could not validly hold the position of county high school principal. On June 16, 1977, the Board informed Eaton, in writing, he was being immediately dismissed pur- suant to section 75-6112, R.C.M. 1947 (now section 20-4-401, MCA), because he was not properly certified at the level necessary to be a county high school principal. The Board further inquired of the State Superintendent of Public Instruction whether Eaton was qualified to hold the position as county high school principal. On June 17, 1977, the State Superintendent's office informed the Board that Eaton was qualified as a principal. Eaton appealed from the Board's decision, and on July 21, 1977, a hearing was held before the county superinten- dent of schools. The county superintendent concluded that Eaton was qualified to be principal but that his contract was effectively terminated on June 30, 1977. The county superintendent further held that the Board should make compensation to Eaton for the unused sick leave and unused annual leave for the contract year ending June 30, 1977. Both parties appealed this decision to the State Superintendent. On June 19, 1978, the State Superintendent found that Eaton had been wrongfully discharged and ordered that he be reinstated. The Board petitioned the District Court of Lewis and Clark County for review of the matter, and both parties moved for summary judgment. The Board's motion was granted on the basis of the District Court's finding that Eaton was not qualified as a principal and that the trustees had the power to dismiss him regardless of the unexpired term of his contract. From this summary judgment, Eaton appeals. Two issues face the Court on appeal: 1. Whether the District Court erred in concluding that section 20-4-401, MCA, allowed the Board to summarily dis- miss Eaton. 2 . Whether the District Court erred in not invoking the doctrines of waiver and/or estoppel which would bar the Board from discharging Eaton. This appeal t u r n s on t h e i n t e r p r e t a t i o n of s e c t i o n 20- 4-401, MCA. Subsection (1) of t h a t s e c t i o n states i n per- t i n e n t p a r t : ". . . The t r u s t e e s of a county high school s h a l l employ and appoint a d i s t r i c t superintendent, except t h a t they may employ and appoint a holder of a class 3 teacher c e r t i f i c a t e with a d i s t r i c t superintendent endorsement as t h e county high school p r i n c i p a l i n l i e u of a d i s t r i c t superin- tendent. . ." The District Court found, and a p p e l l a n t admits, t h a t he d i d not have a d i s t r i c t superintendent endorsement on h i s class 03 teacher c e r t i f i c a t e . The D i s t r i c t Court therefore found t h a t appellant w a s n o t q u a l i f i e d t o be a county high school p r i n c i p a l and held t h a t pursuant t o s e c t i o n 20-4- 401(5), MCA, appellant w a s t o be discharged. Section 20-4-401(5), MCA, provides: "At any t i m e t h e class 3 teacher c e r t i f i c a t i o n o r t h e endorsement of t h e c e r t i f i c a t e of a d i s t r i c t superintendent o r a county high school p r i n c i p a l t h a t q u a l i f i e s such person t o hold such p o s i t i o n becomes invalid, t h e t r u s t e e s of t h e d i s t r i c t o r t h e j o i n t board of t r u s t e e s s h a l l discharge such person as t h e d i s t r i c t superintendent o r county high school p r i n c i p a l regardless of t h e unexpired t e r m of h i s con- t r a c t . The t r u s t e e s s h a l l n o t compensate him under t h e t e r m s of h i s c o n t r a c t f o r any ser- v i c e s rendered subsequent t o t h e d a t e of the i n v a l i d a t i o n of h i s teacher c e r t i f i c a t e . " The language of t h e above s t a t u t e i s clear and unam- biguous. Section 20-4-401(1)t MCA, c l e a r l y s t a t e s t h e q u a l i f i c a t i o n s necessary t o be a county high school prin- c i p a l . Section 20-4-401(5), MCA, provides t h a t i f t h e endorsement of t h e c e r t i f i c a t e does n o t q u a l i f y t h e person t o hold such a p o s i t i o n he must be discharged. Appellant's c e r t i f i c a t e d i d n o t have t h e proper endorsement; therefore, according t o the s t a t u t e , t h e Board would normally be re- quired t o discharge him. The f a c t s of t h i s case, however, p r e s e n t a s i t u a t i o n n o t contemplated by t h e l e g i s l a t u r e nor d e a l t with by case law.. A summary of t h e p e r t i n e n t f a c t s follows: (1) s e c t i o n 20-4-401, MCA, was f i r s t enacted a s s e c t i o n 75-6112, R.C.M. 1947, by s e c t i o n 93, Chapter 5, Laws of Montana (1971), and amended i n 1973 by Section 1, Chapter 105, Laws of Montana (1973). (2) Eaton w a s employed under f i v e one-year c o n t r a c t s as county high school p r i n c i p a l of Garfield County High School ending with t h e school year 1976-1977. (3) When Eaton was i n i t i a l l y h i r e d by t h e Board, he posssessed a c l a s s 3 teachers c e r t i f i c a t e , Level 11, with an 02 endorsement (secondary p r i n c i p a l ) i n s t e a d of an 03 endorse- ment ( d i s t r i c t superintendent) . ( 4 ) O n January 11, 1977, t h e Board decided t o terminate Eaton's employment when h i s f i f t h c o n t r a c t expired on June 30, 1977. N o reasons f o r termination w e r e given nor w e r e they required by l a w ( s e c t i o n 20-4-401(3), MCA). Eaton had a c t u a l knowledge of t h i s decision; however, he w a s n o t n o t i f i e d i n w r i t i n g a s required by s e c t i o n 20-4- 401 ( 3 ) , MCA. (5) Following its January 11, 1977, decision, t h e Board immediately a d v e r t i s e d f o r a new county high school prin- c i p a l and subsequently h i r e d one Robert E. Aumaugher t o f i l l t h e p o s i t i o n . The q u a l i f i c a t i o n s set f o r t h i n t h e a d v e r t i s e - ment w e r e i d e n t i c a l t o those held by Eaton and, i n f a c t , Aumaugher possessed only an 02 endorsement on h i s c e r t i f i c a t e . (6) O n June 1 4 , 1977, t h e p a r t i e s w e r e informed by t h e ~ ~ ~ c u t i v e Director of t h e Montana School ~ o a r d s ~ s s o c i a t i o n t h a t t h e n o t i c e of termination given t o Eaton was i n e f f e c - t i v e because it w a s n o t i n writing. It was a t t h i s t i m e a l s o f t h a t t h e Board and Eaton were made aware t h a t an 03 endo~sement, n o t an 02 endorsement, was required by s t a t u t e t o be a county high school p r i n c i p a l . .(7) The Board then c a l l e d a s p e c i a l meeting on June 15, 1977, and asked Eaton t o produce h i s teaching c e r t i f i c a t e . Eaton d i d so, and it w a s found t o have an 02 endorsement, n o t an 03 endorsement. The Board s e n t a letter t o Eaton dated June 16, 1977, s t a t i n g t h a t pursuant t o s e c t i o n 20-4- 401(5), MCA, Eaton's s e r v i c e s were immediately terminated because he d i d n o t have an 03 endorsement on h i s c e r t i f i c a t e . The Board a l s o reevaluated Aumaugher b u t agreed t o re- t a i n him upon h i s assurance t h a t he would have t h e necessary ! . . q u g l i f i c a t i o n s a s set f o r t h i n s e c t i o n 20-2-401(1), MCA, a f t e r h i s s t u d i e s i n J u l y 1977. (8) It i s i n t e r e s t i n g t o note t h a t an 03 endorsement w a s Eaton's merely f o r t h e asking without f u r t h e r study. Eaton, i n f a c t , requested t h a t endorsement, and it was tendered him by t h e Superintendent of Public I n s t r u c t i o n on J u l y 2 1 , 1977. The Board's methodology i n t h i s matter does n o t conform t o t h e procedure envisioned by t h e l e g i s l a t u r e i n s e c t i o n 20-4-401, MCA. I t i s clear t h a t when t h e Board's o r i g i n a l attempt t o terminate Eaton went awry, they sought o u t t h e convenience of s e c t i o n 20-4-401(5), MCA. The Board submits t h a t they d i d n o t become aware of t h i s s t a t u t e u n t i l June 1 4 , 1977. This explanation, however, i s n o t s u f f i c i e n t i n l a w as t h e Board has a duty t o be aware of t h e s t a t u t e s governing such matters. The judgment of the District Court is reversed and the cause is remanded to the District Court with instructions to enter judgment for Thomas Eaton for improper discharge and compute damages in an amount equal to the amount Eaton would have earned in wages and benefits for one year under the terms of his contract at the time of his improper discharge. Damages will also include an amount equal to Eaton's attor- ney fees and costs plus interest from the date of discharge. We concur: 0 C - e f Justice W Q Q X Z W p : ; : ; i c e Daniel J. Shea concurring in part and dissenting I concur in the opinion allowing Thomas Eaton one year's wages and benefits as damages, but I cannot agree that he is entitled, as damages, to recover attorney fees. In the ab- sence of a statute so allowing, or in the absence of court a opinion clearly setting forth new/element of damages to be applied to cases arising under a myriad of circumstances, as they normally do, I cannot agree that attorney fees can be recovered as part of his damages. Justice Mr. Justice John C. Sheehy, deeming himself disqualified, did not participate in this decision. | November 16, 1979 |
7bde6e12-9f3f-4e7e-bc0d-65a4718dd712 | WOLFE v SCHULZ REFRIGERATION | N/A | 14385 | Montana | Montana Supreme Court | No. 14385 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 ROBERT WOLFE and FRANCIS WOLFE, his wife, d/b/a THE MINT BAR, Plaintiffs and Appellants, SCHULZ REFRIGERATION, Defendants and Respondents. Appeal from: District Court of the Fourth Judicial District, Honorable Edward Dussault, Judge presiding. Counsel of Record: For Appellants: Morrison Law Firm, Missoula, Montana Joan Jonkel argued, Missoula, Montana For Respondents: Boone, Karlberg & Haddon, Missoula, Montana Sam Haddon argued, Missoula, Montana -- . ,. . . 3 &A ' = , Filed: Submitted: September 19, 1979 Decided:. . . - ... , , . ., - , . - --- Clerk M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. c his appeal is taken by the p l a i n t i f f s from t h e D i s - t r i c t Court's d e n i a l of p l a i n t i f f s ' motion f o r a new t r i a l following a jury v e r d i c t f o r defendant. The p l a i n t i f f s are t h e owners and operators of t h e Mint Bar i n Polson, Montana. P l a i n t i f f s purchased t h e bar i n February 1969 and managed it a s a partnership u n t i l it was destroyed by f i r e on December 5 , 1974. The f i r e originated i n a small storage room where cleaning m a t e r i a l s w e r e kept and i n which a time clock device w a s located. The t i m e clock served t o r e g u l a t e t h e flow of e l e c t r i c i t y t o t h e beer cooler t o p e r i o d i c a l l y d e f r o s t it. Defendant owns and operates a r e f r i g e r a t i o n sales and service business i n Polson. Defendant's employee replaced t h e t i m e clock mechanism i n p l a i n t i f f s ' bar on August 11, 1973. This replacement required no e l e c t r i c a l wiring and consisted s o l e l y of attaching four w i r e s already i n place t o terminals provided i n t h e t i m e clock mechanism. A t t h e t i m e of t h e o r i g i n a l i n s t a l l a t i o n , the w i r e s from the c i r c u i t breaker box t o t h e t i m e clock were not placed i n conduit pipe. Defendant contends t h a t a t t h e t i m e of replacement he pointed o u t the dangers of t h e unencased wiring t o plain- t i f f s , b u t p l a i n t i f f s deny t h a t t h i s occurred. The absence of conduit eventually allowed the i n s u l a t i o n on t h e w i r e s t o be worn away as a r e s u l t of e i t h e r v i b r a t i o n caused by a compressor u n i t o r by cleaning m a t e r i a l s , such a s mops and brooms, rubbing a g a i n s t t h e w i r e s . With no p r o t e c t i v e covering on t h e w i r e s , t h e c u r r e n t arced which, i n t u r n , caused t h e fire. P l a i n t i f f s entered i n t o a c o n t r a c t f o r f i r e insurance with Transamerica Insurance i n February 1974. A s a condi- t i o n f o r maintaining p l a i n t i f f s a s i t s insureds, Trans- america conducted a f i r e inspection of t h e premises on March 1, 1974. The inspection r e p o r t described t h e e l e c t r i c a l system a s "romex with c i r c u i t breakers and it appears t o be i n good condition." P l a i n t i f f s brought an a c t i o n f o r negligence a g a i n s t defendant t o recover damages caused by the f i r e . Defendant sought t o prove t h a t p l a i n t i f f s w e r e c o n t r i b u t o r i l y negli- gent by f a i l i n g t o remedy t h e dangerous condition of t h e wiring. the c l o s e of t r i a l , the D i s t r i c t Court read s e v e r a l i n s t r u c t i o n s t o t h e jury. Among t h e i n s t r u c t i o n s given w e r e I n s t r u c t i o n Nos. 17 and 23 t o which p l a i n t i f f s objected. I n s t r u c t i o n No. 17 s t a t e d : "Failure on t h e p a r t of e i t h e r P l a i n t i f f t o l o c a t e o r recognize a dangerous condition on t h e premises of t h e Mint B a r i s i n law a form of contributory negligence on t h e p a r t of t h e P l a i n t i f f s i f such f a i l u r e i s a proximate cause of t h e damages com- plained of." I n s t r u c t i o n No. 23 s t a t e d : "If you f i n d from t h e evidence t h a t Transamerica Insurance Company, i n undertaking t o i n s p e c t t h e premises and t o l o c a t e and eliminate any f i r e hazards present, acted on behalf of its insureds, Robert Wolfe and Frances Wolfe, such a c t s of Transamerica are imputed t o i t s insureds, Robert Wolfe and Frances Wolfe." The jury returned a v e r d i c t f o r defendant. P l a i n t i f f s f i l e d a motion f o r a new t r i a l a f t e r t h e v e r d i c t w a s ren- dered, contending t h a t t h e t r i a l c o u r t committed r e v e r s i b l e e r r o r i n i n s t r u c t i n g t h e jury. The t r i a l c o u r t denied t h e motion f o r a new t r i a l and p l a i n t i f f s appealed. I n particu- lar, p l a i n t i f f s challenge jury i n s t r u c t i o n s on t h e i s s u e s of contributory negligence and agency a s being erroneous s t a t e - ments of t h e law. Two i s s u e s are presented t o t h i s Court on appeal: 1. Did t h e D i s t r i c t Court commit r e v e r s i b l e e r r o r i n giving a jury i n s t r u c t i o n which s t a t e d t h a t f a i l u r e on t h e p a r t of p l a i n t i f f s t o l o c a t e o r - recognize a dangerous condi- t i o n on t h e i r premises w a s contributory negligence i f such f a i l u r e w a s a proximate cause of t h e damages? 2. Did t h e D i s t r i c t Court commit r e v e r s i b l e e r r o r i n giving a jury i n s t r u c t i o n which s t a t e d t h a t t h e a c t s of a p a r t y w e r e imputed t o t h e p l a i n t i f f s i f t h e p a r t y acted on behalf of t h e p l a i n t i f f s where t h e r e w a s i n s u f f i c i e n t e v i - dence introduced a t t h e t r i a l regarding t h e elements of agency? This Court has had s e v e r a l occasions t o consider t h e s u b j e c t of a l l e g e d e r r o r i n jury i n s t r u c t i o n s . W e have previously held t h a t a p a r t y has t h e duty of r a i s i n g h i s o b j e c t i o n t o t h e i n s t r u c t i o n a t t h e t i m e of t r i a l o r t h e opportunity i s l o s t . Roberts Realty Corp. v. City of G r e a t F a l l s (1972), 160 Mont. 1 4 4 , 154, 500 P.2d 956, 962. Objec- t i o n s t o i n s t r u c t i o n s n o t r a i s e d i n t h e t r i a l c o u r t cannot be r a i s e d f o r t h e f i r s t t i m e on appeal. Seder v. K i e w i t Sons' Co. (1971), 156 Mont. 322, 330, 479 P.2d 448, 452. W e have a l s o required a p a r t y t o state h i s ground f o r an objec- t i o n with s p e c i f i c i t y . P i c k e t t v. Kyger (1968), 151 Mont. 87, 96, 439 P.2d 57, 62; Kearns v. McIntyre Const. Co. Mont. Rule 51, M.R.Civ.P., provides i n p e r t i n e n t p a r t : "Objections made s h a l l specify and state t h e par- t i c u l a r grounds on which t h e i n s t r u c t i o n i s ob- jected t o and it s h a l l n o t be s u f f i c i e n t i n s t a t i n g t h e ground of such o b j e c t i o n t o s t a t e g e n e r a l l y t h e i n s t r u c t i o n does n o t state t h e l a w o r i s a g a i n s t t h e law, b u t such ground of objec- t i o n s h a l l specify p a r t i c u l a r l y where t h e in- s t r u c t i o n is i n s u f f i c i e n t o r does n o t s t a t e t h e law, o r what p a r t i c u l a r clause t h e r e i n i s ob- jected to." F i n a l l y , w e have determined t h a t , where e r r o r i s alleged i n a p a r t i c u l a r i n s t r u c t i o n , a reviewing c o u r t s h a l l consider t h e i n s t r u c t i o n s i n t h e i r e n t i r e t y . I n Brothers v. Town of Virginia C i t y (1976), 171 Mont. 352, 359, 558 P.2d 464, 468, w e stated: "When determining whether jury i n s t r u c t i o n s w e r e properly given o r refused t h e reviewing c o u r t considers t h e i n s t r u c t i o n s i n t h e i r e n t i r e t y . Furthermore, t h e i n s t r u c t i o n s a r e read i n con- nection with o t h e r i n s t r u c t i o n s given and they a r e considered i n l i g h t of t h e evidence adduced. ( C i t a t i o n omitted. ) Where t h e i n s t r u c t i o n s t o t h e jury i n t h e i r e n t i r e t y state t h e law appli- cable t o t h e case, a p a r t y cannot c l a i m reversi- b l e e r r o r as t o t h e giving o r denying of c e r t a i n i n s t r u c t i o n s . (Citation omitted. ) " I n t h i s case p l a i n t i f f s contend t h a t t h e giving of I n s t r u c t i o n No. 1 7 c o n s t i t u t e d r e v e r s i b l e e r r o r . P l a i n t i f f s maintain t h a t t h e i n s t r u c t i o n was an overbroad statement of t h e l a w i n t h a t it imposed a duty on t h e p a r t of p l a i n t i f f s t o l o c a t e o r recognize a l l dangerous conditions on t h e i r premises. P l a i n t i f f s contend t h a t t h e i n s t r u c t i o n f a i l e d t o mention t h a t t h e law required no more than t h a t of an ordi- n a r i l y prudent person under t h e same circumstances. Plain- t i f f s argue t h a t t h e e r r o r prejudiced t h e i r s u b s t a n t i a l r i g h t s and was n o t cured by the context of other i n s t r u c - t i o n s given. Defendant contends t h a t I n s t r u c t i o n No. 17 was a proper and accurate statement of t h e l a w . I f t h e i n s t r u c t i o n w a s erroneous, defendant argues t h a t t h e e r r o r w a s cured by t h e context of o t h e r i n s t r u c t i o n s and d i d n o t s e r i o u s l y a f f e c t o r prejudice t h e s u b s t a n t i a l r i g h t s of p l a i n t i f f s . I n analyzing these arguments, our a t t e n t i o n i s f i r s t drawn t o t h e grounds upon which p l a i n t i f f s objected t o t h e i n s t r u c t i o n a t t r i a l . There, p l a i n t i f f s s t a t e d : " P l a i n t i f f s o b j e c t . . . on t h e b a s i s t h a t it implies t h a t p l a i n t i f f s a r e a b l e t o l o c a t e and recognize t h e dangerous condition. The evidence uncontroveried before t h e Court i n t h e case i s t h a t n e i t h e r p l a i n t i f f w a s informed of t h e dan- gerous condition, o r t h a t they recognized the dangerous condition, and it i s n o t s u b j e c t t o c l a i m of contributory negligence and n o t a proper i n s t r u c t i o n . , . a l s o o b j e c t on t h e b a s i s t h a t it places a burden upon p l a i n t i f f s Wolfes which is a burden which, under the f a c t s of t h i s case, t h e l a w does n o t r e q u i r e them t o assume." I n essence, p l a i n t i f f s ' objection was t h a t I n s t r u c t i o n No. 17 placed a higher duty on p l a i n t i f f s than t h a t fixed by law. This Court has previously questioned t h e sufficiency of t h e s p e c i f i c i t y of t h i s objection i n a s i m i l a r case. I n LeCompte v, Wardell (1959), 134 Mont. 490, 498, 333 P.2d 1028, 1033, w e stated: "Defendants contend t h a t t h e c o u r t e r r e d i n giv- ing i n s t r u c t i o n s No. 26 and 28 over t h e i r ob- jection. These i n s t r u c t i o n s i n e f f e c t made de- fendants l i a b l e f o r a want of care toward plain- t i f f i f they knew o r i n the e x e r c i s e of reasonable care should have known t h a t p l a i n t i f f w a s present on defendants' property. The only objection t o these i n s t r u c t i o n s was t h a t they placed a higher duty upon defendants than t h a t fixed by law. Whether t h i s objection w a s s u f f i c i e n t l y s p e c i f i c . . . i s doubtful." Assuming f o r t h e purposes of argument t h a t t h e objec- t i o n w a s s u f f i c i e n t l y s p e c i f i c , we think t h a t the i n s t r u c - t i o n w a s i n f a c t erroneous. Where t h e law of contributory negligence r e q u i r e s t h a t a party a c t as an o r d i n a r i l y pru- d e n t person under t h e circumstances, Stenberg v. Beatrice Foods Mon t . 294, 296, t h e i n s t r u c t i o n does n o t temper t h e duty owed with t h e q u a l i f i c a t i o n t h a t t h e law expects no more of a person than i s reasonable. While erroneous, however, t h e i n s t r u c t i o n w a s cured by t h e c o n t e x t of o t h e r i n s t r u c t i o n s given by t h e t r i a l c o u r t . The omission of t h e reasonable man t e s t i n I n s t r u c t i o n No. 17 i s cured by I n s t r u c t i o n Nos. 10 and 12. See Peek v. Forbes (Colo. App. 1970), 470 P.2d 85, 88. I n s t r u c t i o n No. 12 d e f i n e s contributory negligence i n t e r m s of negligence and I n s t r u c t i o n No. 10 d e f i n e s negligence a s t h e want of c a r e o r s k i l l of a reasonable and prudent person under t h e same circumstances. The reasonable man test i s t h e r e f o r e provided. I n s t r u c t i o n No. 12 s t a t e d : "Contributory negligence i s negligence on t h e p a r t of a claimant which contributed as a proxi- m a t e cause t o h i s damages. A person who i s con- t r i b u t o r i l y n e g l i g e n t cannot recover f o r any damages sustained by him." I n s t r u c t i o n No. 10 s t a t e d i n p e r t i n e n t p a r t : ". . . negligence means want of such ordinary c a r e o r s k i l l . Such want of ordinary c a r e o r s k i l l e x i s t s when t h e r e i s a f a i l u r e t o do t h a t which a reasonable and prudent person would o r d i n a r i l y have done under t h e circumstances of t h e s i t u a t i o n , o r doing what such person under t h e e x i s t i n g circumstances would n o t have done. " W e hold, t h e r e f o r e , t h a t t h e t r i a l c o u r t ' s giving of I n s t r u c t i o n No. 17 d i d n o t c o n s t i t u t e r e v e r s i b l e e r r o r . P l a i n t i f f s ' second i s s u e concerns whether t h e giving of I n s t r u c t i o n No. 23 was r e v e r s i b l e e r r o r . P l a i n t i f f s argue on appeal t h a t t h e i n s t r u c t i o n w a s erroneous because it f a i l e d t o r e q u i r e t h e jury t o f i r s t e s t a b l i s h an agency r e l a t i o n s h i p before applying t h e i n s t r u c t i o n and because it f a i l e d t o d e f i n e what c o n s t i t u t e s an agency r e l a t i o n s h i p . I n essence, p l a i n t i f f s ' argument is t h a t t h e i n s t r u c t i o n i s incomplete. I n s t r u c t i o n No. 23 e s s e n t i a l l y asked t h e jury, by em- ploying t h e p r i n c i p l e s of agency, t o impute t h e a c t s of Trans- america t o p l a i n t i f f s Wolfe. I n t h i s way, contributory negli- gence could be imputed t o t h e Wolfes because Transamerica had ordered an i n s p e c t i o n of t h e Mint Bar premises which revealed t h a t t h e wiring was i n good condition. Agency, of course, i s t h e f i d u c i a r y r e l a t i o n which r e s u l t s i n t h e mani- f e s t a t i o n of consent by one person t h a t t h e o t h e r s h a l l a c t on h i s behalf and adhere t o h i s c o n t r o l and consent by t h e o t h e r s o t o a c t . Butler Mfg. Co. v. J. & L. Implement Co. (1975), 167 Mont. 519, 523, 540 P.2d 962, 965. I n reviewing t h e i n s t r u c t i o n , our f i r s t concern is whether t h e r e w a s s u f f i c i e n t evidence t o warrant t h e t r i a l c o u r t giving t h e i n s t r u c t i o n . I n t e g r a l t o any agency r e l a - t i o n s h i p a r e t h e elements of consent and c o n t r o l . With r e - s p e c t t o t h e element of c o n t r o l , defendant introduced a t t h e t r i a l a r e p o r t of t h e inspection which i n d i c a t e d t h a t t h e fieldman, who conducted t h e inspection, had contacted t h e Wolfes before making t h e inspection. However, during t h e t r i a l , t h e fieldman could n o t s p e c i f i c a l l y remember contacting t h e Wolfes b u t t e s t i f i e d t h a t it was h i s usual business prac- t i c e t o do so. Concerning t h e element of consent, t h e branch manager f o r p l a i n t i f f Transamerica t e s t i f i e d t h a t , i n order- i n g inspections, Transamerica attempts t o p r o t e c t t h r e e peo- ple: t h e company, t h e agent, and t h e insured. I n t h i s sense, he t e s t i f i e d t h a t Transamerica acted on behalf of t h e plain- t i f f s Wolfe. However, during r e d i r e c t examination, t h e branch manager a l s o admitted t h a t t h e fieldman w a s never employed o r h i r e d by t h e Wolfes. W e believe t h a t t h e evidence i s c l e a r l y i n s u f f i c i e n t a s a matter of law t o warrant t h e giving of ~ n s t r u c t i o n No. 23 and t h a t t h e i n s t r u c t i o n was erroneous on t h i s ground. ~ e r e l y contacting an owner and obtaining permission t o i n s p e c t h i s premises is not s u f f i c i e n t c o n t r o l t o e s t a b l i s h an agency r e l a t i o n s h i p . Nor can one a c t on behalf of another where, as i n t h i s case, a fieldman is n o t h i r e d by t h e Wolfes t o conduct an inspection and t h e inspection i s ordered p r i - marily f o r t h e b e n e f i t of an insurance company. However, w e b e l i e v e t h a t t h e r e a r e s e v e r a l f a c t o r s which, when taken together, n e c e s s i t a t e t h e affirmance of t h e judg- ment of t h e D i s t r i c t Court. F i r s t , w e note t h a t p l a i n t i f f s ' grounds f o r o b j e c t i o n t o I n s t r u c t i o n No. 23 appear t o be d i f f e r e n t on appeal than they w e r e a t t r i a l . P l a i n t i f f s argue on appeal t h a t t h e i n s t r u c t i o n i s incomplete; it f a i l s t o r e q u i r e t h e jury t o f i r s t e s t a b l i s h an agency r e l a t i o n s h i p before applying t h e i n s t r u c t i o n and it f a i l s t o d e f i n e what c o n s t i t u t e s an agency r e l a t i o n s h i p . P l a i n t i f f s ' o b j e c t i o n a t t r i a l , however, w a s t h a t t h e i n s t r u c t i o n w a s unsupported by t h e evidence. A t t h e t r i a l p l a i n t i f f s s t a t e d : " P l a i n t i f f s o b j e c t . . . on behalf of Trans- america p a r t i c u l a r l y . Again, i t ' s an assurnp- t i o n t h a t t h e evidence does n o t support, be- cause it implies t h a t Transamerica has a duty t o somebody when they make an i n s p e c t i o n which c r e a t e s a l e g a l o b l i g a t i o n on t h e p a r t of Transamerica, which t h e law does n o t recognize, and, a s such, it i s n o t a c o r r e c t statement of t h e law and very p r e j u d i c i a l t o P l a i n t i f f Transamerica i n t h i s case." The o b j e c t i o n t h a t t h e i n s t r u c t i o n " i s n o t a c o r r e c t statement of t h e law" i s n o t a s u f f i c i e n t l y s p e c i f i c and sus- t a i n a b l e objection. Rule 51, M.R.Civ.P. Where t h e ground of t h e o b j e c t i o n i s d i f f e r e n t , o b j e c t i o n s cannot be r a i s e d f o r t h e f i r s t t i m e on appeal. Seder v. K i e w i t Sons' Co., supra; P i c k e t t v. Kyger, supra; Kearns v. McIntyre Const. Co., supra. Secondly, we note that plaintiffs Wolfe failed to spe- cifically object to Instruction No. 23 at the trial level. Rather, the record discloses that counsel for plaintiff Trans- america made the only formal objection. Although the record is not entirely clear whether the trial court permitted plaintiffs to make their objections jointly or independently, we believe that a party has some responsibility to assert his objection at the trial level if he wishes to raise it on appeal. Third, we also believe that, where a party considers an instruction incomplete, as is the case here, it has some responsibility to request and provide the trial court with an instruction that properly covers the situation. Pataniq v . Silverstone (1966), 3 Ariz-App. 424, 415 P.2d 139. Here, plaintiffs wish to assert error on the basis of an instruc- tion being incomplete, yet no attempt or request was made to provide an instruction which covered the issue in question. Finally, we believe that the verdict was supported by the evidence and that, if the case were tried again, the same verdict would be rendered. If the judgment is one which could be properly rendered consistent with the evidence and law of the case, error in instructions is not reversible. "One test that has been frequently held deter- minative of the prejudicial character of error in instructions is the correctness of the re- sult. If that is correct, the error is not reversible." Westinghouse Electric Elevator Co. v. LaSalle Monroe Bldg. Corporation (1945), 326 I11.App. 598, 63 N.E.2d 411, 416. We hold, therefore, that there is no reversible error in the record and affirm the judgment of the District Court. We concur: P Chief J u s t i c e M r . Chief Justice Haswell, dissenting: I would hold that the giving of instructions 17 and 23 constitutes reversible error entitling plaintiffs to a new trial. The majority correctly hold that the giving of each of these instructions is error. I part with the majority in holding these errors harmless, however. In my view the errors affect the substantial rights of the plaintiffs and cannot qualify as harm- less errors. Rule 14, M.R.App.Civ.P. Instruction 17 flatly and unequivocally told the jury that failure of either plaintiff to locate or recognize the danger- ous condition is contributory negligence. In my opinion the omis- sion of the reasonable man standard is not cured by Instruction 10 defining negligence in terms of this test. The two instructions are contradictory in my judgment. Who can say with reasonable certainty which instruction the jury followed in arriving at its verdict? But the fundamental error was the giving of instruction 23. As stated by the majority, this instruction asked the jury, by em- ploying agency principles, to impute the acts of Transamerica to plaintiffs. In this way contributory negligence could be imputed to plaintiffs because Transamerica had ordered an inspection of the Mint Bar premises which revealed the wiring was in good con- dition. The majority hold the error harmless because of supposed defects in plaintiffs' objection to the instruction at the trial and because the same result would be reached if the case were tried again. Plaintiffs did object to the instruction at the trial on valid grounds that should have been sustained, specifically that the evidence did not support giving the instruction. The majority hold the evidence is clearly insufficient as a matter of law to warrant the giving of this instruction. I find no basis for re- quiring the plaintiffs to provide the trial court with an instruction that properly covers the situation as held by the majority. This was defendant's instruction and the responsibility was on the defendant to offer an instruction correctly stating the law. More importantly, how could plaintiffs or anyone else offer a correct instruction on imputed negligence arising from an agency relationship where the evidence was insufficient to establish an agency? Finally to justify the giving of an erroneous instruction on the ground that if the case was tried again, the same result would be reached requires a clairvoyance possessed by few appel- late judges. In my view, predicting the result on retrial is pure speculation. Here the error cannot be harmless. A verdict for the defendant could have been reached by imputing the negligence of Transamerica to the plaintiffs. The substantial rights of the plaintiffs were thus compromised by the erroneous jury instruc- tion defeating the harmless error test in Rule 14, M.R.App.Civ.P. Chief Justice Mr. Justice Daniel J. Shea dissents and will file a written dissent later. | November 27, 1979 |
a0ae4cc1-b6a2-403d-bf52-a62cb2d49b0e | MARRIAGE OF VASHLER | N/A | 14668 | Montana | Montana Supreme Court | No. 14668 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN RE THE MARRIAGE OF SHIRLEY M . VASHLER, Petitioner and Respondent, and JOHN J. VASHLER, Respondent and Appellant. Appeal from: District Court of the Thirteenth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: Moses, Tolliver and Wright, Billings, Montana For Respondent: Sandal1 and Cavan, Billings, Montana Submitted on briefs: August 1, 1979 ac: 2 1 @ J Decided. w c : *--- Filed: fJcr L %rkz P Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. This is an appeal from the judgment of the District Court, Yellowstone County, dissolving the marriage of the parties, dividing the marital estate and fixing maintenance and support payments. The husband John J. Vashler appeals from the division of the marital estate and the fixing of maintenance and support payments. We decide the matter on briefs without oral argument. The parties to this action were married on August 7, 1954, in Billings, Montana. At the time of the marriage the husband was employed with a printing company and the wife worked at a local laundry. After five years of marriage the parties used the money that the wife had earned for a down payment on a house. Thereafter, the wife terminated her employment, became a homemaker, and did not work outside of the home during the rest of the marriage. Two children were born of this marriage, Jay Darrell Vashler, age 18 years at the time of the divorce, and Loren Lynn Vashler, age 9 years. Jay Vashler pursues his college education at Montana State University. Loren Vashler resides at the family residence and attends school in Billings, Montana. At the time of the dissolution the parties' property consisted of a house, furniture, fixtures and other personal property in or about the house, a 1974 Pontiac automobile, a 1974 pick-up truck, a 1962 Pontiac automobile, a checking account, and a savings account. It was agreed by the parties that the total value of the marital estate was $48,450. The District Court found that the husband's average net take home pay was approximately $1,200 per month for the five -2- months of January through May 1978. The District Court also found that the husband's average take home pay was $1,300 per month from June 1, 1978 through August 1978, due to a wage increase. The District Court found the wife to be employable, but doubted whether she could find employment at much over the minimum wage. The decree of dissolution granted custody of Loren, the minor child, to the wife subject to the husband's right to visitation. The District Court ordered that the husband pay $200 per month for the support of the minor child until Loren reached the age of majority, or finished high school, whichever occurs last. The District Court ordered that title to the home remain in the name of the husband and the wife as joint tenants with right of survivorship. The wife was granted exclusive use of the home, rent free, until Loren reached eighteen or finished high school or until the wife should remarry. Upon the occurrence of any one of these events, the home is to be sold and the parties must equally divide the proceeds. In addition, the District Court ordered the husband to pay $250 per month for the first six months following the entry of judgment, and $150 per month for the following thirty months, to the wife for support and maintenance. The support and maintenance award would terminate at the end of three years, or earlier if the wife were to remarry. The District Court equally divided the savings account. The 1974 Pontiac was awarded to the wife and the 1974 pickup truck and the 1962 Pontiac were awarded to the husband. The issues presented on appeal are: 1. Was it proper for the court to keep title to the house in joint tenancy? -3- 2. Was the award of maintenance supported by the evidence? 3 . Was the award of maintenance in accord with the Montana Marriage and Divorce Act? 4. Can the District Court properly take into consideration certain overtime hours worked by the husband in determining his gross income potential? The substance of this appeal is whether the District Court abused its discretion in the distribution of the marital estate and in its award of maintenance. This Court has addressed this issue in several recent decisions. Kaasa v. Kaasa (1979), Mont . , 591 P.2d 1110, 36 St.Rep. 425; In Re Marriage of Jorgensen (1979), Mont . , 590 P.2d 606, 36 St.Rep. 233; Kramer v. Kramer (1978), Mont . , 580 P.26 439, 35 St.Rep. 700; and Johnsrud v. Johnsrud (1977), Mont. , 572 P.2d 902, 34 St.Rep. 1417. The approach which we have used in considering this issue was stated in Zell v. Zell (1977), Mont . I 570 P.2d 33, 35, 34 St.Rep. 1070, 1074, in this language: "It is well settled in Montana that a district court has far reaching discretion in resolving property divisions and its judgment will not be altered unless a clear abuse of that discretion is shown. (Citation omitted.) The criteria for reviewing the district court's discretion is: Did the district court in the exercise of its discretion act arbitrarily without employment of conscientious judgment, or exceed the bounds of reason in view of all the circumstances." The husband contends that it was an abuse of discretion for the District Court to leave the title to the house in joint tenancy with right of survivorship. He contends that this runs counter to the principle that the husband is entitled to one- half of the residence, because he would be divested of an interest if he were to die before the youngest child reached eighteen or finished high school. The District Court judge has a wide range of discretion in disposing of marital property under section 40-4-202, MCA. In this case the disposition of the property was well within the permissible boundaries of this statute. Nowhere in this statute or in the judgment is it provided that the husband is entitled immediately to one-half of the residence. The husband's interest in the real property as a joint tenant is uneffected by the court's decree. The husband's right of survivorship is not disturbed. All the order of the District Court does is postpone any transfer of the interest of the husband until the conditions of the decree have been met. It was not an abuse of discretion for the District Court to decree that the title to the house was to remain in joint tenancy with right of survivorship. The husband next contends that the award of maintenance was not supported by the evidence and that the award of maintenance was not in accord with the applicable statutory provisions. We will consider these contentions together. Section 40-4-203, MCA, provides as follows: "Maintenance. (1) In a proceeding for dissolution of marriage or legal separation or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance: "(a) lacks sufficient property to provide for his reasonable needs; and "(b) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances makes it appropriate that the custodian not be required to seek employment outside the home. " ( 2 ) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including: "(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian; "(b) the time necessary to acquire sufficient educ- ation or training to enable the party seeking mainten- ance to find appropriate employment; "(c) the standard of living established during the marriage; " (d) the duration of the marriage; " (e) the age a n ' physical and emotional condition of the spouse seeking maintenance; and "(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance." The wife received the house to live in free of debts, plus an automobile and the other items from the marital estate which are listed above. The record discloses that the wife cannot provide for her needs with this property. The District Court found that the wife could only earn the prevailing minimum wage due to her lack of formal education and training. In addition, she has custody of a nine year old child, and this added responsibility further decreases her ability to secure employment. The maintenance payments are to be made for only three years and will decrease from $250 per month to $150 per month six months following the entry of judgment. After the three year time period expires the wife will be required to support herself. She will receive $200 per month as child support until the child reaches the age of eighteen or graduates from high school. The District Court also found that the husband has a net income of $1,200 to $1,300 per month. In light of these facts we hold that the award of maintenance is supported by the evidence and is within the scope of section 40-4-203, MCA. The husband's last contention is that it was error for the District Court to consider his overtime pay. The District Court found that the husband averaged about four hours of overtime per week for which he received increased compensation. There is uncontested evidence that the husband averaged five hours a week overtime for the full year of 1977, and that he averaged six to seven hours of overtime from January 1, 1978 through May 1978. For the District Court to estimate that the husband averaged four hours of overtime per week is not error. We cannot say that the District Court's disposition of this case was arbitraryrltzrithout employment of conscientious judgment, or exceed[ed] the bounds of reason in view of all the circum- stances." Zell, supra, -- Mont. at , 570 P.2d 35, 34 St.Rep. at 1074. The judgment is affirmed. The costs on appeal are awarded to respondent pursuant to Rule 33, M.R.App.Civ.P. ................................. Chief Justice | October 2, 1979 |
54ca51b1-f6d5-4f1a-92c5-602509d85ea2 | MORRIS v FRANK TRANSPORTATION CO | N/A | 14727 | Montana | Montana Supreme Court | No. 14727 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 CLYDE MORRIS, PHYLLIS MORRIS, and DALE MORRIS, Plaintiffs and Respondents, FRANK TRANSPORTATION COMPANY, and FJILLIAM FRANK, Defendants and Appellants. Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert H. Wilson, Judge presiding. Counsel of Record: For Appellant: Anderson, Brown, Gerbase, Cebull and Jones, Billings, Montana For Respondents: Berger, Anderson, Sinclair and Murphy, Billings, Montana Submitted on briefs: June 1,1979 Decided: OCT 2 5 7979 Filed: m W . : - '77". . .- Mr. Justice Gene B. Daly delivered the Opinion of the Court. This is an appeal from an order of the District Court of the ~hirteenth Judicial District, the Honorable Robert H. Wilson presiding, denying defendants' motion to set aside default and granting plaintiffs' motion for entry of judg- ment by default. Plaintiffs-respondents filed their complaint in this matter on January 16, 1979, seeking to recover wages and expenses for driving trips made on behalf of Frank Trans- portation Company, appellant herein. The complaint was personally served by a Yellowstone County deputy sheriff on appellant William Frank on January 18, 1979. The complaint demanded an amount certain. Appellants failed to answer and default was entered on February 8, 1979. Thereafter, on February 13, 1979, appellants entered an appearance by a motion to dismiss. The next day respondents filed a motion to enter judgment by default. This motion was noticed for hearing on February 23, 1979. A hearing was conducted at that time and appellant William Frank appeared and testi- fied. During this hearing the District Court consolidated appellants' motion to dismiss with appellants' motion to set aside default for excusable neglect. There was no objection to this consolidation. In an effort to show excusable neglect, William Frank testified that he had been ill and had left it up to other people to run his business and to take care of the lawsuit. He further testified that he was in his office one day, found the complaint, and immediately took it to his attor- neys. He also admitted that he was personally served with a copy of the complaint. A t t h e end of t h e hearing t h e c o u r t took t h e matter under advisement and on February 27, 1979, e n t e r e d an o r d e r denying t h e motion t o set a s i d e t h e d e f a u l t and o r d e r i n g t h a t t h e p l a i n t i f f s ' motion t o e n t e r judgment by d e f a u l t be granted. On February 28, 1979, judgment by d e f a u l t w a s e n t e r e d by o r d e r of t h e c o u r t . Notice of e n t r y of judgment was mailed t o t h e r e s p e c t i v e p a r t i e s on February 28, 1979, and Frank Transportation Company and W i l l i a m Frank now appeal. The i s s u e f a c i n g t h i s Court on appeal i s whether t h e D i s t r i c t Court abused its d i s c r e t i o n i n denying t h e motion t o set a s i d e d e f a u l t and i n e n t e r i n g judgment by d e f a u l t . W i l l i a m Frank a l l e g e s t h a t because he w a s ill and under a d o c t o r ' s c a r e , he l e f t h i s business i n t h e c a r e of o t h e r s r e s u l t i n g i n h i s n e g l e c t of t h i s l a w s u i t . This he contends was "excusable neglect." W e do n o t agree. Rule 6 0 ( b ) , M.R.Civ.P., states t h a t a c o u r t may r e l i e v e a p a r t y from a f i n a l judgment upon a f i n d i n g of " (1) mistake, inadvertence, s u r p r i s e , o r excusable neglect." Appellants c i t e a number of c a s e s f o r t h e proposi- t i o n t h a t Rule 60(b) i s t o be l i b e r a l l y construed: C l u t e v. Concrete (1978), Mont. , 587 P.2d 392, 35 St.Rep. 1775; Big Spring v. Blackfeet Tribe of Blackfeet, etc. (1978) Mont. , 573 P.2d 655, 35 St.Rep. 34; Davis v. Hubbard (1947), 120 Mont. 45, 179 P.2d 533. While w e do n o t d i s a g r e e with t h e r u l e s i n t h e s e cases, s u f f i c e it t o say t h a t they a r e d i s t i n g u i s h a b l e from t h e i n s t a n t case. Appellants here have simply n o t shown excusable n e g l e c t under t h e f a c t s of t h i s case. There i s nothing i n t h e record t o i n d i c a t e t h a t William Frank had s p e c i f i c a l l y requested t h a t someone else t a k e t h e complaint t o h i s a t t o r - neys, as i n Davis v. Hubbard, supra, nor t h a t he was h o s p i t a l i z e d o r t o o s i c k t o do it himself. F u r t h e r , t h e r e was nothing t o i n d i c a t e t h a t he was n o t properly served with t h e complaint a s i n C l u t e v. Concrete, supra, nor t h a t he d i d n o t have n o t i c e of hearings a s i n Blackfeet T r i b e , supra. A f a i l u r e to appear due t o f o r g e t f u l n e s s and t h e p r e s s of o t h e r , more important business i s n o t s u f f i c i e n t t o e s t a b l i s h excusable n e g l e c t . Dudley v. S t i l e s (1963), 142 Mont. 566, 386 P.2d 342, 343. Even t h e most l i b e r a l approach t o t h i s problem cannot save a p p e l l a n t s ' case. " . . . A l i b e r a l c o u r t cannot f i n d excusable n e g l e c t where a defen- d a n t h a s w i l l i n g l y slumbered on h i s r i g h t s and ignored t h e j u d i c i a l machinery e s t a b l i s h e d by law." Dudley v. S t i l e s , supra, 386 P.2d a t 343. "A motion t o set a s i d e a d e f a u l t judgment i s addressed t o t h e sound d i s c r e t i o n of t h e t r i a l c o u r t and t h i s Court w i l l n o t i n t e r f e r e e x c e p t upon a show- i n g of manifest abuse." Purington v. Sound West (1977), Mont. , 566 P.2d 795, 797, 34 St.Rep. 579. W e f i n d no such abuse here. W e concur: 7Ad4 $?$kw@ Chief J u s t i c e ustices I | October 25, 1979 |
9e27cebd-c8a4-44f3-8758-3094f4b68668 | CONSOLIDATED FREIGHTWAYS CORP v O | N/A | 14676 | Montana | Montana Supreme Court | No. 14676 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, a Delaware corporation, Petitioner, JUNE OSIER and MARGARET COLLINS, Respondents. On Certification from: U.S. District Court of Montana, Missoula, Division Hon. Russell E. Smith, U.S. District Judge presiding. Counsel of Record: For Petitioner: Corette, Smith, Dean, Pohlman and Allen, Butte, Montana R . D. Corette, Jr. argued, Butte, Montana For Respondents: Poore, Roth, Robischon & Robinson, Butte, Montana David J. Wing argued, Butte, Montana Submitted: June 7, 1979 Decided : X T 12 197Q F Filed: m l f 2 Ilji" Mr. Justice John C. Sheehy delivered the Opinion of the Court. The Hon. Russell E. Smith, a senior United States District Judge for the District of Montana, has certified to us a question of law in which it appears there are substantial grounds for difference of opinion, the adjudication of which by this Court would materially advance a decision in federal litigation. The question is certified as follows: "As a matter of substantive Montana law, does a tort-feasor have a cause of action for contribution or indemnity against any joint tort-feasor not joined by the plaintiff as a party defendant?" That question, stated tersely according to the manner of Judge Smith, presents us with a tangle of legal problems in the proportion of a Gordian knot. It would be nice if we could, as Alexander the Great, slice to the heart of the matter with a monosyllabic sword to answer "yes" or "no". Instead we must answer "yes and no" and detail our explanations hereunder. The problem certified arises out of a collision on December 8, 1977, near Deer Lodge, Montana, between a Consolidated Freightways tractor-double trailer unit and a Plymouth automobile. June Osier, a passenger in the Plymouth, brought action against Consolidated Freightways in the federal court for damages claimed to have resulted from the collision. Consolidated sought to bring the driver of the Plymouth, Margaret Collins, into the action as a third-party defendant on a claim of indemnity if Consolidated were found to be liable to June Osier. On motion, the federal district judge dismissed the third-party complaint for indemnity. Consolidated filed an amended third-party complaint against Margaret Collins, praying that Margaret Collins be required to contribute to the damages established by June Osier in conformance with section 27-1-703, MCA. Before deciding the motion to dismiss the amended third- party complaint, Judge Smith certified the legal questions to us for determination as to the applicable Montana law. As to tortfeasors not joined by the plaintiff as a party defendant, the problem certified to us states two phases: (1) whether a sued tortfeasor has a cause for action for contribution against a nonjoined tortfeasor, and ( 2 ) whether a sued tortfeasor has a cause of action for indemnity against a nonjoined tortfeasor. It was always assumed as a part of the established law in Montana that there is no right to contribution among joint tortfeasors. PanQsuk v. Seaton (U.S.D.C. Mnnt. 1965), 277 F.Supp. 979; Variety Incorporated v. Hustad Corporation (1965), 145 Mont. 358, 368, 400 P.2d 408, 414. This assumption was shaken by the passage of section 27-1-702, MCA, the comparative negligence statute in 1975, and its companion section 27-1-703, MCA, the statute providing for contribution between multiple defendants jointly and severally liable to a plaintiff. Section 27-1-703, MCA, makes it necessary to subdivide the contribution phase of the problem certified to us into two subissues: (1) Did the passage of section 27-1-703, MCA, strip from the body of established law in Montana the rule against contribution among all joint tortfeasors, and (2) if it did not, should Montana now move by judicial fiat to abolish such rule. As the Hon. William J. Jameson, United States District Judge,pointed out in Panqsuk, supra, Montana may not have expressly adopted the rule against contribution among joint tortfeasors in any particular case but the rule was certainly recognized in statements made by the Montana court. For example, Variety, supra. Recognition of the rule however, was inherent in Montana's emphatic declarations that joint tortfeasors were jointly and severally liable to the plaintiff. In Jones v. Northwestern Auto Supply Co. (1932), 93 Mont. 224, 231, 18 P.2d 305, 307, we stated "[tlhe rule was well settled that, 'if the concurrent negligence of two or more persons causes an injury to a third person, they are jointly and severally liable, and the injured person may sue them jointly or severally, and recover against one or all.'" See Black v. Martin (1930), 88 Mont. 256, 292 P. 577, 580. For that reason, if the injured party accepted satisfaction in full and released one joint tortfeasor, the release operated as satisfaction for the injuries as to all joint tortfeasors. Black, supra. In Auto C1. Ins. Co. v. Toyota Mot. Sales, USA, Inc. (1975), 166 Mont. 221, 225, 531 P.2d 1337, 1339, this Court accepted the statement by Judge Jameson in Panusuk that a joint tortfeasor is not entitled either to contribution or indemnity from another tortfeasor. Therefore, prior to 1977, it was safe to assume that Montana, though not expressly declaring so, was committed to the principle that one of several wrongdoers could not recover against another wrongdoer for contribution, even though he may have been compelled to pay the whole judgment to the injured plaintiff. After the comparative negligence statute was adopted in 1975, the Montana Legislature considered and adopted section 27-1-703, MCA, respecting contribution, which provides as follows: "Multiple defendants jointly and severally liable-- riaht of contribution. (1) Whenever the comparative - - 2 - - - - neqliqence of t .he parties in any action is an - - issue and recovery is allowed against more than one party, each such party is jointly and severally liable for the amount awarded to the claimant but has the right of contribution from any other party against whom recovery is allowed. Contri- bution shall be proportional to the negligence of the parties against whom recovery is allowed. "(2) If for any reason all or part of the con- tribution from a party liable for contribution cannot be obtained, each of the other parties against whom recovery is allowed is liable to contribute a proportional part of the unpaid portion of the noncontributing party's share and may obtain judgment in a pending or subsequent action for contribution from the noncontributing party." On its face, section 27-1-703, MCA, has limited application. It applies only in comparative negligence cases and only where recovery is allowed against more than one party. Further, it provides for contribution in proportional rather than prorata or equitable degrees. Therefore, section 27-1-703, MCA, does not apply to a case where an innocent plaintiff, that is, a plaintiff who is not guilty of any contributory negligence, sues one of two or more joint tortfeasors for the injuries sustained. Unless the plaintiff is guilty of some degree of contri- butory negligence, there is no negligence to be compared with that of the defendant or defendants in a comparative negligence case. See, Wenatchee Wenoka Growers Ass'n. v. Krack Corp. (1978), 89 Wash.2d 847, 576 P.2d 388, 389, 390. Since section 27-1-703, MCA, applies only to comparative negligence cases, we adhere to the rule that this statute does not grant a right of contribution among joint tortfeasors where comparative negligence is not an issue. We further hold that even in comparative negligence cases, the right of contribution granted in section 27-1-703, MCA, applies only to defendants against whom judgment has been recovered by the plaintiff. The terms of the statute itself appear to command that result. It speaks of contri- bution in paragraph (1) where "recovery is allowed against more than one party", and in paragraph (2) provides what occurs if contribution cannot be obtained "from a party liable for contribution." That language is not an invitation to engage in third party practice under Rule 14, M0nt.R.Civ.P. One reason is that Rule 14 is a procedural rule, and is not intended to alter, expand or abridge substantive rights. Moore's Federal Practice, 814.03[1]. There was no substantive right to contribution in 1975 or 1977, when the comparative negligence statutes were adopted in Montana. Another reason is that there is no indication of legislative intent, unless legislative intent can be found by implication, to change the substantive rule against contribution among joint tortfeasors. In examining the legislative history of section 27-1- 703, MCA, to see if the legislature by implication intended to do away with the substantive rule, we find a strong indication to the contrary. When the legislature in 1977 was considering the bill which eventually became section 27- 1-703, MCA, that body decided not to take a quantum leap into the unknown. House Bill No. 320, 45th Legislature, 1977, originally provided in addition to the present pro- visions of section 27-1-703, MCA, for (1) joinder -- of any parties whose negligence may have contributed as a proximate cause to the damages claimed by the plaintiffs; (2) the abolition of the last clear chance doctrine; and, (3) a definition of negligence in strict liability and breach of warranty cases that would give rise to the defense of contributory negligence. The legislature struck these proposals before adopting section 27-1-703, MCA, in its present form. The-refusal of the legislature to permit mandatory joinder of all tortfeasors in an action on the motion of any party furnishes us with a strong implication that the legislature, in adopting that statute, did not intend to change the substantive rule against contribution among joint tortfeasors. We move now to a consideration of the second phase of the contribution issue, that is, although the passage of section 27-1-703, MCA, may not have done so, should this Court now move on its own to abolish the rule against con- tribution between joint tortfeasors. Consolidated urges that other states have not waited for legislatures to act, but have through judicial decisions provided for contribution among all joint tortfeasors, sued and not sued as defendants in an action. Consolidated cites Maine (Bedell v. Reagan, - ' 1 ; - : . G%'Naine 292, 192 A. 2d 24 (1963) ; Wisconsin (Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962); and Washington, D.C. (Knell v . Feltman, 174 F.2d 662 (D.C., C.A. 1949)). New York may have also done so in Kelly v. Long Island Lighting Co. (N.Y. 1972), 286 N.E.2d 241; Dole v. Dow Chemical Company (N.Y. 1972), 282 N.E.2d 288. The State of Washington, on the other hand, refused to move in that direction in Wenatchee Wenoka Growers Ass'n. v. Krack Corp. (1978), 89 Wash.2d 847, 576 P.2d 388. The analysis of the Washington state court is persuasive: "Krack first suggests contribution between tortfeasors is the natural corollary of the comparative negligence principle expressed in RCW 4.22.010. We agree the comparative concept of RCW 4.22.010 expresses a new public policy in this state. -- See also Godfrey v. State, 84 Wash.2d 959, 530 P.2d 630 (1975). - Yet, we are not fully convinced that this comparative concept compels abrogation of the no-contribution rule. "Comparative negligence and contribution both represent serious attempts to achieve greater fairness in tort law. But, the underlying policy considerations of each are quite diffeGent. - - See, e. g. , Comment, Comparative Nealiaence, 49 Wash. L. Rev. 705 (1974) ; W. 2 2 Prosser ~ a w -- of Torts 5 50 (4th Ed. 1971); C. R. Heft & C. J. Heft, Comparative Negligence Manual § 12.0 (1976); Leflar, Contribution & Indemnity Between Tortfeasors, 81 u.Pa.L.~ev: 130 ( 1 9 3 2 ) ; , C o n t r i b u t i o n Between Persons Jointly Charged for Negligence --Merryweather v. - Nixon, 12 Harv.L.Rev. 176 (18 "Comparative negligence is directed at compensating one who has suffered a tort-related loss. Prosser, Comparative Negligence, 51 Mich.L.Rev. 465 n.2 (1953). Comparative negligence means comparison of the negligence of the plaintiff and the defendant. Amend v. -- Bell, 89 Wash.2d 124, 570 P.2d 138 (1977); Bradley v. Maurer, 17 Wash.App. 24, 29, 560 P.2d 719 ( 1 9 7 7 ) . One who has suffered damages is allowed to seek recovery even though his own negligence may have proximately caused the injury complained of. RCW 4.22.010; Godfrey v . - State, supra. "Contribution, on the other hand, is directed at equitably distributing between or among tortfeasors the responsibility for paying those damages suffered by the injured party. See Prosser, o f Torts at 307: Commissioners' Prefatory Note (1939 Act), -. - - uniform Contribution Among ~ o r t f easors Act, 12 U.L.A. 60 (1975). Contribution, unlike comparative negligence, is neither related to the damages an injured party is entitled to receive nor to the question of whether that injured party should receive less than his full damages suffered from a tort-related loss." Wenatchee, 576 P.2d at 389, 390. Abolition of the substantive Montana rule against contribution among joint tortfeasors would be a giant step in the legal history of Montana. Such an abolition would reach into every aspect of tort law where more than one tortfeasor was involved. Moreover, the comparative negligence statutes in Montana are relatively new. To date, we have not been called upon to render a decision concerning the substantive law underlying the comparative negligence statute, or its companion contribution statute. Those facts, in addition to the refusal of the legislature to adopt mandatory contribution among joint tortfeasors, leads us to conclude that the wiser course is not to rush in where the legislature feared to tread. The other portion of the question certified to us by Judge Smith is whether a tortfeasor has a cause of action for indemnity against any joint tortfeasor not joined by the plaintiff by a party defendant. "Indemnity" shifts the entire loss from one party compelled to bear it to the shoulders of another who should bear it instead. One court has referred to indemnity as contribution "in the extreme form." United States v. Savage Truck Line, Inc. (U.S.C.A. 4th, 1953), 209 ~ . 2 d 442, 447. In Crosby v. Billings Deaconess Hospital (19671, 149 Mont. 314, 426 P.2d 217, this Court sanctioned a cross-claim for indemnity by the hospital against the manufacturer of a television regulator switch which had burned the mouth of a patient in the hospital. The hospital claimed that it was entitled to indemnity for any damages it might be required to pay the plaintiff due only to the relationship between the plaintiff and the hospital, and not due to any negligence on the part of the hospital. In permitting the claim for indemnity, we quoted with approval, the language from Great Northern Railway Company v. United States (D.C. Mont. 1960), 187 F.Supp. 690, 693, which said: "Where the parties are not in pari delicto, and an injury results from the act of one party whose negligence is the primary, active and proximate cause of the injury, and another party, who is not negligent or whose negligence is remote, passive and secondary, is nevertheless exposed to liability by the acts of the first party, the first party may be liable to the second party for the full amount of damages incurred by such acts." In Panasuk v . Seaton (U.S.D.C. Mont. 1968), 277 F.Supp. 979, Judge Jameson, who had written the Great Northern decision, reviewed the law pertaining to right of indemnity among joint tortfeasors. He concluded that he found no case where the rule permitting an action for indemnity had been extended to a collision between two vehicles. In effect Judge Jameson concluded to permit indemnity as to a nonjoined tortfeasor in motor vehicle cases would open the door to an indemnity claim in every tort action involving multiple tortfeasors. The rule in Panasuk has been endorsed by this Court in Auto C1. Ins. Co. v. Toyota Mot. Sales, supra; Crosby v. Billings Deaconess Hospital, supra; Fletcher v . City of Helena (1973), 163 Mont. 337, 517 P.2d 365; as well as in the earlier case of Variety, Incorporated v . Hustad Corporation (1965), 145 Mont. 358, 368, 400 P.2d 408, 414. See also: St. Paul Fire and Marine Insurance Co. v. Thompson (19691, 152 Mont. 396, 451 P.2d 98; DeShaw v. Johnson (1970), 155 Mont. 355, 472 P.2d 298; Duchesneau v. Silver Bow County (1971), 158 Mont. In American Home Assur. Co. v . Cessna Aircraft Co. (U.S.C.A. loth, 1977), 551 F.2d 804, 808, the Court of Appeals said, "The Montana law is that when each tortfeasor is affirmatively negligent, neither is entitled to indemnity." We see no need to change this settled principle of our law. We hold therefore, that except in those cases specifically provided for in sections 27-1-702 and 27-1-703, MCA, there at D G C f c e I& PA is no right between multiple tortfeasors elther to contribution A or to indemnity as a matter of substantive Montana law. Costs in this case are assessed to Consolidated. Justice J w i We Concur: .............................. h Chief Justice % .............................. Justices M r . Chief J u s t i c e Frank I. Haswell d i s s e n t i n g : I r e s p e c t f u l l y d i s s e n t . I n m y view we have not answered t h e question c e r t i f i e d t o us by t h e f e d e r a l court. W e have been asked whether s u b s t a n t i v e Montana law permits a claim f o r c o n t r i b u t i o n o r indemnity by a s i n g l e j o i n t t o r t - feasor who has been sued by t h e i n j u r e d p a r t y a g a i n s t o t h e r j o i n t t o r t f e a s o r s n o t joined as defendants i n t h a t s u i t . The majority have answered s u b s t a n t i a l l y "no" a s between j o i n t t o r t f e a s o r s i n p a r i d e l i c t o . I n m y view t h i s begs t h e question. It presupposes t h a t a l l j o i n t t o r t f e a s o r s a r e equally a t f a u l t i n causing p l a i n t i f f ' s damages, an assumption not encompassed i n t h e c e r t i f i e d question nor y e t determined by t h e f e d e r a l court. I would allow c o n t r i b u t i o n i n proportion t o f a u l t among a l l j o i n t t o r t f e a s o r s without regard t o whom p l a i n t i f f sued. Fairness alone compels t h i s r e s u l t . The u l t i m a t e apportionment of p l a i n t i f f ' s damages among those responsible i n proportion t o t h e i r r e s p e c t i v e degrees of f a u l t i s a r e a l i s t i c way t o provide j u s t i c e . Montana's comparative negligence s t a t u t e recognizes t h i s p r i n c i p l e of apportionment between a p l a i n t i f f and defendant i n a negligence action. Section 27-1-702, MCA. The same p r i n c i p l e of apportionment is recognized between m u l t i p l e defendants j o i n t l y and s e v e r a l l y l i a b l e who a r e sued by t h e p l a i n t i f f . Section 27-1-702, MCA. What j u s t i f i c a t i o n e x i s t s f o r denying t h e same p r i n c i p l e of apportionment among a l l j o i n t t o r t f e a s o r s r e g a r d l e s s of joinder by p l a i n t i f f ? P l a i n t i f f ' s r i g h t t o be made whole is protected by making each t o r t f e a s o r i n d i v i d u a l l y l i a b l e t o him f o r h i s e n t i r e l o s s . P l a i n t i f f has t h e choice of suing one t o r t f e a s o r , some of t h e t o r t f e a s o r s , o r a l l t h e t o r t f e a s o r s . But what r i g h t has p l a i n t i f f t o c o n t r o l t h e u l t i m a t e appor- tionment of h i s l o s s among those who contributed t o i t ? None. Yet this is precisely the result of denying contribution among all joint tortfeasors. I find no reason or justice in a rule which permits the plaintiff through his choice of defendants to control the ultimate apportionment of his loss among those responsible for it. Plaintiff's choice of defendants is frequently determined by considerations foreign to a fair and just apportionment of the loss. Sometimes that choice is made on the basis of comparative financial responsibility or ease of collection among the respective tortfeasors; at times the existence or nonexistence of liability insurance is the controlling factor; at other times it is governed by plain- tiff's business, social, blood or marriage relationship to one or more of the tortfeasors; occasionally whim, spite or collusion determines plaintiff's choice of defendants; and, at times jurisdictional or process considerations are para- mount. See Prosser, --- The Law of Torts (4th Ed-), 950, p. 307; Berg, 43 Insurance Counsel Journal, 577, 586 (October, 1976). Two principal considerations appear to dominate the majority's denial of contribution in favor of a sued tort- feasor against joint tortfeasors not named as defendants: (1) Legislative approval of such contribution has been denied and this Court should not invade this area; and (2) joinder problems may dilute plaintiff's ability to promptly secure judgment for his loss. I find no indication that the Montana legislature ad- dressed t h e substantive rule denying contribution among joint tortfeasors. House Bill 320, 45th Sess. (19771, (now section 27-1-703, MCA) as originally introduced pro- vided for mandatory joinder of all joint tortfeasors in the original action, abolition of the last clear chance doctrine, and a definition of negligence in strict liability and breach of warranty cases that would give rise to the defense of contributory negligence. These provisions were stricken from the bill as finally enacted. The first of the stricken provisions was procedural, not substantive; the second and third concern liability between plaintiff and defendant, not among joint tortfeasors. I find no indication from this legislative history that the legislature approved the substantive law denying contribution among joint tortfeasors. The most that can be said is that the legislature did not enact a statute permitting contribution. The source of the rule denying contribution among joint tortfeasors is the English common law. Merryweather v. Nixan (1799), 8 Term. Rep. 186, 101 Eng. Rep. 1337; Everet v. Williams (1725), 9 L.Q.Rev. 197. Merryweather and Everet involved willful, deliberate and conscious wrongs. When transplanted to the United States, the rule was applied generally to cases of independent and concurrent negligence contributing to a single result. See Prosser, The --- Law of Torts (4th Ed.), 850, p . 306, and cases therein cited. Montana followed suit. See Panasuk v. Seaton (D. Mont. 1968), 277 F.Supp. 979; Variety Incorporated v. Hustad Corporation (1965), 145 Mont. 358, 400 P.2d 408. ~eing a rule of the common law, it is purely judge-made law. ~udges created the rule by judicial decision, and judges can change it in the same manner. The reason for the rule was that persons who violated the law or committed a wrong should not be permitted to seek relief in the courts. This approach is now as extinct as the dodo. Montana's 1972 Constitution guarantees access to the courts to all Persons and speedy recovery afforded for every injury of person, property or character. A r t . 11, Sec. 16, 1972 Mont. Const. When t h e reasons f o r the r u l e no longer e x i s t , the r u l e i t s e l f f a i l s . Section 1-3-201, MCA. Joinder problems should not be permitted t o i n t e r f e r e with t h e substantive r i g h t of contribution. The Federal Rules of C i v i l Procedure and t h e Montana Rules of C i v i l Procedure on joinder of p a r t i e s , severance of claims, and t h i r d p a r t y prac- t i c e a r e adequate t o p r o t e c t p l a i n t i f f ' s s u i t f o r damages from becoming entangled i n time-consuming controversies and proce- dures concerning t h e r i g h t s of multiple defendants and t h i r d p a r t i e s vis-a-vis one another. Such s i t u a t i o n has long e x i s t e d i n Montana i n any case involving multiple defendants and t h i r d p a r t y claims and i s not confined t o t h e f i e l d of contribution. Much t h e same discussion a p p l i e s t o t h e substantive r i g h t of indemnity. It s h i f t s ultimate apportionment of p l a i n t i f f ' s e n t i r e l o s s from t h e t o r t f e a s o r sued onto t h e shoulders of one o r more j o i n t t o r t f e a s o r s n o t named as defendants. I agree t h a t t h i s i s not possible where t h e indemnitor and indemnitee a r e i n p a r i d e l i c t o . However, t h a t assumption i s n o t contained i n t h e c e r t i f i e d question. Again, t h e answer of t h e majority begs t h e question submitted t o us f o r decision i n m y view. A s a matter of substantive Montana l a w , I would n o t deny t h e sued defendant a c l a i m o r cause of a c t i o n a g a i n s t a j o i n t t o r t f e a s o r o r t o r t f e a s o r s simply because p l a i n t i f f had not joined t h e l a t t e r as defendants. Fairness and j u s t i c e require allowing a claim f o r indemnity f o r t h e s a m e reasons t h a t a c l a i m f o r contribution should be permitted i n m y opinion. For t h e foregoing reasons, I would answer t h e c e r t i f i e d question i n t h i s manner: Substantive Montana law g r a n t s a t o r t f e a s o r a cause of a c t i o n f o r contribution o r indemnity a g a i n s t any j o i n t t o r t f e a s o r n o t joined by t h e p l a i n t i f f as a p a r t y defendant. ? A 4 $. 9 , & , & , Chief S u s t i c e Mr. Justice Daniel J. Shea concurring with the dissent of Mr. Chief Justice Frank I. Haswell: I concur in the dissent of Chief Justice Frank I. Haswell, and simply add that the time should be long past when the plaintiff, by his choice of defendants, can control the ultimate decision of who finally pays for the loss. That is not, and should not be of any concern to the plaintiff. A plaintiff's only legitimate interest is to obtain full legal redress for the harm caused, not to prevent others from redressing their grievances as between themselves. | October 12, 1979 |
c8c56f9d-cfeb-4b83-ae79-1706288791b6 | KINJERSKI v LAMEY v KINJERSKI | N/A | 14752 | Montana | Montana Supreme Court | No. 14752 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 JOHN KINJERSRI , Plaintiff and Appellant, VS. FRITZ LAMEY, individually and as President of K & L LIVESTOCK,INC., a corporation, and PHILLIPS CREEK RANCH, a corporation, Defendants and Respondents, ANNA KINJERSKI I Third Party Defendant and Appellant. Appeal from: District Court of the Nineteenth Judicial District, Honorable Robert M. Holter, Judge presiding. Counsel of Record: For Appellants: Morrison Law Offices, Missoula, Montana Frank Morrison, Sr., argued and Douglas Bauxbaum argued, Missoula, Montana For Respondents: Fennessy, Crocker, Harman & Bostock, Libby, Montana Thomas Bostock argued, Libby, Montana Submitted: November 1, 1979 Decided: DEC 2 7 j m Filed: E C z 7 Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. Plaintiff John Kinjerski brought this action to recover 49 head of cows, $22,000 earnest money, and seeking an account- ing of assets held by K & L Livestock, Inc. Defendants, Fritz Lamey and Phillips Creek Ranch, Inc. answered denying Kinjerski was entitled to relief and alleging several affirmative defenses. Defendants also counterclaimed, naming plaintiff's wife Anna as a third-party defendant and alleging that plaintiff and his wife were attempting to defraud defendants of the 49 head of cows. The jury returned a verdict in favor of the defendants on the issue of ownership of the 49 cows and the accounting, and in favor of plaintiff on the issue of the $22,000 earnest money. Plaintiff's motion for a new trial was denied and from that denial they appeal on the issue of the ownership of the 49 cows. Defendants' cross- appeal on the issue of the $22,000 earnest money, Neither party appeals from denial of the accounting. In 1976 defendants Lamey and Phillips Creek Ranch were urged by the Bank of Columbia Falls to take remedial steps to re- duce outstanding indebtedness to the Bank. Consequently, in order to raise money, Lamey decided to form a joint venture with Kinjer- ski. The joint venture was to be known as K & L Livestock, Inc. The principal assets of K & L were to be a certain number of regis- tered purebred Hereford cattle and a parcel of land, both to be purchased from the Ranch. The agreement contemplated that Kinjerski and Lamey would purchase a parcel of land from the Phillips Creek ranch by putting up $120,000 and assuming the outstanding mortgage on the land. Each party was to pay $60,000 of the $120,000 down payment. Kin- jerski contributed an initial $22,000 as earnest money while Lamey made no cash contribution to this end. Later when the contemplated purchase of the land did not transpire, Lamey drew an instrument acknowledging a debt of $22,000 to Kinjerski to be paid when the property was sold. Concerning the cattle that were to be purchased by K & L, Kinjerski was to purchase some cattle from Lamey and the Phillips Creek Ranch. Lamey drew a bill of sale stating that Lamey and the Phillips Creek Ranch sold to Kinjerski 131 head of cattle (80 cows, 31 bulls and 20 calves) for a total price of $59,000 of which $24,000 was paid leaving a balance of $35,000. Kinjerski claimed that he never received 49 of the 80 cows provided in the bill of sale. In April 1978, Kinjerski de- manded these 49 cows from Lamey. Upon Lamey's refusal, Kinjerski filed the present action. Prior to trial, Kinjerski's attorneys made a motion in limine to disallow any parol evidence to impeach, vary or contra- dict the terms of the bill of sale. This motion was denied with- out prejudice to later objections during the trial. Despite an objection during trial Lamey was allowed to testify that he had not received the $24,000. He was also allowed to testify that the parties intended that only 31 cows be transferred, that the other 49 cows were dead at the time that the bill of sale was written, and that the purpose of the arrangement was to boost Kinjerski's borrowing power. Kinjerski, in turn, testified that he paid the $24,000 and that the bill of sale constituted the entire transaction between the parties. The jury found that Lamey did not owe Kinjerski the 49 cows. They also found that Lamey owed Kinjerski $22,000 arising out of the purported agreement on the sale of the land. We will summarize the controlling issues on appeal in this manner : (1) The admissibility of evidence under the parol evi- dence rule. (2) Sufficiency of the evidence to support the judgment of $22,000 in favor of Kinjerski's. (3) Sufficiency of the evidence to support judgment in favor of Phillips Creek Ranch on ownership of the cattle. The parol evidence rule in Montana has been stated as follows : "'"The principle is well-established and of gen- eral application, subject to certain exceptions, that when a contract has been reduced to writing the contents of such writing cannot be added to, contradicted, altered, or varied by parol or extrinsic evidence, and that such writing super- sedes all oral negotiations concerning its matter which preceded, accompanied or led up to its exe- cution. This was the rule at common law, and has been embodied in the statute law of this state 11 I 11 . . . W. River Equip. v. Holzworth (1959), 134 Mont. 582, 588, 335 P.2d 298. Different aspects of this rule have been codified in Montana at sections 28-2-904, 28-2-905 and 28-2-1602, MCA. The parties in this case do not dispute the fact that the rule applies to the bill of sale. Respondents do contend, however, that the testimony which varied the terms of the bill of sale, was admissible under one or more of three exceptions to the parol evidence rule. Those exceptions are ambiguity, fraud, and failure of consideration. Under section 28-2-905(2) evidence may be introduced to explain an extrinsic ambiguity in a written agreement. In the instant case we find no ambiguity which would call for the appli- cation of this exception. Section 28-2-905(2) also allows the introduction of parol evidence to establish fraud. The case law in Montana is to the same effect. GoggaIi v. Winkley (1970), 154 Mont. 451, 459, 465 P.2d 326. Lamey was allowed to testify that the purpose of put- ting the figure of 80 cows instead of 31 cows on the bill of sale, was to boost Kinjerski's borrowing power. Lamey contends that this purpose constitutes fraud and that he was correctly permitted to give testimony that 49 of the cows were dead. The case of Higby v. Hooper (1950), 124 Mont. 331, 221 P.2d 1043 is closely analogous to the instant case and is controlling here. In the Higby case there was a written contract to the effect that the defendant would build a house for the plaintiffs for a certain sum. The defendant was allowed to tes- tify at trial that the contract price was merely an estimate to aid the plaintiffs in securing a loan and that there was an oral argreement that he was to receive costs plus 10%. The judg- ment was for defendant at trial court. This Court reversed, saying : "Under certain circumstances, none of which is here present, a person may show that the document in question was intended to serve the purpose of a mere jest, joke or sham. 'But a just policy would seem to concede this only when the pretense is a morally justifiable one (as, to calm a lunatic or to console a dying person). When it is morally beyond sanction, or aims at an evasion of the law or a deception of other persons, by intention of the parties, that intention will not be given effect.' 9 Wigmore on Evidence, 3d Ed., sec. 2406, subd. (I), pp. 16, 17. "The law does not allow parties to a contract to show that it was got up as a sham to deceive and de- fraud. Graham v . Savage, 110 Minn. 510, 126 N.W. 394, 396, 136 Am.St.Rep. 527, 19 Ann.Cas. 1022. So here the defendant will not be permitted to defeat his own solemn written contract by saying that it was given solely for a fraudulent and deceitful use." 124 Mont. at 350. Lamey was allowed to testify as follows: "Q. Your testimony is that you were both aware of those 49 cows not alive? A . Yes. "Q. What was the reason for that? "A. Well, it was just mainly to boost John's borrow- ing power. "Q. Was that specifically discussed at that time? A . Well, that is the only reason he could have wanted them for." In other words, Lamey was allowed to testify that his own bill of sale was a sham. Under Higby this testimony is not admissible under the fraud exception. It was error for this testimony to be admitted. There is another reason why the defendant may not rely upon the fraud exception to the parol evidence rule. Under Rule 9(b), M.R.Civ.P. the circumstances constituting fraud must be stated with particularity. The elements of fraud under Mon- tana law are: " . . . (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) the intent that it should be acted upon in the manner contemplated; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance upon its truth; (8) the right of the hearer to rely thereon; and (9) the hearer's consequent and proximate injury or damage." Hutton v . Ming (1970), 155 Mont. 149, 153, 469 P.2d 688. In the present case, the defendant's answer in one instance makes a bald assertion of fraud. In another instance it merely states the fact that the recitation of the 49 additional cattle on the bill of sale was at Kinjerski's request and that the insti- tution of this action constitutes fraud. Nowhere in the answer or counterclaim does it appear that Lamey was ignorant of the fact that 49 of the cows were dead or that he relied upon the truth of any of Kinjerski's representations. The defense of fraud was not properly pleaded and it may not be used as a defense or an exception to the parol evidence rule under the facts of this case. Respondents next allege that Lamey's testimony that he did not receive the $24,000 was admissible under the failure of consideration exception to the parol evidence rule. "It is frequently held that a want or failure of consideration, either whole or in part, may be shown by parol, and that this is true at least as between the original parties to the instrument in question." 32A C . J . S . Evidence S948. This exception, however, must be limited in its applica- tion. The rule in Montana was stated in Warner v . Johns (1949), 122 Mont. 283, 201 P.2d 986: "The rule with a long line of supporting author- ities is stated in 32 C.J.S., Evidence, sec. 958, page 889, as follows: 'Where the statement in a written instrument as to the consideration is more than a mere statement of fact or acknowledgement of payment of a money consideration, and is of a contractual nature, as where the consideration con- sists of a specific and direct promise by one of the parties to do certain things, this part of the contract can no more be changed or modified by parol or extrinsic evidence than any other part, for a party has the right to make the consideration of his agreement of the essence of the contract, and when this is done the provision as to the consider- ation for the contract must stand on the same plane as the other provisions of the contract with refer- ence to conclusiveness and immunity from attack by par01 or extrinsic evidence . . . 1 11 122 Mont. at 288-289. The recitation as to the $24,000 in the bill of sale in the instant case is more than the acknowledgement of payment of money consideration. It constitutes the central element of the contract. That is, 131 cattle for $59,000; $24,000 having been paid. Lamey's testimony that he did not receive the $24,000 varied the written terms of the contract. Lamey is not attempt- ing to compel payment of the $24,000. He is seeking to escape the legal effect of the bill of sale. The testimony is inadmissible for this purpose. 32A C.J.S. Evidence, S956. Defendants contend that the verdict as to the issue of cattle ownership is sustained by substantial credible evidence even if the parol evidence is disregarded. They contend that even if it were error to admit such evidence, that it was harmless error. Lamey testified that 49 dead cows were added to the bill of sale in order to induce the bank to loan more money to Kinjer- ski. Lamey also testified that he did not receive the $24,000. Both of these items of testimony were inadmissible under the parol evidence rule. The jury found that Kinjerski was not entitled to 49 of the 80 cows listed on the bill of sale. From our review of the record we find that the jury could not have reached this conclusion without relying on the wrongfully admitted evidence. Because this evidence was admitted, the plaintiff's rights were substantially affected. When such is the case, it cannot be said that this is harmless error. Ehni v . N.P. and White Pine Co. (1969), 152 Mont. 373, 381, 450 P.2d 882. Finally, respondents contend that the verdict against them for $22,000 based on Lamey's guarantee to Kinjerski was not supported by substantial credible evidence. This written guar- antee stipulated that Lamey did not owe the $22,000 to Kinjerski until the property was sold. There is no evidence that the prop- erty was sold. The general rule is that a bill payable on condition does not mature until the performance of the condition. Where the time fixed, however, is for the convenience of the parties and the future event does not happen as contemplated the law implies a promise to pay in a reasonable time. 10 C.J.S. Bilk and Notes, S245(d). In the instant case the $22,000 was to be repaid from the proceeds of the sale of the property. It is apparent that this provision was for the convenience of the parties. That is, the $22,000 would not be available until that time. Consequently, the reasonable time standard would apply. Obviously the jury must have found that a reasonable time had elapsed. They found for plaintiffs on this issue. The instrument itself provided sub- stantial credible evidenee that the money was owed to plaintiff. This supports the jury's verdict. The verdict as to the $22,000 owed by Lamey to Kinjerski is affirmed. As to the issue of the ownership of the 49 cows, cause reversed and appellants awarded a new trial. Chief Justice | December 27, 1979 |
47845d1d-003c-424d-a1d2-0c25e72948de | BRITTON v BURLINGTON NORTHERN IN | N/A | 14927 | Montana | Montana Supreme Court | No. 14927 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 JOHN R . BRITTON, Plaintiff and Respondent, BURLINGTON NORTHERN INC., a corporation, Defendant and Appellant. Appeal from: District Court of the Nineteenth Judicial District, Honorable Robert M. Holter, Judge presiding. Counsel of Record: For Appellant: Fennessy, Crocker, Harman and Bostock, Libby, Montana Kurt W. Kroschel, Billings, Montana For Respondent : Hoyt, Trieweiler, Lewis & Regnier, Whitefish, Montana Submitted: November 2, 1979 Decided :j, ''! Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Respondent has moved to dismiss this appeal on the ground that this Court lacks jurisdiction thereof because appellant did not file its notice of appeal within the time permitted by Rule 5, M.R.App.Civ.P. Respondent John R. Britton filed an action for damages against appellant Burlington Northern, Inc. in the District Court of Lincoln County, Montana. On May 25, 1979, the jury returned a verdict of $140,000 in favor of respondent. On May 31 judgment was entered thereon. On June 1 the Clerk of the District Court mailed notice of entry of this judgment to counsel for both parties. On June 6 appellant mailed to the Clerk of the District Court and to counsel for respondent its motion for a new trial and for an extension of time to file a supporting brief. On June 11 the District Court granted appellant until June 25 to file its supporting brief. On June 13 appellant mailed to the Clerk of the District Court and to counsel for respondent its amended motion for a new trial. On June 25 appellant filed and served its supporting brief. Neither the original nor the amended notice for a new trial contained a notice of hearing. No hearing has ever been held. The motion was submitted on appellant's brief. On July 20, the District Court denied appellant's motion for a new trial. On August 2 appellant mailed to the Clerk of the District Court and to counsel for respondent its notice of appeal. The notice of appeal was received and filed on August 3 by the Clerk of the District Court. On August 15 appellant's counsel flew from Billings to Libby, contacted the District Judge at his home that evening. Appellant's counsel presented to the District Judge ex parte a motion for an order extending the time for filing the notice of appeal 30 days. The District Judge signed an order granting the extension, a second notice of appeal was filed with him, and a notation was made that it was filed with him at his home at 10:OO p.m. Affidavits filed by counsel for the respective parties contain conflicting facts concerning the attempts made to notify counsel for respondent of this contemplated activity, In the meantime on August 8, respondent's counsel mailed respondent's motion to dismiss this appeal with supporting legal memorandum to appellant's counsel. The motion to dismiss was re- ceived and filed with this Court on August 15. According to the affidavit of appellant's counsel he did not receive the motion to dismiss until August 15. Briefs have been filed by counsel for both parties and the motion to dismiss has been submitted to us for decision. Appellant's motion for a new trial was timely filed. Rule 59 (b) , M . R.Civ.P. This motion suspended the running of the time for filing the notice of appeal. Rule 5, M.R.App.Civ.P. The District Court's order extending the time for filing a supporting brief by necessary implication extended the time for its ruling on the motion. A fair reading of the record likewise indicates the motion was to be submitted on the brief. Accordingly, the 10 day period in which such motion had to be decided or deemed denied did not commence running on June 6 and expire on June 16, not- withstanding the fact that the motion was not noticed for hearing nor a hearing held thereon. See Rule 59(d), M.R.Civ.P. Otherwise, the District Court would be placed in the untenable position of having to rule on the motion for a new trial before appellant's brief was submitted or the motion would be deemed denied. This would be unconscionable. We hold that the time within which the District Court was required to rule on the Motion in this case commenced running on June 25 when appellant's brief was filed. The 15 day period for its ruling expired on July 5 . Rule 59(d), M.R.Civ.P. It was automatically deemed denied on that date and its order of denial on July 20 was null and void and of no force or effect. Rule 59(d), M.R.Civ.P. Appellant had 30 days thereafter in which to file its notice of appeal. Rule 5, M.R.App.Civ.P. The notice of appeal was filed August 3 within such 30 day period. This invested this Court with jurisdiction to hear this appeal. This case is distinguishable from Leitheiser v . Montana State Prison (1973), 161 Mont. 343, 505 P.2d 1203, cited by respondent. There the District Court granted no extension of time for filing briefs and thus extending the time for its de- cision. The contrary occurred here. In any event the District Court cannot extend the period for hearing or submission on briefs beyond 30 days. Rule 59(d), M.R.Civ.P. Respondent's motion to dismiss this appeal is denied. Chief Justice We concur: f - | November 1, 1979 |
be253001-acfb-4f5e-b47c-2ee0218418e9 | APPLICATION OF PIERCE | N/A | 14784 | Montana | Montana Supreme Court | No. 14784 I N THE S U P R E M E COURT O F THE STATE O F M O N T A N A 1979 I N RE T H E APPLICATION O F W A L T AND JUDE PIERCE. Appeal from: D i s t r i c t Court of t h e Tenth J u d i c i a l District, Honorable LeRoy L. McKinnon, Judge presiding. Counsel of Record: For Appellant: Berger, Anderson, S i n c l a i r and Murphy, B i l l i n g s , Montana James S i n c l a i r argued, B i l l i n g s , Montana For Respondent: Bradley P a r r i s h argued, Lewistown, Montana Submitted: September 25, 1979 Decided: OCT 2 5 1978 7 - Filed: y C j 2 5 : ~ - d M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e Court. W a l t and Judy Pierce, parents of Katherine Frances P i e r c e , p e t i t i o n e d t h i s Court f o r a w r i t of supervisory c o n t r o l o r o t h e r appropriate w r i t t o secure t h e custody of Katherine. W e deny t h e r e l i e f requested. O n November 29, 1978, Katherine Frances P i e r c e p e t i - tioned t h e D i s t r i c t Court of t h e Tenth J u d i c i a l D i s t r i c t , County of Fergus, under t h e provision of s e c t i o n 41-5-921, MCA, t o p l a c e her with her maternal grandparents, Burton T. and Frances E. Raw, a t G a r n e i l l , Montana. H e r p e t i t i o n noted t h a t on November 20, 1978, she r a n away from her p a r e n t a l home i n Powell, Wyoming. It a l l e g e d t h a t she had s u f f e r e d physical and mental abuse from her p a r e n t s over a period of years, and t h a t she d e s i r e d t o be placed i n t h e custody of her grandparents. The cause was set f o r hearing on December 20, 1978. Bradley P a r r i s h , counsel f o r Katherine Frances, s e n t a n o t i c e of t h e hearing t o M r . and M r s . Walter P i e r c e a t Powell, Wyoming. Hearing w a s held on December 20, 1978, which M r . and M r s . P i e r c e d i d n o t a t t e n d on advice of counsel, wherein t h e D i s t r i c t Court found it had j u r i s d i c - t i o n under t h e provisions of s e c t i o n 41-5-921, MCA, and placed Katherine Frances i n t h e custody of her grandparents i n l i e u of placing her i n a d i s t r i c t guidance home. P e t i t i o n e r s , Walt and Judy P i e r c e , p e t i t i o n e d t h e Juvenile Court, Park County, Wyoming, f o r an order giving them custody of Katherine Frances, under t h e I n t e r s t a t e Compact on Juveniles. I n t h e i r p e t i t i o n they a l l e g e d t h a t Judy had run away from home, t h a t she was with her grand- p a r e n t s , t h e R a w s , and t h a t it was i n t h e b e s t i n t e r e s t s and p r o t e c t i o n of Katherine Frances t h a t she be returned t o t h e l e g a l custody o f h e r parents. The p e t i t i o n requested t h a t an o r d e r be issued d i r e c t i n g any peace o f f i c e r o r appropri- a t e person i n Montana t o t a k e Katherine Frances i n t o custody and d e t a i n her. Such a n o r d e r and r e q u i s i t i o n was i s s u e d by t h e Wyoming c o u r t on December 18, 1978. However, because they had t o be processed through s t a t e o f f i c e s i n Helena, Montana, t h e o r d e r and r e q u i s i t i o n d i d n o t reach Fergus County, Montana, u n t i l sometime i n January. Upon r e c e i p t o f t h e o r d e r and r e q u i s i t i o n from Wyoming, t h e Honorable LeRoy L. McKinnon set a hearing d a t e f o r January 25, 1979. A t t h a t hearing a l l i n t e r e s t e d p a r t i e s appeared with counsel. Testimony w a s given by both p e t i - t i o n e r s , by t h e grandparents, by Katherine Frances, by Sherry P i e r c e , Katherine's sister, and by Susan Briggs. Counsel w e r e given t i m e t o submit b r i e f s t o t h e c o u r t , and on March 28, 1979, t h e c o u r t i s s u e d i t s f i n d i n g s of f a c t , conclusions of law and o r d e r , denying t h e r e q u i s i t i o n from t h e S t a t e of Wyoming. The f i n d i n g s of f a c t and conclusions of l a w s t a t e d : "1. That on t h e 30th day of November, 1978, t h e s a i d Katherine Frances P i e r c e f i l e d a p e t i t i o n h e r e i n under Section 10-1247, R.C.M. 1947 a s amended, now Section 41-5-921 M.C.A., asking t o be placed i n t h e custody of h e r maternal grand- p a r e n t s i n l i e u of a D i s t r i c t Youth Guidance Home. That hearing thereon came on r e g u l a r l y December 20, 1978; t h a t o r d e r thereon i s s u e d December 27, 1978, placing s a i d youth i n t h e custody of h e r maternal grandparents, Burton T. and Frances E. Raw, of G a r n e i l l , Montana. "2. That on t h e 25th day of January, 1979, hear- i n g came on r e g u l a r l y on Order and Requisition from County of Park, S t a t e of Wyoming, which ap- p a r e n t l y came i n t o t h e J u v e n i l e Department, and had n o t been f i l e d with t h e Clerk of Court. "3. That t h e p a r e n t s of s a i d youth appeared and t e s t i f i e d t h a t s a i d youth has problems, and t h a t they have made arrangements t o p l a c e h e r i n a n i n s t i t u t i o n . They f u r t h e r t e s t i f i e d t h a t they had n o t i c e of t h e hearing on t h e p e t i t i o n of s a i d youth, b u t being advised t h a t they had n o t been properly served, they e l e c t e d n o t t o attend s a i d hearing. " 4 . That t h e maternal grandparents t e s t i f i e d t h a t they have no indication of any problem; t h a t they g e t along well with s a i d youth; t h a t said youth takes c a r e of her own room and helps her grandmother prepare meals and do up dishes; t h a t s a i d youth i s enrolled i n high school a t Moore, Montana, and i s earning A ' s and B ' s ; t h a t the s a i d school teachers i n d i c a t e no problem whatever, t h a t s a i d youth i s doing very w e l l . That an aunt of s a i d youth who l i v e s i n a separate home on t h e s a m e farmstead with t h e grandparents t e s t i f i e d t o t h e same e f f e c t as t h e grandparents. "5. Said youth t e s t i f i e d t h a t t h e r e is no love i n her parental home; t h a t she was an unwanted c h i l d ; t h a t she has constantly been threatened with i n s t i t u t i o n a l i z a t i o n ; t h a t she has been t o l d t h a t t h e minute she i s eighteen, s h e ' s o u t of t h e house. That t h e r e i s love and caring i n her grandparents home, t h a t she i s accepted there, and t h a t she wants t o s t a y there. "From t h e foregoing f a c t s , t h e Court draws t h e following CONCLUSIONS OF LAW "1. That t h e s a i d Katherine Frances Pierce has no support t o enable her t o present her s i t u a t i o n t o a Court i n t h e S t a t e of Wyoming. "2. That it i s n o t i n the b e s t i n t e r e s t of t h e s a i d youth t o be returned t o t h e S t a t e of Wyoming. " 3 . That t h e b e s t i n t e r e s t s of s a i d youth, and of society a t l a r g e would be served by leaving her i n t h e c a r e , custody and c o n t r o l of M r . and M r s . Burton T. Raw, Garneill, Montana." P e t i t i o n e r s f i l e d t h i s p e t i t i o n f o r a w r i t of super- visory control t o set a s i d e the orders of Judge McKinnon dated December 27, 1978, and March 28, 1979, and t o r e t u r n Katherine Frances t o her parents i n t h e S t a t e of Wyoming pursuant t o t h e I n t e r s t a t e Compact on Juveniles. Three contentions a r e set f o r t h by p e t i t i o n e r s : 1. That t h e Honorable LeRoy L. McKinnon s u b s t i t u t e d h i s judgment f o r t h a t of t h e judge of t h e demanding state, namely, t h e S t a t e of Wyoming, on what was t h e b e s t i n t e r e s t s of t h e c h i l d ; 2. hat t h e Honorable LeRoy L. McKinnon exceeded t h e j u r i s d i c t i o n bestowed upon him pursuant t o t h e I n t e r s t a t e Compact on Juveniles; and 3 . That t h e Honorable LeRoy L. McKinnon deprived t h e Wyoming p a r e n t s of t h e minor c h i l d of custody of t h e c h i l d and t h a t h i s order i s i n excess of t h e j u r i s d i c t i o n granted him. W e f i r s t look t o t h e f a c t u a l s i t u a t i o n faced by Judge McKinnon when Katherine Frances f i l e d her p e t i t i o n i n h i s c o u r t on November 29, 1978. Her p e t i t i o n revealed she had l e f t her p a r e n t a l home, gave t h e reasons f o r leaving, and sought t h e p r o t e c t i o n of t h e c o u r t under s e c t i o n 41-5-921, MCA. She was not, nor had she ever been, declared a d e l i n - quent c h i l d e i t h e r i n Wyoming o r Montana, b u t was a runaway c h i l d . While t h e above s t a t u t e provides f o r placement i n a d i s t r i c t youth guidance home, t h e f a c t t h a t t h e Tenth Judi- c i a l D i s t r i c t had no such home d i d n o t of i t s e l f preclude Judge McKinnon from accepting j u r i s d i c t i o n of t h e cause. J u r i s d i c t i o n having attached, t h e cause properly remained before Judge McKinnon. It w a s within h i s d i s c r e t i o n t o have her placed i n a s t a t e i n s t i t u t i o n o r an approved a f t e r c a r e program. Because Katherine Frances w a s n o t a delinquent c h i l d , b u t one i n need of a home with tender loving c a r e , Judge McKinnon, i n t h e e x e r c i s e of h i s broad d i s c r e t i o n , properly used t h a t d i s c r e t i o n i n granting her request t o be placed with her grandparents. W e are not faced here, as argued by p e t i t i o n e r s , with t h e s a m e f a c t s o r l e g a l problems presented i n I n t h e Matter of Aschenbrenner (1979) , - Mont. , 597 P.2d 1156, 36 St.Rep. 1282. I n t h a t c a s e t h e grandparents p e t i t i o n e d t h e c o u r t f o r a guardianship of t h e i r grandchildren and t h e mother appealed t h e t h e t r i a l c o u r t ' s decision. W e reversed, holding t h a t a guardianship proceeding i s n o t a proper means t o terminate a p a r e n t ' s c o n s t i t u t i o n a l r i g h t t o custody of h i s o r her child. Here, unlike Aschenbrenner, Katherine Frances i s t h e p e t i t i o n e r under an e n t i r e l y d i f f e r e n t s t a t u - t o r y procedure. Nor do w e f i n d our r e c e n t case of Wenz v. Schwartze (1979) I Mont. , 598 P.2d 1086, 36 St.Rep. 1360, c o n t r o l l i n g . This case w i l l be discussed i n our discussion of o t h e r i s s u e s r a i s e d by p e t i t i o n e r s . Here, Katherine Frances f i l e d her p e t i t i o n , a s a youth i n need of care, and later changed t h e same t o request placement with her grand- parents, and as of t h e d a t e of hearing, November 29, 1978, t h e D i s t r i c t Court properly assumed j u r i s d i c t i o n a s requested. The second i s s u e challenging Judge McKinnon's r i g h t t o continue j u r i s d i c t i o n once he w a s presented with the order and r e q u i s i t i o n from t h e S t a t e of Wyoming r a i s e s s e v e r a l issues. F i r s t , it must be decided i f t h e I n t e r s t a t e Compact on Juveniles empowers t h e D i s t r i c t Court t o a c t beyond refusing t o r e t u r n a youth t o a r e q u i s i t i o n i n g state pursu- a n t t o a hearing under t h e Compact. Second, it must be determined i f t h e Uniform Child Custody J u r i s d i c t i o n Act (UCCJA) precludes t h e D i s t r i c t Court from denying enforce- ment of t h e Wyoming decree and placing Katherine i n her grandparents' custody. Section 41-6-105, MCA, p e r t a i n s t o t h e f i r s t question presented under t h i s issue. That s e c t i o n reads: "The courts, departments, agencies, and o f f i c e r s of t h i s s t a t e and i t s subdivisions s h a l l enforce t h i s compact and s h a l l do a l l things appropriate t o t h e e f f e c t u a t i o n of i t s purposes and i n t e n t which may be within t h e i r respective jurisdic- tions. " The broad language of t h i s s e c t i o n granting t h e c o u r t s of Montana t h e a u t h o r i t y t o "do a l l t h i n g s appropriate" t o c a r r y o u t t h e purposes of t h e Compact should include t h e power t o p l a c e a youth i n a p r i v a t e home on determining t h e c h i l d should n o t be returned t o t h e r e q u i s i t i o n i n g s t a t e . Beyond t h e s t a t u t o r y language, I n R e Welfare of Wiles (1976), 15 Wash.App. 61, 547 P.2d 302, s u b s t a n t i a t e s t h i s i n t e r p r e t a t i o n of t h e c o u r t ' s power under t h e Compact. Although t h e Washington c o u r t d i d n o t s p e c i f i c a l l y address t h e question before us, t h e p r a c t i c a l e f f e c t of t h e d e c i s i o n was t o place t h e youth involved i n t h e matter i n t h e custody of her mother i n Washington d e s p i t e t h e e x i s t e n c e of a c o u r t o r d e r i n Oregon g r a n t i n g custody of t h e c h i l d t o t h e S t a t e of Oregon. The second problem under t h i s i s s u e a r i s e s due t o t h e December 18 order issued by t h e Wyoming c o u r t f i n d i n g Walt and Judy P i e r c e e n t i t l e d t o l e g a l custody of Katherine. This order meets t h e d e f i n i t i o n of "decree" set o u t i n s e c t i o n 40-7-103(4), MCA, thus bringing t h e matter within t h e purview of t h e UCCJA. Under t h e UCCJA, t h e D i s t r i c t Court of Montana must have j u r i s d i c t i o n over t h e c h i l d and j u r i s d i c t i o n t o modify an out-of-state decree before e n t e r i n g a v a l i d decree i n Montana. Wenz v. Schwartze, 598 P.2d a t 1093. Section 40- 4-211 (1) ( c ) (ii) , MCA, a p o r t i o n of t h e UCCJA j u r i s d i c t i o n s t a t u t e incorporated by reference, allows t h e ~ i s t r i c t Court t o invoke j u r i s d i c t i o n over a c h i l d p r e s e n t i n t h e s t a t e when it i s necessary t o p r o t e c t t h e c h i l d because of threatened mistreatment o r abuse. Since t h e ~ i s t r i c t Court found t h a t t o be t h e s i t u a t i o n here, t h e c o u r t had j u r i s - d i c t i o n over Katherine. Regarding t h e enforcement of t h e Wyoming decree under t h e UCCJA, t h e Court s t a t e d i n Wenz, ". . . before t h e recognition and enforcement provisions of t h e Act can be applied, t h e i n i t i a l decree must be entered i n conformity with s t r i c t n o t i c e requirements." 598 P.2d a t 1095. See a l s o s e c t i o n 40-7-114, MCA. I f t h e r e i s no compliance with t h e n o t i c e requirements of t h e UCCJA by t h e s t a t e e n t e r i n g t h e i n i t i a l decree, Montana c o u r t s are n o t required t o recognize and enforce t h e out-of-state decree. Wenz, 598 P.2d a t 1096. H e r e , n o t i c e of t h e Wyoming hearing w a s n o t given t o t h e Raws, t h e persons i n physical custody of Katherine, c o n t r a r y t o t h e requirements of s e c t i o n 40-7-105, MCA. Under Wenz t h e D i s t r i c t Court, t h e r e f o r e , w a s n o t required t o recognize o r enforce t h e Wyoming order. The l a s t i s s u e challenges Judge McKinnon's order placing Katherine i n her grandparents' home, a l l e g i n g t h a t he acted i n excess of h i s j u r i s d i c t i o n and deprived t h e p e t i t i o n e r s t h e custody of t h e i r minor c h i l d . P e t i t i o n e r s argue t h a t t h e D i s t r i c t C o u r t ' s order placing Katherine with her grandparents modified t h e Wyoming decree. Section 40-7-115, MCA, r e q u i r e s t h e Montana c o u r t s t o d e f e r t o t h e c o u r t s of a s t a t e which f i r s t g r a n t s a custody decree. Under t h i s s e c t i o n , Wyoming r e t a i n s almost exclusive j u r i s d i c t i o n t o determine Katherine's custody unless Wyoming no longer has j u r i s d i c t i o n a l p r e r e q u i s i t e s s u b s t a n t i a l l y i n accordance with t h e UCCJA, o r has declined t o assume j u r i s d i c t i o n and t h e c o u r t of t h i s state has j u r i s d i c t i o n . Wenz, 598 P.2d a t 1096. Since t h e ~ y o m i n g c o u r t has n o t declined t o assume j u r i s d i c t i o n , Montana c o u r t s must d e f e r t o Wyoming's c o u r t s with r e s p e c t t o modi- f i c a t i o n unless those c o u r t s no longer have j u r i s d i c t i o n under j u r i s d i c t i o n a l p r e r e q u i s i t e s s u b s t a n t i a l l y i n accordance with t h e UCCJA. Making t h i s determination e n t a i l s once again c o n s i d e r a t i o n of t h e j u r i s d i c t i o n a l standards set o u t i n s e c t i o n 40-4-211, MCA, t h i s t i m e t o decide i f t h e Wyoming c o u r t s still have j u r i s d i c t i o n over Katherine. Section 40-7-103(5), MCA, d e f i n e s "home s t a t e " a s ". . . t h e s t a t e i n which t h e c h i l d , immediately preceding t h e t i m e involved, l i v e d with h i s p a r e n t s . . . f o r a t l e a s t 6 consecutive months . . ." Under s e c t i o n 40-4-211 (1) ( a ) (i) , MCA, state c o u r t s have j u r i s d i c t i o n over c h i l d r e n i f t h e state i s t h e c h i l d ' s home s t a t e . Reading t h e s e two s e c t i o n s t o g e t h e r , t h e f a c t s here show t h a t t h e Wyoming c o u r t s re- t a i n e d j u r i s d i c t i o n over Katherine under t h e UCCJA. The District Court, t h e r e f o r e , d i d n o t have j u r i s d i c t i o n t o modify t h e Wyoming c o u r t ' s custody decree. W e f i n d t h a t t h e i n t e r a c t i o n of t h e I n t e r s t a t e Compact on J u v e n i l e s and t h e UCCJA p l a c e s t h e D i s t r i c t Court i n t h e following s i t u a t i o n : t h e c o u r t has t h e a u t h o r i t y under t h e Compact t o deny Wyoming's r e q u i s i t i o n o r d e r i n g Katherine be r e t u r n e d t o Wyoming and p l a c e Katherine i n t h e custody of h e r grandparents; under t h e UCCJA, t h e c o u r t i s n o t r e q u i r e d t o recognize o r enforce t h e Wyoming o r d e r , b u t t h e c o u r t i s precluded from modifying t h e order. Considering t h e March 28 o r d e r , t h e D i s t r i c t Court merely concluded t h a t Katherine's b e s t i n t e r e s t would be served by having h e r i n t h e custody of h e r grandparents and ordered t h e Wyoming r e q u i s i t i o n denied. The c o u r t d i d n o t modify t h e Wyoming o r d e r . This procedure appears t o be allowed under t h e i n t e r a c t i o n of t h e I n t e r s t a t e Compact on Juveniles and t h e UCCJA. Therefore, t h i s Court should n o t set a s i d e t h e D i s t r i c t C o u r t ' s March 28 o r d e r . The p e t i t i o n f o r a w r i t of supervisory c o n t r o l i s denied. W e concur: g h i e f J u s t i c e M r . Chief J u s t i c e Frank I. Haswell s p e c i a l l y concurring: I concur i n t h e r e s u l t . 2 4 A - k 4 % - Chief J u s t i c e | October 25, 1979 |
ac966b5f-858a-4be2-a85b-1d02af15eafa | MOUNTAIN STATES TELEPHONE v COMMIS | N/A | 14557 | Montana | Montana Supreme Court | N o . 14557 I N T H E S U P R E M E COURT O F T H E STATE O F MONTANA 1979 THE M O U N T A I N STATES TELEPHONE AND TELEGRAPH C O M P A N Y , a Colorado Corporation, P l a i n t i f f and Respondent, T H E COMMISSIONER O F L A B O R AND INDUSTRY O F THE STATE O F M O N T A N A e t a l . , Defendants and Appellants. Appeal from: D i s t r i c t Court of t h e F i r s t J u d i c i a l District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellants: Rosemary B. Zion argued, Helena, Montana Clay Smith argued, Denver, Colorado James Gardner, Helena, Montana For Respondent: Hughes, Bennett and Cain, Helena, Montana John F. Sullivan argued, Helena, Montana Submitted: September 19, 1979 Decided : I 1979 Mr. Justice Gene B. Daly delivered the Opinion of the Court. This litigation originated as an administrative pro- ceeding in the state Department of Labor and Industry. The decision of the administrative hearing was adverse to Moun- tain States Telephone and Telegraph Company (hereinafter "Mountain Bell") and judicial review and declaratory relief were sought. The District Court of the First Judicial District, Lewis and Clark County, entered judgment for Mountain Bell remanding the parties to the administrative level where the original proceeding could be dismissed. Appellants appeal from that judgment, and Mountain Bell, as respondent, cross-appeals from certain dicta included in the District Court opinion. Mountain Bell is a Colorado corporation engaged in interstate commerce throughout the Rocky Mountain west, including Montana. It is a signatory to a collective bar- gaining agreement with the Communication Workers of America (CWA), a labor union. This agreement provides that an employee may request up to one year's maternity leave but may receive no benefits during pregnancy except death bene- fits. Rae Bauer, a member of CWA, was an operator for Moun- tain Bell in Great Falls, Montana, and had been so employed since 1973. She became pregnant in the spring of 1975. Because of a past history of gynecological problems and on the advice of her doctor, she began a leave of absence on October 15, 1975. She gave birth on January 20, 1976, but did not return to work until October 11, 1976. Under the Mountain Bell disability benefits plan, she was clearly ineligible for compensation for the pregnancy leave taken. The company traditionally denied disability benefits for pregnancy-related conditions. On February 11, 1976, Rae Bauer filed a complaint under the Maternity Leave Act of the State of Montana, section 41- 2601 et. seq., R.C.M. 1947, now section 39-7-201 et seq., MCA, alleging that she was entitled to certain maternity leave benefits. After an administrative hearing, it was found that the Department of Labor and Industry had juris- diction over the matter. As a result of a second administra- tive hearing, the claim for benefits was dismissed. All parties excepted to the result of this hearing. The commis- sioner issued a decision which, in effect, said the Maternity Leave Act governed the situation and that benefits were payable. In so holding, the commissioner rejected Mountain Bell's argument that either the federal Employee Retirement Income Security Act of 1974 (ERISA) or the Labor Management Relation Act of 1947, as amended (LMRA), preempted the state law. Further, under the state act, the phrase "disabled as a result of pregnancy" meant all disabilities related to pregnancy and that pregnancy meant both pre- and post- childbirth conditions. The next day, the commissioner adopted the decision as part of the department's admin- istrative rules. Mountain Bell subsequently sought judicial review of the decision as well as to have the rules of the department declared invalid. On August 17, 1978, the District Court concluded that the federal laws did preempt the operation of the state law and that the state law was unenforceable against Mountain Bell. From that portion of the court's ruling, appellants appeal. By way of dicta, the ~istrict Court opinion said, for intrastate enterprises, the state law required that benefits be paid for all pregnancy-related occurrences, whether normal or abnormal, and that the statute applied from the beginning of disability through the termina- tion of gestation and for a reasonable time afterwards. From this portion of the opinion, Mountain Bell cross- appeals. The following issues have been presented to this Court for review: 1 . Does either the Employee Retirement Income Security Act of 1974, 29 U.S.C. SlOOl et seq., or the Labor Manage- ment Relations Act of 1947, as amended, 29 U.S.C. S141 et seq., preempt the application of section 39-7-203(3), MCA, of the Montana Maternity Leave Act to respondent/cross- appellant, the Mountain States Telephone and Telegraph Company? 2 . Whether the above Montana statute must be construed to confer benefits for normal and abnormal pregnancy dis- abilities and to pre- and post-childbirth conditions? Appellants/cross-respondents' position can be summarized as follows: (1) The Montana Maternity Leave Act is not preempted by the Employee Retirement Income Security Act or by federal labor laws. (2) Congress did not intend to legislate within ERISA on employment discrimination. Regulation of this field was left subject to Title VII of the Civil Rights Act of 1964. ERISA does not affect the operation of Title VII. (3) Title VII is based upon a model of state and federal cooperation. It provides for deferral to state anti-discrim- ination agencies of Title VII complaints and protects state laws which do not conflict with Title VII from preemption by that Act. (4) These provisions are part of a congressional pur- pose to encourage the development of state anti-discrimination laws* his purpose, which is essential to Title VII, would be impaired if ERISA were held to prohibit states from enacting anti-discrimination laws such as the Maternity Leave Act. (5) ~ i t l e VII affirmatively protects state anti-dis- crimination laws from preemption. Operation of local laws is an integral part of legislative scheme of Title VII. (6) The United States Supreme Court has refused to find preemption in areas where Congress has intended to foster cooperation. (7) The recent enactment of the Pregnancy Disability Act, a law amending Title VII, specifically overturned General Electric Co. v. Gilbert (1976), 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343, and made it clear that Congress did not preempt state pregnancy disability laws by enacting ERISA. (8) Federal labor laws do not preempt the Montana Maternity Leave Act. Applying a balancing test, the interest of the state in providing economic protection to its women workers clearly outweighs any implied incursions into the territory occupied by NLRA/LMRA. (9) Title VII also protects the Montana statute from preemption by federal labor law. (10) The statutory protection afforded by Title VII and the Montana Maternity Leave Act are in the nature of an independent right and cannot be waived through collective bargaining. (11) There is a presumption in favor of the validity of state statutes which deal with an area of traditional state concern. (12) The Montana Maternity Leave Act clearly applies to all periods of disability occurring as a result of pregnancy, whether these periods of disability are normal or unusual, and regardless of whether they occur before or after child- birth. Respondent/cross-appellant takes a generally contrary position. The Equal Employment Opportunity Commission, appearing by amicus brief, argues that state fair employment laws such as section 39-7-201 et seq., MCA, are not preempted by ERISA for the reasons stated in Bucyrus-Erie C q . v. Department of Industry, Etc. (7th Cir. 1979), 599 F.2d 205, and for the reasons stated in the briefs of appellants/cross-respondents. ERISA PREEMPTION -- OF THE MONTANA ACT The first issue facing this Court is whether section 39-7-203(3), MCA, is preempted by the Employee Retirement Income Security Act (ERISA, P.L. 93-406, 88 Stat. 897, enacted September 2, 1974, and in particular 5514 thereof, codified as 29 U.S.C. 51144 and referred to herein as 51144). Section 39-7-203(3), MCA, of the Montana Maternity Leave Act, provides in pertinent part: "It shall be unlawful for an employer or his agent to: "(3) deny to the employee who is disabled as a result of pregnancy any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by her employer . . ." The preemption provision of ERISA, 29 U.S.C. 51144(a), provides in pertinent part: " (a) except a s provided i n subsection (b) of t h i s s e c t i o n , t h e provisions of t h i s subchapter . . . s h a l l supersede any and a l l S t a t e laws i n s o f a r a s they may now o r h e r e a f t e r r e l a t e t o any employee b e n e f i t plan described i n s e c t i o n 1003(a) of t h i s t i t l e . . ." 29 U.S.C. 51003(a) makes t h e above s e c t i o n a p p l i c a b l e t o any b e n e f i t plan e s t a b l i s h e d o r maintained by any employer engaged i n i n t e r s t a t e commerce. There i s no d i s p u t e t h a t Mountain B e l l is engaged i n i n t e r s t a t e commerce nor is t h e r e any d i s p u t e t h a t Mountain B e l l ' s employee b e n e f i t plan i s covered by ERISA. Mountain B e l l argues, and t h e D i s t r i c t Court held, t h a t t h e f e d e r a l government has c l e a r l y and unambiguously occupied t h e f i e l d with r e s p e c t t o employee h e a l t h and welfare bene- f i t s and has preempted t h e s t a t e s from i n any way r e g u l a t i n g such b e n e f i t s o t h e r than by t h e s p e c i f i c exemptions provided i n 29 U.S.C. 51144(b), exemptions which admittedly do n o t apply here. Appellants do n o t agree. They contend t h a t t h e Montana s t a t u t e i s exempted from ERISA preemption by 29 U.S.C. §1144(d), which d e c l a r e s , " [ n l o t h i n g i n t h i s subchapter s h a l l be construed t o a l t e r , amend, modify, i n v a l i d a t e , impair o r supersede any law of t h e United S t a t e s . . . " 1 i n conjunction with 42 U.S.C. 52000e-7 ( s e c t i o n 708 i n T i t l e V I I , P.L. 88-352, C i v i l Rights Act of 1964, 78 S t a t . 2621, which provides, "[nlothing i n t h i s subchapter s h a l l be deemed t o exempt o r r e l i e v e any person from any l i a b i l i t y , duty, penalty, o r punishment provided by any p r e s e n t o r f u t u r e law of any S t a t e . . ." Appellants argue t h a t t o allow preemption of t h e Montana Maternity Leave Act by subsection ( a ) of 29 U.S.C. S1144 would be t o v i o l a t e sub- s e c t i o n (d) of t h a t s t a t u t e by impairing a law of t h e u n i t e d S t a t e s ( t h e 1964 C i v i l Rights Act) by r e l i e v i n g ~ o u n t a i n B e l l from i t s l i a b i l i t y under t h e Montana Act. Appellants further contend that by permitting ERISA preemption, two other sections of the Civil Rights Act would be impaired. They are 42 U.S.C. S2000e-5(c) (section 706, Title VII, P.L. 88-352, 78 Stat. 259, which provides for deferral of federal action in equal employment opportunity cases for a period of sixty days to permit the commencement of proceedings under state law) and 42 U.S.C. S2000h-4 (section 1104, Title XI, 78 Stat. 268, which provides: "[nlothing contained in any title of this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject matter, nor shall any provision of this Act be construed as invalidating any provision of State law unless such provision is incon- sistent with any of the purposes of this Act or any provi- sion thereof"). In effect, appellants argue that if the Montana Act is preempted, the above sections of the Civil Rights Act will be delimited. Although appellants' arguments found little solace in the District Court's opinion, similar arguments have found support in other jurisdictions: Goodyear Tire & Rubber v. Dept. of Industry (1978), 87 Wis.2d 56, 273 N.W.2d 786; Bucyrus-Erie Co. v. Dept. of Industry (E.D. Wisc. 1978), 453 F.Supp. 75, aff'd, (7th Cir. 1979), 599 F.2d 205; Illinois Bell Tel. Co. v. Fair Employment Practices Commission (1979), 68 111.App.3d 829, 25 111.Dec. 328, 386 N.E.2d 599; Westing- house Elec. Corp. v. State Human Rights Appeals Board (1978), 60 A.D.2d 943, 401 N.Y.S.2d 597; Liberty Mutual Insurance Company v. State Division of Human Rights (1978), 61 A.D.2d 822, 402 N.Y.S.2d 218; Lukus v. Westinghouse Electric Corp., NO. GD77-14803 (Ct. of Common Pleas for Allegheny County, Pa., April 20, 1978 (unpublished opinion); Time Insurance Co. v. Department of Industry, Labor and Human Relations, No. 145-423, ( ~ t . of Dane County, Wisc., January 3, 1978), 16 BNA FEP 391. Although not dealing with facts similar to the instant case, a number of courts have interpreted the preemption provision in its "broadest sense." See Wadsworth v . Whaland (1st Cir. 1977), 562 F.2d 70; Standard Oil Co. of California v. Agsalud (N.D. Cal. 1977), 442 F.Supp. 695, 706-07; Bell v. Employee Security Benefit Ass'n (D. Kan. 1977), 437 F.Supp. 382, 385-88; Wayne Chemical v. Columbus Agency Service Corp. (N.D. Ind. 1977), 426 F.Supp. 316, 321, aff'd as modified, (7th Cir. 1977), 567 F.2d 692; Hewlett-Packard Co. v. Barnes (N.D. Cal. 1977), 425 F.Supp. 1294, aff'd, (9th Cir. 1978), 571 F.2d 502; Azzaro v. Harnett (S.D. N.Y. 1976), 414 F.Supp. 473, 474, aff'd, (2nd Cir. 1977), 553 F.2d 93, cert. denied, (1977), 434 U.S. 824, 98 S.Ct. 71, 54 L.Ed.2d 82; National Carriers Conf. Com. v. Heffernan (D. Conn. 1978), 454 F.Supp. 914, 918; Francis v. united Tech- nologies Corp. (N.D. Cal. 1978), 458 F.Supp. 84. But see, Insurers Action Council, Inc. v. Heaton (D. Minn. 1976), 423 F.Supp. 921, 926. It is interesting to note that although Wadsworth and Bell favored broad preemption by ERISA, they both held that the individual statutes before them were spared from exemp- tion, albeit by the specific ERISA provision sparing state laws regulating insurance from preemption. Further, Wayne Chemical, while finding preemption, incorporated the state statute in question into the federal common law of employee benefit plans. Hewlett-Packard and Azzaro, on the other hand, found broad preemption. The s t a t e laws i n t h e s e two c a s e s , however, concerned a r e a s r e g u l a t e d by ERISA. There a r e a number of cases on p o i n t where a s t a t e law p r o h i b i t i n g d i s c r i m i n a t i o n i n t h e p r o v i s i o n of d i s a b i l i t y b e n e f i t s t o pregnant workers i s involved. While t h e r e i s a s p l i t of a u t h o r i t y , t h e m a j o r i t y of opinions t o d a t e have found no f e d e r a l preemption of t h e s t a t e law. Gast v. S t a t e , by and through Stevenson (1978), 36 0r.App. 4 4 1 , 585 P.2d 12; Goodyear T i r e & Rubber v. Dept. of Industry, supra; Bucyrus-Erie Co. v. Dept. of Industry, supra; I l l i n o i s B e l l T e l . Co. v. F a i r Employment P r a c t i c e s Commission, supra; Westinghouse E l e c . Corp. v. S t a t e Human Rights Appeals Board, supra; L i b e r t y Mutual Insurance Co. v. S t a t e Division of Human Rights, supra; Lukus v. Westinghouse Electric Corp., supra; Time Insurance Co. v. DILHR, supra. Contra, S t a t e of Minnesota v. MMM Co., Department of Human Rights Decision, Minn., September 16, 1977; Pervel I n d u s t r i e s v. S t a t e of Conn. (D. Conn. 1978), 468 F.Supp. 490; American Chain and Cable Co., Inc. v. Iowa C i v i l Rights Commission, CE 6-2938 (Polk D i s t r i c t County C t . , Iowa, June 28, 1978) (unpublished o p i n i o n ) . Several of t h e above d e c i s i o n s have adopted t h e view taken by a p p e l l a n t s herein--that T i t l e V I I p r o t e c t s state s t a t u t e s from preemption by ERISA. The Federal District Court i n ~ u c y r u s - E r i e , supra, analyzed t h e i n t e r r e l a t i o n s h i p of T i t l e V I I , ERISA, and t h e Wisconsin pregnancy d i s a b i l i t y law. The c o u r t found t h a t while ERISA d e a l s w i t h employee b e n e f i t p l a n s , t h e isc cons in F a i r Employment A c t does n o t s p e c i f i c a l l y address such p r i v a t e employee b e n e f i t s plans: "Rather, t h i s A c t i s designed t o p r o h i b i t d i s c r i m i n a t i o n i n employment and i s grounded on the state's police power. It does not impinge on federal regulation of employee benefit plans." 453 The court further found that although ERISA supersedes state laws relating to employee benefit plans, it does not expressly provide that all state fair employment laws are likewise superseded: "The legislative history of the Act fails to indicate that Congress, by enacting ERISA, intended to preempt state fair employment laws as they may concern employee benefit plans. "Section 1144(d) does, in fact, provide that ERISA shall not be construed to alter, modify or supersede any law of the United States. "Title VII of the Civil Rights Act of 1964, 42 U.S.C. 8 2000e, et seq., as amended, ex- pressly preserves state laws such as the Wis- consin Fair Employment Act which are designed to prohibit employment discrimination. 42 U.S.C. SB 2000e-7 and 2000h-4. "Title VII specifically provides that no charge may be filed with the EEOC under Title VII until sixty days after proceedings have been commenced under the state employment discrimi- nation law, 42 U.S.C. S 2000e-5(c), 5(d) and 5(e). The EEOC must give substantial weight to state agency findings and orders and must cooperate with such agencies. 42 U.S.C. S S 2000e-5 (b) , 2000e-8. "From an examination of the provisions of ERISA and its legislative history, and con- sidering Congress' long-standing recognition of the importance of state employment discrimi- nation laws, this Court finds that it is not clear that Congress intended to preempt the Wisconsin Fair Employment Act insofar as it prohibits sex discrimination in employee bene- fit plans. "Because preemption is not clearly mandated in this Court's opinion, this Court declines to invalidate the Wisconsin Fair Employment Act against a claim of federal preemption grounded on ERISA. To hold otherwise, would also seri- ously impair the enforcement scheme of Title VII of the Civil Rights Act of 1964." Bucyrus- Erie, 453 F.Supp. at 79. The c o u r t i n Goodyear T i r e & Rubber v. Dept. of Indus- t r y , supra, used a s i m i l a r r a t i o n a l e i n concluding t h a t t h e exemption contained i n S1144(d) a p p l i e s t o T i t l e V I I of t h e C i v i l Rights Act and through T i t l e V I I t o s e c t i o n 111.32 ( 5 ) ( g ) of t h e Wisconsin F a i r Employment A c t s o as t o pre- serve it from ERISA preemption: "There i s no question b u t t h a t p r i o r t o ERISA, sec. 111.32 (5) (g) , S t a t s . , was c o n s i s t e n t with T i t l e V I I which, l i k e t h e Wisconsin s t a t u t e , prohibited sex discrimination i n employment. 42 U.S.C. sec. 2000e-2 ( a ) (1). The Wisconsin s t a t u t e t h e r e f o r e survived and was n o t preempted by T i t l e V I I . More p r e c i s e l y , and i n t h e words of 42 U.S.C. sec. 2000h-4, t h e r e was no ' i n t e n t on t h e p a r t of Congress t o occupy t h e f i e l d . . . (of sex discrimination i n employment) . . . t o t h e exclusion o f ' Wisconsin's l a w on t h e same subject. "And t h e r e i s no question b u t t h a t T i t l e V I I survives i n t a c t t h e preemption provisions of ERISA by v i r t u e of sec. 1144(d). " I f sec. 1 1 1 . 3 2 ( 5 ) ( g ) , S t a t s . , survived T i t l e V I I , and i f t h e latter survives ERISA, then t h e l o g i c of t h e f e d e r a l s t a t u t e s compels t h e con- c l u s i o n t h a t sec. 111.32(5)(g) survives ERISA." Goodyear, 273 N.W.2d a t 795. The c o u r t r e j e c t e d an argument ( s i m i l a r t o one made here by Mountain B e l l ) by Goodyear t h a t : ". . . sec. 1 1 1 . 3 2 ( 5 ) ( g ) , S t a t s . , survives only T i t l e V I I and i s preempted as t o employee bene- f i t plans because t h e exemption from preemption i s l i m i t e d t o T i t l e V I I . The argument i s based upon t h e opening words of 4 2 U.S.C. S2000h-4, 'Nothing contained i n any t i t l e of t h i s Act s h a l l be construed . . .' as preempting s t a t e laws and, t h e argument continues, ' o t h e r f e d e r a l s t a t u t e s ' may work preemption. The ' o t h e r f e d e r a l s t a t u t e ' involved, however, i s sec. 1144(d) of ERISA which tells us, i n e f f e c t , t h a t nothing i n T i t l e V I I s h a l l be construed a s a l t e r e d , amended, modi- f i e d , i n v a l i d a t e d , impaired o r superseded by ERISA. I f w e a r e t o adopt Goodyear's view of ERISA, an exception a s t o employee b e n e f i t plans must be found i n 4 2 U.S.C. 52000h-4 of T i t l e V I I . That exception does n o t appear on t h e f a c e of 42 U.S.C. S2000h-4. Such an exception would have t o be based upon an implied amendment of T i t l e V I I r e s u l t i n g from t h e adoption of ERISA, and would be c o n t r a r y t o sec. 1144(d) of ERISA. "Goodyear argues it would be a nonsequitur for Congress broadly to declare that state laws are preempted and then to permit the states to regu- late employee benefit plans through the mecha- nism of a different federal statute. But the fact is that Congress declared in sec. 1144(d) of ERISA that federal laws remain unchanged after ERISA and Title VII continues to permit states to prohibit sex discrimination in employ- ment." Goodyear, 273 N.W.2d at 795-96. In Liberty Mutual Insurance Company v. State ~ivision of Human Rights, supra, the court reviewed a determination by the State Human Rights Appeal Board affirming an admin- istrative finding that an employer had discriminated against the complainant on the basis of her sex through disallowance of pregnancy-related benefits and stated: ". . . Although the Congress fashioned a broad preemptive policy when it passed ERISA (see U.S. Code, tit. 29, 5 1144[al), the legislative history behind the passage of the retirement program leads us to conclude that Congress did not intend to narrow the jurisdiction of those Federal and State agencies whose duty it is to regulate unlawful employment practices. The statements of Senator Walter Mondale and Repre- sentative Bella Abzug, made in their respective Houses of Congress, indicate that anti-discrimi- nation amendments to the ERISA legislation were only withdrawn upon assurance from the ERISA draftsmen that discrimination claims would continue to fall within the jurisdiction of the Equal Employment Opportunity Commission under terms of existing law (see 119 Cong.Rec. S30409- 10 [Sept. 19, 19731; 120 Cong.Rec. H4726 [Feb. 28, 19741). Thus, it is clear that Congress did not intend to disturb the established structures for administering such claims. Since title VII of the Civil Rights Act has clearly not been impaired by ERISA (see U.S. Code, tit. 29, 51144 [dl; U.S. Code, tit. 42, §2000e-7), and since it vests concurrent jurisdiction in the Equal Em- ployment Opportunity Commission and similar State-level agencies to investigate these claims (see, e.g. U. S. Code, tit. 42, SS2000e-4 [gl [ll 2000e-7), we find that the jurisdiction of the State Division of Human Rights was not preempted by ERISA." Liberty Mutual, 402 N.Y.S.2d at 219. To the same effect as the above three cases are Lukus v. Westinghouse Electric Corp., supra, and Illinois Bell Tel. Co. v. Fair Employment Practices Commission, supra. In Gast, supra, the court reviewed the history of ERISA as well as its substantive provisions and concluded there was no broad intent to preempt substantive provisions such as the Oregon pregnancy law: "The subject matter of ERISA does not compel the conclusion that Congress intended to preempt states in regulating such things as pregnancy benefits. The scope of the regulatory scheme embodied in ERISA is limited, particularly with respect to health and welfare benefits. The statutory purposes enumerated in 29 U.S.C. 51001 are: (1) to require disclosure and reporting to beneficiaries; (2) to ensure that employee pen- sion benefit programs are adequately funded; (3) to improve the equities of pension plans; and (4) to establish 'minimum standards * * * assur- ing * * * their finanacial soundness.' "More significantly, there is no suggestion in the statute that Congress intended to regulate the substance of health and welfare benefits or the manner in which such benefits are to be pro- vided. Thus, if we are to adopt the construction of 29 U.S.C. 51144(a) advanced by plaintiffs we must import to Congress not only an intent to preempt state law, but also an intent to cease all governmental regulation, state or federal, other than the disclosure and fiduciary require- ments of health and welfare benefits paid by employers or employee organizations. There is nothing in the legislative history suggesting such an intent. To the contrary, the legislative history indicates Congress was concerned with the inadequacy of governmental regulations and con- cluded that there should be at least minimum federal standards with respect to disclosure and fiduciary responsibility. See, e.g., 29 U.S.C. S1001." Gast, 585 P.2d at 20-21. Although holding against preemption, the court, citing General Electric v. Gilbert (1976), 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 3Br did not accept the argument that Title VII spared the state act from preemption. In Time Insurance Co. v. DILHR, supra, the court also concluded that Wisconsin's pregnancy disability statute was not within the field of law preempted by ERISA. It held that the state law concerned: ". . . is a statute broad in scope grounded on the State's police power to prevent employers engaging in any employment practice which dis- criminates because of sex. It in no way impinges on federal regulation of employee benefit and pension plans. The sex discrimination prohibi- tions of the Wisconsin Fair Employment Law are merely of peripheral concern of ERISA. Until the United States Supreme Court rules to the contrary, this Court is of the Opinion that Wisconsin courts so long as there exists a rational doubt that preemption exists, should uphold validity of sec. 111.32(5)(g), Stats., against a claim of federal preemption grounded on ERISA." 16 BNA FEP cases at 396. While the nonpreemption view appears to be in the majority, not all maternity leave cases agree with the one quoted above. In American Chain and Cable Co., Inc. v. Iowa Civil Rights Commission, supra, the Iowa court held that according to General Electric v. Gilbert, supra, and under Iowa law, an employer's disability benefit plan which spe- cifically excluded disabilities due to pregnancy did not discriminate against women nor violate state or federal civil rights laws. The court also summarily concluded that ERISA had preempted the field. Similarly, the court in Pervel Industries v. State of Connecticut (D. Conn. 1978), 468 F.Supp. 490, rejected the double savings clause rationale that Title VII protected Connecticut's anti-discrimination law from preemption: "This Court does not accept the reasoning of this double savings clause contention. Section 514(d) of ERISA preserves federal law. Connec- ticut's anti-discrimination law does not become a federal law simply because Title VII preserves its validity as against a claim of preemption by Title VII. Nor is the textual argument sig- nificantly enhanced by focusing on §514(b)'s requirement that ERISA should not be construed to 'impair' any law of the United States. Pre- emption of Conn. Gen. Stat. S31-126(g) by ERISA does not impair any federal law. Title VII did not create new authority for state anti-discrim- ination laws; it simply left them where they were before the enactment of Title VII. What- ever is prohibited by Title VII remains prohi- bited under ERISA but exclusion of disability benefits for pregnancy does not violate Title VII. . ." Pervel Industries, 468 F.Supp. at 493. As stated earlier, the nonpreemption viewpoint, as espoused by appellants, is favored by the majority of cases involving such maternity discrimination statutes. All the cases, however, rely on some, albeit varied, interpretation of how Title VII, ERISA, General Electric v. Gilbert, supra, and state laws interact. The parties agree that "potential problems of discrim- ination in employee benefit plans were not intended to be dealt with by ERISA," but were intended to be dealt with by Title VII of the Civil Rights Act of 1964. This is where the agreement ends, however, with Mountain Bell contending that under General Electric v. Gilbert, supra, it was not sex discrimination within the meaning of Title VII for an employer to exclude pregnancy disability benefits from coverage under employee plans, and appellants contending that the states were permitted to regulate employee benefit plans in the area of discrimination. Mountain Bell's position fails to take into account the rather checkered history of Gilbert, including the recent significant addition to Title VII demonstrating a contrary congressional intent, and the cases decided after Gilbert, demonstrating a consistent refusal on the part of the major- ity of the courts to follow Gilbert. An excellent discus- sion of this history is set out in Illinois Bell Tel. Co. v. Fair Employment Practices Commission, supra: "On October 31, 1978 section 701(k) of the Civil Rights Act of 1964 was signed into law adding a definition to the Act which demands a view of the statute from a different perspective, pro- viding, in pertinent part: "'The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth or related medical con- ditions shall be treated the same for all employ- ment-related purposes, including receipt of bene- fits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in sec- tion 703(h) of this title shall be interpreted to permit otherwise.' "The language of section 701(k) makes clear that Congress disagreed with the interpretation placed upon the pregnancy discrimination issue by the Gilbert decision. This inference is buttressed by the commentary set forth in the Report of the Committee on Education and Labor of the House of Representatives which stated, in part: "'It is the Committee's view that * * * dissent- ing justices [Brennan, Marshal and Stevens in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 3431 correctly inter- preted the act. * * * We recognize that the enact- ment of H.R. 6075 will reflect no new legislative mandate of the Congress nor affect changes in practices, costs, or benefits beyond those in- tended by title VII of the Civil Rights Act.' U.S. Code Cong. & Admin. News 1978, pp. 4749, 4750. "Even in the absence of section 701(k) of Title VII, recent cases from other jurisdictions, which were decided after the Gilbert decision by the Supreme Court and after the decision of the trial court herein, almost unanimously sup- port the conclusion we reach. (Massachusetts Electric Co. v. Massachusetts Cornm'n Against Discrim. (Mass. 1978), 375 N.E.2d 1192; Quaker Oats Co. v . Cedar Rapids Human Rights Comm'n (Iowa 1978), 268 N-W.2d 862; Castellano v . Linden Board of Education (1978), 158 N.J.Super. 350, 386 A.2d 396; Anderson v. Upper Bucks County Area Vocational Tech. School (1977), 30 Pa.Cmwlth. 103, 373 A.2d 126.) (Contra: Narragansett Elec- tric Co. v . Rhode Island Comm'n for Human Rights (R.I. 1977), 374 A.2d 1022; Group Hosp., Inc. V. Dist. of Columbia Comm'n on Human Rights (D.C. 1977), 380 A.2d 170.) Decisions by courts in other states, preceding that of the circuit court of Cook County herein, deciding contrary to its conclusion, include Brooklyn Union Gas Co. v. N . Y. State Human Rights Appeal Board (1976), 41 N.Y.2d 84, 390 N.Y.S.2d 884, 359 N.E.2d 393; Ray- 0-Vac v. Wisconsin Dept. of Industry, Labor & Human Relations (1975), 70 Wis.2d 919, 236 N.W.2d 209; Cedar Rapids School Dist. v. Parr (Iowa Sup. Ct. 1975), 227 N.W.2d 486. See also Comment, Love's Labor Lost: New Conceptions of Maternity Leave, 7 Harv.Civ.Rights-Civ.Lib.L.Rev. 260 (1972); Johnston, Sex Discrimination and the Supreme Court--1971-1974, 49 N.Y.S.L.Rev. 672 (1974); Comment, Pregnancy and the Constitution: The Uniqueness Trap, 62 Calif. L.Rev. 1532 (1974); Comment, Geduldig v . Aiello: Pregnancy Classi- fications and the Definition of Sex Discrimina- tion, 75 Colum.L.Rev. 441 (1975); Comment, Preg- nancy and Employment Benefits, 27 Baylor L.Rev. 767 (1975). "Representative of the viewpoints expressed by the foregoing authorities is the well-reasoned opinion in Massachusetts Electric Co. v. Massa- chusetts Comm'n Against Discrim. (Mass. 1978), 375 N.E.2d 1192 which held (375 N.E.2d at 1198- 99) : "'In considering whether the exclusion of bene- fits for pregnancy-related disabilities from a comprehensive disability plan violates G.L. c. 151B, 84, the initial inquiry necessarily in- volves determining whether distinctions based on pregnancy are sex-linked classifications. Pregnancy is a condition unique to women, and the ability to become pregnant is a primary char- acteristic of the female sex. Thus, any classi- fication which relies on pregnancy as the deter- minative criterion is a distinction based on sex. General Elec. Co. v . Gilbert, 429 U.S. 125, 149, 97 S.Ct. 401, 414, 50 L.Ed.2d 343 (1976) (Bren- nan, J., dissenting) ("Surely it offends common sense to suggest . . . that a classification revolving around pregnancy is not, at the mini- mum, strongly 'sex related'"). Id. at 161-162, 97 S.Ct. at 421 (Stevens, J., dissenting) ("By definition . . . [placing pregnancy in a class by itself] discriminates on account of sex; for it is the capacity to become pregnant which pri- marily differentiates the female from the male"). Gilbert v. General Elec. Co., 375 F.Supp. 367, 381 (E.D. Va. 1974), reversed, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976) ("[pregnancy] is undisputed[ly] and inextricably sex-linked. . . . That [exclusion of pregnancy-related dis- abilities] is discriminatory by reason of sex is self evident"). See Black v. School Comm. of Malden, 365 Mass. 197, 209-211, 310 ~.E.2d 330 (1974). "'The exclusion of pregnancy-related disabilities, a sex-based distinction, from a comprehensive disability plan constitutes discrimination. While men are provided comprehensive coverage for all disabilities which will necessitate their absence from work, including male-specific dis- abilities, women are not provided the assurance of comprehensive protection from the inability to earn income during a period of disability. * * * (Citations omitted.) Pregnancy exclusions in disability programs "both financially burden women workers and act to break down the con- tinuity of the employment relationship, thereby exacerbating women's comparative transient role in the labor force". * * * (Citations omitted. ) Moreover, pregnancy exclusions reflect and per- petuate the stereotype that women belong at home raising a family rather than at a job as perma- nent members of the work force. * * * I (Cita- tions omitted. ) "It is also noteworthy that the decisions of the six federal courts of appeal which predate General Electric Co. v. Gilbert (1976), 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343, concordantly concluded that pregnancy exclusions violated Title VII and constituted unlawful sex discrimination. Communi- cations Workers v. American Telephone & Telegraph Company (2nd Cir. 1975), 513 F.2d 1024, vacated, 429 U.S. 1033, 97 S.Ct. 724, 50 L.Ed.2d 744 (1977); Wetzel v. Liberty Mutual Insurance Co. (3d Cir. 1975), 511 F.2d 199, vacated, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976); Gilbert v. General Electric Co. (4th Cir. 1975), 519 F.2d 661, reversed, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976); Satty v. Nashville Gas Co. (6th Cir. 1975), 522 F.2d 850, vacated in part, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977); Hutchison v . Lake Oswego School Dist. (9th Cir. 1975), 519 F.2d 961, vacated, 429 U.S. 1033, 97 S.Ct. 725, 50 ~.Ed.2d 744 (1977). "Since its decision in Gilbert, it appears that the Supreme Court has itself retreated from its position in two cases treating pregnancy-employ- ment problems with a somewhat different outlook. (Nashville Gas Co. v. Satty (1977), 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356; City of Los Angeles, Dept. of Water v. Manhart (1977), 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657.) Especially to be noted is the concurring opinion of Mr. Justice Blackmun in Manhart." Illinois Bell, supra, 386 N.E.2d at 601-03. The above history indicates Congress originally intended to protect against sex discrimination in employment under Title VII. This, coupled with the fact that the Equal Employment Opportunity Commission guideline overturned in Gilbert was still in effect when ERISA was being considered, indicates that Congress did not intend to preempt employment discrimination acts which tangentially affect employee benefit plans because it had already attempted to do so under Title VII. Mountain Bell argues that statements made by Senators Javits and Williams, the principal architects of ERISA, concerning the impact of ERISA upon the Age Discrimination in Employment Act Amendments of 1978, P.L. 95-256, 92 Stat. 189 (1978), amending the Age Discrimination in Employment Act of 1967, 29 U.S.C. SS621-634, are entitled to substan- tial weight in interpreting ERISA, in that they reflect upon the legislative intent of an earlier statute through subse- quently enacted legislation. Goodyear made a similar argu- ment in Goodyear Tire & Rubber v. Dept. of Industry, supra. The court there rejected the argument, stating: "That senatorial colloquy occurred more than three years after ERISA was enacted. Legislative observations years after passage of the Act are not part of its legislative history. United Air Lines, Inc. v . McMann, 434 U . S . 192, 200, footnote 7, 98 S.Ct. 444, 54 L.Ed.2d 444 (1977). Our con- struction of ERISA is not foreclosed because mem- bers of Congress express contrary views after its passage. United States v. Philadelphia Nat. Bank, 374 U.S. 321, 384, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963). The Age Discrimination in Employment Act Amendments of 1978 do not amend, clarify or at- tempt to clarify ERISA. Goodyear's reliance upon Red Lion Broadcasting Co. v. F.C.C., 394 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1968), is therefore misplaced, for in -- Red Lion the court said, 'Sub- sequent legislation declaring the intent[ion] of an earlier statute is entitled to great weight- - in statutory construction.' (394 U.S. 381, 89 S.Ct. 1801, emphasis added.)" 273 N.W.2d at 797. It is well settled that the question of whether a state statute is invalid under the supremacy clause depends upon the intent of Congress. Malone v. White Motor Corp. (1978), 435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443. It is also well settled that state statutes are presumed to be valid unless Congress clearly intended these statutes to be super- seded by federal law. Jones v. Rath Packing Co. (1977), 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604; Motor Coach Employees V. Lockridge (1971), 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473; E'lorida Lime & Avocado Growers, Inc. v. Paul (1963), 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248. As stated earlier: "The subject matter of ERISA does not compel the conclusion that Congress intended to preempt states in regulating such things as pregnancy benefits. The scope of the regulatory scheme embodied in ERISA is limited, particularly with respect to health and welfare benefits. The statutory purposes enumerated in 29 U.S.C. SlOOl are: (1) to require disclosure and reporting to beneficiaries; (2) to ensure that employee pen- sion benefit programs are adequately funded; (3) to improve the equities of pension plans; and (4) to establish 'minimum standards * * * assuring * * * their financial soundness.'" Gast, 585 P.2d at 20. There is nothing in ERISA which treats the area of employment discrimination. The problem arises because we are dealing with two statutes--one state and one federal-- that seek to regulate separate activities although some overlapping areas exist between them. While ERISA super- sedes state laws relating to employee benefit plans, it does not expressly supersede all state fair employment laws, nor does it mention them. Indeed, given the history of Title VII, it would have been illogical if it had. ". . . Here, we have a federal regulatory scheme which regulates a limited area coupled with an express declaration which, if broadly inter- preted, preempts states from a multitude of other areas which heretofore have been recog- nized as valid state concerns. . ." Gast, 585 P.2d at 22. To hold for preemption would be to create an enormous vacuum in areas that have heretofore been traditionally dealt with by the states through the liberal intent of Title VII. The substantive nature of health and welfare benefits are not addressed by ERISA. We should not presume congres- sional intent to preempt unless Congress "has unmistakably so ordained." Florida Lime & Avocado Growers, Inc. v. Paul, supra, 373 U . S . at 142. NATIONAL LABOR RELATIONS ACT PREEMPTION The District Court declined to rule on this issue, noting: "Consideration of whether federal labor law preempts the Maternity Leave Act by implication is unnecessary in view of the much clearer preemptive declaration of ERISA. At any rate, I reach that conclusion and therefore will not attempt an analysis of federal labor law to determine whe- ther or not it preempts our Maternity Leave .Act. " As there was no ruling concerning the effect of federal labor law by the District Court, this issue is technically not before us. The parties, however, have spent substantial portions of their briefs discussing this issue, and in view of our decision concerning ERISA, it becomes necessary to discuss this issue as well. During the relevant time period of this lawsuit, the employment relationship between Mountain Bell and Rae Bauer was governed by a collective bargaining agreement between Mountain Bell and Rae Bauer's labor union, Communications Workers of America. This collective bargaining agreement was entered into under and subject to the provisions of federal labor law. Generally, federal labor law does not specify what the substantive terms of collective bargaining agreements must be. Instead, federal labor law requires that employers and unions must bargain in good faith that they may work out for themselves their own agreements for the governance of their industrial relations. See 29 U.S.C. Sl58(d). Mountain Bell contends that federal labor law requires as a "mandatory subject of bargaining" that employers and unions come to some agreement on employer group insurance, including insurance for nonoccupational injuries or disease. W. W . Cross & Co. v . NLRB (1st Cir. 1949), 174 F.2d 875, 878. Here, this mandatory collective bargaining between Mountain Bell and CWA resulted in an agreement which states that Mountain Bell is not required to pay disability bene- fits when an employee is on a maternity leave of absence. Mountain Bell further contends that the attempt by the Commission of Labor and Industry to compel Mountain Bell to pay such benefits under section 39-7-203, MCA, alters the collective bargaining agreement and violates the fundamental premise of federal labor law: that the terms and conditions of employment must be established by the collective bargain- ing which are not subject to being changed or altered by the application of contrary state laws. Appellants, on the other hand, reiterate that the Maternity Leave Act has been affirmatively authorized by Title VII. Further, they argue that such statutory protec- tion against certain forms of employment discrimination is in the nature of an independent right and cannot be waived through collective bargaining. The court in Goodyear Tire & Rubber v. Dept. of Industry, supra, faced a similar issue. Goodyear's disability plan was negotiated subject to the NLRA. The effect of the department of industry's order there was to invalidate a provision in the plan which excluded pregnancy disabilities from full benefits. The department's order, therefore, altered Goodyear's collective bargaining agreement. The court cited exten- sively from Malone v. White Motor Corp. (1978), 435 U.S. 497, 98 S.Ct. 1185, 55 ~.Ed.2d 443, and found that under Malone it had to look at federal labor law to determine whether state law had been preempted. The court did so and held ". . . we f i n d an express statement i n T i t l e V I I , 29 U.S.C. sec. 2000h-4, t h a t t h e r e was no ' i n t e n t on t h e p a r t of Congress t o occupy t h e f i e l d . . .' of sex discrimination i n employment t o t h e exclusion of state l a w s on t h e same s u b j e c t matter." 273 N.W.2d a t 798. I n Malone t h e i s s u e was whether a Minnesota pension s t a t u t e w a s preempted p r i o r t o t h e enactment of ERISA by f e d e r a l l a b o r policy i n s o f a r a s it purported t o o v e r r i d e o r c o n t r o l t h e terms of c o l l e c t i v e bargaining agreements nego- t i a t e d under t h e NLRA. The c o u r t s t a t e d : " I t i s uncontested t h a t whether t h e Minnesota s t a t u t e i s i n v a l i d under t h e Supremacy Clause depends on t h e i n t e n t of Congress. 'The pur- pose of Congress i s t h e ultimate touchstone. ' R e t a i l Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963). Often Congress does n o t c l e a r l y state i n i t s l e g i s l a t i o n whether it intends t o preempt state l a w s ; and i n such instances, t h e c o u r t s normally s u s t a i n l o c a l r e g u l a t i o n of t h e same s u b j e c t matter unless it c o n f l i c t s with f e d e r a l law o r would f r u s t r a t e t h e f e d e r a l scheme, o r u n l e s s t h e c o u r t s d i s c e r n from t h e t o t a l i t y of t h e circumstances t h a t Congress sought t o occupy t h e f i e l d t o t h e exclusion of t h e S t a t e s . Ray v. A t l a n t i c Richfield Co., a n t e , a t 157-158; Jones v. Rath Packing Co., 430 U.S. 519, 525, 540-541 (1977); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). 'We cannot d e c l a r e pre-empted a l l l o c a l r e g u l a t G n t h a t touches o r concerns i n a n y w a y t h e complex G r = n r s h i p s between employees, employers and unions; obviously, much - - of - t h i s _ i s __ l e f t - t o - t h e S t a t e s . ' Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971). The Pension A c t ' l e a v e s much t o t h e s t a t e s , though Congress has r e f r a i n e d from t e l l i n g u s how much. W e must s p e l l o u t from c o n f l i c t i n g i n d i c a t i o n s of congressional w i l l t h e a r e a i n which s t a t e a c t i o n i s s t i l l permissible.' Garner v. Teamsters, 346 U.S. 485, 488 (1953). Here, t h e Court of Appeals concluded t h a t t h e Minnesota s t a t u t e was i n v a l i d because it trenched on what t h e c o u r t considered t o be s u b j e c t s t h a t Congress had committed f o r determination t o t h e c o l l e c t i v e - bargaining process. "There i s l i t t l e doubt t h a t under t h e f e d e r a l s t a t u t e s governing labor-management r e l a t i o n s , an employer must bargain about wages, hours, and working conditions and t h a t pension b e n e f i t s a r e proper s u b j e c t s of compulsory bargaining. But t h e r e i s nothing i n t h e NLRA, including those s e c t i o n s on which appellee r e l i e s , which expressly f o r e c l o s e s a l l state regulatory power with r e s p e c t t o those i s s u e s , such a s pension plans, t h a t may be t h e s u b j e c t of c o l l e c t i v e bargaining. I f t h e Pension A c t i s pre-empted here, t h e congressional i n t e n t t o do s o must be implied from t h e r e l e v a n t provisions of t h e labor s t a t u t e s . . ." Malone, 435 U.S. a t 504- 505. (Emphasis supplied.) The c o u r t found no such implication and, on t h e con- t r a r y , found an i n t e n t i n t h e Welfare and Pension Plans Disclosure Act of 1958 t o preserve s t a t e a u t h o r i t y t o regu- late pension plans. Likewise, t h e c o u r t i n Goodyear found an i n t e n t t o preserve s t a t e a u t h o r i t y t o r e g u l a t e sex discrimi- nation. 273 N.W.2d a t 798. I n San Diego Building Trades Council v. Garmon (1959), 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, t h e c o u r t s t a t e d : ". . . When t h e e x e r c i s e of s t a t e power over a p a r t i c u l a r a r e a of a c t i v i t y threatened i n t e r - ference with t h e c l e a r l y indicated p o l i c y of i n d u s t r i a l r e l a t i o n s , it has been j u d i c i a l l y necessary t o preclude t h e S t a t e s from a c t i n g . However, due regard f o r t h e presuppositions of our embracing f e d e r a l system, including t h e p r i n c i p l e of d i f f u s i o n of power n o t a s a matter of d o c t r i n a i r e localism but a s a promoter of democracy, has required us n o t t o f i n d with- drawal from t h e S t a t e s of power t o r e g u l a t e where t h e a c t i v i t y regulated was a merely p e r i - pheral concern of t h e Labor Management Relations Act. [ C i t a t i o n s omitted.] O r where t h e regu- l a t e d conduct touched i n t e r e s t s s o deeply rooted i n l o c a l f e e l i n g and r e s p o n s i b i l i t y t h a t , i n t h e absence of compelling congressional d i r e c t i o n , we could n o t i n f e r t h a t Congress had deprived t h e S t a t e s of t h e power t o a c t . " 359 U.S. a t 243-44. Mountain B e l l argues t h a t r a t h e r than weighing and balancing state and f e d e r a l i n t e r e s t s , which t h e Garmon opinion prescribes, t h e f e d e r a l c o u r t s have evolved a com- p a r a t i v e l y heavy-handed d o c t r i n e of preemption which a p p l i e s whenever a s t a t e law has any e f f e c t whatsoever on any a s p e c t of labor r e l a t i o n s o r any element of a c o l l e c t i v e bargaining agreement. Mountain Bell relies on Local 24 of the International Brotherhood of Teamsters v . Oliver (1959), 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312, and Lodge 76, Machinists v. Wis- consin Employment Relations Commission (1976), 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396, to support its position that the federal policy under the NLRA is to preempt state attempts to alter or change the substantive terms of collective bargaining. "Our decisions . . . have made it abundantly clear that state attempts to influence the substantive terms of collective-bargaining agreements are as inconsistent with the federal regulatory scheme as are such attempts by the NLRB. . ." Lodge 76, 427 U.S. at 153. Both of the above cases dealt with areas substantively covered by NLRA: Oliver with wages and working conditions, and Lodge 76 with economic weapons of collective bargaining. Intent to preempt state action in such areas is readily recognizable. The instant case, however, does not deal with an area specifically covered by the NLRA but rather with an area of peripheral concern. To use a broad-sword approach to preemption in this area would be to forget the Supreme Court's own words: ". . . Federal labor policy as reflected in the National Labor Relations Act . . . has been con- strued not to preclude the States from regulating aspects of labor relations that involve 'conduct touch[ing] interests so deeply rooted in local feeling and responsibility that . . . we could not infer that Congress had deprived the States of the power to act.' . . . the federal law govern- ing labor relations does not withdraw 'from the states . . . power to regulate where the activity regulated [is] a merely peripheral concern of the Labor Management Relations Act.' . . . Cases that have held state authority to be pre-empted by federal law tend to fall into one of two cate- gories: (1) those that reflect the concern that 'one forum would enjoin, as illegal, conduct which the other forum would find legal' and (2) those that reflect the concern 'that the [application of state law by] state courts would restrict the exercise of rights guaranteed by the Federal Acts.'" Lodge 76, 427 U.S. at 136-38. (Omitting cases.) Clearly, this case does not fall in either of these tradi- tional areas of preemption but is in an area of traditional local concern which only peripherally affects the collective bargaining process. Goodyear, supra. Alexander v. Gardner-Denver Company (1974), 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147, holds that an individual's rights to equal employment opportunities under Title VII ". . . form no part of the collective bargaining process . . ." 415 U.S. at 51. ". . . Moreover, the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes. The clear inference is that Title VII was designed to supplement, rather than supplant, existing laws and insti- tutions relating to employment discrimination . . ." Alexander, 415 U.S. at 48-49. Mountain Bell argues the Maternity Leave Act does not create the kind of personal and individual right found in Alexander because "the rights sought to be vindicated [in Alexander] were substantially protected by Title VII, whereas with respect to pregnancy disability benefits the Supreme Court has held that a denial thereof is not sex discrimina- tion within the meaning of Title VII." This argument, however, ignores the fact that Title VII affirmatively protects and encourages state anti-employment discrimination legislationr as discussed herein, supra. The rights accorded under section 39-7-203, MCA, are uniquely personal and may not be waived through the collec- tive bargaining process. Alexander v. Gardner-Denver, supra. "If Title VII rights to equal employment oppor- tunities are non-negotiable in collective bar- gaining, and if those rights are in addition to rights granted by state law, it is unlikely that Congress intended that the latter may be bar- gained away even though Title VII rights may not. And if the individual's rights to equal oppor- tunities are greater under state than federal law, it is unlikely that Congress intended that rights obtained from the state may be bargained away even though federal rights may not." Goodyear, 273 N.W.2d at 800. We therefore conclude that section 39-7-203, MCA, is not preempted by the National Labor Relations Act. WHETHER THE MONTANA MATERNITY LEAVE ACT CONFERS BENEFITS FOR NORMLAND ABNORMAL PREGNANCY DISABILITIES AND TO PRE- - - P AND POST-CHILDBIRTH CONDITIONS. Mountain Bell contends that section 39-7-203, MCA, should be limited to abnormal or unexpected complications of pregnancy. The District Court rejected this argument because the language of the statute and its legislative history do not expressly limit coverage to abnormal or involuntary complications. Mountain Bell, however, submits that the absence of such an express limitation is perfectly understand- able in light of the fact that pregnancy is a largely volun- tary condition, and, as such, the work absences associated with its normal and usual progression are not the types of disability usually covered by sick leave plans, which are primarily intended to compensate employees for unexpected illnesses and accidents. Mountain Bells continues that given the fact that pregnancy is not the typical covered disease or disability, one would expect that if the legislature had intended cover- age of the normal usual and voluntary assumed consequences thereof, it would have said so expressly; however, the statute itself is silent on this issue and there is nothing i n t h e l e g i s l a t i v e h i s t o r y which a f f i r m a t i v e l y i n d i c a t e s an i n t e n t t o r e q u i r e s i c k leave coverage f o r pregnancy-related problems which are normal, n a t u r a l , expected and v o l u n t a r i l y assumed. Mountain B e l l submits t h a t t h e l e g i s l a t u r e ' s s i l e n c e on t h i s i s s u e can l e a d o n l y t o t h e conclusion t h a t it intended t h a t t h e phrase "disabled a s a r e s u l t of preg- nancy" be i n t e r p r e t e d i n accordance with t h e usual p o l i c y of s i c k leave p l a n s t o compensate f o r unexpected wage l o s s . I n t h e c a s e of pregnancy, t h i s would mean t h a t compensation i s r e q u i r e d under s e c t i o n 39-7-203, MCA, o n l y i n c a s e s o f d i s a b i l i t i e s r e s u l t i n g from abnormal and unexpected compli- c a t i o n s of pregnancy. Appellants contend t h a t such a narrow i n t e r p r e t a t i o n o f s e c t i o n 39-7-203(3), MCA, would be c o n t r a r y t o t h e p l a i n meaning of t h e s e c t i o n and would t o t a l l y d e f e a t t h e purpose o f t h e l e g i s l a t u r e i n e n a c t i n g t h e s e c t i o n . Appellants f u r t h e r contend t h a t t h e Senate had a proposed l i m i t a t i o n , s i m i l a r t o t h e one espoused by Mountain B e l l , which w a s r e j e c t e d i n a conference committee o f t h e House and Senate. They f u r t h e r argue t h a t t h e Maternity Leave A c t was based on a Connecticut s t a t u t e which, while weaker i n many r e s p e c t s and more r e s t r i c t e d than i t s Montana descendant, has s t i l l been i n t e r p r e t e d t o apply t o d i s a b i l i t i e s which r e s u l t from both normal and abnormal pregnancies and t o d i s a b i l i t i e s which occur both before and a f t e r c h i l d b i r t h . The a n a l y s i s of Judge Bennett i n h i s opinion i n t h e D i s t r i c t Court was d e c i s i v e on t h i s point: " I n construing a s t a t u t e , words a r e t o be given t h e i r n a t u r a l , p l a i n and obvious meaning. [Ci- t a t i o n s omitted.] I n construing l e g i s l a t i v e i n t e n t , s t a t u t e s must be read and considered i n t h e i r e n t i r e t y - - t h e s t a t u t e a s a whole must be considered. U.S. v. F o r t Belknap, 197 F.Supp. 812 ( ~ o n t ) . I n reading t h e maternity leave l a w a s a whole, t h e purpose of t h e s t a t u t e seems obvious: when employed women become pregnant, they cannot be denied maternity l e a v e i f they a r e e l i g i b l e a t a l l f o r d i s a b i l i t y b e n e f i t s . They are e n t i t l e d t o those b e n e f i t s u n t i l they a r e physically a b l e t o go back t o work. There i s nothing i n t h e s t a t u t e t o even suggest t h a t b e n e f i t s should be allowed only i f t h e d i s a b i l i - ties a r e involuntary o r r e s u l t from abnormal complications. The term ' d i s a b i l i t y ' means ' l a c k of physical capacity; t h e i n a b i l i t y t o pursue an occupation o r perform s e r v i c e s f o r wages because of physical . . . impairment.' Websters Third I n t e r n a t i o n a l Dictionary. When i n t e r p r e t i n g a s t a t u t e adopted from another s t a t e , t h e l a t t e r s t a t e ' s i n t e r p r e t a t i o n can be used t o c l a r i f y t h e s t a t u t e adopted i n t h i s s t a t e . Linley v. Davis 6 M 687 (1887); Coburn v. Coburn 89 M 386 (1931). Our maternity leave l a w w a s based on a Connecticut s t a t u t e (Legis. h i s t o r y ; Minutes of Meeting January 10, 1975). The Connecticut s t a t u t e has been i n t e r p r e t e d by t h a t state's Commissioner of Human Rights and Opportunities t o include d i s a b i l i t i e s r e s u l t i n g from normal and abnormal pregnancies, and t o extend from conception through d e l i v e r y and a reasonable period of recovery. Lagana, e t a 1 v. Middletown Board of Ed. 1976. The l e g i s l a t i v e h i s t o r y r e v e a l s no i n t e n t i o n t o l i m i t t h e s t a t u t e t o abnormal complications. Therefore t h e s t a t u t e must be construed t o cover d i s a b i l i t i e s r e s u l t i n g from normal and abnormal pregnancies. The s t a t u t e does n o t purport t o d e f i n e pregnancy i t s e l f as a d i s a b i l i t y , b u t recognizes t h a t t h e condition of pregnancy manifests i t s e l f i n ways t h a t d i s - a b l e t h e woman f o r a period of t i m e . I n d e t e r - mining t h e scope of t h e t i m e period t o be covered by t h e b e n e f i t s , t h e r e seems t o be no l o g i c a l reason why maternity b e n e f i t s should be t r e a t e d any d i f f e r e n t l y from o t h e r d i s a b i l i t i e s where b e n e f i t s a r e allowed f o r a reasonable period of recovery, The p l a i n t i f f i n t h e i n s t a n t case ap- p a r e n t l y b e l i e v e s t h a t babies a r e d e l i v e r e d by t h e s t o r k and a r e n o t a n a t u r a l consequence of pregnancy. The s t a t u t e s p e c i f i c a l l y states ' d i s - abled as a r e s u l t of pregnancy.' 'Pregnancy' by d e f i n i t i o n i s a condition t h a t begins with con- ception and ends with d e l i v e r y (Blacks Law ~ i c - t i o n a r y ; Stedman's Medical Dictionary, 20th e d . ) . 'Result' i s t h a t which arises a s a consequence of something (Blacks Law ~ i c t i o n a r y ) . C h i l d b i r t h i s an obvious n a t u r a l consequence of pregnancy and thus t h e s t a t u t e intends t o cover d i s a b i l i t i e s of c h i l d b i r t h . "I conclude t h e r e f o r e t h a t t h e t e r m ' d i s a b i l i t y as a r e s u l t of pregnancy', as used i n t h e Montana maternity leave law a p p l i e s t o d i s a b i l i t i e s re- s u l t i n g from normal as w e l l a s abnormal pregnan- ties, and the period of coverage extends from the onset of actual disability through termination of gestation and a reasonable period of recovery, to be determined by competent medical authority." The judgment of the District Court is reversed on Issue No. 1, relating to preemption of section 39-7-203(3), MCA, by the federal Employee Retirement Income Security Act of 1974, 29 U.S.C. §lo01 et seq. Additionally, on the question of preemption of section 39-7-203(3), MCA, by the federal labor law (National Labor Relations Act, 29 U.S.C. S141 et seq.), on which the Dis- trict Court was not required to rule because of the nature of its opinion, we hold that the NLRA does not preempt the Montana Act. The judgment of the District Court is affirmed on Issue No. 3 on its finding that the term "disability as a result of pregnancy" as used in the Montana Maternity Leave Act applies to disabilities resulting from normal as well as abnormal pregnancies and the period of coverage extends from onset of actual disability through termination of gestation and a reasonable period of recovery, to be determined by competent medical authority. The case is remanded to the District Court to enter judgment in behalf of appellants/cross-respondents: the Commissioner of Labor and Industry of the State of Montana, the Administrator of the Labor Standards Division of the Department of Labor and Industry of the State of Montana, Rae S. Bauer, Communications Workers of America, and the Montana Human Rights Commission, in conformity with this Opinion. W e concur: zJ&k%&f&\ Chief J u s t i c e Qd-2. u s t i c e s ALL^ | October 22, 1979 |
33dda42b-12e2-44d2-a17a-0ab2b8d13ac2 | ALBERTSON S v DEPT OF BUSINESS RE | N/A | 14753 | Montana | Montana Supreme Court | No. 14753 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 ALBERTSON'S INC. A CORPORATION, Petitioner and Respondent, DEPARTMENT OF BUSINESS REGULATION, an agency for the State of Montana, Respondent and Appellant. Appeal from: District Court of the First Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: Harrison, Loendorf and Poston, Helena, Montana James T. Harrison, Jr., argued, Helena, Montana For Respondents: Hooks and Budewitz, Townsend, Montana Patrick F. Hooks argued, Townsend, Montana Submitted: September 25, 1979 ~ecided :O&T 12 1979 . . :'- - 4 J jc* ' . : ' - Filed: Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court . The question in this appeal is whether the Montana Milk Control Act prohibits a retail grocery chain from purchasing raw milk from a licensed Montana milk distributor, transporting it to its Wyoming plant for processing, and distributing it to its Montana stores for retail sale under its private brand name. The District Court held this proposed activity permissible. We aff irm. Albertson's is a food chain with six retail stores in Montana at the time this controversy arose. It proposes to pur- chase raw milk from the Gallatin Cooperative Creamery in Bozeman, Montana. This creamery is licensed as a milk distributor under the Montana Milk Control Act. Albertson's would transport this raw milk to its plant in Riverton, Wyoming, for processing. This plant has been granted a permit to distribute wholesale or retail milk and milk products in Montana by the Animal Health Division of the Montana Department of Livestock. The processed milk would then be delivered back to Montana in plastic gallon containers of homogenized and 2% milk. Albertson's would then package and sell it in its retail grocery stores under its private brand name. In February 1977, Albertson's applied for a milk distrib- utor's license to the Milk Control Division of the Department of Business Regulation. The state agency recommended the license be denied on the ground that Albertson's was essentially a retailer- distributor precluded from licensing as a distributor under the Milk Control Act. Thereafter a hearing was held under the Mon- tana Administrative Procedures Act resulting in a declaratory ruling by the hearing examiner that Albertson's could engage in the proposed activity without a license but subject to all appli- cable rules of the Department governing transactions between milk distributors and retailers including minimum price regulations of the Board of Milk Control. On August 23, 1978, the Department of Business Regulation rejected the declaratory ruling of the hearing examiner and issued a declaratory ruling that Albertson's "may not carry out the bus- iness it proposes under the current statutory frameworkl1 of the Milk Control Act. The grounds of this declaratory ruling were that the Act is intended to control the entire milk industry; that no operation outside the statutory categories of producer, dis- tributor, producer-distributor, or jobber is permitted; and that Albertson's proposed operation did not qualify in any of the four classifications. Thereafter, Albertson's applied for judicial review of this declaratory ruling to the District Court of Lewis and Clark County. On February 5, 1979, the District Court entered its judg- ment (1) reversing the declaratory ruling of the Department of Business Regulation, (2) declaring that Albertson's is not required to purchase a milk distributor's license from the Department, and (3) declaring that Albertson's is not precluded from purchasing raw milk from a distributor to process and sell at retail by any provision of the Milk Control Act. The District Court issued a well reasoned written opinion explaining the basis of its judgment. The essence of its rationale was that Albertson's contemplated activity did not make it a distributor subject to licensing under the Milk Control Act and that the Act did not prohibit the proposed activity either expressly or by implication. On appeal the Department argues that Albertson's proposed operation constitutes them a "distributor" under the Act which requires a license, but they cannot be licensed as such because the Act prohibits them from being both a retailer and a distributor. Albertson's contends that its proposed operation does not make it a "distributor" under the Milk Control Act nor does the Act require a license or prohibit the contemplated activity. Orecollateral matter must be clarified at the outset. cation for a distributor's license. One of its competitors, the Safeway chain of retail stores, has been licensed as a distrib- utor since 1970 by the Department. It appears to us that the activities of Safeway are essentially the same as Albertson's contemplated activities with minor unimportant variations. Al- bertson's application for a distributor's license must be viewed in this background. It was simply an attempt by Albertson's to comply with a licensing procedure that had been sanctioned by the Department for several years. Throughout the course of the administrative and judicial hearings in this case, Albertson's has consistently maintained that its contemplated activities do not constitute it a distributor under the Act, but that it is willing to purchase a distributor's license if such is required. We note that it has been conceded throughout the course of this controversy that Albertson's is not a distributor under the definitions in the Act. Counsel for the department stated at the administrative hearing before the hearing examiner that " . . . It seems . . . quite clear and I can see no purpose in repeating the definitions within the Act that Albertson's cannot qualify as a distributor . . ." and " . . . If in fact ~lbertson's fit the definition of a distributor, I would have no problem with that. We could issue a distributor's license . . ." The hearing examiner stated that the parties agreed for the purpose of his declaratory ruling that Albertson's could not be a distributor, among other things. The District Court recited in its opinion that both parties conceded that Albertsods is not a distributor within the definitions of the Act and that the sole issue was whether Albertsods is precluded from buying raw milk from a dis- tributor to process and sell over the counter. The general purpose of the Milk Control Act is to protect and promote public welfare and to eliminate unfair and demoraliz- ing trade practices in the milk industry. Section 81-23-102, MCA. It was enacted in the exercise of the police powers of the state. Section 81-23-102, MCA. Regulatory authority is vested in the Department of Business Regulation. Section 81-23-103, MCA; sec- tion 81-23-101(g), MCA. The general powers of the Department in- clude the following: "The department shall supervise, regulate, and control the milk industry of this state, includ- ing the production, processing, storage, distrib- ution and sale of milk sold for consumption in this state . . ." Section 81-23-103(1), MCA. The pertinent licensing provision in the Act states in relevant part: " . . . it is unlawful for a producer, producer- distributor, distributor, or jobber to produce, transport, process, store, handle, distribute, buy, or sell milk unless the dealer is properly licensed as provided in this chapter . . ." Section 81-23-201, MCA. Albertson's admittedly is neither a producer, producer-distributor or jobber. The Act defines a distributor in this language: "'Distributor' means a person purchasing milk from any source, either in bulk or in packages, and distributing it for consumption in this state. The term includes what are cor&nonly known as jobbers and independent contractors. The term, however, excludes a person purchasing milk from a dealer licensed under this chapter, for resale over the counter at retail or for consumption on the premises." (Emphasis added.) Section 81-23-101(h), MCA. Under the plain language of the exclusion Albertson's is not a distributor because it purchases milk from a licensed dealer for resale over the counter at retail. Albertson's is clearly a retailer under the definition in the Act as it sells milk over the counter in its retail stores. Section 81-23-101(r), MCA. Nor is the contemplated business activity of Albertson's prohibited by the financing prohibitions in the Act which provide in pertinent part: " . . . A producer, producer-distributor, distributor, or jobber may not be financially interested, either directly or indirectly, in the conduct or operation of the business of a retailer . . ." Section 81-23- 305, MCA. As Albertson's is neither a producer, producer-distributor, distributor or jobber the financial prohibitions simply do not apply to it. The crucial question is whether the legislature intended to prohibit other forms of business activity in the milk indus- try not specifically m e n t i ~ ~ i n t h e Milk Control Act such as that contemplated by Albertson's. We affirm and adopt the opinion of the District Court in analyzing this issue. In interpreting the Milk Control Act, the court must ascertain and declare what in terms of substance is contained in the Act and not insert what has been omitted. Section 1-2-101, MCA; Security Bank & Trust Co. v . Connors (1976), 170 Mont. 59, 550 P.2d 1313; Dunphy v . Anaconda Company (1968), 151 Mont. 76, 438 P.2d 660. The Court is not justified in supplying omitted parts of the Act simply because the situation in question was not foreseen or contemplated by the Legislature. Shelby Community School District v . Halverson (1968), 26 Iowa 329, 158 N.W.2d 163; Farmers & Mech. Sav. Bank v. Department of Commerce (1960), 258 Minn. 99, 102 N.W.2d 827. Here the Act gives the department broad powers of supervision, regulation and control of the milk industry but it specifies the methods of control and regulation. We find nothing in the Act either by express language or by implication that indicates a legislative intent to prohibit or preclude a business arrangement not specifically mentioned in the Act. As a general rule, legislation restricting one's right to pursue a lawful business or profession will be strictly con- strued in favor of the existence of the right and against the limitation. Positions, Inc. v . Steel Deck & Siding Co. (1976), 138 Ga.App. 200, 225 S.E.2d 769; Battaglia v. Moore (1953), 128 CO~O. 362, 261 P.2d 1017; Clymer v. Zane (1934), 128 Ohio 359, 191 N.E. 123. An analogy is found in State v . City of Butte (1959), 135 Mont. 350, 340 P.2d 535, where we held that the city could not obtain license fees or regulate a business unless specifically provided in an ordinance, even though a statute empowered the city to license all businesses. - The Department argues that a construction of the Act per- mitting Albertson's contemplated activity will create chaos in the milk industry. This conclusion is dubious in view of the fact that Safeway has conducted a similar operation for several years. Albertson's is still subject to price and health regulations and the Creamery from which it proposes to purchase its raw milk is a licensed distributor subject to the same regulations. Albertson's has requested us to impose sanctions upon the Department of Business Regulation for a frivolous appeal under Rule 32, M.R.App.Civ.P. We decline. Although we have ruled against the Department in this appeal, its position is well within the bounds of legitimate argument on a substantial issue on which there is a bona fide difference of opinion. Accordingly, the appeal is not frivolous within the meaning of the Rule. We have noted the peripheral arguments of the Department and have examined the statutes and case authorities submitted in support. None would change our ruling in this case. We hold that Albertson's is not a distributor under the Milk Control Act and is not prohibited thereunder from purchasing raw milk from a licensed distributor to process and sell at retail as proposed. A£ f irmed. Chief Justice We concur: i | October 11, 1979 |
79d4ef10-d4e0-4ccc-ae56-5cd272ac76f6 | KADILLAK v ANACONDA CO | N/A | 14348 | Montana | Montana Supreme Court | No. 14348 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 GEORGE and MARIE KADILLAK, husband and wife et al., Plaintiffs and Appellants, -vs- THE ANACONDA COMPANY et al., Defendants and Respondents. Appeal from: District Court of the Second Judicial District, Honorable Frank E. lair, Judge presiding. Counsel of Record: For Appellants: McGarvey, Lence and Heberling, Kalispell, Montana Dale L. McGarvey argued and Jon L. Heberling argued, Kalispell, Montana For Respondents: Hon. Mike Greely, Attorney General, Helena, Montana D. L. Holland argued, (Anaconda Co.) Butte, Montana John North argued, (State Lands) Helena, Montana Jack Holstrom argued, (State Highways) Helena, Montana Stan Bradshaw argued (Dept. of Health) Helena, Montana Submitted: June 15. 1979 Filed: Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Plaintiffs appeal from a judgment of the District Court of Silver Bow County denying them relief on their complaint against the Anaconda Company and various state agencies relating to the establishment and operation of a waste dump containing overburden and discard from open pit mining operations in the vicinity of their residences. Early in the spring of 1974, residents of the Hillcrest subdivision in Butte, Montana, learned from newspaper articles that the Anaconda Company was contemplating mining activities in close proximity to their homes. They were naturally concerned about this prospect and contacted Anaconda officials and various state agencies to voice that concern. On June 6, 1974, Anaconda filed with the Department of State Lands (State Lands) an application for a permit for mining activities in the contested area. The application was in the form of a request for an amendment to a previously held permit, Mining Permit No. 41. State Lands was unsure whether such a procedure was proper, so it requested an Attorney General's Opinion. After an extended delay, the Attorney General rendered an opinion on August 29, 1975, that acreage could not be added to a mining per- mit by amendment; rather, a new operating permit must be applied for to cover the new area. On September 25, 1975, Anaconda officials met with State Lands and it was agreed that the pending application for amend- ment of Permit No. 41 would be considered the basis for an appli- cation for a new permit called Permit 41A. Anaconda was to submit a revised map showing the acreage to be included. That map was received on October 22, 1975, at which time Wilbur Criswill, State Lands Hard Rock Bureau Chief, deemed the application com- plete. Ted Schwinden, at that time Commissioner of State Lands determined that issuance of Permit 41A would be a major action of state government with possible adverse environmental effects requiring an impact statement under the Montana ~nvironmental Policy Act (MEPA). Schwinden assigned the task of writing the 41A environmental impact statement (EIS) to Charles Van Hook, a member of the staff of State Lands Reclamation ~ivision. The 41A EIS was the first EIS Van Hook had ever written. Van Hook began work on the 41A EIS on November 25, 1975. On December 4, he requested in a letter to Anaconda certain addi- tional information on mining and reclamation plans "needed . . . to construct an accurate impact statement." Anaconda supplied more data in response on December 9, but Van Hook still felt the materials were deficient. Subsequently, on or about December 15, 1975, Van Hook submitted a memo to his superior at State Lands, C . C. McCall, noting that his study of the application materials and the regu- lations in regard to issuance of Hard Rock Permit 41A indicated the application did not meet the requirements of the law in numer- ous respects. McCall then drafted a memo to Commissioner Schwinden detailing numerous specific areas where the application for Per- mit 41A failed to meet the statutory requirements of the Hard Rock Mining Act (HRMA) . On December 15, 1975, the same date as the memo from McCall, Schwinden summoned Anaconda representatives to a meeting to dis- cuss the problems concerning the Permit 41A application. Van Hook and McCall explained the areas of concern. That evening, Anaconda officials spent several hours working up more data in response to those problems, and on December 16 they submitted a mining plan and some further information. This new data was incorporated in the EIS which was mailed out on Friday, December 19. None of the State Lands officials had time to check the new material against the regulations and statutes for completeness before the EIS went out. On December 22, 1975, Commissioner Schwinden approved Permit 41A. On January 5, 1976, an article appeared in the Billings Gazette concerning plans of the Anaconda Company to construct in the 41A Permit area a mountainous waste dump of overburden and discard from open pit mining operations. The dump area approaches within a quarter of a mile of homes in the Hillcrest subdivision. The permit area comes to within 200 feet. On January 15 and 16, 1976, a representative of the Hillcrest residents contacted the State Environmental Quality Control Council (EQC) about possible irregularities in the issuance of Permit 41A. By letter dated January 16, 1976, Steven J. Perlmutter, staff attorney for EQC, replied to those inquiries, expressing the opinion that the pro- cedure followed in issuing Permit 41A may indeed have violated sections of the HRMA, MEPA, and the Montana Administrative Proced- ures Act (MAPA) . The original complaint in this action was filed on March 12, 1976. The complaint was amended on May 26, 1976. The plain- tiffs are approximately 125 property owners in the Hillcrest and Continental Drive areas of Butte in close proximity to the waste dump. The complaint is captioned "Complaint for Injunction" and is framed in 14 separate causes of action. The relief sought is revocation of Permit 41A and injunction against Anaconda prohibit- ing mining activities in the 41A area until writs of mandate direc- ted to State Lands to reconsider the permit in the light of MEPA requirements and the HRMA, to DHES to require pollution permits, and to the Department of Highways to prepare an EIS on the aban- donment of U.S. 91, have been performed to the court's satisfac- tion. No preliminary injunction was sought; work on Anaconda's Hillcrest dump commenced in August or September, 1976, and con- tinues, presumably, to the present. The dump is now a mountain of substantial dimensions. Trial of this cause commenced in Silver Bow County District Court on August 22, 1977. It encompassed 13 days of testimony and argument. After submission of briefs and consid- eration of the case, the court filed findings of fact, conclu- sions of law and a supporting memorandum on March 13, 1978. The findings and conclusions address separately each of the causes of action contained in the complaint. Judgment was subsequently entered for defendants and against plaintiffs on all causes of action, denying any relief. The issues on appeal are: 1 . Was an EIS required before Permit 41A issued and if so, was the EIS which was prepared adequate under MEPA? 2 . Was the application for Permit 41A deficient under the Hard Rock Mining Act, and if so, was the granting of the permit by State Lands in violation of a clear legal duty? 3 . Were public notice and opportunity for hearing required before Permit 41A was issued by State Lands? 4. Was Permit 41A invalid because a permit under the Clean Air Act was not obtained? 5. Whether the Department of Highways was required to prepare an EIS on the abandonment of U . S . 91 in conjunction with Permit 41A, and whether the failure to do so renders the permit invalid? 6 . Is a writ of mandate a proper remedy? 7. Are plaintiffs entitled to attorney fees for enforce- ment of their constitutional right to know under section 2-3-221, MCA? ENVIRONMENTAL IMPACT STATEMENT The first issue is whether an EIS is required before grant- ing a permit under the Hard Rock Mining Act (HRMA). We hold that under the facts of this case an EIS was not required. The Montana Environmental Policy Act (MEPA) provides, in part: "The legislature authorizes and directs that, to the fullest extent possible: "(1) the policies, regulations, and laws of the state shall be interpreted and administered in accordance with the policies set forth in this chapter; " ( 2 ) all agencies of the state shall: "(c) include in every recommendation or report on proposals for projects, programs, legislation, and other major actions of state government signifi- cantly affectins the aualitv of the human environ- ment,* a detailei statgment : . . " Section 75-1-201, MCA. (Emphasis added.) The action which allegedly affects this environment is the dump- ing of overburden and other waste by the defendant Anaconda Company. This can occur only in conformity with a permit granted by the Board of Land Commissioners. Section 82-4-335, MCA. It is well accepted that granting a permit or license to act is a state action which must be accompanied by an EIS if the activity it allows is capable of significantly affecting the human environ- ment. Rodgers, Environmental Law, S7.6, pp. 761-63. We fully recognize that not every action of state govern- ment requires the preparation of an EIS. If the agency properly decides that the action will not "significantly affect the human environment" an EIS is not necessary. In the instant case a mammoth project was proposed and the Commissioner of State Lands was quite correct in deciding that an EIS must precede the granting of a permit. At the time application for Permit 41A was filed, the Hard Rock Mining Act required: "Upon receipt of an application for an operating permit the mining site shall be inspected by the department. Within sixty (60) days of receipt of the complete application and reclamation plan by the board and receipt of the permit fee, the board shall either issue an o~eratins permit- the applicant or return any incomplete or inade- - quate application to the applicant along with a descri~tion of the deficiencies. Failure of the ~ - board ko so act within that period- shall consti- tute approval of the application and the permit shall be issued promptly thereafter." Section 82-4-337, MCA. (Emphasis added.) The 60 day period is a woefully inadequate period for the prep- aration of a proper EIS. As noted by the United States Supreme Court, a draft EIS on simple projects prepared by experienced personnel takes some three to five months to complete. Flint Ridge Development Co. v . Scenic Rivers Assoc. (1976), 426 U.S. fact was recognized by the legislature when in 1977 the statute was amended to provide: "If the department determines that additional time is needed to review the application and reclamation plan for a major operation, the department and the applicant shall negotiate to extend the 60-day period by not more than 365 days in order to permit reasonable review." Section 82-4-337 (1) (b) (ii) , MCA; Sec. 1, Ch. 427, Laws of Montana (1977). Testimony was presented and the District Court ruled that because the 60 day period could not possibly accomncdate the preparation of an EIS, an EIS was not required. This conclusion was reached on the basis of Flint Ridge Development Co. v. Scenic Rivers Assoc., supra; and Moloney v. Kreps (D.N.J. 19771, 10 ERC 1773. In Flint Ridge, the Court considered whether an EIS is re- quired when the Secretary of Housing and Urban Development reviews a disclosure statement under the Disclosure Act, which requires land developers to file these statements for the information of potential buyers. The developer may not sell or lease any lot until the disclosure statement is approved by the Secretary. Once the disclosure statement is filed with him, the Secretary has 30 days to approve or disapprove it. If the Secretary fails to act within the 30 day period, the disclosure statement is deemed automatically approved. The Scenic River Association contended that the National Environment Policy Act had the effect of authorizing the Secretary to suspend the 30-day time limit while an EIS is prepared. In re- jecting this argument, the United States Supreme Court stated: "The Secretary cannot comply with the statutory duty to allow statements of record to go into effect within 30 days of filing, absent inaccu- rate or incomplete disclosure, and simultaneously prepare impact statements on proposed developments. In these circumstances, we find that NEPA's impact statement requirement is inapplicable." Flint Ridge, 426 U.S. at 791, 96 S.Ct. at 2440, 49 L Ed 2d at 218. The high court noted the legislative intent behind the Act: "The purpose of the new language is to make it clear that each agency of the Federal Government shall comply with the directives set out in [5102(2)] unless the existing law applicable to such agency's operations expressly prohibits or makes full compliance with one of the directives impossible. . ." Flint Ridge, 426 U.S. at 787- 788, 96 S.Ct. at 2438, 49 L Ed 2d at 216, citing 115 Cong. Rec. 29703 (1969). (Note: section 102 (2), NEPA corresponds with section 75-1-201(1).(c), MCA, which imposes the duty of preparing an EIS on state agencies. ) The Court reasoned that: "Section 102 recognizes . . . that where a clear and unavoidable conflict in statutory authority exists, NEPA must give way." 426 U.S. at 788, 96 S.Ct. at 2438, 49 L Ed 2d 216. This statement has been cited in numerous cases for the proposition that when a statutory time limit precludes the statutory duty of preparing an EIS, the EIS must yield. The federal courts have concluded that in such situations an EIS is not necessary. See e . g . bloloney, 10 ERC 1773; Concerned about Trident v . Rumsfeld (D.C.Cir.Ct. 1977), 555 F.2d 817, 823. Under the facts of the instant case this Court holds that an EIS was not required for the same reasons that an EIS was not required in the Flint Ridge case. The language, "to the fullest extent possible" is identical in both the NEPA and MEPA. The trial court found that an adequate EIS would require 5 to 6 months to complete and that an EIS for the Permit 4 1 ~ project could not have been prepared in 60 days. Additionally, it is a well settled principle of stat- utory construction that the specific statute will control the general. State ex rel. Marlenee v. District Court (1979), Mont. , 592 P.2d 153, at 156, 36 St.Rep. 457, at 461. At the time of the filing of Permit 41A State Lands had a specific 60 day period within which to act. In comparison, the MEPA is prefaced with the language, "to the fullest extent possible." The MEPA is the general statute in these circumstances. ERMA is the specific statute and controls in this case. We emphasize that Flint Ridge and similar federal cases are uniformly based on the unavoidable and irreconcilable conflict between federal statutes. It was stated in the dissent to Montana Wilderness Ass'n v. Bd. of Health and Environmental Sciences (1976), 171 Mont. 477, 506, 559 P.2d 1157, 1172, (Haswell J., dissenting): "Because MEPA is modeled after NEPA, it is appropriate to look to the federal interpre- tation of NEPA. his Court follows the rule . 7 . found in Ancient Order of Hiberians v. Sparrow [1903], 29 Mont. 132, 135, 74 P. 197, 198: 11 I It . . . that the construction put upon stat- utes by the courts of the state from which they are borrowed is entitled to respectful consider- ation, and . . . only strong reasons will warrant a departure from it."'" The appellants contend that a "strong reason" to depart from the federal interpretation are the following sections in the 1972 Montana Constitution: "All people are born free and have certain inalien- able rights. They include the right to a clean and healthful environment. . ." 1972 Mont. Const., Art. 11, 53. "(1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations. "(2) The legislature shall provide for the adminis- tration and enforcement of this duty. " ( 3 ) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable de- pletion and degradation of natural resources." 1972 Mont. Const., Art. IX, 51. This argument, however, does not have sufficient merit to compel this Court to abandon the rationaleof Flint Ridge. Both the MEPA and the HN4A predate the new constitution. There is no indication that the P I I E P A was enacted to implement the new constitutio..~al guarantee of a "clean and healthful environment." This Court finds that the statutory requirement of an EIS is not given constitutional status by t-he subsequent enactment of this constitutional guarantee. If the 1egj.slature had intended to give an EIS constitutional status they could have done so after 1972. It is not the function of this Court to insert into a statute "what has been omitted." Security Bank v . Connors (1976), 170 Mont. 59, 67, 550 P.2d 1313, 1317. The ordinary rules of stat- utory construction apply. An EIS was not a requirement at the time Permit 41A was granted. HARDROCK MINING ACT The HRMA, section 82-4-301 et seq., MCA, provides in part that "no person shall engage in mining in the state without first obtaining an operating permit from the board to do so." Section 82-4-335, MCA. State Lands is given the responsibility of admin- istering the HRbIA. Section 82-4-321, MCA. The application for a permit under this Act must contain several specific items of in- formation including a proposed reclamation plan, and a plan of mining. Section 82-4-335, MCA. Among other claims of error in issuing the permit, plain- tiffs argue that there was no mining plan for 410 acres of the 500 acres included in Permit 41A. A review of the two-page mining plan indicates that this is true. The application requested a permit covering 500 acres, yet the mining plan only refers to 90 acres. Nothing is said about the plans for the other 410 acres. Defendant State Lands argues that this deficiency can be cured later by requiring Anaconda to submit a mining plan for the addi- tional acres. It must be noted that the mining plan must be sub- mitted before the permit is issued. To allow the issuance of a permit for the entire 500 acres when there is a mining plan for only 90 acres violates the express requirements of HRMA. ~lthough the deficiency of the mining plan is sufficient grounds for voiding the permit, three other independent grounds exist for invalidating it: 1 . A reclamation plan must be included in every appli- cation for a permit under the HRMA. Section 82-4-335(3), MCA. Rule 5A3, A.R.M. 26-2.10(2) - S10030, requires that pertinent climatic conditions be described in the reclamation plan. In the Permit 41A application Anaconda devotes one sentence to climatic conditions. This one sentence merely gives the annual rainfall in the Butte area. There is no mention of temperature, wind patterns or any other pertinent climatological data which would give the agency an opportunity to correctly evaluate the proposed uses of the reclaimed land. This one sentence description is inadequate as a matter of law. For State Lands to approve this description in light of the purposes for which this data must be used is an abuse of discretion. 2 . Section 82-4-303(10)(a) requires that the reclamation plan include a "proposed subsequent use of the land after reclam- ation." This is omitted from the Permit 41A reclamation plan. There is a statement on page 1 of the plan that "upon termination of mining and associated disturbances the Company will consider offering the land for other uses." This Court notes that a statement as to the subsequent use of the disturbed land is central to any meaningful decision con- cerning the adequacy of the reclamation plan. State Lands could not possibly make an informed or adequate evaluation of the reclamation plan unless they were given a sufficient statement as to what the reclamation plan is supposed to accom~lish. To allow the statement, "The Company will consider offering the land for other uses" as an adequate statement of subsequent use would be to make a mockery of the H-WIA. Such statement is inade- quate as a matter of law. 3 . Section 82-4-335(5), MCA, requires that a map be sub- mitted showing the area which will be disturbed by the proposed mining activity. In this case a map covering only 90 acres was submitted and a permit for 500 acres was granted. This is a clear violation of the HRMA. For these reasons the permit was invalid. The present mining operations on the 500 acres covered by Permit 41A cannot be continued until an adequate application is made and a valid permit pursuant to the HRMA is issued. NOTICE AND HEARING Plaintiff homeowners basically contend that Permit 41A was invalid because State Lands did not give notice and offer an opportunity for a hearing before the permit was issued. They claim that they were denied their right to notice and partici- pation which is granted by section 2-3-103(1), MCA. At the time this action commenced the predecessor to this section (section 82-4228, R.C.M. 1947) did grant the public the right to have notice and to participate in agency actions such as granting a permit. It must be noted, though, that section 2-3-114 requires that action must be taken in District Court within 30 days of the date of decision. In the instant case, the permit was granted on December 22, 1975, and the ~riginal complaint was filed on March 12, 1976. Thus, the District Court lacked jurisdiction to consider plaintiffs' rights under this section. Plaintiffs next contend that they were entitled to a hear- ing under the MAPA. The applicable section reads: "Ln a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice." Section 2-4-601, MCA. "Contested case" is defined in the MAPA as follows: "'Contested case' means any proceeding before an agency in which a determin~tion of legal rights, duties, or privileges of a party is required by law to be made after an opportunity for hearing. - The term includes but is not restricted to rate making, price fixing, and licensing." Section 2-4-102 (4), MCA. Under the HRMA, as it existed at the time that these events transpired, no opportunity for a hearing was required be- fore the permit was issued. Consequently, this was not a contested case under the HRMA, or under the MAPA. In fact if this had been a "contested case" under the MAPA the District Court would have been without jurisdiction to consider this case in the first in- stance. Section 2-4-702(2)(a), MCA, provides that "proceedings for review [of contested cases] shall be instituted by filing a petition in district court within 30 days after service of the final decision . . ." Plaintiffs also contend that Article 11, Section 8, 1972 Mont. Const., provides authority for the proposition that they were entitled to an opportunity to participate in the decision to grant Permit 41A. This section says: "Right of Participation. The public has the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law." (Emphasis added. ) Under this section the public's right to participate is limited to those instances where that right is "provided by law." he HRMA, as noted above, does not provide for public participation in the decision making activity which proceeds the issuing of a permit. In the instant case, this constitutional provision does not support plaintiffs' contention. CLEAN AIR ACT The next issue raised by the plaintiffs is the failure of the Department of Health and Environmental Sciences (DHES) to control air pollution from the 41A dump area. Plaintiffs contend that DHES has violated a clear legal duty controllable by a writ of mandate. Mandamus lies only to compel performance of a ministerial duty and never to compel the performance of a duty or power that requires the exercise of discretion. State ex rel. Wiedman v. City of Kalispell (1969), 154 Mont. 31, 34, 459 P.2d 694, 696. The relevant statute is section 75-2-204, MCA, which provides: "The board may by rule prohibit the construction, installation, alteration, or use of a machine, equipment, device or facility which it finds may directly or indirectly cause or contribute to air pollution or which is intended primarily to prevent or control the emission of air pollutants, unless a permit therefore has been obtained." The language of this statute is couched in terms which clearly indicate a discretionary function. The statute begins, "The board may . . ." This clearly indicates that the legisla- ture was giving the DHES a discretionary duty in this respect. Since the duty was discretionary rather than ministerial, a writ of mandate cannot be issued against DHES. THE D E P A R T J ! / I E N T OF HIGHWAYS Plaintiffs contend that an EIS is required on the aban- donment of U. S. Highway 91. This issue arose because the Permit 41A area is bisected by old U.S. 91. The highway itself is not included in the requested permit area, but is bordered by the permit area on each side. At the time Permit 41A was applied for, Anaconda had in process a petition to abandon U . S. 91. The evidence presented at the trial of this matter indicates that the State Highway Commission had not yet made a decision whether to abandon the highway. No evidence of the abandonment was before the trial court. On February 1, 1978, the Highway Commission entered an order of abandonment on the 3.2 miles of U. S. 91 that passes through the Permit 41A area, upon payment by Anaconda of $1.8 million. This occurred after judgment on this matter had been entered by the District Court. At the time this case went to trial, no final decision had been made by the Highway Commission concerning the abandon- ment of U . S. 91. Courts will not ordinarily administer judi- cial remedies while the matter is pending in administrative pro- ceedings. This deference on the part of courts "is generally applied when the Court believes that consideration of policy recommends that the issue be left to the administrative agency for initial determination." Grever v . Idaho Telephone Co. (1972), 94 Idaho 900, 499 P.2d 1256, 1258. Here the District Court was correct in ruling this issue to have been prematurely submitted for review. It is a sound policy that courts will not interfere with an agency proceeding until there is final action by that agency on a particular matter. MANDAMUS Since this opinion affirms the judgment as to DHES and the Highway Department, mandamus will be discussed only as it applies to State Lands. The statutory law concerning the writ of mandate in Montana is contained at sections 27-26-101 et seq., MCA. Sec- tion 27-26-102(1) provides in pertinent part that this writ I' . . . may be issued by the supreme court . . . to compel the perform- ance of an act which the law specially enjoins as a duty result- ing from an office, trust, or station . . ." As stated by this Court in State ex rel. Swart v. Casne (1977), 172 Mont. 302, 309, 564 P.2d 983, 987: "The writ will issue only where the person seek- ing to invoke it is entitled to have the defen- dant perform a clear legal duty and there is no speedy or adequate remedy in the ordinary course of law. " In the instant case we hold that State Lands had a clear legal duty to require that Anaconda submit the required application before Permit 41A was issued. Section 82-4-337 (1) (a) , MCA,states the duty which is imposed upon State Lands when faced with a deficient application. This statute states in part: " . . . the board shall either issue an oper- ating permit to the applicant or return any incomplete or inadequate application, along with a description of the deficiencies . . ." (Emphasis added.) State Lands1 duty when faced with a deficient application (such as Anaconda's in this case) becomes readily apparent from a reading of the statute. State Lands "shall , . . return a incomplete or inadequate application." (Emphasis added.) If the application is complete and adequate then State Lands "shall . . . issue an operating permit." Anaconda's application was obviously incomplete and inadequate. For State Lands to issue a permit for 500 acres when the mining plan only covers 90 acres constitutes a clear abuse of discretion and is a failure to per- form a clear legal duty. State Lands had a clear legal duty to return the application as incomplete and inadequate. State Lands contends that mandamus cannot lie to correct or undo an act already performed. Melton v. Oleson (1974), 165 Mont. 424, 432, 530 P.2d 466, 470. This is a correct statement of the law. What this Court is mandating, however, is not the undoing of an act. Rather, we are directing State Lands to per- form an act which they have not done and which they had a clear legal duty to do. They are to return the Permit 41A application to Anaconda as inadequate and incomplete. Because the application was not returned Permit 41A was void from the beginning and Ana- conda may not continue the mining activities on the Permit 41A area until a valid permit is granted by State Lands. ATTORNEY FEES UNDER SECTION 2-3-221, MCA. This issue need not be discussed, because attorney fees are available to plaintiffs under the mandamus statutes, section 27-26-402, MCA. In summary, we mandate that State Lands is to return the application for Permit 41A as incomplete and inadequate. We enjoin further use of the 41A area for mining operations until a valid permit is issued by State Lands. The cause is remanded to the District Court for an evidentiary hearing on attorney fees which are granted to the prevailing party on a writ of mandate. All other relief is denied. Chief Justice sitting in place of Mr. Justice John C. Sheehy. Mr. Justice Daniel J. Shea specially concurs and will file an opinion later. | October 16, 1979 |
2bef834b-d8fc-41a4-9f04-2953c1b7a0cc | ECKART v HUBBARD | N/A | 14700 | Montana | Montana Supreme Court | No. 14740 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 FAYEM. ECKART, a woman; MARY (nee Hubbard) SKELTON, a woman; and JOHN HUBBARD, a single man, Plaintiffs and Respondents, RODERICK R . HUBBARD, a single man; et al., Defendants and Appellants. Appeal from: District Court of the Eighth Judicial District, Honorable R. J. Nelson, Judge presiding. Counsel of Record: For Appellants: S. M. Swanberg argued, Great Falls, Montana Roderick R . Hubbard, San Diego, California For Respondents: Burton, Waite & Cruikshank, Great Falls, Montana Charles Cruikshank argued, Great Falls, Montana Submitted: September 14, 1979 Decided: 39V 2 2 1979 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an action to quiet title to two tracts of land in Cascade County originally owned by Russell C. Hubbard. Defendants Roderick Hubbard and Michael Jean Null are issue of Russell Hubbard's second marriage to Constance E. Hubbard, who later became Constance E. Washburn and is now deceased. Plaintiffs John Hubbard and Mary Skelton are children of Hubbard's third marriage to Faye Hubbard, now Faye Eckart, who is also a plaintiff in this action. Russell C. Hubbard, the father, acquired the two tracts of land in question from his mother by warranty deed dated March 1, 1939. On June 1, 1949, Hubbard conveyed Tract A of the lands by warranty deed to Ann Bladorn and Tract B of the lands by warranty deed to his very close personal friends, Alden and Ina Lohrke. Ann Bladon thereafter came into default on Tract A and, on November 15, at Hubbard's insis- tence, conveyed that said tract to the Lohrkes. Both deeds to the Lohrkes were made without their knowledge and lacked consideration. Hubbard did not inform Alden Lohrke of the conveyances of the land until approximately two years later when he casually remarked that the Lohrkes owned the land. Lohrke assumed that, since Hubbard's financial condition was "marginal," Hubbard had placed legal title in the Lohrkes' names to protect the land for his own purposes. Lohrke never treated the land as if it were his, only that he had a "bare" or "naked" title. Hubbard paid the taxes on the land, leased it and kept the income from the leases. Prior to Hubbard's conveyances of the two tracts of land to the Lohrkes, several liens attached to the tracts as well as to other property which Hubbard owned. These liens w e r e t h e r e s u l t of t h e terms of a divorce decree between Hubbard and h i s second wife Constance. The decree provided f o r support payments f o r t h e support of t h e couple's two children, Roderick and Michael Jean. A s t h e payments became delinquent, l i e n s attached t o Hubbard's land. Some of t h e l i e n s on land o t h e r than t h e two t r a c t s were released after t h e divorce. Richard Eklund, Constance's f a t h e r , t e s t i f i e d t h a t Constance released these l i e n s on Hubbard's promise t h a t t h e two t r a c t s would be placed i n t r u s t f o r t h e c h i l - dren. The l i e n s on t h e two t r a c t s , however, w e r e never released, and a w r i t t e n t r u s t w a s never drawn. O n October 18, 1953, Hubbard married h i s t h i r d wife, Faye. Three children were born of t h i s marriage, two of whom survived: John, born March 1, 1955, and Mary, born on J u l y 4 , 1956. Hubbard died i n t e s t a t e on April 3 , 1972, i n Cascade County, survived by h i s wife Faye and four children. P r i o r t o h i s death, he informed Alden Lohrke on a t l e a s t two occasions t h a t he had hoped the two t r a c t s of land would go t o h i s children. One of these conversations took place approximately two o r t h r e e years a f t e r Hubbard conveyed t h e land t o t h e Lohrkes. The o t h e r took place between 1970 and 1972. Lohrke t e s t i f i e d t h a t t h e f i r s t w a s a casual, "off t h e cuff" remark i n which Hubbard d i d n o t s p e c i f i c a l l y i d e n t i f y what he meant by " h i s children." Knowing Hubbard r a t h e r w e l l , Lohrke f e l t t h a t the t e r m might be representa- t i v e of a c l a s s and included not only h i s present b u t any f u t u r e children. With r e s p e c t t o t h e second conversation, Lohrke understood Hubbard t o mean a l l four of h i s children. O n May 18, 1973, Hubbard's son Roderick, who i s a p r a c t i c i n g attorney i n San Diego, obtained without consider- a t i o n from Alden Lohrke two quitclaim deeds regarding t h e land. H e a l s o i n s t i t u t e d proceedings f o r t h e probate of t h e e s t a t e of Ina Lohrke, who had died i n t e s t a t e on June 13, 1966. The proceedings were i n s t i t u t e d f o r t h e purpose of c l e a r i n g up t h e l e g a l t i t l e t o t h e land, s i n c e t h e Lohrkes' daughter, Linda Russell, had acquired an i n t e r e s t i n t h e land upon her mother's death. Linda, i n t u r n , quitclaimed h e r i n t e r e s t i n t h e two t r a c t s of land t o Roderick without consideration on June 1 4 , 1973. The Lohrkes t r a n s f e r r e d t h e lands t o Roderick with t h e understanding t h a t t h e t r a n s f e r s w e r e being made f o r t h e b e n e f i t of a l l f o u r children. Roderick, of h i s own v o l i t i o n , acquired the land i n t r u s t f o r t h e four children. I n a response t o a telephone c a l l from Faye concerning t h e land, Roderick wrote: "There i s n o t much I can do as long as t h e t i t l e i s i n Alden's name; t h e r e f o r e I suggest t h a t Alden t r a n s f e r h i s i n t e r e s t i n t h e property t o m e . . . I w i l l hold t h e property i n t r u s t f o r t h e children." Sometime later, however, Roderick changed h i s p o s i t i o n with r e s p e c t t o t h e land. Instead of holding t h e land i n t r u s t f o r a l l f o u r c h i l d r e n , Roderick claimed t h e land f o r himself and Michael Jean because of t h e l i e n s f o r support payments on which h i s f a t h e r had been delinquent. Roderick i n s i s t s t h a t , a t t h e t i m e of t h e conveyances from t h e Lohrkes t o himself, he w a s unaware of t h e e x i s t e n c e of t h e l i e n s . When he became aware of them, he contends t h a t he informed Alden Lohrke of t h e l i e n s and t h a t Lohrke agreed t h a t t h e land should be Roderick's and Michael Jean's. Lohrke, on t h e o t h e r hand, denies t h e s e things. Roderick admits t h a t he took no a c t i o n of any kind t o enforce t h e l i e n s f o r t h e delinquent support payments when he served as t h e executor of h i s mother's estate i n 1973. H e explained t h a t he d i d n o t take any a c t i o n because Lohrke purportedly agreed t o t h e v a l i d i t y of h i s mother's l i e n s and t o t h e f a c t t h a t t h e land w a s h i s and Michael Jean's. P l a i n t i f f s brought t h i s a c t i o n i n D i s t r i c t Court t o q u i e t t i t l e t o t h e two t r a c t s of land, claiming t h a t they had an i n t e r e s t i n t h e i r ownership. Defendants claimed s o l e ownership of t h e land on t h e b a s i s t h a t Hubbard c r e a t e d a c o n s t r u c t i v e o r r e s u l t i n g t r u s t f o r them i n s a t i s f a c t i o n of delinquent support payments under t h e divorce decree between Hubbard and h i s second wife. A t t r i a l without jury on J u l y 10, 1978, t h e D i s t r i c t Court made t h e following findings: t h a t no t r u s t was cre- a t e d by t h e conveyances o f t h e two t r a c t s from Hubbard t o t h e Lohrkes; t h a t it was immaterial whether a t r u s t w a s c r e a t e d because l e g a l t i t l e t o t h e property vested i n Hub- b a r d ' s e s t a t e upon h i s death and, under t h e laws of i n t e s - t a c y , Faye became e n t i t l e d t o one-third of t h e property and t h e c h i l d r e n shared equally i n t h e remainder; and, t h a t c o l l e c t i o n on t h e delinquent support payments was barred by t h e s t a t u t e of l i m i t a t i o n s . From t h i s judgment, a p p e l l a n t s appeal. The s i n g l e i s s u e presented f o r review i s whether t h e r e w a s s u f f i c i e n t evidence t o support t h e holding t h a t no t r u s t was c r e a t e d by t h e conveyances from Hubbard t o t h e Lohrkes and t h a t t h e property remained i n Hubbard's i n t e s t a t e estate. Our a t t e n t i o n i s f i r s t drawn t o t h e kinds of t r u s t s t h a t may be c r e a t e d i n t h i s s t a t e . Montana s e p a r a t e s t r u s t s i n t o two c l a s s e s : voluntary t r u s t s , otherwise known as express t r u s t s , and involuntary t r u s t s , otherwise known as implied t r u s t s . Section 72-20-101, MCA; P l a t t v. P l a t t (1959), 134 Mont. 474, 480, 334 P.2d 722, 727. The most d i s t i n g u i s h i n g c h a r a c t e r i s t i c between t h e two classes of t r u s t s is t h a t voluntary o r express t r u s t s depend f o r t h e i r c r e a t i o n upon a clear and d i r e c t expression of i n t e n t by t h e t r u s t o r . Involuntary o r implied t r u s t s arise by operation of l a w and a r e concerned with implied o r presumed i n t e n t , o r a r e n o t concerned with i n t e n t a t a l l . Bogert on T r u s t s , 5 t h ed., S71, p. 262; s e c t i o n 72-20-103, MCA; P l a t t v. P l a t t , supra. Both kinds of t r u s t s , however, must be e s t a b l i s h e d by evidence which i s c l e a r , convincing, and p r a c t i c a l l y f r e e from doubt. F i r s t National Bank of Twin Bridges v. Sant (1973), 161 Mont. 376, 386, 506 P.2d 835, 841; B a r r e t t v. Zenisek (1957), 132 Mont. 229, 238, 315 P.2d 1001, 1006. Here a p p e l l a n t s seek t o have a t r u s t declared r e l a t i n g t o c e r t a i n real property. Montana s t a t u t e s allow both classes of t r u s t s t o be c r e a t e d with r e s p e c t t o r e a l prop- e r t y . Involuntary t r u s t s may be c r e a t e d , f o r example, when a c o u r t implies o r presumes an i n t e n t t o c r e a t e a t r u s t o r simply d e c l a r e s , employing t h e p r i n c i p l e s of e q u i t y , t h a t t h e t r u s t s h a l l be s a i d t o e x i s t . Nothing e l s e i s required. Voluntary t r u s t s , however, depend upon a w r i t t e n instrument f o r t h e i r c r e a t i o n . Section 72-24-102, MCA, provides: "No t r u s t i n r e l a t i o n t o r e a l property i s v a l i d u n l e s s c r e a t e d o r declared by: " (1) a w r i t t e n instrument, subscribed by t h e t r u s t e e o r by h i s agent t h e r e t o authorized by w r i t i n g ; " ( 2 ) t h e instrument under which t h e t r u s t e e claims t h e e s t a t e a f f e c t e d ; o r " (3) operation of law. " It i s clear t h a t t h e D i s t r i c t Court was c o r r e c t i n holding t h a t an express t r u s t w a s n o t c r e a t e d . Neither p a r t y introduced evidence of a w r i t t e n document i n which a t r u s t w a s c r e a t e d o r declared. What w a s introduced, r a t h e r , w a s simply testimony t h a t Hubbard had conveyed c e r t a i n land t o t h e Lohrkes which w a s l a t e r explained by an o r a l s t a t e - ment. Approximately two years a f t e r the conveyances, Hub- bard casually remarked t o Lohrke t h a t t i t l e t o the land was i n Lohrke's name and t h a t Hubbard wanted t h e land t o go t o h i s children. These a c t s a r e not s u f f i c i e n t t o c r e a t e a voluntary o r express t r u s t involving r e a l property. The p o s s i b i l i t y remains, however, t h a t an involuntary t r u s t w a s created. Involuntary t r u s t s r e l a t i n g t o real property arise by operation of l a w and a r e of two kinds, r e s u l t i n g and constructive. P l a t t , supra. Constructive t r u s t s spring from fraud, mistake, undue influence, t h e v i o l a t i o n of a t r u s t , o r o t h e r wrongful a c t s . P l a t t , supra. Constructive t r u s t s occur where t h e p a r t i e s have expressed no i n t e n t t o create a t r u s t , nor does t h e c o u r t presume t h a t any i n t e n t existed. Rather, t h e c o u r t c r e a t e s t h e t r u s t t o work an e q u i t a b l e r e s u l t . Bogert, supra, S71, p. 263. Section 72-20-111, MCA, provides: "One who gains a thing by fraud, accident, m i s - take, undue influence, t h e v i o l a t i o n of a t r u s t , o r o t h e r wrongful a c t is, unless he has some o t h e r o r b e t t e r r i g h t thereto, an involuntary t r u s t e e of t h e thing gained f o r t h e b e n e f i t of t h e person who would have otherwise have had i t . " The evidence here f a i l s t o support t h a t a constructive t r u s t w a s created by t h e conveyances from Hubbard t o the Lohrkes. I n no way may it be s a i d t h a t Alden Lohrke gained t h e property by a wrongful act. Lohrke and Hubbard w e r e longtime f r i e n d s who had g r e a t confidence and t r u s t i n each other. Lohrke described Hubbard a s "close t o being a younger brother." Hubbard v o l u n t a r i l y t r a n s f e r r e d t h e property t o Lohrke without h i s knowledge because Hubbard was confident t h a t it would be " i n good hands." The D i s t r i c t Court w a s c o r r e c t , therefore, i n holding t h a t no constructive t r u s t existed. A r e s u l t i n g t r u s t occurs where, as a r e s u l t of c e r t a i n acts, a c o u r t f i n d s t h a t t h e r e i s an implied i n t e n t t o c r e a t e a t r u s t and imposes a t r u s t t o achieve an e q u i t a b l e r e s u l t . Usually r e s u l t i n g t r u s t s involve cases where t h e p a r t i e s have used ambiguous language which t h e c o u r t con- s t r u e s a s showing a t r u s t i n t e n t , o r where t h e p a r t i e s have expressed no i n t e n t t o c r e a t e a t r u s t by words, b u t have performed a c t s from which t h e c o u r t i n f e r s t h a t a t r u s t w a s intended. Bogert, supra, 871, p. 262. Where an express t r u s t f a i l s and t h e c o u r t f i n d s a r e s u l t i n g t r u s t , t h e t r u s t property i s returned t o t h e s e t t l o r , o r h i s successors i n i n t e r e s t i f he is dead, pro- vided t h a t t h e s e t t l o r has n o t expressly o r impliedly made a d i f f e r e n t d i s p o s i t i o n of t h e equitable i n t e r e s t under t h e t r u s t . "Where an express p r i v a t e t r u s t i s created gratu- i t o u s l y and it f a i l s f o r any reason, a problem a r i s e s a s t o t h e d i s p o s i t i o n of t h e t r u s t prop- e r t y . S h a l l t h e t r u s t e e be allowed t o r e t a i n it f o r h i s own benefit? . . . Usually t h e only de- f e n s i b l e r e s u l t i s t o r e t u r n t h e property t o the s e t t l o r s o r h i s successors . . . "The c o u r t s declare t h i s r e t u r n t o t h e s e t t l o r , o r i f he is dead, t o h i s successors i n i n t e r e s t , and they o f t e n do it on t h e theory of a r e s u l t - i n g t r u s t . . . "Thus, i f a s e t t l o r of a p r i v a t e t r u s t t r a n s f e r s property i n t e r vivos . . . t o named t r u s t e e s , as a g i f t , b u t f a i l s t o describe t h e benefici- aries a t a l l o r describes them i n an uncertain way . . . t h e usual r e s u l t i s t h a t t h e property r e s u l t s t o t h e s e t t l o r i f he i s l i v i n g , o r t o t h e successors of t h e s e t t l o r who would take t h e kind of property which was t h e s u b j e c t matter of t h e t r u s t . " Bogert, supra, 875, pp. 281-282. I n t h i s case it w a s possible f o r t h e D i s t r i c t Court t o have declared a r e s u l t i n g t r u s t on behalf of defendants and/or p l a i n t i f f s . An i n t e n t t o c r e a t e a t r u s t could have been implied from t h e circumstances surrounding t h e con- veyances. Hubbard's statement t h a t he wanted the property t o go t o h i s "children" could a l s o have been regarded as s u f f i c i e n t l y d e f i n i t e t o include h i s children as a c l a s s o r h i s children a t t h e t i m e of t h e conveyances. However, t h e D i s t r i c t Court held instead t h a t it was immaterial whether a t r u s t w a s created because t i t l e t o t h e property vested i n Hubbard's e s t a t e upon h i s death and, under t h e laws of i n t e s t a c y , Faye became e n t i t l e d t o one- t h i r d of t h e property and t h e children shared equally i n t h e remainder. The D i s t r i c t Court d i d not err i n rendering such a holding. W e have seen, f o r t h e aforementioned reasons, t h a t t h e D i s t r i c t Court could n o t have declared e i t h e r an express t r u s t o r a constructive t r u s t was created. The circum- stances facing t h e c o u r t l e f t open only t h e p o s s i b i l i t i e s of a r e s u l t i n g t r u s t o r t h a t no t r u s t existed. Whatever a l t e r - n a t i v e s o r devices a v a i l a b l e t o t h e c o u r t , t h e r e s u l t was t h e same. I f no t r u s t e x i s t e d , the proceeds had t o r e t u r n t o Hubbard o r h i s probate e s t a t e . I f a r e s u l t i n g t r u s t was imposed, t h e property r e s u l t e d t o Hubbard o r , i f he was dead, t o h i s successors i n i n t e r e s t . I n t h i s sense, there- f o r e , it w a s immaterial whether a t r u s t w a s created. The property had t o be returned t o Hubbard's e s t a t e . W e hold, therefore, t h a t t h e r e w a s s u f f i c i e n t evidence t o support t h e holdings of t h e D i s t r i c t Court t h a t t h e r e w a s no t r u s t created and t h a t t h e t r u s t property be returned t o Hubbard's estate t o be d i s t r i b u t e d according t o t h e laws of intestacy. Accordingly, w e d i r e c t the D i s t r i c t Court t o r e q u i r e t h a t Roderick Hubbard, presently holding t i t l e t o t h e two t r a c t s of land by q u i t c l a i m deed from Alden Lohrke, t a k e a l l a c t i o n s and execute a l l instruments necessary t o r e t u r n t h e property t o Hubbard's e s t a t e . Judgment affirmed. W e concur: Chief J u s t i c e ,' / J u s t i c e s | November 21, 1979 |
f2e5d1ad-731e-44b6-b52e-76a11f4d0f53 | MARRIAGE OF JACOBSON v JACOBSON | N/A | 14728 | Montana | Montana Supreme Court | No. 14728 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN RE THE MARRIAGE OF VERNA B . JACOBSON, Petitioner and Respondent, -vs- THEODORE F. JACOBSON, d ~ i ) ; c ~ n N i - Respondent and Resptxderrt. Appeal from: District Court of the Third Judicial District, Honorable Robert J. Boyd, Judge presiding. Counsel of Record: For -~etibi&& , I - Poore, Roth, Robischon & Robinson, Butte, Montana For Respondent: Corette, Smith, Dean, Pohlman & Allen, Butte, Montana James J. Masar, Deer Lodge, Montana - -- Submitted on briefs: August 2, 1979 Decided : iJCI - 5 fgj Clerk M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court. his i s an appeal from a judgment of t h e D i s t r i c t Court of t h e Third J u d i c i a l D i s t r i c t d i s s o l v i n g t h e marriage of Theodore and Verna Jacobson and d i s t r i b u t i n g t h e m a r i t a l property of t h e p a r t i e s . The husband appeals from t h a t p o r t i o n of t h e decree a f f e c t i n g t h e property d i s t r i b u t i o n . The p a r t i e s were married i n Butte, Montana, on March 16, 1952. A t t h e t i m e of t r i a l , Verna Jacobson was 47 y e a r s of age and Theodore Jacobson was 49. The p a r t i e s have two c h i l d r e n , a son aged 22 r e s i d i n g i n Alaska, and another son aged 18 who graduated from high school i n 1978 and r e s i d e s on t h e family ranch near Deer Lodge, Montana, i n Powell County. Ted Jacobson was r a i s e d on t h e ranch and h i s s o l e occupation has been ranching. H i s formal education ended i n t h e n i n t h grade. Verna Jacobson i s a high school graduate who worked as a s e c r e t a r y p r i o r t o her marriage t o Ted. I n 1948 Ted and h i s brother formed a p a r t n e r s h i p t o o p e r a t e t h e ranch. I n t h a t year they leased a p o r t i o n of t h e ranch from t h e i r f a t h e r f o r t h e purpose of r a i s i n g potatoes. I n 1953 t h e b r o t h e r s and t h e i r wives leased t h e e n t i r e home ranch and bought some c a t t l e from t h e i r f a t h e r , and i n 1959, they purchased t h e ranch on a c o n t r a c t f o r deed. The p a r t n e r s h i p continued u n t i l 1969. Thus, when t h e p a r t i e s w e r e married i n 1952, Ted and h i s brother were already i n t h e process of taking over t h e operation of t h e ranch. The D i s t r i c t Court found t h a t "Ted Jacobson w a s and i s a hard-working and a b l e rancher." Through h i s e f f o r t s and knowledge of t h e business, t h e value of t h e Jacobson ranch increased s u b s t a n t i a l l y both during t h e t i m e it was operated i n p a r t n e r s h i p with h i s brother and a f t e r t h e partnership terminated in 1969. Throughout the marriage of the parties, Ted did the outside work on the ranch. In addition to the usual ranch work he made substantial improve- ments to an existing house located on the ranch, and he and his brother later assisted in building a new house in which the parties resided. A significant part of the increased value of the ranch can be attributed to the installation of a lateral irrigation system by Ted and his brother in 1966 and the installation of a sprinkler irrigation system by Ted in 1975. For her part, Verna performed the duties of a ranch wife and homemaker for over 25 years. Although she did not participate in the outside work, she spent great amounts of time caring for her two sons, the elder of whom had heart problems discovered at an early age, and the younger, who was found at an early age to have a serious physical ail- ment. She spent a considerable amount of time working with the younger son to assist him in completing school. Until 1969 Verna boarded the hired hands, generally feeding them three meals a day in the family home. In addition to these contributions, she did the bookkeeping for the ranch after the partnership between Ted and his brother terminated in 1969, maintaining the ranch record books and accounts, keeping track of ranch income and expenses, paying the bills, paying the ranch help, keeping the records necessary for ranch income withholding, social security, and workers' compensation, and delivering this information to their accountant each year for the purposes of preparing income tax returns. She also occasionally drove to town to pick up ranch supplies. The D i s t r i c t Court, a f t e r r e c i t i n g t h e c o n t r i b u t i o n s t o t h e marriage made by each of t h e p a r t i e s , concluded t h a t t h e p a r t i e s had made equal c o n t r i b u t i o n s t o t h e m a r i t a l e s t a t e and t h a t t h e wife had acquired a vested one-half i n t e r e s t i n a l l property acquired by t h e p a r t i e s during t h e i r marriage. "None of t h e property now owned by t h e p a r t i e s was acquired d i r e c t l y o r i n d i r e c t l y through in- h e r i t a n c e o r g i f t and t h e Court f i n d s t h a t t h e w i f e ' s c o n t r i b u t i o n a s a homemaker and mother, along with t h e husband's c o n t r i b u t i o n i n doing work on t h e ranch, i s e n t i t l e d t o equal weight and t h e Court f i n d s t h a t M r s . Jacobson acquired a vested one-half (1/2) i n t e r e s t i n t h e property accumulated by t h e p a r t i e s during t h e marriage." (Emphasis supplied. ) Pursuant t o t h i s finding t h e District Court's judgment entered on January 25, 1979, g i v e s t h e husband t h e option t o purchase t h e w i f e ' s i n t e r e s t i n t h e m a r i t a l property. The t o t a l m a r i t a l property, c o n s i s t i n g primarily of t h e family ranch, w a s found t o have a value of $1,147,786. Within t h r e e months of t h e decree, t h e husband has t h e option t o e i t h e r pay t o t h e wife one-half of t h e t o t a l sum o r t o pay 20 percent down with t h e balance payable i n t h i r t y equal annual i n s t a l l m e n t s with i n t e r e s t a t t h e rate of 7 percent per annum. These i n s t a l l m e n t s a r e t o be secured by a mort- gage on a l l r e a l property. I f t h e husband f a i l s t o e x e r c i s e h i s option t o purchase t h e w i f e ' s i n t e r e s t , t h e property i s t o be sold on t h e market f o r cash a t a p r i c e agreeable t o t h e p a r t i e s . I f no buyers a r e secured, t h e property i s t o be sold a t a p u b l i c sale within a f u r t h e r t h r e e months from t h e d a t e of t h e decree. The a p p e l l a n t husband r a i s e s two i s s u e s on appeal: 1. Did t h e D i s t r i c t Court abuse its d i s c r e t i o n and f a i l t o equitably apportion t h e m a r i t a l a s s e t s by neglecting t o consider t h e more s u b s t a n t i a l c o n t r i b u t i o n s of t h e husband t o t h e development and maintenance of t h e m a r i t a l property? 2. Did t h e District Court abuse i t s d i s c r e t i o n i n providing a s an a l t e r n a t i v e a purchase by t h e husband of one-half of t h e p a r t i e s ' m a r i t a l a s s e t s a t an i n t e r e s t r a t e of 7 p e r c e n t p e r annum? S e c t i o n 40-4-202, MCA, s t a t e s i n r e l e v a n t p a r t : " I n a proceeding f o r d i s s o l u t i o n of a marriage . . . t h e c o u r t . . . s h a l l . . . f i n a l l y equi- t a b l y apportion between t h e p a r t i e s t h e property and a s s e t s belonging t o e i t h e r o r both, however and whenever acquired and whether t i t l e t h e r e t o i s i n t h e name of t h e husband o r wife o r both. I n making apportionment t h e c o u r t s h a l l consider t h e d u r a t i o n of t h e marriaqe and [ o t h e r f a c t o r s ] - . . . The c o u r t s h a l l a l s o consider. . . - t h e c o n t r i b u t i o n of a spouse a s a homemaker o r t o - - - - -- t h e family u n i t . " (Emphasis supplied.) - - The standard f o r review of a D i s t r i c t C o u r t ' s d i s p o s i - t i o n of m a r i t a l a s s e t s upon a d i s s o l u t i o n of marriage i s w e l l s e t t l e d : "A D i s t r i c t Court has far-reaching d i s c r e t i o n i n r e s o l v i n g property d i v i s i o n s , and its judgment w i l l n o t be a l t e r e d u n l e s s a c l e a r abuse of d i s - c r e t i o n is shown. Kaasa v. Kaasa (1979), Mont. , 591 P.2d 1110, 1113, 36 St.Rep. 425, 428; K r a m e r v. Kramer (1978), Mont. I 580 P.2d 439, 35 St.Rep. 700; Eschenburg v. Eschenburg (1976), 171 Mont. 247, 557 P.2d 1014. The test f o r reviewing t h e District C o u r t ' s d i s - c r e t i o n is: Did t h e D i s t r i c t Court i n t h e exer- cise of i t s d i s c r e t i o n act a r b i t r a r i l y without employment of conscientious judgment, o r exceed t h e bounds of reason i n view of a l l t h e circum- stances? Kuntz, 593 P.2d a t 43; Jorgensen, supra; K r a m e r , supra; Z e l l v. Z e l l (1977), Mont. , 570 P.2d 33, 34 St.Rep. 1070; B e r - thiaume v. Berthiaume (1977) , Mont. I 567 P.2d 1388, 34 St.Rep. 921." Aanenson v. Aanenson (1979), Mont. I P.2d , 36 St.Rep. 1525, 1528. The d u t y o f t h e D i s t r i c t Court is t o consider t h e s t a t u t o r y criteria and e q u i t a b l y apportion t h e m a r i t a l a s s e t s . Each case must be looked a t i n d i v i d u a l l y w i t h an eye t o i t s unique circumstances. Aanenson, supra; Jorgenson Jorgenson Mont. 36 St.Rep. 233, 237; Cook v. Cook (1972), 159 Mont. 98, 104, 495 P.2d 591. "An equal d i v i s i o n under normal conditions of property accumulated through j o i n t e f f o r t s i s not regarded a s unreasonable." Cook, 159 Mont. a t 103, 495 P.2d a t 594, quoting Johnson v. Johnson (1960), 137 Mont. 11, 17, 349 P.2d 310. See a l s o Z e l l v. Zell (1977), Mont. 570 P.2d 33, 34 St.Rep. 1070; Roe v. Roe (1976), 171 Mont. 79, 83, 556 P.2d 1246, 1248. I n t h e p r e s e n t case t h e D i s t r i c t Court d e t a i l e d t h e r e s p e c t i v e c o n t r i b u t i o n s of t h e p a r t i e s i n i t s f i n d i n g s of f a c t . There i s s u b s t a n t i a l evidence i n t h e record t o sup- p o r t t h e D i s t r i c t C o u r t ' s equal d i s t r i b u t i o n a s an e q u i t a b l e apportionment of t h e m a r i t a l property. There was no abuse of d i s c r e t i o n by t h e lower c o u r t , which followed t h e s t a t u - t o r y mandate of s e c t i o n 40-4-202, MCA, t o "consider . . . t h e c o n t r i b u t i o n of a spouse a s a homemaker o r t o t h e family u n i t . " Appellant's second contention i s more troublesome. Appellant s t a t e s t h a t it has always been t h e policy of t h e c o u r t s of t h i s s t a t e t h a t a farm o r ranch should be kept i n t a c t and operated as a u n i t . Appellant argues t h a t t h e option afforded t o him by t h e District Court t o purchase h i s former w i f e ' s i n t e r e s t i n t h e family ranch by paying 20 percent down and t h i r t y annual i n s t a l l m e n t s a t 7 percent i n t e r e s t i s n o t an economically r e a l i s t i c a l t e r n a t i v e . H e contends t h a t t h e ranch does n o t generate s u f f i c i e n t income t o support such payments, t h a t it w i l l have t o be sold t o s a t i s f y t h e D i s t r i c t Court decree, and t h u s , t h a t it w i l l be l o s t t o t h e sons of t h e p a r t i e s who are opposed t o i t s s a l e , p a r t i c u l a r l y t h e younger son, who i s now working on t h e ranch. It is a l l e g e d , t h e r e f o r e , t h a t t h e District Court abused its d i s c r e t i o n . It i s c l e a r t h a t a D i s t r i c t Court may make an e q u i t a b l e d i s t r i b u t i o n of t h e m a r i t a l property and y e t abuse i t s d i s c r e t i o n i n c a r r y i n g o u t t h e award. I n Kruse v. Kruse (1978) , - Mont. , 586 P.2d 294, 298, 35 St.Rep. 1502, 1507, t h e t r i a l c o u r t properly made a n equal apportionment of t h e m a r i t a l a s s e t s , b u t abused i t s d i s c r e t i o n i n f a i l i n g t o consider t h e a s s e t s a t t h e i r c u r r e n t market value which r e s u l t e d i n t h e wife r e c e i v i n g less than h e r equal share. Montana c a s e s have accepted t h e premise t h a t a ranch o r farm should be k e p t i n t a c t and operated as a u n i t . A p o l i c y t o t h a t e f f e c t is r e f l e c t e d i n d e c i s i o n s involving t h e d i s p o s i t i o n of farming and ranching property: Kaasa v. Kaasa (1979) , Mont. , 591 P.2d 1110, 1113, 36 St.Rep. 425, 428; I n re Marriage of Brown (1978), Mont. , 587 P.2d 361, 35 St.Rep. 1733; Biegalke v. Biegalke (1977), 172 Mont. 311, 564 P.2d 987; Hunnewell v. Hunnewell (1972), 160 Mont. 125, 500 P.2d 1198, 1202. Biegalke involved f a c t s similar t o those i n t h e p r e s e n t case. I n r e f e r r i n g t o t h e District C o u r t ' s property d i s t r i - bution whereby t h e husband was given t h e opportunity t o purchase h i s former w i f e ' s m a r i t a l i n t e r e s t i n t h e family farm by making a down payment and paying t h e remaining balance i n annual i n s t a l l m e n t s , t h i s Court s t a t e d , " [ t l h e d i v i s i o n w a s based on t h e premise t h a t t h e ranch be k e p t i n t a c t and operated." Biegalke, 172 Mont. a t 314. Likewise i n Hunnewell, where t h e couple moved onto t h e ranch which had been owned by t h e husband's f a t h e r and where t h e husband had been a rancher a l l h i s l i f e , t h e c o u r t gave t h e husband t h e o p t i o n t o m e e t a l l b i d s t o purchase h i s former w i f e ' s i n t e r e s t i n t h e m a r i t a l e s t a t e by making a down payment and paying t h e remaining balance i n annual i n s t a l l m e n t s , s t a t i n g "[tlhe purpose of this provision is to permit [the husband] to continue to ranch and farm the premises without being met with a sudden emergency to raise money, the Court being aware that all the property is presently mortgaged and such an emergency demand might cause hardship." Hunnewell, 500 P.2d 1202. The District Court valued the marital estate, consist- ing primarily of the family ranch, at $1,147,786 and found that Verna Jacobson was entitled to one-half of that property as her marital share. Pursuant to this finding, the District Court's judgment gives Ted Jacobson the option to purchase Verna's interest in the marital property. Within three months of the decree, the husband must purchase her share by paying her one-half of the total sum in cash, or exercise his option to pay her 20 percent down with the balance payable annually in 30 equal installments with interest at 7 percent, the installments secured by a mortgage on the real property. Otherwise, the ranch will be sold on the market or at a public sale to generate cash to satisfy Verna's marital share. Translated to dollar amounts, the installment option entails annual installments of approximately $34,000. Appellant contends that this amount is practically equiva- lent to the total annual cash income of the ranch before purchases of equipment are taken into consideration. He argues that after the purchase of necessary replacement equipment, annual cash income for the ranch has averaged about $16,000 per year. Therefore, according to appellant, the ranch does not generate sufficient income to support the installment payments that would be required under the pur- chase option given him by the District Court, and so the District Court allegedly abused its discretion. The D i s t r i c t Court, while it d i d make extensive find- i n g s of f a c t concerning t h e m a r i t a l a s s e t s and each p a r t y ' s c o n t r i b u t i o n t h e r e t o , d i d n o t make a f i n d i n g t o t h e e f f e c t t h a t it would be f i n a n c i a l l y p o s s i b l e f o r a p p e l l a n t t o s a t i s f y t h e judgment s h o r t of s e l l i n g t h e ranch. I t is, however, i m p l i c i t i n t h e D i s t r i c t Court's judgment t h a t t h e c o u r t considered t h e a l t e r n a t i v e s i n t h e decree t o be eco- nomically r e a l i s t i c considering t h e r a n c h ' s income-producing c a p a c i t y and its borrowing capacity. There i s s u f f i c i e n t evidence i n t h e record t o support such a conclusion; there- f o r e , t h e r e was no abuse of d i s c r e t i o n . The evidence i n t h e record supporting t h e conclusion t h a t t h e i n s t a l l m e n t purchase option i s an economically r e a l i s t i c a l t e r n a t i v e i s a s follows: (1) t h e ranch i s unen- cumbered save f o r t h e D i s t r i c t Court decree, from which t h e c o u r t may have i n f e r r e d t h a t its borrowing c a p a c i t y i s high; ( 2 ) t h e husband's brother and former p a r t n e r i n t h e ranch i s a rancher and a banker who might be a b l e t o procure a loan o r lend money f o r t h e purchase of t h e w i f e ' s i n t e r e s t ; ( 3 ) t h e r e i s a cash a s s e t held i n t r u s t by one of t h e a t t o r n e y s f o r t h e wife i n t h e amount of $ 3 3 , 7 9 2 less c e r t a i n expenses, representing t h e balance of t h e s a l e of c a t t l e i n t h e pre- vious year; ( 4 ) t h e cash income of t h e ranch has averaged approximately $35,000 a year before equipment purchases, and $16,000 a f t e r purchases of equipment; and ( 5 ) t h e p a r t i e s ' accountant t e s t i f i e d t h a t t h e maximum annual payment t h a t an operator of t h e ranch could reasonably be expected t o pay o u t of ranch income t o purchase an e q u i t y i n t h e ranch would be t h e t o t a l cash flow income of t h e ranch. ~t must be remembered t h a t t h e primary r i g h t t o be considered i n disposing of m a r i t a l property i s t h e r i g h t of each p a r t y t o an e q u i t a b l e apportionment of t h e m a r i t a l assets. While it i s t h e policy of t h e c o u r t s of t h i s s t a t e t o avoid s p l i t t i n g up a ranch o r forcing i t s s a l e where t h e r e i s any reasonable a l t e r n a t i v e , t h a t p o l i c y , however commendable, cannot be used t o o v e r r i d e t h e w i f e ' s r i g h t t o an e q u i t a b l e share of t h e m a r i t a l property. I n t h e p r e s e n t case, t h e D i s t r i c t Court gave the husband t h e option t o purchase h i s former w i f e ' s share by paying 20 percent down and paying t h e remaining balance i n annual i n s t a l l m e n t s over t h i r t y y e a r s a t 7 percent i n t e r e s t . The wife i s 47 years of age. A payment schedule of more than t h i r t y years would n o t allow her t o r e c e i v e t h e equal marital s h a r e t o which she i s e n t i t l e d within her l i f e expectancy. The 7 percent i n t e r e s t r a t e i s below t h a t charged by commercial and governmental lending i n s t i t u t i o n s , The c a s e of I n re Marriage of Brown (1978) Mont. , 587 P.2d 361, 367, 35 St.Rep. 1733, merely suggested t h a t t h e D i s t r i c t Court could order t h e remaining balance paid without i n t e r e s t . It d i d n o t say t h a t t h e t r i a l c o u r t could n o t allow i n t e r e s t , and t h e allowance of i n t e r e s t lies within t h e c o u r t ' s sound d i s c r e - t i o n . The judgment of t h e D i s t r i c t Court s affirmed. /4 W e concur: | October 9, 1979 |
852ee232-7fca-4cf1-b24f-8b8e030e8e43 | MARRIAGE OF MCDONALD v MCDONALD | N/A | 14419 | Montana | Montana Supreme Court | No. 14419 I N THE S U P F ! E N J 3 C O W O F T H E STATE O F M3WANA 1979 IN R E THE MARRIAGE O F JANET M. McENlLD, Petitioner and Respondent, -VS- CHRISrOPHER J . m D O N A L D , Respondent and Appellant. Appeal frcnn: D i s t r i c t Court of the Thirteenth Judicial D i s t r i c t , Honorable Nat Allen, Judge presiding. Counsel of Ftemrd: For A p ~ l l a n t : Dave B. Kinnard, Billings, Mxkana For Respondent: Gary Beiswanger, Billings, mntana Suhitted on briefs: M a y 9, 1979 Decided: SEF - 5 1979 Filed: S t f +. 1q9 M r . J u s t i c e Daniel J. Shea delivered t h e Opinion of t h e Court. T h i s is an appeal by t h e f a t h e r from two o r d e r s of t h e Yellowstone County D i s t r i c t Court, one which refused t o modify a divorce settlement and decree placing custody i n t h e mother, and t h e second from an o r d e r awarding t h e mother a t t o r n e y f e e s and c o s t s generated from her defense of t h e f a t h e r ' s modification p e t i t i o n . The appeal from t h e December 22, 1977 o r d e r i s dismissed a s it came a f t e r t h e f i l i n g deadline; however, t h e o r d e r granting a t t o r n e y f e e s t o t h e mother is reversed because t h e time had expired within which t h e mother had a duty t o a c t . O n January 5, 1976, t h e Yellowstone County D i s t r i c t Court entered a decree of d i s s o l u t i o n which incorporated a separation agreement expressing t h e p a r t i e s ' d e s i r e t o g i v e t h e mother custody of t h e i r two minor c h i l d r e n , subject t o v i s i t a t i o n by t h e f a t h e r . However, on August 17, 1977, t h e f a t h e r f i l e d a p e t i t i o n f o r modification of t h e p r i o r d i s s o l u t i o n decree and a l l e g e d t h a t custody of t h e c h i l d r e n should be t r a n s f e r r e d t o him. I n an order f i l e d December 2 2 , 1977, t h e D i s t r i c t Court denied t h e f a t h e r ' s p e t i t i o n , f i n d i n g t h a t he had n o t s a t i s f i e d t h e requirements of s e c t i o n 40-4-219, MCA, and t h e r e f o r e could n o t modify t h e o r i g i n a l decree. The o r d e r a l s o provided t h a t both p a r t i e s should bear t h e i r own c o s t s and a t t o r n e y fees. Notice of e n t r y of t h e order was f i l e d on December 3 0 , 1977. It was not u n t i l f i v e months l a t e r t h a t a n o t i c e of appeal was f i l e d . Almost t h r e e months a f t e r t h e order denying modification, t h e mother f i l e d a p e t i t i o n f o r an order r e q u i r i n g t h e f a t h e r t o pay a reasonable amount f o r c o s t s and a t t o r n e y f e e s incurred by t h e mother i n defending a g a i n s t t h e f a t h e r ' s modification p e t i t i o n . The D i s t r i c t Court o r d e r granting t h e mother's p e t i t i o n w a s f i l e d May 17, 1978. O n May 26, 1978, t h e f a t h e r f i l e d a n o t i c e of appeal, appealing n o t only from t h e order r e l a t i n g t o a t t o r n e y f e e s , but a l s o from t h e December 1977 order denying h i s p e t i t i o n f o r modification of custody. Clearly, w e cannot determine t h e appeal i n r e l a t i o n t o modification of custody; but j u s t a s c l e a r l y , w e must r e v e r s e t h e D i s t r i c t Court i n its decision awarding a t t o r n e y f e e s and c o s t s , f o r t h e time period had long expired. Rule 5, Mont.R.App.Civ.P., provides t h a t appeal from an order must be taken within t h i r t y days of its e n t r y except t h a t i n cases where s e r v i c e o f n o t i c e of e n t r y i s required, t h e time f o r appeal s h a l l be t h i r t y days from t h e s e r v i c e of n o t i c e of e n t r y of judgment. Here, s e r v i c e of n o t i c e of e n t r y of t h e D i s t r i c t Court o r d e r was made on December 30, 1977. The f a t h e r f i l e d h i s appeal of t h i s order on May 26, 1978, and t h e e x p i r a t i o n of t h e t h i r t y day t i m e l i m i t deprived t h i s Court of j u r i s d i c t i o n t o hear t h i s appeal. The mother's l a t e r p e t i t i o n f o r a t t o r n e y f e e s , under t h e circumstances here, d i d n o t a f f e c t t h e t h i r t y day l i m i t a t i o n f o r f i l i n g an appeal. The D i s t r i c t Court's December 22, 1977 order denying t h e f a t h e r ' s modification p e t i t i o n provided i n p a r t t h a t both p a r t i e s w e r e t o bear t h e i r own attorney f e e s and c o s t s . But almost t h r e e months l a t e r , on March 17, 1978, t h e mother p e t i t i o n e d t h e D i s t r i c t Court f o r an order r e q u i r i n g t h e f a t h e r t o pay a reasonable amount f o r t h e c o s t s and a t t o r n e y f e e s incurred by her i n defense o f t h e modification a c t i o n f i l e d by t h e f a t h e r . O n May 17, 1978, t h e D i s t r i c t Court f i l e d an o r d e r based on s e c t i o n 40-4-110, MCA, which required t h e f a t h e r t o pay t h e sums of $1,491 t o t h e mother's a t t o r n e y and $1,000 d i r e c t l y t o t h e mother. Clearly, t h e D i s t r i c t Court had no such a u t h o r i t y . Rule 5 9 ( g ) , M0nt.R.Civ.P. provides: "A motion t o a l t e r o r amend t h e judgment s h a l l be served not l a t e r than 10 days a f t e r t h e s e r v i c e of t h e n o t i c e of t h e e n t r y of judgment. . ." This r u l e a p p l i e s t o p e t i t i o n s f o r c o s t s and a t t o r n e y f e e s f i l e d a f t e r e n t r y of judgment. Stacy v. W i l l i a m s (1970), 50 F.R.D. 52 (construing Rule 59 (e) , Fed.R.~iv.P., which is i d e n t i c a l i n content t o Rule 5 9 ( g ) , M0nt.R.Civ.P.); Lichtenstein v. Lichtenstein (1972), 55 F.R.D. 535 (construing Rule 59 ( e ) , Fed. R.Civ.P. ) ; see a l s o M & R Construction Co. v. Shea (19791, Mont . , 589 P.2d 138, 36 St.Rep. 37 I ( t h i s Court applied Rule 59 (g) t o a motion t o s t r i k e judgment f o r a t t o r n e y f e e s ) . Proper a p p l i c a t i o n of t h e r u l e s c l e a r l y prohibited g r a n t i n g of t h e requested r e l i e f t o t h e mother i n t h i s case. Notice of e n t r y of t h e D i s t r i c t Court o r d e r r e q u i r i n g both p a r t i e s t o bear t h e i r own c o s t s and attorney f e e s was served on t h e f a t h e r on December 3 0 , 1977. Having f a i l e d t o f i l e h e r p e t i t i o n f o r c o s t s and attorney f e e s within t e n days of s e r v i c e , t h e D i s t r i c t Court was without j u r i s d i c t i o n t o g i v e t h e mother t h e requested r e l i e f . Though t h e r e l i e f granted i n t h e f a c e of t h e e x i s t i n g procedural r u l e s is highly unusual, t h e t r i a l court d i d not bother t o explain t h e b a s i s of i t s decision t o grant t h e requested r e l i e f t o t h e mother. I t i s highly unlikely t h a t an appeal would have r e s u l t e d had t h e t r i a l court properly applied t h e r u l e s of c i v i l procedure t o t h e a p p l i c a t i o n f o r a t t o r n e y f e e s and c o s t s , f i l e d t h r e e months a f t e r e n t r y of t h e f i n a l order. By not appealing t h e December 2 2 , 1977 order denying t h e p e t i t i o n t o modify custody, t h e f a t h e r had obviously decided t o forego an appeal. But t h r e e months l a t e r , he was faced with t h e mother's p e t i t i o n t o award her a t t o r n e y f e e s and c o s t s incurred a s a r e s u l t of defending t h e f a t h e r ' s p e t i t i o n t o modify custody. The D i s t r i c t Court had unequivocally r u l e d t h a t both p a r t i e s were t o pay t h e i r own a t t o r n e y f e e s and c o s t s . The mother could have p e t i t i o n e d t h e D i s t r i c t Court, within t h e procedural time l i m i t s , t o reconsider t h a t r u l i n g , o r could have appealed t h a t r u l i n g within t h i r t y days, but d i d n e i t h e r . The D i s t r i c t Court's r u l i n g granting t h e mother's p e t i t i o n compelled t h e f a t h e r t o appeal unless he could persuade t h e D i s t r i c t Court t o change i t s order g r a n t i n g attorney f e e s and c o s t s t o t h e mother. W e recognize, of course, t h e r i g h t of t h e f a t h e r under t h e r u l e s of c i v i l procedure t o appeal from t h e D i s t r i c t Court order without f i r s t p e t i t i o n i n g t h e D i s t r i c t Court t o c o r r e c t t h e a l l e g e d e r r o r . But t h i s i s not t o say t h a t w e encourage such d i r e c t appeals. The f a t h e r could have f i l e d a motion requesting t h e D i s t r i c t Court t o c o r r e c t i t s order. I f it had been done, and i f t h e D i s t r i c t Court d i d c o r r e c t i t s e r r o r , it i s u n l i k e l y t h a t t h e mother would have appealed. Moreover, i f she had appealed, being t h a t her p o s i t i o n obviously had no foundation i n t h e law, it could w e l l have been c l a s s i f i e d by t h i s Court a s f r i v o l o u s under Rule 32, Mont.R.App.Civ.P., with appropriate sanctions being t h e r e s u l t . Furthermore, i f t h e D i s t r i c t Court denied t h e f a t h e r ' s motion t o c o r r e c t such a p a t e n t e r r o r , nothing would have been l o s t . Conceivably, the District Court would even have explained the basis for its ruling granting the mother's motion. But turning solely to the patently erroneous ruling of the District Court, an appeal was in order. This being so, the father undoubtedly thought he had nothing to lose by also requesting this Court to review on the merits, the original decision of the District Court denying his petition to modify the custody decree. A more careful and conscientious application of the rules by the trial courts, and a more careful analysis by the lawyers of the procedural options available to correct errors of the trial courts, will undoubtedly benefit the court system, and save much time and money for the parties involved, an objective which lawyers should not lose sight of. For the above reasons, the father's appeal from the District Court order of December 22, 1977 denying custody modification is dismissed. This Court has no jurisdiction to hear this appeal. On the other hand, the District Court order of May 17, 1977, granting attorney fees and costs to the mother is reversed--the District Court had lost juris- diction to enter the order. , ; F h i e f Justic A | September 5, 1979 |
260c19a6-e7b4-49c8-b996-30c79eb7f787 | DEIMLER v OSTLER | N/A | 14738 | Montana | Montana Supreme Court | No. 14738 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 CLARE E. DEIMLER, Plaintiff and Respondent, ROBERT E. OSTLER and JENNIE H. OSTLER, Defendants and Appellants. Appeal from: District Court of the Eighth Judicial District, Honorable John M. McCarvel, Judge presiding. Counsel of Record: For Appellants: Small, Hatch and Doubek, Helena, Montana For Respondent: Jardine, Stephenson, Blewett and Weaver, Great Falls, Montana Filed: p t T y ! - i s 7 4 - Submitted on briefs: August 2, 1979 Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. Defendants appeal from an order of the Cascade County District Court denying their motion for change of place of trial from Cascade to Madison County. Plaintiff is a Great Falls realtor who brought this action in Cascade County to recover a commission for the sale of real estate in Powell County. The complaint alleged that defendants agreed to pay the realtor five percent of the purchase price for his services in representing them: that the realtor performed his part of the bargain; and that he is entitled to a commission in the amount of $80,000. Attached to and incorporated with the complaint are two written agreements signed by defendants. Each provides : "For valuable consideration I/we agree to sell and convey to the Purchaser the above described property on the terms and conditions hereinabove stated and agree to pay to the above named agent a commission amounting to 5 percent of the above mentioned selling price for services rendered in this transaction." Defendants were served with process at their residence in Madison County and timely moved to have the place of trial changed to that county. Upon examination of the parties' affidavits, counteraffidavits and briefs, the District Court properly denied the motion. The general rule of venue is that "civil actions . . . shall be tried in the county in which the defendant resides at the commencement of the action." McGregor v. Svare (1968), 151 Mont. 520, 523, 445 P.2d 571, 573. See also section 25-2-108, MCA. However, "Actions upon contracts may be tried in the county in which the contract was to be performed . . ." Section 25-2-101, MCA. In order for the performance exception to apply "the place of performance must be evident either by (a) the express terms of J the contract, or (b) by necessary implication that a county other than that of defendant's residence is intended to be the county of performance." Hopkins v . Scottie Homes, Inc. (1979), Mont . , 591 P.2d 230, 232, 36 St.Rep. 410, 412; Brown v . First Federal Sav. and L. Ass'n of Great Falls (1964), 144 Mont. 149, The contract for payment of commission contains no ex- press terms dealing with place of performance. The issue is thus whether Cascade County was intended to be the place of per- formance by necessary implication. In resolving the question, this Court may examine the contract, which is part of the plead- ings herein, as well as the parties' affidavits. Hopkins v . Scottie Homes, supra, Nont. at , 591 P.2d at 232, 36 St.Rep. at 410;412; State v . District Court (1918), 54 Mont. 602, 608, 172 P. The undisputed facts which this Court must accept as true, Hopkins v. Scottie Homes, supra, citing Fraser v. Clark (1954), 128 Mont. 160, 172-173, 273 P.2d 105, 112, are as follows: Plain- tiff realtor is a resident of Cascade County and maintained his office there. The earnest money is on deposit with plaintiff in Cascade County. In order to facilitate the closing of the trans- action and in recognition of the dispute over the commission, part of the purchase money was placed in escrow with a Great Falls bank pending the outcome of this litigation. There is but one disputed fact. Plaintiff stated: "That it was understood and agreed that the com- mission to be paid to your affiant under the terms of the original Receipt and Agreement to Sell and Purchase and the subsequent agreement would be payable to your affiant at Great Falls, Cascade County, Montana, at his agency in said county." Defendants flatly deny any such agreement or understanding. The language of Brown v . First Federal Sav. and L. Ass'n of Great Falls (1964), 394 P.2d at 1021, is appropriate. "Since the facts of the affidavit are contradicted, they cannot be taken as true within the rule of the Fraser case, supra. Therefore, this issue was placed in the discretion of the district judge, who resolved the conflict in favor of the plaintiffs in denying the motion for change of venue. We will not disturb the exercise of discretion in the absence of a clear evidence of abuse thereof." There is no abuse of discretion in this case. The undisputed facts, as outlined above, support the trial court's determin- ation that by necessary implication the parties intended Cascade County to be the place of performance. The District Court is affirmed. Chief Justice Ju tices 9 | October 2, 1979 |
b38f1923-93ab-4492-a184-949a99d9ce03 | MATTER OF B G B | N/A | 14529 | Montana | Montana Supreme Court | No. 14529 I N THE SUPREME C O W O F THE STATE O F MINTANA 1979 IN RF: THE MA?TER O F THE ADOPTION O F BGEi, a minor. Appeal from: D i s t r i c t Court of the Eighth Judicial D i s t r i c t , Hon. Joel G. Roth, Judge presiding. Counsel of Record: For Appellant: Robert Tucker argued, Great Falls, Wntana For Respondent: William R. Baldassin argued, Missoula, Wntana Carroll C. Blend, Great Falls, Wntana Sutsnitted: March 19, 1979 Decided: SEF 1 :? 1979 SEt - , -, * , d Filed: - Mr. Justice Daniel J. Shea delivered the Opinion of the Court. The natural mother appeals from an order of the Cascade County District Court refusing to set aside a parental release order entered under the Uniform Parentage Act. This order approved a release of permanent custody from the mother to the prospective adoptive parents, and further permitted them to start adoption proceedings in Missoula County, the county of their residence. The issues raised in this appeal are made more confusing by the fuzzy and incomplete state of the record at the District Court level. Moreover, the parties rely on broad factual statements in their appellate briefs, many of which have no support in the record. Because this case is not technically ripe for review on the merits, this Court should remand for a factual determination as to the voluntariness of the parental release before we decide any of the issues raised. But the nature of this case requires us, we believe, to decide those legal issues which can be decided without a factual determination, and to remand the case to the District Court for the sole purpose of holding a hearing and entering a ruling on the voluntari- ness of the parental release. It is conceivable at least, that depending on the ruling of the District Court, an appeal would not again be taken. On the other hand, if we fail to rule on the legal issues raised here, another appeal would be inevitable. The essential questions raised involved the relationship between the Uniform Parentage Act (sections 40-6-101 through 40-6-131, MCA) and the Uniform Adoption Act (sections 40-8-101 through 40-8-128, MCA). Original custody of the child and an order allowing the prospective adoptive parents to proceed with adoption, was obtained in Cascade County under the Uniform Parentage Act, and adoption proceedings were later started in Missoula County under the Uniform Adoption Act. Before a final order of adoption was obtained however, the natural mother filed a motion in the Cascade County District Court to set aside the order releasing permanent custody to the prospective adoptive parents and permitting them to start adoption proceedings. The main dispute is centered around section 40-6-124(7) of the Uniform Parentage Act, which reads as follows: "Upon petition of the person or persons who executed the release and - of the agency of the State of Montana, licensed adoption agency, or person to whom the child was released, the court with which the release was filed may grant a hearing to consider whether the release should be revoked. A release may not be revoked if the child has been placed for adoption. A verbatim record of testimony related to a petition to revoke a release shall be made." (Emphasis added. ) The thrust of the mother's argument is that the statute requires her before filing an action to set aside a parental release, to first obtain the consent of the pro- spective adoptive parents, and that such consent would rarely, if ever, be given. She argues that she has by this requirement, been deprived of due process of law because the statute effectively precludes her from contesting the validity of the parental releases. We note here that the mother did not allege in her petition that the parental release was involuntarily obtained. But this failure is complicated by a subsequent stipulation entered into by the parties as will be more fully explained as we set forth the facts. The child was born on May 18, 1978, and on the same day the mother executed a document entitled a relinquishment and consent by natural parents. In addition, the father and his parents (being that he was a minor) executed similar documents on the same day. The releases provided in pertinent part: "That she [the mother] intends hereby to, and does, voluntarily and irrevocably relinquish all of her parental rights in and to [the child] to [the prospective adoptive parents], knowing that [the prospective adoptive parents] intend to and shall file a petition for adoption relating to said child." On the next day, May 19, 1978, the prospective adoptive parents filed the releases in the Cascade County District Court along with a petition asking that all parental rights of the natural parents be terminated, and that the child be committed to the care, custody and control of the prospective adoptive parents. On the same day, the District Court entered an order in accordance with the prayer of the petition. The order also permitted the prospective adoptive parents to start adoption proceedings in Missoula County, the county of their residence, which was, of course, the proper county to bring an adoption proceeding under the Uniform Adoption Act (section 40-8-107, MCA) . Adoption proceedings were started in Missoula County but were halted when the natural mother filed her petition in the Cascade County District Court to set aside the parental release and consent to adopt which she had signed. We note here that the parental release and consent to adopt was contained in one document, which is contrary to the requirements stated in section 40-6-124, MCA. We do not consider this defect, however, to be fatal in the context of this case. The mother's petition to set aside the release alleged only that she had withdrawn her consent because she had changed her mind and wanted to regain custody of the child. This allegation was apparently based on the assumption that she had an absolute right to revoke her parental release, at least up to the time that the child was formally adopted. She also alleged venue for court approval of the parental releases and consent to adopt was based on the adoption statutes rather than the Uniform Parentage Act, and therefore that the parental termination petition should have been filed in Missoula County. Before the hearing on her petition, a stipulation signed by lawyers for both sides was filed with the District Court, which contained the legal issues on which they desired a ruling. The stipulation also provided, however, that "all factual issues, including those relating to duress, fraud, undue influence and best interest, if any, shall be reserved for hearing at a later date." We read this provision to mean that the mother did not concede that the parental releases had been voluntarily obtained. There is nothing in the record to refute this. Based upon this stipulation as to legal issues, the District Court decided all legal issues against the mother, but went an additional step and concluded that the mother had "conceded" that the parental release and consent to adopt was voluntary. Nowhere does the record before us support this finding. For reasons unknown to this Court, neither party brought this erroneous finding to the attention -5- of the District Court, and the case was then appealed by the mother with the issue of voluntariness left dangling in mid-air. That is the reason we must remand to the District Court for a hearing and ruling on the issue of voluntariness of the parental release. On the remaining issues, we agree with the essential conclusions of law reached by the District Court in its memorandum opinion and order. Venue was properly in Cascade County under the Uniform Parentage Act for purposes of obtaining an order terminating parental rights and obtaining permission to start adoption proceedings; there is no absolute right to revoke a parental release and section 40-6-124(7), MCA, is constitutional on its face; and section 40-6-124(1), in the context of the facts of this case, permits the release of parental rights to a private "person." Before proceeding to a discussion of the legal issue, we emphasize that it should have been clear to the parties that the District Court decided the issue of voluntariness of the mother's parental release without a factual foundation in the record. It is clear from the tenor of the memorandum decision of the District Court, that it would have held a hearing on the issue of voluntariness. Had either party brought this erroneous finding to the attention of the District Court all of the issues could now be before this Court for decision. Because we must remand for a hearing on the issue of voluntariness, there is, of course, a distinct possibility that a second appeal will result. We do not encourage this kind of issue splitting as it creates a needless waste of judicial resources. Moreover, in the context of the welfare of the child involved, it is clearly not in its best interest to prolong this litigation. The litigation has been unnecessarily prolonged by the parties in this case. The cat and mouse game too frequently -6- fostered by the adversary system has no place in proceedings such as this. It is the duty of the District Court to require the parties to proceedings of this nature to lay all their cards on the table at the commencement of proceedings; and it is further the duty of the opposing lawyers to lay all their cards on the table, regardless of whether the District Court orders them to do so. We proceed to a discussion of the issues. Venue for terminating parental rights under the Uniform Parentage Act is not specifically provided for in the Act. Only one statute provides guidance as to venue, section 40-6-109, MCA. Read in its entirety, it is clear that it is directed primarily at a proceeding to establish paternity, and not to an action to obtain court approval of a parental release. Thus, we cannot say that the legislature has provided any significant guidance as to the issue before this Court. Nontheless, we conclude that venue under the Uniform Parentage Act was properly in Cascade County. The child, the natural parents, and the natural grand- parents all resided in Cascade County at the time the releases were obtained and at the time the petition was filed under the Uniform Parentage Act to obtain court approval of the releases. We fail to see how the ends of justice would have been better served by filing the petition in Missoula County, the residence of the prospective adoptive parents. Had this been done, a substantially larger burden would have been placed on those who might wish to contest the validity of the parental releases. Accordingly, we find no error in filing the petition in Cascade County. Concerning the constitutionality of section 40-6-124(7), MCA, we do not read it as prohibiting an action to contest the voluntariness of the parental releases unless the consent of the person or entity to whom the child has been released -7- is first obtained. The statute does not expressly require this reading, and it would be an unreasonable construction to read such requirement into the statute. When read in its entirety, section 40-6-124, PICA, contemplates that the procedure contained in subsection (7) is required only when there is no issue of voluntariness of the parental release. Subsection (1) provides: "(1) Any parent or guardian who proposes to relinquish custody of a child for purposes of placing the child for adoption may do so by formally executing a release whereby all parental rights to the child are voluntarily relinquished to an agency of the state of Montana, a licensed adoption agency, or a person." (Emphasis added.) Clearly, a construction of this section along with subsection (7) of the same statute requires a determination that a strong public policy interest exists surrounding the finality of parental releases, and one who voluntarily signs a parental release cannot willy-nilly revoke that release. The same policy considerations, however, are obviously not operative in a situation involving an involuntary parental release. If for some reason one seeks to revoke a parental release voluntarily executed, it is in the interest of all concerned that consent to such revocation be obtained by all those who are covered by the terms of the statute. We note, however, that even though all the required consents be obtained, the statute does not require an automatic revocation \ of the release. It states only that "the district court may grant a hearing to consider whether the releases should be revoked . . ." Obviously, some degree of discretion is left with the District Court to determine what is in the best interests of the child. Assuming a parental release to be voluntarily executed, sections 40-6-124(1) and 40-6-124(7), MCA, assure that the status of a child who is the subject of the parental release is not in a state of perpetual flux. Sections 40-6-124 (1) and 40-6-124 (7), MCA do not require a conclusion that a parental release allegedly in- voluntarily executed, cannot be contested unless the consent is first obtained of the person or agency to whom the child has been released. Clearly, the consents are required only when the parental release has been voluntarily executed. We determine therefore, that subsection (7) is constitutional on its face and that the statute reasonably applied, does not require consent of the parties to whom the child has been released before an action can be started alleging an in- voluntary execution of a parental release. It is clear that by implication, the District Court reached the same conclusion that we reached. However, its decision went the additional step of finding that the release had been voluntarily executed because the mother had so "conceded." The record before us does not reveal such concession and for this reason, we must remand for a hearing on the issue of voluntariness of the parental release. A final issue raised by the mother is that section 40-6-124(1), MCA, does not permit the release of parental custody to "a person" for purposes of adoption, and therefore that the court had no authority to terminate parental custody of the mother in favor of the prospective adoptive parents. The mother relies on Montana Department of Social and Rehabilitation Services v. Angel (1978) , Mont . , 577 P.2d 1223, 35 St-Rep. 532. But she misreads this case as well as the statute. Section 40-6-124(1), MCA, provides that the release may be executed "to an agency of the state of Montana, a licensed adoption agency, or - a person." (Emphasis added.) Here the parental releases were executed directly to the prospective adoptive parents; they did not serve as a conduit for placing the child with someone else for permanent adoption. In the Angel case, the persons receiving the child from the natural parent served only as a conduit to later place the child with someone else for permanent adoption. It was this practice that we condemned and held to be in violation of the spirit of the statutes involved. Those factors do not exist in this case. Elsewhere in this opinion, we expressed our dissatisfaction with the status of this case on appeal. Because of the stipulation reserving the issue of voluntariness for a later determination, this case was not ready for appellate review within the meaning of Rule l(a), M0nt.R.App.Civ.P. Though the parties knew or should have known the case was in this status, nonetheless, the mother appealed with the complete acquiescence of the prospective adoptive parents. Moreover, once the notice of appeal was filed, neither party informed this Court that the issue of voluntariness had been specifically reserved for a later hearing and determination. Implicit in the mother's argument in her brief is an acknowledgement that only legal points were decided by the District Court, and that factual determinations such as vol- untariness, remained for decision. On the other hand, the prospective adoptive parents assert that the District Court decided, and properly so, the issue of voluntariness of the parental release. Their positions compared with the precise words of the stipulation are revealing. The stipulation signed by counsel for both parties, read: "That all factual issues, including those relating to duress, fraud, undue influence and best interest, if any, shall be reserved for hearing at a later date." By this stipulation, we have no doubt that the parties realized the issue of voluntariness of the parental release was not to be decided at the August 8 hearing. Without quoting from this stipulation, or referring this Court to the precise stipulation in the District Court file, the mother states in her brief: "Attorneys for both parties, prior to hearing, had stipulated that the hearing be confined to a discussion and determination of legal issues only, and therefore no testimony or other evidence was presented." Clearly, by taking this position, counsel for the mother should have recognized that the case was prematurely appealed, and therefore should have moved to dismiss the appeal without prejudice. On the other hand, counsel for the prospective adoptive parents states in his brief in reference to the stipulation: "Prior to hearing, counsel for both parties, determining that there was no factual issues concerning fraud, duress, or undue influence in connection with the execution of the relinquishments and consents, stipulated as to the legal issues to be argued and decided at the August 8 hearing." If there was an additional stipulation other than the one we have quoted, counsel did not quote from it nor refer this Court to it. Rather, he relies in his brief on the factual determination by the District Court that the parental release was voluntarily executed, without any evidentiary foundation whatsoever. There is nothing in the record whereby the parties stipulated to the nonexistence of factual issues concerning fraud, duress, or undue influence in relation to the execution of the parental release. We recognize, of couse, that counsel representing the mother in this appeal is not the same counsel who handled her case at the trial court level, and that he entered this case after the notice of appeal had been filed. But once he had determined the status of the case and what had and had not been decided at the District Court level, it was his duty to determine if the case was then properly on appeal. If, for example, he had concluded that the District Court had not decided all issues necessary to a final resolution of this case, it would have been a simple matter to move this Court to dismiss this appeal without prejudice so that all issues could first be decided at the District Court level. Likewise, counsel for the prospective adoptive parents could have filed an appropriate motion to dismiss because all issues necessary to an appeal had not been decided by the District Court. But he did not do so. Rather, without any basis in the record before this Court, he repeatedly relied on the District Court's determination that the parental release had been voluntarily executed. But nowhere in his brief did he establish a factual foundation for such a determination by the District Court. Indeed, though the District Court decision was based on the mother's "conceded" voluntary parental release, not once did counsel refer this Court to any place in the record where this concession appears. It should have been clear to both parties that the District Court decision basing the issue of voluntariness on the mother's concession, had no basis in the record. (The August 8 hearing on the legal issues was had without the presence of a court reporter, and we find no concessions in the District Court file.) Though counsel for the mother entered this case after filing of the notice of appeal, and therefore he could not have moved the District Court to reconsider the basis of its opinion on the issue of voluntariness of the parental release, this did not prevent him from moving this Court for a motion to dismiss the appeal and to remand the case to the District Court for a hearing on the issue of voluntariness. -12- Too often this Court is confronted with cases that are not ready for appellate review within the meaning of the rules, but where the opposing parties do not bring this crucial fact to our attention. We often do not discover this until we are deeply into the process of review and indeed often in the opinion-writing stage. We cannot and will not tolerate this state of affairs. If the case is not ready for review, it should not be appealed. If for some reason it is appealed prematurely, it is the duty of the parties to bring this to our attention by an appropriate motion to dismiss so that it can be remanded to the District Court. This Court does not have the time and the resources to be compelled to independently search the record to determine if all essential issues have first been decided at the District Court level. The exception to the normal rule is, of course, a question that is certified to us under Rule 54(b), ~~lont.R.~iv.~. But we do not encourage use of this rule unless it is clearly warranted by the nature of the case and the legal issues presented. It should not be used as a method to sidestep the normal appellate process except in extreme cases justifying its use. If Rule 54b)isused as a vehicle to take an appeal which would be otherwise premature, we expect, as part of that process, a full explanation by the district judge who certifies the case to us, and a full explanation by the parties to the appeal. For the foregoing reasons, the order of the District Court is affirmed in part, but vacated and remanded for a hearing and ruling on the issue of the voluntariness of the parental release. We Concur: Chief Justice Justices | September 13, 1979 |
04daded7-4d14-45c2-a91d-818e141daacf | DOOLING v PERRY | N/A | 14260 | Montana | Montana Supreme Court | No. 14260 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 THOMAS A. DOOLING, et al., Plaintiffs and Appellants, CHARLES PERRY, et al., Defendants and Respondents. Appeal from: District Court of the Fifth Judicial District, Honorable Gordon Bennett, Judge presiding. Counsel of Record: For Appellants: Thomas A. Dooling, Dillon, Montana For Respondents: Poore, Roth, Robischon and Robinson, Butte, Montana Henningsen, Purcell and Genzberger, Butte, Montana Submitted on briefs: July 11, 1979 ~ecided : AUG 1 3 1 9 7 9 Filed: AUG 1 3 1g.9 Mr. Justice John C. Sheehy delivered the Opinion of the Court. Plaintiffs Thomas and Margaret Dooling appeal from a summary judgment entered in favor of the defendants Streeter Brothers Insurance and Travelers Insurance Company (Travelers). The summary judgment was entered by the District Court, Fifth Judicial District, Beaverhead County, the Honorable Gordon R. Bennett presiding. Thomas Dooling, an attorney, prepared a contract, dated October 4, 1975, to be executed by Charles E. Perry, d/b/a Perry Enterprises, a house-moving contractor. The contract provided for Perry to move a large log building from Jackson, Montana, to a new location in Beaverhead County approximately 40 miles distant. The original draft of the contract called for Perry to begin work on or about October 1, 1975. By interlineation, the date was amended to read October 13, 1975. Paragraph 5 of the Dooling-Perry contract required Perry to (1) procure hazard insurance for the period of the move in an amount not less than $100,000; (2) pay the premiums thereon; and, (3) furnish Doolings with satisfactory proof of such coverage. Paragraph 10 of the Dooling-Perry contract required Perry to complete performance by November 27, 1975. Perry's work was not started by October 13, 1975, and in fact was not completed by July 6, 1976. Doolings received a letter from Streeter Brothers on December 1, 1975, confirming a transportation policy with Travelers. The letter lists Perry as the named insured and the Doolings as the additional insureds. The text of the letter reads as follows: "Dec. 1, 1975 "Dear Mr. Dooling: "This letter is confirmation of coverage with the Travelers Ins. Co. per our telephone conversation, for the transportation policy. "Named Insured: Charles Perry - dba Perry Enterprises, Livingston, Mont. "Effective: 12/1/75 - Premium $2,000 "Add'l insured: Tom Dooling, Dillon, MT. "Coverages: split in two sections: "$20,000 - 30 x 30') $100,000 " 8O,OOO - 60' x 46') "Meeting all requirements, excluding earthquake. (Per contract) "Deductible: $1,000 "Very truly yours, "STREETER BROS., Inc. "By: /s/ Richard L. Hall "Richard L. Hall" Pursuant to this letter, Travelers issued a hazard insurance policy to Perry. The policy lists "Charles R. Perry and Elsie H. Perry, d/b/a Perry Enterprises" as the named insured and Doolings as a loss-payees. The policy was effective from December 1, 1975 to March 15, 1976, a total of 105 days. Although Doolings alleged that the log structure was damaged by collision or upset, which would have been within the coverage of the insurance policy, the Doolings refused at the summary judgment hearing to supply the District Court with a information " 1 as to the time of damage. The original complaint contained a breach of contract action against Perry as a sole dependent. On December 2, 1976, Doolings filed an amended complaint adding Streeter Brothers and Travelers as defendants. Doolings claimed both Streeter Brothers and Travelers were negligent in (1) failing to provide the insurance coverage specified in the Dooling-Perry contract; (2) in failing to notify the Doolings of the expiration date by supplying them with a copy of the insurance contract; and (3) in issuing the policy after the casualty occurred. Streeter Brothers and Travelers each filed a motion for summary judgment, and on December 29, 1977, the District Court issued an order granting summary judgments in favor of these defendants. The District Court could not ascertain any duty in contract or in tort running from either Streeter Brothers or Travelers to Doolings. The only question presented for review is whether there is any genuine issue of material fact which would preclude summary judgment in favor of either Streeter Brothers or Travelers. In their first claim of negligence, Doolings claimed Streeter Brothers and Travelers were negligent in not issuing a policy that conforms to the Dooling-Perry contract. This contention is without merit. The insurance policy issued is in the amount required by the Dooling-Perry contract. Similarly, the policy issued covers all the perils contemplated by the Dooling-Perry contract. Moreover, the Dooling-Perry contract contemplates per- formance within 45 days. The policy issued covers a period of 105 days. It would be absurd to hold either Streeter Brothers or Travelers negligent in not issuing a policy specifically covering the period of October 13, 1975 to November 27, 1975, the date contained in the Dooling-Perry contract. If this were the case, Perry would have paid premiums for no coverage at all. Perry did not begin performance by October 13, 1975, as originally contemplated by the Dooling-Perry contract. Doolings secondly claimed Travelers was negligent in failing to notify the Doolings of the expiration date by supplying them with a copy of the insurance contract. -4- For an understanding of this issue, it is necessary to consider the state of the pleadings before the District Court at the time of summary judgment. In their fifth pleaded claim, the plaintiffs contended that Travelers "negligently failed to provide the insurance coverage specified in the [Dooling-Perry] contract" and bargained for by Perry with Streeter Brothers. In their sixth pleaded claim, the plaintiffs claimed a verbal binder agreement that required Travelers to issue the "casualty insurance bargained for," and that Travelers did not issue the policy until after the casualty occurred. As we have indicated above, the policy issued by Travelers does in fact provide the coverage bargained for between the Doolings and Perry in their written contract. The policy term is for 105 days, which is far more than the 45 days specified in the Dooling-Perry contract. The Doolings, therefore fail in their contention that Travelers was negligent in not issuing a policy specified in the Dooling-Perry contract. There is no proof in the record (and it was plaintiffs' duty to supply such proof) of a verbal binder agreement. Instead, we have a written binder agreement which we have quoted above. The written binder does not mention a termination date, but since it was written to conform with the Dooling- Perry contract, there is no basis to assume any term longer than the March 15, 1976 expiration date was required or agreed upon at the time of the issuance of the written binder. Section 35-15-42, MCA,does require an insurance carrier to issue a copy of its policy to those with an insurable interest as specified in the statute. Conceivably, Travelers had a duty to issue a copy of its policy here to the Doolings What is missing in this record, however, is any showing by the -5- Doolings that the failure of Travelers to issue a copy of the policy to them materially affected their right of recovery against Travelers or Streeter Brothers. The Doolings refused to inform the District Court when the mishap which damaged the log structure occurred. If it happened after March 15, 1976, beyond the expiration date of Travelers' policy, Doolings would have no right to recover against Travelers or Streeter Brothers unless Doolings were prepared to prove some agreement with them outside the insurance policy and outside the written binder. In that case, the action should have been for reformation, and breach of the reformed contract, rather than for negligence in failing to issue a copy of the insurance contract. Although the District Court extended the opportunity to the Doolings, they did not show or offer to show that a genuine issue of material fact existed which hinged on the nondelivery of a copy of the insurance policy. Rule 56, Mont.R.Civ.P., contemplates only issues of material fact. If the fact issue is not material to the claim or defense, the District Court has no authority under the rule but to order summary judgment as a matter of law. If the casualty to the log structure occurred before March 16, 1976, a different situation would obtain. Coverage under the policy might possibly exist. It was for this reason that the District Court strove to ascertain from Doolings when the damage happened, or whether Doolings intended to prove the insurance contract was open-ended as to time. Although Doolings stated they intended to prove open-endedness, they put forth no showing, by testimony, discovery, or otherwise, that a material fact issue existed on this point. It was incumbent upon them to do so. The District Court had little choice but to hold against the Doolings on this contention. Finally, the Doolings claimed Travelers was negligent in issuing the policy after the casualty occurred. This claim is -6- also without merit. The policy issued conforms to the contract it was extended to cover, regardless of its issue date. While the initial burden of proof upon a motion for summary judgment attaches to the movant, that burden shifts where the record discloses no genuine issue of material fact. Under these circumstances, the party opposing the motion must present facts in proper form raising the issue, see National Gypsum Co. v. Johnson (1979), Mont . , 595 P.2d 1188, 36 St.Rep. 1033; Harland v. Anderson (1976), 169 Mont. 447, 451, 548 P.2d 613, 615. A District Court is under no duty to anticipate later proof to establish a genuine issue of material fact. Taylor v. Anaconda Federal Credit Union (1976), 170 Mont. 51, 550 P.2d 151. Streeter Brothers and Travelers were entitled to judgment as a matter of law, and the District Court properly granted their respective motions for summary judgment. Plaintiffs' cause of action remains for decision as to the defendant Perry. The judgment as to Streeter Brothers and Travelers is final and properly appealable, since the District Court directed entry of final judgment for them under Rule 54(b), M0nt.R.Civ.P. Affirmed. We Concur: Chief Justice Justice L ' Justices I -7- | August 13, 1979 |
51f5c831-8b96-4449-9f31-521ade916246 | IN RE MOUNTAIN BELL DIRECTORY ADVER | N/A | 14968 | Montana | Montana Supreme Court | NO. 14968 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN RE MOUNTAIN BELL DIRECTORY ADVERTISING ORIGINAL PROCEEDING: Appearances: For Mountain Bell: George T. Bennett (argued), Helena, Montana Keith Galitz (argued), Denver, Colorado Others: Paul T. Keller (argued), Helena, Montana, for the Ethics Committee of the State Bar of Montana Perry J. Moore (argued) , Bozeman, Montana, pro se L. Morris Ormseth, Great Falls, Montana, for the State Bar of Montana William P. Fitzgerald, Billings, Montana, pro se Submitted: September 20, 1979 Decided: 2 1975 Filed: .Qc-' (-. ,?.gT: Mr. Justice John C. Sheehy delivered the Opinion of the Court. Mountain States Telephone and Telegraph Company, a Colorado corporation, operates in seven western states and El Paso, Texas. In Montana, as elsewhere, it is a public utility company operating an extensive telephone service under the trade name of Mountain Bell. It publishes several telephone directories in Montana which include the well-advertised "yellow pages". In the lawyers' section of the yellow pages, it has in the past listed gratis the name, address and telephone numbers of lawyers and law firms if they are also telephone subscribers listed in the white pages of the directories. In the next publication of the directories for Billings, Bozeman, Kalispell, Great Falls, Helena, Butte and Missoula, Mountain Bell proposes to publish a Lawyers Guide following the alphabetical listing of lawyers in the yellow pages. Thirty-three categories of practice under the Lawyers Guide and cross-references thereto are proposed as follows: Accidents - Personal Injury/Property Damage Administrative & Governmental Admiralty Agricultural - Ranch/Farm/Livestock Antitrust Aviation Banking Bankruptcy Collections Consumer Corporation, Partnership & Business Criminal Divorce-Family Environmental Estate Planning, Wills & Trusts General Practice Immigration & Naturalization Insurance International Juvenile Labor Landlord & Tenant Mining Oil & Gas Patent Probate & Estate Administration Real Estate Securities Taxat ion Trademark & Copyright Trials & Appeals Water Workmen's Compensation CROSS-REFERENCE LIST - LAWYERS Children See Juvenile Commercial Law and Contracts See Corporation, etc. Debt Collection See Collections Wills & Trusts See Estate Planning, Wills & Trusts Social Security See Administrative & Governmental A caveat would be printed on each page of the proposed Lawyers Guide as follows: "The fields of law named in the listing subheadings indicate that the lawyer or law firm will accept employment for matters coming within the fields of law listed in the subheadings, but do not indicate that the lawyer or law firm limits or primarily limits his, her or its practice to or specializes in the fields of law used in the subheadings, unless otherwise indicated." This Supreme Court by order of May 1, 1973 (see, 160 Mont. pp. xxiii-lv, incl.), adopted with minor amendments the Canons of Professional Ethics proposed by the American Bar Association to govern the activities of lawyers in Montana. DR 2-102(A)(5) of those Canons provides: "DR 2-102 Professional Notices, Letterheads, Offices and Law Lists --- "(A) A lawyer or law firm shall not use professional cards, professional announcement cards, office signs, letterheads, telephone directory listings, law lists, legal directory listings, or similar professional notices or devices, except that the following may be used if they are in dignified form: " ( 5 ) A listing of the office of a lawyer or law firm in the alphabetical and classified sections of the telephone directory or directories for the geographical area or areas in which the lawyer resides or maintains offices or in which a significant part of his clientele resides and in the city directory of the city in which his or the firm's office is located, but the listings may give only the name of the lawyer or law firm, the fact he is a lawyer, addresses, and telephone numbers. A law firm may have a listing in the firm name separate from that of its members and associates. The listing in the classified section shall not be under a heading or classi- fication other than 'Attorneys' or 'Lawyers,' except that additional headings or classifications descriptive of the type of practice referred to in DR 2-105 are permitted." Canon DR 2-105, referred to in the above Canon, as now promulgated, provides that a lawyer shall not hold himself out publicly as a specialist, or as limiting his practice, except that lawyers engaged in patent, trademark or admiralty practice may use such terms on his letterhead and office sign; a lawyer's name may be listed in lawyer referral service offices according to fields of law in which he will accept referrals; and a lawyer may distribute to other lawyers or publish in legal periodicals of his availability in a particular branch of practice, not including any representation of special competence or experience. From the foregoing, it is obvious that the proposal of Mountain Bell to categorize branches of practice in its Lawyers Guide and to accept listings of lawyers under any or all such categories in its yellow pages runs counter to the Canons governing lawyers in Montana as they are now in effect. This Court, however, has been considering on its own and accepting suggestions from the bar for amendments to the Canons that will conform to the spirit and purpose of the decision of the United States Supreme Court in Bates v. State Bar of Arizona (1977), 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810. We have not reached a final conclusion as to the precise form of the amendments to be adopted. The subject is quite complex. However, in advance of the adoption of such amendments, it is propitious that this Court indicate its opinion with respect to Mountain Bell's proposal for the governance of the bar. To that end we invited Mountain Bell and the organized bar, particularly its Ethics Committee, to attend a hearing before us so that the proposal could be identified and the response of the bar determined. We have had the benefit of such hearing and the briefs and documents supplied us by the participants. Mountain Bell submits in support of its proposal that (1) the Bates case requires it to accept advertising for lawyers; (2) that a list of lawyers who would accept employ- ment under the proposed categories would be a public service and convenience to consumers, and save time and trouble for lawyers who decline certain categories of law business; (3) that it would charge for each individual listing under each category a sum depending upon the circulation size of the directory (e.g. $1.45 per month for each category listing in Great Falls, or $3.65 per month for each bold face listing; $1.25 per month in Helena, or $3.00 per month for each bold face); (4) that it would not publish a Lawyers Guide in smaller communities, where the lists of lawyers would be short, the lawyers are general practitioners, and usually well-known in their communities; (5) that such guides are now published in other states and will be published in Colarado this year; (6) that any prohibitions upon telephone directory listings is illegal under Princeton Community Phone Book, Inc. v. Frank L. Bate, et al., individually and as members of the Advisory Committee on Professional Ethics of the New Jersey Supreme Court (U.S.C.A.3d 1978), 582 F. 2d 706; and, (7) that lawyers may advertise and are now advertising in other media, notably newspapers. The State Bar of Montana has responded that (1) its Board of Trustees are opposed 12-2 to such yellow page listings; (2) that the proposed advertising is inherently misleading; (3) that a lawyer so listing his specialties should accept professional responsibility for claiming specialized expertise; (4) there is no need for such specialty advertising but lawyers will be forced to use them by reason of competition. The Ethics Committee of the State Bar of Montana is opposed because (1) lawyers would feel the need to utilize as many as twenty such listings, with the accompanying expense; (2) the majority of state lawyers oppose the proposal; (3) the allowance of block ads or display ads in the yellow pages would satisfy Bates; and, (4) such listings would be misleading to the public in spite of the caveat, because the public would assume that the lawyers listed under the categories were specialists in the respective categories; ( 5 ) the proposal would work against lawyers who feel the dignity of the profession requires that they publish only their names, firms, and office addresses and telephone numbers in the yellow pages. William J. Fitzgerald of Billings filed a written memorandum to oppose Mountain Bell's proposal. He and his firm have utilized block advertisements in the yellow pages since the Bates case. He reported (1) his conversations with lawyers in Billings, Montana's largest city, and the -6- smaller towns surrounding it, and that such lawyers oppose the Mountain Bell proposal; (2) that the proposal is incompatible with the profession of law as it is practiced in eastern Montana, where most attorneys have a general practice; ( 3 ) that an attorney would have to list himself or herself under an extended list of headings, the expense of which would be advantageous to large firms and disadvantageous to small or one-person firms; (4) that Montana has no standards adopted as to what should be required for an attorney to hold himself out to the public that he is a specialist; and, (5) that the consuming public would regard lawyer listings as they do physician listings, implying the legal profession is similar to the medical profession which has well defined areas of specialization, irrespective of the caveat. Perry J. Moore of Bozeman and Harlowton appeared in person and filed a memorandum opposing Mountain Bell. He contends that the thrust of the Bates decision is that lawyers are entitled to advertise as long as the advertisement is not false, fraudulent or misleading. He states that nearly all of the lawyers in his area (including Billings) are general practitioners; that each general practitioner would feel forced to list under many of the categories; that the number of listings under each category would confuse, rather than aid, a prospective client searching for a lawyer under a category; that the proposal will not aid the consumer to make an informed decision; and that the implication of specialized ability through such categories would be misleading to the consuming public. It is our opinion that lawyers who listed themselves in the yellow pages under the branches of practice proposed by Mountain Bell would indeed be holding themselves out to the public as having special expertise in such branches; -7- that the public would be misled thereby into believing that standards of specialization exist in the legal profession in Montana as they do in other professions; that the proposed caveat would not be advantageous to the consumer and advantageous only to the lawyers and Mountain Bell; and that there is little or no need in Montana presently for the kind of category listing proposed. First and foremost, it is necessary to understand the implications of the Bates decision. In Bates, the United States Supreme Court is saying that advertising by lawyers is protected commercial speech under the First Amendment; that lawyer advertising is necessary to aid the consuming public to "facilitate the process of intelligent selection of lawyers". 433 U.S. at p. 377; 97 S.Ct. at p. 2705- But in no way should Bates be construed as requiring under the First Amendment that false, fraudulent and misleading advertising is protected, or as suspending such laws against deceptive practices in business as are embodied in section 45-6-317(b), MCA. Again, see Bates, 433 U.S. at 383, 97 Sect. 2t 2708. To be sure, we are quick to say, there are many lawyers in Montana who have achieved a high level of competence in certain branches and perhaps several branches, of the practice of law. Nothing we say here would prevent any such lawyer or law firm from publishing in block or classified ads in newspapers, yellow pages, or other printed media, suitable advertisements advising the public of the areas of their practice, fee schedules, and other truthful information useful to prospective clients. But under the proposal of Mountain Bell, the highly competent lawyers in any branch of legal practice would be lumped without distinction with lawyers of perhaps lesser competence in the same category. - 8- No distinguishing factors in the proposed listings would be of any aid to shopping clients in making an intelligent selection. Instead the impression is created that each of the lawyers is of equal ability in the category noted and that each is a specialist in that field. Thus, the proposal is misleading and frustrates rather than implements the spirit and purpose of Bates. On this point, Mountain Bell contends that it is not asserting specialization; that it is merely stating in what areas lawyers will accept employment, and that its caveat advises the would-be client that specialization is not indicated. However, the public statements of Mountain Bell and its solicitation of listing from lawyers belie this contention. In announcing the proposed Lawyers Guide, the Mountain Bell spokesman said, as reported in the Great Falls Tribune on September 16, 1979: "Russ Cravens, spokesman for Mountain Bell's state headquarters here, said Thursday the phone company is proposing to list lawyers in the Yellow Pages according to specialty of practice. "This listing would be in addition to the regular alphabetical listing now found in the Yellow Pages. "Cravens likened the new listings to those now offered to physicians, whose speciality is included under their names in the Yellow Pages. "He said that while many lawyers handle a wide variety of cases, some specialize in such things .as bankruptcies, divorces, antitrust actions, estates, wills and trust, corporate law, taxes, etc. "'The idea is to help improve the usefulness of the Yellow Pages and to help people handle the kind of problem they may have,' Cravens said. " Moreover, in soliciting listings from lawyers in the upcoming Billings telephone directory, by letter, Mountain Bell urged lawyers to be listed under their "specialties." The public statements and communications of Mountain Bell indicate the reality of their proposal: the public would assume some sort of specialization is authored, approved and sanctioned among Montana lawyers. Mountain Bell also asserts that a client is protected by malpractice procedures if a lawyer should accept employ- ment under a listing for which he is incompetent or inexperienced. We prefer the ounce of prevention to the pound of cure. Since we find that it is implied in Mountain Bell's proposal that the listings assure specialized expertise in each field, we are led inexorably to the conclusion that such implication is misleading as a general matter. In Montana certainly, we have not adopted standards of com- petence relating to specialized fields of law practice. In that regard we are not to be compared to the profession of medicine, which, by means of board certification, and staff rules in hospitals, can hold out to consuners areas of competence for physicians and surgeons. While many lawyers under each category would most probably be competent, some might not be. Nothing would inform the unsuspecting seeker of legal aid which is which. The possibility of harm would be ameliorated if Mountain Bell would take it upon itself, in the manner of Good Housekeeping, to assure the quality of its listings. Its solicitation for listings indicates quite the opposite: it will accept any lawyer's name under any category. It relies on the caveat to avoid responsibility for any lack of ability of the lawyer. There is no assurance of the truthful advertisement which the First Amendment protects under Bates, 4 3 3 U.S. at 384; 97 S.Ct. at 2709. Thus the caveat is a protection to Mountain Bell and to the lawyer who, having accepted employment under a particular listing, can point to the language of the caveat as excluding any representation of expertise in the field. It is not advantageous to the client, who in truth, is never promised a rose garden, though specialized fields are listed in the yellow pages. The last element on which we base our decision is that there is little or no need for such listings in Montana. We are a rural state with a total population of approximately 800,000 persons spread out over the fourth largest state in the union. Our largest city has approximately 150 lawyers now listed in the yellow pages. By and large our bar in the great majority is composed of general practitioners. Specialization has been developing, but mostly in the fields of taxation, referring especially to income and estate taxes. While some lawyers acquire a reputation for special ability in one or more fields of practice, they do not necessarily limit their practice to such fields. In this situation, a lawyer practicing in any of our cities and towns would feel compelled to list under a dozen or more of the categories proposed. It would be a matter of keeping up with the competition, and to reflect the true nature of his or her practice spreading across many fields. Additionally, the telephone directories for the larger cities also contain the directories for smaller towns around the larger cities. For example the Billings telephone directory also contains the telephone directories for twenty of the smaller towns surrounding it. A lawyer practicing in a smaller town listed in such a directory, along with lawyers from the larger city, would find himself unlisted as to specialties in the yellow pages while his colleagues in the larger city would have such specialty listings. It would be a competitive disadvantage for example, for a lawyer in Harlowton, -11- Montana with no listed specialty, to appear in the same directory with the Billings lawyers, who with no greater assurance of competence could nevertheless hold out to the consumers in Harlowton, only 90 miles away, that they had special abilities available in Billings. There is no need for such yellow page listing anomalies since other advertising is permitted. We have examined the case of Princeton Community Phone Book, Inc. v. Frank L. Bate, et aL, individually Professional and as members of the ~dvisory Committee on/Ethics of the New Jersey Supreme Court (U.S.C.A.3d 1978), 582 F.2d 706. It is impressive, but we are inclined to liken the situation here to Ohralik v. Ohio State Bar Association (1978), 436 U . S . 447, 98 S.Ct. 1912, 56 L.Ed.2d 444, where it is held that a state may constitutionally discipline a lawyer for soliciting clients, for pecuniary gain, under circumstances likely to pose dangers to the public that the state has a right to prevent. 436 U.S. at 449, 98 S.Ct. at 1915. There is a significant potential in the Mountain Bell proposal for misrepresentation and overreaching by lawyers and resulting harm to the public. We would hope that Mountain Bell, in a spirit of cooperation, would withdraw its proposal in Montana. Nothing in this opinion affects the listings already permitted by the existing canons, and again, nothing herein stated prevents any lawyer or law firm from individually advertising by truthful and informative means in the yellow pages or other printed media. We expect to handlethe matter of advertising in electronic media when we finally amend our Canons of Ethics. W e Concur: CMef J u s t i c e i' f' | October 2, 1979 |
f74aafd3-3c1d-41b6-ae67-dbbee58b1527 | STATE v BLINZLER | N/A | 14631 | Montana | Montana Supreme Court | No. 14631 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 STATE OF MONTANA, Plaintiff and Respondent, -vs- BRUCE R. BLINZLER, Defendant and Appellant. Appeal from: District Court of the Eleventh Judicial ~istrict, Honorable James M. Salansky, Judge presiding. i Counsel of Record: For Appellant: James D. Moore, Kalispell, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Ted 0 . Lympus, County Attorney, Kalispell, Montana Submitted on briefs: August 2, 1979 Filed: SE[ " 1973 M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e Court. Appellant w a s convicted on two counts of p r a c t i c i n g c h i r o p r a c t i c without a l i c e n s e i n v i o l a t i o n of s e c t i o n 37- 12-301, MCA, following a j u r y t r i a l i n t h e D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t , t h e Honorable James M. Salansky p r e s i d i n g . H e was sentenced t o pay a f i n e of $200 on each count, and he appeals from t h a t judgment. Appellant i s a n a t u r o p a t h i c physician p r a c t i c i n g i n a s s o c i a t i o n with Kenneth L. P i l l e r i n K a l i s p e l l , Montana, having come t h e r e from t h e S t a t e of Pennsylvania where he had p r a c t i c e d a s a n a t u r o p a t h i c and c h i r o p r a c t i c physician f o r a period of some t e n years. I n 1977 D r . B l i n z l e r became i n t e r e s t e d i n moving t o Montana and submitted an a p p l i c a t i o n f o r a Montana c h i r o p r a c t i c l i c e n s e . Before coming t o t h e s t a t e he contacted D r . Ronald R. Hoye, p r e s i d e n t of t h e National Association of Naturopathic Physicians and S t a n l e y Crowe, a Boise a t t o r n e y r e p r e s e n t i n g t h e n a t i o n a l associa- t i o n , t o i n q u i r e i n t o t h e l e g a l requirements t o p r a c t i c e i n t h e S t a t e of Montana. H e was informed t h a t Montana had no requirement f o r t h e l i c e n s i n g r e l a t i n g t o t h e p r a c t i c e of naturopathy. A f t e r c o n f e r r i n g with D r . Hoye and M r . Crowe i n Idaho, a p p e l l a n t and D r . P i l l e r moved t o K a l i s p e l l where they opened up a n a t u r o p a t h i c c l i n i c . D r . Hoye advised him t h a t upon coming t o K a l i s p e l l he should c o n t a c t D r . ~ e r l i n Anderson, a K a l i s p e l l n a t u r o p a t h i c physician who had prac- ticed i n t h e a r e a some 20 years. O n December 20, 1977, informations w e r e f i l e d a g a i n s t a p p e l l a n t , Bruce B l i n z l e r , and h i s a s s o c i a t e charging them w i t h p r a c t i c i n g medicine without a l i c e n s e and p r a c t i c i n g c h i r o p r a c t i c without a l i c e n s e , both ~ i s t r i c t Court misde- meanors. Appellant herein was charged with two counts of chiropractic and one count of medicine. He entered pleas of not guilty to these charges. Subsequently, the information was amended on April 4, 1978, when three counts were added against appellant. Again, on July 21, 1978, the information was amended and appellant ended up being charged with a total of seven counts of either practicing medicine or practicing chiropractic without a license. To all of these charges, appellant entered a plea of not guilty. Trial by jury followed. Prior to going to the jury, one count of practicing chiropractic without a license was dismissed. Appellant was acquitted of the four counts of practicing medicine and was found guilty on two counts of practicing chiropractic. From the verdict and judgment, appellant appeals. The issues presented for our consideration are: 1. Whether the statutes under which appellant was prosecuted violate the due process clause and equal protec- tion clause of the United States Constitution and the Montana Constitution? 2. In the event the statutes are constitutional, was the evidence sufficient to support the convictions? 3. Do the double jeopardy provisions of the United States and Montana Constitutions bar the convictions? The first issue before this Court is the question of whether the charges are specific enough to satisfy due process. We first note that the constitutional validity of the definition of "medicine" as set forth in section 37-3- I 102r(a), MCA, is not before the Court in this case. Much of appellant's brief concerns the practice of medicine and the statutes controlling the same; however, in this case, appel- l a n t was n o t convicted of unlawfully p r a c t i c i n g medicine under t h e s t a t u t e i n question. On t h o s e charges t h e jury r e t u r n e d a v e r d i c t of a c q u i t t a l , and t h e r e can be no preju- d i c e shown i n t h i s case i n t h e o p e r a t i o n of s e c t i o n 37-3- i 1027a), MCA. Appellant, t h e r e f o r e , l a c k s standing t o chal- lenge i t s c o n s t i t u t i o n a l i t y . A s t h i s Court noted i n S t a t e ex rel. Hauswirth v. Beadle, e t al. (1931), 90 Mont. 24, 27, 300 P. 197, t h i s Court w i l l n o t consider moot p o i n t s . There, t h e Court noted : "The q u e s t i o n presented i s moot. (See S t a t e ex rel. Rankin v. Martin, 65 Mont. 323, 211 P. 210; Honstain v. Board of County Commissioners, 52 Mont. 391, 158 P. 476; Chesapeake Western Railway v. J a r d i n e , 56 App.D.C. 33, 8 F.2d 794.) This Court w i l l n o t p a s s on moot q u e s t i o n s . ( S t a t e ex rel. OIGrady v. D i s t r i c t Court, 58 Mont. 695, 198 P. 1117; S t a t e ex rel. Rankin v. Martin, supra; S t a t e v. Knilans, 69 Mont. 8 , 220 P. 91; S t a t e ex rel. S t . George v. J u s t i c e Court, 84 Mont. 173, 274 P. 495.)" Therefore, t h e c o n s t i t u t i o n a l i t y of s e c t i o n 37-3- 1 0 2 ( a ) , MCA, was rendered a moot q u e s t i o n by t h e j u r y ' s v e r d i c t of a c q u i t t a l on t h e counts charged under t h a t sec- t i o n . Appellant was convicted only of t h e unlawful prac- t i c i n g of c h i r o p r a c t i c , and t h e r e f o r e o n l y t h e c o n s t i t u - t i o n a l i t y of t h a t s t a t u t e i s properly b e f o r e t h e Court, v i z . , s e c t i o n 37-12-101 ( 2 ) , MCA, d e f i n i n g t h e p r a c t i c e of c h i r o p r a c t i c . W e a r e faced, t h e r e f o r e , with t h e q u e s t i o n of whether s e c t i o n 37-12-101(2), MCA, i s s u f f i c i e n t l y s p e c i f i c and d e t a i l e d t o s a t i s f y t h e requirements of due process. Sub- s e c t i o n (2) of t h i s s t a t u t e reads: " ' C h i r o p r a c t i c ' i s a system of s p e c i f i c a d j u s t - ment o r manipulation of t h e a r t i c u l a t i o n s and t i s s u e s of t h e body, p a r t i c u l a r l y of t h e s p i n a l column, f o r c o r r e c t i o n of nerve i n t e r f e r e n c e and i n c l u d e s t h e use of recognized d i a g n o s t i c and treatment methods as t a u g h t i n c h i r o p r a c t i c c o l l e g e s b u t does n o t i n c l u d e surgery o r t h e p r e s c r i p t i o n o r u s e of drugs." To summarize t h e argument of a p p e l l a n t , he contends t h a t t h e s t a t u t e d e f i n i n g t h e p r a c t i c e of c h i r o p r a c t i c c o n t a i n s a n i n d e f i n i t e term--"specific adjustment o r mani- pulation"--which i s s u s c e p t i b l e t o d i f f e r i n g i n t e r p r e t a t i o n by e x p e r t s i n t h e f i e l d of c h i r o p r a c t i c . H e f u r t h e r argues t h a t t h e p u b l i c cannot be expected t o provide t h e c o n t e n t f o r t h i s t e r m when e x p e r t s a r e unable t o a g r e e a s t o i t s meaning, and t h a t t h e s t a t u t e is t h e r e f o r e u n c o n s t i t u t i o n a l l y vague. Noting t h e d e f i n i t i o n of c h i r o p r a c t i c , a p p e l l a n t argues t h a t nowhere a r e t h e t e r m s " s p e c i f i c adjustment" o r " a r t i c u - l a t i o n s and t i s s u e s " defined. Therefore, he says, t h e s t a t u t e has an incomprehensible standard t o t h e members of t h e p u b l i c and p l a c e s a heavy burden upon a defendant. With regard t o t h e heavy burden placed on a defendant, a p p e l l a n t argues t h a t t h e s t a t u t e provides no a s c e r t a i n a b l e standard of conduct a g a i n s t which he might reasonably have measured h i s conduct a s a naturopath, noting: ". . . There must be a s c e r t a i n a b l e s t a n d a r d s of g u i l t . Men o f common i n t e l l i g e n c e cannot be r e q u i r e d t o guess a t t h e meaning of t h e enact- ment. The vagueness may be from u n c e r t a i n t y i n regard t o persons w i t h i n t h e scope of t h e a c t , Lanzetta v. New J e r s e y , 306 U.S. 451, o r i n re- gard t o t h e a p p l i c a b l e tests t o a s c e r t a i n g u i l t . " Winters v. New York (1948), 333 U.S. 507, 515- 516, 68 S.Ct. 665, 92 L.Ed. 840. I n Winters t h e Supreme Court went on t o note: "'Where t h e s t a t u t e u s e s words of no determina- t i v e meaning, o r t h e language i s s o g e n e r a l and i n d e f i n i t e as t o embrace n o t only a c t s commonly recognized a s r e p r e h e n s i b l e , b u t a l s o o t h e r s which it i s unreasonable t o presume w e r e intended t o be made c r i m i n a l , it w i l l be d e c l a r e d void f o r u n c e r t a i n t y . ' " 333 U.S. a t 516, quoting S t a t e v. Diamond (1921), 27 N.M. 477, 485, 202 P. 988, 991. Appellant argues t h a t , based on Winters, when a s t a t u t e i s s o vague a s t o make c r i m i n a l an innocent a c t t h e convic- ; . . 1 t i o n cannot be sustained. H. &i. Clack Co. v. P u b l i c S e r v i c e Commission (1933), 94 Mont. 488, 22 P.2d 1056. A t t r i a l , witnesses Bekkedahl, Vernon, Gorder, and Strunk t e s t i f i e d a s t o t h e n a t u r e and t h e e x t e n t of a p p e l l a n t ' s treatment of t h e i r r e s p e c t i v e c o n d i t i o n s . I n a d d i t i o n , t h e S t a t e pro- duced t h e e x p e r t testimony of D r . Loren W e i s and D r . Walter Kaye, both l i c e n s e d c h i r o p r a c t o r s i n t h e S t a t e of Montana, who i d e n t i f i e d t h e movements p r a c t i c e d on Vernon and Gorder a s s p e c i f i c adjustments. D r . Weis i n a d d i t i o n described t h e r e l a t i o n s h i p between s p e c i f i c c h i r o p r a c t i c adjustments and nerve i n t e r f e r e n c e . The evidence introduced by a p p e l l a n t c o n f l i c t e d w i t h t h e S t a t e ' s evidence on t h e i s s u e of s p e c i f i c i t y . D r . Hoye, a naturopath, t e s t i f i e d t h a t manipulations done by a naturo- p a t h i n h i s p r a c t i c e d i f f e r from c h i r o p r a c t i c adjustments i n t h a t n a t u r o p a t h i c manipulations l a c k s p e c i f i c i t y . Appellant t e s t i f i e d t h a t t h e manipulations done on Vernon and Gorder w e r e g e n e r a l r a t h e r than s p e c i f i c . On t h e b a s i s of t h e c o n f l i c t i n g evidence presented t o t h e jury, t h e jury found a p p e l l a n t g u i l t y of p r a c t i c i n g c h i r o p r a c t i c without a l i c e n s e . The United S t a t e s Supreme Court i n Connally v. General Construction Company (1926), 269 U.S. 385, 391-92, 46 S.Ct. 126, 70 L.Ed. 322, noted: "The q u e s t i o n whether given l e g i s l a t i v e enact- ments have been t h u s wanting i n c e r t a i n t y has f r e q u e n t l y been before t h i s c o u r t . I n some of t h e c a s e s t h e s t a t u t e s involved were upheld; i n o t h e r s , d e c l a r e d i n v a l i d . The p r e c i s e p o i n t of d i f f e r e n t i a t i o n i n some i n s t a n c e s i s n o t easy of statement. But it w i l l be enough f o r t h e p r e s e n t purposes t o say g e n e r a l l y t h a t t h e d e c i s i o n s of t h e c o u r t upholding t h e s t a t u t e a s s u f f i c i e n t l y c e r t a i n , r e s t e d upon t h e conclusion t h a t they employed words o r phrases having a t e c h n i c a l o r o t h e r s p e c i a l meaning, w e l l enough known t o en- a b l e those w i t h i n t h e i r reach t o c o r r e c t l y apply them, Hygrade P r o v i s i o n Co. v. Sherman, 266 U.S. 497, 502; Omaechevarria v. Idaho, 246 U.S. 343, 348, o r a w e l l - s e t t l e d common law meaning, not- withstanding an element of degree i n t h e d e f i n i - t i o n a s t o which e s t i m a t e s might d i f f e r , Nash v. United S t a t e s , 299 U.S. 373, 376; I n t e r n a t i o n a l Harvester Co. v. Kentucky, supra, a t 223, o r , a s broadly s t a t e d by M r . Chief J u s t i c e White i n United S t a t e s v. Cohen Grocery Co., 255 U.S. 81, 92, ' t h a t , f o r reasons found t o r e s u l t e i t h e r from t h e t e x t of t h e s t a t u t e s involved o r t h e s u b j e c t s w i t h which they d e a l t , a standard of some s o r t was a f f o r d e d . ' . . ." W e f i n d t h a t t h i s c a s e f a l l s w i t h i n t h e f i r s t c l a s s i d e n t i f i e d i n Connally, supra. The t e r m " s p e c i f i c a d j u s t - ment o r manipulation" i s a s c i e n t i f i c t e r m having a r e a d i l y a s c e r t a i n a b l e d e f i n i t i o n w i t h i n t h e c h i r o p r a c t i c community, and a p p e l l a n t h e r e i n , a s a c h i r o p r a c t o r l i c e n s e d i n two s t a t e s , cannot a s s e r t a l a c k of n o t i c e of t h e meaning of t h e t e r m s . Viewing t h e s t a t u t e i n q u e s t i o n , i n l i g h t of t h e con- d u c t of which a p p e l l a n t was convicted, most c e r t a i n l y a p p e l l a n t was given adequate n o t i c e of t h e kind of conduct t h a t t h e s t a t u t e p r o s c r i b e s . Although no p a r t i c u l a r mental s t a t e i s i d e n t i f i e d i n s e c t i o n 37-12-301, MCA, t h e Montana Criminal Code c l e a r l y r e q u i r e s t h a t t h e p r a c t i c e of chiro- p r a c t i c be done knowingly o r purposely t o c o n s t i t u t e an o f f e n s e . S e c t i o n 45-2-103(1), MCA. The t r i a l c o u r t i n - s t r u c t e d t h e jury i n t h e t e r m s i m i l a r t o t h e Idaho s t a t u t e r e l i e d upon i n Omaechevarria v. Idaho (1918), 246 U.S. 343, .3 38 S.Ct. 322, 62 L.Ed. 763, t h a t t h e a c t and i n t e n t must both be proved beyond a reasonable doubt t o s a t i s f y a convic- t i o n . Here, t h e testimony of two S t a t e ' s w i t n e s s e s , D r . W e i s and D r . Kaye, gave a d e f i n i t i o n of t h e t e r m " s p e c i f i c adjustment" upon which t h e jury could make a proper d e c i s i o n of what " s p e c i f i c adjustment" was, which was "when a person i s presented with a l o c a l i z e d c o n d i t i o n involving one o r two o r t h r e e v e r t e b r a e and i n t e n t i o n a l l y b r i n g s about a movement of these vertebrae to relieve that condition, he or she has performed a specific adjustment." The key to the query here is whether the statute in question provides a standard with meaningful differentiation between culpable and innocent conduct. Under section 37-12- 301, MCA, such a standard exists: there can be no statutory violation unless the adjustment in question is shown to be specific and intentional. It is manifest in this case that "specificity" provides a meaningful standard. In fact, a lack of specificity resulted in the dismissal of one count in this case. The United States Supreme Court in Roth v. united States (19571, 354 U.S. 476, 491-92, 77 S.Ct. 1304, 1 L.Ed.2d 1498, where they quoted from United States v. Petrillo (1947), 332 U.S. 1, 7-8, 67 S.Ct. 1538, 91 L.Ed. 1877, had this to say: ". . . lack of precision is not itself offen- sive to the requirements of due process. ' . . . [Tlhe Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the prescribed conduct when measured by the common understanding and practices. . .' . . .'That there may be marginal cases in which it is difficult to determine the side of the line on which the particular fact situation falls is no sufficient reason to hold the lan- guage too ambiguous to define a criminal of- fense . . . f 11 Here appellant was a chiropractor by profession and training. Since he was unlicensed in Montana, and during the time the offense was committed had an application in to be licensed in Montana as a chiropractor, the law placed the responsibility on him to assure that his practice of naturo- pathy be performed with no chiropractic movements. The fact that the law required appellant to make a choice, and ex- tracted a penalty when his judgment proved incorrect, does not invalidate the statute. As noted in the United States Supreme Court case of Hygrade Provision Co. v. Sherman (1925), 266 U.S. 497, 502, 45 S.Ct. 141, 69 L.Ed. 402: "If exceptional cases may sometimes arise where opinions might differ, that is no more than is likely to occur, and does occur, in respect to many criminal statutes either upheld against attack or never assailed as indefinite." Here, appellant chose to perform a manipulation which the jury found to be specific and therefore prohibited to all except licensed chiropractors. The next issue raised is whether the record reflects substantial evidence to support the jury's verdict. Appel- lant argues that there is no evidence establishing that the treatment of Vernon and Gorder involved specific adjustment or that the treatments were for the purpose of relieving nerve interference. A review of the record discloses that this contention is without merit. A brief review of the facts show that Vernon testified that she went to appellant's office complaining of a "rib out." She stated that appellant told her he could put it in place. According to her testimony, appellant then placed his knee on the place indicated by her and pulled her arms back, causing pain. Gorder testified to a treatment of his lower back. He testified that he told appellant he had lower back problems. He was placed lying on his stomach, and appellant told him one of his vertebrae was lower than the other in the lower back. Appellant then pushed down on his back and it sounded like "bones moving." While appellant argues that there is no expert testimony to establish that these were specific adjustments, Dr. weis t e s t i f i e d t h a t p l a c i n g a knee and p u l l i n g back on t h e shoulders was " p r e t t y s p e c i f i c . " "When you have your knee i n one p a r t i c u l a r s p o t , l i k e a g a i n s t a r i b , o r where t h e r i b j o i n s t h e v e r t e b r a , you have a p a r t i c u l a r s p o t . " This Court has o f t e n s t a t e d t h a t a jury v e r d i c t based on s u b s t a n t i a l evidence w i l l be s u s t a i n e d on appeal. See, S t a t e v. Pankow (1959), 134 Mont. 519, 522, 333 P.2d 1017. S u b s t a n t i a l evidence was presented h e r e from which t h e jury could conclude t h a t t h e treatment of Vernon and Gorder involved s p e c i f i c adjustments f o r r e l i e f of nerve i n t e r - ference. Therefore, t h e j u r y v e r d i c t and judgment w i l l n o t be d i s t u r b e d . Appellant n e x t a l l e g e s t h a t he was subjected t o double jeopardy by t h e charges of t h e S t a t e . H e argues t h a t t h e f a i l u r e of t h e S t a t e t o elect between Counts I and 11, which charged p r a c t i c e of c h i r o p r a c t i c on Bekkedahl, J u l i a Vernon, and L e e Gorder, and Counts I V through V I , charging t h e p r a c t i c e of medicine on t h e same p a t i e n t s f o r t h e same conduct, subjected him t o double jeopardy. H e argues t h a t under t h e r e c e n t case of S t a t e ex rel. McKenzie v. District Court (1974), 165 Mont. 54, 525 P.2d 1211, t h i s Court adopted a so-called "same t r a n s a c t i o n " test and abandoned t h e t r a d i - t i o n a l "same f a c t s " r u l e . Since t h e counts c l e a r l y a r o s e from t h e same t r a n s a c t i o n , it is argued t h a t t h e f a i l u r e by t h e S t a t e t o elect between p r a c t i c i n g medicine and p r a c t i c i n g c h i r o p r a t i c subjected a p p e l l a n t t o double jeopardy. W e f i n d no m e r i t t o t h i s argument. The F i f t h Amendment of t h e United S t a t e s c o n s t i t u t i o n provides t h a t no person " s h a l l be s u b j e c t f o r t h e same o f f e n s e t o be t w i c e p u t i n jeopardy of l i f e o r limb." his p r o h i b i t i o n i s a p p l i c a b l e t o state a c t i o n s under t h e "due process" c l a u s e of t h e Fourteenth Amendment of t h e United *.- ' S t a t e s C o n s t i t u t i o n . North Carolina v. P k r c e (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. I t p r o t e c t s of- f e n d e r s from m u l t i p l e punishment f o r t h e same o f f e n s e . Ex P a r t e Lange (1873), 85 U.S. (18 Wall) 163, 21 L.Ed. 872, and Kohlfus-2v. Warden (1962), 149 Conn. 692, 183 A.2d 626. Montana's c o n s t i t u t i o n a l p r o v i s i o n i s s u b s t a n t i a l l y s i m i l a r providing t h a t "no person s h a l l be a g a i n p u t i n jeopardy f o r t h e same o f f e n s e . . . I ' 1972 Ilont. Const., A r t . 11, S25. I n a r e c e n t c a s e , S t a t e v . Davis (1978), Mont. , 577 P.2d 375, 377, 35 St.Rep. 381, t h i s Court considered t h e i s s u e r a i s e d h e r e and held: "This Court has c o n s i s t e n t l y quoted w i t h approval t h e following holding from t h e Massachusetts c a s e of Morey v. Commonwealth (1871), 108 Mass. 433, 434: I' 1 . . . A s i n g l e a c t may be an o f f e n s e a g a i n s t two s t a t u t e s ; and i f each s t a t u t e r e q u i r e s proof of a n a d d i t i o n a l f a c t which t h e o t h e r does n o t , an a c q u i t t a l o r c o n v i c t i o n under e i t h e r s t a t u t e does n o t exempt t h e defendant from prosecution and punishment under t h e o t h e r . ' " S t a t e v. Marchindo (1923), 65 Mont. 431, 446, 211 P. 1093; S t a t e v. Lagerquist (1968), 152 Mont. 21, 30, 445 P.2d 910; S t a t e v. McDonald (1971), 158 Mont. 307, 310, 491 P.2d 711. See a l s o Blockburger v. United S t a t e s (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Gore v. United S t a t e s (1958), 357 U.S. 386, 78 S.Ct. 1280, 2 L ed 2d 1405." Here, t h e s t a t u t e s set f o r t h s e p a r a t e and d i s t i n c t c r i m i n a l o f f e n s e s t h a t a r e designed f o r t h e p r o t e c t i o n of completely d i f f e r e n t o f f e n s e s . Therefore, a p p e l l a n t s u f - f e r e d no v i o l a t i o n of h i s r i g h t s under e i t h e r t h e United S t a t e s C o n s t i t u t i o n o r t h e 1972 Montana C o n s t i t u t i o n . The p r o t e c t i o n a g a i n s t double jeopardy i s a l s o s t a t u - t o r y i n Montana. S e c t i o n 46-11-502, MCA, provides: "When t h e s a m e t r a n s a c t i o n may e s t a b l i s h t h e com- mission of more than one o f f e n s e , a person charged w i t h such conduct may be prosecuted f o r each such o f f e n s e . H e may n o t , however, be convicted of more than one o f f e n s e i f : " (1) one o f f e n s e i s included i n t h e o t h e r ; " Under this statute appellant suffered no violation unless he was convicted of two offenses, one of which is included in the other. The mere charging of included of- fenses involves no violation of appellant's rights, nor are his rights infringed upon if the State fails to elect or charge in the alternative as long as a defendant is not convicted of both offenses. Here, appellant was convicted of two counts of practicing chiropractic without a license involving the treatment of two different patients on dif- ferent occasions. These convictions are not subject to, nor do they violate, the double jeopardy provision. We note in closing that appellant argues that the State no longer follows "the same facts" rule but has now adopted the so-called "same transaction" test. We find this argu- ment erroneous. In the recent case of State v. Perry (1979), . . Mont. , 590 P.2d 1199, 36 St.Rep. 291, this Court - applied Montana's statutory same facts rule, section 46-11- 501(2)(a), MCA. Perry involved an issue similar to the one raised in State ex rel. McKenzie v. District Court, supra, which is fully consistent with the holding in Perry. We noted in McKenzie: "The joinder provisions of section 95- 1504, R.C.M. 1947 [now section 46-11-404, MCA], are highly flexible. Part (a) therefore permits an information to charge two or more different offenses, connected together in their commission. . ." McKenzie, 165 Mont. at 62. Appellant argues that the offenses arising from the same transaction generally must be prosecuted together to avoid double jeopardy. However, where, as here, the State prosecutes "the same transaction" offenses together, double jeopardy is implicated under section 46-11-502, MCA, only if a defendant is convicted of two offenses, one of which is included in the other. Here, appellant suffered no such dual convictions, and his double jeopardy claim is therefore without merit. Finding no prejudicial error, the convictions are affirmed. We concur: 2L-Q J. % a d 4 Chief Justice %&,&/ Justices | September 5, 1979 |
d1f0e33b-b6dc-44a3-880a-8d97e5ffd71f | MATTER OF L F G | N/A | 14688 | Montana | Montana Supreme Court | No. 14688 IN THE SUPlU3ME COURT OF THE STATE OF MONTANA 1979 IN THE MATTER OF L . F . G . , Youth in Need of Care. Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert Wilson, Judge presiding. Counsel of Record: For Appellant: Robert L. Stephens, Jr. and David Kinnard, Billings, Montana David Kinnard argued, Billings, Montana For Respondent: Harold Hanser, County Attorney, Billings, Montana Robert Waller argued, Deputy County kttorney, Billings, Montana Damon L . Gannett argued, Billings, Montana Submitted: June 15, 1979 ~ecided :AUG 2 0 lgtg Filed: i\u C '. i,*g$$ M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e Court. c his appeal arises from a c u s t o d i a l hearing held on September 29, 1978, i n t h e District Court of t h e T h i r t e e n t h J u d i c i a l ~ i s t r i c t , S t a t e of Montana, i n and f o r t h e County of Yellowstone, t h e Honorable Robert H. Wilson presiding. The c a s e was t r i e d on t h e p e t i t i o n of t h e Department of S o c i a l and R e h a b i l i t a t i o n Services of t h e S t a t e of Montana (SRS) t o have L.F.G. declared t o be a youth i n need of care and t o have h i s permanent c a r e , custody and c o n t r o l awarded t o t h e S t a t e of Montana, with a u t h o r i t y t o consent t o adop- t i o n . The Yellowstone County a t t o r n e y ' s o f f i c e appeared and p a r t i c i p a t e d a s counsel f o r SRS. The n a t u r a l p a r e n t s w e r e p r e s e n t a t t h e hearing and w e r e represented by counsel, and a previously appointed guardian ad l i t e m f o r t h e youth appeared and p a r t i c i p a t e d i n t h e hearing a s t h e representa- t i v e of t h e c h i l d . Upon completion of t h e hearing, t h e m a t t e r was taken under advisement by t h e t r i a l c o u r t . I t e n t e r e d f i n d i n g s of f a c t , conclusions of law and o r d e r on October 16, 1978, g r a n t i n g t h e r e l i e f requested by SRS. Judgment was subse- q u e n t l y e n t e r e d i n accordance therewith on October 17, 1978. The p a r e n t s of t h e youth appeal. L.F.G. was born on September 29, 1977, i n ~ i l l i n g s , Montana. The n a t u r a l p a r e n t s of t h e c h i l d a r e J.C.G. and R.G. A t t h e t i m e of t h e hearing, t h e n a t u r a l p a r e n t s and t h e c h i l d r e s i d e d i n Yellowstone County, Montana. The s o c i a l worker i n t h e case, Martha E v e r e t t , had h e r f i r s t c o n t a c t with t h e mother on September 19, 1977, when s h e and h e r mother contacted t h e l o c a l SRS o f f i c e t o l e a r n t h e procedures r e l a t i v e t o t h e relinquishment of t h e mother's then unborn c h i l d . The mother i n d i c a t e d t o E v e r e t t during t h e i r i n i t i a l c o n t a c t t h a t she d i d n o t f e e l t h a t "she w a s strong enough t o take c a r e of a baby." The c h i l d was born t e n days a f t e r t h e mother's i n i t i a l Contact with t h e s o c i a l worker. A t b i r t h , t h e baby weighed f o u r pounds and eleven ounces. He was normal i n a l l re- s p e c t s , except t h a t h i s b i r t h weight w a s l i g h t f o r a f u l l - t e r m i n f a n t . O n October 3, 1977, t h e mother informed E v e r e t t t h a t she had changed her mind about r e l i n q u i s h i n g t h e c h i l d , and t h a t she no longer was i n t e r e s t e d i n having t h e c h i l d placed adoptively. The baby was placed i n a f o s t e r home on October 5, 1977, with t h e knowledge, understanding, and consent of t h e c h i l d ' s n a t u r a l parents. A t t h e time of placement i n f o s t e r c a r e , t h e mother i n d i c a t e d t h a t "she d i d n ' t f e e l t h a t she was physically ready f o r taking c a r e of t h e c h i l d . " M r s . Delores Smith was t h e f o s t e r p a r e n t who provided t h e primary c a r e f o r t h e baby during h i s residence i n her f o s t e r home. The baby remained i n t h e Smith f o s t e r home from October 5, 1977, u n t i l A p r i l 1 0 , 1978. During t h a t six-month period, t h e mother made 38 v i s i t s t o t h e f o s t e r home t o v i s i t her c h i l d . The purpose of t h e mother's v i s i t s with her c h i l d i n t h e f o s t e r home was t o allow her v i s i t a t i o n , t o observe her with t h e c h i l d , and t o attempt t o teach her t h e s k i l l s she would need t o c a r e f o r t h e c h i l d on h i s r e t u r n t o her phy- s i c a l custody. M r s . Smith was p r e s e n t during each of t h e v i s i t s t h a t t h e mother had with her c h i l d . During t h i s s i x - month period of f o s t e r c a r e , t h e f a t h e r made one v i s i t t o s e e t h e c h i l d i n t h e Smith home. The mother showed some improvement i n her apparent a b i l i t y t o c a r e f o r t h e c h i l d during t h e period of January t o March 1978. M r s . Smith i n d i c a t e d , however, t h a t she never r e a l l y held t h e baby properly, and t h a t she f a i l e d t o demonstrate any a f f e c t i o n o r emotion towards t h e c h i l d . The baby seemed t o c r y more than usual when he was around h i s mother, and t h e mother appeared t o be confused and uncertain about what t o do with t h e c h i l d i n general. M r s . Smith never observed any physical c o n t a c t o r i n t e r a c t i o n between t h e c h i l d and h i s f a t h e r during t h e i n i t i a l period of f o s t e r c a r e i n her home. The baby was returned t o h i s n a t u r a l p a r e n t s on A p r i l 1 0 , 1978. P r i o r t o t h a t r e t u r n , Martha E v e r e t t had made arrangements f o r t h e provision of many support s e r v i c e s t o a s s i s t t h e mother i n her c a r e of t h e c h i l d . Homemakers from SRS and a public h e a l t h nurse made r e g u l a r and frequent v i s i t s t o t h e c h i l d and his parents. Despite these e f f o r t s made t o upgrade t h e mother's child-caring s k i l l s , she f a i l e d t o l e a r n t h e t h i n g s t h a t she was taught concerning her care of t h e c h i l d . There was a l s o an absence of physical con- t a c t and play between t h e c h i l d and h i s mother. The p u b l i c h e a l t h nurse a l s o observed t h e mother leave t h e baby unat- tended on two occasions. The mother a l s o described t h e f a t h e r as having thrown t h e c h i l d i n t o t h e baby c r i b . The c h i l d ' s s i t u a t i o n with h i s n a t u r a l p a r e n t s began t o d e t e r i o r a t e . According t o t h e homemakers and public h e a l t h nurses who were i n t h e home, t h e mother became more d i s t a n t and less cooperative. F i n a l l y , on May 18, 1978, based upon t h e observations of t h e s e r v i c e providers and t h e recommenda- t i o n of a p s y c h i a t r i s t , D r . Van Dyke, t h e c h i l d was removed from t h e home of h i s n a t u r a l p a r e n t s and returned t o t h e Smith f o s t e r home. A t t h e t i m e of t h e c h i l d ' s r e t u r n t o t h e f o s t e r home, h i s head w a s d i r t y , h i s body was d i r t y , and h i s " l i t t l e p e n i s w a s f i l t h y . " H e was subsequently observed a p p a r e n t l y having nightmares and waking up c r y i n g and shaking. Evidence concerning t h e mother's psychological c o n d i t i o n was presented a t t h e hearing. The mother had been evaluated i n November 1977 by D r . Ned Tranel and a g a i n on March 21, 1978. D r . Tranel diagnosed t h e mother a s having two major psychological d i s o r d e r s . The f i r s t i s t e c h n i c a l l y classi- f i e d as schizophrenic r e a c t i o n , c h r o n i c u n d i f f e r e n t i a t e d type. The second d i s o r d e r was described by D r . Tranel a s being an o r g a n i c b r a i n syndrome o r c h r o n i c b r a i n syndrome. D r . Tranel o f f e r e d t h e opinion t h a t t h e c h i l d should n o t be r e t u r n e d t o a s i t u a t i o n i n which t h e mother was t h e primary c a r e t a k e r f o r t h e c h i l d . The i s s u e s presented on appeal a r e : 1. Was t h e evidence presented a t t h e custody hearing s u f f i c i e n t t o support t h e f i n d i n g of t h e D i s t r i c t Court t h a t L.F.G. was a youth i n need of c a r e w i t h i n t h e meaning of s e c t i o n 41-3-102, M C A ? 2. Did t h e D i s t r i c t Court err i n terminating t h e p a r e n t a l r i g h t s of R.G., t h e f a t h e r , based upon t h e evidence presented? 3. Was L.F.G. a youth i n need of c a r e ? The f u n c t i o n of a reviewing c o u r t i n a case such as t h i s one has been w e l l defined i n p r i o r d e c i s i o n s of t h i s Court. I n R e Gore (1977), Mont. , 570 P.2d 1110, 34 - St.Rep. 1179, involved an appeal from a ~ i s t r i c t Court determination s i m i l a r t o one i n t h e i n s t a n t case. I n de- c i d i n g t h a t t h e District Court had n o t abused i t s d i s c r e t i o n when it granted SRS's p e t i t i o n f o r permanent custody, t h i s Court s t a t e d : ". . . This Court i s mindful t h a t t h e primary d u t y of deciding t h e proper custody of c h i l - d r e n i s t h e t a s k of t h e d i s t r i c t c o u r t . A s a r e s u l t , a l l reasonable presumptions a s t o t h e c o r r e c t n e s s of t h e determination by t h e d i s - t r i c t c o u r t w i l l be made. Foss v. Leafer, Mont. 550 P.2d 1309, 33 St.Rep. 528 (1976). Due t o t h i s presumption of c o r r e c t n e s s t h e d i s t r i c t c o u r t ' s f i n d i n g s w i l l n o t be d i s - turbed u n l e s s t h e r e i s a mistake of l a w o r a f i n d i n g of f a c t n o t supported by c r e d i b l e e v i - dence t h a t would amount t o a c l e a r abuse of d i s c r e t i o n . . ." 570 P.2d a t 1112, 34 St.Rep. a t 1181-1182. The r u l e i n Montana i s t h a t b e f o r e t h e r u l i n g of t h e D i s t r i c t Court can be overturned, it must be shown t h a t t h e District Court c l e a r l y abused its d i s c r e t i o n . For t h e D i s t r i c t Court t o f i n d t h a t L.F.G. was a youth i n need of c a r e , it had t o f i n d t h a t he was dependent o r s u f f e r i n g from abuse o r n e g l e c t . S e c t i o n 41-3-102(4), MCA. S e c t i o n 41-3-102(2)(a) and ( b ) , MCA, d e f i n e abuse o r n e g l e c t : " ( 2 ) 'Abuse' o r ' n e g l e c t ' means: " ( a ) t h e commission o r omission of any a c t o r a c t s which m a t e r i a l l y a f f e c t t h e normal phy- s i c a l o r emotional development of a youth. Any excessive p h y s i c a l i n j u r y ; sexual a s s a u l t , o r f a i l u r e t o t h r i v e , t a k i n g i n t o account t h e age and medical h i s t o r y of t h e youth, s h a l l be presumed t o be nonaccidental and t o mater- i a l l y a f f e c t t h e normal development of t h e youth. " ( b ) t h e commission o r omission of any a c t o r a c t s by any person i n t h e s t a t u s of p a r e n t , guardian, o r custodian who thereby and by reason of p h y s i c a l o r mental i n c a p a c i t y o r o t h e r cause r e f u s e s o r , with s t a t e and p r i v a t e a i d and a s s i s t a n c e , i s unable t o d i s c h a r g e t h e d u t i e s and r e s p o n s i b i l i t i e s f o r proper and necessary s u b s i s t e n c e , education, medical, o r any o t h e r c a r e necessary f o r t h e y o u t h ' s phy- s i c a l , moral, and emotional well-being." Appellants contend t h a t under t h e f a c t s of t h i s c a s e , t h e r e w a s a clear abuse of d i s c r e t i o n on t h e p a r t of t h e D i s t r i c t Court i n t h e e n t r y of i t s f i n d i n g s . Appellants argue t h a t t h e Montana l e g i s l a t u r e has d e c l a r e d t h e p o l i c y of t h i s s t a t e f o r abused and neglected c h i l d r e n i n s e c t i o n 41-3-101(1), MCA, which provides: " ( 1 ) It i s hereby declared t o be t h e p o l i c y of t h e S t a t e of Montana t o : " ( a ) i n s u r e t h a t a l l youth a r e afforded an ade- q u a t e p h y s i c a l and emotional environment t o promote normal development; " ( b ) compel i n proper c a s e s t h e p a r e n t o r guardian of a youth t o perform t h e moral and l e g a l duty owed t o t h e youth; " ( c ) achieve t h e s e purposes i n a family environ- ment whenever p o s s i b l e ; and " ( d ) preserve t h e u n i t y and welfare of t h e family whenever possible." Where a c h i l d has a l l e g e d l y been abused o r neglected by h i s n a t u r a l p a r e n t s , t h e S t a t e has a c l e a r d u t y t o p r o t e c t t h e i n t e r e s t s of t h e c h i l d by means of a j u d i c i a l hearing t o determine whether t h e youth i s i n f a c t abused o r neglected. The importance of t h e n a t u r e and scope of t h i s j u d i c i a l proceeding has previously been addressed by t h i s Court i n a r e c e n t case, I n t h e Matter of Guardianship of Doney (1977), Mont. "There a r e , however, few invasions by t h e s t a t e i n t o t h e privacy of t h e i n d i v i d u a l t h a t a r e more extreme than t h a t of depriving a n a t u r a l p a r e n t of t h e custody of h i s c h i l d r e n . For t h i s rea- son, t h e l e g i s l a t u r e c a r e f u l l y enunciated t h e procedures t h e state must follow and t h e find- i n g s which t h e c o u r t must make before custody of a c h i l d may l e g a l l y be taken from h i s n a t u r a l parent. "This c a r e f u l p r o t e c t i o n of p a r e n t a l r i g h t s i s n o t merely a m a t t e r of l e g i s l a t i v e grace, b u t i s c o n s t i t u t i o n a l l y required. Stanley v. Illi- n o i s , 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ." The p r o v i s i o n s mandated by t h e Montana l e g i s l a t u r e r e l a t i v e t o required procedure and f i n d i n g s by t h e D i s t r i c t Court i n c a s e s of a l l e g e d abuse o r n e g l e c t are set f o r t h i n s e v e r a l p e r t i n e n t s t a t u t e s . Section 41-3-404, MCA, provides i n p e r t i n e n t p a r t : " ( 1 ) I n a hearing on a p e t i t i o n under 41-3-401, t h e c o u r t s h a l l determine whether s a i d youth i s --- an abused, neglected, o r dependent c h i l d , and - a s c e r t a i n , a s f a r a s p o s s i b l e , t h e cause t h e r e o f . " (Emphasis supplied.) S e c t i o n 41-3-406, MCA, then c l e a r l y s t a t e s i n p a r t : " ( 1 ) I f a youth i s found t o be abused, neglected, o r dependent, t h e c o u r t may e n t e r i t s judgment making any of t h e following d i s p o s i t i o n s t o p r o t e c t t h e welfare of t h e youth: " ( b ) Transfer l e g a l custody t o any of t h e follow- ing: " (i) Department of S o c i a l and R e h a b i l i t a t i o n Services. " Appellants argue t h a t t h e s e s t a t u t e s make it clear t h a t a f i n d i n g of abuse, n e g l e c t , o r dependency i s t h e j u r i s d i c - t i o n a l p r e r e q u i s i t e t o any c o u r t ordered t r a n s f e r of cus- tody, c i t i n g In t h e Matter of F i s h (1977), Mont . I 569 P.2d 924, 927, 34 St-Rep. 1080; Gore, 570 P.2d a t 1113, 34 St.Rep. a t 1183; Doney, 570 P.2d 577, 34 St.Rep. a t 1109- 10. Appellants argue it i s then, and only then, t h a t t h e " b e s t i n t e r e s t s of t h e c h i l d " standard s o w e l l e s t a b l i s h e d by t h i s Court has i t s a p p l i c a t i o n i n t h e r e s o l u t i o n of t h e q u e s t i o n of custody. Gore, 570 P.2d a t 1 1 1 4 , 34 St.Rep. a t 1184; Doney, 570 P.2d a t 578, 34 St.Rep. a t 1110. Thus, b e f o r e t h e District Court may consider what t h e " b e s t i n t e r e s t s of t h e c h i l d " may i n f a c t be, t h e c o u r t must have found t h a t t h e c h i l d i n question was i n f a c t abused o r neglected pursuant t o s t a t u t o r y d e f i n i t i o n i n s e c t i o n 41-3- 1 0 2 ( 2 ) , MCA. T h i s element cannot be s a t i s f i e d by a m e r e r e c i t a t i o n of t h e D i s t r i c t Court t h a t it f i n d s t h e c h i l d i n q u e s t i o n t o be abused o r neglected; t h e evidence submitted t o t h e c o u r t must c l e a r l y support such a finding. With this standard in mind, we have reviewed the evi- dence presented to the District Court as it fits into the general guidelines established by this Court in recent decisions regarding abused and neglected youths. The child here was placed in the family home for a period of only five weeks. During this time, the family was subject to the daily supervision of welfare department personnel. The public health nurse, the personnel of the welfare depart- ment, and a neighbor, all had the opportunity to observe the child in the parents' home, and all agreed that during their observations he appeared to be well-fed, well-clothed, and clean. In addition, during this period there were no signs of physical abuse, and the child appeared to have no learn- ing disabilities or behavior problems in the home, nor was he left alone for extensive periods of time without super- vision. On the basis of the above facts, appellants endeavor to distinguish the facts in this case from the facts in several cases involving physical abuse and neglect of a child jus- tifying the termination of parental custody. In addition, appellants endeavor to distinguish the facts in this case from the facts in several cases in which the mental condition of one or both parents was a factor considered by the court together with other environmental factors justifying the termination of parental custody. In the Matter of T.E.R. (1979), Mont . , 590 P. 2d 1117, 36 St.Rep. 276; In the Matter of J.J.S. (1978), Mont. , 577 P.2d 378, 35 St.Rep. 394; In re Moyer (1977), Mont. , 567 P.2d 47, 34 St.Rep. 682; In re Matter of Bessette (1976), 170 Mont. 122, 551 P.2d 653; In re Henderson (1975), 168 Mont. 329, 542 P.2d 1204. Appellants contend that a review of the evidence pre- sented at the hearing presents the contrary view, i.e., that the child suffered no adverse effects from his mother's mental condition, and that he was in fact well cared for. his, they claim, is the distinguishing factor from the other Montana cases previously cited. The mental condition of the mother standing alone, according to appellants, was apparently found by the District Court to be the sole basis for termination of parental rights, without a finding of the relationship between the mental condition and any alleged detriment to the child. A review of Montana case law reveals no decisions in which the mental condition of one or both parents was the sole factor considered by the court. Other jurisdictions, however, have considered this factor and some have arrived at a different conclusion than that reached by the District Court herein. Appellants cite a minority view of Mr. Justice Murphy in a 1972 termination of parental rights case from New York. While we do not wish to disagree with our Irish brother in New York, we find that relying on a minority view in making our decision as to what the law is to be in this State, while enlightening, is not persuasive. The majority found that under the New York Family Court Act, Section 1012(f), that the record amply supported a finding of neglect in that the child is "in eminent danger of becoming impaired." The court noted that a child living with a chronic paranoid and severely psychotic schizophrenic mother is in eminent danger of becoming physically and emotionally impaired. That is the situation the trial judge faced here, and we do not find fault with his judgment. Appellants go on to discuss several cases from other jurisdictions to substantiate their position on mental conditions as the sole factor in a case involving parental rights. See, In Interest of E. v. J.T. (1978), Utah2d , 578 P. 2d 831; In the Matter of Anderson (1978), 35 3 2 0r.App. 561, 582 P.2d ; In the Matter of Wyatt (1978), 34 0r.App. 793, 579 P.2d 889; In the Matter of Fisher (1976), 169 Mont. 254, 545 P.2d 654; In the Matter of J.J.S., supra. As these cases discuss, one of the controlling criteria to be considered is, what are the possibilities of damage to the child? What we have before us here is a case not of possibilities, but of high probabilities, and in such a case, the child's future must be paramount. As we noted in In the Matter of J.J.S., 577 P.2d at 381, 35 St.Rep. at 397: ". . . What is, or what is not, the best interests of the child depends upon the facts and circum- stances of each case. The responsibility of de- ciding custody is a delicate one that is lodged in the District Court. The judge hearing oral testimony in such a controversy has a superior advantage in determining the same, and his deci- sion ought not to be disturbed except under a clear abuse of discretion. [Citations omitted.]" Dr. Tranel testified that because of the mother's combination of a schizophrenic mental illness and organic brain damage, there existed a condition of material depri- vation known as "mask deprivation." This condition exists where there is no emotional responsiveness to the child, but this failure to "mother" the child is masked by the fact that the parent is physically present. He further testified that the mother would not be able to respond to the most basic emotional needs of the child because of her mental condition. Dr. Tranel stated that while it was possible that the mother's condition could be stabilized at its present level, it was unrealistic to expect any improvement. D r . Tranel concluded t h a t i f the c h i l d was returned t o t h e mother, he would n o t receive even minimally s a t i s f a c t o r y maternal c a r e and would be exposed t o "extremely high" chances of developing a mental condition s i m i l a r t o t h a t of t h e mother. W e f i n d t h e r e i s s u f f i c i e n t c r e d i b l e evidence t o sup- p o r t the decision of t h e D i s t r i c t Court t h a t the c h i l d was a youth i n need of care. Therefore, t h e r e has been no abuse of d i s c r e t i o n . I n removing the c h i l d permanently from t h e n a t u r a l parents, t h e D i s t r i c t Court w a s a c t i n g i n the b e s t i n t e r e s t s of the c h i l d as it was bound t o do. The D i s t r i c t Court i n t h i s case had the opportunity t o view the testimony of J . C . G . , and was j u s t i f i e d i n finding t h a t t h e c h i l d w a s a youth i n need of care. I t i s i n t h e b e s t i n t e r e s t s of t h e c h i l d t h a t he n o t be returned t o t h e n a t u r a l parents but placed f o r adoption. The attorney f o r t h e youth supports t h e position of t h e D i s t r i c t Court and t h e S t a t e on t h i s issue. Appellants next contend t h a t i n t h e t r i a l of t h i s matter R.G., t h e n a t u r a l f a t h e r , played an i n s i g n i f i c a n t r o l e i n t h e evidence presented t o t h e c o u r t regarding t h e capacity and c a p a b i l i t i e s of R.G. and J.C.G. a s parents. This proceeding focused primarily on a l l e g a t i o n s of mental i n c a p a b i l i t i e s on t h e p a r t of the mother. ~ u r i n g t h e pro- ceedings, t h e f a t h e r w a s mentioned only i n passing on several occasions, and a t no t i m e during t h e proceedings was t h e r e any s u b s t a n t i a l e f f o r t made t o i n q u i r e i n t o h i s capa- b i l i t i e s as a parent. Appellants contend t h a t t h i s lack of discussion requires a c l o s e examination of t h e v a l i d i t y of t h e termination proceedings i n l i g h t of a r e c e n t decision made a f t e r the e n t r y of judgment i n t h e case here. I n the Matter of T.E.R. (1979), supra. I n t h a t case, the Court d i r e c t e d i t s e l f t o e x a c t l y t h i s i s s u e f o r what was appar- e n t l y t h e f i r s t time, and found an inadequate consideration of t h e r i g h t s of t h e o t h e r parent: "However, a c a r e f u l review of t h e record does n o t r e v e a l t h a t t h e youth c o u r t adequately con- sidered t h e r i g h t s of T . E . R . ' s motion i n award- i n g permanent custody of T.E.R. t o SRS with a u t h o r i t y t o consent t o her adoption. I n addi- t i o n t o t h e r i g h t s a s a couple, p a r e n t s may have i n d i v i d u a l r i g h t s with r e s p e c t t o t h e i r children. The record i n the i n s t a n t c a s e re- v e a l s t h a t t h e mother's r i g h t s w e r e afforded no more than s u p e r f i c i a l consideration. There- f o r e , t h e order of t h e youth c o u r t i s vacated t o t h e e x t e n t t h a t it a p p l i e s t o T.E.R. 's mother, and t h e case i s remanded t o t h e youth c o u r t f o r f u r t h e r proceedings t o determine t h e f u t u r e s t a t u s of t h e mother's p a r e n t a l r i g h t s . " I n t h e Matter of T.E.R., 590 P.2d a t 1 1 2 1 , 36 St.Rep. a t 281. Appellants argue t h a t i n l i g h t of t h i s decision and t h e inadequate consideration of t h e f a t h e r ' s r i g h t s a s a p a r e n t herein, t h i s matter should be reversed and remanded, i f f o r no o t h e r reason than t h i s inadequate consideration p r i o r t o p a r e n t a l termination. The S t a t e and t h e a t t o r n e y f o r t h e youth contend t h a t t h e r i g h t s of t h e f a t h e r were considered. They argue t h a t t h e f a t h e r was served with n o t i c e of t h e hearing, was p r e s e n t a t t h e hearing, and had a c o u r t appointed a t t o r n e y t o repre- s e n t h i s i n t e r e s t s . D r . Tranel t e s t i f i e d t h a t , i n h i s opinion, t h e f a t h e r would n o t be a b l e t o provide enough influence t o o f f s e t t h e marked deprivation described above, nor i n f a c t , would anyone be a b l e t o do so. I n a d d i t i o n , testimony showed t h a t t h e f a t h e r made no e f f o r t t o a s s i s t t h e mother i n learning t o become a good parent. H e v i s i t e d t h e f o s t e r home only once while t h e mother made 38 v i s i t s . The homemaker who t e s t i f i e d reported t h a t t h e f a t h e r never a s s i s t e d t h e mother i n learning parenting s k i l l s and was, i n f a c t , a d i s t r a c t i o n . The f a t h e r d i d n o t t e s t i f y a t t h e hearing. The mother r e p o r t e d t o t h e homemaker t h a t t h e f a t h e r had abused t h e baby by throwing him i n t o t h e c r i b . W e b e l i e v e t h e record shows t h a t t h e f a t h e r ' s r i g h t s w e r e adequately considered p r i o r t o termination and t h a t t h e D i s t r i c t C o u r t ' s d e c i s i o n t o terminate them i s supported by c r e d i b l e evidence. The f i n d i n g s of f a c t and conclusions of l a w of t h e t r i a l c o u r t and t h e judgment of t h e t r i a l c o u r t i s affirmed. W e concur: %44?w* Chief J u s t i c e | August 20, 1979 |
54030681-5793-45cd-8fd3-72d83bc04dc2 | STATE EX REL ROSS v MALLORY | N/A | 14887 | Montana | Montana Supreme Court | No. 14887 IN THE SUPREME COURT OF THE STATE OF MONTANA STATE OF MONTANA, ex rel., DAVID ALLEN ROSS. VIRGINIA MALLORY, JUSTICE OF THE PEACE, POLSON DISTRICT, LAKE COUNTY, MONTANA, Appeal from: District Court of the Fourth Judicial District, Honorable Jack L. Green, Judge presiding. Counsel of Record: ~ C ' f , v f i # ~ ~ $ , J A,nPL- f LA ~j For P & ~ t ~ ~ : Turnage - and McNeil, Polson, Montana & f i / , , it, f d,uf , t ~ - - ~ ,ytp /- ,yr7 For Reepe&k&: K. M. Bridenstine, Polson, Montana Submitted: September 19, 1979 on briefs Decided : 2 , A = 1974 jyy 2 .c;-- Filed: Mr. Justice John C. Sheehy delivered the Opinion of the Court. Relator, David Allen Ross was charged with two traffic offenses by citations issued on December 1, 1978. Ross was convicted of "reckless driving" and "leaving the scene of an accident" on January 8, 1979 after a nonjury trial in the Lake County Justice Court of Virginia Mallory, the appellant. On this same date, an oral notice of appeal was given to the Justice Court on behalf of Ross who posted an appeal bond as ordered. On January 16, 1979, written notice of appeal addressed to the Justice Court was filed on behalf of Ross, inadvertently with the Clerk of the District Court. The Clerk who was newly elected, failed to forward the notice to the proper court. As a result, no written notice of intention to appeal was filed with the Justice Court within the ten day period following judgment as required by statute, nor was the record of the proceedings of the Justice Court transferred to the District Court. The appeal was dismissed and the bond ordered forfeited in Justice Court on April 6, 1979 by Justice of the Peace Mallory. Ross applied to the District Court for a writ of mandate on April 19, 1979, directing Mallory to set aside the order for dismissal and to transmit the record and file to the District Court. A hearing was held on May 16, 1979 and on June 13, 1979 the District Court entered its findings and entered judgment that a writ of mandate be issued. Subsequently, a peremptory writ of mandate was issued on June 21, 1979 commanding Mallory to transmit the Justice Court records of the Ross proceedings MA,*;. k ' / ' to the District Court. E & s s asserts on this appeal that the District Court erred in issuing the writ of mandate. Section 46-17-311, MCA, states: " (1) All cases on appeal from justices' . . . courts must be tried anew in the district court . . . " (2) The defendant may appeal to the district court by giving written notice of his intention to appeal within 10 days after judgment. " (3) Within 30 days, the entire record of the justices! . . . court proceedings shall be transferred to the district court or the appeal shall be dismissed. It is the duty of the defendant to perfect the appeal. " The statute is clear and expressly requires that "written" notice of appeal be filed in Justice Court. The duty to perfect an appeal is also explicit and expressly directed to be that of the defendant. In the present case, since written notice was not provided to the appropriate court, Ross did not perfect his appeal in the manner required by law and the Justice of the Peace had no concomitant duty to transmit the files to the District Court. Consequently there existed no basis for writ of mandate to be issued. Justice We Concur: Just | October 2, 1979 |
ce13dd2f-3316-4179-8e0f-e483352dca91 | AUDIT SERVICES INC v FRANCIS TI | N/A | 14425 | Montana | Montana Supreme Court | No. 14425 I N THE S U P R E M E CT)UHT OF THE STATE OF MXJTANA 1979 AUDIT SEE7VICFS, INC., a Mntana Corporation, Plaintiff and Appellant, F R A N C I S TllmALL rnSTHUCrION, a Corporation, Defendant and Respondent. Appeal from: D i s t r i c t Court of the Tenth Judicial District, Honorable Charles B. Sande, Judge presiding. Counsel of Record: For Appellant: Cure and Borer, Great Falls, Montana For Respondent: Bradley B. Parrish, Iewistuwn, IJbntana Filed : Subknitted on hriefs: M a y 15, 1979 - Decided: SEF 26 1979 Mr. Justice John C . . Sheehy delivered the Opinion of the Court. Audit Services appeals from a statement of the Fergus County District Court, entered on behalf of the respondent denying recovery of alleged delinquent contributions, liquidated damages, interest, audit fees and attorney fees assessed as owing to appellant's assignors, the Montana Laborers, Operating Engineers and Teamsters Trust Funds for the period of January 1, 1971 through March 31, 1974. Francis Tindall is the owner of Francis Tindall Construction, an unincorporated sole proprietorship located in Lewistown, Montana. Tindall Construction is primarily a road and highway construction firm but also does other construction work. Tindall executed a "compliance agreement" with the Montana Laborers Union and the Montana Teamsters Union in June 1966 and with the Montana Operating Engineers Union in September 1967, binding the construction company to the terms of the collective bargaining agreements between the three unions and the Montana Contractors Association. Audit Services, a nonprofit corporation, is the assignee of the trustees of eight Montana employee benefit trust funds belonging to the three unions. The trusts are jointly managed funds established pursuant to the National Labor Management Relations Act, 29 U.S.C., §186(c) (5) and the 1974 Pension Reform Act, 29 U.S.C., 81001, et seq., and are funded by employer con- tributions based on hours worked by employees within a particular craft. These funds provide health and welfare, pension, apprenticeship and vacation benefits to Montana laborers, operating engineers and teamsters, both union and nonunion. Contribution rates for each of the trust funds are set forth in the collective bargaining agreements negotiated between the unions and employers. In order to contribute to these trust funds on behalf of his employees, an employer completes remittance report forms each month which are sent to the administrative office of the trusts. The employer lists on the forms each of his employees who has worked within the particular craft classification in the preceding month, lists the number of hours worked by each employee and then multiplies the total number of hours so listed against the contribution rates set forth, in the applicable collective bargaining agreement. The employer then sends his check for the full amount computed as owing along with the remittance report. A representative of the trust funds contacted Tindall and requested an audit of his payroll records pursuant to the provisions of the individual trust agreements. No objection was voiced and an audit was conducted in May 1974, by Howard G. Sand, an accountant retained by Audit Services. The audit revealed that during the period from January 1, 1971 through March 31, 1974, Tindall's contributions to the trust funds covered only 84.8% of his total payroll (i.e. 11,151 1/2 or 15.2% of the hours were not reported). Using the collective bargaining agreements in effect during the period of time covered by his audit, Sand computed that an amount of $8,479.68 was owing to the respective trust funds for delinquent contributions. An additional amount consisting of $415.08 in liquidated damages, $60.79 in interest and $327.04 for auditor fees was assessed as owing, also based on the trust agreement provisions. -3- After receiving no response to several requests for payment, claims for the liability were assigned to Audit Services and suit commenced on November 26, 1974. During the pendency of the litigation and up until the trial, Tindall continued to file regular monthly remittance reports and to make contributions to the trust funds at the rates specified by the union contracts in effect at the time. As of the date of trial, Tindall's audited liability totaled $11,028.12. Additionally, Audit Services requested $3,000 as attorney fees under the terms of the trust agreements. A nonjury trial was held on February 16, 1978. On May 17, 1978, the decision of the court was rendered with findings of fact and conclusions of law dismissing the complaint. The sole issue presented on this appeal is whether the District Court erred in deciding that as a matter of law, Francis Tindall has no obligation to make fringe benefit contributions to the Montana Laborers, Operating Engineers and Teamsters Trust Funds between January 1, 1971 and March 31, 1974. A careful review of all the circumstances of the case and the matters on record requires as a matter of law, a holding that the respondent ratified the collective bargaining agreements that were in force during this period and the respondent is thereby estopped from denying the effect of this ratification. Section 28-2-304, MCA, states: "Ratification of contract void for want of consent. A contract which is voidable solely for want of consent may be ratified by a subsequent consent." Ratification may occur in either an express oral manner or solely by means of personal conduct. -4- Ratification is a form of equitable estoppel and ordinarily is applied strictly in an agency context, whereby a principal approves the unauthorized act of an agent. See Larson v. Marcy (19211, 61 Mont. 1, 201 P. 685. However, it is also applied in varying classes of cases including contracts. Generally, contract ratification is the adoption of a previously formed contract, notwith- standing a quality that rendered it relatively void and by the very act of ratification the party affirming becomes bound by it and entitled to all the proper benefits from it. Shagun v. Scott Mfg. Co. (8th Cir. 1908), 162 F. 209, 219. The contract is obligatory from its inception and may be signified from the commission or omission of acts. East Cent. Okl. Elec. Coop., Inc. v . Oklahoma G. & E. Co. (Okl. 1977), 505 P.2d 1324, 1329. Montana case law also has held that the subsequent recognition of a contract is the equivalent of ratification. This Court has stated: "'Ratification' is defined to be the con- firmation of a previous act done either by the party himself or by another. (Citing authority.) And a confirmation necessarily supposes knowledge of the thing ratified. (Citing authority.) It follows that to constitute a ratification there must be an acceptance of the results of the act with an intent to ratify and with full knowledge of all the material circumstances." Koerner v . Northern Pac. Ry. Co. (1919) , 56 Mont. 511, 520, ,'$$q. 337, 340. It is the manifestation of the ratifying party which controls. The respondent's outward expressions and actions judge of his intentdon and his intent in the case sub judice is clear. No doubt exists that the respondent had full knowledge of the existence and content of the collective bargaining agreements. Respondent's conduct in making contributions to the trust funds for the admitted purpose of obtaining benefits thereunder for his employees, results in the ratification of the collective bargaining agreements providing for those contributions. At no time during the eight years since the original inception of the payment of contributions to the trust funds, including the three years involved in this action, did the respondent by an affirmative act attempt to rescind the contracts. His actions manifest the opposite conclusion. Respondent vigorously asserts that these collective bargaining agreements were not ratified but this Court believes there is sufficient evidence of ratification and acquiescence and that in the absence of any reasonable explanation, such factors constitute indisputable evidence of ratification. It must be held therefore, that the respondent having ratified the collective bargaining agreements by his actions and inactions, is now estopped from denying the validity of the contracts. For the reasons indicated, the judgment of the District Court is reversed and the matter shall be remanded for further proceedings in accordance with this Opinion. Justice We Concur: | September 26, 1979 |
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